Wednesday, March 21, 2007		ILR Home Page

Weekly Alert March 21, 2007 Directory of Internet Lawyers Now Available Latest News Intellectual Property Internet Commerce Telecommunications Privacy & Security Taxation Criminal Liability Latest Cases Latest Pleadings, Motions, & Briefs Latest Research from Pike & Fischer Last Week to Register for UGC Audioconference Subscription Information

Directory of Internet Lawyers Now Available Pike & Fischer is pleased to announce the launch of a new feature on ILR: The Internet Law Attorney Directory! We've created this Directory to assist site visitors who frequently submit legal questions to ILR editors. Since Pike & Fischer cannot offer legal advice, we will refer inquiring parties to this exclusive listing of Internet law practitioners. Our Directory displays basic contact information with an optional link to your online biography. Care to join the Directory? ILR subscribers are entitled to one complimentary premium listing per account. Additional listings and listings by non-subscribers can be purchased for $49.99 (or $69.99 for a premium boldfaced listing). Use this form to submit your complimentary or paid listing today!

Latest News INTELLECTUAL PROPERTY Lack of 'Renderer' in Google 3-D Tool Steers Summary Judgment, Court Rules Google, Inc. is entitled to a summary judgment of no patent infringement because of the absence of a "renderer" in its Google Earth 3-D terrain software tool, the U.S. District Court for the District of Massachusetts ruled March 7. Granting Google's motion for a summary judgment of noninfringement, the court found that the "renderer" is "at the core" of the claimed system for streaming three-dimensional terrain data over a network and is absent in Google Earth. The plaintiff's "failure to identify some thing that performs the functions of the renderer" in Google Earth "is fatal" to its motion for summary judgment of infringement, the court stressed. Skyline Software Systems, Inc. v. Keyhole, Inc., 2007 ILRWeb (P&F) 1405. Read more...

Other Intellectual Property news: Printed Credit Line on Photo May Be 'Management Information' Under DMCA WIPO Says Domain Parking, Tasting Are Behind Uptick in Cybersquatting Disputes Search ILR's Intellectual Property database

INTERNET COMMERCE Advertiser Can Be Vicariously, Not Strictly Liable for Affiliates' CAN-SPAM Act Violations An advertiser can be held vicariously liable for a marketing partner's CAN-SPAM Act violations if the advertiser had the ability to control the actions of the partner and it knew, or should have known, that the partner was violating the law, the U.S. District Court for the District of Arizona held March 2. The government argued that, under a literal reading of the CAN-SPAM Act, a pornographic web site operator that hired affiliates to promote the site "initiate[d] . . . a commercial electronic mail message," 15 USC §7704(d), via arrangements with the affiliates. However, Judge David C. Bury said that this interpretation of the CAN-SPAM Act would impose strict liability for affiliates' violations, and he rejected that reading of the statute. United States v. Cyberheat, Inc., 2007 ILRWeb (P&F) 1413. Read more...

Other Internet Commerce news: User-Generated Content More Than a Fad Lost Profits, Trade Secrets Not Actionable as 'Loss' Under CFAA Absent Interruption Schwarzenegger Orders State Agencies to Coordinate Work on E-Health System Investigative Costs Satisfy CFAA's 'Loss' Requirement, Even If Database Unharmed French Make Good on Vow to Boost Effort Against Net Gambling, Advertising New Decrees in Vietnam Pave Way for Electronic Commerce Transactions Officials Urged to Balance Law Enforcement Concerns Against Digital Media's Benefits Banks, Already FFIEC-Compliant, Remain Vigilant on Online Authentication Issues ABA E-Commerce Law Experts Working on M&A Checklist, Business Blogging Guide Search ILR's Internet Commerce database

TELECOMMUNICATIONS Canadian Telecom Regulator Withdraws Plan for Alternative Cable Internet Access Tariffs Canada's federal telecommunications regulator on March 15 withdrew its proposal to require cable companies to develop alternative tariff structures for providing third-party Internet access services. The proposal was intended to enhance competitive entry by lowering competitor firms' up-front costs for providing Internet service to their retail customers. However, cable companies opposed the introduction of alternative payment plans for standard service connection charges and their position was not challenged by competitors, the Canadian Radio-television and Telecommunications Commission explained. Telecom Decision CRTC 2007-16 (Alternative Payment Plans for Standard Service Connection Charges for Third-Party Internet Access Service), 2007 ILRWeb (P&F) 1431. Read more...

