Latest News 
 
INTELLECTUAL PROPERTY
 
Trademarks in Metatags, Sponsored Links Are Uses in Commerce, Second Circuit Rules

Google's sale of trademarks as sponsored links is an actionable use in commerce for purposes of the Lanham Act, the U.S. Court of Appeals for the Second Circuit ruled April 3, reversing a district court's determination that the marks could not be considered used "in commerce" because they occurred only in non-visible metatags.  The court's ruling brings the Second Circuit in line with the majority of other courts considering trademarks in sponsored advertising, and counters a vast body of Second Circuit precedent holding that marks in metatags are not uses "in commerce."  Rescuecom Corp. v. Google, Inc., 2009 ILRWeb (P&F) 1603.  Subscribers read more ...

Other Intellectual Property news: 
 
·  Congress's Decision to Restore Copyright in Foreign Works Violated First Amendment
·  Beauregard Claims Are Subject to Bilski's Machine-or-Transformation Test
·  Report Finds Libraries 'Unlikely' to Be Liable for Preserving Pre-1972 Sound Recordings
·  Obama Administration Asked for 'Balance' in Intellectual Property Appointments
·  Sellers of Game Anti-Cheat System Bypass Ordered to Pay $6.5 Million DMCA Damages
·  Circuit Split on Whether Marks in Metatags Are Infringing Needs Resolution, Lawyers Say
·  Rights Owners Form Team to Identify Needed Changes in ICANN's gTLD Process
·  House Foreign Affairs Committee Members Single Out China, Canada for IP Derelictions
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
House Financial Services Subcommittee Considering Web Payday Lender Restrictions

Consumer advocates and payday lenders voiced concerns to the House Financial Services Subcommittee on Financial Institutions April 2 about a bill that would place restrictions on creditors offering Internet payday loans.  The Payday Loan Reform Act (H.R. 1214), sponsored by Rep. Luis V. Gutierrez (D-Ill.), chairman of the subcommittee, would apply to both brick-and-mortar and Internet payday lenders.  Subscribers read more ...

Other Internet Commerce news: 
 
·  Cost of Expert's Pre-Litigation System Search Did Not Qualify as CFAA 'Loss'
·  New Jersey Senator, Gambling Groups Argue Sports Book Law Violates Commerce Clause
·  Attorneys Should Monitor Developments in Virtual Worlds, but Not Practice Law There
·  House Considers Do-Not-Text Proposal, Senate Bill Would Also Amend CAN-SPAM
·  FDA Tells 14 Major Drug Companies Their Internet Drug Ads Lack Risk Info
·  Alleged Disclosure of E-Mail Address, Spam Not 'Damage' for Contract, Fiduciary Claims
 
Subscribers may search ILR's Internet Commerce database

FREEDOM OF SPEECH
 
Forum Operator's Thread Starting, Comment Republishing Held Immunized Under CDA

Neither starting threads in a web forum where allegedly defamatory comments were posted nor republishing those comments to a different website was active enough participation in the comment creation to subject the forum owner to defamation liability, the California Court of Appeal for the Fourth District held March 18 in an unpublished opinion.  Joyner v. Lazzareschi, 2009 ILRWeb (P&F) 1509.  Subscribers read more ...

Other Freedom of Speech news: 
 
·  Ontario Court Ruling Orders Disclosure of Anonymous Posters on Bulletin Board
·  Claim That Gripe Site Operator Shaped, Encouraged Postings Rebuffs CDA Defense
 
Subscribers may search ILR's Freedom of Speech database 

TELECOMMUNICATIONS 
 
McDowell Says 'Fragile' Rules Will Not Help Broadband Deployment

Robert McDowell, the lone GOP commissioner at the Federal Communications Commission, April 3 cautioned against "fragile" rules to promote the deployment of broadband across the United States.  "I think one concern I have is that whatever we do, we have to create an atmosphere, a climate, that is attractive to private investment, to private capital," McDowell said.  Subscribers read more ...

