Broadband Policy Summit V

Sheraton Crystal City - Arlington, VA, June 18 & 19, 2009
BPS V will once again play host to the nation's top federal, state and private sector players who will discuss and debate the critical issues facing the broadband industry, including a volatile economy, wireless broadband, network management/net neutrality, broadband deployment and more. Confirmed keynotes include Rep. Rick Boucher, Acting FCC Chair Michael J. Copps, NTIA Senior Advisor Mark Seifert, and TIA President Grant Seiffert. View the Summit program.  Learn More.  Register Now.  One-day registration now available.

Latest News 
 
INTELLECTUAL PROPERTY
 
Prevailing Party Who Alleged Cybersquatting Not Required to Establish 'Use in Commerce'

Parties raising claims under the Anticybersquatting Consumer Protection Act, 15 USC §1125(d), are not required to establish that an alleged infringer used a mark "in commerce," the U.S. District Court for the Eastern District of New York held June 4.  Hamptons Locations, Inc. v. Rubens, 2009 ILRWeb (P&F) 2019.  Subscribers read more ...

Other Intellectual Property news: 
 
·  Dispute Over Secondhand IKEA Products Website to Yield First .se Trademark Ruling
·  Likelihood of Confusion Online Held to Hinge on Content, Context of Keyword Ads
·  Contempt Order Gives TiVo $103 Million, but Federal Circuit Stays Enforcement
·  Maximum Non-Willful Damages for Default Infringer
·  NFL Players Group Sued Again Over Publicity Rights
 
Subscribers may search ILR's Intellectual Property database

INTERNET COMMERCE 
 
Minnesota Abandons Effort to Get ISPs to Block Residents' Access to Gambling Sites

The Minnesota Department of Public Safety June 5 dropped its efforts to have Internet service providers prohibit state computer users from having access to nearly 200 online gambling sites.  With the state's decision, the Interactive Media Entertainment and Gaming Association (iMEGA) announced it would drop its lawsuit against the department.  Interactive Media Entertainment & Gaming Association, Inc. v. Willems (Notice of Dismissal Without Prejudice), 2009 ILRWeb (P&F) 2021.  Subscribers read more ...

Other Internet Commerce news: 
 
·  No-Bid .com Deal Supported Antitrust Claims Against VeriSign, While .net Contract Did Not
·  Geographic Protections in gTLDs Still Controversial
·  EC Expects Decision by November on Sanctions in Microsoft Browser Case
·  Pending Expiration of ICANN-Commerce Oversight Agreement Draws House Criticism
·  EU Antitrust Regulator Considers Forcing Microsoft to Bundle Other Internet Browsers
·  After Springsteen Concert Tickets Settlement, Ticketmaster Faces Ten Class Action Lawsuits
 
Subscribers may search ILR's Internet Commerce database

TELECOMMUNICATIONS 
 
Advocacy Groups Urge FCC to Enter Online Privacy Debate

Advocacy groups are urging the Federal Communications Commission to protect the privacy of Internet users as the agency takes steps to develop a national broadband plan.  In comments recently filed with the commission, several privacy and consumer advocacy groups argued that U.S. Internet firms currently have too much freedom to collect, use, and share consumers' personal information, raising privacy concerns.  Subscribers read more ...

Other Telecommunications news: 
 
·  Verizon's Tauke Sees Strong Market, but Some Policy Challenges Remain
·  Barton Urges USF Reform After FCC Provides Program Data
·  Obama Taps McDowell for Second Term at FCC
·  Much Agreement on Broadband Plan Except for Net Neutrality Requirement
 
Subscribers may search ILR's Telecommunications database

PRIVACY & SECURITY 
 
Boucher's Anticipated Privacy Bill May Sharpen Opt-In, Opt-Out Web Consent Debate

Privacy advocates, the Federal Trade Commission, and the online marketing industry have debated for several years appropriate means for obtaining user consent to data collection connected with online marketing, but the issue could soon take center stage in Congress, attorneys predicted June 3.  Rep. Rick Boucher (D-Va.) is expected to introduce a consumer privacy bill that will set notice requirements for Internet advertisers who collect data about site visitors' online activities.  Subscribers read more ...

