Internet Law

Ninth Circuit Discusses Software Sale v. License

2010-10-25T07:13:00.000-07:00

On September 10, 2010, the Ninth Circuit Court of Appeals issued a much awaited ruling in Vernor v. Autodesk (http://goo.gl/RZ2N) addressing whether software purchasers are owners or licensees of the copies of the software in their possession. The court held that “a software user is a licensee rather than an owner of a copy of the software where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”

The distinction between owner and licensee can be critical to both software publishers and software users because owners have certain rights not afforded to mere licensees under copyright law. If you are a software publisher, do your licenses have the necessary restrictive covenants? If you are a user, do your licenses restrict your ability to sell the software?

Convicted Rapist Misuses Copyright Law

2009-12-17T07:53:00.000-08:00

You're kidding me, right? (http://abcnews.go.com/Business/wireStory?id=9350161)

Guy has obviously never read Circular 34 . . . (http://www.copyright.gov/circs/circ34.pdf).

9th Circuit Clarifies Hacking Statute in Employment Context

2009-09-29T08:19:00.000-07:00

An employee's use of a work computer “without authorization” for purposes of the Computer Fraud and Abuse Act [18 U.S.C. Section 1030(a)] depends on the employer's policies and definitions of acceptable use, not the employee's state of mind, the U.S. Court of Appeals for the Ninth Circuit held Sept. 15 (LVRC Holdings LLC v. Brekka, 9th Cir., No. 07-17116, 9/15/09) (opinion available at http://tinyurl.com/n362nz).

The court held: "Because Brekka was authorized to use LVRC’s computers while he was employed at LVRC, he did not access a computer “without authorization” in violation of § 1030(a)(2) or § 1030(a)(4) when he emailed documents to himself and to his wife prior to leaving LVRC. Nor did emailing the documents “exceed authorized access,” because Brekka was entitled to obtain the documents. Further, LVRC failed to establish the existence of a genuine issue of material fact as to whether Brekka accessed the LVRC website without authorization after he left the company."

Moral: Have good employee policies regarding email practices and authorizations!

New Hyperwrap Case

2009-09-03T07:11:00.000-07:00

Court holds that an online contract that uses a combination of three hyperlinks to reference an external contract and which is encountered pre-checkout is binding. See
http://tinyurl.com/n362nz.

Judge Rules IP Addresses are Not PII

2009-08-13T08:44:00.000-07:00

A federal court judge in Washington ruled in favor of Microsoft (surprise!) recently, holding that Microsoft had not breached a software license because IP addresses were not "personally identifiable information" ("PII"). Those of you familiar with most web privacy policies know that PII is a big deal and most of you know enough to be wary of what third parties are doing with your PII. But apparently, at least according to this case, when you visit a site and your IP is captured, that is not PII and thus is perhaps not covered by the site's privacy policy. Browsers beware! See the case here: http://www.hawleytroxell.com/News___Events/Resources/

Fair Use Should be Considered Before Sending DMCA

2009-07-30T08:44:00.000-07:00

The ND Cal recently held that a copyright owner should consider the alleged infringer's fair use defenses before sending a DMCA take-down notice. Case is Lenz v. Universal. I posted a copy of the decision here: http://www.keepandshare.com/doc/view.php?id=1282333&da=y

Facebook Personalized Usernames

2009-06-12T12:27:00.000-07:00

If you or one of your companies has had a Facebook account since before June 9, you can register, e.g., http://www.facebook.com/[companyname] as a Facebook username starting tonight at 10:01 p.m. MDT. See http://www.facebook.com/help.php?page=897. If you qualify, you may wish to register that (those) username(s) with Facebook to prevent third parties from doing so. If you did not have an account before June 9, the window opens for a company or person to register personalized usernames on June 28.

To be clear, anyone who had an account before June 9 can register a personalized username starting tonight, so you personally could go in and register, e.g., http://www.facebook.com/[companyname] if you wished and if you had an account before June 9 and if you meet Facebook's other qualifications for a personalized username.

All trademark owners will likely also want to complete the form here: http://www.facebook.com/help/contact.php?show_form=username_rights to stop third parties from registering one or more of their trademarks as usernames. You may do this even if you do not have a Facebook account.

