PLS 780 Final

Section 2
Fact Pattern

Section 2: Fact Pattern

Question 1: Assess Suzys, Jonass and Facebooks civil claims (if any) against Kip and
ExposeMe.
Suzy

Suzy has no claims against Kip, the reason being that Suzy has no copyright registered
for the image.

Even though any content she post on her Facebook page is owned by her, per Facebooks
Statement of Right and Responsibilities, because she shared it with friends the content is
not exclusively hers.

Suzy also has no claims against ExposeMe because current laws make it so that they as a
hosting site are not responsible for what third-parties post to them.

Jonas

Jonas can file a suit against Kip for defamation because Kip went out of his way to
intentionally modify an image that would portray him in a damaging light.

Jonas has no claim against ExposeMe because even though they do sound like an
extremely sleazy website, again, current laws make it so that they as a hosting site are not
responsible for what third-parties post to them.

Facebook

Per Facebooks Statement of Right and Responsibilities, they have a non-exclusive,

transferable licensing to any content you post; this licensing ends when you as a user (a)
delete it from your profile or (b) delete your account, unless, the content has been shared
with others and they have not deleted it.

Because there is no exclusivity licensing to the content posted on Facebook, Facebook

has no claims against Kip or ExposeMe.

Notes

ExposeMe is using outcomes from cases like Corbis v. Amazon or Tiffany v. eBay to hide
behind their sleaziness. Courts have found that hosting sites / internet service providers
cannot be held accountable for third-party content posted on their sites.

Section 2: Fact Pattern

Question 2: If ExposeMe.com is located in Pennsylvania and the party in question took place in
Los Angeles how would jurisdiction be determined? Which cases support your conclusion?
It can be argued California would have jurisdiction, the event in question occurred in Los
Angeles, California; the victim lives in California; and because the website ExposeMe.com is a
website accessed throughout the country, sufficient minimum contact exist that should anyone
actually be able to sue ExposeMe.com for the photo(s) they could sue in their state, in this case
the state being California.

In 1984 in Calder v. Jones, the court reasoned that California held jurisdiction because although
the actions occurred in another state, they were aimed at an individual in another state and that
the magazine publishing the damaging article had sufficient minimum contact for California to
hold jurisdiction.

It can also be argued that suits can be brought in the state of Pennsylvania as shown in
CompuServe, Inc. v. Patterson which held that the use of a companys online service is enough
to establish minimum contact in the state where that company is located.

The case of Inset Systems, Inc. v. Instruction Set would set the jurisdiction anywhere the website
has is accessed because it establishes minimum contact anywhere. Courts have shied away from
cases like this but the argument is still there. In Maritz, Inc. v. Cybergold, Inc. the court ruled in
a similar fashion to Inset, so again it could be argued both California and Pennsylvania have
jurisdiction.

The case of Zippo Mfg. Co. v. Zippo would also support that jurisdiction can be granted to either
California or Pennsylvania. The reason being that ExposeMe.com is an interactive website that
requires users to participate in the uploading and such establishes jurisdiction.

Section 2: Fact Pattern

Question 3: Are there any crimes taking place here? I so what are they? Who are the
perpetrators? Victims?
After carefully reading the first half and the second half of the fact pattern it can be concluded
that the only crime occurs against Jonas and is committed by Kip.

Mayra leaving ExposeMe to go work for Facebook, is no crime and as far as the non-compete
and non-disclosure agreement she signed, ExposeMe would have a hard time finding a court to
enforce the non-compete portion as courts have found that competition is what drives America,
you can refer to Mattel v. MGA Entertainment for that; and non-disclosure, well unless
ExposeMe can prove that Mayra is giving away company secrets theyre out of luck.

In this entire scenario the only one that suffers is Jonas.

Crimes

Defamation

Slander

Perpetrators

Kip

Victims

Jonas

Section 2: Fact Pattern

Question 4: What laws, if any, are missing in terms of the law of the Internet to adequately
address a product like ExposeMe.com? What policy issues are provoked by it? What laws might
be proposed to prevent such events from happening in the future?
What is needed are laws that would hold hosting sites, just as responsible as the third-parties that
upload defamatory material to these sites. However, in doing such you begin to tamper with net
neutrality.

ExposeMe based on this scenario is about as sleazy as they come, but then people we come back
to people have to be careful of what they post and their actions, because in a highly digital world
anything you do can end up online.

The problem with sites like ExposeMe is that they technically dont do anything wrong, they
function basically like Instagram, Pinterest, Reddit, Twitter, and so on. The users are ultimately
responsible for what they upload and the users ultimately acknowledge that anything they upload
is basically owned by the world.

It sucks to say this, but laws cant do anything for sites like ExposeMe because then we lose the
freedom the internet provides; and even if programs like ReplaceSmiley.com actually existed,
they only function on content uploaded to an individuals personal profile; there is nothing you
can do if an embarrassing picture of you appears on someone elses profile.

People just have to mindful that the internet is forever so be careful with what you do and keep
in mind that cameras are everywhere.

Section 2: Fact Pattern

Question 5: What is Mayras situation? What cases provide guidance into whether or not her
non-compete is enforceable? What about her non-disclosure agreement? Does she own the
rights to ReplaceSmiley.com? How would you characterize each of these contract agreements?
Even though Mayra was employed by ExposeMe.com when she developed ReplaceSmiley.com,
she still hold the rights to her development. The case of Mattel v. MGA Entertainment would
support her rights to her work. As for the non-compete, courts dont favor non-compete clause as
they find that they limit employees ability to earn a living.

For example, in California non-compete clauses are automatically void as they were outlawed by
the California Civil Code in 1872. There are some exceptions valid in California but they are
limited to what they cover.

In some states, like Massachusetts, non-competes agreements are only enforced in certain
circumstances.

In Washington, non-compete agreements will be enforced by the courts are validly formed and
reasonable, as was ruled in Racine v. Bender.

The problem with non-competes is that it depends on the state; for example in 2005, Microsoft
and Google litigated over the enforceability of a non-compete clause in the contract of a former
Microsoft employee. The differences in state laws became a real issue when Google tried to
maneuver the case to California where the clause would more likely be held as unenforceable.

As for the non-disclosure enforceability, it also comes down to depending on what state has
jurisdiction. California for example values employees mobility and entrepreneurship more than
they do protectionist doctrine.

This is ultimately good luck and hope you are in a state that favors your position.