Other Telecommunications news: House Democrats Grill FCC Chairman, Argue Need for More Oversight Hearings Search ILR's Telecommunications database

PRIVACY & SECURITY Google to Alter Data Retention Policy, Will Make User Search Data Nameless Internet search engine company Google will over the next few months begin to anonymize search data it retains in order to protect user privacy, the company announced March 14 in a posting on Google's official blog by Peter Fleischer, Google privacy counsel-Europe, and Nicole Wong, Google deputy general counsel. While the company will continue to retain user search log data in order to improve its services, the posting said, it "will make this data more anonymous, so that it can no longer be identified with individual users, after 18-24 months." However, Google said, it is possible that future data retention laws may require Google to retain data that can be linked to a specific user for longer periods of time. Read more...

Other Privacy & Security news: Cell Phone Call Logs May Be Protected Electronic 'Communications' Under SECTRA Judge Drops Case Against Former HP CEO Stemming from Pretexting, Spying Scandal House 'Spyware' Bill Could Harm Legitimate Advertising, Industry Says Swedish E-Communications Data Mining Bill Faces Tough Scrutiny Over Privacy Issues CMS Stops Web Posting of Public Comments Containing Personal Health Care Experiences Data Outsourcing Requires Clear Policies, Vigilant Oversight, Frequent Communication Maine Proposed Legislation Would Prohibit Use of Spyware Search ILR's Privacy & Security database

TAXATION IRS Denies Deduction for Income from Online Software Maintenance Plans The Internal Revenue Service March 19 said software companies will not be able to get the domestic manufacturing deduction for income from advertising or maintenance agreements associated with the online use of software. In unveiling final and temporary rules on the treatment of software under the tax code Section 199 deduction (T.D. 9317), IRS held firm to its view that companies are providing a service via online software—not selling a product to taxpayers in the sense intended by the law to qualify for the tax break. Computer Software Under Section 199(c)(5)(B) (Final and Temporary Regulations), 72 FR 12969. Read more...

Other Taxation news: Industry Group Seeking Tax Liability Relief When Rate Change Lacks Proper Notice North Dakota Governor Signs Bills Keeping State Compliant with SSUTA Search ILR's Taxation database

CRIMINAL LIABILITY Hacking Into Not-For-Profit's Network Violated Federal Computer Abuse Law Prosecuting a hacker under the federal Computer Fraud and Abuse Act for attacking a not-for-profit organization's computer system that is connected to the Internet and used to communicate with out-of-state computers is not an unconstitutional extension of Congress's commerce clause power to regulate interstate commerce, the U.S. Court of Appeals for the Eighth Circuit held Feb. 23. It is the use of a computer in interstate commerce, not the nature of the entity that uses it, that determines whether the federal government may protect it, the court said. United States v. Trotter, 2007 ILRWeb (P&F) 1261. Read more...

Other Criminal Liability news: Canadian Privacy Commissioner Supports Criminalizing Spam, Identity Theft, Pretexting Porn E-Mails Receipt Provides Basis for Warrant Search ILR's Criminal Liability database

