The federal Computer Fraud and Abuse Act, 18 U.S.C. §1030, criminalizes access to a computer that is either "without authorization" or that "exceed[s] authorized access," and provides a civil right of action for violations as well. In the last several years, a split has developed in the federal courts on the question of whether an employee’s access to an employer’s computer, even if it was authorized in the ordinary course of business, ceases to be authorized if the purpose if the access is to further an act that is disloyal to the employer. The Ninth Circuit has now weighed in on the issue in an opinion rendered today in LVRC Holdings, LLC v Brekka, No. 07-17116 (9th Cir. Sept. 15, 2009), and has taken a position diametrically opposed to that of an influential Seventh Circuit opinion, International Airport Centers, LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006).
Facebook Takes a Page from Ticketmaster’s Playbook: Block Unauthorized Web Site Access with Carefully Drafted Terms of Use
By Jeffrey Neuburger on
In 2007, Ticketmaster brought a multi-count complaint against RMG Technologies, a software company that supplied ticket brokers with software that enabled them to automatically and rapidly access Ticketmaster’s Web site, to the detriment of ordinary users seeking tickets to popular events. The Ticketmaster v. RMG complaint was notable for stating a series of claims that leveraged the allegation that RMG’s access to the Web site for the purpose of creating its software, as well as the subsequent use of the software, violated the Ticketmaster Terms of Use and was thus unauthorized. Ticketmaster’s claims included breach of contract, copyright infringement, violation of the anticircumvention provisions of the Digital Millennium Copyright Act, and violation of the Computer Fraud and Abuse Act. Based on these claims, Ticketmaster succeeded in obtaining a preliminary injunction against the distribution of the software and a $18.2 million default judgment against RMG.
In December 2008, Facebook filed a similarly framed complaint against Power Ventures, the operator of Power.com, an online service that allows social networking users to access all of their accounts through one interface. In Facebook, Inc. v. Power Ventures, Inc. (N.D. Cal. May 11, 2009), Judge Jeremy Fogel denied Power Ventures’s motion to dismiss Facebook’s claims of copyright infringement, violation of the anticircumvention provisions of the DMCA, and violation of federal and state trademark infringement laws for failure to state a claim. Judge Fogel acknowledged the similarity of Facebook’s copyright claims against Power Ventures to the claims in Ticketmaster’s litigation against RMG. Slip op. at 5.