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Ninth Circuit Finds for PI Firm over Theft of Web Site Content

The Ninth U.S. Circuit Court of Appeals came down on the side of Novato, CA, personal injury firm Brayton Purcell in an Internet copyright infringement case last month.

The 50-lawyer personal injury and asbestos firm had sued two-lawyer San Diego-based Recordon & Recordon for allegedly plagiarizing Web content describing its elder abuse practice. Brayton Purcell copyrighted its Web site in October 2002.

On Aug. 6, a split 9th Circuit panel upheld the lower court ruling that had denied Recordon's motion to dismiss.

Judges Dorothy Nelson and Mary Schroeder said Brayton Purcell had met the key part of a three-pronged test by showing that Recordon had “expressly aimed” its conduct there by targeting a firm obviously located in Northern California.

Dissenting Judge Stephen Reinhardt said their interpretation muddies up “the simple and easily applied rule” on personal jurisdiction that the Ninth Circuit had established in Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 and Pebble Beach Co. v. Caddy, 453 F.3d 1151.

“Although the stakes of the particular dispute between Brayton Purcell and Recordon & Recordon are minor, the consequences of the majority's opinion will be major,” Reinhardt wrote. “Under the majority's opinion, every [W]eb site operator faces the potential that he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides.”

Recordon & Recordon, a personal injury and family law firm with clients in Southern California, had hired Web design company Apptomix Inc. in 2004 to create an elder law section on its Web site. Brayton Purcell discovered it using Copyscape, a tool that combs the Internet for unauthorized use of copyrighted materials. It then sued for copyright infringement, and the two sides eventually agreed to binding arbitration.

In May 2006, the arbitrator, M. John Carson, found the vendor and its president two-thirds liable, and Recordon & Recordon one-third responsible. He ordered the Recordon firm to pay Brayton Purcell more than $24,000 in statutory damages and nearly $37,000 in fees and costs. Apptomix was to fork over nearly $49,000 in statutory damages and nearly $74,000 in fees and costs.

The Recordon firm then appealed the district court's denial of its motion to dismiss for improper venue.

Lloyd “Butch” LeRoy, the partner heading up Brayton's appellate practice, who managed the appeal portion of the case, said that he found the “blatant nature” of the copyright infringement unusual. “It was essentially our Web site pages on elder abuse just block and copied with the name of the law firm changed,” he said.

Stephen Recordon, name partner at Recordon & Recordon, said had he known the vendor had stolen the content, he would never have launched the site. “We had no way of knowing,” Recordon said.

' Petra Pasternak, The Recorder

Third Circuit Upholds 10-Year Internet Ban in Child Porn Case

A man who was indicted as the leader of a child pornography ring in Delaware has lost an appeal that challenged both his 20-year prison term and a ban on using the Internet for another decade after he is released.

Paul Thielemann, 26, pleaded guilty to one count of receiving child pornography and claimed in the appeal that his punishment was premised on conduct for which he was never formally charged ' encouraging others to commit acts of child molestation.

The appellate panel flatly rejected Thielemann's challenge to the length of his prison term, concluding that it was within the range suggested by the sentencing guidelines and not out of line with the sentences imposed on other leading members of the ring.

But the decision in United States v. Thielemann is legally significant because it helps define a still emerging area of the law that trial judges have found perplexing: how far judges can go in crafting the “conditions of release” that restrict a criminal defendant's behavior in the period just after a prison term.

In prior decisions, the Third U.S. Circuit Court of Appeals has overturned some restrictions as too harsh, such as a lifetime ban on using computers or barring a defendant from possessing all forms of pornography, including legal adult pornography.

But in the case of Thielemann, the Third Circuit concluded that the conduct was far worse and justified the harsh restrictions imposed by U.S. District Judge Sue Robinson because the evidence showed that Thielemann not only traded child pornography with nine other men, but also encouraged some of the men to engage in acts of child molestation and to share images of those acts on Web cams.

Senior U.S. Circuit Judge Leonard I. Garth concluded that Robinson hadn't violated Thielemann's First Amendment rights when she barred him from possessing any “sexually explicit” materials.

“We hold that there is a significant nexus between restricting Thielemann from access to adult 'sexually explicit' material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record,” Garth wrote in an opinion joined by Third Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania.

Garth also found that Robinson had properly tailored a restriction that bans Thielemann from accessing the Internet for 10 years after his release unless he gets permission from his probation officer.

“Thielemann can own or use a personal computer as long as it is not connected to the Internet; thus he is allowed to use word processing programs and other benign software,” Garth wrote.

Garth found that Robinson was justified by Thielemann's conduct, which went beyond mere possession of pornographic images.

“[T]he restriction is not disproportionate when viewed in the context of Thielemann's conduct,” Garth wrote. “Thielemann did more than simply trade child pornography; he utilized Internet communication technologies to facilitate, entice, and encourage the real-time molestation of a child.”

As a result, Garth said, “the restriction on computer and Internet use therefore shares a nexus to the goals of deterrence and protection of the public, and does not involve a greater deprivation of liberty than is necessary in this case.”

' Shannon P. Duffy, The Legal Intelligencer

Ninth Circuit Finds for PI Firm over Theft of Web Site Content

The Ninth U.S. Circuit Court of Appeals came down on the side of Novato, CA, personal injury firm Brayton Purcell in an Internet copyright infringement case last month.

