January 13, 2010 
 

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Latest News 
 
INTELLECTUAL PROPERTY
 
Authors Groups Send Letter to Authors in Congress Urging DOJ to Continue Scrutiny

Three national authors groups sent a letter Jan. 6 to members of Congress who are also authors, seeking support in encouraging the Department of Justice to continue its opposition to a settlement of the Authors Guild copyright infringement action challenging the Google Books project.  Subscribers read more ...

Other Intellectual Property news: 
 
·  CNIL Delays Web Cut Off Three Strikes Law; Must OK Judicial Review Procedures First
·  U.S.-Based Software Maker Sues China, Computer Companies for Copyright Violations
·  After Finding Irreparable Harm, Court Asserts Equitable Power to Transfer Domain
·  Panelists Question Transparency of ACTA Negotiations, Effect on U.S. Law
·  Rep. Doyle Calls for Greater Transparency in ACTA, Awaits Response to Wyden Letter
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
DMCA Injunction Prohibiting Software Launch Was Not 'Harm' Creating Antitrust Standing

An injunction prohibiting RealNetworks from distributing its RealDVD copying program was not a harm that created standing for antitrust claims, the U.S. District Court for the Northern District of California held Jan. 8.  RealNetworks, Inc. v. DVD Copy Control Association, Inc., 2010 ILRWeb (P&F) 1003.  Subscribers read more ...

Other Internet Commerce news: 
 
·  French President Endorses Industry Report Calling for Evaluation of Google's Dominance
·  Estoppel Claim Based on Failure to Remove Offensive Profiles Progresses Against Yahoo!
·  State Insurance Rule Required Authentication for Web Signature to Create 'Signed Writing'
·  Provision Granting eBay Liberal Termination Rights Is Enforceable, Subject to Good Faith
·  With Reasonable Security, Arizona Law Firms May Offer Clients Online File Storage, Retrieval
·  ICANN Proposes Time Line, Methodology for Forming Required Internal Review Teams
·  Forum Clause in Terms of Use, Displayed on Each Website Page, Enforced by Court
·  Court Compares Parties' Clickwrap Contents, Process in Rejecting Unconscionability Claim
·  Website Recounting Ghost Lore Did Not Induce Visitors to Trespass on Haunted Land
·  Google Moving Ahead with Plans for Power Marketing, Smart Grid Presence
 
Subscribers may search ILR's Internet Commerce database

FREEDOM OF SPEECH
 
Blog Posts Seeking to Influence Public Opinion Not Immune Under Anti-SLAPP

Blog posts that loosely concern a government action but are primarily intended to stir public controversy about a particular individual are not "genuinely aimed" at procuring government action as required for defamation liability immunity under Minnesota's anti-SLAPP statute, the Minnesota Court of Appeals held Dec. 29.  Freeman v. Swift, 2009 ILRWeb (P&F) 3313.  Subscribers read more ...

Other Freedom of Speech news: 
 
·  Website Not Required to Remove Defamatory Posts Despite Injunction Against Subscribers
 
Subscribers may search ILR's Freedom of Speech database 

TELECOMMUNICATIONS 
 
Court Unfriendly to FCC's Assertion of Power in Censure of Comcast for Web Blocking

A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit Jan. 8 appeared highly skeptical of the Federal Communications Commission's assertion of authority in a 2008 decision against Comcast Corp. for blocking a file-sharing service on its broadband network.  Comcast Corp. v. Federal Communications Commission (Oral Argument), No. 08-1291.  Subscribers read more ...

Other Telecommunications news: 
 
·  Vote Not Needed on Broadband Plan Before Going to Congress, McDowell Says
·  FCC Asks Congress for More Time to Deliver National Broadband Plan
·  Cable Industry Bid to End USF Funds in Competitive Areas Spurned by ILECs
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Consumers Allege Netflix Failed to Protect 'Anonymized' Data, Violated Privacy Policies

Video rental firm Netflix knew or should have known that the personal data of a putative class of some 500,000 subscribers was not properly protected from disclosure when it provided allegedly "anonymized" data sets on their viewing habits to third parties as part of a research contest, according to a complaint filed Dec. 17 in the U.S. District Court for the Northern District of California.  Doe v. Netflix, Inc. (Class Action Complaint), 2009 ILRWeb (P&F) 3226.  Subscribers read more ...

Other Privacy & Security news: 
 
New Analysis & Perspective article: Changes to the European E-Privacy Directive, Consequences for Online Advertising, by James Brunger and Mark Watts, Bristows
New Analysis & Perspective article: U.S. Supreme Court Ruling Due in 2010 in Quon Case, by Fred H. Cate, Indiana University
·  Non-Profit Offers Self-Regulation Program for Website Operators to Comply with COPPA
·  New Maine Child Marketing Bill Introduced to Replace Law Challenged as Overbroad
·  Heartland Systems Agrees to Pay $60 Million to End Visa-Issuing Bank Data Breach Claims
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
European Commission Says French Ad Tax on Google Would Be Checked for 'State Aid'

The European Commission said Jan. 8 that any French advertising tax on the Internet search engine Google would have to be checked for state aid components.  The commission also emphasized that a dominant market position held by Google is not a problem in itself under European Union law. Only if a company having a dominant position abuses that position does it become a problem.  Subscribers read more ...

