Publication Schedule

The ILR Weekly Alert will not publish the Wednesday before Thanksgiving. The next issue will be dated Wednesday, December 3, 2008. The ILR staff wishes its readers a very Happy Thanksgiving! 
 

Latest News 
 
INTELLECTUAL PROPERTY
 
ICANN Sets New gTLD Time Line After Discussions, Debates in Cairo 
 
Citing continued tension and unresolved "rough areas," the Internet Corporation for Assigned Names and Numbers Nov. 7 announced that it will likely produce a second draft of its gTLD applicant handbook, and expects to be ready to accept new gTLD applications Sept. 30—later than earlier projections of second quarter.  The specific processes through which generic top-level domains will be allocated—something of a nagging question for trademark owners and Internet investors—proved a major point of discussion during ICANN's Cairo meeting, which ran Nov. 2-7.  Subscribers read more ...

Other Intellectual Property news:
 
·  House IP Subcommittee to Be Restructured; Full Committee to Handle IP Issues
·  Web-Savvy Company's Infringement Is Not Innocent
·  More Bilski Fall-Out:  Panelists Disappointed with Number of Questions Left Unanswered
·  Early Release of Pirated Game Justifies TRO
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
Regulations Implementing UIGEA Require Funds Processors to Detect Illegal Transfers 
 
The Treasury Department and Federal Reserve Board Nov. 12 released joint final rules instructing financial institutions to detect and block funds transfers for Internet gambling payments illegal under state or federal law.  The agencies did not include a list of either approved Internet gambling businesses, or those conducting illegal activities that payment processors should block.  Financial institutions requested a list to ease compliance burdens, but in comments accompanying the rules, the agencies said they did not create a list because that would require them to formally interpret laws written and enforced by state legislatures and law enforcement.  Prohibition on Funding of Unlawful Internet Gambling (Final Rule), 2008 ILRWeb (P&F) 3021.  Subscribers read more ...
 
Other Internet Commerce news: 
 
·  Click-Fraud Contract Claims Survive Motion to Dismiss on Ambiguous Definition of 'User'
·  New Jersey to Again Consider Measure That Would Prohibit Spyware Distribution
·  CAN-SPAM Claim Failed to Adequately Allege Damage
·  EU Approves Application of IBM to Acquire ILOG
·  Buried Clickwrap Disclaimer Unenforceable in Texas
·  Sherman Act Claim Based on Aftermarket iPhone Control Survives Motion to Dismiss
·  Firing Via Pending Web Policy Was Likely Pretext
 
Subscribers may search ILR's Internet Commerce database

FREEDOM OF SPEECH
 
Spam Filter Setting Did Not Violate First Amendment 
 
A county government office's inadvertent blocking of all e-mails from a particular Internet domain did not violate the First Amendment's right to petition the government, the U.S. Court of Appeals for the Third Circuit held Oct. 31 in an opinion designated as non-precedential.  Ferrone v. Onorato, 2008 ILRWeb (P&F) 2883.  Subscribers read more ...
 
Other Freedom of Speech news: 
 
·  High Court Passes on Ruling That CDA §230 Bars Negligence Claim Against Social Site
 
Subscribers may search ILR's Freedom of Speech database 

TELECOMMUNICATIONS 
 
Dorgan to Pursue Net Neutrality Bill Under Favorable Obama Administration 
 
Sen. Byron Dorgan (D-N.D.), the chief sponsor of net neutrality legislation in the Senate, intends to push for a revised bill early next year under the favorably inclined Obama administration, an aide to Dorgan said Nov. 13.  "We definitely feel that legislation is necessary," said Frannie Wellings, a telecommunications counsel to Dorgan.  "With the Obama administration being extremely supportive of net neutrality and the Congress having more net neutrality advocates, I think that we're quite excited that we can actually get this done," she said.  Subscribers read more ...
 
