Wednesday, January 10, 2007		ILR Home Page

Weekly Alert January 10, 2007 Proposed Directory of Internet Lawyers Latest News Intellectual Property Internet Commerce Telecommunications Privacy & Security Taxation Criminal Liability Latest Cases Latest Pleadings, Motions, & Briefs Latest Research from Pike & Fischer Broadband Policy Summit III: Broadband Full Steam Ahead Subscription Information

Proposed Directory of Internet Lawyers Since Pike & Fischer cannot offer legal advice to visitors who routinely send questions our way, we are exploring the possibility of referring visitors to a new web page displaying a directory of Internet lawyers. Before implementing this upgrade, we'd like to gauge your interest. Inclusion in the directory would be entirely voluntary. We would list attorneys' names and contact information by state, and provide links to law firm web sites. ILR subscribers would be entitled to a single listing free of charge. Additional listings and listings by non-subscribers would be subject to a small annual fee (less than $50). If you are interested in exploring this opportunity with us, please send an e-mail to Mark Smith (msmith@pf.com) with the subject line "ILR Attorney Directory."

Latest News INTELLECTUAL PROPERTY Coding Metatags, Buying Search Keywords with Competitor's Mark Is 'Use in Commerce' The purchase of search engine keywords incorporating a competitor's trademark is an actionable "use in commerce" of the mark, the U.S. District Court for the Eastern District of Pennsylvania held Jan. 4. Also, the use of trademarked terms in web site metatags—a popular strategy to create a higher search engine ranking for those terms—is likewise a use in commerce of the mark, the court said. However, Judge Thomas N. O'Neill Jr. rejected the doctrine of initial interest confusion in the search engine/metatag context, stating that the leading case in this area had "mischaracteriz[ed] . . . the operation of internet search engines" to reach its result. J.G. Wentworth, S.S.C. LP v. Settlement Funding LLC, 2007 ILRWeb (P&F) 1003. Read more...

Other Intellectual Property news: Amazon: IBM Trying to Erect Tollbooth on Web Recording Industry Drops Case Against Mom, Files Instead Against Downloading Children ACPA Bad Faith Not Satisfied by Mere Continued Use of Competing Domain Name Site That Sold Discount Vouchers Deemed Likely to Confuse Airline Travelers Search ILR's Intellectual Property database

INTERNET COMMERCE Ability to Use iTunes Without Buying iPod Does Not Preclude Tying Claim Against Apple A claim that Apple ties sales of its iPod portable media players to its iTunes download service is not defeated merely because a certain percentage of Apple's customers use one product but not the other, the U.S. District Court for the Northern District of California ruled Dec. 20. The court denied Apple's motion to dismiss an antitrust lawsuit brought by a consumer who alleged that Apple makes it nearly impossible for consumers to migrate away from the iTunes/iPod ecosystem once they have committed to the platform. Tucker v. Apple Computer, Inc., 2006 ILRWeb (P&F) 3257. Read more...

Other Internet Commerce news: CAN-SPAM Statutory Damages Deemed Penal; Failure to Mitigate No Bar to Damage Award Justices Let Stand Ruling That CAN-SPAM, TCPA Apply to Unsolicited SMS Messages ICANN Again Solicits Comment on .xxx Registry Search ILR's Internet Commerce database

TELECOMMUNICATIONS Dorgan, Snowe Reintroduce Bill to Require Internet Nondiscrimination Sens. Byron Dorgan (D-N.D.) and Olympia Snowe (R-Maine) Jan. 9 reintroduced their bill (S. 215) to require "net neutrality" or nondiscrimination by broadband network operators, an issue that stopped a major communications bill from advancing in the 109th Congress. The two senators first introduced their bill (S. 2917) in May 2006 and immediately received the backing of Sen. Daniel Inouye (D-Hawaii), who is now the chairman of the Senate Commerce, Science, and Transportation Committee. Read more...

