Wednesday, November 1, 2006		ILR Home Page

Weekly Alert November 1, 2006 Last Chance to Register: Must Your Website Be ADA Compliant? Latest News Intellectual Property Internet Commerce Freedom of Speech Telecommunications Privacy & Security Taxation Jurisdiction & Procedure Latest Cases Latest Pleadings, Motions, & Briefs Submissions Welcome Subscription Information

Last Chance to Register: Must Your Website Be ADA Compliant? Accessibility in Cyberspace: The ADA's Applicability Online An Interactive Audio Event Friday, November 3, 2006 2:00-3:30 pm EST A federal district court judge recently ruled that mega-retailer Target can be sued if its website is inaccessible to the blind. While this is not the first high-profile case interpreting the Americans with Disabilities Act (ADA) in the online context, it has the potential to affect websites nationwide. Join Pike & Fischer and our panel of legal and IT experts for an insightful audio conference to help you navigate issues arising from this controversial ruling. Learn More Register an unlimited number of participants from a single call-in location.

Latest News INTELLECTUAL PROPERTY Purchase, Use of Another's Mark for Search Engine Advertising Held 'Use in Commerce' The purchase of a mark as a keyword and the subsequent use of that keyword to trigger search engine advertising amount to a "use in commerce" supporting a claim of trademark infringement, the U.S. District Court for the District of New Jersey held Oct. 20. While acknowledging that keyword use is "certainly not a traditional 'use in commerce,' " the court said that keyword usage of a mark nonetheless satisfies the Lanham Act's requirement that the challenged use of a mark be a use in commerce. Buying for the Home, LLC v. Humble Abode, LLC, 2006 ILRWeb (P&F) 2827. Read more...

Other Intellectual Property news: Consumer Groups, Tech Firms Launch Effort to Defend Legal Uses of Copyrighted Works For Lawyers Chasing Cybersquatters, Strategic Decisions Are Far from Simple High Court to Hear Microsoft-AT&T Dispute Over Liability for Components Used Overseas Parties Must Agree on Neutral Third Party to Examine Alleged Infringer's Computer Agency Extends Current Exemptions from DMCA's Anticircumvention Provisions Registration of Domain After Receipt of C&D Letter Merits Statutory Damages Search ILR's Intellectual Property database

INTERNET COMMERCE Mouse Clicks Signaled Valid Assent to Lengthy but Clear Cable Services Contract An arbitration clause in a clearly presented online agreement, which required the consumer to indicate assent several times via mouse clicks before service would be provided, is enforceable against the consumer in a lawsuit challenging cable fees, the U.S. District Court for the Southern District of New York held Oct. 16. The court was not troubled by the length of the agreement, which ran to 38 screens of information, nor by the fact that the arbitration clause was presented near the end of the agreement. Bar-Ayal v. Time Warner Cable, Inc., 2006 ILRWeb (P&F) 2851. Read more...

Other Internet Commerce news: Adware Suit Focuses on Use of Clickwrap Federal Judge Rejects Spamhaus Motion to Vacate $11.7 Million Default Judgment Global Perspectives on Internet Policies Aired at Athens Internet Governance Forum ICANN Solicits Public Comment on Plan to Sell Country Codes in .name Domain ICANN Board Formally Approves .asia Domain HHS Designates First Certification Body to Evaluate, Approve E-Health Software Search ILR's Internet Commerce database

FREEDOM OF SPEECH District Court Preliminarily Enjoins Oklahoma Controls on Violent Video Games The video game industry is likely to prevail with its First Amendment challenge to the state of Oklahoma's violent video game law, the U.S. District Court for the Western District of Oklahoma held Oct. 11. "Plaintiffs present strong evidence that the Act contains unconstitutional content-based restrictions and that the Act's language is unconstitutionally vague," said Judge Robin J. Cauthron in preliminarily enjoining the law, H.B. 3004, which was scheduled to go into effect Nov. 1. Entertainment Merchants Association v. Henry, 2006 ILRWeb (P&F) 2843. Read more...

Other Freedom of Speech news: First Amendment No Bar to Terrorist Tag on Web Site U.S. Internet Heavyweights Scolded for Aiding Government Censorship Online Search ILR's Freedom of Speech database

TELECOMMUNICATIONS Broad Discretion to Revise FCC Rules Confirmed by Courts, Martin Says Federal Communications Commission Chairman Kevin Martin Oct. 26 told an audience of lawyers that the broad discretion given to the agency to revise its regulations has often been upheld by the courts, which may or may not be the intent of policymakers. Martin also answered questions following his speech about the merger between AT&T and BellSouth, saying commissioners were "working diligently" on the matter and that he hoped it would be resolved soon. Read more...

Other Telecommunications news: European Rulemakers Threaten Court Action to Challenge Deutsche Telekom Exemption Search ILR's Telecommunications database

PRIVACY & SECURITY Travel Executives Seek Guidance on Laptop Seizure, Content Review by Border Agents The Association of Corporate Travel Executives (ACTE) is seeking guidance from the federal government on the data security and privacy protection policies and procedures that may govern U.S. border control officials when they seize and review the contents of laptop computers. "ACTE's leadership continues to ask for clarification from the U.S. government regarding what steps, if any, are being taken to protect confidential business, privileged legal, and personal information," ACTE Executive Director Susan Gurley said in an Oct. 23 press statement. Read more...

