Communications Industry Survey 2009: Broadband and the Economic Crisis

Readers of Internet Law & Regulation's Weekly Alert are invited to participate in a brief, 25-question, multiple-choice survey of the communications industry being conducted by Pike & Fischer's Broadband Advisory Services division. The survey seeks to gauge industry opinion about the state of the U.S. economy, the state of the regulatory climate for the communications industry and the state of the industry overall.

We encourage you to take five minutes to complete the survey. In doing so, you will gain access to insightful information that may help guide your organization during these times of economic and political change. You may access the survey here:

http://www.surveymonkey.com/s.aspx?sm=2mgRs8ge_2b_2bUTcXPKRmR0bA_3d_3d

In exchange for your participation, you will receive a FREE synopsis of the top line results and a $100 discount off the full study when it is published in June 2009. Responses are kept strictly confidential. Please respond to the survey by April 17, 2009. We look forward to your participation!

Latest News 
 
INTELLECTUAL PROPERTY
 
Fair Use Defense Availability Turns on Contents of Ads, Website Linked to Mark

The use of the Mary Kay mark online to describe secondhand cosmetics may qualify as a nominative fair use, but only if advertisements did not suggest a connection with or endorsement by Mary Kay, the U.S. District Court for the Northern District of Texas held Feb. 20.  Under Tiffany v. eBay, Inc. and Designer Skin v. S&L Vitamins, Mary Kay resellers accused of trademark infringement were not automatically barred from asserting a fair use defense due to their purchase of advertising keywords containing the mark, Judge A. Joe Fish said.  Mary Kay, Inc. v. Weber, 2009 ILRWeb (P&F) 1291.  Subscribers read more ...

Other Intellectual Property news: 
 
New Analysis & Perspective: Domain Name Tasting: Taste May Change, but Inclination Never Does, by Antonio Turco, Blake, Cassels & Graydon LLP
·  Amazon Modifies Text-to-Speech Feature in Device Amidst Copyright Controversy
·  ICANN Reports Contradict Trademark Owner, Government Concerns Over gTLDs
·  Allegations of Continuous P2P Downloading, Distribution Avoid 'Making Available' Inquiry
·  ICANN Board Orders Studies for Trademark, Geographic Name Protection in gTLD Process
·  Cert Petition Claims Bilski Rule Limits Process Patents to Manufacturing Methods
·  Hearings on DMCA Exemptions Set for Palo Alto, Washington, D.C.
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
E-Fencing Bills Would Create Record-Keeping Requirements, Other Duties for Web Services

Three bills before Congress, introduced Feb. 25, would impose record-keeping and fraud investigation requirements on Web "marketplaces" like eBay or Amazon that permit users to sell products online.  The proposals, designed to combat the sale of stolen products, mirror several introduced in 2008 that were considered in committee but never made it to a vote.  Two of the bills apply to marketplaces both on- and offline, but one proposal in the House addresses only the sale of stolen goods online, known as "e-fencing."  Subscribers read more ...

Other Internet Commerce news: 
 
·  Senate Subcommittee Examines Ticketmaster, Live Nation Merger
·  Browsewrap Contract Held Inapplicable Without Evidence That Party Visited Site
·  EU Regulator Says Full-Time Monitor Not Required to Check Microsoft Compliance
·  FTC Suit Against CyberSpy May Proceed, Court Rules
·  No 'Unauthorized' Access to P2P Shared Folder
·  Unresponsive Facebook Spammers Slapped with TRO
 
Subscribers may search ILR's Internet Commerce database

TELECOMMUNICATIONS 
 
Agencies Have More Questions Than Answers About Grant Programs

Officials from three federal agencies March 10 appealed to the public and stakeholders for comments, input, and recommendations about how best to distribute $7.2 billion in funds contained in the economic stimulus package for broadband infrastructure.  Few details emerged from the well-attended joint public meeting, including the definitions of unserved, underserved, and nondiscrimination. Instead, the agencies revealed that they will hold a series of public meetings in Washington, D.C., and in two Western states seeking public input into exactly those questions.  Subscribers read more ...