Update on Using Proxies as Evidence of Sophistication in Crimes

2009-04-20T08:02:00.000-07:00

Not today, apparently . . .

http://www.siliconvalley.com/news/ci_12152466?nclick_check=1

Use of Proxies to Show "Sophistication" in Crimes?

2009-04-17T15:21:00.000-07:00

The Washington Post reports on a key vote on new US federal sentencing guidelines that would classify the use of Internet proxies in crimes as evidence of "sophistication," increasing sentences by about 25 percent, which could mean years or even decades longer behind bars, depending on the crime. Digital-rights advocates are worried, complaining that the proposal is so broad it could lead to unnecessarily harsh sentences for tech neophytes who did not know they were using proxies in the first place or who were simply engaging in a practice often encouraged as a safer way of using the Internet. http://www.keepandshare.com/doc/view.php?id=1158409&da=y

Do you proxy at work to hide from the boss? If so, watch out?

ISPs and Piracy

2009-01-09T12:03:00.000-08:00

Should ISPs be responsible for monitoring and policing possibly infringing content on their networks?

Digital Car Models Not Sufficiently Creative? I Disagree.

2008-09-04T09:56:00.000-07:00

A recent 10th Circuit case, Meshwerks v. Toyota (see case here: http://www.keepandshare.com/doc/view.php?id=785238&da=y) held that digital models of Toyota cars and trucks were not sufficiently original or creative to warrant copyright protection. The appeals panel agreed with the trial court's conclusion that the digital wire-frame models were merely copies of Toyota products. The appeals court acknowledged that digital modeling is used to create copyrightable expressions but held that the evidence in this case demonstrated that Meshwerks merely provided completely unadorned digital replicas.

My friend BobMcKain, who is a digital modeling hobbyist and is involved with Foundation3d (see http://www.foundation3d.com/) e-mailed me this response to the Meshwerks case:

"We’ve been mulling this one on the forums. I can absolutely see why the design is not copyrightable but the work should be. Even though you are following a real life design no two models will ever be the same unless one person copied another person work verbatim. The reason is that pushing and pulling points and polys is an art in itself. A good example is the movie version of the StarTrek 1701-A Enterprise. There are at least a few dozen models of it out there and I have most of them. While they all represent the same ship they are all different. Each modeler has a different approach to tackling difficult transitions and shapes. So while the design is certainly copyright Paramount Pictures the work is uniquely that of the modeler. The argument is that modeling is not an art form and I think I could prove otherwise. We have many an argument on the forums over poly and point efficiencies and clean up. Some think its not important but to those of us who see it as an art form it is, in our mind, what makes it an art and not just a matter of copying what you see before you.

I hope this gets challenged because there was no effort to defend it as an art form and therefore copyrightable as such. It was merely challenged as a design issue."

I agree with Bob. A lot of creativity goes into those models, and under Feist, that should be enough. Thoughts?

New Open Source Opinion has People Talking. Why?

2008-08-14T08:47:00.000-07:00

There's a new opinion from the Federal Circuit that lots of people are talking about called Jacobsen v. Katzer, et al. (opinion here:
http://www.keepandshare.com/doc/view.php?id=749026&da=y), saying that it is a "victory for supporters of free software." See, e.g., http://www.pcworld.com/article/149796/2008/08/.html?tk=rss_news.

I am not sure what all the fuss here is about, frankly. "Open source" has never meant "abandoned and contributed to the public domain" from a copyright law perspective. "Open source" was and is a licensing philosophy. Of course the underlying authors still own the copyrights and, assuming they registered them timely, can still sue and enforce those copyrights and get statutory damages, even if the code is "open source." As I read the opinion, all the court is really saying is that this particular license was such that the copyright owner could sue for copyright infringement as well as breach of contract because the license contained "conditions" and not just "covenants." This is more of a contract case than a copyright case, in my opinion.

"Cuil it?" I Don't Think So.

2008-07-29T16:29:00.000-07:00

When I teach trademark law classes, I always advise that students select strong protectable marks, and the class invariably balks because they want to select marks that suggest or connote something about the goods or services at issue. That, I tell them, is the touchstone of a weak mark, and for examples I look to the Internet space: Google, Yahoo!, Zillow, and so on are perfect trademarks because they say nothing about the goods or services with which they are associated.

