Laws of .com

Volume VI, Issue 3: February 7, 2008

Copyright in Lawyer's Letter Used to Foist DMCA Subpoena

Estonia Fines Man for "Cyber War"

CIRA Allows Complaint Over ecars.ca

Canada-US Patent Prosecution Highway Now Open

Study Shows eBay Buyers Save Billions

ICANN to Crack Down on Domain Name Abuse

Japanese Teen Arrested for Stealing Virtual Cash

Copyright in Lawyer’s Letter Used to Foist DMCA Subpoena

A U.S. Federal Court has found a prima facie existence of copyright in a lawyer’s cease and desist letter to support a Digital Millennium Copyright Act subpoena and takedown notice. In response to anonymous comments about Melaleuca Inc. and its CEO posted to a website, Melaleuca’s General Counsel wrote a letter to the apparent website owner demanding that the comments be removed. A copy of the cease and desist letter was also anonymously posted on the website. In a creative move to obtain the identification of the poster, a DMCA pre-litigation subpoena and takedown notice was eventually served on the website’s counsel for the purpose of seeking redress for copyright infringement.

To support the DMCA claim, the General Counsel’s letter was registered with the U.S. Copyright Office. Though the copyright registration process does not include a robust examination of whether copyright subsists in a work named in an application, the Court determined that the registration was prima facie evidence sufficient to support the DMCA process. Counsel for the website unsuccessfully argued that the letter fell into a group of works that is excluded from copyright protection under the U.S. Copyright statute (17 U.S.C. Section 102(b)). Counsel for the website also unsuccessfully argued that the posting was protected free speech under the First Amendment. The Court rejected both of these arguments.

For additional information, visit:
http://www.dozier-internet-law-pc.com/

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Estonia Fines Man for "Cyber War"

An ethnic Russian Estonian was convicted for taking part in a "cyber war" against Estonia. Dmitri Galushkevich was arrested for an attack which blocked the website of the Reform Party of Prime Minister Andrus Ansip. Several other investigations into the attacks are under way. The attacks took place against a backdrop of riots in May, 2007 by ethnic Russian Estonians prompted by the removal of a Soviet war memorial from the centre of Tallinn. The cyber attacks, which began as attacks on the Prime Minister’s website, also included attacks on websites of newspapers and television stations, then schools and finally banks, raising fears that what was initially a nuisance could have serious economic consequences. Estonian government officials first accused Russia of orchestrating the attacks. They also raised the issue at a meeting of NATO and asked to help defend their networks in what was described as a "cyber war".

Mr. Galushkevich admitted his guilt and was subsequently fined 17,000 Kroons (approx. CAD$1,650).

For additional information, visit:
http://news.bbc.co.uk/2/hi/technology/7208511.stm

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CIRA Allows Complaint Over ecars.ca

In a dispute over the domain names “ecars.ca” and “ecar.ca”, the Canadian Internet Registration Authority (CIRA) transferred ownership of the domain names from the registrant, an Ontario-based website designer and developer, to Enterprise Rent-A-Car (“ Enterprise”), a large US-based car-rental company. In making its decision, CIRA accepted that Enterprise had registered the marks “ECARS” and “ECAR” with the Canadian Intellectual Property Office in 1995 and 2001, respectively. The registrant was found to have registered the domain names “ecars.ca” and “ecar.ca” on February 1, 2001 and January 24, 2002, respectively.

Pursuant to CIRA’s Domain Name Dispute Resolution Policy, Enterprise succeeded in its dispute against the registrant by proving, on a balance of probabilities, that: (a) “ecars.ca” and “ecar.ca” were both confusingly similar to the trade-marks in which Enterprise had rights prior to the domain name registration dates, and to which such rights still exist; (b) the domain names were registered in bad faith, since the associated web pages linked to the websites of Enterprise’s competitors, indicating the registrant intended to disrupt Enterprise’s business; and (c) there was evidence the registrant had no legitimate interest in the domain names. The registrant had submitted that the use of the pre-fix “e” was a “universal prefix of the Internet age” and using it in each of the domain names made the resulting words clearly descriptive or generic in nature, which was grounds for claiming a legitimate interest. CIRA, however, rejected the registrant’s argument since it did not consider the prefix to be descriptive in itself, and therefore such a prefix could not make words clearly descriptive or generic by association.

