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LATEST BLOG POSTS

DNS Policy Notes for Dec. 10, 2014

Topics include the inclusion in the omnibus spending bill language defunding the NTIA's involvement in the IANA functions transition policy development effort, Secretary Strickling's continuing effort to inject fact-based reasoning to the discussion, and a White House screening of a documentary highlighting the pioneering programming work performed by women on ENIAC, the first electronic programmable computer.


DNS Policy Notes for Nov. 24, 2014

Topics include Russia's tightening grip on the Internet, Facebook's foray into health content sans GAC advice, the latest twist in the Yoyo.email story, trademark owners on a URS hot streak, and a pair of industry analyses of the new top-level domain experience so far.


DNS Policy Notes for Nov. 21, 2014

Topics include the Defending Internet Freedom Act of 2014, coverage of the World Internet Conference, the GAC's inquiry on additional protections for geographic names in new gTLDs, grousing about the NETmundial Initiative, and the defeat of the USA Freedom Act.


DNS Policy Notes for Nov. 18, 2014

Topics include an interesting turn of events in the Wyndham data security litigation, a report on the .nyc top-level domain, new UDRP rules to prevent cyberflight, free SSL certs, and the Internet Society's dim view of the latest turn in the NETMundial saga.


DNS Policy Notes for Nov. 14, 2014 (Hiatus Edition)

Topics include an examination of the anti-cybersquatting provisions in the Trans-Pacific Partnership agreement (embellished by speculation that the final text might contain privacy provisions), news that .bloomberg has been delegated, and pointers to a few good articles on the just-concluded ITU Plenipotentiary.


DNS Policy Notes for Oct. 1, 2014

Topics include a late objection to the Tata Sons Ltd. application for .tata, a request for reconsideration of the CPE panel decision awarding .radio to the European Broadcasting Union, and the federal bankruptcy courts' proposal that domain names be listed as assets belonging to the debtor.


DNS Policy Notes for Sept. 30, 2014

Topics include the latest wrinkle in the litigation over the nature of property rights in a ccTLD, a blast at the ICANN EWG report on a successor to the WHOIS registrant contact database, evidence of some last-mile lawyering over the .insurance gTLD, a list of ICANN GDD sessions at the Los Angeles meeting, and possible evidence that entrepreneurs might be better at picking TLD strings than ICANN.


DNS Policy Notes for Sept. 26, 2014

Topics include Namecoin's .bit TLD and trademark protections there, one trademark owner's long slog through the domain name recuperation process, a suggestion that free prioritization is as harmful as paid prioritization, ruminations about the current new gTLD application round, a W3C party, and the right to be forgotten.


DNS Policy Notes for Sept. 24, 2014

Topics include a new GAC proposal on protections for geographic names in the next gTLD round, money in technology politics, waning influence of the GNSO on the ICANN board nominating committee, and word that Verisign earns a paltry $93 million on .net registrations annually.


DNS Policy Notes for Sept. 23, 2014

Topics include more European grumbling about .wine and .vin, grumbling about the unfairness of .nyc's landrush policies, grumbling about competing DNS standards/policy groups, and grumbling about iPhones that allegedly bend when placed in a warm and tight location.


DNS Policy Notes for Sept. 22, 2014

Members of the legal profession with a less-than-ideal .com domain name will soon have an opportunity to rectify the situation, thanks to the coming availability of several law-related domains.


DNS Policy Notes for Sept. 19, 2014

Topics include Russian preparations to disconnect from the outside Internet, phishing spotted in the new gTLDs, a U.S. State Department report on a Pleinpot prep meeting, privacy in Europe, and an update on ICANN's plans for another round of top-level domains.


DNS Policy Notes for Sept. 18, 2014 (Server Crash Edition)

Topics include attachment proceedings over the .ir top-level domain, privacy choice and fiduciary access to digital assets, new life for former .green aspirants, the FCC's net neutrality mailbag, and fretting over Internet fragmentation.


DNS Policy Notes for Sept. 16, 2014

Topics include possible new life for .music community applicant, worries about GAC dominance within ICANN, and valuing domain names.


DNS Policy Notes for Sept. 15, 2014

Topics include the latest ICANN correspondence regarding the .wine and .vin applications, delays in the Community Priority Evaluation process, squatting in .church, a new crackdown on online speech in Turkey, and a highly informative discussion on Internet governance convened by the World Economic Forum (and it's not the NETmundial one).


DNS Policy Notes for Sept. 5, 2014

Topics include the ICANN Generic Names Supporting Organization's discussions on the next round of new top-level domains, the growing number of new entities with a stake in the DNS, reactions from IGF 2014 in Istanbul, and a charming little video about the virtues of a free Internet.


DNS Policy Notes for Sept. 4, 2014

Topics include ICANN board's latest response to GAC calls for tighter controls over top-level domains in regulated sectors, a debate over the success (or not) of ICANN's new top-level domains program, a few early returns on a proposal to strengthen the hand of the GAC in ICANN policymaking, and selected tweets from IGF 2014 in Istanbul.


DNS Policy Notes for Sept. 2, 2014

Topics include the upcoming GAC leadership elections, ICANN's possible role in Internet governance, big-city yearning for new TLDs, and a handful of recently delegated strings.


DNS Policy Notes for Aug. 27, 2014

Topics include ICANN Generic Names Supporting Organization's imminent selection of a liaison to the GAC, new policymaking work on IGO-INGO protections in the new gTLDs, livestreaming the NETmundial Initiative event in Geneva, and a peek at the Republican Party's use of the register.gop domain.



DNS Policy Notes for Aug. 25, 2014

Topics include a prediction of 300 new gTLD applications from large cities in the next round, details on the NETmundial Initiative, worries about moves to give the GAC greater authority at ICANN, a few noteworthy events, and the latest on the fight for the .music top-level domain.


DNS Policy Notes for Aug. 22, 2014

Topics include a report the Iran wants to give ICANN's Government Advisory Committee a decision-making role in ICANN policy development processes, the work of the GNSO's Privacy and Proxy Services Accreditation Working Group, domain locking services, sharing copyrighted video on Vine, and today's meeting of the ICANN Board Governance Committee.


DNS Policy Notes for Aug. 21, 2014

Topics include ICANN board chair Steve Crocker's remarks at Aspen Institute, ICANN CEO Fadi Chehade's decision to pull ICANN back from a leadership role on sweeping Internet governance issues, claims of unfairness in WIPO's handling of domain name disputes, heated marketing rhetoric from new gTLD registries, and ICANN's selection of Dublin, Ireland, to host its October 2015 public meeting.


Has the URS Fallen Into Disfavor, or Have Cybersquatters Identified Valuable Domains?

What conclusions can be drawn from the fact that, recently, the Uniform Domain Name Dispute Resolution Policy is proving more popular than the Uniform Rapid Suspension Service for disputes in the new top-level domains? First, if a cybersquatter has identified a valuable bit of property and/or the trademark owner has miscalculated its interests in the new top-level domains, then transfer under the UDRP is the reasonable choice of remedy. Second, the URS seems suited only for dealing with nuisance registrations.


Looking Back at ICANN: NSI's Courtroom Victories Paved Way for Modern Domain Name Industry

Domain name registrars, registries, and even ICANN itself, with its aggressive new top-level domain program, all operate in a business environment that is nearly free of litigation. For this they can thank Network Solutions Inc., whose legal department built, in court and in Congress, the legal foundation on which the domain name industry rests today. The third in a series drawn from Bloomberg BNA's early coverage of ICANN.


Looking Back at ICANN: First Taste of Incumbent Intransigence, Congressional Oversight

The U.S. Department of Commerce might have intended in 1998 to make the Internet Corporation for Assigned Names and Numbers the new administrator of the domain name system. But Network Solutions Inc., then the exclusive registry operator and registrar for the commercial Internet domain name space, wasn't buying it. ICANN had a piece of paper, true, but it had to fight NSI and the House Commerce Committee chair throughout 1999 for the authority to manage the DNS. The second in a series drawn from our early coverage of ICANN.


Looking Back at ICANN: Fielding Tough Questions From Day One

Seemingly possessed with the soul of a circus impresario, the self-righteousness of a bishop, and the hide of an armadillo, the Internet Corporation for Assigned Names and Numbers has so far had the last word with all of its detractors. This post is the first in a series drawn from our early coverage of ICANN's formation and first encounters with federal regulators, intellectual property owners, and the industry it was created to govern and promote.


NTIA Escapes IANA Spending Restriction in Senate Spend Bill

The National Telecommunications and Information Administration escapes the Senate Appropriations Committee's budget process with no limits on its ability to work toward transitioning IANA function oversight responsibilities to a global, multi-stakeholder entity. But NTIA didn't get off scott-free, and it is not out of the woods yet.



