Garelli Wong & Associates

Garelli Wong & Associates

Using the Module 2 readings, course website links, the GCU Library, the Internet, and/or other sources of literature as needed, complete the following problems:

Chapter 5 – Problems and Problem Cases: Problem 13
Chapter 6 – Problems and Problem Cases: Problem 11
Complete the problems for each chapter first by stating the question(s) you are addressing, then by stating your responses

13), Inc. (GW), a provider of accounting and fi nancial personnel services, created
a database containing confidential client trackinginformation. The fi rm took steps to maintain the confi
dentiality of the information and thereby obtain the
competitive advantage that the information provided.
GW and a corporation that had later acquired the fi rm
sued William Nichols, a former employee of GW and
the successor corporation. The plaintiffs alleged that
Nichols used some of the confidential information in
the above-referred-to database after he had taken a
job with a competing fi rm. Nichols’ supposed use of
the information allegedly breached a contract he had
entered into with GW when he was employed there.
In their complaint fi led in federal court, GW and the
successor corporation contended that Nichols’ actions
violated the federal Consumer Fraud and Abuse
Act (CFAA) and constituted breach of contract in
violation of state common law. The CFAA section
on which the plaintiffs relied, § 1030 (a)(5), states, in
pertinent part:
Whoever-
(5)(A)(i) knowingly causes the transmission of . . .
information . . . and as a result of such conduct, intentionally
causes damage without authorization, to a protected
computer;
(ii) intentionally accesses a protected computer without
authorization, and as a result of such conduct, recklessly
causes damage; or
(iii) intentionally accesses a protected computer without
authorization, and as a result of such conduct, causes
damage . . .; and
(5)(B)(i) by conduct described in clause (i), (ii), or (iii)
of subparagraph (A), caused . . . loss to 1 or more persons
during any 1-year period . . . aggregating at least $
5,000 in value.
A definition section of the CFAA definesdamage as
“impairment to the integrity or availability of data, a
program, a system, or information.”
Nichols moved to dismiss the plaintiffs’ CFAA §
1030 (a)(5) claim because of a supposed failure to
state a claim upon which relief could be granted. He
argued that even if he used information in the database,
he did not impair the integrity or availability of
the information or the database. How did the court
rule on Nichols’ motion regarding the § 1030 (a)(5)
claim? Did that section of the CFAA apply to this
alleged instance of trade secret misappropriation?

11) At the time of the events described below, California’s
statute dealing with a deceased celebrity’s right of
publicity read as follows: “Any person who uses a
deceased personality’s name, voice, signature, photograph,
and likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising
or selling, or soliciting purchases of products,
merchandise, goods, or services, without prior consent
from [the legal owner of the deceased personality’s
right of publicity] shall be liable” to the right
of publicity owner. The statute also set forth exemptions
from the consent requirement for uses in news,
public affairs, or sports broadcasts; in plays, books,
magazines, newspapers, musical compositions, or
fi lm, television, or radio programs; or in other works
of political or news-related value. There was also an
exemption for “single and original works of fi ne art.”
Comedy III Production, Inc., owns the rights of
publicity of the deceased celebrities who, through
their comedy act and fi lms, had become familiar to
the public as “The Three Stooges.” Relying on the
statute quoted above, Comedy III brought a right
of publicity action against artist Gary Saderup and
the corporation of which he was a principal. Without
Comedy III’s consent, the defendants (referred
tohere collectively as “Saderup”) had produced and
profi ted from the sale of lithographs and T-shirts
bearing a depiction of The Three Stooges. The depiction
had been reproduced from Saderup’s charcoal
drawing, which featured an accurate and easily
recognizable image of the Stooges. The trial court
awarded damages to Comedy III after concluding
thatSaderup had violated the right of publicity
statute and that neither the exemptions set forth in
statute nor the First Amendment furnished a defense.
When the California Court of Appeals affirmed,
Saderup appealed to the Supreme Court of California.
Were the lower courts correct in ruling in favor of
Comedy III?
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