Laws of .com

Volume V, Issue 12: June 14, 2007

“Googling” Delinquent Tax Payer Not Sufficient in Tax Seizure Action

Broadcom Adds ITC Order to its Jury Award in Qualcomm Dispute

US ISPs Starting to Charge for "Guaranteed" Email Delivery

Ontario Court Bars Opposing Counsel from Utilizing Email Sent by Mistake

Settlement in Rigged Bidding Allegation on eBay

CIRA Disallows Complaint Over yellowpage.ca

Standards Set for Digital Signatures

Canada Proposes Criminal Code Amendment to Combat Unauthorized Recording of Movies

Ontario Court Orders Husband to Produce Hard Drive of Personal Computer in Family Law Proceedings

Lawsuit Launched Against Popular Online Dating Service Based on Website's Exclusion of Gays

"Googling" Delinquent Tax Payer Not Sufficient in Tax Seizure Action

Charles Fernandez has been vindicated as the owner of a vacant lot in Easton, Pennsylvania after his successful appeal from a lower court ruling that upheld the local tax bureau’s actions in selling off Mr. Fernandez’s property for back taxes.

The County of Northampton was owed $395.36 for property tax arrears on Mr. Fernandez’s lot in this community north of Philadelphia. It attempted to contact the owner by “Googling” his name which returned an address and telephone number for “Chuck” Fernandez. A call to the telephone number indicated it was not in service and the registered mail to the address came back undeliverable.

The County then posted a notice on the property and subsequently sold it in January 2005. Mr. Fernandez became aware of all of this for the first time in March 2005 when he contacted the county about paying his taxes.

An application to the County Court resulted in that court ruling that the procedure followed by the County tax authorities was sufficient to meet their statutory obligation regarding the sale of property to satisfy the payment of tax arrears.

However, the Commonwealth Court of Pennsylvania disagreed. That court found that it was not enough to search online through the Google search engine to give the property owner notice of the tax arrears and sale of the property. The Court held that the statutory requirements regarding the steps the tax bureau must take are clear and it failed to meet these statutory requirements.

The lesson that should be taken from this case is that Google is a quick, convenient and efficient way to find information on a casual basis but it cannot be relied upon to meet the strict requirements that may be required under law. A good system of ensuring that all of the proper steps have been taken is still a requirement even in our current environment of high-speed, online, information gathering.

For a copy of the decision ( Commonwealth Court) visit:
http://www.courts.state.pa.us/OpPosting/CWealth/out/1600CD06_5-31-07.pdf

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Broadcom Adds ITC Order to its Jury Award in Qualcomm Dispute

The U.S. International Trade Commission has granted an injunction to Broadcom Corp. banning the importation of new models of cell phones incorporating Qualcomm Inc. chips and chipsets. The ITC had earlier determined that Qualcomm infringed Broadcom’s patent directed to power saving features of handheld wireless communication devices including cellular devices working on 3G networks of AT&T, Sprint, T-Mobile and others. In parallel court proceedings, Qualcomm was also found to have wilfully infringed the patent and was ordered to pay U.S. $19.6M.

The ban does not apply to existing devices being imported for sale before June 7, 2007. The decision does not ban Qualcomm chips or chip sets per se, but instead applies to third-party products incorporating these devices even though such parties did not participate in the ITC proceedings.

ITC orders are subject to presidential review for sixty days. Qualcomm is seeking a temporary stay from the Federal Circuit Court of Appeals and asking the White House to veto the order.

For additional information, visit:
http://www.informationweek.com/news/showArticle.jhtml?articleID=199903358

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US ISPs Starting to Charge for "Guaranteed" Email Delivery

Goodmail Systems, a California company claiming to specialize in e-products, recently signed up five of the largest ISPs in the United States to use its system, CertifiedEmail. The system will enable the emails of its clients to bypass technologies that attempt to filter out spam. CertifiedEmail is targeted at large corporations and financial institutions whose mass emails are most likely to be imitated by spammers and confused with junk email.