Subscribers may search ILR's Taxation database

JURISDICTION & PROCEDURE 
 
DMCA Take-Down Not Meaningful Forum Contact

A take-down notice sent pursuant to the Digital Millennium Copyright Act is not an intentional contact with an addressee's home state, and does not, on receipt alone, grant jurisdiction there to sue for abuse of DMCA process, the U.S. District Court for the District of Maine held Dec. 13.  Project DOD, Inc. v. Federici, 2009 ILRWeb (P&F) 3293.  Subscribers read more ...

Other Jurisdiction & Procedure news: 
 
·  Website Allowing Photo Viewing Was Neither 'Interactive' Nor Purposeful Forum Contact
 
Subscribers may search ILR's Jurisdiction & Procedure database

Latest Cases 
 
·  American Airlines, Inc. v. Yahoo! Inc. (Dismissal Order), 2009 ILRWeb (P&F) 3097 [ND Tex] (Airline and search engine settle lawsuit regarding the sale of plaintiff's trademark to third parties as an advertising keyword)
·  American Airlines, Inc. v. Yahoo! Inc. (Final Judgment), 2009 ILRWeb (P&F) 3099 [ND Tex] (In wake of settlement, court dismisses with prejudice all claims in keyword advertising suit)
·  Appliance Zone, LLC v. NexTag, Inc., 2009 ILRWeb (P&F) 3331 [SD Ind] (Clickwrap terms of service, which an employee clicked to accept when signing up for an online advertising program, formed a binding agreement)
·  Arizona State Bar Ethics Opinion 09-04, 2009 ILRWeb (P&F) 3329 [Ariz St Bar] (With reasonable security precautions, Arizona law firms may use an online file storage and retrieval system that enables clients to access their files over the Internet)
·  Autodesk, Inc. v. Dassault Systemès Solidworks Corp., 2009 ILRWeb (P&F) 3315 [ND Cal] (A file extension is inherently functional and therefore not actionable under trademark law)
·  Barnes v. Yahoo! Inc., 2009 ILRWeb (P&F) 3245 [D Ore] (Estoppel claim based on failure to remove offensive profiles progresses against Yahoo!)
·  Blockowicz v. Williams, 2009 ILRWeb (P&F) 3305 [ND Ill] (Operators of the Ripoff Report website were not required to comply with an injunction requiring its subscribers to remove defamatory content)
·  Crawford v. Consumer Depot, LLC, 2009 ILRWeb (P&F) 3307 [Tenn Cir Ct] (Provision in the eBay user agreement allowing it to terminate users on mere belief of bad acts is enforceable, but eBay must be shown to have executed its powers with good faith in order to survive a breach of contract claim arising from a termination)
·  Doe v. State of Nebraska, 2009 ILRWeb (P&F) 3325 [D Neb] (Court preliminarily enjoins enforcement of computer and Internet-related amendments to Nebraska's Sex Offender Registration Act)
·  Duer v. Henderson, 2009 ILRWeb (P&F) 3335 [Ohio Ct App] (Website documenting ghost lore about an Ohio farm cannot serve as the basis for a trespass action against the site authors, especially when no known trespassers relied on the site's contents)
·  Flat's Tattooing, Inc. v. Whitham, 2009 ILRWeb (P&F) 3095 [Conn Super Ct] (Allegations that an employee's departure with and later competing use of a corporate domain name caused the company irreparable harm justified the court's intervention on equitable grounds)
·  Freeman v. Swift, 2009 ILRWeb (P&F) 3313 [Minn Ct App] (Blog posts primarily intended to stir public controversy about a particular individual are not immune under Minnesota's anti-SLAPP statute)
·  General Electric Co. v. Estephens Productions, 2009 ILRWeb (P&F) 3337 [WIPO] (Complaint denied where domain name, which includes complainant's undeniably famous two-letter mark ("GE"), nevertheless reflects respondent's company name and is used to promote respondent's legitimate business)
·  Gordon v. First Premier Bank, Inc., 2009 ILRWeb (P&F) 3323 [ED Wash] (Plaintiff lacks standing to bring a private cause of action under CAN-SPAM; state law claims also dismissed)
·  Kelly Law Firm, P.C. v. An Attorney for You, 2009 ILRWeb (P&F) 3319 [SD Tex] (Where defendant runs a website that specifically targets potential legal clients in Texas for Texas attorneys, defendant purposefully availed itself of business opportunities in Texas)
·  Major v. McCallister, 2009 ILRWeb (P&F) 3309 [Mo Ct App] (So-called "browsewrap" terms of service that were hyperlinked to every page of a company's website—including a link adjacent to the button customers clicked to sign up—were conspicuously displayed, and thus binding)
·  Peermusic, III, Ltd. v. Motive Force LLC, 2010 ILRWeb (P&F) 1001 [WD Pa] (Consent judgment following settlement of copyright infringement case against operators of unlicensed song lyrics website)
·  Project DOD, Inc. v. Federici, 2009 ILRWeb (P&F) 3293 [D Me] (DMCA take-down notice is not an intentional contact with an addressee's home state, and does not, on receipt alone, grant jurisdiction there to sue for abuse of DMCA process)
·  Prudential Insurance Co. of America v. Dukoff, 2009 ILRWeb (P&F) 3311 [ED NY] (State insurance rule required authentication for web signature to create 'signed writing')
·  RealNetworks, Inc. v. DVD Copy Control Association, Inc., 2010 ILRWeb (P&F) 1003 [ND Cal] (DMCA injunction prohibiting RealNetworks from distributing its RealDVD copying program was not a harm that created standing for antitrust claims)
·  SharpShooter Spectrum Venture, LLC v. Consentino, 2009 ILRWeb (P&F) 3333 [D Colo] (Website on which a New York photographer allowed clients to view photographs was not "interactive" for jurisdiction purposes)
·  United States v. Zein, 2009 ILRWeb (P&F) 3327 [ED Mich] (Use of craigslist qualifies as mass marketing for purposes of a sentence enhancement)
·  Webadviso v. Bank of America Corp., 2009 ILRWeb (P&F) 3321 [SD NY] (Bank of America is likely to prove all elements under ACPA)
·  West v. Carfax, Inc., 2009 ILRWeb (P&F) 3317 [Ohio Ct App] (Notice of proposed settlement to class members via e-mail was inadequate)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Cascade Yarns, Inc. v. Crafts Americana Group, Inc. (Complaint), 2009 ILRWeb (P&F) 3224 [WD Wash] (Trademark infringement lawsuit against competitor for using plaintiff's trademarks as search engine keywords for online advertising)
·  Chamber of Commerce of the United States v. Servin (Defendants' Motion to Dismiss Plaintiff's First Amended Complaint), 2010 ILRWeb (P&F) 1004 [D DC] (Political activists move to dismiss trademark lawsuit, arguing that the suit was designed to silence political speech)
·  CYBERsitter, LLC v. People's Republic of China (Complaint), 2010 ILRWeb (P&F) 1002 [CD Cal] (U.S.-based software maker sues two Chinese software companies and the Chinese government for infringing Internet filtering program)
·  Doe v. Netflix, Inc. (Class Action Complaint), 2009 ILRWeb (P&F) 3226 [ND Cal] (Consumers allege Netflix failed to protect 'anonymized' data, violated privacy policies)
·  North Face Apparel Corp. v. Williams Pharmacy, Inc. (Joint Answer of Defendants James A. Winkelmann, Jr. and The South Butt, LLC), 2010 ILRWeb (P&F) 1006 [ED Mo] (Internet seller of parody apparel raises affirmative defenses of laches, free expression, and failure to state a claim)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

