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Ninth Circuit Upholds Injunction Barring Access to a Website
Posted by James Grimmelmann on Monday, October 18 @ 20:40:42 EDT Free Expression
Geist/BNA today points to a great little Ninth Circuit case about unfair competition in the age of the Internet. I was fairly scared when I read that the Ninth Circuit had upheld an injunction barring one party from accessing an otherwise publicly-accessible website. But when I finished reading the case, things seemed much more reasonable.

Creative Computing, Inc. v. Getloaded.com pits two trucker-oriented websites against each other. Creative Computing's Truckstop.com is an online marketplace that helps truckers and shippers link up with each other. It was the first such and quickly became wildly popular. Getloaded.com, is, if Judge Kleinfeld's opinion is to be believed, a low-down rip-off, built on a systematic policy of fraud and dirty tricks. Getloaded hired away employees from Creative and had them bring source code and customer lists with them; it also hacked into Creative's servers (Creative was using an unpatched Microsoft system, tsk tsk) and also stole the password of a Creative customer in order to get a closer look at the site's functionality.

The district court saw the case through to a jury verdict against Getloaded. It also issued an injunction during the trial to prevent Getloaded from accessing truckstop.com, given that one of the major claims at stake was "unauthorized access" under the Computer Fraud and Abuse Act. But Getloaded -- although it had stipulated to the injunction -- lied to the court and kept on logging into truckstop.com to continue its "research." It was against this contempt-laden backdrop that the Ninth Circuit considered the scope of the district judge's permanent injunction barring Getloaded from ever accessing truckstop.com. Recognizing that the injunction was "extraordinarily broad," the Ninth Circuit nevertheless upheld it, saying:

Getloaded is in a position analogous to one who has repeatedly shoplifted from a particular store, so the judge prohibits him from entering it again, saving the store’s security guards from the burden of having to follow him around whenever he is there.
 
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Scope? (Score: 0)
by Anonymous on Wednesday, October 20 @ 21:04:47 EDT
Is there at least some consideration in the dicta, if not the holding, that this case is somewhat unusual?

That is, though it surely makes sense in this case to throw the book at the guilty party, is there much here that other courts are likely to use in less applicable cases?

That is, some reasoning that might allow it to become de rigeur to permanently enjoin people from visiting certain websites if they had ever had any measure of unauthorized access to them. Even if this were some site rather important to merely be able to use the internet, such as Google...

I would read & come to my own conclusion, but I am no lawyer, and would value their opinion, even though I understand the standard disclaimers that generally come with it.



READ THIS... FIRST ONLINE LAW SCHOOL COURT ISSUE (Score: 0)
by Anonymous on Friday, October 22 @ 17:55:43 EDT
HOW MUCH INFLUENCE DOES THE WASHINGTON POST COMPANY (KAPLAN, INC.) HAVE OVER THE U.S. DEPARTMENT OF EDUCATION, ABA, COURTS, AND THE LIKE?

OPEN LETTER AND REQUEST FOR HELP
03-cv-1400 (Western District Pennsylvania)

I. INTRODUCTION

The inability during the allotted discovery period to obtain information from a defendant regarding pertinent issues is obviously prejudicial to a plaintiff in his attempt to prosecute his claims and obtain prompt resolution of his lawsuit. See Adams v. Trustees, N.J. Brewery Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (prejudice encompasses deprivation of information from non-cooperation with discovery as well as the need to expend resources to compel discovery).

The meritoriousness of a claim or defense is to be determined from the face of the pleadings. See C.T. Bedwell Sons v. International Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 870 (3d Cir. 1984). Here, the defendant never filed an answer to the Amended Complaint and thus have not presented even a facially meritorious defense.

Please note: On September 29, 2004, discovery closed without the defendant communicating any request, scheduling any deposition, and the like. Therefore, a motion for summary judgment is ripe for determination.

II. EXHIBIT ATTACHED TO DEFENDANT'S RESPONSE

The defendant has acknowledged the following with its current attachment (Exhibit):

(1) This issue involves Rule 15(a) of the Federal Rules of Civil Procedure which states, in relevant part, that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Fed. R. Civ. P. 15(a). That is, a motion to dismiss is not "a responsive pleading." Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989) (holding that a plaintiff is entitled to amend his complaint because neither a motion to dismiss nor a motion for summary judgment is a responsive pleading under Rule 15(a)). See also Washington v. James, 782 F.2d 1143, 1138-39 (2d Cir. 1986)(stating that a party may amend the complaint while a motion to dismiss is pending); and Vernell v. united States Postal Service, 819 F.2d 108, 110 (5th Cir. 1987)(noting that "[a] motion to dismiss is not a responsive pleading and therefore does not extinguish the right to amend an initial pleading").

(2) The defendant's Motion to Dismiss failed to make any substantive argument and addressed only the original complaint (no answer to the Amended Complaint was filed).

(3) The Western District Federal court at Docket No. 03-cv-1400 has disregard legal precedent. That is, the Western District on at least four other occasions followed Gonzalez v. Paine, Webber, Jackson & Curtis, Inc., 493 F. Supp. 499, 501 (S.D. N.Y. 1980) and Taylor v. Abate, 1995 WL 362488 (E.D. N.Y. June 8, 1995) (stating that a motion to dismiss is mooted upon the filing of an amended complaint). See: Harford County v. Mid-State Bank and Trust, Docket No. 98-817 (West. Dist. Pa. Sept. 23, 1998); Ceiriog Hughes v. Halbach & Braun Industries, LTD, et al., Docket No. 97-1348 (West. Dist. Pa. March 3, 1998); Allegheny Environmental Action, Coalition, et al., v. Westinghouse Electric Corporation, et al., Docket No. 96-2178 (West. Dist. Pa. June 5, 1997); and Christopher Allen M.D., et al., v. Washington Hospital, et al., Docket No. 96-1950 (West. Dist. Pa. Feb. 20. 1997).

III. PLAINTIFF'S BURDEN

To recover on a guaranty of non-discriminatory instruction, the plaintiff must establish that he is the holder and owner of the guaranty, and that relief is due and owing on the guaranty. At issue therefore is the plaintiff's 42 U.S.C. Section 1981 claim.

Again note: The defendant failed to raise any available defense. That is, they failed to file an Answer to the Amended Complaint, and with one lone sentence (page 15) of their 25 page original argument

Read the rest of this comment...



Visiting a website is passive (Score: 0)
by Anonymous on Monday, November 01 @ 02:42:09 EST
This is more akin to preventing someone from buying a certain newspaper since they plaugerized from it repeatedly in the past. Using unauthorized access to steal information is not at all the same as visiting a website and should require no injunction since its already blantantly illegal.



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