For a copy of the CIRA decision, visit:
http://www.cira.ca/en/dpr-decisions/00086-ecar.ca.pdf

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Canada-US Patent Prosecution Highway Now Open

On January 28, 2008, the Canadian Intellectual Property Office (CIPO) commenced a one-year pilot project with the United States Patent and Trademark Office (USPTO) to employ the Patent Prosecution Highway (PPH), a cooperative measure intended to allow fast-tracking of patent applications made in more than one country and reduce the workload on patent examiners.

Under the PPH, if a patent application has already been examined and allowed in a first country where it was first filed, an accelerated examination can be requested in the second country for a patent application claiming priority to the first filed application. The second country will pull the application out of line and deal with it more expeditiously, and in doing so will be entitled to make use of the search and examination results from the first country. Each country will still use its own rules and practices in determining whether to grant the patent; however, it is expected that the applications under the PPH will proceed directly to allowance.

The PPH can also be used with divisional, continuation and PCT National Entry applications that meet the necessary application eligibility requirements. Currently, the primary requirement is that the first filed application must be made in Canada, in the US or as an originating PCT application.

A similar pilot project was conducted between the USPTO and the Japan Patent Office, which resulted in a full-time program being implemented, and there are additional ongoing pilot projects between the United States and the United Kingdom, the US and South Korea, Japan and South Korea, and the UK and Japan.

For additional information, visit:
http://www.ic.gc.ca/sc_mrksv/cipo/patents/PPH_Notice-e.pdf

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Study Shows eBay Buyers Save Billions

A study that sampled over 4000 eBay auctions in 2003, found that the “consumer surplus”, the difference between the highest bid buyers were willing to pay and the price the buyers actually ended up paying, was roughly $USD 6.5 billion. The study highlighted the balance eBay has to strike in its fee structures for buyers and sellers.

At a recent eBay conference in Washington D.C., eBay announced that it is poised to introduce changes to its fee structure, designed to make its auctions more appealing to sellers while also making it easier for consumers to find items they wish to buy. The new fee structure, which is not without controversy, is designed to boost eBay’s listings, which have stagnated in recent years, and to maintain eBay’s share of the online auction market.

For a copy of the study, visit:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=840264

For additional information, visit:
http://money.cnn.com/2008/01/31/smbusiness/ebay_fee_hike.fsb/index.htm

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ICANN to Crack Down on Domain Name Abuse

Board members of the Internet Corporation for Assigned Names and Numbers (ICANN) have recently agreed to revise their policy in order to make website domain name registration more expensive for “domain tasters”. Current ICANN policy permits domain name registrars to sample domain names for a period of 5 days, and to obtain a full refund of the registration fee if the name is returned within such period. As a result, a number of domain registrars have built businesses around claiming millions of domain names, only to return them prior to expiry of the grace period, keeping only those which have been successful in generating revenues through pay-per-click advertising traffic.

Under the new policy, there would be no refund of the $0.20 surcharge per domain payable to ICANN that is included in the registration fee. This would result in thousands of dollars in fees for domain tasting, which it is hoped will reduce the practice, and thus free up more domain names for the legitimate purchasers. The $0.20 fee, however, would not be a deterrent for people who simply make a spelling error or other mistake when registering, which is the original idea behind the 5-day grace period. The revised policy should also address the related issue of “domain kiting” in which registrars drop tasted domain names at the end of the 5-day grace period, and then immediately re-registered them.

ICANN has not confirmed when the policy will take effect, but industry experts think it could be in place by this summer. The new policy will impact not only registrars, but also companies such as Google who make money whenever someone clicks on one of its Adsense links that is referred by a site having a “domain taster” or “domain kiting” domain name.

For additional information, visit:
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/30/AR2008013002178.html

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Japanese Teen Arrested for Stealing Virtual Cash

Tokyo police recently arrested a 16-year-old boy who has allegedly stolen virtual funds worth approximately $340,000 USD. Using simple hacking software, the boy gained login information from a former employee of Naxos, the company hosting the game called Mabinogi. He then used this to access the game’s servers to obtain the virtual funds.

The interesting question of whether one can steal something that does not exist may come up in this case. The police say that they are treating the offence seriously. However, the teen only spent approximately $5,500 USD of the stolen funds.

This is not the first time that a teen has been caught doing something like this. Last November a Dutch teen engaged in a similar act. In both cases the offenders were motivated by the desire to purchase game items; in this case a gothic-style princess dress, and in the Dutch case digital furniture.

For additional information, visit:
http://blog.wired.com/games/2008/01/japanese-teen-s.html

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