Laws of .com

Volume VII, Issue 13: September 24, 2009

Copyright Infringement Suit Brought Against the Ellen DeGeneres Show

FCC Releases Net Neutrality Rules

Canada's Privacy Watchdogs Wary of Proposed Surveillance Laws

Malicious Online Advertising Brings Microsoft Suit

Court Rules on Prospect of Liability for Linking to Allegedly Defamatory Content

State of Virginia Backs Off Demand for Facebook User Data

Microsoft Loses Patent Infringement Appeal but Damages Award to be Reduced

Copyright Infringement Suit Brought Against the Ellen DeGeneres Show

Seventeen record companies are suing the producers of the Ellen DeGeneres Show for copyright infringement. In a complaint filed in the United States District Court for the Middle District of Tennessee, the record companies allege that the producers willingly used over one thousand sound recordings without obtaining necessary licenses. They allege that the producers used these recordings in different segments of the show, but in particular in the “dance over scene”, where DeGeneres dances from the stage to the interview area following the opening monologue.

Scott Rowe, spokesperson for one of the producers, wrote in an e-mailed statement that the company has been working with the record labels for months to resolve the issue and remains willing to resolve it on "amicable and reasonable terms." Rowe said the issue does not involve DeGeneres, whom Rowe describes as "a tremendous music enthusiast and advocate."

For a copy of the suit, visit:
http://tinyurl.com/nprt2l

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FCC Releases Net Neutrality Rules

In a recent speech at the Brookings Institution, the Chairman of the United States’ Federal Communications Commission (FCC) outlined the new net neutrality rules to be implemented by the FCC, making good on campaign promises to do so by President Obama. The Chairman’s speech focused on openness and referred to questionable practices by broadband providers, such as blocking access to VoIP applications, and denial of access to political content. The essential principles espoused are that Internet Service Providers (ISP) cannot prevent access to lawful Internet content, cannot prohibit the use of non-harmful devices on the network and cannot discriminate against particular lawful Internet content or applications. For example, an ISP cannot block or prejudice the operation of an Internet service because it is competitive with an offering of that ISP.

The FCC’s position will likely have a significant impact on the position that the Canadian Radio-television and Telecommunications Commission will take this fall when it releases its position on the matter of net neutrality.

For additional information, visit:
http://tinyurl.com/m564ag

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Canada's Privacy Watchdogs Wary of Proposed Surveillance Laws

Canada's privacy commissioners are raising concerns over two bills introduced by the Canadian government in June: the Investigative Powers for the 21st Century Act and the Technical Assistance for Law Enforcement in the 21st Century Act. The two bills propose broader telecommunications surveillance and investigative powers for Canada's law enforcement and security agencies. The laws would, for example, allow such agencies to collect e-mail and IP addresses of Canadian Internet users without the need for a warrant, as well as use tracking devices on such things as mobile phones and motor vehicles. Newfoundland and Labrador's privacy commissioner has indicated that the Canadian government has not yet shown compelling evidence to justify such powers. To address concerns, privacy watchdogs are asking that Parliament ensure that a clear and demonstrable need exists for such powers, that the intrusiveness of the bills be minimized, and that there be a five-year Parliamentary review.

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

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Malicious Online Advertising Brings Microsoft Suit

Microsoft Corp. has filed suit in Washington State Superior Court against five unknown individuals operating under the business names “Soft Solutions”, “DirectAd”, “qiweroqw.com”, “ITmeter INC.” and “ote2008.info”. The suits allege that the defendants are disseminating “malvertisements” by distributing malicious software or luring users to sites that peddle security software that falsely claims to detect or prevent computer threats, known as “scareware”, to unsuspecting buyers.

In a blog post, Tim Cranton, Microsoft Associate General Counsel, writes that the software may comprise Trojan code to damage data, steal personal information or allow remote control of the user’s computer. Microsoft seeks damages and intends that the filings will help deter future malvertising.

