e-Commerce DOCKET SHEET

Verizon refused to comply with a subpoena the Recording Industry Association of America (RIAA) issued, contending that Section 512(h) of the DMCA imposed duties only on 'service providers' that 'stored' information on a system or network at a user's direction, and not 'service providers' such as itself, which 'transmitted' but did not store material over a network.

The district court disagreed with Verizon, holding that Section 512(h) applied to all service providers, as that term is broadly defined under the DMCA.An electronic signal referred to as a punter allegedly sent through an AOL chat room to disrupt another subscriber's computer constitutes information under Section 230 of the Communications Decency Act (CDA) (Green v. America Online [AOL]), No. 01-1120 3d Cir. Jan. 16, 2003).

The appeals court upheld the district court's dismissal of a subscriber's claims against AOL that alleged AOL failed to take action against the signal sender, in violation of AOL's subscriber agreement.

The court said the CDA's Section 230(c)(1) barred the subscriber's claims because the subscriber sought to treat AOL as the 'publisher or speaker' of the information constituting the punter signal.

The court rejected the argument that the CDA's definition of information was limited to 'communication or reception of knowledge or intelligence, and not an unseen signal that halts someone's computer.'Google has no obligation to Web site operators to continue assigning page ranks to Web sites according to its page-ranking algorithm. (SearchKing Inc. v. Google Technology Inc., No. CIV-02-1457-M, W.D. Okla Jan. 13, 2003).

The district court denied SearchKing's motion for a preliminary injunction, finding that SearchKing failed to show a likelihood of success on the merits of its claim for tortious interference with contractual relations as a result of Google's deliberate reduction in SearchKing's page ranking.

The court concluded that SearchKing could not make out a claim for tortious interference because Google had no business relationship with SearchKing, and neither SearchKing nor any other Web site was entitled to be ranked by or accessible on Google's search engine.An ordinary user's 'reasonable expectations' are not proper basis for determining whether conduct 'exceeds authorized access' to a Web site under the Computer Fraud and Abuse Act (EF Cultural Travel BV v. Zefer Corp., No. 01-2001, 1st Cir. Jan. 28, 2003).

The First Circuit Court of Appeals agreed with the district court that lack of authorization to access a Web site may be implicit, but rejected the 'reasonable expectations' test as 'highly imprecise' and 'litigation spawning.'

The appeals court noted that the Web site did not expressly prohibit use of a 'screen scraper' program to extract pricing data, and exhorted Web site owners 'to say just what non-password protected access they purport to forbid' on their sites.In order to prevail in an in rem trademark infringement and dilution action brought under the Anticybersquatting Consumer Protection Act, a plaintiff need not allege and prove defendant acted in bad faith (Cable News Network LP, LLLP v. Cnnews.com, No. 02-1112, Fourth Cir. Jan. 23, 2003 ' unpublished).

The district court granted plaintiff summary judgment in an in rem cybersquatting action and transferred the domain name cnnews.com to CNN, finding, among other things, that defendant had registered and used the domain in bad faith.

The fourth circuit affirmed transfer, but held ' in light of its subsequent decision in Harrods Ltd. v. Sixty Internet Domain Names 302 F.3d 214 (2002) ' there was no need to address the issue of whether the defendant acted in bad faith, because bad faith was not an element of an in rem cybersquatting action.A foreign defendant whose free software is downloaded by millions of users within the forum state purposefully avails itself of the privilege of doing business within that forum for purposes of establishing specific personal jurisdiction (Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., No. CV 01-08541-SVW, C.D. Cal. Jan. 9, 2003).

The district court held that the distribution of the defendant's file-swapping software was a commercial act even though the software was free. The court also said the defendant was 'at least constructively aware' that California residents conducted many downloads daily; and that these distributions were a 'but for' cause of the plaintiffs' copyright-infringement allegations.A defendant accused of misusing a competitor's trademarks in metatags and keywords may assert counterclaims based on the plaintiff's own alleged misuse of the defendant's trademarks on its Web pages to discuss the lawsuit (Netbula, LLC v. Distinct Corp., No. C 02-1253, N.D. Cal. Jan. 15, 2003).

The complaint alleged defendant's acts of embedding plaintiff's marks in HTML metatags and purchasing plaintiff's marks as search-engine key words constituted infringement and unfair practices.

After the complaint was filed, plaintiff posted information about the lawsuit on its Web site, information the defendant claimed was not only false and misleading, but made excessive use of defendant's marks and created initial confusion for Internet users.

The court granted defendant's motion to amend its counterclaim based on these postings, finding that the counterclaim alleged many of the 'same tricks' asserted in the complaint.

A notice accompanying packaged and downloadable software purporting to restrict purchasers from publishing product reviews or disclosing benchmark test results without seller's permission is unenforceable and may be sanctionable under New York law prohibiting deceptive business acts and practices (People v. Network Associates Inc., No. 400590/02, N.Y. Sup. Ct. N.Y. Cty. Jan. 14, 2003).

The court agreed with the New York Attorney General's Office that the restrictions in the notice were unenforceable because the notice was separate from the software's license agreement and that the license stated it was the 'entire agreement' between the parties.