Other Telecommunications news: Stevens Introduces Two Bills on First Day of 110th Congress Commission Denies Nine Waiver Petitions for Extension of Wireless E-911 Deadline Sen. Sununu Drafting Legislation to Ban FCC from Adopting Technology Mandates Search ILR's Telecommunications database

PRIVACY & SECURITY Economically Damaging Identity Theft No Basis for Constitutional Privacy Rights Claim Individuals do not have a constitutionally protected privacy interest in their social security numbers, the U.S. District Court for the Southern District of Ohio held Dec. 29. The court, after surveying U.S. Supreme Court precedent and the Sixth Circuit's decision in Kallstrom v. City of Columbus, concluded that the constitutional right to privacy protects only those interests deemed "fundamental or implicit in the concept of ordered liberty." A person's social security number, disclosure of which might cause only financial harms such as identity theft, is not constitutionally protected, the court said. Lambert v. Hartmann, 2006 ILRWeb (P&F) 3251. Read more...

Other Privacy & Security news: Michigan County Accounts Are Looted After Worker Reveals Data in Phishing Scam Bills to Ban E-Mail Harvesting, Unauthorized Spyware Distribution, Introduced in New York Panel to Consider Consolidating DOJ Suits Seeking Halt to State Demands for NSA Data New Year Brings Data Security Breach Notification Laws to Arizona, Hawaii, Utah Japan Set to Release Draft Guideline on ISP Disclosure of Personal Information ACLU Urges Congress to End Warrantless Surveillance by NSA French Data Protection Authority Warns ISP but Does Not Issue Fines After Data Breach Evidence Discovered During FISA Surveillance Admissible in Prosecution for Domestic Crime Search ILR's Privacy & Security database

TAXATION IRS Offers Guidance for Sellers Who Auction Goods on Internet The Internal Revenue Service, in a Jan. 3 electronic newsletter, referred to guidance posted on its web site on the tax responsibilities of online auction sellers. The online posting discussed the difference between online auction sellers, who are liquidating personal items that are the equivalent of a garage or yard sale, and those who are running a legitimate business selling items online. Read more...

Other Taxation news: Bill to Make Internet Tax Ban Permanent Offered by Sens. Wyden, McCain, Sununu Search ILR's Taxation database

CRIMINAL LIABILITY Passive Use of P2P File-Sharing Program to Make Child Porn Available Is 'Distribution' Someone who makes available child pornography stored on his personal computer for downloading by others via a peer-to-peer file-sharing program thereby "distributes" child pornography in violation of 18 USC §2252A(a)(2), the U.S. Court of Appeals for the Tenth Circuit ruled Jan. 3. The case is a novel one, as most prosecutions for distributing child pornography over the Internet tend to involve the use of active means of transmission such as e-mail. United States v. Shaffer, 2007 ILRWeb (P&F) 1001. Read more...

Other Criminal Liability news: Ninth Circuit Rules U.S. Has Broad Authority to Seize E-Files Mixed with Warrant's Target Search ILR's Criminal Liability database