Emails certified using the CertifiedEmail system are marked to show that they come from a “trusted” source at a cost of a quarter of a US cent per email, with non–profit clients charged at a reduced rate. According to Goodmail Systems, seven American ISPs are now using CertifiedEmail; the combined total of their users constitutes approximately sixty percent of the US population.

For additional information visit:
http://www.goodmailsystems.com/

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Ontario Court Bars Opposing Counsel from Utilizing Email Sent by Mistake

Justice George Czutrin of the Ontario Superior Court of Justice refused to grant leave in an application for filing of an affidavit by the applicant that includes an email received by mistake. The email in question is a part of the correspondence between the respondent’s counsel and the counsel of a non-party, in which an earlier appearance of the parties before Judge Czutrin is discussed. A printout of the email was inadvertently included in the materials intended for the applicant by the respondent.

The applicant’s counsel sought leave of the court to append the email in an affidavit on the grounds that it goes to the merits of a pending motion, in which the applicant is requesting to examine the non-party, the same non-party in the email, prior to trial.

Justice Czutrin refused to grant leave to admit the email into evidence; he held that as a general rule the court should discourage counsel from taking advantage of mistakes by opposing counsel. In discussing potential circumstances under which such mistakenly received correspondence may be used, Justice Czutrin remarked it would be only:

...where the probative value significantly and materially outweighs the prejudice and the civility and avoidance of sharp practice that counsel owe to each other and the administration of justice.

He then listed some situations where this type of material might be admissible:

1. the interest of justice requires admission because to do otherwise would result in miscarriage of justice; or
2. not disclosing or admitting certain facts or information would hide a criminal act or endanger a person.

Justice Czutrin found that the email in question did not meet any of the above criteria and was therefore inadmissible; it was ordered that the email be struck from the record.

For a copy of the decision, visit:
Phyllis Boyd v. Brian Dennis Fields

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Settlement in Rigged Bidding Allegation on eBay

A New York jewelry merchant and his company, the EMH Group, recently agreed to pay a $100,000.00 fine and $300,000.00 in restitution in connection with the sale of large quantities of merchandise through eBay, the online auctioneer. The settlement includes a four-year prohibition on participation in online auctions.

The allegations in this civil fraud suit were that detailed bidding instructions were sent to employees of the company, who then entered bids to artificially drive up the price of items. The New York Attorney General’s office estimates that a 20% price increase was achieved by this conduct.

In 2005, eBay issued a policy specifically forbidding this type of conduct, and it was responsible for alerting officials to the suspicious patterns occurring in EMH’s sales. It took over a year for New York state officials to complete their review of the evidence and initiate legal proceedings.

For additional information, visit:
http://news.com.com/2100-1030_3-6189874.html

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CIRA Disallows Complaint Over yellowpage.ca

In a dispute over the domain name yellowpage.ca, a panel appointed under the Canadian Internet Registration Authority’s Domain Name Dispute Resolution Policy dismissed the complaint of Yellow Pages Group Co. (“Yellow Pages”), a Canadian-based directory publisher, against Coolfred Co. (“Coolfred”), an Ontario-based sole proprietorship. In making its decision, the panel accepted that Yellow Pages has been the owner of the YELLOW PAGES and YELLOWPAGES.CA trade-marks since 1980 and 2003, respectively.

