Wednesday, January 3, 2007		ILR Home Page

Weekly Alert January 3, 2007 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 Ends Jan. 31 Subscription Information

Latest News INTELLECTUAL PROPERTY Australian Court Upholds Secondary Liability Finding Against Host of Infringing Music Site An Australian appellate court Dec. 18 unanimously held that an Australian Internet service provider was liable for copyright infringement by hosting a web site that provided access to copyrighted sound recordings via hyperlinks. The court also upheld an earlier ruling that the owner of the web site, Stephen Cooper, and a director of the ISP, Liam Francis Bal, were liable for creating the hyperlinks that led users to unauthorized copies of sound recordings available elsewhere on the Internet. Cooper v. Universal Music Australia Pty Ltd., 2006 ILRWeb (P&F) 3215. Read more...

Other Intellectual Property news: Use of Mark in Google Adwords Helps Support TRO on Lanham Act Claim EC Delays Recommendation on Reform of Copyright Levy Roundtable Scheduled to Discuss WIPO Treaty on Broadcasters' Rights Making Available Equated to Distribution in P2P Case Audit of Beethoven.com Music Service Will Be Expanded to Cover 2005 Cybersquatting Damages Award Is Not Dischargeable in Bankruptcy Search ILR's Intellectual Property database

INTERNET COMMERCE Sony BMG Agrees to Settle Lawsuits in California, Texas on Anti-Copying Software Sony BMG Music Entertainment has agreed to pay civil penalties and customer refunds as part of settlement of a lawsuit brought by California authorities that alleged the company left computers vulnerable to hackers when it secretly placed software aimed at restricting customers' ability to copy music on millions of CDs, California Attorney General Bill Lockyer announced Dec. 19. Texas Attorney General Greg Abbott Dec. 19 also announced a similar agreed final judgment with Sony BMG that the state said provides restitution to consumers and nationwide consumer protections. People of California v. Sony BMG Music Entertainment (Final Judgment and Permanent Injunction), 2006 ILRWeb (P&F) 3231; State of Texas v. Sony BMG Music Entertainment (Agreed Final Judgment and Permanent Injunction), 2006 ILRWeb (P&F) 3229. Read more...

Other Internet Commerce news: AOL to Pay $1.3 Million to Settle Florida AG Probe of Billing Complaints 'Grabbing' Common Domains to Divert Web Business Unfair Competition in Germany Internet Yellow Pages Tagged with $2 Million Damages for Deceptive Marketing Practices European Commission Pushes for Stronger Government Effort to Curb Unwanted E-Mail Search ILR's Internet Commerce database

FREEDOM OF SPEECH Diet Claims on Commercial Web Site Constitute Opinion, Are Protected Speech Diet advice and recommendations appearing on a commercial web site are not themselves commercial speech and enjoy First Amendment protections against a disappointed dieter's negligent misrepresentation claims, the U.S. District Court for the Southern District of New York held Dec. 11. The court acknowledged that the First Amendment protects statements of opinion regardless of their truthfulness or accuracy, so long as their motivation is not commercial. The court evaluated statements made on a web site on a claim-by-claim basis, concluding that a web site can have a major commercial component, but still contain protected opinion-based speech. Gorran v. Atkins Nutritionals, Inc., 2006 ILRWeb (P&F) 3213. Read more...

Other Freedom of Speech news: European Parliament Recommends Strengthening Right of Reply in Online Media Search ILR's Freedom of Speech database

TELECOMMUNICATIONS Net Neutrality Concession by AT&T Sets Key Precedent, Proponents Argue AT&T won approval Dec. 29 from the Federal Communications Commission to merge with BellSouth, but not before making a controversial concession to adhere to strong net neutrality requirements for the next two years—a key precedent that consumer advocates will be pointing out to the new Congress. "The two-year term of the agreement should give policymakers in Congress and the FCC enough time to come up with a permanent net neutrality policy that reflects the significant agreements AT&T has set out," commented Gigi Sohn, founder and president of Public Knowledge, a public interest advocacy organization. Read more...