ICANN Reader: IANA Transition Away from U.S. Draws Widespread Concern

Three things can happen when you pass the football, and two of them are bad. A roundup of reaction to the news that the U.S. Department of Commerce will be transferring its oversight role for key functions in the domain name system to an as-yet-undetermined entity chosen by the community of Internet stakeholders.









Muzzled Attorney Is No Cure for 'Wired Juror' Problem

An appellate court in California explores the First Amendment implications of a trial court order directing the plaintiff's attorney to remove several pages from her website during a jury trial. The trial court was concerned that it would prejudice the jury to learn that the plaintiff's attorney had obtained large verdicts in similar cases, a fact that was publicized on the attorney's website. Law bloggers definitely dodged a bullet here.


The FCC's New TCPA Regulations: Less Efficiency May Save Money

On Nov. 13, Bloomberg BNA will hold a webinar on compliance and litigation avoidance issues raised by the Federal Communications Commission's new Telephone Consumer Protection Act regulations for automated calls and text messages to mobile phones. TCPA exposure can rise quickly into the six-figure range because statutory damages are available for each unlawful call. Among the compliance strategies likely to be discussed is the advantage of using human beings instead of machines to make calls and send texts to mobile phones.


Passenger's Twitter Griping May Have Put Airline Agent in False Light

In Tennessee, an appellate court holds that an airline passenger's publication on Twitter and Facebook of very unflattering -- and allegedly false -- statements about her experience with a particular airline employee could be actionable as false light invasion of privacy. The ruling underscores the fact that social media are important avenues for communication, that online reputations matter, and that courts are taking social media seriously. The court affirmed dismissal of a related defamation claim, however.


Federal Agencies Give New Advice on Proper Collection and Use of Mobile Numbers

Big changes are coming in the way the businesses collect and use mobile phone numbers. In its recent settlement with a debt collector that used text messages to chase down debtors, the Federal Trade Commission signaled its belief that businesses must work harder to provide lawful disclosures on small-screen devices. The FTC also indicated agreement with the Federal Communications Commission's demanding new definition of "express prior consent" to receive text messages on a mobile device.


Are Carrots Dead?

Notwithstanding the immense popularity of broccoli, carrots can still be found in the produce department of every grocery store and nearly every pot of chicken soup. So too with the press release, a traditional means of communication that, while lately taking a back seat to social media, still remains a useful component of a law firm's marketing communications strategy.


Wine Trade Groups Want .Wine, .Vin Domains Crushed

Senior legal editor Amy E. Bivins reports on the efforts of wine industry trade associations to block applications with ICANN to add .wine and .vin top-level domains to the Internet. It's a multi-layered story with strong notes of market disruption, opportunism, international trademark law, threatened litigation, and GAC lobbying. Reads well now, should gain further complexity through 2014.



It's Not a Real Cloud

A federal trial court turns a cold shoulder on one attorney's contention that the Computer Fraud and Abuse Act applies only to computers and not to clouds.


A Pair of Dangerous Legal Arguments

A legal dispute between two sports betting information services is the setting for two dangerous legal claims. The first is that the mention of trademarked terms on a message board can amount to trademark infringement. The second is that a website policy that does not explicitly forbid the submission of  unlawful content might make the website operator a culpable developer of unlawful user submissions. The court turns back the trademark claim, but appears to embrace the contention that the website operator is not entitled to CDA Section 230 immunity on the facts alleged here.


California Voters May Get Chance to Create Privacy Protections

Last week former California state senator Steve Peace launched a ballot initiative to add new privacy protections to the California Constitution: opt-in privacy, a broad definition of personal information, a presumption of harm from unauthorized information transfers or loss -- the proposal is a nightmare for online marketers. Assuming it gets on the ballot and the voters eventually approve it, constitutional problems and few friends at the federal level seem destined to consign the effort to "California dreamin" status.


ICANN Legal Rights Objections: What's Past Is Prologue

As of today, panelists at the World Intellectual Property Organization's Arbitration and Mediation Center have decided 12 trademark-based legal rights objections to a proposed top-level domain -- rejecting every one of them. With 53 legal rights objections remaining to be decided, the only surprise the future might hold is the faint prospect that a WIPO panelist might actually rule in favor of a trademark owner.


Wyndham Case Threatens to Put FTC Out of Data Security Business

The Federal Trade Commission has a critical piece of litigation on its hands in a New Jersey federal court. A case that could be decided any day. After filing, and settling, over a dozen enforcement actions asserting that lax data security measures were an "unfair" trade practice, one FTC target had the nerve to fight back: Wyndham Hotels. The hotel chain claims that the FTC lacks legal authority to, in effect, legislate data security standards for U.S. businesses via its existing authority under Section 5 of the FTC Act.



Ninth Circuit Vacates Fair Use Finding in Righthaven Case

The Ninth Circuit likely placed the last nail in Righthaven's coffin today. Along the way, however, the court vacated the portion of the lower court's opinion that held the the copying of the entirety of a newspaper article and posting it to an online discussion board was a protected fair use.


The Nation's First Privacy Goalie

Hockey goalies tend to receive too much credit for the wins and too much blame for the losses. I have a feeling it's going to be that way for Nicole S. Wong, the Twitter and former Google lawyer whom President Obama will reportedly soon nominate for the White House's chief privacy officer.


Georgia Bill Would Regulate Online Self-Help Publishers

The Georgia Senate is considering Senate Bill 209, a curious piece of legislation that appears to mandate a disclosure on all self-help publications indicating that such publications "are not a substitute for the advice of a professional in the relevant industry." There is a lot of self-help material on the internet.


Race Toward New gTLDs Finish Line Sparks Debate on ICANN's Policy Methods

Within the community that supports domain name policymaking at the Internet Corporation for Assigned Names and Numbers, the question of whether a particular matter is "policy" or "implementation" is an important one. "Policy" at ICANN must be the product of a consensus-driven process that involves all relevant members of the ICANN community. "Implementation" matters, on the other hand, might be adopted by the ICANN board of directors without involving ICANN's various constituencies to any great extent. ICANN is currently studying the "policy vs. implementation" question, and is looking to develop guidance to help it decide which matters should be referred to the entire ICANN community for policy work and which matters are mere implementation details that can be hendled on an expedited basis.


Cyberlaw Predictions: Competition, Trademarks, Online Contracts

Several key competition issues are percolating to the surface as the world transitions from the public switched telephone networks to all-IP voice and data networks, from physical storefronts to websites, from paper-based to electronic media, from broadcasting to sharing: competition among the dwindling number of internet service providers, competition among electronic content distributors, competition for scarce IP addresses and domain names, and competition among online advertising platforms. Also in this space: the persistent "digital divide" and the free speech rights internet service providers and their customers.The sixteenth and final entry in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Technology and Society, Free Speech, Consumer Protection

Lawyers who make their living at the intersection of law and technology are among the most engaged, optimistic, and passionate attorneys I've had the pleasure to meet. We received dozens of comments offering insights about where technology is taking society. Also collected here: free speech online and consumer protection. The fifteenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Big Data

The year 2012 saw law enforcement officials, businesses, and even candidates for political office embrace "big data" technologies. Many contributors remarked that, in 2013, "big data" will test an already creaky information privacy regime in the United States. The fourteenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Data Security, Cloud Computing, and Identity Management

Most observers see Congress again picking up cybersecurity as a policy priority in 2013. If Congress doesn't act, President Obama may very well impose his own cybersecurity program. Increasing levels of identity theft and other cybercrimes may lead courts, or the Federal Trade Commission, to fashion new data security standards of care for net-connected businesses. The thirteenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Copyright in Congress and the Courts

As Chico Escuela might have said, "Copyright lawyers been berry, berry good to me." Copyright law was again in 2012 a prolific source of cyberlaw policy issues to write about. Everyone is expecting more the same in 2013. The twelfth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Privacy Reforms in the European Union and Elsewhere

While lawmakers in the United States continued their painstaking examination of the need for online privacy regulation, the European Commission released a proposal for Europe's second set of privacy rules, the proposed General Data Protection Regulation. It's a doozy by American standards. The eleventh in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: The Privacy Policy Debate in the United States

Information privacy is a legal issue that continues to command attention in Washington. As it has for the past 20 years. Will 2013 be any different? The tenth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: International Pressure on Internet Governance

Most folks in the internet community are passionate about keeping the government role in internet policymaking to an absolute minimum. They've held their own for the past few decades, but now that the internet has become such a great economic and social force, fending off pressure from governments to control how and where the internet works is a constant battle in the online industry. The ninth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Unfinished Legal Business on Social Media

The one-two punch of content-sharing social networks and always-connected, location-aware cell phones has transformed the way we communicate with each other. Expressive and artistic speech, political speech, commercial speech, speech about the workplace, even speech about cute furry animals, have all moved into the social media space. Lawmakers and law enforcers are not far behind. The eighth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Protecting Trademark Interests in the New Domains