Pursuant to the Domain Name Dispute Resolution Policy, Yellow Pages proved that the disputed domain name is confusingly similar to a mark in which it had rights prior to the date of registration of the domain name, and to which such rights still exist. Specifically, the panel found yellowpage.ca to be confusingly similar to Yellow Pages’ trade-mark since “the average Internet user, based on first impression and imperfect recollection,” is likely to mistake YELLOWPAGE for YELLOW PAGES. Second, there was evidence Coolfred had no legitimate interest in the domain name. Although Coolfred had a business plan involving the domain name, no related commercial activity was carried out and therefore ‘use’ constituting a legitimate interest was not found. The domain name was also not a legal name of Coolfred or a geographical name. Notwithstanding the foregoing, Coolfred was found not to have registered the domain name in bad faith. Even though it planned to offer domain names for sale, this was not adequate evidence of an offer to specifically sell yellowpage.ca. Also, registering yellowpage.ca did not prevent Yellow Pages from registering its trade-marks. Since bad faith was not shown, the panel declined to transfer the domain name to Yellow Pages.

On a related point, Coolfred sought compensation of $5,000.00 from Yellow Pages, which can be awarded by the panel if the complaint was commenced “for the purpose of attempting, unfairly and without colour of right, to cancel or obtain a transfer of the disputed domain name”. However, since Yellow Pages established rights in its trade-marks and yellowpage.ca was confusingly similar to such marks, the request for compensation was dismissed.

For a copy of the decision, visit:
http://www.cira.ca/en/dpr-decisions/00076-yellowpage.ca.pdf

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Standards Set for Digital Signatures

OASIS (Organization for the Advancement of Structured Information Standards) gave Digital Signature Services (DSS) version 1.0 its highest level of ratification on June 7, 2007. DSS is designed to ensure data authenticity between interacting Web servers and to provide a tamper-proof mechanism to provide electronic timestamps, postmarks or official corporate imprimaturs. DSS is a two-protocol system, using one XML protocol for signatures and a second for verification. DSS is further designed to support multiple signature formats, including XML and CMS.

The DSS OASIS Standard was developed by representatives of the American Bar Association, Austria Federal Chancellery, BEA Systems, CATCert-Agencia Catalana de Certificacio, IBM, Nokia, Universal Postal Union, and others.

For a copy of the OASIS Press Release, visit:
http://www.oasis-open.org/news/oasis-news-2007-06-07.php

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Canada Proposes Criminal Code Amendment to Combat Unauthorized Recording of Movies

The federal government of Canada has tabled Bill C-59, creating a new indictable offence of unauthorized recording of a movie for the purpose of sale, rental or other commercial distribution, a practice commonly known as “camcording”. Under the proposed legislation, those guilty of the new offence could face up to five years in jail. Beverley Oda, Minister of Canadian Heritage and Status of Women, remarked, “[the federal government] is taking action to curb film piracy…[p]iracy and mass copying of films has had a significant and direct impact on the entire film industry, including producers, directors, actors and creators…the government is acting to increase protection for their works.”

The bill passed first reading on June 1, 2007, and is now at the committee stage.

For a copy of Bill C-59, visit:
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=2993072&file=4

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Ontario Court Orders Husband to Produce Hard Drive of Personal Computer in Family Law Proceedings

Justice Backhouse of the Ontario Superior Court of Justice granted a temporary order in a family law matter, ordering a husband to produce the hard drive of his home computer for disclosure purposes.

The wife sought the temporary order on the grounds that the husband’s hard drive contains details of his involvement with various family enterprises and business activities, and therefore goes to the issues of spousal and child support among others. The husband argued that the hard drive contains solicitor-client privileged material; as such, the husband was ordered to produce the hard drive for imaging, and to deliver it to independent counsel to parse out privileged content; the remaining content will then be delivered to the wife’s solicitor.

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Lawsuit Launched Against Popular Online Dating Service Based on Website's Exclusion of Gays

A lawsuit was recently launched against eHarmony, a popular online dating service, for failure to provide services to gays, lesbians and bisexuals looking to find a partner. The suit, launched in Los Angeles Superior Court, claims illegal discrimination on the basis of sexual orientation. The plaintiff is seeking to force eHarmony to end its policy of only providing services to heterosexuals, as well as unspecified damages.

For additional information, visit:
http://www.reuters.com/article/technologyNews/idUSN3122132120070531?feedType=RSS

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