Other Privacy & Security news: 
 
·  House Subcommittee Approves Bill to Create National Data Security Rules
·  Status of Data in Cloud Unclear Under ECPA, Attorneys Say Now Is Time for Reform
·  Court Nixes Telecom-NSA Spying Lawsuits, Finds FISA Constitutional, Halts State Queries
·  FTC Urged to Align Breach Notice Rules with HHS Approach to Protect Consumers
·  U.K. Group Launches Voluntary Standard for Businesses to Safeguard Personal Data
·  Sears Settles FTC Claims of Consumer Data Collection Without Proper Disclosure
·  Data Breach Notification Laws in Alaska, South Carolina Set to Take Effect July 1
·  NIST Seeks Comments on Cloud Computing Definition
·  NTIA, NIST, ICANN, VeriSign Team Up to Develop Internet Security Plan
 
Subscribers may search ILR's Privacy & Security database 

TAXATION
 
Washington Court Orders Expedia to Pay $184 Million in Class Action on Hotel Tax

A Washington Superior Court judge May 28, finding that Expedia, Inc. breached its contract with consumers nationwide, ordered the company to pay damages of $184.5 million in a class action that alleged the online travel company (OTC) failed to disclose the true nature of fees and taxes included in hotel reservations.  In re Expedia Hotel Taxes and Fees Litigation (Order on Cross Motions for Summary Judgment), 2009 ILRWeb (P&F) 1895.  Subscribers read more ...

Other Taxation news: 
 
·  Senate Tax Writers Unveil Legislation with Five-Year Wireless Tax Moratorium
·  West Virginia Adopts SSUTA Rule on Delivery Services
·  New York Rules on Bulk Sale of Prewritten Software
·  New York Says Internet Processing Services Taxable
 
Subscribers may search ILR's Taxation database 

JURISDICTION & PROCEDURE 
 
E-Mail Sent from Court Server Presumed Delivered

A defendant asserting it failed to timely file its notice of appeal because it never received a federal district court's e-mail notice must present evidence rebutting the presumption that the e-mail was received, the U.S. Court of Appeals for the Eighth Circuit held June 4.  American Boat Co. v. Unknown Sunken Barge, 2009 ILRWeb (P&F) 2011.  Subscribers read more ...

Other Jurisdiction & Procedure news: 
 
·  Service of Process to E-Mail Requires More Than Mere Connection to Address
·  Selling Infringing Products Online, Absent Forum Targeting, Insufficient for Jurisdiction
·  Resort Mark Use Online Not State Contact for Holder
 
Subscribers may search ILR's Jurisdiction & Procedure database

CRIMINAL LIABILITY 
 
FTC Complaint Leads to Shutdown of 3FN, Signifies New Action Against Malware Hosts

A judge with the U.S. District Court for the Northern District of California, San Jose Division, June 2 shut down the Internet service provider "Triple Fiber Network," more commonly known as 3FN, after the Federal Trade Commission filed an administrative complaint charging 3FN with knowingly hosting and distributing illegal and/or malicious electronic content such as child pornography, the commission said June 4.  Subscribers read more ...

Other Criminal Liability news: 
 
·  General Statement About Roommate's Hacking Insufficient to Support Warrant
·  French Crime Bill Would Allow Government Monitoring of Cybercriminals' Internet Use
 
