Wednesday, December 13, 2006		ILR Home Page

Weekly Alert December 13, 2006 Latest News Intellectual Property Internet Commerce Freedom of Speech Telecommunications Privacy & Security Taxation Jurisdiction & Procedure Criminal Liability Latest Cases Latest Pleadings, Motions, & Briefs Latest Research from Pike & Fischer Pike & Fischer Holiday Sale Subscription Information

Latest News INTELLECTUAL PROPERTY KaZaA's Automatic Sharing Feature Duped Members to Infringe, P2P User Alleges Sharman Networks deceived users about the operation of its KaZaA file-sharing software by failing to disclose to users that the program automatically shared the host computer's entertainment files with others, according to an amended complaint filed Dec. 8 in the U.S. District Court for the Northern District of Illinois. Catherine Lewan, a former KaZaA user who was sued by the recording industry for infringement, filed the class action lawsuit against the distributors of KaZaA for fraudulent misrepresentation, deceptive trade practices, negligence, and unjust enrichment. Lewan v. Sharman Networks Ltd. (Amended Complaint), 2006 ILRWeb (P&F) 3206. Read more...

Other Intellectual Property news: Mark Owner Turns UDRP Loss Into $300,000 Gain When Registrant Defaults in ACPA Case TracFone Wireless Challenges Software Exemption Under DCMA User Detection Feature Not Deemed TPM for Purposes of Triggering DMCA Copyright Owner Presses Infringement Case Against Credit Card Companies in Ninth Circuit Australian Copyright Bill Passed; Protection Measure Linkage Not Required 'Gowers Report' Proposes Format-Shifting Exception Roundtable on Copyright Exceptions for Libraries, Archives Set for Jan. 31 Search ILR's Intellectual Property database

INTERNET COMMERCE Congress Approves Bill Giving FTC New Tools Against Internet Scammers Congress has approved legislation designed to provide the Federal Trade Commission with greater flexibility to work with foreign law enforcers in tracking down Internet scammers, such as purveyors of spam and spyware. The "Undertaking Spam, Spyware, And Fraud Enforcement With Enforcers beyond Borders Act" (S. 1608), which now awaits President Bush's signature, makes a variety of amendments to the FTC Act aimed at providing the commission with the legal authority to assist in overseas investigations. The measure, also known as the "U.S. SAFE WEB Act," authorizes the FTC to share information with foreign agencies that treat consumer fraud and deception as a criminal law enforcement issue. Read more...

Other Internet Commerce news: Issues of Source Code Ownership Hinge on Interpretation of Contract, Not Copyright Music Site Hit with FTC Complaint, 'Badware' Label Search ILR's Internet Commerce database

FREEDOM OF SPEECH Single Publication Rule Applied to Web Libel; Slight, Unrelated Changes Do Not Toll Statute The statute of limitations for online libel begins on the date the allegedly defamatory statement was first published to the Web, the U.S. District Court for the District of North Dakota held Nov. 28, following the "single publication" rule. The court acknowledged that modifications to the defendant's web site could create a new publication of the original alleged libel for statute of limitations purposes; however, it said, the modifications that occurred here were modest and unrelated to the defendant's allegedly defamatory material. Atkinson v. McLaughlin, 2006 ILRWeb (P&F) 3093. Read more... Search ILR's Freedom of Speech database

TELECOMMUNICATIONS Senate Passes 'Pretexting' Bill; Measure Awaits Bush's Signature Individuals could be fined or imprisoned for fraudulently obtaining telephone records, under a bill approved by the Senate during the final hours of the 109th Congress. The measure (H.R. 4709), which now awaits President Bush's signature, targets a practice known as "pretexting," where someone calls a phone company impersonating a customer and attempts to obtain personal phone records without the consumer's knowledge or permission. "The practice of fraudulently obtaining a customer's phone records and selling them over the Internet is wrong and must be stopped," said Senate Majority Leader Bill Frist. Read more...

Other Telecommunications news: Barriers to Video Competition Exist, FCC Authorized to Act, Martin Says Panelists Debate VoIP Regulation, Close Link to Net Neutrality Dispute Liability Protections for VoIP Providers Hanging Up Pending Pretexting Legislation FTC Sets Workshop on Network Neutrality Issues Search ILR's Telecommunications database

PRIVACY & SECURITY ISP Customer Accused of Hacking Has Minimal Privacy Interest in Account Info An as-yet-unknown Internet user accused of violating federal protections against unauthorized use of e-mail accounts has only a "minimal" right of privacy in her account information, the U.S. District Court for the Eastern District of New York held Nov. 30 in a memorandum opinion and order. In this case, an e-mail system belonging to the plaintiff, a church, was accessed without authorization on several occasions by an unknown individual. The intruder accessed stored e-mail messages and used a church staff member's e-mail account to send messages purporting to terminate other members of the staff. General Board of Global Ministries of the United Methodist Church v. Cablevision Lightpath, Inc., 2006 ILRWeb (P&F) 3089. Read more...

Other Privacy & Security news: Privacy Board Unlikely to Publicize Views on Warrantless Wiretaps, Vice Chair Says German Court Faults Web Privacy Policy for Silence on Likely Uses of Collected Data Consumers Know Online Privacy Measures, but Lax in Taking Precautions, Survey Finds Facebook CPO Details Privacy Protections on Network Used by Millions of Students Public Ambivalent About E-Health Records, and Few Are Demanding Them, Speakers Say Paper Discusses Web Security for Smaller Businesses Search ILR's Privacy & Security database

TAXATION South Carolina DOR Says Internet Access Not Taxable, but Web Site Access and VoIP Taxable The South Carolina Department of Revenue issued Revenue Ruling No. 06-8 Nov. 16 to summarize department policy on the sales and use taxation of communications services. Although South Carolina generally taxes communications services, the department will not impose tax on Internet access charges unless both the federal moratorium, which is set to expire Nov. 1, 2007, expires, and South Carolina enacts legislation or adopts rules authorizing such tax, the ruling explained. South Carolina Department of Revenue Ruling No. 06-8, 2006 ILRWeb (P&F) 3079. Read more...