Other Telecommunications news: 
 
·  Bipartisan House Committee Leaders Ask FCC to Name Top USF Recipients
·  Sen. Kerry Sees Technology, Science as Critical to Future of Cable Industry
·  NTIA, RUS Officials Still Grappling with Rules for Broadband Grants
·  Boucher Urges Cable Companies to Apply for Broadband Grant Funds
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Senators Introduce Measure Requiring U.S. Firms to Be Ready for Cyber Attacks

Sens. Jay Rockefeller (D-W.Va.) and Olympia Snowe (R-Maine) April 1 announced a comprehensive cybersecurity bill with provisions to create a national cyber czar at the White House and to establish regulations for the government and private sector.  The measure (S. 778) is designed to address the nation's vulnerability to cyber crime, global cyber espionage, and cyber attacks that could potentially cripple U.S. critical infrastructure, according to a statement.  Subscribers read more ...

Other Privacy & Security news: 
 
·  Remaining Bank Plaintiffs in TJX Breach Case May Pursue Some Claims, First Circuit Rules
·  Italian DPA Warns Facebook Users to Use Caution
·  Spanish DPA, Social Networking Firms Discuss User Privacy, Data Protection
·  New Jersey Funds Transfer Privacy Law Covers Ordinary Consumer Bank Accounts
·  New UK Data Rules Take Effect, Guidance from Information Commissioner Due Soon
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
Federal Court Bars Chicago from Collecting Amusement Tax from Online Ticket Resellers

The U.S. District Court for the Northern District of Illinois March 30 found that Chicago lacked the authority under state law to require StubHub, Inc.—a nationwide website where parties buy and sell tickets to events—to collect and remit the city's 8 percent amusement tax.  City of Chicago v. StubHub, Inc., 2009 ILRWeb (P&F) 1519.  Subscribers read more ...

Other Taxation news: 
 
·  Electronically Delivered Items Now Exempt from Sales, Use Tax Under North Dakota Law
 
Subscribers may search ILR's Taxation database 

JURISDICTION & PROCEDURE 
 
E-Mails, Calls Regarding Indian Software Deal Did Not Induce Specific Jurisdiction in Virginia

E-mails and telephone calls between a Virginia corporation and Colorado and Indian software design companies regarding a project to be completed in India did not generate specific personal jurisdiction over either nonresident company in Virginia, the U.S. Court of Appeals for the Fourth Circuit held March 23.  Consulting Engineers Corp. v. Geometric Ltd., 2009 ILRWeb (P&F) 1507.  Subscribers read more ...

Other Jurisdiction & Procedure news: 
 
·  Messages, Media Exposure, Web Research by Jurors Yield Evidentiary, Fairness Protests
·  Illinois-Based Passive Website Held Insufficient to Create Nebraska Jurisdiction
 
Subscribers may search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY 
 
Offshore Internet Gambling Company to Pay $100 Million to Avoid Charges

Partygaming PLC, an Internet gambling business chartered in Gibraltar, has agreed to forfeit $105 million as part of a non-prosecution agreement on allegations of breaking U.S. laws, federal prosecutors announced April 7.  In December 2008, the firm's founder agreed to forfeit $300 million in pleading guilty in the U.S. District Court for the Southern District of New York to a single count of using the wires to transmit bets and wagering information in interstate commerce.  Subscribers read more ...

Other Criminal Liability news: 
 
·  FBI Reports Internet Fraud, Other Cybercrime Activity Complaints Rose 33 Percent in 2008
 
Subscribers may search ILR's Criminal Liability database 

2009 Communications Industry Survey

Pike & Fischer's 2nd annual communications industry survey is now underway and we need your help. This 25-question survey gauges industry opinion about the state of the U.S. economy, the state of the regulatory climate for the communications industry and the state of the industry overall. The results will be published in June 2009 and presented at Pike & Fischer's Broadband Policy Summit V.  Survey respondents will receive a complimentary synopsis of the results and a $100 discount off the full study.  Summit attendees will receive a free copy of the full report at the June Summit.  Start Survey Now  Register for Broadband Policy Summit

