Latest News 
 
INTELLECTUAL PROPERTY
 
Copyright Owners Increasingly Playing Both Offense, Defense in Online Infringement War 
 
The growing demand for copyrighted content online and the increasing technological capabilities of Internet-savvy users has created an environment where traditional copyright enforcement may not be adequate to stem rampant piracy online, copyright owners and their lawyers said Sept. 17.  A better approach, they said, combines the defense of the law with other offensive tactics.  David Green, vice president of public policy development at NBC Universal, and Brian McNamara, a partner at Foley & Lardner in Washington, D.C., suggested that providing alternative content sources or developing pro-owner licensing schemes would complement the existing legal framework by enforcing owner rights without alienating users.  Subscribers read more ...

Other Intellectual Property news: 
 
·  Wait-and-See Approach Urged Best for Copyright Law Revisions in Web 2.0
·  Citizens' Groups, Others Sue USTR Seeking Public Disclosure of Counterfeiting Treaty
·  Bill Allowing DOJ to Bring Civil Actions Against IP Violators Clears Senate Panel
·  USTR Official Cites Confidentiality 'Understandings' in ACTA Negotiations
·  WIPO Members Confirm Appointment of Australia's Gurry as Head of UN Group
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
Express Warranties at Time of Sale Trump Disclaimers in EULA Purchaser Never Saw 
 
Warranty limitations contained in an online digital license agreement that a software purchaser did not have an opportunity to see and never assented to are not binding, and do not override other express warranties made at the time of sale, the New York Supreme Court, Appellate Division, held Sept. 9.  The court said that a dissatisfied software purchaser who did not have an opportunity to read and assent to an online end-user license agreement could sue the manufacturer for breach of express warranties.  Because the purchaser bought the software from a distributor who was not the manufacturer's agent, however, the purchaser could not sue the manufacturer for breach of implied warranties, the court said.  Jesmer v. Retail Magic, Inc., 2008 ILRWeb (P&F) 2637.  Subscribers read more ...
 
Other Internet Commerce news: 
 
·  EU Official Hosts Roundtable to Examine Online Retailing in European Single Market
·  ISP 'Helpful to' Enterprise Not Liable Under RICO
·  Virtual Worlds Need to Catch Up on Legal Safeguards
 
Subscribers may search ILR's Internet Commerce database

FREEDOM OF SPEECH
 
Student's Online Essays, Despite Offensive Content, Are Protected by First Amendment 
 
A student's blog posts, though crude and highly offensive, were protected by the First Amendment because they neither rose to the level of true threats nor substantially disrupted the campus environment, the U.S. District Court for the District of Delaware held Sept. 4.  Although the University had good intentions, it wrongfully disciplined the student for essays he posted on his blog because they did not constitute a "true threat" and were not likely to cause disruption on campus, Magistrate Judge Mary Pat Thynge held.  Murakowski v. University of Delaware, 2008 ILRWeb (P&F) 2627.  Subscribers read more ...
 
Subscribers may search ILR's Freedom of Speech database 

TELECOMMUNICATIONS 
 
Comcast Outlines New Network-Management Plan 
 
In order to manage traffic on its networks, Comcast plans to use software to identify subscribers who have been using a particularly high volume of bandwidth and temporarily give that traffic a lower priority status.  The cable operator detailed its new network-management plans on Sept. 19 under a deadline imposed by the Federal Communications Commission.  In re Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications (Comcast's Network Management Policy), 2008 ILRWeb (P&F) 2608.  Subscribers read more ...
 
Other Telecommunications news: 
 
·  Inouye Pushes Broadband Data Bill, Stevens Offers Universal Service Bill
·  EC Outlines Competition Guidelines to Boost Layout of High-Speed Networks
·  M2Z Contends Interference Tests Prove Its System Can Work as Planned
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Canadian Privacy Office Rejects Complaint on Outsourced E-Mail Subject to PATRIOT Act 
 
The Office of the Privacy Commissioner of Canada Sept. 19 released a ruling rejecting allegations that an Internet site's outsourcing of e-mail services to a firm in the United States violated the Personal Information Protection and Electronic Documents Act (PIPEDA) by exposing Canadians' personal information to the reach of the USA PATRIOT Act.  CanWest Publishing, Inc., owner of the canada.com website, upheld PIPEDA Principle 4.1.3 by reliably informing its new and existing subscribers of its arrangement with a U.S.-based e-mail provider and of the potential impact of that arrangement on the confidentiality of its subscribers' personal information, the privacy office said in PIPEDA Case Summary #394.  Subscribers read more ...
 
