Electronic Commerce & Law Report Index-Summary

ACCESS TO INTERNET

– Broadband, stimulus build out

– Canada

See CANADA

– Censorship and surveillance, bill criminalizing U.S. corporate compliance with foreign internet censorship

See LEGISLATION, FEDERAL, HR 2271

– EU, “three strikes” copyright enforcement, data protection supervisor warns approach could be harmful, 215; comprehensive overhaul of electronic communications regulation delayed over “three strikes” controversy, 520; European Parliament Industry Committee approves amendment requiring court order to cut off internet services, 593; compromise reached on provision, court order requirement rescinded, 641; regulatory efforts temporarily derailed due to controversy, 669; member states refuse to accept requirement of court order prior to cutting off internet, 855; compromise proposed, 1544
– Filtering

See FILTERING

– France, anti-piracy bill rejected by French National Assembly, 521; law passes, no EC action against “three strikes” measure, 702; Constitutional Council rules only court can cut off internet access, 851; Senate approves version containing judicial review provision, 978; new version of law adopted, 1371; ruling by special judge required to cut off internet access, 1407; Constitutional Council approves new version, 1543
– Net neutrality

– – Authority of FCC supported in public interest brief, 1477
– – CFAA, throttling of internet access claim fails to plead damage and loss (S.D.N.Y.), 1046
– – EU, companies urge parliament to curb amendments allowing for service limitations, 417
– – FCC policy, codification urged, In Brief, 715; principles being readied for new chairman, 699; Copps drafting “fifth principle” of network nondiscrimination, operators may be amenable, 905; Genachowski proposes rulemaking, 1355; stakeholders divided on FCC proposal, 1400; lobbying intensifies as vote nears, 1509; notice of proposed rulemaking adopted, 1525
– – FTC has role to play in policing network management, chairman says, 699
– – Legislative outlook, Special Report, 31
– – Lobbying, tech firms work to support net neutrality activity, 1527
– – Motion picture lobbyists urge retention of ISP filtering ability, 1356
– – Musicians, Franken (D-Minn) says net neutrality is necessary for entrepreneurship, 1457
– – Network management practices, Boucher (D-Va) encouraging industry conversations, 222
– – Obama confirms support for net neutrality, 779
– – Open networks, public interest group suggests questions for FCC nominees, 854
– – Prohibition on blocking, impairing, or degrading internet service

See LEGISLATION, FEDERAL, HR 3458

– – UK, independent parliamentary group launches inquiry into role of ISPs, 589
– – Wireless

See WIRELESS COMMUNICATIONS

– N.M., air travel, passenger internet access services subject to gross receipts tax, 602
– Taiwan, copyrights, “three strikes” rule adopted to suspend internet use of infringers, 594

ACPA (ANTICYBERSQUATTING CONSUMER PROTECTION ACT)

See CYBERSQUATTING

ACQUISITIONS

See MERGERS AND ACQUISITIONS

ADVERTISING

– Affiliate marketing, pending state tax bills worry small businesses, 611
– Antitrust

See ANTITRUST

– “Astroturfing,” cosmetic surgery company settles charges over deceptive placement of positive reviews, 1018
– Attorneys

See ATTORNEYS

– Behavioral tracking

See BEHAVIORAL ADVERTISING

– Blogs, social networks, and mobile marketing, speaker advocates planning and knowledge of law prior to use, 1083
– Cal., single publication rule may control use of photograph (Cal.), 1220
– CDA, pop-up blocker shielded from claims by blocked internet services (9th Cir.), 923
– Click fraud

– – CFAA claim (W.D. Wash.), In Brief, 892
– – Judicial remedies may not solve problem, experts say, 433
– – Securities claim (N.D. Cal.), In Brief, 892