Latest Cases 
 
·  Certain Approval Programs, L.L.C. v. XCentric Ventures L.L.C., 2009 ILRWeb (P&F) 1419 [D Ariz] (Defamation plaintiff's allegations that the operator of a website shaped and encouraged the content of third-party submissions are sufficient to avoid summary dismissal based on immunity under CDA §230)
·  Chicago, City of v. StubHub, Inc., 2009 ILRWeb (P&F) 1519 [ND Ill] (Federal court bars Chicago from collecting amusement tax from online ticket resellers)
·  Consulting Engineers Corp. v. Geometric Ltd., 2009 ILRWeb (P&F) 1507 [4th Cir] (E-mails, telephone calls between a Virginia corporation and Colorado and Indian software design companies regarding a project to be completed in India did not generate specific personal jurisdiction over either nonresident company in Virginia)
·  Costar Realty Information, Inc. v. Field, 2009 ILRWeb (P&F) 1505 [D Md] (Unauthorized users of subscription-based website consented to forum selection clause; exercise of personal jurisdiction proper)
·  CyberSource Corp. v. Retail Decisions, Inc., 2009 ILRWeb (P&F) 1517 [ND Cal] (A claimed process for detecting fraud in credit card transactions over the Internet is not patent-eligible under Bilski)
·  Del Monte Fresh Produce N.A., Inc. v. Chiquita Brands International, Inc., 2009 ILRWeb (P&F) 1503 [ND Ill] (Plaintiff did not incur a "loss" contemplated by the CFAA when it paid an expert to search its computers for evidence a former employee provided proprietary information to competitor)
·  Energy Automation Systems, Inc. v. Saxton, 2009 ILRWeb (P&F) 1515 [MD Tenn] (Use of plaintiff's marks as Google Adwords supports exercise of personal jurisdiction over defendant)
·  Golan v. Holder, 2009 ILRWeb (P&F) 1611 [D Colo] (Section 514 of the Uruguay Round Agreements Act, which implements Article 18 of the Berne Convention, interferes with plaintiffs' First Amendment interest in using works in the public domain)
·  Hirl v. Bank of America, N.A., 2009 ILRWeb (P&F) 1605 [NJ] (New Jersey Electronic Fund Transfer Privacy Act applies to ordinary consumer accounts at financial institutions, not just accounts reserved for electronic funds transfers)
·  Joyner v. Lazzareschi, 2009 ILRWeb (P&F) 1509 [Cal Ct App] (Web forum operator starting threads and republishing comments held immunized under CDA §230 for defamation liability)
·  MDY Industries, LLC v. Blizzard Entertainment, Inc., 2009 ILRWeb (P&F) 1601 [D Ariz] (Court enters statutory damages award of $6.5 million on DMCA claims)
·  Mehmet v. PayPal, Inc., 2009 ILRWeb (P&F) 1497 [ND Cal] (Fraud-based claims against PayPal dismissed with leave to amend where plaintiff failed to plead fraud with particularity)
·  Miller v. Skumanick, 2009 ILRWeb (P&F) 1491 [MD Pa] (District attorney's threat of "sexting"—sending or posting sexually suggestive text messages and images—prosecution enjoined)
·  Moreno v. Hanford Sentinel, Inc., 2009 ILRWeb (P&F) 1607 [Cal Ct App] (Republication of publicly accessible Internet commentary does not give rise to cause of action for invasion of privacy)
·  Rescuecom Corp. v. Google, Inc., 2009 ILRWeb (P&F) 1603 [2d Cir] (Google's sale of plaintiff's trademark as a search keyword triggering a competitor's advertisement was a commercial use of the mark within the meaning of the Lanham Act)
·  Romeo Entertainment Group, Inc. v. Showing Animals Respect and Kindness, Inc., 2009 ILRWeb (P&F) 1511 [D Neb] (Illinois-based information-only website held insufficient to create jurisdiction in Nebraska)
·  South Carolina, State of v. Odom, 2009 ILRWeb (P&F) 1513 [SC] (Criminal discovery orders obtained by the State under the federal PATRIOT Act for use in an online child predator sting were valid)
·  TJX Companies Retail Security Breach Litigation, In re, 2009 ILRWeb (P&F) 1493 [1st Cir] (Two remaining plaintiff financial institutions in litigation against TJX Companies over data breach may continue with their negligent misrepresentation and Massachusetts consumer protection statute claims)
·  United States v. Hernandez (Grant of Mistrial), 2009 ILRWeb (P&F) 1501 [SD Fla] (Court grants a mistrial after discovering that several jurors had conducted Internet research regarding material aspects of the case)
·  United States v. Luken, 2009 ILRWeb (P&F) 1609 [8th Cir] (It was reasonable for police to consider defendant's consent to seize and "view" his computer to include consent to perform a forensic analysis on it)
·  United States v. Siegelman, 2009 ILRWeb (P&F) 1499 [11th Cir] (Court affirms decision to reject a mistrial request after determining jurors were not prejudiced by one juror's online research)
·  Warman v. Wilkins-Fournier, 2009 ILRWeb (P&F) 1495 [Ont Super Ct Just] (Court orders online bulletin board to disclose personal information of eight anonymous individuals who posted allegedly defamatory statements)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  CLRB Hanson Industries, LLC v. Google, Inc. (Proposed Settlement Agreement), 2009 ILRWeb (P&F) 1432 [ND Cal] (Settlement reached in AdWords dispute)
·  CLRB Hanson Industries, LLC v. Google, Inc. (Plaintiffs' Motion for Preliminary Approval of Class Action Settlement, et al.), 2009 ILRWeb (P&F) 1438 [ND Cal] (Plaintiffs ask court to approve settlement of AdWords dispute and certify the Settlement Class)
·  Interactive Media Entertainment & Gaming Association, Inc. v. Holder (Complaint), 2009 ILRWeb (P&F) 1436 [D NJ] (New Jersey senator, gambling groups argue federal law prohibiting sports betting violates Commerce Clause)
·  United States v. Fumo (Memorandum in Support of Defendant's Motion for Immediate Voir Dire of Deliberating Jurors), 2009 ILRWeb (P&F) 1434 [ED Pa] (In corruption case involving a state senator, defendant seeks a mistrial due to a juror's Facebook updates)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