And now along comes cuil.com (pronounced "cool"), the much-ballyhooed Google-killer. Great mark, right? "Cuil" says nothing about "Internet search engine," and is in fact apparently an old Irish or Gaelic word for "knowledge." But here's the rub: "Google" is becoming a verb in the lexicon very quickly, which is typically anathema to a trademark, but there's not much Google can do to stop everyone from saying, e.g., "Go Google that." But can you say, e.g., "I am going to 'cuil' it?" You could, but people would hear you say, "I am going to cool it," and the meaning is lost.

Moral--a great trademark has to be both non-descriptive AND sound cool (pun intended) and distinctive. Now let's just see if Google goes the way of "escalator" and becomes generic for Internet search services . . .

Adobe Sues Over eBay Sales

2008-07-25T14:24:00.000-07:00

A lawsuit was filed on July 23, 2008, in the Northern District of California for copyright and trademark infringement arising from the sale of allegedly pirated software on eBay. The docket sheet is here: http://www.keepandshare.com/doc/view.php?id=712609&da=y

I cannot download the complaint itself, but will keep trying.

The Software & Information Industry Association press release on the case is here: http://www.siia.net/press/releases/mondello%20sentence%20ebay%20release%20FINALFINALFINAL%2072308.pdf

Interesting to follow these auction site cases and to see how the first sale doctrine in copyright law works as a defense and if eBay gets brought in.

Have Metatags Lost Their Relevance in Trademark Disputes?

2008-05-21T09:12:00.000-07:00

In Standard Process v. Banks (opinion here: http://www.keepandshare.com/doc/view.php?id=587686&da=y), the court held: "Dr. Banks [admittedly] used Standard Process trademarks in the metatags of his website. However, today 'modern search engines make little if any use of metatags.' [Citations omitted.] As more and more webmasters 'manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.' [Citations omitted.] Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it."

The court relied heavily on this rationale to find no initial interest confusion between plaintiff's marks and the content on defendant's website.

Interesting! I would still employ caution before engaging in wholesale replication of my competitor's marks in my metatags, though.

Attention All You Kazaa Users!

2008-05-21T08:20:00.000-07:00

A federal court in Arizona has denied RIAA's motion for summary judgment, rejecting the "making available" theory of copyright infringement, in an action against two Kazaa users, who appeared pro se. In Atlantic v. Howell, the court held: "The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. . . . Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution." You can see the opinion here: http://www.keepandshare.com/doc/view.php?id=587559&da=y

The key appears to be that Howell never placed the songs (that he asserted were copies ripped by him from CDs that he owned) in a SHARED Kazaa folder! Listen well and learn, all you Kazaa users!

Another CDA Case--Roommates.com

2008-04-04T07:34:00.001-07:00

It's been an interesting few weeks for CDA cases. Earlier, the 7th Circuit found that the CDA insulated Craigslist from liability under the Fair Housing Act. See my March 17 post, below. Then, a New Hampshire court said that the CDA did NOT insulate from claims arising under the right of publicity. And now we have the latest 9th Circuit decision on CDA, holding that the Act does not insulate Roommates.com from Fair Housing Act liability. The differences between the 7th Circuit holding in the Craigslist case and the 9th Circuit's in Roommates.com appears to be the level of interaction the site has with posters--Roommates.com actively solicited information that could be used for discriminatory purposes. To read the Roommates.com case, click here:http://www.keepandshare.com/doc/view.php?id=493781&da=y

A Chink in the CDA Armor?

2008-04-03T08:49:00.000-07:00

A New Hampshire federal court has ruled that a state-law right of publicity claim against a Web service, arising from material posted by a third-party user, is not subject to dismissal under Section 230 of the Communications Decency Act. The court rejected the Ninth Circuit's reasoning in Perfect 10 Inc. v. CC Bill to hold that the plaintiff's right of publicity under state law is an intellectual property right excluded from CDA immunity. Case name is Doe v. Friendfinder Network Inc. You can view the opinion here: http://www.keepandshare.com/doc/view.php?id=492151&da=y

Muxtape, Mixwit and the RIAA

2008-04-01T15:05:00.000-07:00

OK, how is this NOT copyright infringement? Checkout http://muxtape.com/ and http://www.mixwit.com/. Cool idea, right? Share your mix tapes? You can try to rely on the DMCA, but if they're betting the farm on that they better read Grokster again. See http://www.keepandshare.com/doc/view.php?id=488991&da=y
I will bet that RIAA will commence legal action against one or both within three months. Watch this space for updates.

