Wednesday, January 24, 2007		ILR Home Page

Weekly Alert January 24, 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 Broadband Policy Summit III: Broadband Full Steam Ahead Subscription Information

Latest News INTELLECTUAL PROPERTY AHRA Does Not Immunize Broadcaster for Digital Media Player That Records Songs A distributor of digital audio recording devices enjoys no protection from copyright infringement liability under the Audio Home Recording Act where that distributor is primarily and simultaneously a broadcaster, the U.S. District Court for the Southern District of New York held Jan. 19. Where, as here, the allegedly infringing conduct arises not from the distribution of the media player but from the defendant's conduct as a private broadcaster, the AHRA offers no refuge from liability, the court held in case of first impression. Atlantic Recording Corp. v. XM Satellite Radio, Inc., 2007 ILRWeb (P&F) 1027. Read more...

Other Intellectual Property news: Webcaster Obtains Summary Judgment on Infringement Claim for Unauthorized Link Law Firm Fails to Gain Dismissal of Suit Contesting Use of Opponent's Mark in URL WIPO Members Fail to Advance Talks on Broadcast Treaty Courts Active on Cyberlaw Issues in 2006; Debate Was Mostly Continued, Not Decided CRS Report Documents IP Controversies Over Open Access to Federal Research Belgian Publishers Extend Copyright Dispute to Yahoo!'s Online News Services DMCA's False Notification Provision Gains Traction in Complaints, Case Law IFPI Threatens to Sue European ISPs for Not Doing More to Curb P2P Piracy Copyright Law Amendments Are Constitutional as Applied to Pre-1978 'Orphan' Works Search ILR's Intellectual Property database

INTERNET COMMERCE Proposals for 'Do Not E-Mail' Lists Introduced in South Carolina, New York Legislation calling for a "do not e-mail" list was introduced Jan. 17 in the South Carolina House of Representatives. H. 3280, which was referred to the Committee on Judiciary, would provide a way for state residents who do not wish to receive commercial e-mail messages at home with a means of preventing them. Similar legislation (A. 2520) was also introduced in New York on Jan. 17. Read more...

Other Internet Commerce news: New ITU Chief Says Organization Will Not Interfere in Governance Issues Suit Over Refusal to Release IP Address Time-Barred E-Mail Marketers Await Final FTC Rules Under CAN-SPAM; Legislation Seen as Unlikely French Courts to Hear Lawsuits Challenging Pre-Installation of MS Windows on New PCs ICANN Annual Report Promises More Transparency Search ILR's Internet Commerce database

FREEDOM OF SPEECH Arizona Court Adopts Cahill Rule for Subpoenas Seeking Poster's Identity A defamation plaintiff seeking the identity of an anonymous online speaker must assert a claim detailed enough to survive a motion for summary judgment before a court will compel disclosure of the speaker's identity, the Arizona Superior Court held Jan. 18. The court granted a defendant's motion to quash subpoena requests based on a finding that the plaintiff failed to meet the standard set out in Doe v. Cahill, 18 ILR (P&F) 652, 884 A2d 451 (2005). The Cahill court held that, for a court to compel disclosure of an anonymous speaker's identity through discovery, the plaintiff must plead facts sufficient to survive summary judgment, and must afford the speaker an opportunity to file an opposition. McMann v. Doe (Minute Entry), 2007 ILRWeb (P&F) 1037. Read more...

Other Freedom of Speech news: French Court Upholds Shop Stewards' Right to Communicate Via City-Run Intranet System Creator of Open Relay Server List Has CDA 'Good Samaritan' Defense to Legal Challenge Search ILR's Freedom of Speech database

TELECOMMUNICATIONS Key Spectrum Auction Spurs Hopes of Increased Broadband Competition Having focused on the needs of traditional wireline carriers last year, the Federal Communications Commission is turning its sights on the wireless industry. A long-anticipated auction of rare and valuable spectrum has both the commission and the National Telecommunications and Information Administration upbeat about the prospects of increased broadband access, which is a goal of the Bush administration. Read more...

Other Telecommunications news: Hearings, Oversight to Replace Major Communications Rewrite in 2007 Search ILR's Telecommunications database

PRIVACY & SECURITY Law Requiring Posting of Contractors' Kids Names Offends Constitutional Privacy Right Parents have a constitutionally protected privacy interest in their children's names and personal details that would prohibit, under most circumstances, a state from openly posting that information to the Web, the U.S. District Court for the District of Connecticut held Jan. 3. A Connecticut election reform statute, Conn. Gen. Stat. §9-333a et seq., required the disclosure of top-level state contractors' dependents, which the court said was not in and of itself problematic. The issue, as presented to the court, was with the statute's publication provision: Not only were the names and details collected, but they were posted to the state's Internet site with no limitations on access. Securities Industry and Financial Markets Association v. Garfield, 2007 ILRWeb (P&F) 1033. Read more...

Other Privacy & Security news: Bush Will Not Reauthorize NSA's Warrantless Surveillance, DOJ Says New Congressional Leaders to Reconsider Familiar Data Protection Proposals Congress Could Examine Wiretap Issues, but Legislative Plans Unclear Despite Criticism, DHS Cyber Czar Optimistic on Security Partnership with Industry Spyware Problems No Secret, but Lawmakers Hesitate to Impose Regulation Search ILR's Privacy & Security database

TAXATION Backers of Streamlined Sales Tax Legislation See Opportunities with Democratic Congress Democrats' control of Congress has presented new opportunities for approval of streamlined sales tax simplification legislation, a panel told the National Conference of State Legislatures task force on taxation of telecommunications and electronic commerce Jan. 19. "This opportunity is unique," said Maureen Riehl, vice president, government and industry relations counsel, with the National Retail Federation. "I don't expect this will be an easy ride for us." Ironically, the challenge for getting the legislation approved lies in the Senate rather than the House this session, Riehl said. Read more...