Other Telecommunications news: Martin: AT&T Forced to Accept Unnecessary Conditions to Win Merger OK D.C. Circuit Affirms 120-Day VoIP E911 Deadline FCC Approves New Video Rules Over Local, Democratic Opposition European Parliament Updates TV Directive to Address Next-Generation Video Services Search ILR's Telecommunications database

PRIVACY & SECURITY German Data Privacy Law Prevents Private Plaintiff from Learning Identity of Anonymous Poster Germany's data privacy law does not permit an Internet service provider to reveal to anyone but law enforcement the IP addresses associated with an anonymous poster, the Kammergericht Berlin (Berlin Superior Court) ruled Sept. 25 in a decision released in early December. In the case, a woman filed suit against an Internet service provider because a third party had placed naked pictures of her on the Internet, using the company's servers. German Data Privacy Case [party names withheld by law], 2006 ILRWeb (P&F) 2689. Read more...

Other Privacy & Security news: Leahy Says Privacy Will Be Key Focus for Senate Judiciary in New Congress Search ILR's Privacy & Security database

TAXATION Baltimore Moves to Subject VoIP Service to Municipal Telecommunications Excise Tax The city of Baltimore urged in a court action filed Dec. 15 that Voice over Internet Protocol communications provider Vonage America, Inc. should be subject to the city's telecommunications excise tax. City officials alleged that Vonage is an entity that "leases, licenses, or sells a telecommunications line" to city residents, and is therefore subject to local tax under Baltimore City Code Article 28, Section 25-2. Mayor & City Council of Baltimore v. Vonage America, Inc. (Complaint & Request for Declaratory Judgment), 2006 ILRWeb (P&F) 3216. Read more... Search ILR's Taxation database

JURISDICTION & PROCEDURE Datamining Bots on Airline Site Supply Minimum Contacts in Tortious Use Dispute A competitor's use of an automated search script to repeatedly query the plaintiff's web site supplied the purposeful availment and minimum contacts necessary, for due process purposes, to support the assertion of jurisdiction over the out-of-state competitor, the Texas Court of Appeals, Second District, held Dec. 14. The court said that intentionally "scraping" or "probing" plaintiff American Airlines, Inc.'s web site to harvest fares for potential customers violated the web site's user agreement, and that repeated access hindered the airline's ability to effectively engage in business. TravelJungle v. American Airlines, Inc., 2006 ILRWeb (P&F) 3239. Read more...

Other Jurisdiction & Procedure news: Plaintiff in Product Liability Action Cannot Use Passive Site to Reach Sales Rep Search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY Developer of P2P Software Deemed Criminally Liable for Copyright Infringement The developer of the Winny file-sharing program must pay a 1.5 million yen (~$13,000) criminal penalty for designing software that enabled copyright infringement, the district court in Kyoto, Japan, ruled Dec. 13. The court held that the developer, Isamu Kaneko, a former Tokyo University research associate, had violated the "public transmission right" of copyright owners by distributing a program that assisted users to infringe movies, video games, and other software. It was the first time in Japan that a developer of file-sharing software has been accused of criminal copyright infringement. Kaneko immediately appealed to the Osaka High Court. Read more...

Other Criminal Liability news: Computer Worker Faces Federal Indictment for Attempted Attack on Medco's Servers Search ILR's Criminal Liability database