According to trademark attorneys, the time for complaining about ICANN's new top-level domains initiative is over and the time for vigilance is at hand. The sixth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: High Court Dismissal of WEC Carolina Energy Solutions Petition Will Sting

Employer-side attorneys hope that 2013 will be the year they get the green light to use the Computer Fraud and Abuse Act against employees who take valuable digital information with them when they depart for another employer. The seventh in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: ICANN's Brand New Day

The Internet Corporation for Assigned Names and Numbers, after a very long, messy, seemingly ad hoc, and at-times troubled gestation period, is about to midwife a large number of new top-level internet domains. Trademark owners will have their say in the next post. Today we hear from those who, for the most part, see positive change coming to the internet. The fifth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: The Software Patent Scene

To what extent are software patents throttling innovation in the online economy, and how will last year's policy changes in the patent system play out in 2013? The third in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Crucial Time at the Federal Trade Commission

Gridlock in Congress on privacy policy, a big case in Arizona testing the Federal Trade Commission's authority to create de facto national data security standards via Section 5 enforcement actions, and changes in key FTC leadership positions all suggest a busy 2013 for privacy at the agency. The fourth in a series of short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Privacy Litigation in the United States

What is the outlook for privacy-related litigation in the Unites States? The second in a series collecting short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions: Aftermath of SOPA/PIPA

What does the failure of the SOPA and PIPA copyright enforcement measures mean for lawmaking in this area in 2013? The first in a series collecting short takes from legal and business experts about the directions cyberlaw policy might take in 2013. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts sent us their thoughts.


Cyberlaw Predictions for 2013

This year we farmed out our annual cyberlaw predictions story to as many experts as we could identify, drawing from our subscriber lists, our advisory board, and our most-frequently consulted legal experts. Over 100 attorneys, law professors, online business executives, policy advocates and other cyberlaw experts responded, producing 307 separate assessments, predictions, or just plain complaints about any topic that fell under the general heading of cyberlaw.


Issa: Stop Us Before We Legislate Again

U.S. Rep. Darrell Issa (R-Calif.) floated this week a draft law to prevent Congress from legislating on internet-related matters for a period of two years. Issa's unworkable, semi-serious and DOA proposal has all kinds of bad consequences, both intended and unintended.


Today is Conflict of Interest Day at ICANN

The Internet Corporation for Assigned Names and Numbers shot itself in the foot today over conflict-of-interest problems high up in the organization. Twice.

 



What One ICANN Journalist Thinks

I had the opportunity to participate on the What the Journalists Think panel at last week's Internet Corporation for Assigned Names and Numbers meeting in Toronto. The panel moderator didn't ask many of the questions he said he would ask. So now I have several pages of "unused" notes. Unused until now.


Stored Communications Act Doesn't Reach Opened Webmails

Maybe the South Carolina Supreme Court got it right today when it held that the 1986 Stored Communications Act does not protect opened email messages on a Yahoo! webmail account. Or maybe the court erred. Nobody knows for sure, and that's a problem.



ITU's Toure: WCIT Talks Are Not About Internet Governance

An editor on our staff, David McAuley, was fortunate to obtain an interview last week with International Telecommunication Union Secretary-General Dr. Hamadoun I. Touré. The U.S. government has hammered away at Touré and the ITU all this year, accusing the international telecom body of  using the upcoming World Conference on International Telecommunications (WCIT-12) talks in Dubai as a forum to wrest key internet governance functions away from the private sector (and the U.S. government). The accusations clearly rankled Touré, who spoke at length about what WCIT is and is not about.


The Shrinking Relevance of Shrinkwrap Decisions

The Second Circuit released today a very important opinion on the application of contract law to online contracting practices. The opinion contained a mini-treatise on contract law pertaining to online contract formation as well as an interesting discussion of the relevance of shrinkwrap license rulings to current online contracting practices.


Court Says Facebook 'Fans' Don't Translate Into Protected Expectation of Business

A federal court in Michigan has ruled that the wrongful takedown of a Facebook page with 19,000 fans will not support an action for tortious interference with a business expectancy. The court reasoned that the relationship between Facebook "fans" an actual business as a result of social media interest is too tenuous to support a tort claim. Unlike!


Fourth Circuit: Computer Use Policies Don't Create CFAA Liability

Employer-side attorneys got a bitter pill yesterday when the Fourth Circuit held, emphatically, that it is not permissible to build a Computer Fraud and Abuse Act case against departing employees based on violations of company computer use policies. The court's opinion comes just in time for the government to add it to a possible petition for certiorari in United States v. Nosal. The petition is due at the Supreme Court on August 8.


Professional Hockey's TCPA (And Other) Privacy Problems

When it comes to privacy policies, the experts say "one size doesn't fit all." For the National Hockey League, one size -- one lawful, properly written and displayed privacy policy -- would be an improvement over what I found.



A Case of Reaping Where They Have Not Sown

ICANN's new top-level domains may produce a close approximation of a global trademark. Dave Winer, one of the founding fathers of the blogging movement, is not happy at the prospect that somebody is soon going to acquire exclusive rights to .blog and all the goodwill that goes with it.


ICANN's New Top-Level Domain Initiative: An Appreciation

The Internet Corporation for Assigned Names and Numbers' plan to add thousands of new top-level domains to the internet, whether we need them or not, is a natural consequence of the government's policy to allow the free market to operate in this space. There will be excesses and rip-offs, there will be failures, there will be preposterous claims and stunning chutzpah, but it's going to be all right.


A Privacy Gap as Wide as the Atlantic Ocean

When the forthcoming Department of Commerce's privacy white paper and the European Commission's proposed data privacy regulation are laid side-by-side, they will reveal a gap in views on privacy as wide as the Atlantic Ocean. It will be interesting to see if common ground can be found between one party that sees privacy as a human right and another that sees privacy as a tax on information-intensive businesses.


Nosal Rehearing Could be the Start of Something Big

Last week's decision by the Ninth Circuit's decision to grant rehearing in United States v. Nosal , 642 F.3d 781 (9th Cir. 2011), is shaping up to be the best available opportunity to sharpen the definition of an important phrase in the Computer Fraud and Abuse Act . Namely, the meaning of "exceeds authorized access," a key CFAA term that can narrow the reach of the statute to outside hackers only or expand its reach to potentially anyone who violates a website terms of use agreement.



Ninth Circuit Says ECPA Protects Foreign Citizens

Provisions of the Electronic Communications Privacy Act that forbid internet service providers from disclosing the contents of electronic communications protect e-mail accounts belonging to foreign citizens, the U.S. Court of Appeals for the Ninth Circuit held Oct. 3 in a case of first impression at the federal appellate level. The court affirmed a lower court's refusal to force Microsoft Corp. to turn over to a civil litigant e-mail messages belonging to an India-based user of Microsoft's Hotmail e-mail service.


A Pair of Googlers

In yesterday's ruling in Trafficschool.com Inc. v. Edriver Inc. , No. 08-56518 (9th Cir., July 28, 2011), Chief Judge Alex Kozinski used the term "googler" to describe a person searching the internet via the Google search engine. He was writing about allegedly deceptive sponsored links that would "take the googler to DMV.org."


Congressional Attention Turns to Internet Issues

By my count, there are five congressional hearings on internet law issues scheduled to take place in the next week or so -- and two more promised by Senate and House committee leaders. That's a lot of legislative attention, especially when you consider that federal legislators would rather drink the Potomac River than grapple with privacy, antitrust, and net neutrality issues.

Online privacy policy has been avoided for nearly two decades. Knotty internet governance questions have been dodged and booted over to the Department of Commerce (who in turn passed it to the Internet Corporation for Assigned Names and Numbers in 1998). Same story with net neutrality, which Congress dithered over for years until the Federal Communications Commission finally acted -- feebly and possibly unlawfully -- in 2010.


Cyberlaw Links for Monday, May 2, 2011

Here are some interesting articles I ran across last week, followed by my two cents. Topics: the unfortunate intrusion of the federal junk fax statute into interactive media, how the unresolved orphan works issue is muting our musical heritage, one court's belief that owners of wireless routers owe a duty of care to protect the pornography industry, and how clean brands can do business in .xxx.


Fourth Circuit's Turnitin.com Ruling Brings More Trouble for Plaintiffs

The case of A.V. v. iParadigms LLC ( lower court ruling here ) had a lot of cyberlaw juice when a federal district court decided it last spring. Rulings on digital fair use, electronic contracting, and computer fraud were all in there -- arising from the defendant's turnitin.com plagiarism detection service. Turnitin.com, operated by defendant iParadigms LLC, works like this: students are forced by their teachers to electronically file their written work with the turnitin.com Web site (but not before assenting to an onerous e-contract). Turnitin.com then compares the newly submitted work against its database of existing student work, delivering to its educational institution customers an assessment whether the new work is the result of plagiarism.