– Consulting services, use of mark in advertising is infringing (E.D. Va.), 614
– Contracts, craigslist agreement does not extend to third-party beneficiaries (S.D.N.Y.), 615
– Cookie stuffing, scheme to corrupt eBay affiliate data is unauthorized access under CFAA (N.D. Cal.), 369
– Copyright, preliminary injunction not granted where ads lack substantial similarity (S.D. Fla.), 926
– Court clerk website, misuse of funds alleged for private advertising and reelection campaign information (N.D. Ill.), 1176
– Dating services, protection from scam artists (C.D. Cal.), In Brief, 519
– Descriptive mark cannot establish secondary meaning by advertising (S.D. Fla.), 926
– E-mail

See E-MAIL

– European Union

See EUROPEAN UNION (EU)

– False designation of origin claim against Yahoo! for sponsored link fails (S.D. Tex.), 205
– False endorsement, aspiring model does not have to be a celebrity to proceed with claim (E.D. Mich.), 1092
– False light, marketing site registered to former employee establishes claim (Mo. Ct. App.), 106
– Faxes, class status rejected in TCPA unsolicited advertising claims (D.N.J.), 1296
– Florida

– – Jurisdiction, placement of online ad for Fla. company not tantamount to doing business in state (M.D. Fla.), 1016
– – Ringtones, mobile content company settles regulatory investigation into ad disclosures, 149
– – Wireless communications, Verizon agrees to settlement over mobile content marketing, 935

– France

See FRANCE

– FTC workshop, In Brief, 1191
– Gambling, collateral prosecutions of ad hosts used to try to control illegal gaming, 536
– Gun sale, CDA safe harbor shields craigslist from tort claim (S.D.N.Y.), 881
– Herbal cancer remedy, challenge dismissed for failure to prove party involvement (FTC), 1439
– Internal utilization of mark (S.D.N.Y.), In Brief, 446
– Japan, interactive advertising, ministry to work with industry to target mobile device users, 561
– Jurisdiction

– – AdWords, users of mark may have to defend claims where mark holder resides (D. Neb.), 731
– – Airline marks, forum selection (5th Cir.), In Brief, 375
– – Banner ads, use does not target forum residents (S.D. Ind.), 210
– – Biker bars, online advertisements not targeting forum do not create jurisdiction (D. Ariz.), 292
– – Photography, use in foreign advertisement does not target U.S. forum (N.D. Tex.), 110
– – Placement of online ad for Fla. company not tantamount to doing business in state (M.D. Fla.), 1016
– – Restaurant chain, internet advertising does not establish jurisdiction over remote franchisee (M.D. Pa.), 624

– Keywords

– – AdWords

– – – Class actions, consolidation (N.D. Cal.), In Brief, 375
– – – Contract and trademark claims (E.D. Pa.), In Brief, 963; claims voluntarily dismissed, 1131
– – – Language learning service claims AdWords are infringing (E.D. Va.), 1008

– – Class actions filed (E.D. Tex.), In Brief, 693; answers filed, 1131
– – Cosmetic marks, fair use in keyword ads turn on likelihood of confusion (N.D. Tex.), 334
– – Customer action filed (E.D. Tex.), In Brief, 694; Google claims against advertiser for contract breach (N.D. Cal.), 1131
– – Diamond seller, analysis of initial interest confusion over use of wholesaler mark requires context (D. Mass.), 768
– – Disagreement between mark owners and advertising sellers shown in panel discussion, 1103
– – France

– – – Counterfeiting, eBay convicted for use of luxury marks (TGI), 1468
– – – Unverified keywords create commercial torts (TGI), 140

– – Law firm (Conn. Super. Ct.), In Brief, 774
– – Metadata, sale of marks as sponsored links is use in commerce (2d Cir.), 467; automated processes may help enforcement of trademark claims, speaker tells conferees, 492; Analysis and Perspective, 564
– – Pharmaceuticals, risk information lacking, FDA tells companies, 487
– – Trademark use in ad text, In Brief, 715
– – Unsolicited fraudulent content, Google not liable, suit dismissed (N.D. Cal.), 10; keyword suggestion tool does not make Google a content provider under CDA, 1093
– – Video Professor marks, use by Amazon (D. Colo.), In Brief, 446

