Tapped Out: Controlling the internet via selective authorization

Craigslist, Inc. v 3Taps Inc., No. CV 12-03816 CRB. (N.D. Ca. August 16, 2013) is another case in a now long line of cases that establish that in most situations access to even an otherwise publicly accessible website can be controlled via selective authorization.

The 3Taps case is very straightforward.  3Taps scraped Craigslist’s website, and replicated it.  Craigslist sent them a letter revoking all permissions to access the Craigslist site, but 3Taps ignored that and circumvented IP filters and continued accessing the website, and replicating it.  In other words, Craigslist “singled out” 3Taps and told them that they could not access the Craigslist website.  3Taps was singled out because it was copying the entire Craigslist site, in apparent competition with Craigslist.

Note that unlike the Digital Millenium Copyright Act, which requires there to be sufficient technological measures to protect copyrighted content before there would be a finding of circumvention, under the CFAA, no such technological measures are required. 3Taps sought to dismiss the complaint filed by Craigslist, which complaint asserted that 3Taps violated the Computer Fraud and Abuse Act (“CFAA”) which generally prohibits a person from “intentionally accesses[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer.”  The essence of 3Taps’ argument was that because the Craigslist website is publicly available, the CFAA does not apply, and therefore, just as anyone else had “authorization” to access and use the website, so did 3Taps.  [Note: this decision did not address copyright issues with 3Taps’ conduct.]

A long line of cases enforce “terms of service ”  either under contract law, under the CFAA, or both – that is, if terms of service authorize access to information on certain conditions, and those conditions are not met, then the access to that information is not authorized and is a violation of the contract and often, the CFAA.  See Register. com, Inc. v. Verio, Inc., 126 F. Supp. 2d 238 (S.D.N.Y. 2000), affirmed on other grounds356 F. 3d 393 (2nd Cir. 2004) and their progeny.

You can now add this case to that list.  This case even more bluntly stands for the proposition that a website owner can, with only the typical “protected class” exceptions, discriminate against a particular user and revoke authorization, while at the same time generally authorize the public to access and use the website.   This right, moreover, does not make the website operator a so-called common carrier, and the website operator does not give up its other important immunities, such as the immunity under the Communications Decency Act (47 USC 230). There may be other limitations on a website’s right to discriminate – for example, there may be first amendment interests in the data being accessed, or there might be an argument that certain provisions in a contract limitation constitute a copyright misuse (and hence might make enforcement of the contract, even under the CFAA, problematic).  However, in the majority of private interest cases like Craigslist (or Twitter, or Facebook or virtually any other social media provider) – the owner of the data is going to have a pretty broad right in the U.S. and under U.S. law to protect access to that data via restrictions either in a terms of service, or more directly as was done in the 3Taps case.

Congress is considering an amendment to the CFAA (Aaron’s law – for background, see this Techdirt article the EFF pages, and what I believe is the current draft here)  that might limit a website platform operator’s use of the CFAA to control its content . . . but that issue has come up in various contexts before and Congress has not seemed to have much appetite for monkeying with the CFAA.  Also, that would not eliminate the breach of contract claim (see the Verio case above).

The 3Taps case has been cited in some online commentary for the proposition that IP proxies or anonymization systems (like Tor) are “illegal.”  That is not what the court held.  There are many legal and pro-privacy reasons to use such systems that would not violate the CFAA.  The simplest example would be use of such a system to avoid being tracked while browsing the web.  In these cases you are not accessing a protected computer without authorization, you are simply sending a false identifier to a computer that is collecting the data on its own volition.  CFAA punishes unauthorized access, not access gained by presenting false location or identification data.  However, under the 3Taps case, apparently a terms of service agreement could be written to withdraw consent to any access of the site if a person is using a location or tracking anonymizer/IP spoofer, and hence, a person using such a service and accessing the site could then be in violation of the CFAA.  That question, however, also raises substantial 1st Amendment issues (right to anonymous speech), which were not present in 3Taps.  Thus, it is not clear at all that a court would hold that the CFAA claim would survive in that instance.