Other Telecommunications news: 
 
·  CompTel Again Urging FCC Delay in USF/Compensation Proceeding
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Customers Sue NebuAd, ISPs Over Deep Packet Inspection 
 
Online behavioral marketing firm NebuAd, Inc. and six Internet service providers violated customers' privacy and computer security rights by intercepting Internet transmissions to target advertisements, a group of consumers alleged in a Nov. 10 class action complaint filed in the U.S. District Court for the Northern District of California.  The plaintiffs, 15 ISP customers in five states, claim their ISPs disclosed sensitive and personally identifying information by using NebuAd's technology to snoop on the websites they visited and Internet searches they conducted.  Valentine v. NebuAd, Inc. (Class Action Complaint), 2008 ILRWeb (P&F) 3002.  Subscribers read more ...
 
Other Privacy & Security news: 
 
·  Alleged Transmission of Data-Stealing Virus Supports SCA, CFAA, and Wiretap Act Claims
·  Privacy Right of Purchasers Outweighs Need to Disclose Their Information in DMCA Case
·  Canadian Court Upholds Requirement for eBay to Disclose PowerSellers Data
·  ITU Council Ends with Reaffirmation to Address Cybersecurity Concerns
·  Massachusetts Extends Compliance Deadline for New Data Security Rules by Four Months
·  FTC Secures Temporary Court Order to Halt Company's Alleged Spy Practices
·  ENISA Recommends EU Breach Notice Law, Better Privacy Incentives, Stronger Sanctions
·  CNIL Warns Real Estate Site for Failure to Protect Customers' Personal Data
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
SSUTA Panel Finds Michigan Not in Compliance with Agreement 
 
A Streamlined Sales Tax Governing Board, Inc. committee Nov. 14 issued a preliminary finding of noncompliance against Michigan regarding its adherence to the Streamlined Sales and Use Tax Agreement.  Michigan thus became the fourth member state within eight days to be found in noncompliance, following the Compliance Review and Interpretations Committee's finding of noncompliance Nov. 6 for Indiana, Iowa, and Kentucky.  Subscribers read more ...

Other Taxation news: 
 
·  SST Small Seller Task Force Tackles Exemption, Vendor Compensation Issues
 
Subscribers may search ILR's Taxation database

JURISDICTION & PROCEDURE 
 
Claims of Forum Blog Contacts Not Backed Up by Affidavit Fail to Support Jurisdiction 
 
Allegations that a Florida resident's blog had a sizeable California audience and had other contacts with California were insufficient to demonstrate that the blog targeted California, especially when pitted against sworn affidavits to the contrary, the U.S. District Court for the Central District of California held Oct. 14.  Courts considering a motion to dismiss for lack of personal jurisdiction may not assume the truth of allegations contradicted by sworn affidavit.  Fahmy v. Hogge, 2008 ILRWeb (P&F) 2835.  Subscribers read more ...
 
Other Jurisdiction & Procedure news: 
 
·  Company Shipping Merchandise Into New Jersey Subject to Specific Jurisdiction There
 
Subscribers may search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY 
 
Unauthorized Access Through the Internet, E-Fraud Crimes Continue Rising in Japan 
 
Unauthorized access via the Internet to third-party e-mails, computers, recording devices, and accounts in Japan reached a record high in fiscal year 2007, which ended March 31, 2008, according to the Ministry of Justice's annual white paper on crime released Nov. 10.  Such activity in violation of the Unauthorized Access Prohibition Law of 1999 totaled 1,442 cases in FY 2007, up sharply from 703 in fiscal 2006, the report citing National Police Agency data showed.  Subscribers read more ...
 