CDA Insulates Craigslist

2008-03-17T14:59:00.000-07:00

The 7th Circuit has applied the Communications Decency Act to insulate Craigslist from liability under the Fair Housing Act. Another example of the breadth of the CDA (47 U.S.C. Section 230). The opinion is here: http://www.keepandshare.com/doc/view.php?id=462882&da=y

How Much is Your Domain Name Worth?

2008-03-04T07:42:00.000-08:00

You've read that domain names are the new real estate, and that valuations for prime domain names are increasing again after the dot-com crash. Appraising a domain name is a tricky business, however, because unlike real real estate, i.e., dirt, we've only been placing values on domain names for a few years. As a general rule, the value of a domain name is the price the market will bear--the price a willing buyer will pay a willing seller. But where to start the negotiation? Registrar Moniker.com offers an appraisal service, as do several other companies. But I found an interesting tool the other day that might give you an idea of your domain name's value. Go to http://estibot.com/ and check it out. I personally think the valuations it offers are too high, but it it is interesting to see the methodology it employs.

NCAA Sets Live Blogging Limits for Games!

2007-12-21T07:13:00.000-08:00

lThe NCAA issued new rules this week that will allow credentialed press to blog live NCAA championship sporting events. The rules, however, limit the number of times reporters can post live blogs depending on the sport they cover.

Apparently, this only effects credentialed press. What would happen if I went to a game and blogged live just as a spectator? Would the blog police come and confiscate my hardware?

This raises the larger, and in my opinion copyright, issue as to who owns the data contained within an NCAA game? Those are mere facts and typically are not covered by copyright protection. The NCAA must be making this purely a matter of contract, then . . .

Coverage at http://www.nytimes.com/idg/IDG_002570DE00740E18002573B7006F8836.html

ICANN to Fast Track Internationalized Domains

2007-11-15T10:01:00.000-08:00

From an ICANN press release:

"Domain Names, which are currently mainly limited to characters from the Latin or Roman scripts, are seen as an important element in enabling the multilingualization of the Internet, reflecting the diverse and growing language needs of all users. . . .

Thanks to ICANN’s evaluation of Internationalized Domain Names, Internet users around the globe can now access wiki pages with the domain name "example.test" in the 11 test languages — Arabic, Persian, Chinese (simplified and traditional), Russian, Hindi, Greek, Korean, Yiddish, Japanese and Tamil. The wikis will allow Internet users to establish their own sub pages with their own names in their own language; one suggestion is: example.test/yourname." See

http://www.icann.org/announcements/announcement-2-13nov07.htm

Same thing holds true for ccTLD's; see http://www.icann.org/announcements/announcement-13nov07.htm.

This means that at some point an Internet user in China could type in a domain name using Chinese characters for both the top- and second-level domain names. Cool!

It's Obvious!

2007-10-16T07:52:00.000-07:00

The Department of Commerce’s United States Patent and Trademark Office (USPTO) has published Examination Guidelines to help USPTO examiners make appropriate decisions regarding the obviousness of claimed inventions in light of the Supreme Court’s recent decision in KSR International Co. v. Teleflex Inc., 550 U.S. __, 82 USPQ2d 1385 (2007).

To help patent examiners make obviousness rejections that are supported by appropriate facts and reasoning, the Guidelines identify a number of rationales suggested by the Supreme Court in the KSR decision. For each rationale, the Guidelines explain the underlying factual findings, and provide guidance about how to reason from the facts to the legal conclusion of obviousness. The Guidelines emphasize, however, that the identified rationales are only examples, and that any explanation of facts and reasoning based on the Graham inquiries may be used to support a rejection for obviousness.

