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e-Commerce Docket Sheet
SCO Sues Linux End Users For Copyright Infringement
And Breach Of Contract
The SCO Group (SCO) filed lawsuits against two enterprises that use the Linux operating system, claiming that the enterprises have violated SCO's rights with respect to the UNIX System V operating system. The SCO Group, Inc. v. Autozone, Inc., No. CV-S-04-0237-DWH-LRL (D. Nev. Complaint filed March 3, 2004) and The SCO Group, Inc. v. DaimlerChrysler Corp., No. 04-056587-CK (Mich. Circuit Ct. Oakland Cty, complaint filed March 3, 2004). The complaint filed against Autozone alleges that the company has infringed SCO's copyright in the UNIX System V code by using the Linux operating system, and seeks damages and injunctive relief. The complaint filed against DaimlerChrysler alleges that the company is a licensee of the UNIX System V operating system, and that pursuant to the terms of its license, it is required annually to report to the licensor compliance with the license terms. SCO alleges that, despite repeated demands, DaimlerChrysler has declined to provide a compliance report, a breach of the agreement that SCO further attributes to the company's activities in migrating to the Linux operating system. SCO seeks declaratory and injunctive relief and damages.
Court Orders SCO And IBM To Identify Disputed Code Line By Line
SCO has been given 45 days to fully comply with a December 2003 discovery order entered in its copyright-infringement litigation against International Business Machines Corp. (IBM) that directed it to identify “all specific lines of code” that SCO alleges IBM has infringed. The SCO Group, Inc. v. International Business Machines, Inc., No. 2:03cv00294 DK (D. Utah March 3, 2004). The identification requirement includes “all lines of code in Linux” to which SCO claims rights, and all lines of code that SCO has distributed to other parties, as well as details concerning conditions under which the code was distributed. The court also ordered IBM to provide information concerning public and nonpublic contributions of code that it has made to Linux. A discussion of the case appeared in the November edition of e-Commerce Law & Strategy. Read it here.
'DeCSS' Enjoined Under DMCA
Making and disseminating software that bypasses the technology protecting DVDs from being copied violates the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). Paramount Pictures Corp. v. 321 Studios, No. 03-CV-8970, 2004 U.S. Dist. LEXIS 3306 (S.D.N.Y. March 4, 2004). The court ruled that the defendant's manufacturing and distributing the software was “essentially identical” to conduct that the Second Circuit found violated the DMCA in Universal City Studios, Inc. v. Reimerdes, 273 F.3d 429 (2d Cir. 2001). The court rejected the manufacturer's argument that the software did not violate the DMCA because it was not “primarily designed” to circumvent the DVD copy-protection technology, and issued a preliminary injunction against further manufacture and distribution of the software.
PA Federal Judge Orders Severance Of
File-Sharing Cases Against 203 John Does
The action against the individual defendants, accused of unauthorized music file-sharing, must be severed into separate actions because injuries the plaintiffs allege do not result from the same transaction or occurrence. BMG Music v. Does 1-203, No. 04-650 (E.D. Pa. March 5, 2004). The court ruled that the claims against the individual defendants will necessitate separate trials because the proofs may involve different witnesses, evidence, legal theories and defenses, which might confuse the jury. The court also found that there is a near certainty that there will be separate issues of fact regarding each of the individual defendants.
FL Federal Judge Orders Severance Of
File-Sharing Cases Against 25 John Does
A single action brought against 25 John Doe defendants accused of unauthorized music file-sharing must be severed into separate actions because the plaintiffs failed to meet the requirements of Fed. R. Civ. P. 20 for permissive joinder of claims. Interscope Records v. Does 1-25, No. 6:04-cv-197-Orl-22DAB (M.D. Fla. April 1, 2004). The magistrate judge recommended that the claims be severed because “they do not arise out of the same transaction, occurrence, or series of transactions or occurrences.” The court found that the only connection alleged between the defendants was that they all used the same peer-to-peer network, and that they all accessed the Internet through the same Internet service provider.
