Lex 8256: Law in Cyberspace

New Developments

MGM v. Grokster

12/10/04 -- The Supreme Court has granted certiorari in the Grokster case. Read John Borland's story for c|net News.com, and Hope Yen's story for AP.


Yet another reason to switch to a Mac

11/16/04 -- The Motion Picture Association of America has launched what it refers to as an "agressive education campaign" to combat movie piracy. Following the Recording Industry, the MPAA is filing suit against individual consumers who have downloaded or shared films over P2P networks. Read Katie Dean's story for Wired News. The Associated Press reports that the MPAA also plans to introduce a computer program that sniffs out movie files, music files and installed P2P software on the hard disks of individual Windows computers.


WTO ruling

11/11/04 --The World Trade Organization ruled on Wednesday that U.S. and state laws banning cross border gambling violate the GATT.  Read Matt Richtel's story for the New York Times. The United States says it will appeal.

The department of homepage security (from the people who sent you to www.factcheck.com)

10/21/04 -- The Register is reporting that the Bush/Cheney campaign is restricting access to the campaign website to individuals on American soil.  Initially, foreign news organizations reported that the site had been hacked, but they later concluded that the restriction was a deliberate policy decision on the part of the campaign.  The Bush/Cheny campaign has neither confirmed nor denied  the block.   The Washington Times  suggests the campaign's motive may be to save money; the Washington Post suggests the move may have been to protect the site from threats to its security. The Register suggests that some expatriot voters will end up at parody site GeorgeWBush.org instead.

...the ACLU suggests wrapping your passport in aluminum foil...

10/21/04 -- WIRED's Ryan Single reports that  the US government is moving ahead with plans to embed RFID chips in US passports; the first RFID-equipped passports may be issued as early as January 2005. 


Tales of the copyright police

 10/21/04 --  The Free Expression Project has released a report that indicates the the Notice-and-Takedown provisions of the DMCA, which insulate ISPs from liability for copyright or trademark infringement if they respond expeditiously to requests to block allegedly infringing material, have chilled non-infringing speech.  Meanwhile, the Dutch civil rights organization Bits of Freedom  conducted an experiment  in which it posted well-known, 19th Century public domain material on websites hosted by 10 different ISPs in the Netherlands, and then sent copyright complaints from a fictitious copyright owner demanding that the material be removed. All but one of the ISPs complied with the request without further inquiry. Read Jeff King's summary on copyfutures.


 ...and while we're on the subject of the copyright police...

 10/20/04 -- Three University of California researchers have released a  study concluding that neither the RIAA's strategy of suing individual  peer-to-peer file sharers nor the appearance of licensed music pay  download services has reduced file-sharing traffic over peer-to-peer networks.


Doe v. Ashcroft

9/30/04 -- The American Civil Liberties Union filed a lawsuit under seal last spring claiming that section 505 of the USA Patriot Act, which allows federal law enforcement officials to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight, violates the 1st and 4th amendments. Yesterday, Judge Victor Marrero agreed. Read Julia Preston's story for the New York Times. The ACLU remains subject to a gag order restraining it from revealing some details of the case, but has posted redacted versions of the court papers here.



Your tax dollars at work

9/30/-4 -- On Tuesday, the House passed H.R. 4077, the "Piracy Deterrence and Education Act," which is intended to deter peer-to-peer file sharing by increasing criminal copyright prosecutions of individuals who engage it. Read Roy Mark's story for Internet News. The bill now moves to the Senate, where other legislative initiatives designed to bury peer-to-peer file sharing with a wooden stake in its heart are pending.  The EFF's Fred Von Lohmann has published a column at Law.com that suggests a different approach.



Metaspinner Media v. Google Deutschland

9/23/04 -- "Preispiraten" is an online price comparison program from Metaspinner Media. Preispirate's website, as automatically translated by Google, explains: " Who wants to buy in the InterNet, often stands in view of the multiplicity of offerers before the nearly unsolvable task to find the attractive offer for him. One then still considers to buy the desired product if necessary used wird's correctly unclearly. Here the Preispiraten helps! The free Tool scanned over 600 on-line Shops and well-known auction houses after your desire product and lists the appropriate prices in shorten first time." Metaspinner is angry not because of that translation, but because Google.de is willing to sell ads pegged to the use of "Preispiraten" as a search term. Metaspinner sued Google.de for trademark infringement. Yesterday, a Hamburg court dismissed the case, ruling that Google's Adwords program did not violate German trademark law. Read John Oates's story for The Register. Meanwhile, Google is facing similar suits from Geico, American Blind & Wallpaper Factory, and Rescuecom in the United States and from Luteciel and Viaticum in France. Read Casey Dickinson's story for the Central New York Business Journal and Declan McCullagh's story for ZDNet.