Other Taxation news: SSUTA Governing Board to Meet in Seattle; Multiple Points of Use to Highlight Agenda Search ILR's Taxation database

JURISDICTION & PROCEDURE AOL Invokes Forum Selection Clause in Bid to Transfer Data Disclosure Case A federal class action lawsuit brought by members of AOL, Inc. for alleged privacy violations involving the Internet service provider's disclosure of anonymized search data cannot be brought in California, AOL argued in a motion to dismiss filed Nov. 20 in the U.S. District Court for the Northern District of California. AOL seeks to dismiss the action or, in the alternative, to transfer the case to Virginia. In its motion, AOL asserted that the forum selection clause in the AOL Member Agreement requires that any disputes between members and AOL be adjudicated in Virginia. Doe v. AOL LLC (Defendant's Motion to Dismiss or, in the Alternative, to Transfer), 2006 ILRWeb (P&F) 3034. Read more... Search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY Ignorance of Child Porn Cache Files Nixes Sentence A defendant who is ignorant of the function and accessibility of computer cache files cannot be deemed to have "possessed" images contained in such files on his computer for purposes of U.S. Sentencing Guidelines provisions that authorize escalating penalties depending upon the number of images of child pornography a defendant possessed, the U.S. Court of Appeals for the Ninth Circuit held Nov. 27. United States v. Kuchinski, 2006 ILRWeb (P&F) 3071. Read more... Search ILR's Criminal Liability database

Latest Cases Angela Adams Licensing, LLC v. Dynamic Rugs, Inc., 2006 ILRWeb (P&F) 3087 [D Me] (Internet marketing of rugs that allegedly infringe copyrighted designs, including a web listing of retailers located in the forum, satisfies specific jurisdiction) Atkinson v. McLaughlin, 2006 ILRWeb (P&F) 3093 [D ND] (Single publication rule applies to defamation actions that arise out of Internet publications; minor, non-substantive modifications do not result in republication) Auto Inspection Services, Inc. v. Flint Auto Auction, Inc., 2006 ILRWeb (P&F) 3201 [ED Mich] (User detection feature not deemed TPM for purposes of triggering DMCA) BioCryst Pharmaceuticals, Inc. v. Namecheap.com, 2006 ILRWeb (P&F) 3077 [CD Cal] (Mark owner turns UDRP loss into $300,000 gain when registrant defaults in ACPA case) Estate Examinations Co. v. ECG Enterprises, Inc., 2006 ILRWeb (P&F) 3075 [ED NY] (Issues of source code ownership hinge on interpretation of contract, not copyright) General Board of Global Ministries of the United Methodist Church v. Cablevision Lightpath, Inc., 2006 ILRWeb (P&F) 3089 [ED NY] (ISP directed to disclose identity of individual who had accessed employee e-mail account; no reasonable expectation of privacy in the alleged tortious conduct) German Collection of Personal Information Case [party names withheld by law], 2006 ILRWeb (P&F) 2905 [LG Bonn (Germany)] (German court faults web privacy policy for silence on likely uses of collected data) Hutchens v. Hutchens-Collins, 2006 ILRWeb (P&F) 3083 [D Ore] (Web site documents properly authenticated; information freely accessible from Internet not subject to requirements of FRCP 34) ResQNet.com, Inc. v. Lansa, Inc., 2006 ILRWeb (P&F) 3085 [SD NY] (In an infringement action, defendant fails to prove inequitable conduct in plaintiff's prosecution of a patent relating to screen recognition and terminal emulation-processes) SCO Group, Inc. v. International Business Machines Corp., 2006 ILRWeb (P&F) 3081 [D Utah] (Magistrate's order granting IBM's motion to limit the evidence that SCO could use to prove its claims is affirmed) South Carolina Department of Revenue Ruling No. 06-8, 2006 ILRWeb (P&F) 3079 [SC Dep't Rev] (South Carolina DOR says Internet access not taxable, but web site access and VoIP taxable) United States v. Kuchinski, 2006 ILRWeb (P&F) 3071 [9th Cir] (Child porn images automatically saved to cache should not be counted for sentencing purposes) United States v. Tomero, 2006 ILRWeb (P&F) 3091 [SD NY] (Conversations intercepted by "roving bugs" installed in cellular telephones will not be suppressed) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Doe v. AOL LLC (Defendant's Motion to Dismiss or, in the Alternative, to Transfer), 2006 ILRWeb (P&F) 3034 [ND Cal] (AOL invokes forum selection clause in bid to transfer data disclosure case) FastMP3Search.com.ar, In re (Complaint), 2006 ILRWeb (P&F) 3202 [FTC] (Music site hit with FTC complaint, 'badware' label) Lewan v. Sharman Networks Ltd. (Complaint), 2006 ILRWeb (P&F) 3200 [ND Ill] (Class action against Kazaa on behalf of P2P users who have been sued by RIAA) Lewan v. Sharman Networks Ltd. (Amended Complaint), 2006 ILRWeb (P&F) 3206 [ND Ill] (Amended class action complaint against Kazaa, clarifying that the class includes all Kazaa users who have incurred litigation costs, not just those who have settled suits with the RIAA) TracFone Wireless, Inc. v. Billington (Complaint), 2006 ILRWeb (P&F) 3204 [SD Fla] (TracFone Wireless challenges software exemption under DMCA) Search ILR's Pleadings database

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