See the Guidelines at http://www.uspto.gov/web/offices/com/sol/notices/72fr57526.pdf

DOT-ASIA SUNRISE REGISTRATION PERIOD OPENS

2007-10-16T07:45:00.000-07:00

The .asia regional internet domain has officially opened for business. On October 9 the sunrise period for the domain opens that lets governments and companies register interest in specific domain names. Companies will be able to register domains for which they own a trademark and governments will get a chance to earmark those on a reserved list. See http://www.asiaregistry.com/?gclid=CNrQhYXUk48CFSdCYQoduTF-mQ

Target.com ADA Class Action Certified

2007-10-03T07:54:00.000-07:00

In a ruling filed October 2, 2007, Judge Marilyn Hall Patel of the Northern District of California certified a class action against Target Corporation (owner of Target department stores and the related Target.com website). The suit alleges that Target failed to comply with provisions of the Americans with Disabilities Act because the Target.com site was not fully accessible to blind persons. Judge Patel was careful not to delve into the merits, but the lesson here should still be obvious: your site needs to be fully accessible to persons with disabilities.

CDA To The Rescue--Again

2007-10-03T07:33:00.000-07:00

In another example of the breadth of the application of the Communications Decency Act, federal judge John Coughenour granted Kaspersky Labs motion for summary judgment in a case brought in the Western District of Washington by spyware maker Zango. In his August 28, 2007, ruling Judge Coughenour held that Kaspersky Labs is a provider of an interactive computer service (a term that is critical to limiting liability under the CDA) because it is an "access software provider." This is great news for those of us who dislike spyware, and an interesting demonstration of how the parade of things against which the CDA offers exculpation continues to grow.

Blogging Story in IBR

2007-10-02T16:13:00.000-07:00

Brad Carlson writes a good blogging story at http://www.idahobusinessreview.com/archive.htm/2007/09/17/Blog-blog-blog-could-turn-into-blah-blah-blah-Area-bloggers-offer-bites-for-newbies

Do You Protect Your Domain Names?

2007-07-18T07:28:00.000-07:00

Your domain name is rapidly becoming synonymous with your brand--or at least it should be. People turn to the Internet for information and to actually buy products and services more and more often, and that trend will continue. If you do not protect your domain name and proactively prevent others from registering it or its variants, your customers may suddenly be unable to find you--or worse, they may find your competitors instead. Imagine driving down the street intending to arrive at a particular business and finding the building gone, only to be replaced by an "adult store" or a competitor's business! This is analogous to what happens when you do not monitor, protect, and enforce your domain names. Another example: guess who owns the domain name "Microsoftsucks.com"? If you guessed Bill Gates, you guessed wrong. Look it up and see for yourself--post a comment with the name of the registrant and your opinion as to why Microsoft does not own this domain. If Bill Gates can lose control over a domain that involves his flagship trademark, so can you. Be vigilant and protect this important web "real estate!"

Sony Files Rootkit Lawsuit

2007-07-17T12:57:00.000-07:00

Remember all the hubbub about Sony BMG and rootkits two years ago? For those of you who do not remember, rootkits are software tools that hide running processes from a computer's operating system. In 2005, Sony BMG surreptitiously placed digital rights management ("DRM") software on certain music CDs it distributed in order to defeat efforts to copy the CDs. The software was hidden from the Windows operating system, and thus hidden from the user. The DRM software, however, opened security holes into the user's system, allowing hackers to have access. Sony BMG has spent much of the last two years and millions of dollars trying to fix the problem it created.

In a recent turn of events, it appears Sony BMG has filed a $12 million dollar lawsuit in New York state court against Arizona-based Amergence Group, the maker of one of the DRM titles installed by Sony. Litigation related to the Sony rootkit debacle will likely go on for years.

No More Google Bombs

2007-01-31T08:01:00.000-08:00

Google has apparently decided to change its algorithms in an effort to curtail "Google Bombing," the practice of causing humorous results to appear in response to certain search queries, the most famous example of which is the much touted "miserable failure" result when one searched for "George W. Bush." See http://googlewebmastercentral.blogspot.com/ I think this is sad--Google Bombing was great fun and, I thought, pretty harmless.

