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Archive : April 2009

April 30, 2009

Real Judges Shouldn't Have Blogs

It calls into question their impartiality.That's the teaching of Stengle v. Office of Dispute Resolution, No. 06-cv-1913 (M.D. Pa. April 27, 2009), a case involving a blogger whose passionate writing about special education issues cost her her job as a hearing officer for disputes arising within Pennsylvania's special education system.

April 29, 2009

Law Enforcement Losing Interest in Wiretaps

Every year the Administrative Office of the United States Courts publishes, as it must, a report of wiretap orders issued by federal and state judges during the preceding year. This year the number went down, a cause for concern, because it means that more and more electronic surveillance is taking place outside the protections of the Wiretap Act.

April 29, 2009

Fifth Circuit Faults Trial Court for Failure to Consider Typosquatter's Fair Use Defense

Make that 23 federal circuit cyberlaw cases so far this year. In last week's post Federal Circuits Heading Toward Busiest Cyberlaw Year Yet, I overlooked Southern Co. v. Dauben Inc., a Fifth Circuit case interpreting the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), and the duty of trial courts to carefully consider fair use and irreparable harm issues when ruling on a request for injunctive relief.

April 27, 2009

Why Not Follow Twitter's Example on Trademark Enforcement?

Mike Masnick at Techdirt has a typically provocative post this morning on the subject of Twitter's laissez faire approach to trademark enforcement. Depending on your outlook, Twitter has either been shrewd or careless when it comes to the Twitter mark (U.S. #77166246). Twitterific, Tiny Twitter, Twitterberry, MadTwitter, TwitterFone, Twitterholic, Twitter Karma, TwitterBuzz, Twitterdex, Twitterlocal, TwitterPoster, TwitterCounter, and dozens of other third-party applications have set up shop on the Twitter mark, all apparently without objection from Twitter. Twitter's API documentation is bereft of trademark protection language.

April 24, 2009

U.K. Lawmakers Weigh Need for Greater ISP Liability

An ad hoc group of Parliament ministers, the All Party Parliamentary Group on Communications (apComms), has opened a public inquiry into a handful of pressing Internet policy issues. Among them: net neutrality, privacy issues relating to behavioral advertising and deep packet inspection, and child abuse.

April 24, 2009

Yet Another Opportunity to Take a Whack at ICANN

The National Telecommunications and Information Administration published a notice of inquiry in the Federal Register this morning, seeking public comment on policy issues the government should consider as the Sept. 30, 2009, expiration date of the Joint Project Agreement between the government and the Internet Corporation for Assigned Names and Numbers approaches.

April 22, 2009

Federal Circuits Heading Toward Busiest Cyberlaw Year Yet

Seems like recent weeks have produced a blizzard of cyberlaw output from federal circuit courts. Van Alstyne and iParadigms from the Fourth Circuit, In re Sony BMG Music Entertainment and Noonan v. Staples from the First Circuit, and then the big one, Rescuecom v. Google, from the Second Circuit.

April 21, 2009

Ninth Circuit Denies YouTube's Bid to Revive Tur Case

The U.S. Court of Appeals for the Ninth Circuit, in a brief opinion, today denied YouTube's appeal of a pair of lower court orders: the first one denying YouTube's DMCA-based motion for summary dismissal of Robert Tur's copyright infringement claim against it; the second one granting Tur's motion to voluntarily dismiss his lawsuit in order to join another similar suit in the Southern District of New York, Viacom Int'l Inc. v. YouTube Inc., S.D.N.Y., No. 1:07-cv-02103.

April 21, 2009

Arbitration Fairness Group Forms in Washington

Nine times out of 10 when there's a challenge to an online contract the object of the court's attention is the arbitration clause. Arbitration clauses are the first line of defense against class action lawsuits. A Texas court's recent ruling that Blockbuster's terms of service were an unenforceable illusory contract is just one of many examples of where the plaintiff really just wants to get out from under an arbitration clause.

April 20, 2009

''Illusory'' Contract Looks Awfully Familiar

I bet a lot of lawyers are scratching their heads over the court's decision in Harris v. Blockbuster, which declared Blockbuster's online terms of use to be an "illusory contract" and hence unenforceable.Blockbuster asserted the arbitration clause in its terms of use -- terms that were assented to via a mouse-click -- against plaintiffs who claim that Blockbuster violated the Video Privacy Protection Act by transmitting information about their movie rental choices to third parties through Facebook's "Beacon" marketing program.

April 17, 2009

Turnitin Errata: CFAA ''Loss'' Occurred After Complaint Was Filed

Yesterday's blog post about the Fourth Circuit's A.V. v. iParadigms decision fretted about the fact that the court had breathed life back into what I thought was a pretty weak computer fraud claim. This morning I looked through the lower court's docket and learned that the defendant's "losses" were for time spent evaluating its Web site's code base after the plaintiff had filed his complaint. In other words, the defendant discovered that the plaintiff had made an unauthorized use of its Web site after receiving his copyright infringement lawsuit. The district court will now decide whether these costs can be properly treated as "losses" under the CFAA. The relevant portion of the CFAA defines "loss" as "any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense ...." 18 U.S.C. 1030(e)(11).