Other Privacy & Security news: Securities Association Warns Online Investors of Hacking Incidents Costing Clients Millions ACLU Ends Business Records Provision Suit, Will Focus Fight on Specific Requests, NSLs Search ILR's Privacy & Security database

TAXATION Nassau County Sues Hotel E-Bookers Alleging Occupancy Tax Underpayment Nassau County, N.Y., joined an expanding list of municipalities around the county when it filed a lawsuit Oct. 24 charging that 17 online hotel reservation companies—including Hotels.com, Inc., Travelocity.com, Inc., Expedia, Inc., and Orbitz, Inc.—are not paying the appropriate amount of occupancy taxes to cities and counties in New York. Read more...

Other Taxation news: Sale of Software License for Use in Texas Subject to Sales, Use Tax, Comptroller Says Search ILR's Taxation database

JURISDICTION & PROCEDURE Web Site Accessibility Irrelevant to Choice of Law The mere fact that a Bahamian resort's web site is accessible to Illinois residents does not support the application of Illinois tort law principles to a personal injury case arising in the Bahamas, the U.S. Court of Appeals for the Seventh Circuit held Oct. 16. Carris v. Marriott International, Inc., 2006 ILRWeb (P&F) 2853. Read more...

Other Jurisdiction & Procedure news: Limitations Placed on Testimony Regarding Allegedly Fabricated E-Mail Search ILR's Jurisdiction & Procedure database

Latest Cases Bar-Ayal v. Time Warner Cable, Inc., 2006 ILRWeb (P&F) 2851 [SD NY] (Internet service customer is bound by terms of arbitration provision contained in a "clickwrap" Customer Agreement) Buying for the Home, LLC v. Humble Abode, LLC, 2006 ILRWeb (P&F) 2827 [D NJ] (Purchase, use of another's mark for search engine advertising held 'use in commerce') Carris v. Marriott International, Inc., 2006 ILRWeb (P&F) 2853 [7th Cir] (Web site accessibility irrelevant to choice of law) Connect Communications Corp. v. Southwestern Bell Telephone L.P., 2006 ILRWeb (P&F) 2859 [8th Cir] (Calls between local exchange carrier to customer's ISP of a different telephone company within same local exchange area are non-local calls and not subject to reciprocal compensation under the Interconnections Agreement) Entertainment Merchants Association v. Henry, 2006 ILRWeb (P&F) 2843 [WD Okla] (District court preliminarily enjoins Oklahoma controls on violent video games) Kahane Chai v. Department of State, 2006 ILRWeb (P&F) 2855 [DC Cir] (First Amendment no bar to terrorist tag on web site) Lytel v. Simpson, 2006 ILRWeb (P&F) 2839 [ND Cal] (Limitations placed on testimony regarding allegedly fabricated e-mail) New York, People of v. Direct Revenue, LLC (Transcript of Hearing on Motion to Dismiss), 2006 ILRWeb (P&F) 2841 [NY Sup Ct] (Adware suit focuses on use of clickwrap) Safeclick, LLC v. Visa International Service Association, 2006 ILRWeb (P&F) 2845 [Fed Cir] (District court did not abuse its discretion in refusing to consider new contention regarding Visa's alleged infringement of a patent for an electronic transaction security system) Silpada Designs, Inc. v. O'Malley, 2006 ILRWeb (P&F) 2849 [D Kan] (Statutory damages and attorney's fees awarded for cybersquatting violation) Sony BMG Music Entertainment v. Arellanes, 2006 ILRWeb (P&F) 2857 [ED Tex] (RIAA must use neutral computer forensics expert to examine hard drive of alleged infringer) SRI International, Inc. v. Internet Security Systems, Inc., 2006 ILRWeb (P&F) 2847 [D Del] (Summary judgment for invalidity of patents related to the monitoring and surveillance of computer networks for intrusion detection is granted, given that a posting to an FTP site was publicly accessible) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs National Community Reinvestment Coalition v. Zillow.com (Complaint), 2006 ILRWeb (P&F) 2812 [FTC] (Organization files consumer protection complaint alleging that web site is misleading consumers, real estate professionals, and financial service providers in online home valuations) New York, People of v. Direct Revenue, LLC (Brief of Amicus Curiae in Support of Neither Party), 2006 ILRWeb (P&F) 2630 [NY Sup Ct] (Amici argue that a software distributor does not necessarily commit deceptive trade practices by disclosing certain information in a clickwrap agreement) New York, People of v. Direct Revenue, LLC (Motion to Dismiss), 2006 ILRWeb (P&F) 2038 [NY Sup Ct] (Terms of EULA warrant dismissal of a deceptive trade practices lawsuit filed by NY Attorney General) 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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