Massachusetts Legal Developments Blog

Many computer users are haunted by the idea that they may be violating copyright laws. Not everyone on the web is tech-savvy, and numerous programs make downloading possibly illegal content easier than ever. Couple the ease and accessibility of illegal downloading with confusing copyright laws, and you have a recipe for illegal activity, even if the downloader is not intentionally infringing copyright laws. This week, the Internet is buzzing with news regarding a new proposal for combating infringing activity on the internet. The proposal is novel, invasive, and sounds like illegal activity in and of itself, but nevertheless has been introduced to the United States Government.

The Next Web reports that the US entertainment industry is getting behind a plan to send malware—software made to interrupt computer operation—to alleged infringers. The plan was unveiled in a proposal by the Commission on the Theft of American Intellectual Property, which was submitted to the US Federal Government. The plan would include installing software on computers that would identify whether the computer’s user was engaging in infringing activity, and would cause a “lockdown” of the computer by locking up the files until the “guilty party” turned his or herself into authorities. The proposal also includes the idea that the computer could be locked down with the condition that it would be unlocked when the user contacted authorities—effectively confessing to engaging in copyright infringement. An even more invasive part of the proposal suggests that the malware would include a program for snapping a photo of the computer user with his or her webcam.

The Next Web notes that even Japan, which is known for treating copyright infringement with a solid hand, has not resorted to the tactics in the proposal. File sharing has been illegal in Japan since 2012, and plan to crack down on infringing activity include imprisonment and “honey trap files” which are files made to look like popular television shows that contain alerts regarding the illegality of copyright infringement.

Slashgear.com has also weighed in on the Commission’s proposal, noting that the malware could enable entertainment companies and other copyright holders to do other invasive things, such as gathering, changing, and destroying data from a network, all without the permission of the computer’s user. Even with all this activity in mind, the proposal touts that it would not violate any current laws, but would rather act to stabilize a situation and get authorities involved. However, it is unclear whether the portion of the proposal designed to infect and destroy a computer falls into the “still legal” category.

In any event, both The Next Web and Slashgear.com appear to mirror the sentiment of many computer users, which is that such extensive and novel measures have come to be expected from the entertainment industry and other copyright holders. Still, the idea that downloading a movie or music might result in not only the destruction of one’s computer, but the immediate response of authorities and an instant confession to illegal activity is one that will not sit comfortably with many computer users.  

Copyright laws are constantly changing, and your activity on the web may be subject to legal action. If you have been contacted by anyone regarding a violation of copyright laws, your first line of defense is to contact an experienced copyright defense attorney. Call the law office of Edward R. Molari today for a confidential consultation.

A ruling from the United States District Court for the Southern District of New York affirms at least one Judge’s view that class action status is not appropriate for plaintiffs in copyright infringement suits. Ars Technica reports that Judge Louis Stanton denied class certification to a massive group of plaintiffs seeking to hold YouTube liable for copyright infringement in Football Association Premier League, Ltd. et al, v. YouTube Inc. et al.  The proposed class would include those individuals or entities with ownership over copyrighted work that was posted without permission on YouTube on or after April 15, 2005. The suit runs parallel to a suit commenced in 2007, Viacom v. YouTube. Ultimately, Judge Stanton ruled in favor of YouTube on a Motion for Summary Judgment in that case.

In the current case, numerous plaintiffs, including the Football Association Premier League Limited, the Rodgers and Hammerstein Organization, and the National Music Publishers’ Association, among others, would be required to fit into two subclasses of victims. The first subclass would include those copyright owners who asked YouTube to take allegedly infringing material off of the site, but it remained on the site or was reposted. The second class would include music publishers whose material was allegedly infringed even though YouTube “knew or should have known” about the alleged infringement.

Under the Federal Rules of Civil Procedure, cited by Judge Stanton, there are several prerequisites to class status. First, the class must include so many plaintiffs that joinder would be impracticable. Second, there must be common questions of law and fact as to members of the class. Third, the claims or defenses of the parties representing the class must be typical to those of the class. Finally, fourth, representatives must fairly and adequately represent the members of the class.

According to NBC News, Judge Stanton ruled that copyright claims are “poor candidates for class-action treatment” due to the unique and fact-intensive analysis required for each claim. In the same report cited above,  Ars Technica further noted that Judge Stanton held that the nature of copyrightable works is that they are each unique, and that the issues of “title, assignment, waiver and fair use,” which are part of the Copyright statute, require individualized analysis. Judge Stanton also noted that economic need was not a justification for granting class status because the statutory damages scheme was put in place to give “litigation value” to each individual plaintiff. Finally, on a different note, Judge Stanton established that he had already reviewed similar issues in the Viacom case.

NBC News noted that Viacom has not completely given up and has filed to appeal Judge Stanton’s ruling. The attorney in the instant case stated that his clients are weighing their options, and may decide to appeal Judge Stanton’s decision.

The Copyright Law statute provides for serious penalties for copyright infringement. If you have been contacted by anyone regarding alleged copyright infringement, contact an experienced copyright law attorney today.

Unlike some other countries, the United States does not subscribe to the proposition that the government is entitled to intercept all of the communications of the American people. The government’s ability to use information obtained under certain circumstances is further limited by criminal procedure laws. That being said, technology has outrun the law, creating a tug-of-war between search and seizure law and handheld electronic devices that can store enormous amounts of private information. “Cloud-based” storage and sync programs and most cellular phones now allow users to obtain and store large amounts of sensitive and private information that they can either transfer to various devices, or carry with them on a handheld device, such as an iPhone. Though various software companies, for example Spideroak, and programs, such as the Apple Text Messaging Protocol, can offer higher levels of security to users, increasingly tech-savvy law enforcement officers can now pull most information from a file or phone.