The court also agreed that the language of the unenforceable notice might lead purchasers to believe they were prohibited from publishing reviews or tests under federal or state law.A subpoena issued pursuant to the Digital Millennium Copyright Act (DMCA) may be used to require an Internet service provider (ISP) to reveal the identity of a subscriber suspected of copyright infringement (Recording Industry Association of America v. Verizon Internet Services Inc., Civ. No. 02-MS-0323, D.D.C. Jan. 21, 2003).

Verizon refused to comply with a subpoena the Recording Industry Association of America (RIAA) issued, contending that Section 512(h) of the DMCA imposed duties only on 'service providers' that 'stored' information on a system or network at a user's direction, and not 'service providers' such as itself, which 'transmitted' but did not store material over a network.

The district court disagreed with Verizon, holding that Section 512(h) applied to all service providers, as that term is broadly defined under the DMCA.An electronic signal referred to as a punter allegedly sent through an AOL chat room to disrupt another subscriber's computer constitutes information under Section 230 of the Communications Decency Act (CDA) (Green v. America Online [AOL]), No. 01-1120 3d Cir. Jan. 16, 2003).

The appeals court upheld the district court's dismissal of a subscriber's claims against AOL that alleged AOL failed to take action against the signal sender, in violation of AOL's subscriber agreement.

The court said the CDA's Section 230(c)(1) barred the subscriber's claims because the subscriber sought to treat AOL as the 'publisher or speaker' of the information constituting the punter signal.

The court rejected the argument that the CDA's definition of information was limited to 'communication or reception of knowledge or intelligence, and not an unseen signal that halts someone's computer.'Google has no obligation to Web site operators to continue assigning page ranks to Web sites according to its page-ranking algorithm. (SearchKing Inc. v. Google Technology Inc., No. CIV-02-1457-M, W.D. Okla Jan. 13, 2003).

The district court denied SearchKing's motion for a preliminary injunction, finding that SearchKing failed to show a likelihood of success on the merits of its claim for tortious interference with contractual relations as a result of Google's deliberate reduction in SearchKing's page ranking.

The court concluded that SearchKing could not make out a claim for tortious interference because Google had no business relationship with SearchKing, and neither SearchKing nor any other Web site was entitled to be ranked by or accessible on Google's search engine.An ordinary user's 'reasonable expectations' are not proper basis for determining whether conduct 'exceeds authorized access' to a Web site under the Computer Fraud and Abuse Act (EF Cultural Travel BV v. Zefer Corp., No. 01-2001, 1st Cir. Jan. 28, 2003).

The First Circuit Court of Appeals agreed with the district court that lack of authorization to access a Web site may be implicit, but rejected the 'reasonable expectations' test as 'highly imprecise' and 'litigation spawning.'

The appeals court noted that the Web site did not expressly prohibit use of a 'screen scraper' program to extract pricing data, and exhorted Web site owners 'to say just what non-password protected access they purport to forbid' on their sites.In order to prevail in an in rem trademark infringement and dilution action brought under the Anticybersquatting Consumer Protection Act, a plaintiff need not allege and prove defendant acted in bad faith (Cable News Network LP, LLLP v. Cnnews.com, No. 02-1112, Fourth Cir. Jan. 23, 2003 ' unpublished).

The district court granted plaintiff summary judgment in an in rem cybersquatting action and transferred the domain name cnnews.com to CNN, finding, among other things, that defendant had registered and used the domain in bad faith.

The fourth circuit affirmed transfer, but held ' in light of its subsequent decision in Harrods Ltd. v. Sixty Internet Domain Names 302 F.3d 214 (2002) ' there was no need to address the issue of whether the defendant acted in bad faith, because bad faith was not an element of an in rem cybersquatting action.A foreign defendant whose free software is downloaded by millions of users within the forum state purposefully avails itself of the privilege of doing business within that forum for purposes of establishing specific personal jurisdiction (Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., No. CV 01-08541-SVW, C.D. Cal. Jan. 9, 2003).

The district court held that the distribution of the defendant's file-swapping software was a commercial act even though the software was free. The court also said the defendant was 'at least constructively aware' that California residents conducted many downloads daily; and that these distributions were a 'but for' cause of the plaintiffs' copyright-infringement allegations.A defendant accused of misusing a competitor's trademarks in metatags and keywords may assert counterclaims based on the plaintiff's own alleged misuse of the defendant's trademarks on its Web pages to discuss the lawsuit (Netbula, LLC v. Distinct Corp., No. C 02-1253, N.D. Cal. Jan. 15, 2003).

The complaint alleged defendant's acts of embedding plaintiff's marks in HTML metatags and purchasing plaintiff's marks as search-engine key words constituted infringement and unfair practices.

After the complaint was filed, plaintiff posted information about the lawsuit on its Web site, information the defendant claimed was not only false and misleading, but made excessive use of defendant's marks and created initial confusion for Internet users.

The court granted defendant's motion to amend its counterclaim based on these postings, finding that the counterclaim alleged many of the 'same tricks' asserted in the complaint.