Until Congress modifies the CFAA internet users should be cautious about use of “publicly available” but privately owned information on a website, RSS feed, social media firehose, or other resource, and be careful to read and comply with the terms of service.   [Note:  this blog entry does not address governmental or public information, FOIA or the right (or lack of a right) under a contract or CFAA to “privatize” governmental public data]

For more information contact Mike Oliver

(unless specifically attributed, all links on this page are provided for information purposes only and have not been vetted by, and do not necessarily represent the views of, the author)

All May Not Be Lost: Reviving an Abandoned Application or Issued Patent

Oliver & Grimsley, LLC recently revived an abandoned patent application for a client.  We come across this issue from time to time, and wanted to discuss this topic, as many patent holders or applicants may not be aware that a technically abandoned application or patent can often be revived, long after the abandonment occurs.

This issue also affects freedom to operate opinions, as technically abandoned patents that might read on a particular device, system or process could be revived and come into play – and hence, patent searches for these opinions often must take into consideration abandoned patents.

Failure to take certain actions required by the USPTO can result in the abandonment of a U.S. patent application or issued patent.  Some of these required actions include, among other things: (1) replying to an office action within six months of issuance; (2) paying an issue fee within three months of the issuance of a Notice of Allowance; and (3) timely paying a maintenance fee for an issued patent.

A question arises after a technical abandonment whether the application or issued patent can be revived?  Section 711.02 of the Manual of Patent Examining Procedures (MPEP) outlines this issue.

Fortunately, the USPTO provides for two types of petitions to revive a technically abandoned U.S. patent application or issued patent depending on the circumstances: (1) a petition to revive for “unavoidable” abandonment; and (2) a petition to revive for “unintentional” abandonment.

(1) Petition to Revive for “Unintentional” Abandonment

This petition is usually the more commonly selected petition and although it is the more expensive, usually costing about $1900, applicants and patent holders generally select this option because it is the least burdensome petition to complete and file and usually ends with successful results. The petition is an executable form and the USPTO rarely requires any factual showing of delay.  Instead, in the vast majority of petitions under 37 CFR 1.137(b), the USPTO relies upon the applicant’s duty of candor and good faith and accepts the statement that “the entire delay in filing the required reply from the due date for the reply until the filing of a grantable petition pursuant to 37 CFR 1.137(b) was unintentional” without requiring further information.  Note, a petition to revive for unintentional abandonment is only available within a two-year time period from the time the application or patent went abandoned.

(2) Petition to Revive for “Unavoidable” Abandonment

This type of petition is less likely to be granted than a petition for unintentional abandonment.  While these petitions are less expensive, generally running about $640 (three times less expensive than a petition to revive for unintentional abandonment), these petitions are nearly impossible to prove.

A petition to revive for unavoidable abandonment requires a showing that the abandonment could not have been avoided.  This is difficult to prove because the applicant must supply foundational evidence and provide the details of the events as to why the application was unavoidably abandoned.

A showing of unavoidable delay requires: (1) evidence concerning the procedures in place that should have avoided the error resulting in the delay; (2) evidence concerning the training and experience of the persons responsible for the error; and (3) copies of any applicable docketing records to show that the error was in fact the cause of the delay.

The showing required to establish that abandonment was “unavoidable” is so stringent that many times it is not worth the time and effort (or attorney’s fees) required to file the petition.

With either petition, it is important to seek a revival of the application or patent as soon as possible.  Excessive delay between discovery of the abandonment and the filing of a petition may not qualify as being “unintentional” or “unavoidable” for the purposes of filing a petition to revive the application or patent.  In addition, both petitions require that the applicant submit the response that was originally due at the time of abandonment (e.g., the office action response or issue fee payment).  If all goes well, the Petitions Office with revive the application or patent and will leave the application or issued patent in the position it was in at the time of abandonment (less the time of delay) for any issued patent or application that moves forward to issue.

