Laws of .com

Volume VII, Issue 14: October 8, 2009

U.K. Court Approves Injunction Service by Twitter

Ontario Court Grants Norwich Order to Disclose Identity of Defendants

Music Publisher Sues Apple Over iTunes Downloads

Successful Appeal for Microsoft in Uniloc Patent Dispute as Bilski Looms

Judges Question Damages in Microsoft-i4i Patent Case

Bank Email Error Results in Disabled Gmail Account

AT&T Accuses Google of Violating Telecommunications Law

U.K. Court Approves Injunction Service by Twitter

A U.K. High Court has approved the service of an injunction order on a defendant by the popular micro-blogging site, Twitter. The court held that an anonymous user accused of impersonating another prominent blogger on the site must cease and desist and reveal his or her identity to the court. Given the anonymous nature of the defendant, service through normal channels would likely be ineffective and thus, service through the Twitter mechanism was approved.

For additional information, visit:
http://news.bbc.co.uk/2/hi/8285954.stm
http://www.guardian.co.uk/technology/2009/oct/01/twitter-injunction

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Ontario Court Grants Norwich Order to Disclose Identity of Defendants

In the decision York University v. Bell Canada Enterprises and Rogers Communications Inc., the Ontario Superior Court of Justice issued a “Norwich order”, allowing the plaintiff, York University, to seek from third parties, Bell Canada Enterprises (“Bell”) and Rogers Communications Inc. (“Rogers”), disclosure of the identity of the defendants who wrote potentially defamatory content on an electronic medium against a York University professor. A Norwich order allows a plaintiff, or a potential plaintiff, to seek disclosure of the identity of the defendant from a third party in order to bring action against that defendant.

In January 2009, the President of York University announced that Professor Martin Singer had been named as the inaugural Dean of the Faculty of Liberal Arts & Professional Studies. In February 2009, an anonymous group of individual(s) wrote an email post that stated Professor Singer was unqualified for the position. The Court found that under the Norwich order test, (a) the words in the email post were capable of being found to be defamatory of York University and the President of York University, and there was a prima facie case of defamation, (b) Bell and Rogers were the conduit for the communication of the email, (c) Bell and Rogers are the only practical source of the information, (d) the costs for Bell and Rogers to comply with the order are minimal, and (e) the interests of justice favoured disclosure of the identity of the defendants. Since all of the factors under the test for a Norwich order were met, the Court ordered the disclosure of the identity of the defendants for the limited purpose of allowing York University to begin litigation.

For a copy of the decision (Ontario Superior Court of Justice), visit:
http://tinyurl.com/yepuowz

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Music Publisher Sues Apple Over iTunes Downloads

Popular hip-hop artist Eminem’s music publisher has sued Apple for the unauthorized use on the iTunes music download service of almost 100 of the artist’s tracks. Also named as a defendant in the suit is Aftermath Records, the record company founded by Dr. Dre that controls the recordings in question. The claim against Aftermath alleges that it did not have the right to license the works to Apple for digital downloads.

Apple has denied any wrongdoing, claims that the agreement with Aftermath Records is valid, and points out that the plaintiffs have, in fact, received royalties on account of iTunes sales. However, the plaintiffs claim that the “acceptance of a single check containing mostly royalties for authorized uses, but also containing small and hidden royalties for unauthorized uses, cannot operate as a satisfaction of a claim.”

The matter was to go before a judge on October 8, 2009. However, the parties settled the matter out of court; and the terms of the settlement are confidential.

For additional information, visit:
http://www.siliconvalley.com/news/ci_13394509?nclick_check=1

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Successful Appeal for Microsoft in Uniloc Patent Dispute as Bilski Looms

On September 29, 2009, Microsoft won its appeal to the U.S. District Court in the District of Rhode Island, overturning a jury award of $388 Million for willful infringement of U.S. Patent 5,490,216 (the “’216 Patent”) in a long running dispute with Uniloc. The dispute was with regards to the alleged infringement by Microsoft of anti-piracy registration systems patents which are used in Windows XP and certain Microsoft Office related products.

