Wednesday, September 20, 2006		ILR Home Page

Weekly Alert September 20, 2006 Latest News Intellectual Property Internet Commerce Freedom of Speech Telecommunications Privacy & Security Taxation Jurisdiction & Procedure Criminal Liability Latest Cases Latest Pleadings, Motions, & Briefs Submissions Welcome Subscription Information

Latest News INTELLECTUAL PROPERTY Fraudulent Exploitation of Link Program May Be 'Bad Faith' Under ACPA Statute A referring web site's use of typosquatting to scam commissions from the trademark owner may qualify as a "bad faith" intent to profit from the mark under the Anticybersquatting Consumer Protection Act, the U.S. District Court for the Western District of Wisconsin held Sept. 1. The scam involved a clever exploitation of the Lands' End affiliate program. That program allowed affiliate web sites to collect a 5 percent commission on sales made to users referred to the Lands' End site. Lands' End, Inc. v. Remy, 2006 ILRWeb (P&F) 2605. Read more...

Other Intellectual Property news: Mid-2007 Dates Set by WIPO for Conference on Broadcast Treaty Smith Offers Bill with Music Licensing, Orphan Works, Counterfeiting Measures Broadcast Flag Plays Key Role in Spurring Broadband Deployment, Says Senator Smith Indian Company's ACPA Claim Falters on Failure to Show Mark's Use in Commerce Ads Keyed to Generic Components of Mark Insufficient to Support Claim of Infringement Private Allegation of Copyright Infringement Is Not Enough to Support Defamation Claim Proponents Tout Plan for Web-Based Peer Review of Prior Art for Patent Searches Search ILR's Intellectual Property database

INTERNET COMMERCE Spam Wars Heat Up as Internet Marketer Wins Judgment Against Spamhaus Project The Spamhaus Project Ltd., a British firm operating an e-mail filtering system designed to curb spamming, has refused to comply with a pending $11.7 million default judgment, contending that a federal court in Chicago has no jurisdiction over an organization governed by the laws of the United Kingdom. On Sept. 13, U.S. District Court Judge Charles Kocoras ordered Spamhaus to pay $11.7 million in damages to e360 Insight, LLC, a Wheeling, Ill.-based Internet marketing company, and David Linhardt, president of e360 Insight. e360 Insight, LLC v. The Spamhaus Project (Order Granting Permanent Injunction), 2006 ILRWeb (P&F) 2619. Read more...

Other Internet Commerce news: U.N. Agency Sees Sharp Growth of Mobile, Internet Use in World's Poorest Countries Rep. Wexler Urges Action by EU to Resolve Dispute with Microsoft Unsolicited E-Mail Query to California Lawyer Not Confidential, No Client Relationship Fixed Descriptive Terms in Meta Tags Not Deemed Ads FTC Gets Permanent Injunctions Against Four Spamming Operations EC Warns Member States Against Enforcing Anti-Gambling Laws to Hit Cross-Border Firms Microsoft Planned 'Coordinated' Attack Against EU Regulatory Authority, Official Says Search ILR's Internet Commerce database

FREEDOM OF SPEECH KinderStart Files Amended Complaint Against Google Google, Inc.'s library digitalization efforts so intertwine the search engine with the functioning of public libraries that it renders the private entity a quasi-government actor subject to the First Amendment, according to a second amended complaint filed Sept. 1 in the U.S. District Court for the Northern District of California. KinderStart.com LLC v. Google, Inc. (Second Amended Class Action Complaint), 2006 ILRWeb (P&F) 2602. Read more... Search ILR's Freedom of Speech database

TELECOMMUNICATIONS VoIP E-911 Legislation Added to Port Security Bill by Burns, Nelson An amendment to require Voice over Internet Protocol (VoIP) providers to offer E-911 service to their customers was adopted by unanimous consent late Sept. 13 to an unrelated port security bill (H.R. 4954), which passed in the Senate on Sept. 14. Sen. Conrad Burns (R-Mont.) offered the amendment, which was co-sponsored by Sen. Bill Nelson (D-Fla.). The amendment is modeled after legislation (S. 1063) that was reported out of the Senate Commerce, Science, and Transportation Committee in November 2005. Read more...