For additional information, visit:
http://tinyurl.com/Microsoft-Malvertising-Threat
http://news.cnet.com/8301-13860_3-10356174-56.html

For a copy of the suit, visit:
http://microsoftontheissues.com/cs/files/folders/32814/download.aspx

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Court Rules on Prospect of Liability for Linking to Allegedly Defamatory Content

The British Columbia Court of Appeal has affirmed that there is no basis for finding a presumption of publication for hyperlinked articles. The appellant, Mr. Wayne Crookes, brought a claim for damages for defamation against Mr. Jon Newton, the owner and operator of a website entitled “p2pnet.” Mr. Crookes alleged that he had been defamed because the p2pnet website hyperlinked to articles containing alleged defamatory content against him. The issue on appeal was whether the trial judge erred in finding that Mr. Crookes had failed to establish that hyperlinks in this instance constituted publication.

In a divided decision, the Honourable Madam Justice Saunders, in writing for the majority, dismissed the appeal and held that even though Mr. Newton’s website had hyperlinks to alleged defamatory articles, this did not make him a publisher of the material found at the hyperlinked websites. The Court explained that under the tort of defamation there are two aspects to publication which Mr. Newton failed to meet. Firstly, in creating the hyperlinks, the court held that it could not be established that Mr. Newton promulgated a writing that was defamatory of Mr. Crookes due to the fact that there exists a barrier between the website containing the impugned hyperlinks and defamatory articles that has to be bridged by the reader and not the publisher of the hyperlinks. Secondly, due to the fact there was no way to determine the volume of “hits” generated by the impugned hyperlinks, an inference could not be drawn that those who accessed the p2pnet website also accessed the impugned hyperlinks. Therefore, due to a lack of evidence, the Court found that there was no presumption of publication in this case with respect to the websites and no resulting defamation for publication of the hyperlinks.

For a copy of the decision (Court of Appeal), visit:
http://www.courts.gov.bc.ca/jdb-txt/CA/09/03/2009BCCA0392err1.htm

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State of Virginia Backs Off Demand for Facebook User Data

The State of Virginia has recently backed down from its attempts to force Facebook to divulge the complete contents of a user’s account to settle a dispute over workers’ compensation, avoiding a potentially high-profile privacy battle in federal court.

Ms. Hensley was an employee of Colgan Air, a Virginia-based company operating under the names United Express, U.S. Airways Express, and Continental Connection. Ms. Hensley suffered a back injury while working for Colgan Air and received disability benefits as a result. However, after about 18 months, Colgan Air objected to continued payments, claiming that any back problems suffered by Ms. Hensley were not severe.

To support its claims, Colgan Air subpoenaed Facebook, demanding that Facebook provide all documentation relating to Ms. Hensley’s Facebook account. When Facebook refused, stating the request was overly broad, Virginia’s Workers Compensation Commissioner cited Facebook for contempt and ordered a $200-a-day fine on Facebook until it complied with the subpoena. The Commissioner later reversed his previous ruling and fine when Facebook made clear that it would further litigate this issue by seeking, among other things, an injunction from the federal courts.

Even though Colgan Air was unsuccessful in obtaining the requested information through the subpoena, it received the desired information after all, as Ms. Hensley, claiming she has nothing to hide, signed a release, authorizing the disclosure of the contents of her Facebook account to Colgan Air.

For additional information, visit:
http://news.cnet.com/8301-13578_3-10352587-38.html

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Microsoft Loses Patent Infringement Appeal but Damages Award to be Reduced

The U.S. Court of Appeals for the Federal Circuit recently upheld a decision of the district court that a component of Microsoft Outlook infringed a patent owned by Alcatel-Lucent. The patent, which covers a method of entering information into fields on a computer screen without using a keyboard, was incorporated into the “date-picker” calendar tool in Microsoft Outlook. Damages were assessed at trial based on 8 percent of the revenue of Microsoft’s sales. However, the U.S. Court of Appeals found this to be disproportionately high, given that the “date-picker” calendar tool was a tiny piece of a large and complex software program, and there was no evidence of widespread use of the infringing tool by customers. The calculation of damages was sent back to the district court for redetermination.

For additional information, visit:
http://news.cnet.com/8301-13578_3-10351104-38.html

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