Other Taxation news: Montana Bill to Join Streamlined Sales Tax Compact Introduced, Sent to House Revenue Panel Search ILR's Taxation database

JURISDICTION & PROCEDURE Internet Presence, Actual Sales Satisfy General Jurisdiction in Trade Secrets Case A company that intentionally facilitates, through its web site, travel arrangements in and out of a state is subject to general jurisdiction in that state, the U.S. District Court for the Western District of Washington held Dec. 14. The court determined that a Florida travel company's Internet presence in Washington was a "substantial or continuous and systematic business activity" sufficient to subject the company to general jurisdiction in Washington. Expedia, Inc. v. Reservationsystem.com, Inc., 2006 ILRWeb (P&F) 3279. Read more... Search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY Individual Who Posed as AOL Billing Department Found Guilty in 'Phishing' Case A Los Angeles-area man was found guilty by a federal jury Jan. 12 of operating a sophisticated "phishing" scheme in which he sent thousands of e-mails that appeared to be from America Online's billing department, in order to gain AOL users' personal and credit card information, the acting U.S. Attorney in Los Angeles announced Jan. 16. The guilty verdicts against Jeffrey B. Goodin marked the first jury conviction under the CAN-SPAM Act of 2003, Acting U.S. Attorney George S. Cardona noted in a statement. Read more... Search ILR's Criminal Liability database

Latest Cases Anadarko Petroleum Corp. v. Davis, 2006 ILRWeb (P&F) 3285 [SD Tex] (No sanctions for spoliation where files were saved to thumb drive and deleted from hard drive) Atlantic Recording Corp. v. XM Satellite Radio, Inc., 2007 ILRWeb (P&F) 1027 [SD NY] (AHRA does not immunize broadcaster for digital media player that records songs) Elisabeth M. v. Ville de Lons-Le-Saunier, 2006 ILRWeb (P&F) 3283 [Tribunal Administratif de Besancon (France)] (French court upholds shop stewards' right to communicate via city-run intranet system) Expedia, Inc. v. Reservationsystem.com, Inc., 2006 ILRWeb (P&F) 3279 [WD Wash] (Internet presence, actual sales satisfy general jurisdiction in trade secrets case) Haywood Securities, Inc. v. Ehrlich, 2007 ILRWeb (P&F) 1023 [Ariz Sup Ct] (Judge's electronic signature formalizes written judgment) Kahle v. Gonzales, 2007 ILRWeb (P&F) 1035 [9th Cir] (Challenge to laws that extend copyright protection to "orphan works" properly dismissed) Kloian v. Domino's Pizza, L.L.C., 2006 ILRWeb (P&F) 3281 [Mich Ct App] (Settlement agreement brokered via e-mail is enforceable where attorneys' names appeared at the bottom of the e-mail message) Kremen v. American Registry For Internet Numbers, Ltd., 2006 ILRWeb (P&F) 3259 [ND Cal] (Suit over refusal to release IP address time-barred) Live Nation Motor Sports, Inc. v. Davis, 2007 ILRWeb (P&F) 1029 [ND Tex] (Webcaster obtains summary judgment on infringement claim for unauthorized link) McMann v. Doe (Minute Entry), 2007 ILRWeb (P&F) 1037 [Ariz Super Ct] (Plaintiff, failing to show that its claim would survive a Motion for Summary Judgment, is not entitled to discover the identity of an anonymous Internet poster through compulsory discovery process) Pallorium, Inc. v. Jared, 2007 ILRWeb (P&F) 1031 [Cal Ct App] (CDA immunity extends to developer of web-based spam filter) Securities Industry and Financial Markets Association v. Garfield, 2007 ILRWeb (P&F) 1033 [D Conn] (Law requiring posting of contractors' kids names offends constitutional privacy right) Software Publishers Association v. Scott & Scott, LLP, 2007 ILRWeb (P&F) 1021 [ND Tex] (Law firm fails to gain dismissal of suit contesting use of opponent's mark in URL) United States v. Hassoun, 2007 ILRWeb (P&F) 1025 [SD Fla] (No legitimate expectation of privacy in workplace computer) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Delfino v. Agilent Technologies, Inc. (Petition for Review), 2007 ILRWeb (P&F) 1006 [Cal Sup Ct] (Employers should not be treated as ISPs for purposes of CDA immunity) Rescuecom Corp. v. Google, Inc. (Brief for Plaintiff-Appellant), 2007 ILRWeb (P&F) 1004 [2d Cir] (Appeal challenging decision that sale of a trademark as a keyword search term is not an actionable trademark "use" within the meaning of the Lanham Act) Search ILR's Pleadings database

Latest Research from Pike & Fischer Broadband Business Analysis: The iPhone & Apple TV February 2007 The new Apple TV and forthcoming iPhone stand to have a revolutionary impact on the consumer electronics and communications industries. This report provides a concise, actionable analysis of the impact those products will have on the markets for consumer electronics, home networking services and mobile broadband services. Our SWOT analysis examines the role that these devices will play in the evolution of Apple Inc.'s highly popular iTunes store; and the competition they pose to cable operators, telcos, wireless service providers, and other CE vendors. 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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