Wednesday, November 29, 2006		ILR Home Page

Weekly Alert November 29, 2006 Latest News Intellectual Property Internet Commerce Freedom of Speech Privacy & Security Taxation Jurisdiction & Procedure Criminal Liability Latest Cases Latest Pleadings, Motions, & Briefs Latest Research from Pike & Fischer Submissions Welcome Subscription Information

Latest News INTELLECTUAL PROPERTY Cell Phone Locks Exempted from DMCA, but Backup DVDs, Region Coding Are Not Consumers will enjoy somewhat greater flexibility in overcoming the headaches created by digital locks under a Nov. 27 rulemaking by the Librarian of Congress. The rulemaking is closely watched by fair use advocates and copyright owners alike because it carves out exemptions from the Digital Millennium Copyright Act, 17 USC §1201 et seq., a law that enforces electronic locks protecting copyrighted works. The librarian exempted six classes of works—the most ever—from the DMCA's prohibition on circumventing access control technology. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (Final Rule), 2006 ILRWeb (P&F) 3045. Read more...

Other Intellectual Property news: Justices Express Frustration with CAFC's 'Motivation' Test for Obviousness Google Video Posting Draws DMCA Subpoena Dispute Recording Companies' Complaint Avers MySpace Induces User Infringement Service That Loads Consumers' DVDs onto Their iPods Violates DMCA, Say Studios Google Urges Australian Senate to Adopt Broader Fair Use Exemptions Disclaimer Embedded in Metatags Helps Bolster Claimed Fair Use of Mark Customer List Protected Despite Web Availability Register of Copyrights Rules Only Muzak, Music Choice, DMX Are 'Pre-Existing Subscription Services' Tight Limits on Use of Software Entitle Program to Trade Secret Protection Perfect 10, Google Spar in Ninth Circuit Over 'Display' Provision of Copyright Act Search ILR's Intellectual Property database

INTERNET COMMERCE CAN-SPAM Act Bars Only Material Falsity, Preempts State Ban on Mere Errors in E-Mail The federal CAN-SPAM Act preempts an Oklahoma statute to the extent that it imposes civil liability for immaterial inaccuracies in e-mails, the U.S. Court of Appeals for the Fourth Circuit held Nov. 17. The 2003 Controlling the Assault of Non-Solicited Pornography and Marketing Act expressly preempts state and local laws regulating commercial e-mail, except to the extent that they prohibit "falsity or deception," 15 USC §7707(b)(1). The plaintiff recipient of unsolicited commercial e-mail argued that the Oklahoma law at issue fell within the exception because it barred falsity in e-mails. Omega World Travel, Inc. v. Mummagraphics, Inc., 2006 ILRWeb (P&F) 3035. Read more...

Other Internet Commerce news: Fed Publishes Regulation Clarifying Rules on Authorizing Electronic Fund Transfer Fees Lawyers Are Not Forbidden to Exploit Secrets Lurking in Metadata, ABA Says Microsoft Meets EC Deadline for Supplying Details to Make Its Products Interoperable EU Member States Must Coordinate, Cooperate to Fight Spam, Commission Urges Virtual Land Dispute in Second Life Subject to Arbitration, Says Linden Research U.N. Report Warns Digital Chasm Persists Between Rich, Poor, Especially for Broadband Internet-Based Sales Rise to 2.8% of All Retail Sales in Third Quarter Search ILR's Internet Commerce database

FREEDOM OF SPEECH Following Zeran, California High Court Says CDA Forbids Distributor Liability for Net Libel An individual who posted to an online newsgroup defamatory material she found elsewhere on the Internet enjoys federal immunity from a lawsuit seeking to hold her liable as a "distributor" of the alleged defamation, the California Supreme Court held Nov. 20. The court discussed at length the Fourth Circuit's holding in Zeran v. America Online, Inc., 1 ILR (P&F) 533, 129 F3d 327 (1997), ultimately adopting the federal court's conclusion that Congress intended to provide immunity to both "publishers" and subsequent "distributors" of allegedly defamatory online speech. Barrett v. Rosenthal, 2006 ILRWeb (P&F) 3037. Read more...

Other Freedom of Speech news: EU Commissioner Calls for Labeling of 'Obscene' Video, Computer Games Prisoner's E-Records Request Must Be Met Despite Computer Use Restriction, Court Says Section 230 Immunity Is Not Limitless; 'Publication' Must Be Essential to Claim Statutory Regulation of Lewd E-Mail Targeted at State's Children Permissible Search ILR's Freedom of Speech database

PRIVACY & SECURITY DOJ's Inspector General Launches Probe Into NSA Surveillance Program The Justice Department's inspector general told lawmakers Nov. 27 that he is investigating the Bush administration's warrantless surveillance program. DOJ Inspector General Glenn Fine said in a letter to House lawmakers that he had received official clearance from the White House to review the program. "After conducting initial inquiries into the program, we have decided to open a program review that will examine the department's controls and use of information related to the program and the department's compliance with legal requirements governing the program," Fine said. Read more...