Double-Dipping on Statutory Damages in Copyright

Double recovery -- being compensated twice for the same injury -- is discouraged in most areas of the law. Not so apparently when it comes to statutory damages for copyright infringement, as Judge Kimba Wood ruled April 6 in Arista Records LLC v. Lime Group LLC , No. 06-5936 (S.D.N.Y., April 6, 2011), a case in which the court has already found LimeWire liable for inducing many copyright infringements committed by its users.


The WIPO Cybersquatting Statistics

The World Intellectual Property Organization is out this morning with its annual statistics on the number if cybersquatting cases handled by its Arbitration and Mediation Center. WIPO says that its domain name arbitration business was up 28 percent in 2010. According to WIPO, trademark owners filed 2,696 cases (covering 4,370 domains) under the ICANN Uniform Domain Name Dispute Resolution Policy last year.


Facebook Sued for Allegedly Promoting Racist Content

As far as I know, no reported case has yet extended the protections of Section 230 of the Communications Decency Act to Facebook. This case might be the first.

I can't think of any reason why Facebook wouldn't be entitled to immunity for allegedly unlawful content on one of its subscriber's pages. Interactive computer service. Third-party content. Non-IP claim. Unfortunately, the complaint is not yet on the plaintiff's website.


Counsel at Leading Social Sites Describe Crush of User Content Takedown Requests

Santa Clara Law School's High Tech Law Institute held an event March 4 to commemorate the 15th anniversary of the enactment of Section 230 of the Communications Decency Act , the landmark cyberlaw that gives internet publishers the freedom to police their networks and to publish the views of users without fear of creating legal liability. Mostly, CDA Section 230 insulates online companies from liability for publishing libelous material written by others, though it has been put to many other defensive uses during the last 15 years.



Magistrate: Lenz Waived Attorney-Client Privilege Through Chats, Blogging

In addition to copyright infringement, trademark infringement, loss of employment, loss of prospects for employment, loss of friends, loss of privacy, cyber-bullying, cyber-stalking, defamation, juror misconduct, home robbery while you're out of town, and plain old creating evidence that can later be used against you in court, we can now add waiver of attorney-client privilege to the list of bad things that can happen through ill-advised use of social media.


The Elections

The federal election of 2010 will bring the same sort of change in technology policy that followed the elections of 1992, 1994, 1996, 1998, 2000, 2002, 2004, 2006, and 2008. Not much. Nobody gets elected or loses their seat on the burning tech policy issues of today. The electorate doesn't seem to care about net neutrality or online privacy or software patents or copyright trolls and digital fair use. Over at the Precursor Blog, Scott Cleland, a rabid Google foe who also believes in the unicorn of a competitive telecom market, has uncovered one nugget of truth: no candidate who signed a net neutrality pledge won election last night. Most of those candidates looked like small potatoes to me, so it's far from clear that net neutrality had the impact on the election that Cleland ascribes to it. Still, it's undoubtedly true that there is no juice at all in net neutrality as a political issue. No incumbent legislator signed the pledge.


Will the Supreme Court Ever Hear an Information Privacy Case?

The U.S. Supreme Court's landmark privacy cases, cases like Roe v. Wade that found in the Due Process Clause a right to reproductive freedom, or Cruzan v. Missouri Dept. of Health that found a constitutionally protected liberty interest in making end-of-life decisions, have conditioned people to believe that the wise men and women on the U.S. Supreme Court will save us from the worst excesses of government and our fellow citizens.


Mixed Result for Google Today in European Courts

It looks like Google won one, and lost one, in European courts today. Over at its European Public Policy Blog today, Google is publicizing a Spanish court's decision to dismiss copyright infringement claims brought by a television broadcaster against the YouTube video-sharing website. According to Google's account of the ruling, the court ruled that it was the copyright owner's responsibility to police for infringements and then to identify infringing material on the site; notification would create a legal duty for YouTube to take down the infringing materials.


Did Iqbal/Twombly Raise the Bar for Browsewrap Claims?

Judge Leonie Brinkema of the Eastern District of Virginia issued an interesting opinion earlier this week in a case involving one company's multiple acts of datamining a competitor's website with a screen-scraping program. Among other things, the court held that the plaintiff had failed to allege a valid breach of contract claim, a claim based on data use restrictions in a browsewrap presentation. The court said that the plaintiff's unadorned allegations that "the terms of the TOUs [Terms of Use] are readily available for review" and that the defendants had an "opportunity to review" the terms fell short of the pleading standards set out in a pair of recent Supreme Court decisions.


Craigslist Fighting to Keep CDA 230, First Amendment Case Alive in South Carolina

It seemed like only a matter of time before craigslist would prevail in a related action it initiated in South Carolina. By "related," I mean that the South Carolina litigation arose from the same substantially similar set of operative facts as the Illinois case. Just as in Dart, a public official (South Carolina Attorney General Henry McMaster) claimed that craigslist was criminally liable for online prostitution ads appearing on the site. McMaster, who at the time was running for the Republican nomination for governor, had engaged in a lot of public saber-rattling -- threatening on several occasions to shut down craigslist unless the site banished prostitution solicitation from its South Carolina listings. On one occasion, McMaster told a television reporter that he was "preparing for a prosecution" and that the "#1 defendant is Mr. Jim Buckmaster, who is the man in charge of craigslist ... craigslist is a big promoter and facilitator of prostitution."


Lawyers Love Social Media

I'm sitting here staring at materials for the American Bar Association's Annual Meeting later this week in San Francisco. I don't remember a time when there were more internet-related programs on the schedule. The top of mind issue this year appears to be social media, a technological phenomenon that has seeped into just about every corner of the law.


Pro Se Litigants Secure Big Victory for Domain Owners in Ninth Circuit Trademark Ruling

The Ninth Circuit today released a cranky but important decision on the application of the trademark law's nominative fair use doctrine as it applies to the selection of an internet domain name that contains a trademarked term. The case involved Toyota's trademark infringement claims against a pair of auto brokers that operated at the buy-a-lexus.com and buyorleaselexus.com domain names. The lower court enjoined the auto brokers' use of the Lexus marks in the domains, but the Ninth Circuit said, in effect, not so fast.


Utah E-Signatures Ruling Could Have Broad Reach

Yesterday the Utah Supreme Court ruled that electronic signatures -- submitted through a website -- are valid signatures under the state's election code. The court's ruling creates a Pandora's box of election law issues for state officials who had -- until yesterday -- not given any serious thought to the prospect that candidates for political office in Utah have a right to use electronic media to collect and submit nominations for political office.


E-Mail Headers Designed to Elude Spam Filters Aren't Unlawful in California

Another anti-spam litigant took one on the chin today. The California Supreme Court ruled in Kleffman v. Vonage Holdings Corp. , No. S169195 (Cal. June 21, 2010), that an e-mail marketer's act of sending commercial e-mail messages from multiple, random and nonsensically named domain names is not unlawful under California's anti-spam statute, Cal. Business and Professions Code 17929.5. Even if the sender's purpose is to evade spam filters.


High Court Sidesteps Big Privacy Questions in Quon Pager Case

Nobody, it seems, not Congress, not even the U.S. Supreme Court wants to make a definitive statement about the privacy rights online. The high court said today that the time is not yet right to make a constitutional ruling about electronic privacy. Given the rapid pace of change in information technology and the relatively little attention online privacy issues have been given by Congress, state legislatures, and lower courts, it would not be prudent for the court to attempt to prematurely decide--and thereby conclusively establish as a matter of constitutional law--which kinds of online privacy expectations society is prepared to protect against intrusion.


Improbable Argument Lifts Katrina Scammer's Identity Theft Conviction

Don't tell my boss, but I just spent the last 30 minutes reading about social security numbers. It was fascinating.

Do you know that the Social Security Administration has issued over 420 million different social security numbers?

Do you know that by using the SSA's nine-digit format (XXX-XX-XXXX), it is mathematically possible to create over one billion different social security numbers? However, because the SSA has administratively decided that some combinations will not be made available, the actual number of possible social security numbers is 980 million.


Goldman Sachs Defending ''Hot News'' Claim in New York Court

From DarkReading.com , a story about a federal lawsuit against Goldman Sachs and several unknown Goldman Sachs employees who allegedly logged into, and stole thousands of records from, the plaintiff's database of investor contact information. The database was protected by a restrictive license and by passwords.