– Me., marketing to minors, In Brief, 1073; attorneys advise marketers to prepare for enactment of law, 1143; constitutionality challenged (D. Me.), 1251; challenge dismissed, legislature to reconsider law, 1295; Atty. Gen. will not enforce law, 1320; Analysis and Perspective, 1344
– Microsoft/Yahoo! joint venture expected to face government scrutiny, 1110
– Mobile advertising

See WIRELESS COMMUNICATIONS

– Mortgage relief scam ads, FTC orders search engines to refuse placement (D.D.C.), 734
– Opt-in requirement for sharing personal data constitutional (D.C. Cir.), 247
– Prostitution

– – Ill., craigslist charged with facilitation (N.D. Ill.), 331; “erotic services” section of site to be shut down, 696; CDA defense, In Brief, 1223; summary judgment granted on CDA defense, 1528
– – S.C., craigslist officials threatened with criminal prosecution for “erotic services” ads, 674; craigslist seeks injunction against prosecution (D.S.C.), 723; Atty. Gen. argues that CDA does not apply to criminal cases, 1043

– Realtor permitted limited use of architectural drawings does not have implied license for use in advertising (C.D. Cal.), 1047
– Scareware, settlement reached over fraudulent virus, spyware, and pornography scans (D. Md.), 928; FTC may pursue complaints against CEO for active role, 1365; officers may not avoid liability, 1391
– Social networking, deceptive “love crush” company settles claims (W.D. Wash.), 373
– Software, touting possession without legal access is false advertising (S.D.N.Y.), 541
– Spam control circumvention software (N.D. Cal.), In Brief, 1475
– Streamlined sales tax, direct mail delivery charges, defining amendment forwarded to governing board, 497; panel forwards proposed definition and rule changes, 631; forwarded to board without comment, 674; new language adopted, 713
– Telemarketing

See TELECOMMUNICATIONS

– Testimonials, attorneys urge FTC to reconsider inclusion of blogs in endorsement guides, 931; rewrite of rules could be finalized by year end, 1063; rule revision may have negative effect on new media marketing, attorney tells conferees, 1082; product reviews must be accompanied by disclosures, 1445; guidance raises concerns re state action under Mini-FTC Acts, 1488; traditional reviews not covered by guides, FTC official says, 1516
– Text messaging

– – iPhones, customers claim false advertising re MMS capability (N.D. Ohio), 1258; (N.D. Cal.), 1314
– – Marketing restrictions

See LEGISLATION, FEDERAL, HR 1391, S 788

– – TCPA, texts are “calls” under act, unsolicited messages may be violation (9th Cir.), 882

– Trademarks, advertise.com (E.D. Va.), In Brief, 1223
– UK, small print, ICO campaign urges users to pay attention to agreements and notices, 203
– Utah, adult entertainment group drops challenge to e-mail advertising registry (D. Utah), 1470

AGENCY

– Boat manufacturer, web link to local dealer does not establish agency or jurisdiction (D.P.R.), 623
– CDA, no agency liability where union members posted web comments on their own behalf (D. Nev.), 582
– Wikipedia, status of volunteer editors unclear, 130

AGRICULTURE

– Ill., commodities, electronic “price later contracts,” bill introduced, 318
– Rural Utilities Service

– – Administrator, Adelstein considered by Senate Agric. Comm., 984
– – Broadband, audit of loan program finds deficiencies, 555

AIR TRANSPORTATION

– Airline marks, forum selection (5th Cir.), In Brief, 375
– CLEAR, defunct company may not disclose personal information of members (S.D.N.Y.), 1207
– N.M., passenger internet access services subject to gross receipts tax, 602
– Trade secrets, low risk of disclosure by ex-employee to new employer, request to suspend employment denied (S.D.N.Y.), 885

ALCOHOLIC BEVERAGES

– Ky., commerce clause bars in-person wine purchase requirement (6th Cir.), 61
– Mobile advertising, new guidelines, In Brief, 18