The 50-lawyer personal injury and asbestos firm had sued two-lawyer San Diego-based Recordon & Recordon for allegedly plagiarizing Web content describing its elder abuse practice. Brayton Purcell copyrighted its Web site in October 2002.

On Aug. 6, a split 9th Circuit panel upheld the lower court ruling that had denied Recordon's motion to dismiss.

Judges Dorothy Nelson and Mary Schroeder said Brayton Purcell had met the key part of a three-pronged test by showing that Recordon had “expressly aimed” its conduct there by targeting a firm obviously located in Northern California.

Dissenting Judge Stephen Reinhardt said their interpretation muddies up “the simple and easily applied rule” on personal jurisdiction that the Ninth Circuit had established in Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797 and Pebble Beach Co. v. Caddy , 453 F.3d 1151.

“Although the stakes of the particular dispute between Brayton Purcell and Recordon & Recordon are minor, the consequences of the majority's opinion will be major,” Reinhardt wrote. “Under the majority's opinion, every [W]eb site operator faces the potential that he will be hailed into far-away courts based upon allegations of intellectual property infringement, if he happens to know where the alleged owner of the property rights resides.”

Recordon & Recordon, a personal injury and family law firm with clients in Southern California, had hired Web design company Apptomix Inc. in 2004 to create an elder law section on its Web site. Brayton Purcell discovered it using Copyscape, a tool that combs the Internet for unauthorized use of copyrighted materials. It then sued for copyright infringement, and the two sides eventually agreed to binding arbitration.

In May 2006, the arbitrator, M. John Carson, found the vendor and its president two-thirds liable, and Recordon & Recordon one-third responsible. He ordered the Recordon firm to pay Brayton Purcell more than $24,000 in statutory damages and nearly $37,000 in fees and costs. Apptomix was to fork over nearly $49,000 in statutory damages and nearly $74,000 in fees and costs.

The Recordon firm then appealed the district court's denial of its motion to dismiss for improper venue.

Lloyd “Butch” LeRoy, the partner heading up Brayton's appellate practice, who managed the appeal portion of the case, said that he found the “blatant nature” of the copyright infringement unusual. “It was essentially our Web site pages on elder abuse just block and copied with the name of the law firm changed,” he said.

Stephen Recordon, name partner at Recordon & Recordon, said had he known the vendor had stolen the content, he would never have launched the site. “We had no way of knowing,” Recordon said.

' Petra Pasternak, The Recorder

Third Circuit Upholds 10-Year Internet Ban in Child Porn Case

A man who was indicted as the leader of a child pornography ring in Delaware has lost an appeal that challenged both his 20-year prison term and a ban on using the Internet for another decade after he is released.

Paul Thielemann, 26, pleaded guilty to one count of receiving child pornography and claimed in the appeal that his punishment was premised on conduct for which he was never formally charged ' encouraging others to commit acts of child molestation.

The appellate panel flatly rejected Thielemann's challenge to the length of his prison term, concluding that it was within the range suggested by the sentencing guidelines and not out of line with the sentences imposed on other leading members of the ring.

But the decision in United States v. Thielemann is legally significant because it helps define a still emerging area of the law that trial judges have found perplexing: how far judges can go in crafting the “conditions of release” that restrict a criminal defendant's behavior in the period just after a prison term.

In prior decisions, the Third U.S. Circuit Court of Appeals has overturned some restrictions as too harsh, such as a lifetime ban on using computers or barring a defendant from possessing all forms of pornography, including legal adult pornography.

But in the case of Thielemann, the Third Circuit concluded that the conduct was far worse and justified the harsh restrictions imposed by U.S. District Judge Sue Robinson because the evidence showed that Thielemann not only traded child pornography with nine other men, but also encouraged some of the men to engage in acts of child molestation and to share images of those acts on Web cams.

Senior U.S. Circuit Judge Leonard I. Garth concluded that Robinson hadn't violated Thielemann's First Amendment rights when she barred him from possessing any “sexually explicit” materials.

“We hold that there is a significant nexus between restricting Thielemann from access to adult 'sexually explicit' material and the goals of supervised release, and that the restriction here is not overbroad or vague considering the content of the instant record,” Garth wrote in an opinion joined by Third Circuit Judge Marjorie O. Rendell and visiting U.S. District Judge Thomas I. Vanaskie of the Middle District of Pennsylvania.

Garth also found that Robinson had properly tailored a restriction that bans Thielemann from accessing the Internet for 10 years after his release unless he gets permission from his probation officer.

“Thielemann can own or use a personal computer as long as it is not connected to the Internet; thus he is allowed to use word processing programs and other benign software,” Garth wrote.

Garth found that Robinson was justified by Thielemann's conduct, which went beyond mere possession of pornographic images.

“[T]he restriction is not disproportionate when viewed in the context of Thielemann's conduct,” Garth wrote. “Thielemann did more than simply trade child pornography; he utilized Internet communication technologies to facilitate, entice, and encourage the real-time molestation of a child.”

As a result, Garth said, “the restriction on computer and Internet use therefore shares a nexus to the goals of deterrence and protection of the public, and does not involve a greater deprivation of liberty than is necessary in this case.”

' Shannon P. Duffy, The Legal Intelligencer