Other Telecommunications news: Embattled Communications Measure Faces Skeptics, Attorneys General, CBO Cost Count FCC Spectrum Auction Ends Bringing in Bids Worth $13.9 Billion Search ILR's Telecommunications database

PRIVACY & SECURITY Online Marketer Faces ECPA Class Action for Nonconsensual Access to Shopper Data A class action lawsuit against Webloyalty.com, Inc., charging the online marketing service company with violating the Electronic Communications Privacy Act by obtaining personal information from online retailers about consumers without their consent, was filed Sept. 11 in the U.S. District Court for the District of Massachusetts. The complaint, seeking class action status for thousands of consumers, asked the court to award each class member statutory damages pursuant to ECPA of the greater of $10,000 or $100 a day for each day the law was violated, and for punitive damages. Kuefler v. Webloyalty.com, Inc. (Class Action Complaint), 2006 ILRWeb (P&F) 2604. Read more...

Other Privacy & Security news: Stronger Cybersecurity Leadership Needed, Witnesses Tell House Internet Subcommittee Senate Judiciary Approves Measure Providing for Warrantless Surveillance Internet Companies Would Be Subject to CALEA Under Draft Bill Embroidery Industry Group Drops Subpoena to ISP Seeking Chat Group Member Names New Jersey Seeks Dismissal of U.S. Suit to Halt AG's NSA Program Investigation Search ILR's Privacy & Security database

TAXATION Internet Tax Moratorium Waiting for Appearance on Senate Floor Despite efforts on two fronts in the Senate to permanently extend the Internet tax moratorium, senators working on the issue believe it has little chance of progressing before the election and possibly will remain stalled for the rest of the year. Sen. George Allen (R-Va.), sponsor of the language attached to a broad communications bill (H.R. 5252), said that, with so little time remaining in the 109th Congress, a packed agenda, and divergent views on the subject, it could be hard to move the provision any further. Read more...

Other Taxation news: Missouri DOR Issues Letter Rulings on VoIP, Leasing Satellite Television Equipment Search ILR's Taxation database

JURISDICTION & PROCEDURE Privilege Not Waived for E-Mails Automatically Stored in 'Screen Shot' File An employee did not waive privilege in attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed not through the company's Intranet, but through the Internet. The opinion is particularly noteworthy for the court's view of what a reasonable person can be expected to know about the operation of computer systems. National Economic Research Associates, Inc. v. Evans, 2006 ILRWeb (P&F) 2499. Read more... Search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY Coalition Against Child Pornography Working to Stop Card Payments to Sites A coalition of financial institutions is working to cut off credit card payments to illegal child pornography web sites, with a goal of eradicating commercial child pornography by 2008, an advocate told the Senate Banking Committee Sept. 19. The goal of the Financial Coalition Against Child Pornography is to increase the risk of running child pornography sites and to eliminate their profitability, according to Ernie Allen, president and CEO of the National Center for Missing and Exploited Children. Read more...

Other Criminal Liability news: Suggestive E-Mail Name, Porn Group Member Gives Probable Cause for Computer Search Search ILR's Criminal Liability database