AMERICAN RECOVERY AND REINVESTMENT ACT

– Broadband build out

See BROADBAND

– Electronic health records, privacy and data breach provisions draw praise and criticism, 261; flexible approach to standards accommodates changing technologies and best practices, 330; consumers must be told of breaches, 1185
– Spectrum allocation, letter from House members requests FCC to consider inclusion in national plan, 449
– Transparency, agencies must submit spending and performance data to website, 401

ANALYSIS AND PERSPECTIVE

– Arbitration clauses, enforceability in adhesion contracts, 19
– Behavioral advertising, self-regulation, advocates and lawmakers air concerns, 46
– Class action notice and new media, 1114
– Communications, federal legislative outlook, 24
– Copyright enforcement, fair use and DMCA's good faith requirement, 189
– Data breach and notification, new legislation possible, 44
– Deep packet inspection, wiretapping implications, 154
– Domain name tasting, 267
– Economic stimulus, broadband and digital television transition, 31
– European Union

– – Joint trademark infringement, 1192
– – Safe harbor program, onward data transfers, 1234
– – Wireless communications, location-based services, 866

– FCC regulatory outlook, 35
– FTC privacy agenda, 1117
– Metadata, use of trademarks as keywords, 564
– Network security, federal outlook, 38
– Privacy

– – Children and teens, 1344
– – Data mining rules, legislative outlook, 40
– – Personal information collection and the notice paradigm, 990

– Spyware, federal legislation may be reintroduced, 42

ANTICYBERSQUATTING CONSUMER PROTECTION ACT (ACPA)

See CYBERSQUATTING

ANTITRUST

– Advertising, Google monopoly claims

– – Business-to-business (S.D.N.Y.), In Brief, 253
– – Specific evidence lacking (9th Cir.), In Brief, 1441

– Books

– – Google book-scanning project challenged as anti-competitive (S.D.N.Y.), 1306
– – On-demand print sales may be unlawfully tied (D. Me.), 1261

– Chilling effects on innovation seen from antitrust investigations and enforcement, Lofgren (D-Cal) tells conferees, 1154
– Computer memory

– – Micron must defend price-fixing charges (D. Ida.), 333
– – Rambus did not engage in exclusionary conduct (U.S., rev den), 244

– Concerts, Senate panel examines Ticketmaster/Live Nation merger, 305
– Data markets, panelists discuss potential for abuses, 525
– Domain names, claim against VeriSign re no-bid .com deal may proceed (9th Cir.), 802
– DVD rentals

– – Kiosk service, boycott claims against studio may proceed (D. Del.), 1219
– – Wal-Mart/Netflix deal challenged (N.D. Cal.), In Brief, 82

– European Union

– – Central processing units, Intel to receive record fine, 660; fine imposed, five years of violations and cover-up alleged, 714; Intel files notice of appeal, 1066
– – Operating systems, full-time monitor no longer required for Microsoft, 352
– – Oracle acquisition of Sun, probe launched, 1342
– – Web browsers, EU likely to require Microsoft to offer competing products, 307; trade group gains “interested third party” status, 557; Association of Competitive Technologies joins case, Microsoft gets extension to respond to EU allegations, 558; Microsoft request for postponement of hearing denied, sanctions decision expected by November, 785; Commissioner not satisfied with disabling IE, proactive offer of other products may be required, 830; browser-free offer by Microsoft rejected, 862; major concessions welcomed by EU, 1066; tentative deal reached, 1487

– Football statistics, attempt to restrict use of player information is not monopoly (S.D. Fla.), 618
– Forum selection clause in eBay user agreement binding in claims unrelated to services (E.D.N.Y.), 843
– Google Book Search, DOJ opens antitrust investigation (S.D.N.Y.), 952
– Interlocking directorships, In Brief, 1113
– Mainframes, DOJ issues investigative demands re IBM, 1486
– Microsoft, DOJ seeks extensions of portions of final decree (D.D.C.), 550; continued progress reported on compliance with decrees, 1153
– Modem makers may amend patent complaint to add antitrust claims (D. Del.), 1014
– Online pharmacy, claims against pharmacy benefits managers are time-barred (5th Cir.), 621
– Search engines, documents sought by DOJ over Microsoft/Yahoo! partnership, 1343; advocacy groups urge rigorous examination of deal, 1368
– Social networking, refusal to deal by MySpace is not exclusionary conduct (9th Cir.), 207
– Software