Subscribers may search ILR's Criminal Liability database 

Latest Cases 
 
·  Apple & AT&TM Antitrust Litigation, In re, 2008 ILRWeb (P&F) 2889 [ND Cal] (Allegations that Apple, Inc. agreed with wireless provider AT&T Mobility to restrict the iPhone's voice and data service beyond the two-year term to which customers agreed are actionable under Sherman Act)
·  Auburn University v. Moody, 2008 ILRWeb (P&F) 3011 [MD Ala] (University demonstrates likely success on the merits of its trademark infringement claim against an alumnus who sells six-fingered foam hands to university football fans on the Internet)
·  Becker v. Toca, 2008 ILRWeb (P&F) 2713 [ED La] (Alleged transmission of data-stealing virus supports SCA, CFAA, and Wiretap Act claims)
·  eBay Canada Ltd. v. Minister of National Revenue, 2008 ILRWeb (P&F) 3019 [Can Fed Ct App] (Canadian court upholds order directing eBay to disclose to Canadian tax authorities the personal information of its top sellers)
·  Echostar Satellite LLC v. Freetech, Inc., 2008 ILRWeb (P&F) 2737 [ND Cal] (Personal information on radio receiver purchasers is only marginally relevant to a lawsuit alleging that those receivers can be used to violate the DMCA, and need not be disclosed in discovery)
·  Epic Games, Inc. v. Altmeyer, 2008 ILRWeb (P&F) 3015 [SD Ill] (TRO against manufacturer/distributor of pirated version of game; plaintiff establishes likely success on DMCA claim)
·  Fahmy v. Hogge, 2008 ILRWeb (P&F) 2835 [CD Cal] (Allegations that Florida resident's blog had sizeable California audience were insufficient to demonstrate that the blog targeted California)
·  Federal Trade Commission v. CyberSpy Software, LLC (Temporary Restraining Order), 2008 ILRWeb (P&F) 3025 [MD Fla] (FTC secures a TRO against Florida company accused of peddling software used to secretly monitor unsuspecting consumers' computers)
·  Ferrone v. Onorato, 2008 ILRWeb (P&F) 2883 [3d Cir] (Spam filter setting did not violate First Amendment)
·  Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 2008 ILRWeb (P&F) 2515 [Tex Ct App] (Software warranty disclaimer presented several pages into a clickwrap agreement in the same font as the rest of the agreement was inconspicuous and therefore unenforceable)
·  Gordon v. SubscriberBASE Holdings, Inc., 2008 ILRWeb (P&F) 2887 [ED Wash] (Merely asserting that unwanted e-mails "caused damage" is insufficient to satisfy the harm requirements of either the federal CAN-SPAM Act or Washington's spam law)
·  Gourmet Video, Inc. v. Alpha Blue Archives, Inc., 2008 ILRWeb (P&F) 2891 [D NJ] (Company that sold and shipped products to New Jersey residents via website is subject to specific personal jurisdiction)
·  GW Equity, LLC v. Xcentric Ventures, LLC, 2008 ILRWeb (P&F) 2885 [ND Tex] (CDA immunizes operators of consumer gripe sites from liability for allegedly defamatory content posted by third parties)
·  Hubbard v. Total Communications, Inc., 2008 ILRWeb (P&F) 2733 [D Conn] (Jury reasonably found that a company fired an employee in retaliation for her alleging gender discrimination, rather than her Internet use, where it only announced plans to issue an employee web usage policy two days before firing the employee)
·  IMS Health, Inc. v. Ayotte, 2008 ILRWeb (P&F) 3027 [1st Cir] (New Hampshire's Prescription Information Law, which prohibits certain transfers of physicians' prescribing histories, does not regulate protected speech, but even if it does, it passes constitutional muster)
·  Interactive Media Entertainment and Gaming Association, Inc. v. Wingate, 2008 ILRWeb (P&F) 3029 [Ky Ct App] (Appeals court stays orders relating to seizure of domain names used for gambling sites)
·  Lambotte v. IAC/InterActiveCorp., 2008 ILRWeb (P&F) 3013 [CD Cal] (Complaint alleging "click fraud" withstands motion to dismiss)
·  McNamara v. Universal Commercial Services, Inc., 2008 ILRWeb (P&F) 2725 [D Ore] (Search engine optimization company could not assert that its posting of copyrighted article online qualified as innocent infringement, because simple web search would have revealed that article was copyright-protected)
·  National Association of Waterfront Employers v. Chao, 2008 ILRWeb (P&F) 3023 [D DC] (The Anonymous Claimant Rule, which requires that claimants be referenced by their initials when ALJ decisions and orders are published on the Internet, reflects an appropriate balancing of interests in compliance with the First Amendment, but the rule should have been subject to APA formal rulemaking procedures)
·  PickupPal, Inc., In re, 2008 ILRWeb (P&F) 3017 [Ont Hwy Transp Bd] (Website that facilitates carpooling violates Ontario's Public Vehicles Act)
·  Prohibition on Funding of Unlawful Internet Gambling (Final Rule), 2008 ILRWeb (P&F) 3021 [Fed Res Sys] (Final rule implements applicable provisions of the Unlawful Internet Gambling Enforcement Act, designed to prevent payments to unlawful Internet gambling businesses)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Michaels v. Classmates Online, Inc. (Class Action Complaint), 2008 ILRWeb (P&F) 2816 [Cal Super Ct] (Plaintiffs allege that defendants, in marketing the subscription-based portion of their website, misrepresented that former classmates were trying to contact plaintiffs through classmates.com)
·  Valentine v. NebuAd, Inc. (Class Action Complaint), 2008 ILRWeb (P&F) 3002 [ND Cal] (Class action lawsuit by Internet users whose privacy and computer security rights were allegedly violated by advertisers and ISPs using deep packet inspection)
·  VicsBingo.com v. Wingate (Amicus Curiae Brief of Electronic Frontier Foundation, et al. in Support of Petitioners), 2008 ILRWeb (P&F) 3004 [Ky Ct App] (Amici challenge seizure order against domain names used by gambling sites)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