Other Telecommunications news: 
 
·  Agencies Face Many Hurdles in Distributing Broadband Grants
·  Technology Firms Press Agenda as States Begin Stimulus Decisions
·  Public, Net Neutrality Advocates Urge NTIA to Adopt Specific Rules
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Web Registrar's Preservation of Site Content for Police Is No Basis for Civil Rights Claim

Domain name registrar Go Daddy's preservation of website content in response to a law enforcement request did not support a police officer's civil rights claim alleging that the company restricted his ability to remove his name and address from his webpage, the U.S. District Court for the Northern District of California held Feb. 25.  Though the officer said he was unable to remove his address from the page, Go Daddy representatives testified that he could have purchased premium privacy protection that would have permitted him to do so at any time.  Cohen v. Newsom, 2009 ILRWeb (P&F) 1299.  Subscribers read more ...

Other Privacy & Security news: 
 
·  Head of DHS Cybersecurity Center Resigns, Citing Turf Battle Concerns
·  Republicans Renew Efforts to Require ISP Data Retention
·  FTC, Credit Report Company Settle Charges Firm Failed to Protect Data, Verify Client ID
·  Cybersecurity Review Team Expected to Provide Action Plan to Obama by April
·  Canada's Federal Privacy Commissioner Critical of Web Traffic Management Tools
·  House Lawmakers Reintroduce Bill to Protect Consumers from P2P Risks
·  Belgian Court Fines Yahoo! Over Refusal to Disclose User Data to Prosecutors
·  FTC, Medical Association Spar Over Application of ID Theft Prevention Rules
·  U.K. Online Ad Trade Association Unveils Behavioral Advertising Privacy Principles
·  NIST Updates Telecommuting Data Security Guidance
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
Comment Period Set to Begin on Proposed Amendment to SSUTA

The Streamlined Sales Tax Governing Board, Inc. plans to post a notice for public comment March 11 on a proposed amendment on the definition of delivery charges as it relates to direct mail delivery charges.  The board's State and Local Government Advisory Council, meeting via teleconference March 10, also said it plans to submit an accompanying rule for comment that would make recommended changes in the taxability matrix related to delivery charges and direct mail.  Subscribers read more ...

Subscribers may search ILR's Taxation database

JURISDICTION & PROCEDURE 
 
California Social Site Ad Deals in New York Create Specific Jurisdiction in Copyright Suit

A California social network's advertising deals with New York companies, and substantial New York user base, created specific personal jurisdiction over the service there due to the ads' connection with infringement on the service, the U.S. District Court for the Southern District of New York held March 5.  Capitol Records, LLC v. VideoEgg, Inc., 2009 ILRWeb (P&F) 1403.  Subscribers read more ...

Other Jurisdiction & Procedure news: 
 
·  Internet Ads Posted by Out-of-State Biker Bars Did Not Generate Jurisdiction in Arizona
·  Web Comments About Forum Resident Not Themselves Availment of That Forum
·  Eleventh Circuit Asks for Certification About Florida Long-Arm Application to Web Activity
 
Subscribers may search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY 
 
Fifth Amendment Does Not Protect Against Subpoena for Encrypted Hard Drive Contents

A party prosecuted for transporting child pornography after his laptop was searched at a U.S. border crossing must produce an unencrypted version of the laptop's hard drive in response to a government subpoena, the U.S. District Court for the District of Vermont held Feb. 19.  The defendant's act of turning over an unencrypted version of his hard drive does not qualify as being forced to testify against himself.  In re Grand Jury Subpoena to Boucher, 2009 ILRWeb (P&F) 1269.  Subscribers read more ...