In this climate, it is not surprising that politicians, advocacy groups and judges are hotly debating the applicability requirement for a warrant when searching the phone of an arrested person. While the issue is far from being universally settled, several state Courts and the Seventh Circuit District Court have rendered decisions on warrants for cell phone searches. United States Senators have also sponsored legislation that would help to settle the issue.  

According to CNet.Com, the starting point for discussion regarding search and seizure of electronic communications is the 1986 Electronic Communications Privacy Act. Under that Act, law enforcement officers are entitled to seize e-mail messages more than 180 days old with an administrative subpoena, which does not require the probable cause element that a warrant does. In 2010, the Sixth Circuit Court of Appeals held in US v. Warshak, that Americans have a reasonable expectation of privacy in their e-mail communications. The most recent development with regards to the ECPA comes from the United States Congress. The Electronic Communications Privacy Act Amendments Act of 2013, sponsored by Senate Judiciary Committee Chairman Patrick Leahy of Vermont and Senator Mike Lee of Utah, was introduced this March. According to Senator Leahy’s website, the legislation would amend the ECPA by establishing a search warrant requirement to obtain e-mails and other electronic communications, when those communications are stored using a “cloud based” system. The legislation would also require that the government notify individuals that their e-mails and other communications have been disclosed within ten days of obtaining the warrant. Several states, such as Florida, Delaware, Maryland and Oklahoma have introduced similar legislation at the state government level.

In addition to the legislation, state courts have issued a variety of opinions on the more specific issue of warrantless cell phone searches. The New York Times reports that an Ohio court ruled that police needed a warrant to search a cell phone because it could contain much more information that the traditional notepaper carried in one’s pocket. Meanwhile, a Rhode Island judge suppressed evidence obtained from a cell phone, while a Washington court ruled that text messages are comparable to voicemail messages, and therefore do not require the protection of privacy laws. The Seventh Circuit U.S. Court of Appeals ruled on the issue this March, holding that law enforcement officers do not require a warrant to search an arrestee’s cell phone, because a cell phone is akin to a diary.

The law on the search and seizure of information on an arrestee’s cell phone, or other electronic communication is far from clear cut. If you have been arrested and your electronic information has been obtained by law enforcement officers, an experienced attorney may be able to determine whether the search and seizure was lawful. An experienced attorney can represent you in court and help you understand the charges against you. Contact an experienced attorney immediately for a confidential consultation.

In recent years, Massachusetts voters have called for significant change in Massachusetts’ drug offense law. For example, in January 2009, a voter approved referendum to decriminalize the possession of one ounce or less of marijuana went into effect in Massachusetts. The law, Massachusetts General Law C.94c, S. 32L, established that possession of one ounce or less of marijuana by a person eighteen years old or older, is a civil offense in Massachusetts, punishable by no more than a $100 fine and forfeiture of the marijuana. As simple as it seems, the law is far from straightforward in its application. In fact, the measure’s impact on criminal laws and criminal procedural laws, specifically those pertaining to search and seizure and criminal distribution, have been a subject of recent scrutiny by the Massachusetts Supreme Judicial Court.

In the last couple of years, the Massachusetts SJC has had occasion to develop its jurisprudence on the harmonization of the marijuana decriminalization law and the Fourth Amendment’s restriction against unreasonable search and seizure. The SJC rendered its first landmark decision in 2011 in Commonwealth v. Cruz. In that case, the Commonwealth sought to appeal the lower court’s ruling that evidence that the defendants were in possession of drugs was suppressed because it was obtained unlawfully when police ordered the defendant out of his vehicle and searched it based on a “faint odor” of marijuana and the defendant’s statement that he had smoked marijuana earlier that day. In reviewing the factors the police set forth as warranting reasonable suspicion to search, the SJC held that reasonable suspicion must be based on criminal activity as opposed to infractionary conduct, and that the “faint odor” coupled with the defendant’s statement that he had smoked earlier in the day suggested that any marijuana in the defendant’s possession would have been less than one ounce. The SJC affirmed the lower court’s decision to suppress the evidence.

The SJC further expanded its analysis of the decriminalization law in terms of search and seizure in 2012 in Commonwealth v. Daniel. The Defendants in Daniel had moved to suppress evidence of firearms based on the marijuana decriminalization law after they had been stopped and searched for a motor vehicle infraction by Boston police. The lower court suppressed the evidence, and the Commonwealth appealed the decision to the SJC. The SJC found this case distinguishable from Cruz, where police only smelled the faint odor of marijuana. In Daniels, the police smelled the odor of freshly burnt marijuana, and the driver handed the police two baggies of marijuana after police questioned her. The driver had also been driving erratically. Based on these factors, the SJC reversed the lower court’s decision to suppress the evidence based on the decriminalization law.

Finally, in a case decided this April, 2013, the SJC showed its intent to give full effect to the voter’s intentions in passing the decriminalization law. In Commonwealth v. Jackson, the SJC was presented with a case involving the issue of whether the sharing of a joint fulfilled the elements of criminal distribution of marijuana. Until the SJC’s decision on this issue, it was believed throughout Massachusetts that even though possession of one ounce or less of marijuana was not a crime, the sharing of a joint containing an ounce or less of marijuana was still criminal distribution. The SJC clarified the law, holding that the social sharing of marijuana is akin to simple possession, and that such conduct does not violate the distribution statute.

Massachusetts’ marijuana laws are often difficult to navigate and, as illustrated above, are rapidly changing. If you have been charged with a marijuana-related offense, you should seek out the assistance of an experienced attorney immediately.