Broadband Competition Outlook 2010 – New!
In this report, we offer more details on these trends and provide our forecasts on customer growth for new multichannel video services, residential high-speed Internet, IP telephony, and the features and applications that ride on those technologies.  Learn more about this research

Clearwire and the Outlook for 4G Competition – New!
This report examines Clearwire's services and device strategy, its partnerships, and its financial status. We also provide a forecast on Clearwire's subscriber base and revenues, and an outlook on the impact that LTE's emergence will have on Clearwire's competitive strength and on WiMAX as a whole.  Learn more about this research

Events & Conferences 
 

Social Networking in the Workplace: Maximizing Benefits and Minimizing Legal Risks for Business – Recordings Now Available
Is blocking Facebook the answer ... or is it enough? That's the question facing many businesses as employees communicate electronically both on and off the clock. Hear legal experts from Hogan & Hartson, Intel, and IBM as they identify the legal risks inherent in social networking, and offer practical solutions for minimizing those risks and maximizing the bottom line.  Learn More  Order Now


Broadband Policy Summit VI – Implementing the National Plan
The Fairfax Hotel at Embassy Row, Washington, D.C., June 10-11, 2010
Join us at BPS VI--the 2010 edition of the preeminent annual forum for the broadband telecommunications industry--to air and dissect the critical and complex issues facing broadband businesses and policymakers in the wake of the new National Broadband Plan. Interact with panels of top federal, state, and private sector players and top-level keynoters to gain invaluable, actionable insights into the industry's emerging shape and explore new developments in recurring themes. Register Now  Join us on LinkedIn

View all Events & Conferences

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