Wednesday, October 4, 2006		ILR Home Page

Weekly Alert October 4, 2006 Latest News Intellectual Property Internet Commerce Telecommunications Privacy & Security Jurisdiction & Procedure Criminal Liability Latest Cases Latest Pleadings, Motions, & Briefs New Electronic Discovery Report Subscription Information

Latest News INTELLECTUAL PROPERTY Invisible Use of Trademark as Keyword Is Not 'Use in Commerce' Under Lanham Act The sale of a trademark as a keyword search term is not actionable trademark use, the U.S. District Court for the Northern District of New York held Sept. 28. The court granted Google, Inc.'s motion to dismiss the keyword advertising complaint, reasoning that the use of a mark to trigger sponsored links is not a "use in commerce" because the consumer never sees the trademark in an ad or placed upon any goods, displays, or containers. In reaching that holding, the court relied heavily upon the Second Circuit's reasoning in the 1-800 Contacts pop-ups case and rejected the contrary approach taken in the GEICO and Edina Realty keyword advertising cases. Rescuecom Corp. v. Google, Inc., 2006 ILRWeb (P&F) 2647. Read more...

Other Intellectual Property news: WIPO Members Reach Agreement on Advancing Proposed Broadcast Treaty On Remand, Hollywood Summarily Prevails on 'Inducing Copyright Infringement' Theory House Judiciary Pulls Copyright Reform Legislation; Smith to Proceed During Next Congress Linux Developers Give GPLv3 Thumbs Down, but FSF Remains Firm on Hot Button Topics French Domain Registrar AFNIC Warns Trademark Owners of Slamming Risks IP, Rule of Law Has Power to Drive Economy, Society, ABA President-Elect Says Search ILR's Intellectual Property database

INTERNET COMMERCE New Agreement with Commerce Extends ICANN Oversight Three Additional Years The Department of Commerce announced Sept. 29 that it had reached a new oversight agreement with the Internet Corporation for Assigned Names and Numbers, the private-sector entity selected in 1998 to handle management of the Internet's domain name system. The new agreement reaffirms the government's goal of transitioning the technical management of the domain name system to a private-sector entity. The agreement also signals Commerce's intention to monitor ICANN's methods and administrative procedures "to encourage greater transparency, accountability, and openness in the consideration and adoption of policies related to the technical coordination of the Internet DNS." Read more...

Other Internet Commerce news: Internet Gambling Provisions Pass Congress Barring Use of Credit Cards in Transactions SEC Charges Children's Internet Operator with Defrauding Investors of $5.5 Million PayPal Reaches Pact with 28 States to Improve Disclosures, Customer Service Online Check Processing Firm Agrees to Halt Production Pending FTC Action Microsoft Appeals $357 Million EC Fine Based on 2004 Ruling to European Court McAfee Anti-Virus Firm Says Microsoft Using New Vista OS to Compete Unfairly Search ILR's Internet Commerce database

TELECOMMUNICATIONS New Emergency Alert System In, VoIP E-911 Out of Port Security Bill The House and Senate late Sept. 29 approved a conference report to the port security bill (H.R. 4954), including provisions to modernize the nation's emergency alert system but rejecting provisions to require Voice over Internet Protocol (VoIP) providers to offer E-911 service to their customers. The VoIP E-911 provisions were highly sought by both public safety organizations and the VoIP industry, because they would have authorized access to the nation's 911 infrastructure and provided liability coverage for calltakers who handle VoIP calls. Read more...

Other Telecommunications news: Wireless Broadband Coalition Goes Public to Advocate for Spectrum Policies House, Senate Leaders Raise Questions About Proposed AT&T/BellSouth Merger Entrepreneurs Seeking Spectrum for Free Wireless Broadband Network Search ILR's Telecommunications database

PRIVACY & SECURITY Cable Television Privacy Protections Do Not Apply to Cable Company's Broadband Service Federal privacy rules that forbid cable television providers from collecting personal information about their viewers do not apply to broadband Internet services offered by cable operators, the U.S. Court of Appeals for the Sixth Circuit decided Sept. 28 in a case of apparent first impression. Looking at a putative class action suit challenging Comcast Cable Communications' former practice of temporarily storing Internet Protocol addresses and web sites visited by their broadband subscribers, the court declared that the Cable Communications Policy Act, 47 USC §521-561, does not apply to broadband Internet services. Section 551(a)(1) limits the reach of the statute to "cable system[s]" only. Klimas v. Comcast Cable Communications, Inc., 2006 ILRWeb (P&F) 2643. Read more...

Other Privacy & Security news: House OKs Surveillance Bill 232-191; Democrats Protest Breadth of Powers NIST Issues Draft Data Security Standards on RFID, Border Protocol, Industry Controls Search ILR's Privacy & Security database

JURISDICTION & PROCEDURE Faking IP Address to Imply ISP Hosted Site Justifies Personal Jurisdiction in ISP's Forum Masking the origin of spam by routing it through an Internet service provider's e-mail servers so that it appeared that the messages originated from the ISP itself amounts to an "electronic contact" with the ISP's forum sufficient to assert personal jurisdiction over the spammers, the U.S. District Court for the Northern District of Georgia held Aug. 31. The court reasoned that jurisdiction was proper because "[t]his process of masking involved connections to and from EarthLink's network in Georgia." EarthLink, Inc. v. Pope, 2006 ILRWeb (P&F) 2511. Read more...