– – Merger of auto repair loss estimate system makers enjoined (D.D.C.), 408
– – Microsoft, extensions to server provisions of final decree sought by DOJ (D.D.C.), 550; continued progress reported on compliance with decrees, 1153
– – Operating system (S.D. Fla.), In Brief, 1313

– Text messages, Senate hearing examines rates and competition, 903
– User privacy could be part of enforcement review, Varney promises robust scheme, 660
– Wireless communications

– – Competition, Kohl (D-Wis) sends letter to FCC and Antitrust Division of DOJ urging review, 986; FCC adopts notice of inquiry, 1268
– – Google iPhone application rejection triggers FCC inquiry, 1106; FCC waiting for more facts, 1151; Apple responds to inquiry, 1224

APPAREL

– COPPA, marketer settles FTC charges re collection of data (S.D.N.Y.), 1531
– Shoes, knowing trademark infringement might be felt in forum does not establish jurisdiction (D. Or.), 690

ARBITRATION

– Adhesion contracts

– – Enforceability of arbitration clauses, Analysis and Perspective, 19
– – Substantive statutory rights cannot be waived by clause (N.D. Cal.), 59
– – Video rental, site contract with unilateral right to modify is illusory, arbitration clause unenforceable (N.D. Tex.), 551

– Attorneys' fees, unconscionable clause in click-to-agree contract severable, arbitration clause found valid (C.D. Cal.), 691
– Cell phone contract clause not unconscionable based on consumer-friendly provisions (C.D. Cal.), 956
– Class actions

– – Large sums, class action unneeded, clause not unconscionable (S.D. W.Va.), 107
– – Wireless cards, arbitration clause prohibiting class action unconscionable (9th Cir.), 470

– Clickwrap, highlighted clause with 60-day opt-out not unconscionable (C.D. Cal.), 107
– Domain names, ICANN rejection of .xxx TLD to be reviewed by arbitrator, 151
– Electronic signature, security procedures at department store chain insufficient to prove employee executed agreement (D. Kan.), 469; continued employment not evidence of executed agreement, 1208
– Forum selection, failure to compel arbitration before social network account termination does not invalidate clause (W.D. Pa.), 655

ARGENTINA

– Third party content, Google and Yahoo! found liable (Juzg. N.), 1094

ARMED SERVICES

– Lost hard drive, no actual damages in Privacy Act claims against Veterans Affairs, Administrative Procedures Act claims may proceed (11th Cir.), 889
– Stolen hard drive, Veterans Affairs data breach class action settled (D.D.C.), 137

ATTORNEYS

– Advertising

– – Fla., proposed rules re testimonials on websites insufficient (Fla.), 374; claim alleges restriction on freedom of speech (S.D. Fla.), In Brief, 518
– – La., internet ads not subject to same rules as traditional media (E.D. La.), 1221

– Court clerk website, misuse of funds alleged for private advertising and reelection campaign information (N.D. Ill.), 1176
– E-filing, federal courts adoption nearly complete, attorneys must redact sensitive data, 99
– E-mail scams, attorney victims may face uninsured malpractice claims and ethics charges, 642
– Employment discrimination, DOJ applicants may proceed with political affiliation claims (D.D.C.), 1385
– Ethics

– – Electronic information, panelists discuss uses and pitfalls, 1517
– – N.H., lawyers may not review metadata in materials from opponents, 697
– – N.Y., misleading article (N.Y. Sup. Ct.), In Brief, 63
– – N.C., victories may be included on websites with disclaimer, 1439
– – Pennsylvania

– – – Metadata may be used, sender has duty to remove unwanted information, 696
– – – Social networking, attorney may not hire investigator to “friend” witness for access to private pages, 641

– – Vt., searching for metadata is not forbidden, 1438
– – W. Va., unilateral searches may not be made for metadata, senders must use reasonable care, 975