The lawsuit has several aspects that make it worth watching. First, the plaintiffs claim that Goldman Sachs should be liable for its employees' violations of the Computer Fraud and Abuse Act. Few cases discuss the circumstances under which an employer can be held liable for an employee's CFAA violations. Cases like Butera & Andrews v. IBM Inc. , No. 1:06-CV-647 (D.D.C. Oct. 18, 2006), create a high hurdle for plaintiffs, stating that intentional conduct on the part of the company must be proven to create CFAA liability.


File-Sharers Have Little But Not Zero Privacy

A shred of victory for online privacy in the Second Circuit's otherwise adverse opinion today in Arista Records LLC v. Doe 3, No. 09-905 (2d Cir., April 29, 2010). The case was about how specific a copyright owner's complaint must be in order to overcome an unknown file-sharer's First Amendment right to anonymity. For my lawyer readers, this case is about the meaning of Twombly/Iqbal for copyright infringement complaints.


Sen. Schumer, You Cannot Be Serious

I try not to lard this blog with too much personal opinion but after reading the thousandth news article about Sen. Charles Schumer's rousing call for the Federal Trade Commission to write guidlines on privacy in social networks, I have to say, in the words of my boyhood hero John McEnroe, "You cannot be serious." Schumer is asking the FTC to do his job for him. Surely Schumer -- who has been in Congress since 1991 and in the Senate since 1999 -- knows that the FTC's authority to regulate online privacy is on very shaky and politically charged ground. At a minimum, he knows that Congress has failed to act, despite calls for federal online privacy legislation for over a decade.


In the Laboratory of the States, a Few Spills

State legislation offers a good window into how people are feeling about technology. Whereas Congress' agenda tends to reflect the business community's needs, state legislation tends to be much more for the people, by the people, if you know what I mean. Just this morning, sifting through a few state-law proposals, I learned that (1) folks are deeply unsettled by Google Street View and file-sharing software, (2) somebody in Louisiana doesn't think it's fair for businesses that purchase software to have to compete with businesses that don't, and (3) it's OK to surreptitiously slip a RFID chip in a bottle of wine but not in a human body.


Congressman Wants Consumers to Have Personal Information Take-Down Right

Late last week, Rep. Thaddeus McCotter (R-MI) introduced a provocative piece of legislation, H.R. 5108, which he is calling the Cyber Privacy Act. The legislation, in a nutshell, would give individuals the right to demand that website operators remove any personal information their sites might contain about them. If websites refuse to remove the information, then the Federal Trade Commission has enforcement power to go after them.


Readability and Web Contracts

The ABA Business Law Section's Denver meeting hosted a nice discussion this morning about effective contract drafting. The talk inevitably included some back and forth over the merits of plain English drafting. University of Texas Law School's Wayne C. Schiess, while not supporting plain English drafting for all types of contracts, said that consumer-facing documents such as online terms could benefit from a plain English approach. The online terms and conditions that accompany the open casting call for FOX Broadcasting's "Glee" television is a document that should have gone through the plain English wash, according to Schiess' calculations.


Department of Commerce Wades Into Privacy Debate

Interesting development today with the announcement that the U.S. Department of Commerce will be conducting a review of privacy laws in the United States and abroad, with an eye toward assessing whether the current privacy frameworks are adequately promoting innovation and prosperity here in the United States.


Newspaper Website's Privacy Policy Creates Expectation of Privacy for Commenters?

The recent decision in McVicker v. King, No. 09-cv-436 (W.D. Pa. March 3, 2010), seems noteworthy for a couple reasons.

First, it is only the second judicial opinion to consider the First Amendment rights of anonymous online commenters whom the plaintiff would like to use as witnesses in a pending lawsuit. This case and the earlier one, Enterline v. Pocono Medical Center, No. 08-cv-1934 (M.D. Pa. Dec. 11, 2008), both reached identical results: the plaintiffs' asserted need to discover the identity of witnesses ( Enterline ) or to possibly impeach known witnesses ( McVicker ) did not outweigh the First Amendment rights of the anonymous commenters. In these courts' view, in cases in which the plaintiff is hunting down a witness (as opposed to a potential defendant), the First Amendment demands that traditional discovery methods be fully explored before websites can be required to turn over the identities of their anonymous commenters. Mere witnesses simply have a stronger claim to anonymity than defendants.


Enter the Lawyers

Looking over the agenda for the Federal Trade Commission's March 9-10 workshop on the business problems faced by large, established newspaper publishers in the digital media age, I noticed that the panels are packed with attorneys. Of the 29 individuals making presentations at the FTC event, at least 19 are attorneys. They will be discussing the leading legal solutions to the news industry's woes: (1) strengthening copyright, (2) lowering corporate taxes, and (3) permitting collaboration among competitors.


Domain Registrant Prevails in Gripe Site Case

Strong decision for free speech online, but a tough decision for trademark owners (are law professors calling them trademark maximalists yet?) in Career Agents Network Inc. v. careeragentsnetwork.biz, No. 09-12269 (E.D. Mich. Feb. 26, 2010). It's a gripe site case, in which the defendant's domain name incorporated the entirety of the plaintiff's mark. The court runs through several leading gripe site cases, particularly favorable Sixth Circuit law ( Lucas Nursery v. Grosse, Taubman v. Webfeats, DaimlerChrysler v. the Net Inc. ) on trademark/free speech questions, before concluding that the defendant's registration and use of the domain name -- which pointed to a website critical of the plaintiff's business practices -- was a non-commercial, First Amendment-protected use of the plaintiff's mark.


Subway, Quiznos Agree to Stop Fighting Over Hard-Hitting Viral Video Campaign

Subway and Quiznos settled their long-running deceptive advertising dispute just days after trial judge ruled that Quiznos' CDA Section 230 defense of its user-generated viral video marketing campaign is too meaty for summary disposition. Tee hee. But seriously, folks, it is easy to come to the conclusion, after reading this opinion, that CDA Section 230 might not afford much protection to marketers who want to tap the so-called wisdom of the crowds to deliver their marketing messages.


Family Members Have Common Law, Federal Privacy Rights in Death Images

Marc Randazza's 2009 post about privacy, class warfare, reputation pimps, mindless mass media and hypocrisy, The Catsouras Photos, Privacy, and Privilege, is one of the most passionate pieces of law blogging I've come across online. I feel the same way about California Court of Appeals Justice Eileen Moore's opinion in Catsouras v. Dept. of the California Highway Patrol, No. G039916 (Calif. Ct. App. Jan. 29, 2010), a decision in which the justice, who was clearly upset over the grim facts and inexcusable behavior that permeated this case, picked privacy over the public's right to know, issuing three novel privacy rulings along the way.


Court Finds Constitutional Significance in Defendant's Failure to Password-Protect Home Wireless Network

Taking a few moments to secure a residential wireless network with a password is a good idea, a fact recently noted by the Federal Trade Commission. An open network is an invitation for piggy-backers and data thieves.

Who knew that password-protecting a wireless router also had constitutional significance? According to a recent court decision from Oregon, the failure to password-protect a wireless network can diminish the extent to which the Fourth Amendment protects computers and information on that network from government searches.


Federal Court Officials Issue Guidance on Jury Use of Blackberries, iPhones, Twitter, LinkedIn Etc.

According to the Administrative Office of the U.S. Courts , a committee on court administration matters has sent around to all federal trial courts proposed jury instructions that specifically address the influence of mobile communications devices and electronic social media on jury deliberations.

The rise of the "connected juror" has bedeviled the judicial system, introducing a host of new opportunities for juror consideration of irrelevant and inadmissible evidence, as well as new opportunities for improper communications with deliberating jurors, as this recent article from the Baltimore sun notes.


Does ''No Contract'' Really Mean No Contract?

Of course not. There is always a contract with cell phone service. Everybody knows that.

Except the plaintiff in Williams v. MetroPCS Wireless Inc ., No. 09-22890 (S.D. Fla. Jan. 5, 2010), who is pressing a two-pronged attack on the arbitration clause in her alleged contract with MetroPCS, a cell phone service provider. First, the plaintiff claims that MetroPCS never informed her of the existence of a contract (it was on the MetroPCS website). Second, she claims that MetroPCS marketing materials indicated to her that there were "no contracts" and "never any contracts required" to obtain MetroPCS service.


Boring Case Gets Mildly Interesting

Yikes. The U.S. Court of Appeals for the Third Circuit today affirmed most but not all of a lower court judgment dismissing a Pennsylvania couple's privacy-related lawsuit against Google's "Street View" product.

In Boring v. Google Inc. , No. 09-2350 (3d Cir. Jan. 28, 2010), the Third Circuit ruled that the plaintiffs were at least entitled to a trial on their claim that they suffered damages as a result of Google's alleged trespass upon their property during its Street View imaging process. According to the court: "While the district court's skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous."