Canadian Court Refuses To Compel ISPs
To Reveal Identity Of Alleged File-Sharers
Record companies failed to establish a prima facie case against unknown alleged music file-sharers to justify issuing an order compelling Internet service providers to reveal the alleged sharers' identities. BMG Canada Inc. v. Doe, No. T-292-04 [2004 FC 488] (March 31, 2004). The Canadian Federal Court ruled that the evidence the plaintiffs submitted was deficient because, among other things, it lacked a showing that the alleged file-sharers distributed or authorized reproduction of sound recordings, and only that they “placed personal copies into their shared directories which were accessible by other computer users via a P2P service.” The court relied on the March 4 opinion of the Supreme Court of Canada (see CCH Canadian Ltd. v. Law Society of Upper Canada, below), involving the provision of photocopiers in libraries, in holding that providing facilities that permit copying does not constitute authorization of infringement.
Self-service Copiers Held Not Infringement Under Canadian Copyright Law
Mere provision of photocopiers for library patrons doesn't constitute a breach of Canadian copyright law. CCH Canadian Ltd. v. Law Society of Upper Canada, No. 29320 [2004 SCC 13] (March 4, 2004). The Supreme Court of Canada ruled that there was no evidence the photocopiers had been used in violation of copyright law, that the library had posted a notice over the copiers stating the library was not responsible for infringing copies users made, and that the library did not have sufficient control over its patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. The court also ruled that the library's service of providing single copies of legal materials to patrons for research purposes fell within the statutory “fair dealing” defense.
Communications Decency Act Provides Immunity From Liability
The immunity available to Internet service providers under Section 230 of the Communications Decency Act (CDA) extends to claims based on the federal Civil Rights Act. Noah v. AOL Time Warner, Inc., No. 03-1770, 2004 U.S. App. LEXIS 5495 (4th Cir. March 24, 2004) (unpublished). The circuit court affirmed per curiam a lower ruling that the Internet service provider was immune under the CDA from liability for its refusal to prevent chat room participants from making harassing and defamatory comments concerning the plaintiff's religion. The lower court also dismissed plaintiff's breach of contract claim that the refusal violated AOL's terms of service, because the provider's member agreement expressly disclaimed any obligation to protect users from others' harassing speech.
Software Master Disks Are 'Components' Under Patent Infringement Law
A master disk containing object code for a computer operating system is a “component” under the patent-law provision that imposes liability for shipment of infringing components from the United States for offshore manufacture. AT&T Corp. v. Microsoft Corp., No. 01 Civ. 4872, 2004 U.S. Dist. LEXIS 3340 (S.D.N.Y. March 5, 2004). The court ruled that Section 271(f) of the patent statute, enacted to prevent infringers from evading patent liability by exporting infringing components for offshore manufacture, encompassed the software on the master disks. The court rejected the argument that software is not a “component” because it is “intangible information,” and because it is not a “physical product.”
Infringement of Marketing Patent Is Advertising Injury Under Liability Policy
An insurer breached its duty to defend an online retailer under a policy covering advertising injury in an action for patent infringement where the patent covered technology that enabled prospective purchasers to preview music products on the retailer's Web site. Amazon.com International, Inc. v. American Dynasty Surplus Lines Insurance Co., 85 P.3d 974 (Wash. Ct. App. 2004). The court noted that the policy covered “the wrongful taking of an idea concerning the solicitation of business and customers,” and the patent holder alleged that the online retailer used the patent technology as a form of advertisement. The court distinguished cases in which the action to be defended involved the sale or advertising of infringing products that does not constitute advertising injury, and concluded that the complaint alleged an injury from the use of the patented technology “as the means to market goods for sale.”
Disgruntled Customer's Aim To Inform Consumers Not Bad Faith Under ACPA
A court should not be constrained by the factors enumerated in the Anticybersquatting Consumer Protection Act (ACPA) in assessing a domain-name registrant's bad faith, but should use them as a guide in assessing whether the registrant has “a bad faith intent to profit.” Lucas Nursery and Landscaping, Inc. v. Grosse, 359 F.3d 806 (6th Cir. 2004). The court reasoned that while the disgruntled customer's use of the domain name to inform fellow consumers met some of the bad-faith factors under the ACPA, the “paradigmatic harm” the act seeks to remedy was not present in any of her actions. The court concluded that one of the ACPA's main purposes is “the protection of consumers from slick internet peddlers who trade on the names and reputations of established brands,” and that the defendant's purpose “of informing fellow consumers of one's experience with a particular service provider is surely not inconsistent with this ideal.”