Other Privacy & Security news: 
 
·  New Analysis & Perspective article: How Deep Packet Inspection Changed the Privacy Debate, Ronald W. Del Sesto, Jr. and Jon Frankel, Bingham McCutchen, LLP, Washington, D.C.
·  Civil Rights Group Sues Bush, Cheney Over NSA Warrantless Wiretapping
·  Report Finds Phishing Increase, Despite Slow-Down in New Sites
·  No Ex-Worker Privacy Interest in Computers He Sold to Employer, Abandoned When Fired
·  Posting SSNs from Public Records Cannot Be Sanctioned Under Virginia Law
·  Targeted Ad Debate 'Perfect Storm' Arises; Panel Examines User Data Retention, Consent
·  Hustinx Says Proposed Electronic Record System Needs Data Protection Improvements
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
Barnesandnoble.com to Pay $9 Million to Settle Online Tax Dispute with California 
 
Bookseller barnesandnoble.com agreed to pay $9 million in a global settlement with the California State Board of Equalization to resolve disputes over the bookseller's obligation to collect and remit sales and use tax on online purchases, leading to dismissal this month of lawsuits pending in state appellate court and federal trial court.  A spokeswoman for SBOE and a lawyer representing barnesandnoble.com declined to comment on the settlement, which the company disclosed in a Sept. 11 filing with the Securities and Exchange Commission.  Subscribers read more ...

Other Taxation news: 
 
·  New Hampshire to Continue Imposing Internet Tax Under Grandfather Provision
·  Washington State Committee Mulls Key Issues on Digital Goods Taxation
·  Georgia Court Rules in City's Favor in Online Travel Occupancy Tax Dispute
 
Subscribers may search ILR's Taxation database

JURISDICTION & PROCEDURE 
 
U.S. Discovery-EU Privacy Rules 'Morass' Needs Government Resolution, Panelists Say 
 
Resolving inherent conflicts between U.S. litigation rules and EU privacy protections, which arise when U.S. companies seek to transfer electronic data containing personal information out of the European Union for discovery purposes, requires the intercession of government authorities on both sides of the Atlantic Ocean, panelists said Sept. 19.  Companies are struggling every day with the tension between broad federal court mandates to retain and produce electronic data in discovery and the limitations on the retention, transfer, and use of personal data under EU data protection law, Lisa J. Sotto, Hunton & Williams LLP, New York, said.  Subscribers read more ...
 
Subscribers may search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY 
 
Download of P2P Folder Contents Is Not a 'Search' 
 
An individual who placed child pornography in a shared folder accessible by all users on a public peer-to-peer network lacked any legitimate expectation of privacy in the folder's contents, the U.S. District Court for the District of Nevada held Aug. 29.  Because the individual had no legitimate expectation of privacy, a law enforcement officer's act of downloading files from the folder after a search of the network returned hits for known child pornography files there did not amount to a search within the meaning of the Fourth Amendment.  United States v. Borowy, 2008 ILRWeb (P&F) 2501.  Subscribers read more ...
 
Other Criminal Liability news: 
 
·  Computer Crime Bill Reaches Bush's Desk; Would Ease ID Theft Prosecution, Aid Victims
·  Judge Sets 18-Month Music Piracy Jail Term; Convicted Computer Owner Also Fined $2,500
 