Bad linking case

2006-12-21T13:22:00.000-08:00

In a case that apparently ignores virtually all other cases on copyright liability for linking, the US District Court for the Northern District of Texas entered a Preliminary Injunction against Supercrosslive.com for posting a link on its website to a live webcast of motorcycle racing events, the copyright to which webcast was owned by plaintiff. There was no apparent actual copying of any work by the defendant--from the Memorandum Opinion, it appears his only act was to host a link to the webcast on his site! Presumably, this was some sort of a deep link that permitted "clickers" to bypass a pay login screen and obtain plaintiff's live webcast for free. See Live Nation Motor Sports v. Davis, (No. 3:06-CV-276-L, ND Texas, Dallas Division, December 11, 2006). There was no indication, however,that any of plaintiff's content ever appeared on or was resident on defendant's site or servers, and there was no evidence of any actual copying or public performance or other conduct that might violate Section 106, other than the link. What am I missing here?

CDA to the Rescue!

2006-11-21T09:12:00.000-08:00

The Communications Decency Act (47 USC Section 230(c)(1)) ("CDA") exculpates service providers for content on their systems. The California Supreme Court applied the CDA in Barrett v. Rosenthal (see http://www.courtinfo.ca.gov/opinions/documents/S122953.PDF) to find that the operator of a web site was insulated from liability as a "distributor" of defamatory statements, reversing the Court of Appeals and applying Zeran v. America Online,Inc. (4th Cir. 1997) 129 F.3d 327, 331-333.

The CDA has become the poster boy for all providers of allegedly actionable content on the Internet. This is a perfect example of how broadly a court will go to make Section 230 apply out of concern for the supposedly chilling effect a contrary holding would have. But should Rosenthal really have been insulated? She knew about the allegedly defamatory posts. What if someone instead of posting to a web site had painted the statements on Rosenthal's garage door and she permitted them to remain?

Shrink-wrap License Agreement Case

2006-11-09T09:46:00.000-08:00

Interesting case at http://www.kscourts.org/kscases/supct/2006/20061027/95102.htm. The Kansas Supreme Court holds that a shrink-wrap license agreement that treats use of the software as acceptance of the terms is not binding upon a customer who previously signed a written contract for the purchase of the software. Where that contract failed to incorporate the license, the license terms are "additional terms" that require the customer's further assent.

The moral for software purveyors is to ensure that their click-wrap or shrink-wrap licenses contain appropriate merger clauses!

Microsoft is now a Registrar

2006-11-08T09:18:00.000-08:00

Microsoft is now a domain name registrar. See http://news.yahoo.com/s/pcworld/20061108/tc_pcworld/127781

Hackers Target Small E-Businesses

2006-10-02T07:55:00.000-07:00

The Washington Post runs a good article here http://www.washingtonpost.com/wp-dyn/content/article/2006/09/28/AR2006092800333_pf.html on the trend toward hackers targeting smaller e-businesses whose security may be lacking. Apparently seeking the path of least resistance, cybercriminals are finding weaknesses in smaller e-commerce sites' security because smaller sites typically lag behind larger e-commerce sites in terms of implementing new and updated site security features.

Microsoft Announces Open Specification Promise

2006-09-13T10:42:00.000-07:00

On September 12, Microsoft announced an "Open Specification Promise," effectively granting personal patent licenses to open source developers who may wish to utilize one or more of 35 web services specifications. See http://www.microsoft.com/interop/osp/default.mspx

This is fairly remarkable, given Microsoft's historical reluctance to do ANYTHING positive that relates to open source. However, note this disclaimer: "This promise is not an assurance either (i) that any of Microsoft's issued patent claims covers a Covered Implementation or are enforceable or (ii) that a Covered Implementation would not infringe patents or other intellectual property rights of any third party. No other rights except those expressly stated in this promise shall be deemed granted, waived or received by implication, exhaustion, estoppel, or otherwise." This means that the Promise may be meaningless if no Microsoft patents read on any of the specifications. I have not looked--you should, however, before you rely on the Promise to develop any apps that may implicate one or more of the covered specifications.

Caveat emptor!

