Text Messages Again Affirmed To Be “Calls” Under TCPA

February 28, 2010

Another federal court not long ago affirmed that text messages come within the scope of unsolicited “calls” that are prohibited under the Telephone Consumer Protection Act (TCPA).   Notable here is that, unlike in a previous U.S. Circuit Court opinion on the same issue (Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009)), the U.S. District Court for the Northern District of Illinois in reaching its conclusions went through a more extensive analysis of the statute, its legislative history and related Federal Communications Commission rules and pronouncements.  The result is that this decision, Abbas v. Selling Source, Case No. 09-CV-3413 (N.D. Ill. Dec. 14, 2009), combined with the Ninth Circuit’s views in Satterfield, is likely to put this issue to rest.

The TCPA prohibits a person “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]”  47 U.S.C. Sec. 227(b)(1)(A)(iii). 

In addition to confirming that text messages are “calls” within the meaning of the TCPA, the Abbas court also followed the Satterfield court’s view that  merely using a device or system that has the capacity to perform automatic telephone dialing is sufficient to invoke the statutory prohibition even if the automatic dialing feature was not actually used in sending out the subject messages.

PDF of  Abbas v. Selling Source Opinion

Jacobsen v. Katzer Open Source Case Settled

February 28, 2010

Among those who follow open source software issues, the case Jacobsen v. Katzer, et al., No. 2008-1001, 2008 WL 3395772 (Fed. Cir. Aug. 13, 2008), has long been of particular interest since it first popped up on the radar screen a couple of years ago because it is a rare case of open source license terms actually being litigated.   Recently, a settlement was reached in the case, which, when considered with the prior court decisions in the litigation, represents a significant victory for open source licensors. 

At issue were the applicable license terms for the use of certain open source code that was useful for model train controllers.  The license raised issues under California state contract law and federal copyright law. The user, Katzer and his company, Kamind Associates, was being held accountable by the plaintiff on behalf of the Java Model Railroad Interface (JMRI) Project, which originally released the open source code at issue.  Katzer either overlooked the underlying license terms or had not read them closely enough. Parsing through the license terms, the circuit court found that a proviso contained in the Artistic License — which had been adopted by the plaintiff for the software — created a threshold condition to use of the software under the license (thus, giving rise to a copyright-infringement claim) rather than being a mere covenant on the scope of the license rights (which if violated would have resulted only in a breach of  contract claim).  In later proceedings, the U.S. District Court for the Northern District of California in December 2009 granted significant parts of the plaintiff’s motion for summary judgment and denied the defendant’s motion for  partial summary judgment.

Under the terms of the settlement reached February 16, 2010, Katzer is enjoined from using or copying any of the JMRI code or other materials, is prohibited from using certain trademarks and domain names that conflict with the rights of the JRMI Project, and must pay plaintiffs the sum of $100,000 over a period of 18 months.

The takeaway:  open source license terms matter and are ignored by users at their peril.

Link to Settlement Agreement:  http://www.docstoc.com/docs/25847971/Jacobsen-Settlement