Other Criminal Liability news: 
 
·  Illinois Sheriff Sues Craigslist, Asserts Site Knowingly Promotes, Facilitates Prostitution
 
Subscribers may search ILR's Criminal Liability database 

Latest Cases 
 
·  Arista Records LLC v. Does 1-16, 2009 ILRWeb (P&F) 1255 [ND NY] (Allegations that college student Doe defendants downloaded and distributed copyrighted files over P2P networks set out an actionable claim that supports a subpoena compelling the disclosure of their identities)
·  Capitol Records, LLC v. VideoEgg, Inc., 2009 ILRWeb (P&F) 1403 [SD NY] (California social network's ad deals with New York companies created specific personal jurisdiction over the service due to ads' connection with infringement)
·  Cohen v. Newsom, 2009 ILRWeb (P&F) 1299 [ND Cal] (Domain name registrar's preservation of website content in response to a law enforcement request did not support a police officer's civil rights claim alleging that the company restricted his ability to remove his name and address from his webpage)
·  EU Opinion 2/2009 on the Protection of Children's Personal Data, 2009 ILRWeb (P&F) 1287 [EC Working Party] (Article 29 Data Protection Working Party releases new opinion on the protection of children's personal data, particularly in the context of schools)
·  Facebook, Inc. v. Wallace, 2009 ILRWeb (P&F) 1401 [ND Cal] (Order granting ex parte motion for a temporary restraining order against alleged perpetrators of phishing and spamming campaign)
·  Federal Trade Commission v. CyberSpy Software, LLC, 2009 ILRWeb (P&F) 1301 [MD Fla] (Court denies CyberSpy's motion for summary dismissal of FTC action asserting that defendants' tracking software product violates Section 5 of the FTC Act)
·  Fractional Villas, Inc. v. Tahoe Clubhouse, 2009 ILRWeb (P&F) 1289 [SD Cal] (Absent evidence that defendant actually visited a website, it cannot be bound by the site's forum selection clause, and is not subject to jurisdiction without some other connection to the forum)
·  Golden Scorpio Corp. v. Steel Horse Saloon I, 2009 ILRWeb (P&F) 1305 [D Ariz] (Internet ads posted by out-of-state biker bars did not generate jurisdiction in Arizona)
·  Gorman v. Jacobs, 2009 ILRWeb (P&F) 1307 [ED Pa] (Web comments about forum resident not themselves availment of that forum)
·  Grand Jury Subpoena to Boucher, In re, 2009 ILRWeb (P&F) 1269 [D Vt] (Compelled disclosure of unencrypted version of laptop hard drive does not violate privilege against self-incrimination)
·  Internet Solutions Corp. v. Marshall, 2009 ILRWeb (P&F) 1211 [11th Cir] (Question regarding application of Florida long-arm statute to Internet websites is certified to state supreme court)
·  Kuklachev v. Gelfman, 2009 ILRWeb (P&F) 1293 [ED NY] (Motion to dismiss cybersquatting claim denied)
·  Levitte v. Google, Inc. (Consolidation Order), 2009 ILRWeb (P&F) 1295 [ND Cal] (Order granting motion to consolidate four related class actions challenging Google's AdWords practices)
·  Mary Kay, Inc. v. Weber, 2009 ILRWeb (P&F) 1291 [ND Tex] (Genuine issue of material fact as to whether first sale doctrine and fair use defense apply to eBay reseller)
·  Motown Record Co. v. Kovalcik, 2009 ILRWeb (P&F) 1303 [ED Pa] (A P2P user could not successfully claim that investigators' access to content he placed in a shared folder was "unauthorized" because the files were accessible to the general public)
·  United States v. Rental Research Services, Inc. (Stipulated Final Judgment), 2009 ILRWeb (P&F) 1405 [D Minn] (Tenant screening services company agreed to settle allegations that its lack of adequate data security safeguards resulted in sale of credit reports to identity thieves)
·  Unlicensed Operation in the TV Broadcast Bands (Final Rule), 2009 ILRWeb (P&F) 1297 [FCC] (Commission adopts rules allowing unlicensed radio transmitters to operate in the broadcast television spectrum at locations where that spectrum is not being used by licensed services, or "white spaces")
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Association for Maximum Service Television, Inc. v. Federal Communications Commission (Petition for Review), 2009 ILRWeb (P&F) 1230 [DC Cir] (Challenge to FCC decision that allows use of unlicensed devices in white space spectrum)
·  Capitol Records, LLC v. SeeqPod, Inc. (Complaint), 2009 ILRWeb (P&F) 1228 [SD NY] (Record companies sue music search engine for direct, vicarious, contributory, and inducement copyright infringement)
·  Dart v. Craigslist, Inc. (Complaint), 2009 ILRWeb (P&F) 1400 [ND Ill] (Illinois sheriff sues Craigslist, asserts site knowingly promotes, facilitates prostitution)
·  Finkel v. Facebook, Inc. (Complaint), 2009 ILRWeb (P&F) 1224 [NY Sup Ct] (Defamation action against Facebook and certain Facebook users who created an allegedly defamatory Facebook Group about plaintiff)
·  Kleffman v. Vonage Holdings Corp. (Opening Brief on the Merits), 2009 ILRWeb (P&F) 1226 [Cal Sup Ct] (Petitioner argues that California law prohibits the use of multiple domains in order to bypass spam filters)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

