The E-Commerce and Tech Law Blog is a forum for practitioners
and Bloomberg BNA editors to share ideas, raise issues, and network with
colleagues on news, hot topics, and trends affecting e-commerce and technology
law and regulations.
March 27, 2009
by Thomas O'Toole
A few days ago a wrote a blog post complaining about how somebody somewhere had decided to make the U.S. Department of Justice's brief in the Tenenbaum case a litmus test on whether President Obama had the right views on copyright policy. Their argument went like this: Draconian statutory damages for copyright infringement are an injustice. President Obama couldn't possibly be in favor of injustice, could he?
The SCOTUSBlog has news that a petition for certiorari was filed today in the case of IMS Health v. Ayotte. In proceedings below, the First Circuit, in a landmark privacy ruling, turned back prescription drug marketers' claim that they had a First Amendment right to distribute data that identified doctors' drug-prescribing patterns. New Hampshire law banned the distribution of this information, based on evidence that it was distorting physician drug-prescribing practices away from generic drugs and in favor of more expensive brand-name drugs. To the detriment of the state's health care budget.
March 25, 2009
Apparently there is a great problem out there with lawyers writing keywords in electronic discovery requests. According to one magistrate judge, lawyers in a construction liability case submitted vague keywords that produced nearly all of the opposing side's e-mail database, redundant keywords, and keywords that were ineffective at producing discoverable information. This kind of bad lawyering put the magistrate in the position of having to design the keyword search himself, something he was neither inclined nor equipped to do.
March 24, 2009
On most days you can learn a lot browsing the Internet. Yesterday probably wasn't one of those days. Consider the following evidence, which I turned up while trying to find out about the latest wrinkle in Sony BMG Music Entertainment v. Tenenbaum, No. 03-11661 (D. Mass.) -- the Department of Justice's just-filed amicus submission in that case.
March 19, 2009
The RSS feed hauled in this item from the National Journal, As Media Evolves, Hill Tries To Define It: Speaking at a Center for Democracy and Technology gala last week, Rep. Rick Boucher, D-Va., predicted that federal shield legislation he introduced in February would pass the House and Senate this session. The bill, H.R. 985, would protect reporters from being compelled to reveal confidential sources even under subpoena.
The Sixth Annual E-Commerce Best Practices Conference will take place on June 12, 2009, on the Stanford University campus. Right now, this is probably the best annual event going for learning about cyberlaw topics (in my uncompensated, unsolicited opinion).
The Fourth Circuit released its opinion this morning in Van Alstyne v. Electronic Scriptorium, No. 07-1892 (4th Cir. March 18, 2009). Nutshell: Plaintiffs who sue for violations of the Stored Communications Act, 18 U.S.C. 2707(a), must prove actual damages in order to qualify for the $1,000 per violation statutory damages provided by the act. Ouch!
When it comes to college sports, I always root for Michigan, I can't help it. I always pick them to win it all, even though the last time Michigan won anything was when Chris Webber was on the payroll in 1993. The fact that I am wrong, that I have been wrong for 18 years in a row, means less to me than the pleasure I get from picking Michigan to win it all.
March 17, 2009
More than ever before, Internet intermediaries are being asked to shoulder the responsibility of policing bad actors online. With copyright owners, it's "three strikes" proposals for ISPs and legal arguments that ISP compliance with the DMCA's notice-and-takedown provisions are not enough to escape secondary liability. Online publishers are busier than ever beating back attempts to find holes in CDA Section 230's immunity from claims arising from third-party content. And social networking sites, prodded by law enforcement officials, are undertaking new obligations to keep criminals from preying on their users.
A very interesting case involving online publisher immunity under Section 230 of the Communications Decency Act came out of Michigan earlier this month in the case of People v. Gourlay, No. 271214 (Mich. Ct. App. March 3, 2009)(unpublished). The CDA 230 issue arose in the context of a criminal prosecution for child pornography tucked inside an ineffective assistance of counsel claim. But even at that procedural distance the court's exploration of how CDA Section 230 might apply to hosting unlawful content is worth reading.
March 12, 2009
An odd case, The Scranton Times v. Wilkes-Barre Publishing, No. 08-2135 (M.D. Pa., March 6, 2009), held recently that obituaries published in a newspaper were not entitled to state-law protection under the "hot news" doctrine. The case involve one local newspaper that allegedly copied the entirety of death notices that were published, in print and online, in the plaintiff's newspaper.
March 11, 2009
CNET has a story about California legislator Joel Anderson's proposal to fine Google $250,000 daily for publishing street-view photos and images of important public facilities. Anderson's A.B. 255 would also punish non-corporate-behemoth violators with up to three years in prison.
March 5, 2009
Thomas Dart, Sheriff of Cook County, Ill., filed a lawsuit this morning in federal court alleging that online classified site Craigslist is a public nuisance for facilitating prostitution. The sheriff wants an injunction, compensatory and punitive damages, and his attorneys' fees.
March 4, 2009
The Numerati author Stephen Baker has a fascinating article on Sense Network's location-monitoring technologies in the March 9 BusinessWeek. Aided by location-aware devices carried by many of us, Sense engineers can display people as color-coded dots moving across a city, in real time. They have a pretty good idea what those dots are doing, their employment status, and their age and income level.
Venkat Balasubramani has a post speculating on whether the U.S. Supreme Court will grant certiorari to review the Virginia Supreme Court's ruling that the state's unsolicited bulk e-mail law violates the First Amendment. He thinks the high court will take the case of Commonwealth v. Jaynes. Nobody can really know what the court will do. Just for fun, I'll argue that the court will not take the case.
Ninth Circuit Vacates Fair Use Finding in Righthaven Case
The Nation's First Privacy Goalie
Cyberlaw Predictions: Competition, Trademarks, Online Contracts
Georgia Bill Would Regulate Online Self-Help Publishers
Race Toward New gTLDs Finish Line Sparks Debate on ICANN's Policy Methods