Laws of .com

Volume V, Issue 11: May 31, 2007

US Appellate Court (Ninth Circuit) Narrows the Scope of Immunity for Internet Intermediaries

US Federal Authorities Arrest the Notorious "Spam King"

EU Officials Question Google's Data Retention Practices

First Piggybacking Charge Laid in Michigan

Ninth Circuit Issues Ruling in Perfect 10 Case

CIRA Allows Complaint Over godaddy.ca

Ontario to Broadcast Court Proceedings Online

New Jersey Authority Asserts Copyright Infringement Claim Against YouTube

Surveillance Compliance Deadline Lapses for US Internet Service Providers

Lawyers for Intel Face Subpoenas Over Lost E-Documents

US Appellate Court (Ninth Circuit) Narrows the Scope of Immunity for Internet Intermediaries

In a decision that has the potential to significantly narrow the scope of immunity granted to Internet intermediaries under Section 230 of the U.S. Communications Decency Act, the Ninth Circuit Court of Appeals has reversed a district court decision that would have granted summary judgment to Roommates.com against the claims of the Fair Housing Councils of San Fernando Valley and San Diego. The Councils claimed that Roommates.com’s online roommate matching service violated the U.S. Fair Housing Act by encouraging users to advertise discriminatory preferences in connection with the rental of accommodation.

Relying on previous cases that have given a robust interpretation to Section 230, Roommates.com argued that it should be immune from liability on the grounds that the offending content was provided by the users themselves. However, the Ninth Circuit held that because Roommates.com created or developed the online forms that both required users to answer questions enabling others to discriminate and requested users to make discriminatory statements themselves, Roommates.com was a content provider in respect of these questionnaires and did not qualify for the immunity. Roommates.com required users to complete a series of drop-down menus identifying such characteristics as their sex, sexual orientation and whether children will be present, and prompted users to express their roommate preferences based on such characteristics.

Although two judges held that Roommates.com should be immune for the material posted by users in an Additional Comments text box at the end of the questionnaire, the third judge held that because this box immediately followed the offending parts of the questionnaire and implicitly encouraged users to elaborate on the discriminatory preferences already solicited, no immunity should be granted.

In what is likely the most controversial aspect of the decision, two of the three judges held that by categorizing, channeling and limiting the distribution of the information provided in users’ profiles (for example, by permitting users to view only listings with compatible preferences, and by sending users notifications that exclude listings incompatible with their profiles), Roommates.com developed and provided “an additional layer of information” that brought it outside the scope of the statutory immunity. The third judge would have held that a website operator may select and edit content provided by another without falling outside the scope of such immunity. In a blog posting on this decision, Professor Eric Goldman criticizes the majority’s holding as creating significant uncertainty for search engines and other website operators.

For a copy of the decision, visit:
http://shorl.com/prygojorijipri

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US Federal Authorities Arrest the Notorious "Spam King"

Robert Alan Soloway, the man dubbed by the US federal authorities as the “Spam King”, was arrested this week on nine charges of identity theft, fraud, and money laundering; Soloway could face up to seventy-five years of prison time if convicted on all charges. This is the first federal prosecution under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act, the US legislation that established US national standards for the sending of commercial email, and enforced by the Federal Trade Commission (FTC).

The federal authorities were quick to point out that immediately after Soloway’s arrest the level of spam dropped significantly, suggesting that prosecutions under the CAN-SPAM Act to be an effective tool in the battle against spam. Some critics, however, note that most spammers are outside of the US and therefore beyond the reach of the federal authorities.

For additional information, visit:
http://www.informationweek.com/internet/showArticle.jhtml?articleID=199800077

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EU Officials Question Google's Data Retention Practices

A group of EU officials has sent an open letter to Google asking it to justify its policy of retaining search records of its users for up to two years. The group, which advises the EU on privacy policy, is concerned as to whether Google’s current practices are in accordance with the data protection requirements of the EU.

Google, who has already reduced its data retention time from indefinite to two years, maintains that keeping user search information for a certain period of time is necessary for its security purposes.

For additional information, visit:
http://www.ft.com/cms/s/dc89ec96-0a24-11dc-93ae-000b5df10621.html

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First Piggybacking Charge Laid in Michigan

A Michigan man has become the first person in his state to be charged with the theft of Wi-Fi networks, a practice commonly known as “piggybacking”. Each day, Sam Peterson would park his car outside a local café in order to take advantage of the store’s Wi-Fi network coverage. Peterson’s daily routine drew the attention of the local police chief, who after conducting some legal research, determined Peterson’s action to be a felony under the state law.

The Michigan law governing fraudulent access to computers, computers systems, and computer networks was revised in 2000 to include Wi-Fi networks; “piggybacking” is now a felony punishable by five years in prison and a $10,000.00 fine.

However, as Peterson has no prior record, he was sentenced to pay a nominal fine of $400.00 and to perform community service.

For additional information, visit:
http://news.com.com/8301-10784_3-9722006-7.html

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Ninth Circuit Issues Ruling in Perfect 10 Case

The Ninth Circuit Court of Appeals issued its decision for Perfect 10 v. Google on May 16, 2007. The appellate court overturned a lower court decision, which held that Google's thumbnail versions of Perfect 10’s full-size images likely constituted direct copyright infringement.