Web Links In Defamatory e-Mails Satisfies Totality of Circumstances Criteria
In determining whether a particular statement was actionable fact or nonactionable opinion using the “totality of circumstances” test, a court held that the facts on which allegedly defamatory statements were based were “provably true” because the e-mails containing those statements included hypertext links to the factual bases for the statements. Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375; 10 Cal. Rptr. 3d 42 (Ct. App. 4th Dist. 2004). The court ruled that the e-mails disclosed the facts on which the e-mailer based his opinion of the plaintiff's conduct by inviting the e-mail reader to “follow the path” to the Web sites to which the e-mailer referred. Even though the recipient of the e-mail had to click into each of the Web sites referred to, the court concluded, “the dispositive point is those factual bases [for the e-mailer's statements] were disclosed and were accessible to the reader.”
False Ad Claim Does Not Cover Injury From Defamatory Site
A complaint by doctors that a former patient's Web site containing defamatory statements caused injury to their commercial interests is not actionable under Section 43 of the Lanham Act. Nevyas v. Morgan, No. 04-CV-421, 2004 U.S. Dist. LEXIS 3900 (E.D. Pa. March 12, 2004).
The court held that the “false advertising” provisions of the Lanham Act were not intended to cover false and misleading statements by a noncompetitor. The court concluded that although the defendant's statements had been sufficiently disseminated to potential purchasers of the doctors' services to constitute “commercial advertising,” they had not been “made by defendants in commercial competition with the plaintiffs or … with the intention of influencing consumers to buy the defendant's goods or services.”
'Morph Tort' Claims For Digitally Aged Photos Barred By Single Pub. Rule
Tort claims based on computer alteration of the plaintiffs' childhood photographs and their use in a children's broadcast television program are time-barred because they were not brought within 2 years of the program's last broadcast. Long v. The Walt Disney Co., 116 Cal. App. 4th 868; 10 Cal. Rptr. 3d 836 (Ct. App. 2d Dist. March 9, 2004). The court rejected the argument that the statute of limitations should run from the time the plaintiffs discovered the use of their photographs because the photographs had been technologically altered, finding that the plaintiffs had access to the broadcasts, “even if only as members of the general public.” The court concluded that the “single publication rule” applies, and that there was no wrongful act of active concealment by the defendants, nor any facts supporting the conclusion that the altered likenesses were unrecognizable to each of the plaintiffs at first viewing.
Julian S. Millstein Edward A. Pisacreta Jeffrey D. Neuburger
SCO Sues Linux End Users For Copyright Infringement
And Breach Of Contract
The SCO Group (SCO) filed lawsuits against two enterprises that use the Linux operating system, claiming that the enterprises have violated SCO's rights with respect to the UNIX System V operating system. The SCO Group, Inc. v.
Court Orders SCO And IBM To Identify Disputed Code Line By Line
SCO has been given 45 days to fully comply with a December 2003 discovery order entered in its copyright-infringement litigation against
'DeCSS' Enjoined Under DMCA
Making and disseminating software that bypasses the technology protecting DVDs from being copied violates the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA).
PA Federal Judge Orders Severance Of
File-Sharing Cases Against 203 John Does
The action against the individual defendants, accused of unauthorized music file-sharing, must be severed into separate actions because injuries the plaintiffs allege do not result from the same transaction or occurrence. BMG Music v. Does 1-203, No. 04-650 (E.D. Pa. March 5, 2004). The court ruled that the claims against the individual defendants will necessitate separate trials because the proofs may involve different witnesses, evidence, legal theories and defenses, which might confuse the jury. The court also found that there is a near certainty that there will be separate issues of fact regarding each of the individual defendants.