Other Privacy & Security news: Specter Revises Bill to Ensure Judicial Review of NSA Program Survey Finds Firms Addressing Privacy, but Gaps in Information Security Still Exist As CALEA Compliance Deadline Looms, Telco Officials Urge 'Balanced' Cooperation Microsoft Seeks Injunction, Damages Over Celebrity Screensaver Installations Post to Agency Web Site Constitutes New Publication for Statute of Limitations Proposed Settlement Calls for Fine, Injunction on Promotion of Spyware New Legislation Will Make Phishers an Easier Catch, Says U.K. Government Survey Finds Management Action Lacking to Secure Corporate Mobile Data Devices Google, Yahoo! Ordered to Remove Models' Links to Argentine Porn Sites Search ILR's Privacy & Security database

TAXATION EU Finance Ministers Agree to Extend VAT Rules for Digital Download Purchases European Union finance ministers agreed Nov. 28 to extend for one year current value-added tax rules that ensure all digital downloads for goods purchased by EU citizens from companies in foreign countries, such as the United States, are assessed the proper sales levy. Conflicting political priorities among the 25 EU member states prevented a consensus in the Council of Economic and Finance Ministers on a range of other VAT proposals, including several to combat fraud estimated to cost EU member state governments as much as 250 billion euros ($330 billion) annually and a plan to revamp administrative procedures in order to simplify and reduce the costs of the EU sales tax system. Read more...

Other Taxation news: France Begins Debate on Update of Audiovisual Taxes to Include ISPs Multistate Benefit Exemption Found Not Applicable to Software Search ILR's Taxation database

JURISDICTION & PROCEDURE Potential Web Sales, E-Mail Bulletins Do Not Support Personal Jurisdiction Maintaining a web site capable of transacting minor sales and sending regular e-mail bulletins to out-of-state subscribers does not subject a resort operator to general jurisdiction in an injured guest's home state, the Illinois Appellate Court held Sept. 11. The plaintiffs, an Illinois family, sued the defendant Cascade Mountain ski resort for negligence in Illinois stemming from injuries sustained at the resort. Cascade, located in Wisconsin, moved to dismiss for lack of personal jurisdiction, but was denied. The denial was reversed on appeal, and the complaint dismissed. Rosier v. Cascade Mountain, Inc., 2006 ILRWeb (P&F) 2685. Read more... Search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY New United Kingdom Law Updates Cybercrime Offenses, Penalties New legislation that came into force Nov. 8 in the United Kingdom introduces harsher penalties for criminal computer misuse and broadens the category of computer misuse offenses to include "denial of service attacks," in which computer systems are disabled by being sent overloads of e-mails. While not specifically a cybercrime law, the Police and Justice Bill included provisions on the misuse of computers. The provisions amend and update the existing Computer Misuse Act 1990, in an attempt, the U.K. government's Home Office said, to keep the law current. Read more...

Other Criminal Liability news: OECD Seeks More Cooperation on Cyberfraud Former IT Director Hacked Into Network, Disclosed Personnel Plans, U.S. Charges Search ILR's Criminal Liability database

