The Administrative Office of the Courts today released figures showing 2009 copyright litigation in federal district court fell 30 percent while overall litigation rose 3 percent.  Wired  reports the volume of copyright litigation may have dropped because the Recording Industry of America (RIAA) abandoned its litigation campaign against individual file sharers.

Between 2003 2003 and 2008 RIAA filed 35,000 copyright lawsuits against individuals, a litigation strategy designed to reduce the volume of illegally-downloaded music.  RIAA’s new strategy has focused on Internet Service Providers rather than individual Internet users.

In 2006 we analyzed the issue of copyright liability for those who provide means  of    infringement, an issue that’s still pressing despite RIAA’s new focus.

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The Washington State Supreme Court today held public libraries can filter Internet access for all patrons without violating the state Constitution.  In a 5-1-3 decision the Court said filtering the Internet is not like removing books fromlibrary shelves, but rather more like selecting which books to purchase for the library’s collection.  Had the Court  found Internet filtering was more like removing books, the Court would have applied a stricter standard of scrutiny.  The dissent argued censoring material on the Internet is not the same as declining to purchase a book, but rather more like refusing to circulate a book in the collection based on content.

The public library’s Internet access was filtered by FortiGurad, which used algorithms and human review to block 76 categories of websites.  Some of the blocked content included Instant Messaging, “Adult Materials,” and “Nudity and Risque.”  The program also blocked Image Search, Video Search, and Craigslist.com.  Plaintiffs, who included library patrons and a nonprofit foundation sponsoring a website called womenandguns.com, alleged the library’s filtering policy was overbroad and therefore an unconstitutional prior restraint.  The Court disagreed because  the filtering did not prevent online speech before it occurred.  Instead the Court said the policy was a standard for making determinations about what would be included in the libary’s collection available to patrons.

Credit: Photo from ATE Centers Impact 2008-2010, http://www.atecenters.org

Article I, section 5 of the Washington State Constitution provides, “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”  The Court noted the Washington Constitution offers more speech protections than the First Amendment.  For example, the Washington Constitution requires a “compelling government interest” to impose time, place, or manner restrictions on speech while the First Amendment only requires a “substantial government interest.”  Nevertheless the Court decided the case based primarily on U.S. Supreme Court precedent including United States v. American Library Ass’n, 539 U.S. 194 (2003).  In that decision the Court held public forum analysis (and therefore strict scrutiny) does not apply to public library decisions about Internet access.

The decision is Bradburn v. N. Cent. Reg’l Library Dist.

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The Shidler Journal of Law, Technology + Commerce published its final issue today.  Starting June 2010, the Shidler Journal will become the Washington Journal of Law, Technology & Arts.

The University of Washington School of Law decided to change the Journal name after creating a new research program, Law, Technology & Arts Group (LTA).  LTA merged the Shidler Center for Law, Commerce + Technology, the Graduate Program in IP Law & Policy, and the Center for Advanced Study & Research on Intellectual Property (CASRIP) into a single research unit.

The new Journal will continue to publish the same succinct legal research that readers came to expect from the Shidler Journal of Law, Commerce + Technology.  The new partnership with LTA will simply allow the Journal to grow and publish more cutting-edge legal analysis.

The Cleveland Plain Dealer recently decided to release the identity of an anonymous person who was posting online comments about a pending capital murder trial.  The newspaper revealed the person’s identity after linking comments to an e-mail address affiliated with a local court where the trial was pending.  The trial judge told the newspaper her daughter was responsible for posting the comments.

Anonymous online posts are raising a host of new legal issues.  In the litigation context, courts have struggled to adopt a uniform test balancing the First Amendment right to remain anonymous with plaintiffs’ desires to obtain identifying information through subpoenas.  The Shidler Journal (now the Washington Journal of Law, Technology & Arts) recently analyzed an Arizona court of appeals decision offering a new hybrid approach to balancing the rights of anonymous posters with litigants challenging online activities.

The News Room Blog has questioned the Dealer’s decision to out its anonymous reader: “Down the road, however, when the Plain Dealer seeks to quash a subpoena from a local politician seeking the identity of someone who he or she alleges posted defamatory material anonymously, Exhibit A to the plaintiff’s brief will almost certainly be this story.”

Telemarketers sued for sending text message advertisements still haven’t gotten the message: A “text message” is a “call” under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.  Therefore telemarketers must obtain prior consent to send text messages advertisements to cell phones just as if they were autodialing cell phones with recorded voice messages.

Last week the the U.S. District Court for the Northern District of Illinois, decided what is now the fourth case affirming the TCPA, which was enacted to protect consumers from unwanted telemarketing calls, also applies to unwanted text message advertising.  Lozano v. Twentieth Century Fox Film Corp., N.D. Ill., No. 1:09-cv-06344, 3/23/10.  The telemarketers had argued text messages were not “calls” because  § 227(b)(1)(A) only refers to “calls,” while § 227(a)(4) refers to both “messages” and “calls.”  The court rejected that argument.

Like Professor Goldman, we’re not sure what it will take for advertisers to get the message.  We’ve been pointing out since 2007 that TCPA also applies to text messages.  And Lozano is now the fourth decision affirming text messages are telephone calls under TCPA.  Satterfield v. Simon & Schuster Inc., 539 F.3d 946, 953 (9th Cir. 2009); Abbas v. Seeling Source LLC, 2009 WL 4884471, (N.D. Ill. Dec. 14, 2009); Joffe v. Acacia Mortgage Co., 121 P.3d 831, 837-38 (2005).  Each of these decisions has affirmed a 2003 FCC opinion that text messages are calls.  In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 F.C.C.R. 14014, 14115 ¶ 165, 2003 WL 21517853 (2003).  This should really be old news to telemarketers.

The result of these decisions is that telemarketers sending text messages must comply with the same TCPA requirements as telemarketers making voice calls.  TCPA prohibits “any call . . . using any automatic telephone dialing system [ATDS] . . . to any . . . cellular telephone service . . .” unless the recipient gave prior express consent.  47 U.S.C. § 227(b) (2006); 47 C.F.R. § 64.1200 (2010).

If telemarketers must continue parsing TCPA to seek shelter from litigants, perhaps they should raise the issue of whether they actually “dialed” telephone numbers within the meaning of the Act.  Like “calls,” TCPA does not define the term “dial.”  Joffe v. Acacia Mortgage Corp. is the only decision addressing this issue.  Citing Webster’s the court concluded “dialing” means “‘operate’ or ‘manipulate’ a device ‘in order’ to make or establish a telephone call or connection.”  Depending on the technology used to send the message, an argument could be made that dialing is not occurring with mobile advertising. 

At the end of the day, however, telemarketers really shouldn’t be sending unsolicited advertisements, voice, text, or otherwise.  The best practices guidelines issued by the Mobile Marketing Association clearly prohibit sending unsolicited messages, require that consumers affirmatively opt-in, and mandate that all messages contain directions on how to opt-out.