Utah Legislator Introduces State Anti-Cybersquatting Proposal

The state of Utah will soon be considering an interesting anti-cybersquatting proposal as part of a comprehensive bill to update the state's laws on phishing, pharming, spyware, and other online ills.

The Utah E-Commerce Integrity Act (S.B. 26), introduced late last year by State Sen Stephen Urquhart, would create a state-law version of the federal Anticybersquatting Consumer Protection Act, albeit with a few modifications:


District Court Gives California Anti-Spam Law Some Breathing Room

It turns out that on the same day that the Ninth Circuit rejected ISP Asis Internet's contention that the mere carriage of spam and the cost of deploying spam filters supported a claim under the federal CAN-SPAM Act, a federal district court in California boosted the company's state-law claim against another alleged spammer by ruling that claims under California's anti-spam statute are not preempted by CAN-SPAM.


ECPA Protections Don't Apply Outside United States

A federal district court in Northern California ruled earlier this week that the Electronic Communications Privacy Act, the statute protecting stored e-mail communications, does not protect electronic communications outside the United States. The case is Zheng v. Yahoo! Inc. , No. C-08-1068 (N. D. Cal., Dec. 2, 2009), in which the plaintiffs alleged that Yahoo!'s Chinese subsidiary unlawfully disclosed the plaintiffs' identities and electronic communications to officials of the Peoples Republic of China -- resulting in torture, imprisonment, and serious other emotional and economic damage.


Close Doesn't Count in Cybersquatting

The Anticybersquatting Consumer Protection Act, 15 U.S.C. 1125(d), is the federal law that gives trademark owners a civil claim against persons who act with a "bad faith intent to profit" from registering domain names that are identical or confusingly similar to protected marks. Remedies available to a prevailing trademark owner include an award of statutory damages of up to $100,000 per domain name, plus costs and attorneys' fees in some cases. Losing an ACPA case can ruin your day.


GoDaddy Not Subject to Trademark Infringement Suit in Illinois

In the case of uBID Inc. v. The GoDaddy Group Inc. , No. 09-cv-2123 (N.D. Ill., Nov. 5, 2009), a federal district court in Illinois ruled late last week that the Big Daddy of domain name registrars, Godaddy.com, is not subject to the jurisdiction of Illinois courts and need not defend a trademark infringement suit filed there. This is an interesting ruling, though "interesting" in the area of internet jurisdiction is a relative term to say the least.


Courts, Press Grappling with New Media, New Forms of Journalism

A few days ago several prominent federal judges and attorneys in the Ninth Circuit participated in a conference to discuss the legal system's evolving relationship with the news media and how new online communication technologies are affecting the administration of justice. BNA's Silicon Valley reporter, Joyce Cutler, was there, and she filed the following story for us. The discussion that took place reflected an acute awareness of the changes taking place in the news industry, the pervasiveness of digital devices and user-generated content, the public's growing desire for more information about the legal system, and the need on the part of the judicial system to resolve new policy questions raised by all of these phenomena. Reading through the story, I was struck by the extent to which each district and sometimes each judge is, by necessity, arriving at his or her own conclusion as to what technologies and public disclosures should be permitted in the courtroom. I thought Joyce's article should reach a wider audience, so I am sharing it here.



Technology Puts Debt Collectors on Uncertain Legal Ground

According to a Government Accountability Office report ( GAO-09-748 ) released today, modern communications technologies have blurred the former clarity of key provisions in the Fair Debt Collection Practices Act.

The first problem is that the FDCPA was written in 1977, before the advent of the commercial Internet, e-mail, voice mail, mobile phones and fax machines. (For my older readers, 1977 was the year Rocky won the Best Picture Oscar and Lindsay Wagoner won an Emmy for her work in The Bionic Woman. Days of bread and circuses for sure.)


Fair Use on Display With Barnes & Noble's Nook E-Reader?

The jkOntheRun mobile device blog has an early story out on Barnes & Noble's new e-reader, the Nook. From their summary:

E-books can be loaned to other Nook owners, or those with any version of eReader software installed on a handset or computer. The loan period is 14 days, after which the e-book disappears on the lendee's device. The original owner cannot access the e-book during the loan period.


Craigslist Eludes Sheriff Dart, Thanks to CDA Section 230 Immunity

A federal district court in Chicago yesterday summarily dismissed Cook County Sheriff Thomas Dart's lawsuit alleging that online classified ad service Craigslist facilitated prostitution and created a public nuisance through the operation of the "adult" (formerly "erotic") services section of its website.




Jurisdiction Setback Apparently Won't Derail Privacy Action Against NebuAd

Plaintiffs in a privacy rights lawsuit against behavioral targeting technology provider NebuAd Inc. and six Internet service providers who shared their users' data with NebuAd have told the trial court they will press on even in the wake of the court's ruling that none of the ISP defendants are subject to suit in California. The court's Oct. 6 ruling left California-based NebuAd as the only defendant in the case, a complication because NebuAd liquidated its assets and went out of business in May 2009.


Takeaways for Social Media Advertisers in the FTC's New Endorsement Guides

Blogging late about a news event is a mixed blessing. The blogger has the benefit of reading everyone else's hastily keyed impressions and thus can seem oh-so-much smarter with several days to think about issues others gave about five minutes' thought to (sort of reminds me of law school, actually). The downside is that after a couple days the news event is essentially played and now the late blogger must try to place something interesting on top of a pile of prior opinion that is already gathering dust. Blogosphere, I make you this deal: I won't poke holes in your snap judgments, and you won't expect me to be smart or interesting.


Challenge to Utah Child E-Mail Registry Law Dismissed

A constitutional challenge to Utah's child e-mail protection registry statute passed away quietly in its sleep late last week. A federal district court in Utah dismissed the case Sept. 30, several days after receiving a stipulation from all parties consenting to its dismissal.


The Communications Decency Act and the Net Neutrality Debate

Telecom analyst Barbara Esbin's paper, The Audacity to Hope Regulatory Restraint Will Prevail, discusses an interesting argument that the Federal Communications Commission is making in support of its 2008 decision that Comcast's covert blocking of peer-to-peer traffic violated the Communications Act. The FCC, in a brief filed Sept. 21 in the D.C. Circuit, is arguing that it has implied authority (known as "ancillary jurisdiction" in telecom-speak) to regulate Internet communications via Section 230(b) of the Communications Decency Act, a subset of the federal government's telecom regulatory structure.


Sen. Durbin Proposes $15 Million in Grants for Open Textbook Creators

Last week Sen. Richard Durbin introduced a bill ( S. 1714 ) that would create a $15 million federal grant program for "open textbooks." The bill is a further example of continuing federal government interest in openness, transparency, and using information-sharing technologies to promote social aims.

Sen. Durbin is promoting his bill as a means to drive down the price of college textbooks, but I think it is going to have more far-reaching consequences than that. If it passes.


Minor Win for Bloggers in Fourth Circuit's GHF Ruling

En route to tossing out a $2.9 million jury verdict for invasion of privacy and intentional infliction of emotional distress against the author of a hateful screed at <godhatesfags.com>, the U.S. Court of Appeals for the Fourth Circuit slipped in a goodie for bloggers at footnote 13:


Selective Outrage in Rocky Mountain Bank Case

I am a little bit mystified at the expressions of shock and outrage (yes, "outrage") at the news that Judge Ware has granted Rocky Mountain Bank's request for a TRO deactivating a Gmail account to which the bank had carelessly e-mailed detailed financial information on 1,325 bank customers.

Apparently this development alarms the many people out there in cyberspace who have the same attachment to their e-mail accounts as the National Rifle Association does to firearms.


The Legal Profession's Stake in Openness

The legal profession took some lumps at the recently concluded the Gov 2.0 Summit held here in Washington earlier this month.

For three days, social media thinkers, Silicon Valley entrepreneurs and yes even Beltway bureaucrats discussed how governments can fulfill their public service mission and provide new opportunities for economic growth by opening up the vast stores of data under their control to free public consumption. Two themes are at work in the Gov 2.0 space, a political theme and an innovation theme. First, there is the "the best disinfectant is the light of day" theme, which posits that public decisionmaking will produce the most democratic and enlightened public policy. See Sunlight Foundation and Gapminder for examples. Second, there is the "government as platform for innovation" theme, which asserts that government data is an untapped source of improved public service and an engine of economic growth. Sites like Apps for Democracy and Data.gov offer a glimpse of what is going on here. Government data on energy, health, and technology (possessed by the U.S. Patent and Trademark Office, for example) are believed to be fertile-yet-untapped sources of commercial exploitation.


California Privacy Law Not Preempted by CAN-SPAM Act

In California, the Song-Beverly Credit Card Act forbids merchants from asking for "personal information" when a customer uses a credit card to make a purchase. Addresses and telephone numbers are clearly covered by Song-Beverly. Zip codes are not, per Party City Corp v. Superior Court , 169 Cal.App.4th 497 (Cal. Ct.App. 2008).