ADA Applies to Websites, Patel Rules

2006-09-11T10:36:00.000-07:00

In a decision with potentially far-reaching impact on website developers and owners, Judge Marilyn Hall Patel denied defendant Target Corporation’s Motion to Dismiss a lawsuit filed by the National Federation of the Blind and others alleging that the Target.com website violated regulations promulgated under the Americans with Disabilities Act ("ADA") by failing to offer full accessibility to site features and benefits to persons with vision impairment. Target had attempted to argue that the ADA did not apply to "nonphysical spaces" such as websites, but Judge Patel ruled that "to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in [brick and mortar] Target stores, the plaintiffs state a claim."

The decision has obvious implications to website owners and developers, who should now add the ADA to their checklist of things to consider when designing and operating a site.

See National Federation of the Blind, et al., v. Target Corporation, Memorandum & Order Re: Defendant's Motion to Dismiss, No. C 06-01802 MHP (ND Cal., September 5, 2006)

KinderStart.com Suit Dismissed With Leave to Amend

2006-07-14T08:51:00.000-07:00

KinderStart.com's suit against Google has been dismissed with leave to amend. See KinderStart.com v. Google, No. C 06-2057 JF (RS) (N.D. Cal. July 13, 2006). KinderStart.com ("KSC") filed suit against Google earlier this year alleging a variety of causes of action, specifically:
(1) Violation of Right to Free Speech under the U.S. Constitution and the California Constitution
(2) Attempted Monopolization under Section 2 of the Sherman Act
(3) Monopolization under Section 2 of the Sherman Act
(4) Violations of the Communications Act 47 U.S.C. §§ 201, et seq.
(5) Unfair Competition under California Business and Professional Code §§ 17200, et seq.
(6) Price Discrimination under California Business and Professional Code § 17045
(7) Breach of the Implied Covenant of Good Faith and Fair Dealing
(8) Defamation and Libel, and
(9) Negligent Interference with Prospective Economic Advantage,
all arising from the March 2005 plummeting of KSC's Google ranking and KSC's concomitant AdSense revenue. KSC alleged that Google had illegally "blocked" its website, meaning that Google had intentionally caused KSC's website's Google ranking to fall.

On July 13, 2006, Judge Jeremy Fogel dismissed KSC's complaint with leave to amend except, apparently, as to the free speech counts. This is interesting because most observers, including me, felt that KSC was dead in the water ab initio given that Google's PageRank methodology is subjective and everyone knows it's subjective. Apparently Judge Fogel wants Google to be a little less subjective, if KSC can figure out how to plead this thing correctly.

.mobi Goes Live--Registration Windows Announced

2006-05-25T07:37:00.000-07:00

A new sponsored generic Top Level Domain, .mobi or dotMobi, went live this week. dotMobi is dedicated to delivering Internet content to mobile devices. On Monday May 22, the mobile industry will have an opportunity to register their trademark names as dotmobi domain names. The mobile industry has been defined by mTLD and consists of companies that are members of mobile industry organizations such as AMTA, CTIA, CWTA, GSMA, MEF, MMA, NZ Wireless Forum and the RCA. This Limited Industry Sunrise continues until Monday May 29.

Trademark Sunrise
Monday June 12 is the start of the Trademark Sunrise when all other trademark holders can register their trademark as dotmobi domain names. Trademark Sunrise continues until Monday August 21, a period of 70 days.

General Registration
Beginning on August 28, .mobi registration is open to everyone. This period is General Registration and continues indefinitely. General Registration commences with a two-week period known as Landrush; during Landrush, available .mobi domain names will be able to be registered at special prices.

EBay Wins! (at least for now)

2006-05-15T12:14:00.000-07:00

The US Supreme Court has reversed a Federal Circuit decision enjoining eBay from practicing two business method patents owned by MercExchange that read on EBay's "Buy-It-Now" feature. The Supremes held that the Federal Circuit erred in not applying in patent cases the traditional four-factor test that must be considered when deciding whether to grant injunctive relief. They thus sent it back to the United States District Court for the Eastern District of Virginia to apply the four equitable factors:

"a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." See EBAY INC., ET AL., PETITIONERS v.MERCEXCHANGE, L. L. C., 547 U.S. ___ (2006), Slip Op. at 2, available at http://www.supremecourtus.gov/opinions/05pdf/05-130.pdf.