Latest Cases Doe v. Bates, 2006 ILRWeb (P&F) 3245 [ED Tex] (CDA immunizes Yahoo! from civil liability arising from child porn e-group) J.G. Wentworth, S.S.C. LP v. Settlement Funding LLC, 2007 ILRWeb (P&F) 1003 [ED Pa] (Coding metatags, buying search keywords with competitor's mark is 'use in commerce') Kremen v. American Registry For Internet Numbers, Ltd., 2006 ILRWeb (P&F) 3259 [ND Cal] (Antitrust, conversion, and other claims against Internet registry are dismissed as time-barred) Lambert v. Hartmann, 2006 ILRWeb (P&F) 3251 [SD Ohio] (Economically damaging identity theft no basis for constitutional privacy rights claim) Northwest Airlines, Inc. v. Bauer, 2006 ILRWeb (P&F) 3249 [D ND] (Site that sold discount vouchers deemed likely to confuse airline travelers) Phillips v. Netblue, Inc., 2006 ILRWeb (P&F) 3241 [ND Cal] (CAN-SPAM statutory damages deemed penal; failure to mitigate no bar to damage award) Staff of the Public Service Commission of the State of Missouri v. Comcast IP Phone, LLC (Order Denying Motion to Dismiss), 2006 ILRWeb (P&F) 3255 [Mo PSC] (FCC's Vonage decision does not preempt state regulation over fixed VoIP service) Tucker v. Apple Computer, Inc., 2006 ILRWeb (P&F) 3257 [ND Cal] (Ability to use iTunes without buying iPod does not preclude tying claim against Apple) Ultimate Living International, Inc. v. Miracle Greens Supplements, Inc., 2007 ILRWeb (P&F) 1005 [ND Tex] (ACPA bad faith not satisfied by mere continued use of competing domain name) United States v. Abraham, 2006 ILRWeb (P&F) 2909 [WD Pa] (Downloading child porn via P2P system installed on defendant's computer constitutes knowing distribution in violation of 18 USC §2252) United States v. Carlson, 2006 ILRWeb (P&F) 3247 [3d Cir] (Sufficient evidence of CFAA violation where defendant sent thousands of e-mails using both direct and indirect attacks) United States v. Shaffer, 2007 ILRWeb (P&F) 1001 [10th Cir] (Storing images of child porn in shared P2P folder constitutes "distribution") United States v. Wen, 2006 ILRWeb (P&F) 3243 [7th Cir] (Evidence discovered during FISA surveillance admissible in prosecution for domestic crime) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Comcast IP Phone, LLC v. Missouri Public Service Commission (Verified Complaint), 2006 ILRWeb (P&F) 2822 [WD Mo] (VoIP provider seeks to enjoin PUC's exercise of jurisdiction) International Business Machines Corp. v. Amazon.com, Inc. (Answer and Counterclaims of Amazon.com, Inc. re: '542 and '891 Patents), 2006 ILRWeb (P&F) 3210 [ED Tex] (Amazon argues that IBM wants to improperly tax the Internet by asserting patents that purport to cover basic e-commerce technologies but are fatally defective) International Business Machines Corp. v. Amazon.com, Inc. (Answer and Counterclaims of Amazon.com, Inc. re: '771, '967, and '849 Patents), 2006 ILRWeb (P&F) 3212 [ED Tex] (Amazon argues that IBM wants to improperly tax the Internet by asserting patents that purport to cover basic e-commerce technologies but are fatally defective) Intertainer, Inc. v. Apple Computer, Inc. (Complaint), 2006 ILRWeb (P&F) 3218 [ED Tex] (Online movie distributor files patent infringement suit against Apple, Google, and Napster) Search ILR's Pleadings database

Latest Research from Pike & Fischer 2007 Broadband Business Outlook January 2007 This report offers up Pike & Fischer's projections for the coming year on developments in the broadband services market. It includes forecasts on subscriber growth for various services and qualitative analysis of the impact that new applications such as user-generated content, mobile video technology and IP telephony will have on the marketplace. Ten bar and pie charts are included. Order now

Broadband Policy Summit III: Broadband Full Steam Ahead June 7-8, 2007 - The Ritz Carlton, Arlington, VA Early bird registration ends April 17th P&F's premier event will tackle the tough questions plaguing lawmakers, regulators and business executives as they continue to sort through the thicket of outdated laws and definitions that govern the development of all communications services. In 2005, 200 of your industry peers joined us for this unique event. In 2006, over 220 people joined us for a rigorous debate of net neutrality, video franchise reform, and other hot issues. This year, we'll once again explore, explain and debate the complex issues facing the communications industry to provide you with a clear sense of what has happened and, more importantly, what's likely to happen in the telecommunications and broadband policy arenas. Register now

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