An applicant that has had the unfortunate mishap of having his or her application or patent go abandoned may be able to revive the application or patent by taking timely action and filing a petition with the USPTO.  While the petition for unintentional delay is more costly to file, it is generally the least expensive and most successful procedure in reviving an application or patent in the long run.

For more information on this topic, please contact Pamela K. Riewerts, Esq. at pamela@olivergrimsley.com


Our new firm has a home!

Kim, Pamela, Tina, Larry and I opened our firm’s principal office today at 502 Washington Ave, Suite 605, Towson Maryland.  While we started business on May 1, 2013 it was not really until today that we felt like a complete firm in our own place.  So, we think of today as our first real day in business.   The first 90 days of a new business are brutal – trying to balance client demands, administrative matters, and the variety of oddbird things that you just cannot anticipate.  Many things went right, some went wrong, some were unexpected.  I hope to chronicle some of what we went through in future posts – as a teaser, we started inauspiciously – after engaging a tenant rep (see below) we set off to review space for leasing – and the first two buildings we visited had power out-tages just as we arrived to view the property! Needless to say, we were a little worried that was a bad omen ;-).

Power-outages notwithstanding, today we poured a little champagne in plastic cups, and toasted our office opening to a hoped for success in the future, for us and our clients.  More pictures will come as we get fully up and running (our main lobby sign is not done yet, and the walls are pretty bare).

I cannot possibly fully express my thanks to the three young ladies pictured here (left to right, Kim Grimsley, Tina Neuman and Pamela Riewerts) and Larry Guffey, for taking a real big leap with me on this firm.  I could not be practicing law with better lawyers, or with people that I enjoy working with more.  I am sure we face some challenges ahead, but we are all very focused on client service, upholding high ethical standards, having a fun work environment (a little more on that below), and providing the best legal services we can at a fair and reasonable fee.

That brings me to another thank you – to the clients, service providers, landlords, and friends who have offered advice or just a “good luck” wish at an opportune time.  At the risk of forgetting some, and the risk of the proverbial academy awards music playing to stop the speech, here goes:

First, to the clients that followed us from our prior firm (for privacy reasons we do not list here individuals): Chesapeake System Solutions, Inc. (thanks Peter and Jim), Talascend, Inc. (Thanks Ron, Jason and Bruce), Key Technologies, Inc. (Thanks Brian, Jenny, Keith and Scott), Delmar Brewing Company, LLC (thanks John), Digital Innovation, Inc. (thanks John and Tim), Woofound, Inc. (thank you Dan, Josh, Ken and whole gang there), Calvert Education Services, LLC (thanks Brady), OmniTI Computer Consulting, Inc. (thanks Jim and Theo), Reportsee, Inc./SpotCrime (thanks Coli), Better Business Bureau of Greater MD (thanks Angie and Jody), BJQ Sales & Service, LLC (thanks Tom), Trigger Agency, LLC (thanks Greg), Merritt Properties, LLC (thanks Melissa), Message Systems, Inc. (thanks to Joal, James, George and Alec, and all the staff), Intersect Healthcare, Inc. (thanks Brian and Bob), Celebree Learning Center (thanks Lisa), eCoast Sales Solutions, Ltd. (thanks Chris, Allen and Erik), TenantRex, LLC (thanks Adrian, Sammy and Zach), Art With a Heart, Inc. (thanks Randi), CCL Biomedical, Inc. (thanks Nina and Judy), Bloomery Plantation Distillery, LLC (thanks Linda), Baltimore Technology Group, LLC (thanks James), Barcoding, Inc. (thanks Jay), Mario Armstrong Media, LLC (thanks Mario and Nicole), Founders Financial Securities, LLC (thanks Brad, Kurt, Mike and the whole team there), Maryland Speed, LLC (thanks Branden), Business Stress Management Services, Inc. (thanks Adam), WePassed, LLC (thanks David), Enterprise Insurance Training, Inc. (thanks Tom), American Society for Colposcopy and Cervical Pathology (thanks Kerry), Blackbee Media, LLC (thanks Allison), CAM Technologies, Inc. (thanks Chris), Early Morning Software, Inc. (thanks Cecil and Donna), East-Coast Equipment, LLC (thanks Shad), Finding Definitions, LLC (thanks Mia), Figure 53, LLC (thanks Christopher), HackSurfer, LLC (thanks Jason and Rebekah), MsgWorx (thanks Rick and Sallie), Liaison Group, LLC (thanks Lou), Hertzbach & Company, P.A. (thanks Don), Workuments, LLC (thanks Joe), Randall Point Enterprises (thanks Anthony), OTB Consulting, LLC (thanks Bob and Tom), Mansbach Health Tools, LLC (thanks Bill), Icon Logic, Inc. (thanks Kevin), Sonex Research, Inc. (thanks George), Securities Pricing & Research, Inc. (thanks Brad), Reed Street Productions, LLC (thanks Ryan), South River Technologies, Inc. (thanks Mike and Tracy), Stanton Communications, Inc. (thanks Peter), Star Management Services, Inc. (thanks Eric), R. Boutique LLC (thanks Robert), Impresst Business Solutions, Inc. (thanks Steve), Nut House, LLC (thanks Joanna), Algiatry, LLC (thanks Paul), White Horse Consulting (thanks Dave), Spread Concepts (thanks Michal), Genesic Semiconductors (thanks Ranbir), RevMax Hospitality Management, LLC (thanks Sonny), Smartlegal Forms (thanks Richard), Seven Swells, LLC (thanks Tyler), Sobosoft, LLC (thanks Brian), SOEP Networking & Comm. Solutions, LLC (thanks Daryl), Sweet Satisfaction, LLC (thanks Kathy), The Prosperity Consulting Group, LLC (thanks Don), The Sandy Bottom Enterprise, LLC (thanks Sandy), Tonar, Inc (thanks Asgerdur), W. L. Gore & Associates, Inc. (thanks Laura).

It goes without saying, without clients, we would not have a firm.  Thank you for bearing with us when we could not quite manage the turnaround times you might have been used to.

Next, we thank the lawyers, accountants and others that place their trust in us and continue to refer their clients to us for legal services in our practice area.  When we can, we will return the favor of referrals.

Next, to some folks who helped us out at the beginning – Elliott Wagonheim – thanks Elliott for meeting with us and helping us on some of our own legal issues; Stephanie Cereijo at Towson Executive Offices – for renting us temporary space, and her staff for being absolutely fantastic to work with; Chris Murray, Gates Blair and Natalie Meconi at Mid Atlantic Properties, our new landlord – they have been utterly fantastic to deal with, soup to nuts; and Matt Mueller at Mackenzie Properties, who worked with us as a tenant rep and told us the staff at Midap were great to work with.

Next to our new clients who are taking a risk on a new firm – and that somehow found us even though we have done absolutely no marketing of any kind – we have just not had the time.

Finally, but not in the least, to our spouses, children, and extended families for putting up with us.  We have been working essentially non stop the last 90 days (and even before that) and that puts a lot of stress on our loved ones.

As we get going and find the time, we hope to begin posting spotlights of some of our clients and referring parties.

We are incredibly lucky to have a viable business and as soon as we fully get our feet on the ground and find some free time (what small business owner has any of that!), we want to give some back as well – and help someone the way all of the above named and unnamed people have helped us or if we can, provide pro bono services.

And now to that teaser about a fun place to work – two of us are trekkies (mostly closet trekkies), so we got this little device – Star Trek Electronic Door Chime – so when you come into my office or Tina’s, if we have it on, you hear that turbolift sound.

More later.  Best regards to all, Mike