Residential VoIP Market Outlook   
Residential subscriptions to VoIP service have been growing dramatically in the past few quarters, even as growth of other advanced home communications services slows down. We are forecasting that VoIP-connected households should exceed 25 million by the end of the decade, and will grow at about 14% annually over the next few years. In this report, we offer more detailed forecasts plus an analysis of the various residential VoIP services on the market.  Learn More  Order Now

Broadband-enabled Gaming Environments 
The level of quality, realism and interactivity of online games has improved considerably in recent years, resulting in richly detailed worlds that feature virtual communities. We believe the evolution of online gaming presents an opportunity for some broadband service providers to tailor packages toward a growing customer base and thus benefit from service premiums and the resulting boost in ARPU. We forecast that the online gaming market will generate annual revenues nearing $2 billion by the end of the decade. In this report, we provide a detailed overview of the online gaming industry and project revenues and global market share out to 2013. We also provide a case study of a popular online game, and detail the opportunities and risks such games create for service providers.  Learn More  Order Now

Events & Conferences 
 

A New Age Begins: What the Election Means for the Communications Industry
A Pike & Fischer Webinar – November 24, 2008 – Next Week
As the new century's momentous economic and political events unfold, the year ahead promises to be one of the most challenging, most promising, and most significant in recent memory for the communications industry. The new administration--more tech-savvy and web-connected than any before it--promises to usher in a new era in telecommunications law and policy. To help you navigate the new telecommunications legal landscape, Pike & Fischer and a panel of telecom policy experts will help you take a timely look ahead at the new administration's likely approach to communications policy and regulation.  Learn More  Order Now


New Regs & Spam Webinar - CD Recordings Available!
On Oct. 28, Pike & Fischer played host to top legal experts from the government and the private sector, who addressed the latest developments in CAN-SPAM enforcement and litigation. Hear from the FTC, the Florida AG's Office, in-house counsel, and seasoned litigators on our exclusive CD. PowerPoint presentations included.  Order Now.

View all Events & Conferences

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