Other Jurisdiction & Procedure news: NOCI Letter That Thwarted Sale Doesn't Support Jurisdiction in Seller's Forum Forum Selection Clause in eBay User Agreement Enforced in Civil Rights Suit Search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY CoE Accepts U.S. Cybercrime Treaty Ratification The 46-nation Council of Europe Oct. 2 announced that the United States has completed ratification of the CoE-brokered Cybercrime Convention, and that the treaty will enter into force in the U.S.A. on Jan. 1. The convention requires parties to establish certain offenses as computer crimes, adopt domestic procedural laws to investigate computer crimes, and provide a basis for international law enforcement cooperation in combating crimes. Read more...

Other Criminal Liability news: Unit of Prosecution Is Number of Logins, Not Number of Documents Later Accessed New York Tweaks Computer Crime Law, Adding Unauthorized Access to Proscriptions Left-Wing Activist Pleads Guilty to Charges Linked to Hacker Attack on Right-Wing Group Search ILR's Criminal Liability database

Latest Cases Dudinikov v. Chalk & Vermillion Fine Arts, Inc., 2006 ILRWeb (P&F) 2639 [D Colo] (NOCI letter that thwarted sale doesn't support jurisdiction in seller's forum) EarthLink, Inc. v. Pope, 2006 ILRWeb (P&F) 2511 [ND Ga] (Faking IP address to imply ISP hosted site justifies personal jurisdiction in ISP's forum) Klimas v. Comcast Cable Communications, Inc., 2006 ILRWeb (P&F) 2643 [6th Cir] (Cable television privacy protections do not apply to cable company's broadband service) Massachusetts, Commonwealth of v. Piersall, 2006 ILRWeb (P&F) 2513 [Mass App Ct] (Unit of prosecution is number of logins, not number of documents later accessed) Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (Order Granting Plaintiffs' Motion for Summary Judgment Against StreamCast), 2006 ILRWeb (P&F) 2641 [CD Cal] (On remand, Hollywood summarily prevails on 'inducing copyright infringement' theory) Nazaruk v. eBay, Inc., 2006 ILRWeb (P&F) 2627 [D Utah] (Forum selection clause in eBay user agreement enforced in civil rights suit) Rescuecom Corp. v. Google, Inc., 2006 ILRWeb (P&F) 2647 [ND NY] (Invisible use of trademark as keyword is not 'use in commerce' under Lanham Act) Texas, State of and PayPal, Inc., In re (Assurance of Voluntary Compliance or Discontinuance), 2006 ILRWeb (P&F) 2645 [Tex Dist Ct] (PayPal reaches pact with 28 states to improve disclosures, customer service) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Arista Records LLC v. Lime Wire LLC (Defendants' Answer and Lime Wire's Counterclaims), 2006 ILRWeb (P&F) 2612 [SD NY] (Lime Wire files counterclaim against RIAA alleging antitrust violations) Federal Trade Commission v. Neovi, Inc. (Complaint), 2006 ILRWeb (P&F) 2618 [SD Cal] (FTC complaint alleges the business practices of an Internet-based check creation and delivery service caused "considerable consumer injury") Mobilisa, Inc. v. Doe 1 (Brief of Public Citizen and Electronic Frontier Foundation as Amici Curiae), 2006 ILRWeb (P&F) 2616 [Ariz Ct App] (Amicus brief arguing that disclosure of anonymous e-mailer may stifle free speech) Securities and Exchange Commission v. The Children's Internet, Inc. (Complaint), 2006 ILRWeb (P&F) 2614 [ND Cal] (SEC charges children's Internet operator with defrauding investors of $5.5 million) Search ILR's Pleadings database

New Electronic Discovery Report Evaluating the Electronic Discovery Capabilities of Outside Law Firms: A Model Request for Information and Analysis (150 pages) The greatest economic risk companies face with e-discovery is choosing the wrong law firm. Under the new FRCP, the amounts at stake aren't just legal fees or settlement costs; there's an additional price paid for loss of productivity and the disruption of core revenue activities when business is delayed in favor of searching for electronic records. Exhaustively researched to include all existing court rules, 350+ published court cases and published technology standards and business practices, Evaluating the Electronic Discovery Capabilities of Outside Law Firms provides corporate legal teams an invaluable tool for conducting the due diligence required to ensure they hire the best law firms for handling the job. For law firms, the study provides a critical roadmap to understanding client pressures and the vital importance of strong electronic discovery legal capabilities. Learn more

Subscription Information In order to receive your own copy of Internet Law & Regulation's Weekly Alert, please fill out the Weekly Alert sign-up form. Also, invite colleagues to request a trial to ILR. For additional information, contact customercare@pf.com. To unsubscribe, do not reply to this message. Instead, please use the unsubscribe feature at the bottom of this email.