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Friday, August 03, 2012
Ind. Decisions - Two interesting non-Indiana opinions from the 7th Circuit yesterday
Flava Works v. myVidster.com, an Aug. 2 opinion from Circuit Judge Posner - here is a sample:
No matter; as we said, there is no contention that any of Flava’s videos are illegal.Jeffrey Lox v. CDA Limited is an Aug. 2nd opinion by Circuit Judge Flaum involving the FDCPA. Some quotes:
Enter myVidster, an online service engaged in what is called “social bookmarking”—enabling individuals who have similar tastes to point one another (and actually provide one another access) to online materials that cater to those tastes, by bookmarking materials on the social-bookmarking service’s website. We need to describe how this works.
Patrons of myVidster find videos on the Internet, and if they want to make them available to other patrons of myVidster (who apparently can be anyone—as far as we can discern from the record all content on myVidster is publicly accessible) “bookmark” (note) them on myVidster’s website. Upon receiving the bookmark myVidster automatically requests the video’s “embed code” from the server that hosts (that is, stores) the video. In the present context “server” denotes a specialized computer for storing and transmitting bulky online materials, like videos. When you upload a video to the Internet, the video is stored on a server that transmits the video to other Internet users’ computers on request.
The embed code contains the video’s web address plus instructions for how to display the video. Armed with that code, myVidster creates a web page that makes the video appear to be on myVidster’s site. When you visit the site, that video and other videos appear, each in the form of a “thumbnail,” a miniature picture of a video’s opening screen shot. A click on a thumbnail activates computer code that connects the visitor’s computer to the server; the connection made, the visitor is now watching the video. He’s watching it through a frame that myVidster has put around it, containing ads (it’s by selling ads for display on its website that myVidster finances its operation). He may think, therefore, that he’s seeing the video on myVidster’s website. But actually the video is being transmitted directly from the server on which the video is stored to the viewer’s computer. Someone had uploaded the video to that server, and later a subscriber to myVidster had come across it and decided to bookmark it. This led to the creation of a page on myVidster’s website and by clicking on the page other visitors to myVidster can now view the video—but on the server that hosts the video, not on myVidster’s website; the bookmarked video is not posted on myVidster’s website.
Contrary to some other circuits, see, e.g., Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 n.3 (9th Cir. 2011), we treat the question of whether an unsophisticated consumer would find certain debt collection language misleading as a question of fact. See Walker v. Nat’l Recovery, Inc., 200 F.3d 500, 503 (7th Cir. 1999). As an outgrowth of this practice, we have determined that there are three categories of § 1692e cases. * * *
Thus, to succeed on this appeal, Lox must convince us that CDA’s statement regarding attorney fees is not only false, but would mislead the unsophisticated consumer. Further, since Lox did not present any extrinsic evidence at the summary judgment stage, he must show that the statement is plainly and clearly misleading on its face, thus eliminating any need for evidence of its deceptive nature. There is one more hurdle that Lox must clear to succeed as well. * * * Lox must also demonstrate that CDA’s attorney fees language constituted a materially false statement. * * *
For the reasons stated above, we hold that the attorney fees statements found in CDA’s dunning letters were materially false and misleading on their face. We therefore REVERSE both the grant of CDA’s summary judgment motion and the denial of Lox’s summary judgment motion, and REMAND to the district court for proceedings consistent therewith.
Posted by Marcia Oddi on August 3, 2012 02:49 PM
Posted to Ind. (7th Cir.) Decisions