10.3 Other Provisions of the Act

• Library: Virginia Business Torts (Virginia CLE) (2019 Ed.)

10.3 OTHER PROVISIONS OF THE ACT

10.301 Statute of Limitations. A civil action for injury resulting from a violation of the Act must be commenced before the earlier of five years from the last act in the course of conduct constituting the violation of the Act or two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct. ⁶⁶

10.302 Personal Jurisdiction. In cases alleging injury arising from the transmission of spam, personal jurisdiction may be exercised pursuant to Virginia's long-arm statute. ⁶⁷ See paragraph 10.202 of this chapter for cases discussing the transmission of spam.

10.303 Protection of Secrecy, Trade Secrets, and Privacy During Proceedings. Litigation under the Act often involves the trade secrets of one or more parties to the litigation, and a party may need to protect them from disclosure during the litigation. Bringing an action under the Act may also put into the public record a set of pleadings or other documents that may unintentionally provide a set of instructions that another person may use to do the same or similar act that is the subject of the plaintiff's complaint. Further, the litigation could result in an invasion of the privacy of nonparties who complain about violations of the Act. The Act specifically addresses these issues. At the request of any party to the action, the court may, in its discretion, conduct all legal proceedings in such a way as to protect (i) the secrecy and security of the computer, computer network, data, program, and software; (ii) the trade secrets; and (iii) the privacy of nonparties who complain about violations. ⁶⁸

10.304 Preemption. Claims under the VCCA are preempted by the Copyright Act if (i) the work at issue is within the subject matter of copyright and (ii) the rights granted by the VCCA are equivalent to the exclusive rights

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granted by the Copyright Act. ⁶⁹ For a right to be "equivalent," it must abridge (in other words, infringe) or otherwise fail to qualitatively change one of the exclusive rights granted by the Copyright Act. ⁷⁰ For example, the VCCA claims involving unauthorized copying of copyrighted computer software are preempted by the Copyright Act because they do not contain elements that make them qualitatively different from the copyright claims. ⁷¹

Also, claims under the Act can be preempted by Virginia Uniform Trade Secrets Act if, for example, a court determines that the information accessed by a computer...