EarthLink's Future: Strategic Options in a Troubled Economy – New!
Suffering from financial losses stemming from a stalled WiFi strategy, a failed stake in a mobile virtual network operator, and an inability to expand its broadband subscriber base, EarthLink is left with few viable options for growth. In order to maintain any amount of business sustainability, the company has been forced to trim costs and focus on retaining its remaining customer base. In this analysis, we examine EarthLink's recent operational performance and its future strategic options, with an emphasis on its potential in the commercial services arena. Four charts and tables are included.  Learn More  Order Now

DOCSIS 3.0 Deployment Forecast – New!
As cable operators prepare their networks for both rapidly increasing bandwidth demands and competition from telephone company fiber builds, they are upgrading to the DOCSIS 3.0 standard, which adds a number of features to the industry's existing high-speed-data capabilities. This report examines the current state of this DOCSIS 3.0 upgrade and provides a forecast of the pace at which cable operators in the United States will deploy DOCSIS 3.0 services. We conclude that the top cable operators will have DOCSIS 3.0 covering 100% of homes passed by the end of 2013, and that MSOs can significantly shorten the time to achieve a return on their DOCSIS 3.0 investments by aggressively targeting business customers. Five tables and charts are included.  Learn More  Order Now

Events & Conferences 
 

Pinning Down Cloud Computing: Legal Risk Management and Best Practices for Business – An Interactive Webinar
Wednesday, May 6, 2009 | 2:00 – 3:30 p.m. EDT
There's been a lot of buzz about cloud computing.  Much of it touts cloud computing as a way for companies to save money in lean times.  But what are the risks associated with its adoption?  What's the best way to vet cloud providers?  How do you train employees to use cloud services wisely?  Is the current state of the law as unclear as many commentators contend?  Join Pike & Fischer for an interactive webinar featuring legal experts from Sun Microsystems, Salesforce.com, GE Capital, and Wilson Sonsini Goodrich & Rosati as they examine the benefits and risks of cloud computing from both the legal and practical perspectives.  Learn More  Register Now 


Broadband Policy Summit V
Rick Boucher, Michael Copps to deliver keynotes
Sheraton Crystal City, Arlington, VA, June 18-19, 2009
Rep. Rick Boucher (D-VA) will give the opening keynote address and Michael Copps, the Acting Chair of the Federal Communications Commission, will give the luncheon keynote. Washington's preeminent broadband communications policy forum promises more than ever to be the place to learn how to position your company and clients to thrive in this new broadband environment. Boucher and Copps will be joined by speakers representing the industry's top companies, like Verizon, AT&T, Time Warner, Google, and Amazon; leading public policy advocates, including Public Knowledge, Consumers Union, the Leadership Conference on Civil Rights, and MAP; and renowned investment specialists, including Precursor, Regulatory Source Associates, and J.P Morgan.  Learn More  Register Now  Early Bird Discount Expires May 18, 2009

View all Events & Conferences

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