Facebook, Inc. v. Power Ventures, Inc.

Filing 78

MOTION to File Amicus Curiae Brief Electronic Frontier Foundation in Support of Defendant Power Ventures' 62 Motion for Summary Judgment on Cal. Penal Code 502 (c) filed by Electronic Frontier Foundation. Motion Hearing set for 6/7/2010 01:30 PM. (Attachments: # 1 Brief, # 2 Affidavit Declaration in Support of Motion, # 3 Proposed Order Proposed Order)(Cohn, Cindy) (Filed on 5/3/2010) Modified on 5/3/2010 (cv, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CINDY A. COHN, (California Bar No. 145997) cindy@eff.org JENNIFER STISA GRANICK (California Bar No. 168423) jennifer@eff.org ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 x108 Facsimile: (415) 436-9993 Attorneys for Amicus Curiae Electronic Frontier Foundation UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION FACEBOOK, Plaintiff[s], v. POWER VENTURES, Defendant[s]. ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 5:08-cv-05780-JW NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF DEFENDANT POWER VENTURES' MOTION FOR SUMMARY JUDGMENT ON CAL. PENAL CODE 502(C) Date: June 7, 2010 Time: 1:30 p.m. Dept.: Hon. Judge James Ware TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that Amicus Electronic Frontier Foundation ("EFF") hereby moves pursuant to Civil Local Rule 7-11 for leave to file brief as amicus curiae supporting Defendant Power Venture's Opposition to Facebook's Motion for Summary Judgment on its California Penal Code section 502(c) claim. This motion is based on this Notice of Motion and Motion, the proposed amicus brief, proposed order and declaration of Jennifer Stisa Granick filed herewith and on the pleadings and the papers on file herein and on such other argument and MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE EFF IN SUPPORT OF DEFENDANT POWER VENTURES' MOTION FOR SUMMARY JUDGMENT ON CAL. P. C. SEC. 502(C) -- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence as may be presented to the Court. Electronic Frontier Foundation ("EFF") is a non-profit, member-supported digital civil liberties organization. As part of its mission, EFF has served as counsel or amicus in key cases addressing user rights to free speech, privacy, and innovation as applied to the Internet and other new technologies. With more than 14,000 dues-paying members, EFF represents the interests of technology users in both court cases and in broader policy debates surrounding the application of law in the digital age, and publishes a comprehensive archive of digital civil liberties information at one of the most linked-to web sites in the world, www.eff.org. Amicus Electronic Frontier Foundation's interest in this case is the sound and principled interpretation and application of the California computer crime statute, California Penal Code 502(c). Amicus believes that this brief may assist the Court in its consideration of consumer interests in this matter, as well as the proper scope of section 502(c). EFF has been instrumental to other courts in cases involving the application of computer crime statutes to modern communications technologies, including United States v. Drew, 259 F.R.D. 449, 465 (C.D. Cal. 2009). If Amicus were authorized to file a brief, it will argue that merely providing a technology to assist a user in accessing his or her own data, even if that manner is prohibited by a terms of service document or the subject of a cease and desist letter, cannot and should not form the basis for criminal liability. To hold otherwise would create a massive expansion of the scope of California criminal law and hobble user choice and interfere with follow-on innovation. It will also improperly hinge criminal liability on arbitrary and often confusing terms chosen by private parties in the contracts of adhesion they present to users. This creates both vagueness and the risk of capricious enforcement. While users who choose services such as Power's may breach Facebook's terms of use (if those terms are otherwise enforceable), breaches of these sorts of private contracts should not be turned into criminal conduct. Amicus is concerned that if Facebook's proposed construction of section 502(c) in this case is correct, millions of otherwise innocent internet users are potentially violating criminal law through routine online behavior. -1- MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE EFF IN SUPPORT OF DEFENDANT POWER VENTURES' MOTION FOR SUMMARY JUDGMENT ON CAL. P. C. SEC. 502(C) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As noted in the Declaration of Jennifer Stisa Granick filed herewith, Amicus have discussed this brief with counsel for both the plaintiff and defendant. Counsel for the defendant Power.com have consented to the filing of this brief. Granick Declaration par. 3. Counsel for Facebook has stated that they object to the filing of this brief. Granick Declaration par. 4 Amicus EFF respectfully requests that the Court grant leave to file its brief as Amicus Curiae in Support of Defendant Power Ventures' Motion for Summary Judgment on Cal. Penal Code 502(c), which is filed conditionally with this Motion for Leave. DATED: May 3, 2010 By /s/Jennifer Stisa Granick Jennifer Stisa Granick, Esq ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street San Francisco, CA 94110 Telephone: (415) 436-9333 x134 Facsimile: (415) 436-9993 Attorneys for Amicus Curiae ELECTRONIC FRONTIER FOUNDATION MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE EFF IN SUPPORT OF DEFENDANT POWER VENTURES' MOTION FOR SUMMARY JUDGMENT ON CAL. P. C. SEC. 502(C) -2-