The highest court in Maryland recently handed down a decision in Independent Newspapers, Inc. v. Zebulon J. Brodie, in which the owner of a local Dunkin’ Donuts franchise filed defamation action against a trio of anonymous posters about the cleanliness of a local franchise location.   The Court overturned a previous court order to hand over the identifications based on 1st Amendment grounds. Most notably, they cited to the New Jersey case of Dendrite International, Inc. v. John Doe No. 3, as the standard for handling discovery concerning anonymous posters on the Internet in defamation actions.

The Dendrite standard was applied, more or less unmodified, by the Maryland court.  In an anonymous defamation action, the Maryland court ruled that the plaintiff would first have to try to notify the posters that they are being supoenaed, through a post on the message board or other means. The plaintiff would then have to allow the anonymous posters time to file opposition motions or a demand that the plaintiff to identify the exact posters and specific posts that were the alleged cause of action. Lastly, the plaintiff would have to establish a prima facie case of defamation, and satisfy a balancing test weighing the poster’s first amendment rights against the strength of the case and the need for disclosure.  This is a rather protective standard that is good news for anonymous forum commenters.

Amazon has produced a new model of its popular Kindle E-book reader, called the Kindle 2, which is designed to be more portable and convenient than the previous model. The Kindle 2 also includes a number of new features, including nationwide wireless internet for instant content delivery. However, the most controversial of these new features is a text-to-speech software based audio reader. The feature uses standard text-to-speech software to read any of the content on the Kindle out loud. The controversy arises from the Author’s Guild assertion that this violates the rights of the authors to produce audiobooks as a derivative work. An Op-Ed piece in the New York Times (Reg Required) by Roy Blount Jr., Author’s Guild president, asserted that this was effectively sniping the more valuable audiobook rights by forcibly bundling them in with the weaker E-book rights.

In response, Amazon has chosen to stand down on the issue rather than raise a controversy. While Amazon claims that the “experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given”, and that it will “grow the professionally narrated audiobooks business”, it now includes a software flag in the Kindle-format E-books that allow a publisher to determine whether the text-to-speech reading function will be enabled.  Amazon could face difficult consumer relations questions if customers are unable to determine easily whether a prospective e-book purchase includes the text-to-speech feature.

French president Nicolas Sarkozy, who has made reducing copyright infringement a major political priority for France and the EU, has been sued by American band MGMT for infringing use of one of its songs. Sarkozy’s most notable copyright proposal is a “Three Strikes” rule for file sharing which would ultimately result in denial of Internet access to persistent infringers.  Sarkozy allegedly violted the terms of a license agreement to use MGMT’s music.  Sarkozy is said to have offered a symbolic 1 Euro settlement payment, which the band’s lawyers have refused, calling it “insulting.”

In addition to recent discussion of Internet Sales Tax, money-starved local governments are looking for money from other Internet revenue streams. The most notable one is the recently proposed 4% Tax on downloaded media suggested by New York’s Govenor Paterson as a hedge against the budget gap. Other states have been casting their net even broader.  For example, a recent Wisconsin measure signed into law puts a 5% tax on all “digital goods”, from the aforementioned media, to ringtones, E-books, and even downloadable content for video games. It remains to be seen whether these taxes will grow, despite potentially difficult collections: but it is likely related to whether or not the economy continues to slump or recover.

This application looks awesome.  You can even enter your own courses using Google Maps.

My article “Patent Damages Reform and the Shape of Patent Law” has been published in the current volume of the Boston University Law Review.  The article provides an overview of Congressional proposals to change the way damages are calculated in patent cases and offers alternative suggestions for reform in light of empirical data and recent case law.  It includes an original empirical study of damage awards in patent infringement cases.