FL Federal Judge Orders Severance Of
File-Sharing Cases Against 25 John Does
A single action brought against 25 John Doe defendants accused of unauthorized music file-sharing must be severed into separate actions because the plaintiffs failed to meet the requirements of
Canadian Court Refuses To Compel ISPs
To Reveal Identity Of Alleged File-Sharers
Record companies failed to establish a prima facie case against unknown alleged music file-sharers to justify issuing an order compelling Internet service providers to reveal the alleged sharers' identities. BMG Canada Inc. v. Doe, No. T-292-04 [2004 FC 488] (March 31, 2004). The Canadian Federal Court ruled that the evidence the plaintiffs submitted was deficient because, among other things, it lacked a showing that the alleged file-sharers distributed or authorized reproduction of sound recordings, and only that they “placed personal copies into their shared directories which were accessible by other computer users via a P2P service.” The court relied on the March 4 opinion of the Supreme Court of Canada (see CCH Canadian Ltd. v. Law Society of Upper Canada, below), involving the provision of photocopiers in libraries, in holding that providing facilities that permit copying does not constitute authorization of infringement.
Self-service Copiers Held Not Infringement Under Canadian Copyright Law
Mere provision of photocopiers for library patrons doesn't constitute a breach of Canadian copyright law. CCH Canadian Ltd. v. Law Society of Upper Canada, No. 29320 [2004 SCC 13] (March 4, 2004). The Supreme Court of Canada ruled that there was no evidence the photocopiers had been used in violation of copyright law, that the library had posted a notice over the copiers stating the library was not responsible for infringing copies users made, and that the library did not have sufficient control over its patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement. The court also ruled that the library's service of providing single copies of legal materials to patrons for research purposes fell within the statutory “fair dealing” defense.
Communications Decency Act Provides Immunity From Liability
The immunity available to Internet service providers under Section 230 of the Communications Decency Act (CDA) extends to claims based on the federal Civil Rights Act. Noah v. AOL
Software Master Disks Are 'Components' Under Patent Infringement Law
A master disk containing object code for a computer operating system is a “component” under the patent-law provision that imposes liability for shipment of infringing components from the United States for offshore manufacture.
Infringement of Marketing Patent Is Advertising Injury Under Liability Policy
An insurer breached its duty to defend an online retailer under a policy covering advertising injury in an action for patent infringement where the patent covered technology that enabled prospective purchasers to preview music products on the retailer's
Disgruntled Customer's Aim To Inform Consumers Not Bad Faith Under ACPA
A court should not be constrained by the factors enumerated in the Anticybersquatting Consumer Protection Act (ACPA) in assessing a domain-name registrant's bad faith, but should use them as a guide in assessing whether the registrant has “a bad faith intent to profit.”
Web Links In Defamatory e-Mails Satisfies Totality of Circumstances Criteria
In determining whether a particular statement was actionable fact or nonactionable opinion using the “totality of circumstances” test, a court held that the facts on which allegedly defamatory statements were based were “provably true” because the e-mails containing those statements included hypertext links to the factual bases for the statements.
False Ad Claim Does Not Cover Injury From Defamatory Site
A complaint by doctors that a former patient's Web site containing defamatory statements caused injury to their commercial interests is not actionable under Section 43 of the Lanham Act. Nevyas v. Morgan, No. 04-CV-421, 2004 U.S. Dist. LEXIS 3900 (E.D. Pa. March 12, 2004).
The court held that the “false advertising” provisions of the Lanham Act were not intended to cover false and misleading statements by a noncompetitor. The court concluded that although the defendant's statements had been sufficiently disseminated to potential purchasers of the doctors' services to constitute “commercial advertising,” they had not been “made by defendants in commercial competition with the plaintiffs or … with the intention of influencing consumers to buy the defendant's goods or services.”
'Morph Tort' Claims For Digitally Aged Photos Barred By Single Pub. Rule
Tort claims based on computer alteration of the plaintiffs' childhood photographs and their use in a children's broadcast television program are time-barred because they were not brought within 2 years of the program's last broadcast.
Julian S. Millstein Edward A. Pisacreta Jeffrey D. Neuburger
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Role and Responsibilities of Practice Group Leaders
Ideally, the objective of defining the role and responsibilities of Practice Group Leaders should be to establish just enough structure and accountability within their respective practice group to maximize the economic potential of the firm, while institutionalizing the principles of leadership and teamwork.