Month: May 2014

The Right To Be Left Alone

Most law students briefly study invasion of privacy in their first-year torts class. It is a curious tort from which several causes of action arise, some of which are not intuitive. The basic concept is that all persons have an inherent right to be left alone.

Digital Music News, LLC wanted just that. Digital publishes an online newsletter that permits readers to post comments to its stories. One comment (posted in response to a story about infringement litigation between Universal Music Group and Escape Media) stated that Escape routinely directed employees to upload infringing music to its servers, and to ignore complaints to remove it. The commenter claimed to be an Escape employee.

Escape then served a subpoena upon Digital to discover the identity of the commenter. Digital refused and unsuccessfully petitioned the trial court to quash it. However, the appellate court overturned and said anonymous speech is protected by the right to privacy. It also said the identity of the commenter was not relevant to Escape’s litigation with UMG.

The 16-page opinion is well-written and informative. Here are some points I found to be interesting:

  • The DMCA safe-harbor provision does not apply to common law claims for infringement;
  • Anonymous speech implicates 1st Amendment and Right to Privacy principles; and
  • Discovery is designed to facilitate litgation, not to wage war.

Here’s the opinion in .pdf format: AnonymousSpeech.

Trifecta

Where can you get baseball, the NCAA, and the Sherman Antitrust Act all in one place? Right here, of course. It is your lucky day!

batter

The Plaintiff manufactures aluminum baseball bats. As bat technology developed, the NCAA realized that even wimpy left-handed knuckleball pitchers could smack the ball 500 feet. In response, the NCAA implemented a testing policy which prohibited bats that exceeded a certain bouncy coefficient (yes, bouncy coefficient is a measure widely recognized in both the sports and cosmetic surgery industries).

The NCAA’s policy excluded many of Plaintiff’s bats, and sales plummeted. Accordingly, Plaintiff looked to the courts to replace lost income.  Plaintiff claimed that the NCAA and wood bat manufacturers conspired to unlawfully restrain the trade of aluminum bats.

Plaintiff struck out with the trial court and the Court of Appeals. The Court said the factual allegations did not support a conspiracy theory, and that the claim would fall on other grounds even if properly pleaded.

The opinion contains a nice overview of the Sherman Act.