April 16, 2009

Privacy Advocate Takes Complaint About Mail-In Opt-Outs to FTC

World Privacy Forum Director Pam Givens sent a letter to the Federal Trade Commission yesterday complaining that several companies are unreasonably demanding that consumers mail-in paper opt-out requests before they will remove them from their databases. The companies mentioned in the letter are Acxiom, US Search, PublicRecordsNow, and USA People Search.

April 16, 2009

Online Industry's Take on State Sales Tax Burden

Following on Monday's Online Tax Holiday May Be Ending Soon, there is a nice story today at CNET (Tax-free Internet shopping may be at an end). The story is interesting insofar as it provides some insight into the strategy online companies will be taking to defeat the proposal.

April 16, 2009

First Circuit Shutters Webcast of Tenenbaum Copyright Trial

The U.S. Court of Appeals for the First Circuit ruled this afternoon that the district court hearing the Capitol Records Inc. v. Alaujan case lacked authority under the federal rules to order gavel-to-gavel webcasting of the trial. The case involves, among other things, the constitutionality of very large federal statutory damages for willful copyright infringement.

April 14, 2009

Online Tax Holiday May Be Ending Soon

Yesterday's rain dashed the last of the cherry blossoms from the trees here in Washington, restoring the banks of the coffee-colored Potomac to their customary dreariness. "What are the roots that clutch, what branches grow out of this stony rubbish?" Good questions, Mr. Eliot. Around here it's legislation and taxes. Like the Main Street Fairness Act, a measure that would allow state governments to collect billions in taxes from online (and other remote) sellers. Supporters say the measure could be introduced in the next few weeks. No more tax-free Amazon purchases? Mr. Eliot, your take on April was prescient. Very cruel indeed.

April 14, 2009

Back to the Future at Tenenbaum Copyright Trial

A few hours ago I stopped by attorney Ray Beckerman's blog and found there the prepared statement of musician John Perry Barlow. The statement offers a glimpse of testimony he is prepared to offer in the case of Sony BMG Music Entertainment v. Tenenbaum, a theatrical production whose last act promises to teach us something about the constitutionality of tough statutory damages for copyright infringement.

April 10, 2009

Competing Visions of Cybersecurity Solution At RSA

This should be interesting. From the agenda at the big RSA Conference in San Francisco in a few weeks, Microsoft's Scott Charney will be giving a talk entitled "Moving Towards ‘End to End Trust’: A Collaborative Effort," followed by NSA Director Lt. Gen. Keith B. Alexander's talk on "Securing Our Government Networks." America, where do you want to go today?

April 10, 2009

Court Finds No Cognizable Damages in Gap Laptop Theft Case

Big opinion today on privacy law. Judge Samuel Conti dismissed the complaint in Ruiz v. Gap Inc., No. 07-cv-5739 (N.D. Calif. April 6, 2009), ruling that the plaintiff's proof he was at "significant risk" of identity theft as a result of a laptop containing unencrypted personal information was not a sufficient damage to make out a viable negligence claim.

April 10, 2009

Competing Sellers on Amazon 'Not' in Same Marketing Channel

Way back in the not-so-distant past it wasn't uncommon to see courts ascribe particular significance to the fact that competitors both marketed on the Internet. Cases in the Ninth Circuit, like Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), and Inc. v. Walt Disney Co., 202 F.3d 1199 (9th Cir. 1999), fostered the view that the Internet marketing was “particularly susceptible” to a likelihood of confusion because it allows for competing marks to be encountered at the same time on the same screen. It was one factor among many in a Sleekcraft analysis

April 9, 2009

Failure to Find Party Through Google, Westlaw Doesn't Justify Alternative Service

No cyberlaw here, just a practice pointer. The trial court in this case, Sananikone v. United States, No. 07-cv-1434 (E.D. Calif. Feb. 25, 2009), held that the government's failure to find an individual by clicking through WestLaw's and Google's databases did not justify an order for alternative service, namely, service by publication.

April 9, 2009

Click Ads on GoDaddy Parked Pages Draw Cybersquatting Suit

Prof. Marc Randazza had a great post Is GoDaddy a Mass Cybersquatter? on his Legal Satyricon and, while it's great fun to muse about these things hypothetically, I think everyone agrees that live action is best. Now we have it in Ubid Inc. v. Godaddy Group Inc., No. 09-2123 (N.D. Ill., complaint filed April 6, 2009).

April 8, 2009

Will Supremes Take Cablevision Case?

Nobody knows, of course. But anyone considering the prospect of seeing a cyberlaw case in the U.S. Supreme Court next year should look hard at Cable News Network Inc. et al. v. CSC Holdings Inc., No. 08-448 (aka the Cablevision case), in which the broadcast television industry is seeking review of a Second Circuit decision turning back its copyright challenge to a cable television operator's proposed "remove DVR" service.

April 2, 2009

Feds Muscle in on Cybersecurity Game With Standards and Money

Sens. John D. Rockefeller IV (D-W.Va.) and Olympia J. Snowe (R-Maine) introduced a significant piece of legislation yesterday, the Cybersecurity Act of 2009 (S. 778). The measure puts the federal government, specifically the White House, at the center of the nation's cybersecurity effort and equips it with unprecedented authority to assert its will across the public and private Internet.