Latest Cases Arista Records LLC v. Greubel, 2006 ILRWeb (P&F) 2617 [ND Tex] (Motion to dismiss infringement suit against P2P user denied) Electronic Payment of Royalties (Final Rule), 2006 ILRWeb (P&F) 2493 [LOC] (Copyright Office issues final rule amending rules governing royalty fee submission to require such payments be made by electronic funds transfer) e360 Insight, LLC v. The Spamhaus Project (Order Granting Permanent Injunction), 2006 ILRWeb (P&F) 2619 [ND Ill] (Default judgment against U.K.-based spam blocker ordering defendant to remove plaintiff from blacklist and awarding plaintiff $11.7 million in damages) Federal Sector Equal Employment Opportunity (Final Rule), 2006 ILRWeb (P&F) 2491 [EEOC] (Equal Employment Opportunity Commission issues final rule implementing the web posting requirements of Title III of the No FEAR Act) Hillis v. Equifax Consumer Services, Inc., 2006 ILRWeb (P&F) 2497 [ND Ga] (Descriptive terms in meta tags not deemed ads) Lands' End, Inc. v. Remy, 2006 ILRWeb (P&F) 2605 [WD Wis] (Fraudulent exploitation of link program may be 'bad faith' under ACPA statute) Majic Window Company v. Milgard Windows, 2006 ILRWeb (P&F) 2623 [ED Mich] (Default judgment set aside where electronic notice wound up in spam folder) Maruti.com v. Maruti Udyog Ltd., 2006 ILRWeb (P&F) 2495 [D Md] (Indian company's ACPA claim falters on failure to show mark's use in commerce) National Economic Research Associates, Inc. v. Evans, 2006 ILRWeb (P&F) 2499 [Mass Super Ct] (Privilege not waived for e-mails automatically stored in 'screen shot' file) Picture It Sold, Inc. v. iSOLD It, LLC, 2006 ILRWeb (P&F) 2469 [9th Cir] (Ads keyed to generic components of mark insufficient to support claim of infringement) Rohl, LLC v. ROHL SA, 2006 ILRWeb (P&F) 2291 [WIPO] (Complaint brought in bad faith; constitutes an abuse of the administrative proceeding) Safeguard Operations, LLC v. Safeguard Storage, 2006 ILRWeb (P&F) 2071 [NAF] (Respondent made demonstrable preparations to use the disputed domain name with a bona fide offering of goods or services) San Diego County Bar Association Formal Ethics Opinion 2006-1, 2006 ILRWeb (P&F) 2293 [San Diego Cty Bar Ass'n] (Unsolicited e-mail query to California lawyer not confidential, no client relationship fixed) Solers, Inc. v. Doe (Order Granting Motion to Quash Subpoena), 2006 ILRWeb (P&F) 2485 [DC Super Ct] (Private allegation of copyright infringement is not enough to support defamation claim) United States v. Shields, 2006 ILRWeb (P&F) 2437 [3d Cir] (Suggestive e-mail name, porn group member gives probable cause for computer search) Verizon California, Inc. v. Peevey, 2006 ILRWeb (P&F) 2615 [9th Cir] (Verizon must pay reciprocal compensation for delivery of Internet-bound calls at pre-existing rates rather than at the lower capped rates set by the FCC) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs KinderStart.com LLC v. Google, Inc. (Second Amended Class Action Complaint), 2006 ILRWeb (P&F) 2602 [ND Cal] (KinderStart alleges that Google's library digitalization efforts render it a quasi-government actor subject to the First Amendment) Kuefler v. Webloyalty.com, Inc. (Class Action Complaint), 2006 ILRWeb (P&F) 2604 [D Mass] (Online marketer faces ECPA class action for nonconsensual access to shopper data) United States v. Milgram (Brief of Defendants Milgram, Nolan, and O'Donnell in Support of Motion to Dismiss), 2006 ILRWeb (P&F) 2600 [D NJ] (New Jersey seeks dismissal of U.S. suit to halt AG's NSA program investigation) Search ILR's Pleadings database

Submissions Welcome Have you got a case or a pleading you'd like to see highlighted? Are you interested in submitting an article for inclusion in ILR's "Analysis & Perspective" section? Please send submissions to Mark Smith, Managing Editor, Pike & Fischer Internet Law & Regulation, 1010 Wayne Ave., Suite 1400, Silver Spring, MD 20910-5600; tel. 800-255-8131 x265, fax 301-562-1521, or e-mail msmith@pf.com.

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