Latest Cases Arista Records LLC v. Greubel, 2006 ILRWeb (P&F) 2617 [ND Tex] (Making available a list of copyrighted sound recordings in a shared folder accessible by other members of a P2P network equated to distribution) Auscape International v. National Geographic Society, 2006 ILRWeb (P&F) 3109 [SD NY] (Freelancers' state law claims arising from electronic compilation of National Geographic magazines dismissed) California, People of v. Sony BMG Music Entertainment (Final Judgment and Permanent Injunction), 2006 ILRWeb (P&F) 3231 [Cal Super Ct] (Sony BMG agrees to settle lawsuit in California on anti-copying software) California, People of v. YP Corp. (Agreed Final Judgment), 2006 ILRWeb (P&F) 3235 [Cal Super Ct] (Internet Yellow Pages tagged with $2 million damages for deceptive marketing practices) Cooper v. Universal Music Australia Pty Ltd., 2006 ILRWeb (P&F) 3215 [Fed Ct Austl] (Australian court upholds secondary liability finding against host of infringing music site) German Data Privacy Case [party names withheld by law], 2006 ILRWeb (P&F) 2689 [Kammergericht Berlin (Germany)] (German data privacy law prevents private plaintiff from learning identity of anonymous poster) Gorran v. Atkins Nutritionals, Inc., 2006 ILRWeb (P&F) 3213 [SD NY] (Diet claims on commercial web site constitute opinion, are protected speech) In the Investigation of AOL LLC (Assurance of Voluntary Compliance), 2006 ILRWeb (P&F) 3237 [Fla Att'y Gen] (AOL to pay $1.3 million to settle Florida AG probe of billing complaints) International Profit Associates, Inc. v. Paisola, 2006 ILRWeb (P&F) 3105 [ND Ill] (Use of mark in Google Adwords helps support TRO on Lanham Act claim) Matthews v. Brookstone Stores, Inc., 2006 ILRWeb (P&F) 3233 [SD Ala] (Plaintiff in product liability action cannot use passive site to reach sales rep) Nuvio Corp. v. Federal Communications Commission, 2006 ILRWeb (P&F) 3225 [DC Cir] (D.C. Circuit affirms 120-day VoIP E911 deadline) Roberts v. Legendary Marine Sales, 2006 ILRWeb (P&F) 3227 [Mass Sup Jud Ct] (Online ad on third party web site insufficient to confer jurisdiction over seller) Texas, State of v. Sony BMG Music Entertainment (Agreed Final Judgment and Permanent Injunction), 2006 ILRWeb (P&F) 3229 [Tex Dist Ct] (Sony BMG agrees to settle lawsuit in Texas on anti-copying software) TravelJungle v. American Airlines Inc., 2006 ILRWeb (P&F) 3239 [Tex Ct App] (Datamining bots on airline site supply minimum contacts in tortious use dispute) William S. v. Lassen County, 2006 ILRWeb (P&F) 3107 [ED Cal] (No reasonable expectation of privacy in a document posted to Internet where it had already been made available to the public) Wright, In re (Choice Hotels International, Inc. v. Wright), 2006 ILRWeb (P&F) 2907 [CD Cal Bankr] (Cybersquatting damages award is not dischargeable in bankruptcy) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Arista Records LLC v. Lime Group LLC (Memorandum in Support of Plaintiffs/Counterclaim Defendants' Motion to Dismiss First Amended Counterclaims), 2006 ILRWeb (P&F) 3214 [SD NY] (RIAA moves to dismiss antitrust counterclaims) Mayor & City Council of Baltimore v. Vonage America, Inc. (Complaint & Request for Declaratory Judgment), 2006 ILRWeb (P&F) 3216 [Md Cir Ct, Baltimore City] (Baltimore moves to subject VoIP service to municipal telecommunications excise tax) Ray v. Microsoft Corp. (Class Action Complaint), 2006 ILRWeb (P&F) 3036 [WD Wash] (Class action by Xbox 360 users who experienced hardware malfunctions after downloading an Xbox 360 update) Search ILR's Pleadings database

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Pike & Fischer Holiday Sale Ends Jan. 31 Pike & Fischer's Holiday Sale continues through January 31. Save on some of our best-selling books, market research, and desktop references. Titles include: Accessibility in Cyberspace Audio Conference CD Data Protection and Privacy Audio Conference CD Emerging Law of Search Engines Audio Conference CD Digital Millennium Copyright Act: Text, History, and Caselaw Digital Millennium Copyright Act 2005 Supplement Browse Pike & Fischer's web site for additional titles.

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