The District Court focused on the distinction between the End User License Agreement used by Microsoft to create the legal relationship in its registration scheme and the digital license issued at the server authentication side, as the reason why Microsoft did not directly infringe the claims of the ‘216 Patent. The issue of willful infringement was also addressed, and the court determined that Microsoft was not reckless or willful, and that even if there was infringement, there was no reasonable basis on which a jury could so decide. The patent was upheld as valid, as it was open to the jury to conclude that it was neither anticipated nor obvious. Non-patentable subject matter was not at issue.

In the background lies the specter of an expected decision of the certiorari hearing by the U.S. Supreme Court, In re Bilski, which deals with the validity of “business method patents”, and will either affirm the profound effect the current status in Bilski has had on patent validity in the U.S., or will create its own profound effect.

For a copy of the decision (United States District Court, District of Rhode Island), visit:
http://tinyurl.com/yd3yjwb

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Judges Question Damages in Microsoft-i4i Patent Case

The U.S. Appeals Court for the Federal Circuit has taken issue with the $290 Million in damages that Microsoft Corp. was to pay Toronto-based software company i4i LP. The damages were awarded as part of a long-standing dispute over i4i patents related to the reading of XML (Extensible Markup Language). XML is a data file format that is used in MS Word and other office-productivity applications.

The calculation of damages in the original ruling was based on the premise that users who bought a $90 version of Windows would have paid considerably more for a substitute. Judge Kimberly Moore noted, however, that "not everyone who is willing to pay $90 or $200 for a product is willing to pay $500."

Despite the criticism of the calculation of damages, the Appeals Court took issue with Microsoft’s request that it overturn a lower court's finding that Microsoft had infringed i4i’s patent and should be barred from selling versions of Word that contain it. Microsoft acknowledged being in contact with i4i about the technology, but argued that there was no direct evidence that anyone at Microsoft had actually read i4i’s patent. Judge Alvin Schall stated, "I find it hard to believe that Microsoft didn't read the patent".

The Appeals Court judges have not indicated when they will finally rule on the matter.

For additional information, visit:
http://tinyurl.com/yzgkjy5

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Bank Email Error Results in Disabled Gmail Account

An email sent by an employee of Wyoming-based Rocky Mountain Bank resulted in a court order disabling a Gmail account. The email, which contained sensitive account information regarding more than 1,300 bank customers, was mistakenly sent to the Gmail account. Once the error was discovered, Google refused to release information regarding the Gmail account holder to the bank without a court order, citing its own privacy policies. Therefore, the bank sought such a court order requiring that Google intervene on its behalf.

The court order was issued, forcing Google to disable the Gmail account and cooperate with the bank. Once Google was able to show that the email had never been opened and that it had been deleted from the account, the account was re-enabled. However, some question the privacy implications of such a court order requiring that an email account be disabled and information removed without the consent of the owner.

For additional information, visit:
http://news.cnet.com/8301-27080_3-10363663-245.html

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AT&T Accuses Google of Violating Telecommunications Law

AT&T has alleged that Google has been blocking phone calls to rural areas made through its Google Voice service in order to reduce network access expenses, a cost-saving measure that traditional carriers are prohibited from using, as telecommunication laws require phone operators to offer unrestricted access to phone calls anywhere in the United States.

Google Voice allows users to connect all of their phone numbers to one common number and manage the calls and messages through a Website.

Google acknowledged that Google Voice does restrict some phone calls to rural areas, but claims that it is not a traditional phone service provider but a Web applications company and as such, it should not be subject to laws governing dial-up phone operators.

This dispute highlights the challenges currently being faced by the Federal Communications Commission. The rules and regulations in place for traditional landline phone networks and the Internet are often outdated and it is difficult to clearly apply such regulations to emerging technologies, such as Google Voice.

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

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