Latest Cases Al Minor & Associates, Inc. v. Martin, 2006 ILRWeb (P&F) 3041 [Ohio Ct App] (Customer list protected despite web availability) American Bar Association Formal Ethics Opinion No. 06-442 (Review and Use of Metadata), 2006 ILRWeb (P&F) 2519 [ABA Ethics Comm.] (Lawyers are not forbidden to exploit secrets lurking in metadata) Audi AG v. D'Amato, d/b/a Quattro Enthusiasts, 2006 ILRWeb (P&F) 3049 [6th Cir] (Use of the domain name "audisport.com" to sell goods and merchandise displaying Audi's name and trademarks constituted trademark infringement, dilution, and cybersquatting) Barrett v. Rosenthal, 2006 ILRWeb (P&F) 3037 [Cal Sup Ct] (Following Zeran, California high court says CDA forbids distributor liability for net libel) Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 2006 ILRWeb (P&F) 3025 [ND Ill] (CDA bars only suits that treat interactive computer service provider as "publisher" of third-party content) Designation as a Preexisting Subscription Service (Final Order), 2006 ILRWeb (P&F) 3003 [Copyright Office] (Register of Copyrights rules only Muzak, Music Choice, DMX are 'pre-existing subscription services') Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 ILRWeb (P&F) 2687 [ED Mich] (Spoliation of electronic evidence warrants sanction) Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (Final Rule), 2006 ILRWeb (P&F) 3045 [Copyright Office] (Cell phone locks exempted from DMCA, but backup DVDs, region coding are not) Faculty Rights Coalition v. Shahrokhi, 2006 ILRWeb (P&F) 3033 [5th Cir] (State university did not violate adjunct faculty member's First Amendment rights by restricting access to e-mail account) Fiber Systems International, Inc. v. Roehrs, 2006 ILRWeb (P&F) 3047 [5th Cir] (Civil claims for violations of §1030(a)(4) of the CFAA can be brought under §1030(g)) Gregerson v. Vilana Financial, Inc., 2006 ILRWeb (P&F) 3039 [D Minn] (Disclaimer embedded in metatags helps bolster claimed fair use of mark) Jackson v. Pollard, 2006 ILRWeb (P&F) 3031 [7th Cir] (Genuine issue of fact as to whether prison regulation prohibiting delivery of printed e-mails violates inmate's First Amendment rights) Mudd v. United States Army, 2006 ILRWeb (P&F) 3029 [MD Fla] (Post to agency web site constitutes new publication for statute of limitations) Omega World Travel, Inc. v. Mummagraphics, Inc., 2006 ILRWeb (P&F) 3035 [4th Cir] (CAN-SPAM Act bars only material falsity, preempts state ban on mere errors in e-mail) QSRSoft, Inc. v. Restaurant Technology, Inc., 2006 ILRWeb (P&F) 3021 [ND Ill] (Tight limits on use of software entitle program to trade secret protection) Rosier v. Cascade Mountain, Inc., 2006 ILRWeb (P&F) 2685 [Ill App Ct] (Potential web sales, e-mail bulletins do not support personal jurisdiction) Sample v. Bureau of Prisons, 2006 ILRWeb (P&F) 3023 [DC Cir] (Prisoner's e-records request must be met despite computer use restriction) Simmons v. State of Florida, 2006 ILRWeb (P&F) 3027 [Fla Sup Ct] (Florida statute that prohibits e-mail transmission of "harmful to minors" material is constitutional) Texas Comptroller Accession No. 200607783H, 2006 ILRWeb (P&F) 2295 [Tex Comp Pub Accts] (Multistate benefit exemption found not applicable to software) Washington, State of v. Lane (Consent Decree), 2006 ILRWeb (P&F) 3043 [Wash Super Ct] (Proposed settlement calls for fine, injunction on promotion of spyware) Williams-Sonoma, Inc. v. FriendFinder, Inc. (Order Denying Ex Parte Application for Temporary Restraining Order), 2006 ILRWeb (P&F) 3019 [ND Cal] (Trademark owner fails to establish irreparable harm to warrant entry of TRO against operators of sexually explicit web sites) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Bradburn v. North Central Regional Library District (Complaint), 2006 ILRWeb (P&F) 3012 [ED Wash] (Gun rights group sues library over censorship of gun web sites) Bragg v. Linden Research, Inc. (Motion of Defendants to Compel Arbitration), 2006 ILRWeb (P&F) 3022 [ED Pa] (Defendant says virtual land dispute subject to binding arbitration) Bragg v. Linden Research, Inc. (Notice of Removal), 2006 ILRWeb (P&F) 3024 [ED Pa] (Defendant seeks to remove virtual land dispute from Pennsylvania Court of Common Pleas to Eastern District of Pennsylvania on the basis of diversity) Comments of Public Citizen Litigation Group, American Civil Liberties Union, and New York Civil Liberties Union on the Proposed Amendments to Rules Governing Lawyer Advertising, 2006 ILRWeb (P&F) 3014 [NY Office Court Adm] (Three civil rights groups say that proposed amendments to rules governing lawyer advertising in New York would violate free speech and impose unprecedented restrictions on lawyers' Internet communications) Microsoft Corp. v. Taylor (Complaint), 2006 ILRWeb (P&F) 3010 [Wash Super Ct] (Microsoft seeks injunction, damages over celebrity screensaver installations) Paramount Pictures Corp. v. Load 'N Go Video, Inc. (Complaint), 2006 ILRWeb (P&F) 3018 [SD NY] (MPAA member companies sue a small business for loading DVDs onto personal media players on behalf of customers) UMG Recordings, Inc. v. MySpace, Inc. (Complaint), 2006 ILRWeb (P&F) 3016 [CD Cal] (Recording companies' complaint avers MySpace induces user infringement) Washington, State of v. Lane (Complaint), 2006 ILRWeb (P&F) 3020 [Wash Super Ct] (Complaint charges promotion of spyware) Williams-Sonoma, Inc. v. FriendFinder, Inc. (Complaint), 2006 ILRWeb (P&F) 2818 [ND Cal] (Trademark owner files claims for infringement and dilution against operators of sexually explicit web sites) Williams-Sonoma, Inc. v. FriendFinder, Inc. (Memorandum Supporting Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction), 2006 ILRWeb (P&F) 3008 [ND Cal] (Trademark owner seeks entry of TRO against operators of sexually explicit web sites) Search ILR's Pleadings database

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