Latest Cases L-3 Communications Westwood Corp. v. Robicharux, 2007 ILRWeb (P&F) 1425 [ED La] (Lost profits, trade secrets not actionable as 'loss' under CFAA absent interruption) McClatchey v. Associated Press, 2007 ILRWeb (P&F) 1433 [WD Pa] (Printed credit line on photo may be 'management information' under DMCA) McEwen v. Sourceresources.com, 2007 ILRWeb (P&F) 1293 [SD Tex] (Cell phone call logs may be protected electronic 'communications' under SECTRA) Napster, Inc. Copyright Litigation, In re, 2007 ILRWeb (P&F) 1427 [9th Cir] (District court in Napster litigation erred in ordering disclosure of privileged attorney-client communications under the crime-fraud exception) Packeteer, Inc. v. Valencia Systems, Inc., 2007 ILRWeb (P&F) 1437 [ND Cal] (Copyright and DMCA claims are properly subject to arbitration) Payday Advance Plus, Inc. v. Findwhat.com, Inc., 2007 ILRWeb (P&F) 1435 [SD NY] (Breach of contract claim based on allegations of click fraud withstands motion to dismiss) P.C. of Yonkers, Inc. v. Celebrations! The Party and Seasonal Superstore, L.L.C., 2007 ILRWeb (P&F) 1429 [D NJ] (Investigative costs satisfy CFAA's 'loss' requirement, even if database unharmed) Philip Morris USA, Inc. v. Veles Ltd., 2007 ILRWeb (P&F) 1439 [SD NY] (Service of process via fax and e-mail against online seller of gray market goods OK; jurisdiction proper; Lanham Act claims sufficient) Skyline Software Systems, Inc. v. Keyhole, Inc., 2007 ILRWeb (P&F) 1405 [D Mass] (Google is entitled to a summary judgment of no patent infringement because of the absence of a "renderer" in its Google Earth 3-D terrain software tool) Telecom Decision CRTC 2007-16 (Alternative Payment Plans for Standard Service Connection Charges for Third-Party Internet Access Service), 2007 ILRWeb (P&F) 1431 [CRTC] (Canadian telecom regulator withdraws plan for alternative cable Internet access tariffs) United States v. Cyberheat, Inc., 2007 ILRWeb (P&F) 1413 [D Ariz] (Advertiser can be vicariously, not strictly liable for affiliates' CAN-SPAM Act violations) United States v. Kelley, 2007 ILRWeb (P&F) 1411 [9th Cir] (Porn e-mails receipt provides basis for warrant) United States v. Trotter, 2007 ILRWeb (P&F) 1261 [8th Cir] (Hacking into not-for-profit's network violated federal computer abuse law) Search ILR's Cases database

Latest Pleadings, Motions, & Briefs Humane Society of the United States v. Amazon.com, Inc. (Complaint), 2007 ILRWeb (P&F) 1228 [DC Super Ct] (Humane Society seeks to enjoin sale of dogfighting and cockfighting videos and related publications on Amazon.com) Rescuecom Corp. v. Google, Inc. (Amici Curiae Brief for Yahoo! Inc., et al.), 2007 ILRWeb (P&F) 1232 [2d Cir] (Brief seeking affirmation of keyword search term decision; use of trademark as search engine keyword not a trademark "use") Rescuecom Corp. v. Google, Inc. (Amicus Curiae Brief for Public Citizen), 2007 ILRWeb (P&F) 1230 [2d Cir] (Brief seeking affirmation of keyword search term decision; practice of keyword advertising does not create likely confusion as a matter of law) Rescuecom Corp. v. Google, Inc. (Reply Brief for Plaintiff-Appellant), 2007 ILRWeb (P&F) 1404 [2d Cir] (Brief seeking reversal of keyword search term decision) United States v. American Society of Composers, Authors and Publishers (Brief Amicus Curiae of the Digital Media Association, et al.), 2007 ILRWeb (P&F) 1226 [SD NY] (Mere downloading of a file containing a musical work does not implicate the public performance right) Search ILR's Pleadings database

Latest Research from Pike & Fischer User-Generated Video on the Web: A Taxonomy and Market Outlook March 2007 The proliferation of user-generated online video has had a significant impact on Internet marketing methods, business models and copyright law. This report provides a snapshot of the current players in the user-generated video market and examines them on the basis of their respective content type, ownership and business model. We examine how various social media Web sites are differentiating their content and features. The analysis supports Pike & Fischer's conclusion that the market for user-generated content is approaching the glut stage and will undergo significant consolidation within the next three years. Order now

Last Week to Register for UGC Audioconference The New, New Media Revolution: User Generated Content March 29, 2007 - 2:00-3:30 p.m. ET Pike & Fischer's interactive audioconference on User Generated Content takes place next week! Invite your colleagues to take part in this informative audio event. Join Wilson Sonsini's Gerry Stegmaier, MPAA's Fritz Attaway, DivX's Lee Milstein, Stanford's Colette Vogele, and Pike & Fischer's Tim Deal as they discuss legal challenges facing rights holders and users in the new, new media environment. Learn more

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