Subscribers may search ILR's Criminal Liability database 

Latest Cases 
 
·  American Boat Co. v. Unknown Sunken Barge, 2009 ILRWeb (P&F) 2011 [8th Cir] (Appellant failed to rebut the presumption that it received the appealable order in the case through the district court's CM/ECF noticing system)
·  Bridgewater Telephone Co. v. City of Monticello, 2009 ILRWeb (P&F) 2009 [Minn Ct App] (The statutory language "utility or other public convenience" contained in Minn. Stat. §475.52, subd. 1, which deals with the purpose for which a city may issue a revenue bond, encompasses the creation of a broadband-communication network that would provide telephone, Internet, and cable television services)
·  Chanel, Inc. v. Lin, 2009 ILRWeb (P&F) 1717 [SD Fla] (Without evidence that a foreign defendant actually sends and receives e-mails from an account he allegedly owns, service of process via e-mail to that account is improper)
·  E-911 Grant Program (Final Rule), 2009 ILRWeb (P&F) 2007 [NTIA] (Joint final rule implements the E-911 grant program authorized under the ENHANCE 911 Act of 2004)
·  Expedia Hotel Taxes and Fees Litigation, In re (Order on Cross Motions for Summary Judgment), 2009 ILRWeb (P&F) 1895 [Wash Super Ct] (Washington court orders Expedia to pay $184 million in class action on hotel tax)
·  Federal Trade Commission v. Pricewert LLC (Ex Parte Temporary Restraining Order and Order to Show Cause), 2009 ILRWeb (P&F) 2013 [ND Cal] (Internet service provider "Triple Fiber Network" (3FN) shut down following FTC charges of knowingly hosting and distributing malware and child pornography)
·  Hamptons Locations, Inc. v. Rubens, 2009 ILRWeb (P&F) 2019 [ED NY] (Prevailing party who alleged cybersquatting not required to establish 'use in commerce')
·  Hearts on Fire Co. v. Blue Nile, Inc., 2009 ILRWeb (P&F) 1489 [D Mass] (In addition to the traditional Lanham Act "likelihood of confusion" factors, courts should analyze the contents and context of Internet ads triggered by a mark to determine whether consumers will likely be confused, or merely "diverted")
·  Interactive Media Entertainment & Gaming Association, Inc. v. Willems (Notice of Dismissal Without Prejudice), 2009 ILRWeb (P&F) 2021 [D Minn] (Minnesota abandons effort to get ISPs to block residents' access to gambling sites)
·  Jennings v. Holiday Inn Sunspree Resort, 2009 ILRWeb (P&F) 1723 [ED Pa] (Jamaica-based Holiday Inn resort's use of a trademark held by Holiday Inns, Inc. in its Internet advertising did not generate specific personal jurisdiction over Holiday Inns in a Pennsylvania lawsuit arising from a slip-and-fall accident that occurred in Jamaica)
·  Microsoft Corp. v. Marturano, 2009 ILRWeb (P&F) 1899 [ED Cal] (Statutory damages of $30,000, the maximum allowable recovery per non-willful copyright infringement, are a reasonable award for allegedly willful infringement on default judgment)
·  National Security Agency Telecommunications Records Litigation, In re (Dismissal Opinion), 2009 ILRWeb (P&F) 2001 [ND Cal] (In consolidated litigation related to purported NSA telephone communications surveillance, the court dismissed more than 30 class action claims against telecoms alleged to have cooperated with NSA)
·  National Security Agency Telecommunications Records Litigation, In re (Summary Judgment Opinion), 2009 ILRWeb (P&F) 2003 [ND Cal] (In consolidated litigation related to purported NSA telephone communications surveillance, the court granted summary judgment to the United States in six other cases in which the government sought to bar states from pursuing investigations into telecoms alleged to have cooperated with NSA)
·  New York Department of Taxation and Finance Advisory Opinion TSB-A-09(15)S, 2009 ILRWeb (P&F) 1721 [NY Dep't Tax Fin] (Company's loan origination and processing services via the Internet are subject to state and local sales tax as prewritten computer software when sold to a subscriber located in the state)
·  Search Warrant Executed on March 30, 2009 at the Residence of Movant Riccardo Calixte, In re, 2009 ILRWeb (P&F) 1879 [Mass] (Student's affidavit, attesting that his roommate hacked into the school's computer system to alter grades, did not provide sufficient facts from which law enforcement could lawfully search the dorm room and seize the roommate's electronic devices)
·  Sears Holdings Management Corp., In re (Agreement Containing Consent Order), 2009 ILRWeb (P&F) 2005 [FTC] (Sears settles FTC claims of consumer data collection without proper disclosure)
·  TiVo, Inc. v. Dish Network Corp., 2009 ILRWeb (P&F) 2017 [ED Tex] (Court awarded $103 million to home entertainment giant TiVo after holding EchoStar, now known as Dish Network, in contempt for violating a 2006 permanent injunction)
·  Toytrackerz LLC v. Koehler, 2009 ILRWeb (P&F) 1897 [D Kan] (Operation of a website that offers products that allegedly infringe plaintiffs' trademarks does not provide the constitutionally-required minimum contacts for establishing personal jurisdiction, but defendant's allegedly disparaging Internet postings satisfy the Calder effects test)
·  Xerox Corp., In re (Determination Letter), 2009 ILRWeb (P&F) 1719 [NY Div Tax App] (Software program, which the taxpayer developed for self-use, became tangible personal property subject to sales tax when it was sold as part of a bulk sale)
 