Subscribers may search ILR's Criminal Liability database 

Latest Cases 
 
·  ASIS Internet Services v. Member Source Media, LLC, 2008 ILRWeb (P&F) 2633 [ND Cal] (Proceedings in spam case stayed pending resolution of appeal in ASIS Internet Services v. Azoogle.com, Inc.)
·  Jesmer v. Retail Magic, Inc., 2008 ILRWeb (P&F) 2637 [NY App Div] (Express warranties at time of sale trump disclaimers in EULA purchaser never saw)
·  J.S. v. Blue Mountain School District, 2008 ILRWeb (P&F) 2625 [MD Pa] (School did not violate student's First Amendment rights by disciplining her for creating a false Internet profile of the school principal)
·  MLP Finanzdienstleistungen AG v. WhoisGuard Protected, 2008 ILRWeb (P&F) 2629 [WIPO] (Domain name of gripe site—consisting of complainant's trademark and the term "watchblog"—is confusingly similar to complainant's mark because a "watch" site could plausibly identify a website operated by the trademark owner)
·  Murakowski v. University of Delaware, 2008 ILRWeb (P&F) 2627 [D Del] (Student's online essays, despite offensive content, are protected by First Amendment)
·  New Jersey, State of v. M.A., 25 ILR (P&F) 537 [NJ App Div] (Employer had authority to consent to search of workplace computer; employee had no reasonable expectation of privacy)
·  New York, City of v. Smokes-Spirits.com, Inc., 2008 ILRWeb (P&F) 2623 [2d Cir] (A company that provided Internet support, website design, domain name registration, and other services to a company allegedly part of a mail and wire fraud scheme is not "associated with" the enterprise under RICO)
·  Ostergren v. McDonnell, 2008 ILRWeb (P&F) 2503 [ED Va] (Website operator who advocated for privacy rights in Virginia could not be punished for publication of public land records containing Social Security numbers)
·  Perfect 10, Inc. v. Google, Inc., 2008 ILRWeb (P&F) 2359 [CD Cal] (Court grants motion for leave to file Second Amended Complaint, which alleges that Google is storing full size images on its servers related to its Blogger services)
·  Saadi v. Maroun, 2008 ILRWeb (P&F) 2635 [MD Fla] (Defamation claim against bloggers withstands motion to dismiss)
·  United States v. Borowy, 2008 ILRWeb (P&F) 2501 [D Nev] (Individual who placed child pornography in a shared folder accessible by all users on a public P2P network lacked any legitimate expectation of privacy in the folder's contents)
·  United States v. Cartier, 2008 ILRWeb (P&F) 2631 [8th Cir] (Hash values may establish probable cause for a search warrant)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Electronic Frontier Foundation v. Office of the United States Trade Representative (Complaint), 2008 ILRWeb (P&F) 2602 [D DC] (EFF and Public Knowledge seek the release of records from the Office of the United States Trade Representative allegedly showing that the Anti-Counterfeiting Trade Agreement, which is still under negotiation, encourages ISPs to cooperate with copyright holders)
·  Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications, In re (Comcast's Network Management Policy), 2008 ILRWeb (P&F) 2608 [FCC] (Comcast provides information to the FCC about how it manages network congestion and how it plans to manage congestion in the future)
·  Jewel v. National Security Agency (Class Action Complaint), 2008 ILRWeb (P&F) 2604 [ND Cal] (Civil rights group sues President Bush, Vice President Cheney, and government agencies over NSA warrantless wiretapping)
·  Jones Day v. BlockShopper LLC (Brief of Public Citizen, et al. as Amici Curiae in Support of Defendants' Motion to Dismiss), 2008 ILRWeb (P&F) 2606 [ND Ill] (Public interest organizations, as amici, argue that law firm is abusing a trademark to suppress legitimate, non-infringing speech)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

Broadband-enabled Gaming Environments - New! 
The level of quality, realism and interactivity of online games has improved considerably in recent years, resulting in richly detailed worlds that feature virtual communities.  We believe the evolution of online gaming presents an opportunity for some broadband service providers to tailor packages toward a growing customer base and thus benefit from service premiums and the resulting boost in ARPU.  We forecast that the online gaming market will generate annual revenues nearing $2 billion by the end of the decade.  In this report, we provide a detailed overview of the online gaming industry and project revenues and global market share out to 2013.  We also provide a case study of a popular online game, and detail the opportunities and risks such games create for service providers.  Learn More  Order Now

Cable Advanced Advertising Market Outlook - New!  
The cable industry hopes to increase its advertising revenue to as much as $15 billion a year once it has effectively deployed standardized advanced advertising technology capable of supporting addressable, interactive advertising on a wide scale.  A number of the largest cable MSOs have invested in Canoe Ventures, a joint venture focused on the development of advanced advertising capabilities to enable marketers to reach very specific subsets of viewers with their messages.  But the ultimate value of theinvestments in these advertising technologies will be significantly less than the industry is hoping.  In this detailed analysis we examine cable's new advertising initiatives, and provide a forecast of advertising revenue growth over the next five years.  Learn More  Order Now

Events & Conferences 
 
New Regs and Spam: Legal Nuances and Successful Litigation Tactics Under CAN-SPAM
October 28, 2008, 2:00 – 3:30 pm EST
Pike & Fischer has gathered top legal experts from the government and the private sector to address the implications of the latest CAN-SPAM regulations and their effect on marketing agreements with business partners.  Our exclusive webinar will also provide the latest in litigation strategies for lawyers representing marketers and ISPs.  Learn what to include in affiliate marketing contracts, which elements are necessary to withstand a motion to dismiss, what laws apply to text messages and mobile devices, and much more!  Register Now


Legal Risk Management Forum II - Audio CDs Now Available!
On September 16 - 17, Pike & Fischer once again played host to the nation's top federal, state and private sector players who debated the critical issues facing Web 2.0.  More than 30 speakers participated in debates covering content infringement, privacy, reputation preservation, and other issues facing Internet businesses.  Keynotes were delivered by Robert Kasunic, Principal Legal Advisor in the Office of the General Counsel, U.S. Copyright Office; Kevin Kuzas, V.P. and General Counsel of Comcast Interactive Media; and Doug Mandell, former General Counsel of LinkedIn.  Missed the Forum?  CDs of all Forum proceedings are now available.  Order a CD.

View all Events & Conferences

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