The P2P Wars: Update from the Front

9/23/04 -- Last year, the Court of Appeals for the DC Circuit held that the recording industry could not use the expedited subpoena procedures in section 512 of the DMCA to get the names of potential defendants to sue in its battle against P2P file traders. Copyright owners complained that the ruling made it cumbersome and expensive to discover the identity of infringers. The state of California has now enacted a solution. On Tuesday, Governor Arnold Schwarzenegger has signed Senate Bill 1506 into law. Under the new law California file sharers who trade songs or films without providing an e- mail address will be guilty of a misdemeanor. Read Mark Martin's and Lydia Gledhill's story for the San Francisco Chronicle.

  • Thanks to Thomas Paluchniak for the SFGate link



US v. Councilman

9/7/04 -- Bradford Councilman, a dealer in rare books, offered email services to other bookdealers. Unbeknownst to them, he had configured the email processing software to allow him to intercept, copy and read their email; he planned to use the information for competitive advantage. The government indicted Councilman under the Wiretap Act. In June, a divided U.S. Court of Appeals for the 1st Circuit ruled that Councilman's interception of the email did not violate the Wiretap Act. The government has petitioned for rehearing. The Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association have filed a joint amicus brief supporting the government. Read Ryan Singel's story for WIRED News.



Geico v. Google

9/2/04 -- If you want to buy a small, unobtrusive banner ad that appears as a "sponsored result" when someone searches Google for the word "GEICO," Google will sell it to you. Geico has sued Google to make it stop doing that, and the case will be going to trial. News.com's Stephanie Olsen reports that EDVA Judge Leonie Brinkema has denied Google's motion to dimiss Geico's complaint, which alleges that Google's Adwords program violates Geico's trademark rights.



The Don't Even Think About Inducing Infringement of Copyrights Act

9/2/04 -- If you've been following the Induce Act, you already know that the bill has the support of the recording and motion picture industries, and is vehemently opposed by a broad coalition of high-tech, civil rights, consumer and library interests, which have counter-offered the Don't Induce Act. Today, the copyright office circulated what it called a "Discussion Draft," which manages to meet none of the objections of the opponents to the Induce Act, but does dress it all up in more obsfucatory prose. Read Declan McCullagh's story for News.com.



and, speaking of ICANN...

8/31/04 -- The Internet Corporation for Names and Numbers has released a self-evaluation of the process it has followed for approving new generic top level domains. While not actually self-critical, the report does suggest that ICANN's procedures may have been overcautious and certainly were unduly cumbersome. The folks at ICANNwatch.org will doubtless have something trenchant to say about ICANN's self-assessment, but they haven't posted it yet.

9/2/04 UPDATE -- ICANNWatch.org's Milton Mueller has posted commentary on the ICANN report



Verisign v. ICANN

8/27/04 -- A year ago, Verisign, which operates the .com registry, introduced a new service it dubbed "Sitefinder," which redirected browser requests for misspelled or nonexistent domains to its own proprietary paid search page. The service disrupted a variety of unrelated functions and programs, and ICANN, which has nominal authority over Verisign's operation of the registry, insisted that it discontinue Sitefinder. Verisign suspended Sitefinder "temporarily" but brought an antitrust suit against ICANN, arguing that its shutting down Sitefinder resulted from a conspiracy between ICANN and Verisign's competitors to restrain trade. Yesterday, the court dismissed the suit. Read Robert Lemos's story for News.com.

8/31/04 UPDATE -- Rebuffed by federal court, Verisign has filed a similar lawsuit in California state court. Read Paul Festa's story for News.com.



Yahoo! v. LICRA

8/23/04 -- Four years ago, the French Ligue Contre Le Racisme et L'Antisemitisme filed a complaint against Yahoo!, charging that Yahoo's U.S. web site, accessible to consumers in France, displayed Nazi memorabilia for auction in violation of the French Criminal Code. The French court concluded that Yahoo!'s site did violate French law, and ordered Yahoo! to remove material from its servers or disable access to the illegal material from France. Yahoo! then filed an action in U.S. District Court seeking a declaration that the French judgement was unenforceable in the U.S. The District Court ruled that enforcement of the French judgement would violate Yahoo!'s first amendment rights. LICRA appealed. On Monday, a divided 9th Circuit reversed. The majority held that the district court lacked jurisdiction to hear Yahoo!'s suit. Read Jim Hu's story for c|net News.com.



MGM v. Grokster

8/19/04 -- The 9th Circuit has issued its decision in MGM v. Grokster, affirming the trial court's grant of partial summary judgement to the distributors of peer-to-peer file sharing software. Because P2P file sharing software has substantial and commercially significant non-infringing uses, the court held, Grokster and Morpheus cannot be held liable as contributory infringers for making the software available. Because they have no control over the use of the software once they make it available, they cannot be held vicariously liable. After affirming the trial court's ruling, the court continued:

8/26/04 Update --In response to the ruling, the Recording Industry filed 744 additional copyright infringement lawsuits against individuals alleged to have used P2P networks. Read Roy Marks's story for InternetNews.com.



Federal legislation in the 108th Congress:

There are hundreds of Internet-related bills pending in Congress. The Center for Democracy and Technology is keeping track of many of the more important ones. Here is a sampling:

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Send me an email message: litman@wayne.edu