– Fees

See ATTORNEYS' FEES

– Jurisdiction

– – Direct copy of competitor website is purposeful direction of activities in forum (9th Cir.), 1139
– – Services website, no purposeful availment absent knowledge of competitor (N.D. Cal.), 142

– Keyword ads (Conn. Super. Ct.), In Brief, 774
– LexisNexis, overcharges (N.D. Cal.), In Brief, 1054
– N.J., professional conduct rules violated by attorneys accessing personal e-mail (N.J. Super. Ct.), 958
– Privilege

See PRIVILEGED COMMUNICATIONS

– Red flags rule, ABA favors exemption for attorneys, 938; ABA presses Congress and FTC for exemption, 976; FTC claims lack of authority to issue exemption, 1127; ABA files suit challenging rule, 1251; ABA seeks summary judgment, 1384
– Sanctions

– – Indefinite suspension for soliciting minor online (Minn.), 1301
– – Production of alleged spam in paper form not sanctionable offense (S.D. Ohio), 1130
– – Willful leak of confidential trial documents merits dismissal (7th Cir.), 1300

– Service of process may not be made on lawyers no longer representing target (E.D. Mo.), 516
– Trademarks (N.D. Ill.), In Brief, 294
– Trial tactics, improper argument supports enhanced damages (E.D. Tex.), 1212; appellate argument (Fed. Cir.), 1395
– Virtual worlds, monitor developments but do not practice online, speakers tell conferees, 494

ATTORNEYS' FEES

– Contingency arrangement, online travel firm seeks to disqualify attorney representing city in hotel tax suit (Cal. Super. Ct.), 1178; firm not disqualified, 1262
– Copyright, fees awarded based on dismissal for lack of subject matter jurisdiction (U.S., rev sought), 244
– Court reporter not entitled to lien for documents obtained under public records act (10th Cir.), 1310
– Cybersquatting, former CEO who set up website intended to divert traffic from nonprofit acted in bad faith, fees awarded (E.D. Va.), 725
– Defamation, site claiming fees owed was libelous, not cybersquatting to use name of target (E.D. Va.), 1468
– DMCA, successful motion to dismiss weak claims brings recovery of fees (D. Md.), 205
– Patents, no clear error in decision that baseless claim warrants fee award (U.S., rev den), 1460
– Unconscionable fee clause in click-to-agree contract severable, arbitration clause found valid (C.D. Cal.), 691

AUCTIONS

– Affiliate program, “cookie stuffing” scheme to corrupt eBay data is unauthorized access under CFAA (N.D. Cal.), 369
– Canada, eBay provides user information to Revenue Agency, 1113; order to provide information on high-volume sellers, 1465
– Consumer, definition (N.D. Cal.), In Brief, 694
– E-fencing

– – Recordkeeping and reporting requirements for high-volume sellers

See LEGISLATION, FEDERAL, HR 1166, HR 1173, S 470

– – State bills introduced, 328

– France, eBay may enforce agreements and terminate accounts without warning (C.d.C.), 771
– Ill., ticket resale sites, Chicago lacks authority to collect city amusement tax (N.D. Ill.), 514
– Jurisdiction

– – Ind., out-of-state auto purchasers who take possession are subject to claims in state (Ind. Ct. App.), 367
– – Ky., out-of-state vendor of vehicle not subject to jurisdiction (Ky. Ct. App.), 816

– Oil and gas leases, first internet sale to take place, 1340
– Spectrum

– – Administrative costs

See LEGISLATION, FEDERAL, HR 1105

– – D Block should be subject to early re-auction, Boucher (D-Va) says, 222; Verizon supports giving D Block to public safety entities, 821; no consensus on D Block, 1401
– – Survey, bill to be introduced by Boucher (D-Va) will direct NTIA to examine unused spectrum, 664
– – User fee collections and license auctions part of proposed Obama budget, 663

AUSTRALIA

– Privacy principles being created by government, 1514

AUTOMOBILES

See MOTOR VEHICLES