DOCSIS 3.0 Deployment Forecast – New!
As cable operators prepare their networks for both rapidly increasing bandwidth demands and competition from telephone company fiber builds, they are upgrading to the DOCSIS 3.0 standard, which adds a number of features to the industry's existing high-speed-data capabilities. This report examines the current state of this DOCSIS 3.0 upgrade and provides a forecast of the pace at which cable operators in the United States will deploy DOCSIS 3.0 services. We conclude that the top cable operators will have DOCSIS 3.0 covering 100% of homes passed by the end of 2013, and that MSOs can significantly shorten the time to achieve a return on their DOCSIS 3.0 investments by aggressively targeting business customers. Five tables and charts are included.  Learn More  Order Now

HDTV Service Comparison – New!
Over the past five years multichannel video providers have been increasingly competing on the breadth of their high-definition content, as more and more consumers buy HD-capable televisions. So far, DirecTV has held a distinct advantage over its rivals in terms of its number of HD channels, but that is quickly changing. Some providers have clearly assembled both the physical plant and the contracts with content owners to provide more HD content than their competitors. But in a new analysis, we find that the HD content and pricing varies significantly from provider to provider, and from region to region. In this report we analyze the HD packaging and pricing strategies in a representative sample of markets. Providers covered in this study include DirecTV, Verizon, Time Warner Cable, AT&T, Cox Communications and more. We include 20 charts and tables.  Learn More  Order Now

Events & Conferences 
 

Broadband Policy Summit V
Michael Copps to deliver keynote
Sheraton Crystal City, Arlington, VA, June 18-19, 2009
Michael Copps, the Acting Chair of the Federal Communications Commission, will give the luncheon keynote. Washington's preeminent broadband communications policy forum promises more than ever to be the place to learn how to position your company and clients to thrive in this new broadband environment. Copps will be joined by speakers representing the industry's top companies, like Verizon, AT&T, Time Warner, Google, and Amazon; leading public policy advocates, including Public Knowledge, Consumers Union, the Leadership Conference on Civil Rights, and MAP; and renowned investment specialists, including Precursor, Regulatory Source Associates, and J.P Morgan.  Learn More  Register Now  Early Bird Discount Expires May 18, 2009


The Pole Attachment Survival Guide: Navigating the New Joint-Use Environment - March 25, 2009 @ 2 pm EST – 2 Weeks Left!
In such uncertain times and terrain, you need expert insight into the challenges and opportunities that may lie ahead. Pike & Fischer's Pole Attachment Survival Guide: Navigating the New Joint-Use Environment Webinar can help you make prudent decisions and enable you and your clients to thrive in the new competitive attachment environment. In just 90 minutes, this invaluable Webinar will address the crucial issues confronting telecom pole attachers, and much more. Speakers include Christopher S. Huther, Partner, Sheppard Mullin Richter & Hampton LLP, Dr. Timothy J. Tardiff, Managing Director, Huron Consulting Group, and Megan H. Troy, Partner, Sheppard Mullin Richter & Hampton LLP.  Learn More  Order Now

View all Events & Conferences

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