Googling Juror Prompts Court to Overturn Jury Verdict

A jury trial is a taxing experience for everyone concerned. Almost all of the court's resources are dedicated to a single matter, especially in small jurisdictions where justice is dispensed by a judge, a secretary, a court reporter and a bailiff. Lawyers for each side, who have already invested hundreds of hours of pretrial effort, devote all their time to the case, from sun-up to sundown, for as long as the trial lasts. And then there are the jurors, who put aside their jobs and family obligations in order to hear evidence and reach a decision on a matter they have no prior training or experience in. It is an exhausting effort all around.



Clearly Disclosed Terms Save Marketer From Deceptive Contracting Claims

For me, the moment of maximum vigilance in an online purchase occurs when the seller asks for my credit card number. I suspect it is the same for everyone. The act of supplying this very important number is the digital equivalent of a handshake. We like the goods, we like the terms, so we supply our credit card number and click "OK" or "Charge this amount" or something similar. We do it all the time.


Domain Name Deemed Tangible Property (Web Pages Too) in Utah

There's a passage in T.S. Eliot's 1922 essay "The Perfect Critic" that goes like this:

The vast accumulations of knowledge -- or at least of information -- deposited by the nineteenth century have been responsible for an equally vast ignorance. When there is so much to be known, when there are so many fields of knowledge in which the same words are used with different meanings, when every one knows a little about a great many things, it becomes increasingly difficult for anyone to know whether he knows what he is talking about or not.

 
I feel like that a lot, especially when it comes to cyberlaw. There are so many fields of law, each with their own specialized but overlapping vocabularies, each attempting to advance their own policy objectives, some shaped by frequent contemporary debate, some resting undisturbed for decades, all being applied in a haphazard fashion to the internet. The internet is reportedly 40 years old this week, yet the legal profession's take on it is not yet out of beta.


Zulu Nation's Stirring Bid for Cyber-Homeland Opposed by Celebrity Chef's Wife

"During the ICANN meeting in Sydney, Australia, Gelila Puck shouted within earshot of dozens of ICANN participants, that Minds+Machines should not proceed with its application for <.ZULU>, which had already been approved by the King of the Zulu nation with assistance of the daughter of the President of the Republic of South Africa." Mind+Machines LLC v. Puck, No. "Wolfgang Puck Starts .Food Fight Over Top Level Domain."



Seventh Circuit Affirms Dismissal as Sanction for Wikileaked Leak

Like civil disobedience, leaking information to the news media can carry a high price. So can leaking to the new media. Witness Jorge Sanchez, an attorney who succeeded in getting his client's case tossed out of court as a sanction for -- among other things -- causing a document obtained during pretrial discovery to be leaked to the Wikileaks website. Call it Justice 1.0.


Ten Interesting Things I Read This Week

This post is a collection of links to materials I've been reading this week, really just trying to catch up on old news and re-engage myself in subjects that I spent most of my summer trying to forget while on vacation. I made supplications to the Muse all morning in the hope she would favor me with a catchy title, something that might yield one of those tragically sardonic acronyms like CAN-SPAM or SPY Act, but no, nothing, and now it's time to get back to work and all I have is Ten Interesting Things I Read This Week (TITIRTW):



Marketers Make Good on Threat to Challenge Maine Privacy Law

The Progress and Freedom Foundation is reporting that a group of marketers and publishers filed a lawsuit yesterday challenging the constitutionality of Maine's Act to Prevent Predatory Marketing Practices Against Minors, a law that prohibits companies from collecting "health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent of that minor's parent or legal guardian." That's a tall order for marketers, requiring fundamental changes in their operations.


Supreme Court Declines to Review IMS Health, Cable News Network Cases

The Supreme Court, on its final day of the term, declined to review a pair of high-profile cases of interest to cyberlaw attorneys -- one involving the interplay between commercial speech rights and a privacy-protective state law, the other involving copyright infringement by a cable provider's digital recording service.


Perils and Promise of the New Jersey Workplace Privacy Ruling

Every attorney who deals in privacy issues, every attorney who advises companies on drafting acceptable use policies for computers and Internet use, every attorney who counsels companies on creating and enforcing workplace rules ought to stop what he or she is doing and read the court's opinion in Stengart v. Loving Care Agency Inc. , No. A-3506-08T1 (N.J. Super.Ct., App. Div., June 26, 2009). There might be some money in it for you.


Ninth Circuit Permits Anti-Spyware Software Maker to Claim CDA 230 Immunity

The Ninth Circuit released its opinion in Zango Inc. v. Kaspersky Lab Inc ., No. 07-35800 (9th Cir. June 25, 2009), this afternoon, rejecting an adware company's argument that anti-spyware software makers are not among the class of defendants that Congress intended to give immunity under the "safe harbor" protections in Section 230 of the Communications Decency Act. Zango argued, unsuccessfully, that CDA Section 230's protections should be limited to online content providers.


Cash4Gold, Money4Gold, Tomato, Tom-ah-to

Pity poor Jeff Aronson, who built his company, Cash4Gold , into a highly successful venture -- only to see his fortune raided by a competing operator with the same business idea, using the same marketing methods, and very similar trade names. Names like Money4Gold and Dollars4Gold . Aronson's competitor wasn't very scrupulous in his respect for Aronson's trademark. The competitor used banner ads and logos similar to Aronson's on Web sites and in Google paid search advertising, all of which triggered clicks to the competitor's Web site.



Obama Wants Bigger, Stronger FTC to Handle Privacy and Consumer Protection

President Obama's call yesterday for reform of the regulatory regime governing financial institutions promises to bring additional federal scrutiny to the rest of the Web as well.

The White House plan would create a new Consumer Financial Protection Agency (CFPA), an independent federal body with broad authority to set and enforce consumer-friendly standards for loans, savings products, and other financial offerings. However, there is more to the plan than that. Here's a couple things I saw in the 88-page document explaining the plan.


Nasty E-Mail Messages Breached the Peace, Aren't Worthy of First Amendment Protection

In most cases, when a court reaches a bad decision, the lawyers are at fault. Hysterical rhetoric, poor research, failure to acknowledge the legitimacy of the opponent's arguments, failure to appreciate the logical consequences of one's own arguments, or the absence of legal representation on one side of the case. I am going to put the case of Nebraska v. Drahota, No. 08-628 (Neb. Ct.App., June 16, 2009), into the last category. An intermediate state court in Nebraska, without appearing to think too hard about the issue, held that a student was lawfully convicted of breach of the peace based on a pair of e-mail messages (okay, profane rants ) he sent to a professor. The court also held, again without too much analysis, that the student's e-mails were constitutionally unprotected insulting or "fighting words," citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), in support.


Defending the Consumer Wireless Experience

If you're laboring under the misapprehension that there is a not a lot of consumer choice in wireless service or appliances, representatives from AT&T and the AT&T-supported Progress and Freedom Foundation will explain otherwise at the Senate Energy and Commerce Committee's "The Consumer Wireless Experience" hearing this afternoon. For persons not in the Washington area, the event is available on the series of tubes . Also testifying will be representatives from U.S. Cellullar (no service in Washington, D.C. area) and Cellullar South (no service in Washington, D.C. area), as well as Prof. Robert Frieden, Pioneers Chair of Telecommunications and Law, Pennsylvania State University, lately prominent for his paper, "The Spin in Broadband Statistics: Finding Ways to Make a Credible Assessment of Next Generation Network Deployment."


House Behavioral Advertising Privacy Hearing to Feature Internet Companies

What a great witness list for Thursday's Capitol Hill hearing on behavioral advertising. Google, after being excoriated by AT&T during the last two hearings, finally gets to express its views on privacy as it relates to tracking online behavior. Other network advertisers will have a chance to tell their side of the story too. The role of AT&T/Anti-Google will be played by Scott Cleland, a telco-friendly analyst.


Facebook Gives Trademark Owners Chance to Block Infringing Vanity Addresses

We're running the following item tomorrow to alert BNA Electronic Commerce & Law Report readers of the opportunity Facebook is offering trademark owners to preemptively block misappropriation of their marks when Facebook opens up its service to vanity URL registrations tomorrow night. I don't see any reason not to share it more widely. Thank you to the estimable David Kelly at Finnegan, Henderson, Farabow, Garrett & Dunner LLP , who shared his insights as well as a few relevant cases I was unaware of, and to BNA's Amy Bivins, who dashed this off late today.