Subscribers may search ILR's Cases database

Latest Pleadings, Motions, & Briefs 
 
·  Farrell v. Schoemaker (Complaint), 2009 ILRWeb (P&F) 2002 [D Neb] (Google employee and owner of AdWords account sues trademark owner/litigant for defamation)
·  La Russa v. Twitter, Inc. (Complaint), 2009 ILRWeb (P&F) 1838 [Cal Super Ct] (Complaint for trademark infringement, false designation of origin, cybersquatting, and other causes of action arising from fraudulent Twitter account)
·  Yahoo! Inc. v. National Football League Players Association, Inc. (Complaint), 2009 ILRWeb (P&F) 2000 [D Minn] (Yahoo seeks declaration that it may use publicly available NFL player statistics in connection with its NFL fantasy football game)
 
Subscribers may search ILR's Pleadings database 

Latest Research from Pike & Fischer

VoIP in the Business World: Market Forecast and Analysis, 2nd Edition – New!
This report compares the business-class VoIP offers from six carriers, detailing both the services for large enterprises and SMBs. We then project the market opportunity out to 2013, forecasting both numbers of business-class VoIP lines and resulting revenues. We predict that AT&T, Verizon and Qwest will capture the biggest share of large enterprises as VoIP customers, but will face competition in the SMB space from a variety of new entrants. Fourteen tables and charts are included.  Learn More  Order Now

Consumer IPTV Outlook 2009 – New!
IPTV as a broad consumer solution is at a very early and arguably primitive stage in its development. Standards need to be developed, interoperability addressed and capital costs investigated. Dense urban areas or regions with an established fiber footprint will experience an earlier deployment--perhaps in the three-to-five-year range. In the meantime, a number of over-the-top video providers will latch onto available broadband networks with proprietary solutions that will promise to be "disruptive" to both legacy and IPTV offerings. However, P&F contends that proprietary solutions risk eventual obsolescence or buyout as fiber network and IPTV deployments manifest on a widespread scale. This report provides an outlook on the network buildouts, customer demand and opportunities in the IPTV-enabled world.  Learn More  Order Now

Events & Conferences 
 

Trademark-Based Keyword Advertising: Potential Liability and Avenues for Relief – New Webinar!
Wednesday, July 22, 2009 | 2:00 – 3:30 p.m. EDT
The debate over the use of others' trademarks to trigger online advertisements is heating up.  A recent ruling held that such use constitutes an actionable "use in commerce"; other cases are pending, including claims against advertisers and search engines, and even class action lawsuits.  At the same time, Google is liberalizing its policy to permit use of third-party trademarks in some text ads.  Join Pike & Fischer for an interactive Webinar featuring legal experts from Google, Santa Clara Law School, and Wilson Sonsini Goodrich & Rosati as they clarify common misconceptions about keyword advertising, examine the implications of third-party trademark use, and offer guidance for brand owners, marketers, resellers, and website operators.  Learn More  Register Now


Pinning Down Cloud Computing: Legal Risk Management and Best Practices for Business – Webinar Recordings Available!
There's been a lot of buzz about cloud computing.  Much of it touts cloud computing as a way for companies to save money in lean times.  But what are the risks associated with its adoption?  What's the best way to vet cloud providers?  How do you train employees to use cloud services wisely?  Is the current state of the law as unclear as many commentators contend?  Order a recording of our May 6 webinar featuring legal experts from Sun Microsystems, Salesforce.com, GE Capital, and Wilson Sonsini Goodrich & Rosati, who examined the benefits and risks of cloud computing from both the legal and practical perspectives.  Learn More  Order Now

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