Maryland Spam, Part Two

2006-05-12T13:05:00.001-07:00

The Court of Special Appeals of Maryland reinstated the Maryland Commercial Electronic Mail Act (MCEMA), which prohibits anyone from sending or assisting in the sending of emails with false or misleading information from computers in Maryland or to Maryland residents. The Court reversed the Circuit Court (see below post), and held that (1) the MCEMA does not violate the Commerce Clause of the United States Constitution (2) the state did not lack personal jurisdiction over defendant First Choice, a New York based Internet marketing company, in a suit alleging MCEMA violations, and (3) the company’s president could be held personally liable for the company’s alleged violations. MaryCLE v. First Choice Internet, Inc., —-A.2d—-, 2006 WL 173659 (Md.App.).

Yahoo sued!

2006-05-12T13:05:00.000-07:00

Spyware guru Ben Edleman has signed on to sue Yahoo! over allegations that it uses typosquatting and spyware to generate revenue in its ad placement programs. See http://blog.washingtonpost.com/securityfix/2006/05/class_action_targets_yahoo_ove_1.html. The case presents several examples of click fraud and related practices. A pdf of the complaint is available here: http://www.washingtonpost.com/wp-srv/technology/documents/yahoo_may2006.pdf

Maryland Spam Law

2006-05-12T13:03:00.000-07:00

Maryland's 2002 Commercial Electronic Mail Act was declared unconstitutional in early December 2004. But appeals courts in California and Washington have upheld similar laws in those states that were declared unconstitutional at a trial court level, so there is hope. See http://www.washingtonpost.com/wp-dyn/articles/A274-2004Dec14.html

ICANN News: New TLD's

2006-05-12T12:58:00.000-07:00

On May 10, 2006, ICANN's Board of Directors voted against a proposed agreement for a .XXX. Sponsored Top Level Domain (sTLD). [Note: sTLD's are referred to as "sponsored" since they are reserved for use by a specific community.] The application was proposed by the ICM Registry.

Here is the list of all current Generic Top Level Domains, as administered by IANA. Note that some are reserved and some are open to anyone:

The .aero domain is reserved for members of the air-transport industry and is sponsored by Société Internationale de Télécommunications Aéronautiques (SITA).
The .biz domain is restricted to businesses and is operated by NeuLevel, Inc.
The .cat domain is reserved for the Catalan linguistic and cultural community and is sponsored by Fundació puntCat
The .com domain is operated by VeriSign Global Registry Services.
The .coop domain is reserved for cooperative associations and is sponsored by Dot Cooperation LLC.
The .info domain is operated by Afilias Limited.
The .jobs domain is reserved for human resource managers and is sponsored by Employ Media LLC.
The .mobi domain is reserved for consumers and providers of mobile products and services and is sponsored by mTLD Top Level Domain, Ltd.
The .museum domain is reserved for museums and is sponsored by the Museum Domain Management Association.
The .name domain is reserved for individuals and is operated by Global Name Registry.
The .net domain is operated by VeriSign Global Registry Services.
The .org domain is operated by Public Interest Registry. It is intended to serve the noncommercial community, but all are eligible to register within .org.
The .pro domain is restricted to credentialed professionals and related entities and is operated by RegistryPro.
The .travel domain is reserved for entities whose primary area of activity is in the travel industry and is sponsored by Tralliance Corporation.

Registrations in the domains listed above may be made through dozens of competitive registrars. For a list of the currently operating accredited registrars, go to the InterNIC site.
Information about becoming an accredited registrar is available on the ICANN site.

The .gov domain is reserved exclusively for the United States Government. It is operated by the US General Services Administration.
The .edu domain is reserved for postsecondary institutions accredited by an agency on the U.S. Department of Education's list of Nationally Recognized Accrediting Agencies and is registered only through Educause.
The .mil domain is reserved exclusively for the United States Military. It is operated by the US DoD Network Information Center.
The .int domain is used only for registering organizations established by international treaties between governments. It is operated by the IANA .int Domain Registry.

These are the gTLD's that are accessible via the Domain Name System ("DNS"). There are also several domains that operate outside of the DNS. See http://www.new.net/

For more information on gTLD's and registries, see http://www.icann.org/registries/listing.html

Welcome!

2006-05-10T16:23:00.000-07:00

This is Brad Frazer's newest blog, specific to Internet legal issues.