ALI Software Contracts Principles Drafters on Non-Excludable ''No Material Hidden Defects'' Implied Warranty

Over the the Concurring Opinions blog, the two reporters of the American Law Institute's recently approved Principles of the Law of Software Contracts explain their work and defend the ALI's decision to create (at Section 3.05(b)) a non-excludable implied warranty that the software "contains no material hidden defects of which the transferor was aware at the time of the transfer." According to the reporters, Robert A. Hillman, a professor at the Cornell Law School, and Maureen A. O'Rourke, Associate Dean at the Boston University School of Law, some software providers had complained about Section 3.05(b), arguing that it was new law, would promote litigation and, being a tort law concept, it had no place in a summary of contract law.


Ninth Circuit Breathes New Life Into Antitrust Action Against VeriSign

The Ninth Circuit today reversed the district court's dismissal of antitrust claims against registry operator Verisign Inc., holding that the Coalition for ICANN Transparency had alleged viable causes of action for predatory pricing in the .com top-level domain and for attempted monopolization of the market for expiring domain names.


Savvis Case Raises Specter of Professional Liability for Security Consultants

Over at the InfoSecCompliance blog , David Navetta is leading a very interesting discussion on the topic of whether an information security consulting company that certified a credit card processor's compliance with VISA's former Cardholder Information Security Program (CISP) can be held liable under negligence and negligent representations theories to a third-party who allegedly relied upon the certification when deciding to do business with the credit card processor.


Black Eye for Sears, Wakeup Call for Online Businesses, Today

The parent company for venerable merchant Sears Roebuck today settled FTC charges that it engaged in an unfair trade practice by failing to adequately disclose to consumers the extent to which a downloadable software application would collect information about them.

Sears offered visitors to its sears.com Web site $10 if they would agree to participate in a market research program. Participation in the program required consent to the installation of a spyware-type application that tracked the user's browsing activities, on and off the Sears Web site.


Justice Sotomayor's Potential Cyberlaw Influence? Not Much

It was pleasant to note the other day that Judge Sonia Sotomayor, President Obama's choice for Associate Supreme Court Justice, has written a few opinions relating to Internet law during her time as judge in the lower federal courts. A first, apparently, and a sign of the centrality of the Internet in our business and personal affairs. From now on, the high court nominee who doesn't have a few cyberlaw decisions on his or her resume will be the remarkable case.



Judge Sotomayor Is First Nominee With Cyberlaw Record

President Obama's choice today for Associate Supreme Court Justice, Sonia Sotomayor, authored a handful of cyberlaw opinions while on the Second Circuit. All business disputes and a privacy case, but nothing (I hope) that could provide ammunition for the World's Greatest Deliberative Body.




View of the Summit

Just received word that the World Copyright Summit is set for next month in Washington, D.C. (elevation 1 ft.). Isn't a summit an event where leaders, heads of state, potentates, and even a few despots gather to negotiate treaties and make hopeful declarations? The Paris Peace Conference, that was a summit. The secret meetings that produced the Camp David Accords? Summit. The two years of negotiations between the Egyptians and the Hittites that led to the world's first peace treaty, now that was a summit. Summit, meaning a peak, an extreme, a high point. Not just any old conference.




Federal Proposal Could Bolster Trust in Online Business

The House Energy and Commerce's Subcommittee on Commerce, Trade, and Consumer Protection is holding a hearing this afternoon on the Data Accountability and Trust Act (H.R. 2221) , an information security measure.

Among other things, H.R. 2221 would authorize the Federal Trade Commission to issue regulations setting out a baseline level of information security for U.S. businesses that handle personal information (basically, every business).


Appellate Court Upholds Hacking Conviction for Misusing Workplace Computer

This is not exactly like the Lori Drew prosecution, but it is close. In State v. Wolfe , No. 08-CA-16 (Ohio Ct.App. April 28, 2009)(WARNING: The opinion contains adult language about sex and wastewater treatment), an Ohio intermediate appellate court upheld the computer hacking conviction of a man who used his workplace computer to upload nude pictures of himself to the Adult Friendfinder Web site.


Online, Third-Party Beneficiary Claims Are Likely Losers

This odd little case reminded me of that. In Jackson v. American Plaza Corp. , No. 08-8980 (S.D.N.Y. April 28, 2009), the court held that one Craigslist advertiser could not sue another Craigslist advertiser for allegedly violating the Craigslist terms of use. The court ruled that the Craigslist terms of use -- which it noted was a valid click contract between Craigslist and its users -- did not create any enforceable rights in third parties such as the plaintiff. Did not "likely" create third-party beneficiary rights, I should say. The plaintiff was seeking an injunction, which the court denied.


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.


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.



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.


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.


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.


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.


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.


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.


''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.


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).



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.



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.


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.



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 GoTo.com 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


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.




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.


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.


Drug Marketers File Cert Petition in Ayotte Privacy Case

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.


For the Record, We Have No Opinions Here

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?


Lawyers, Stop Winging It With ESI Keyword Searches

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.


''DOJ Sides With RIAA'' One Day Later

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.


Rick Boucher, Policy Prognosticator

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.




Cinderella Stories

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.


Web Host/Kiddie Porn Impresario Isn't Entitled to CDA 230 Immunity

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.


New Domain Name Registries Feeling Heat From Trademark Owners

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.


News About Dead People is Not ''Hot''

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.




Do Dots Have Privacy Rights?

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.


High Court Cert In Jaynes Case Seems Unlikely

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.



Blockshopper Case: Privacy Purchased at Retail

Quite a few stories have been written about BlockShopper 's settlement of a trademark infringement lawsuit brought against it by Jones Day , a lawfirm that was (apparently) upset about Blockshopper's use of hyperlinks to biographies of firm partners and associates on its Web site. Familiar online themes of righteous indignation, David v. Goliath, Luddites messing with the Internet here and here , bad lawyer, and bad trademark law dominated the discussion.


Boucher Court: No Right to Refuse to Produce Encrypted Data

Late last week a federal court in Vermont decided that a criminal defendant's compelled act of producing unencrypted contents of an encrypted laptop is not protected by the Fifth Amendment's privilege against compelled self-incrimination. The closely watched case of United States v. Boucher is a throwback to cyberlaw's Cryptozoic Era, the days of Clipper Chip, CALEA, United States v. Bernstein, the shadowy legal status of PGP, and crypto export regs. The court's resolution of this issue is not going to satisfy everyone, especially persons who believe that encrypting their laptops is a good protection against suspicionless border searches.


Google AdWords Beats Trademark Claim in France, But Loses on Two Other Issues

[UPDATE: After posting the message below, it dawned on me that there is a connection between Google's troubles in Italy and cases it has litigated in France. According to one report, the Italian prosecutor is seeking to hold Google liable as a publisher of the materials uploaded to Google Video. In Jean-Yves L. v. YouTube et al, a 2008 ruling involving copyrighted videos that had been uploaded to YouTube without permission, the court ruled that Google was a Web host , not a publisher. The ruling was a victory for Google because, in France and in other European countries, a publisher is strictly liable for content on its site. But the law is by no means settled on the proper categorization of user-generated content sites, in France or in Italy.]

Widespread publicity today ( here , here, and here ) about the legal troubles of Google officials over the posting of distasteful video on Google Video is yet another reminder that the U.S. legal system is, well, the U.S. legal system. Online, we have safe harbors for third-party content, our privacy laws are forgiving or non-existent, and we have the First Amendment to protect even the coarsest utterance. Things are done differently elsewhere. Google's Italian troubles are merely the latest evidence of this obvious-to-all state of affairs.



No Justice for Victim of Attempted Reverse Domain Name Hijacking

A UDRP panel's finding that a trademark owner has engaged in reverse domain name hijacking (ICANN-speak for using the UDRP in a bad faith attempt to deprive a registered domain-name holder of a domain name) is pretty much worthless. I think you get a piece of paper, suitable for framing. As it turns out, a claim for attempted reverse domain name hijacking--the unsuccessful attempt to use the UDRP to in a bad faith attempt to acquire a registered domain name--is worth even less. Frayne v. Chicago 2016 Corp., No. 08-5290 (N.D. Ill. Jan. 8, 2009). It's worth nothing. The court dismissed the claim, which arose from the plaintiff's unsubstantiated assertion that, merely by filing a UDRP claim disputing the plaintiff's registration of , the defendants had attempted to reverse-hijack the domain, allegedly in violation of 15 U.S.C. 1114(2)(D).


Many State Data Breach Laws Don't Protect Paper Records

This is likely more in the nature of "news to me" than "news." I learned, or at least I think I learned, that most of the many state data breach notification laws don't reach a common source of privacy violations: personal information snatched by dumpster divers. In Pinero v. Jackson Hewitt Tax Service Inc. , decided last week, the court turned back a claim under Louisiana's data security breach notification law, because the mishandled personal information was recorded on paper -- not in electronic form. The records at issue were the plaintiff's tax returns which, along with those belonging to 100 other Jackson Hewitt customers, were found unshredded in a public dumpster.