The 3-judge panel ruled that Google’s use of thumbnail images constituted “fair use” under US copyright law and lifted the preliminary injunction against Google. However, a ruling on whether Google was potentially liable for contributory infringement (i.e. intentionally inducing or encouraging direct infringement) by providing links to infringing full-size images, was remanded to the lower court to resolve certain factual disputes. The court stated that Google could be held contributory liable if it had knowledge that infringing Perfect 10 images were available using its search engine, and could have taken simple measures to prevent further damage to Perfect 10’s copyrighted works, but failed to take such steps. Also remanded was the Digital Millennium Copyright Act (DMCA) defence raised by both Google and Amazon; this defence limits the liability of a service provider in certain cases for linking to an infringing website.

The court upheld the lower court ruling that Perfect 10 had failed to establish the control over third-party websites required for vicarious infringement (i.e. profiting from direct infringement while declining to exercise a right to stop or limit it).

For a copy of the decision, visit:
http://lawgeek.typepad.com/LegalDocs/p10vgoogle.pdf

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CIRA Allows Complaint Over godaddy.ca

In a dispute over the domain name godaddy.ca, the Canadian Internet Registration Authority (“CIRA”) settled matters by transferring ownership of the domain name from the registrant to the complainant, GoDaddy.com, Inc., a US-based domain name registrar. In making its decision, CIRA accepted that since 1999 the complainant has been the owner of the domain name godaddy.com and the trade-mark GO DADDY. CIRA further observed that the disputed domain name was registered in December, 2001, and was being used by the registrant to redirect traffic to one of the complainant’s competitor’s websites.

Pursuant to CIRA’s Domain Name Dispute Resolution Policy (the “Policy”), the complainant succeeded in its dispute against the registrant by proving, on a balance of probabilities, that: (a) the disputed domain name is confusingly similar to a mark in which the complainant had rights prior to the date of registration of the domain name, and to which such rights still exist; (b) the domain name was registered in bad faith; and (c) there is evidence the registrant had no legitimate interest in the domain name. First, the disputed domain name, godaddy.ca, was found to be confusingly similar to the complainant’s trade-mark, GO DADDY, since the domain name and trade-mark are identical, except for the .ca suffix which is ignored by CIRA in its assessment of a domain name. Second, the domain name was found to have been registered in bad faith since it was found to redirect users to a competing business offering similar services, resulting in the potential disruption of the complainant’s business. Third, the registrant was found to have no legitimate interest in the domain name since, for example, the registrant neither used the domain name as a mark nor did the domain name represent the legal name or other identifier belonging to the registrant.

For a copy of the decision, visit:
http://www.cira.ca/en/dpr-decisions/00077-godaddy.ca.pdf

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Ontario to Broadcast Court Proceedings Online

In a recent bid to increase the openness of Ontario’s judicial system and the public’s understanding of it, Attorney General Michael Bryant has announced that some court proceedings will soon be broadcast on the Internet and will also be archived online for three months. In addition, DVD copies of the recordings will be made available to the media, presumably for broadcast purposes. This initiative is part of a larger response to recommendations made by the Panel on Justice and the Media, convened to facilitate understanding between the justice system and the media.

Current legislation (the Courts of Justice Act) contains a wide prohibition against photography and audio/video recording at court hearings, and will need to be amended to facilitate this new policy. The proceedings that will be broadcast through the Internet will not be first instance hearings, so Ontarians cannot expect to watch a murder trial (yet). At this time the project is limited to the Court of Appeal for Ontario, so viewers can expect to see the dialogue between lawyers and judges. A significant open question is whether Mr. Bryant or his successors will seek to broadcast first instance proceedings. If so, it will likely open up a lively debate about witnesses’ privacy rights and the potential impact on conduct of counsel.

For a copy of the Panel’s report, visit:
http://www.paneljusticeandmedia.jus.gov.on.ca/pjm/en/

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New Jersey Authority Asserts Copyright Infringement Claim Against YouTube

The New Jersey Turnpike Authority (NJTA) is claiming copyright infringement against YouTube.com in respect of footage of a fatal car crash captured by an NJTA surveillance camera. The video, which shows a car crashing into toll booths at high speed and bursting into flames, was posted on YouTube, as well as on LiveLeak.com and Break.com, after the video was leaked by an NJTA employee. Although the NJTA can claim copyright protection in the video, the websites may be able to claim fair use of the video for news reporting purposes. LiveLeak.com and Break.com have since removed the video from their websites.

For additional information, visit:
http://tinyurl.com/ysvsuc

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Surveillance Compliance Deadline Lapses for US Internet Service Providers

May 14, 2007, was the deadline for US broadband and VoIP service providers to demonstrate their ability to comply with the Communications Assistance for Law Enforcement Act (the “Act”). In 2005, the Federal Communications Commission (FCC) extended the Act’s requirement for compliance with wiretap access to broadband and VoIP service providers; under the new regulation, these providers are required to allow law enforcement to carry out the equivalent of a wiretap on their users.

The providers had until May 14 to have in place a system that would allow monitoring by investigators; failure to comply by the deadline may result in the provider being referred for enforcement.

For additional information, visit:
http://tinyurl.com/286ua4

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Lawyers for Intel Face Subpoenas Over Lost E-Documents

In an anti-trust suit involving allegations of customer coercion, Advanced Micro Devices Inc. (AMD) has served subpoenas on Intel’s external attorneys over the alleged loss of electronic documents related to the case.

AMD has alleged that Intel personnel, including executives, failed to collect and retain electronic files relevant to the dispute. Intel has acknowledged lapses and filed a remediation plan. The parties remain in conflict over the issue and AMD has alleged that Intel’s external counsel were heavily involved in the document retention process.

AMD has multiple antitrust suits pending including a recent suit file May 28, 2007.

For additional information, visit:
http://news.com.com/2100-1001_3-5765844.html

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