e-Commerce Docket Sheet

By Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger
July 01, 2004

U.S. Supreme Court Agrees To Hear Mail Order Wine Sales Case

The U.S. Supreme Court has granted petitions for certiorari in three cases involving constitutional challenges to state regulations concerning interstate sales of wine. Granholm v. Heald, No. 03-1116 (U.S.); Michigan Beer & Wine Wholesalers v. Heald, No. 03-1120 (U.S.); Swedenburg v. Kelly, No. 03-1274 (U.S.) (petitions for certiorari granted May 24, 2004). The Court agreed to hear the issue of whether regulations in Michigan and New York that permit in-state wineries to ship wine directly to consumers, but prohibit out-of-state wineries from doing so, violate the dormant Commerce Clause.

Attorneys Fees Expended Defending Underlying State Law Claims Compensable Under Copyright Act

An award of legal fees is available to a defendant that successfully asserted a dispositive state law defense to copyright-infringement claims. Invessys, Inc. v. The McGraw-Hill Companies, Ltd., No. 03-1954, 2004 U.S. App. LEXIS 10067 (1st Cir. May 21, 2004). The plaintiff's copyright claims were held in abeyance and ultimately dismissed following a jury verdict in favor of the defendant on the state-law “scrivener's error” issue. Notwithstanding dismissal based on the state-law theory, the court concluded that an attorney-fee award was available under the literal words of the copyright act, and because the plaintiff's copyright claims depended on the issue of ownership, which was determined based on the state-law issue.

Ninth Circuit Refuses To Hear Microsoft Interlocutory Appeal In 'Lindows' Trademark Dispute

The U.S. Court of Appeals for the Ninth Circuit denied Microsoft's petition for an interlocutory appeal of the district court ruling that the generic nature of the term windows for windowing software should be evaluated as of the early 1980s. Microsoft Corp. v. Lindows.com, No. 04-80024, 2004 U.S. App. LEXIS 11662 (9th Cir. May 19, 2004). Microsoft argued that the question should be determined based on evidence of the current use of the term. The denial of the petition returns the case to the district court, which declined to grant motions for summary judgment on the generic issue and ruled that a jury should decide the matter.

Inaccurate Domain Name Registration Info Doesn't
Extend Statute Of Limitations In Web Site Defamation Case

The New York statute of limitations bars a defamation action brought more than 1 year after the creation of the Web site containing allegedly defamatory statements, even though the defendant domain-name registrant did not provide accurate name and address information to the domain-name registrar. Lewittes v. Blume, No. 03 Civ. 198, 2004 U.S. Dist. LEXIS 9467 (CSH) (S.D.N.Y. May 24, 2004). The court found that the plaintiff, who filed a John Doe lawsuit and later learned the correct identity and location of the registrant, was not prejudiced by the inaccurate information, and was “solely responsible” for filing the complaint late. The court declined, however, to dismiss claims under the Lanham Act, because the plaintiff had alleged sufficient facts to suggest that the Web site, which promised “to tell an entertaining story” and referenced “a forthcoming 'major motion picture,'” was a commercial use and likely to cause confusion with respect to the plaintiff's services as a screenwriter. The plaintiff's claim under the Anticybersquatting Consumer Protection Act was dismissed because the defendant ' the plaintiff's former wife ' registered the disputed domain name when she still used the plaintiff's surname, and there were no facts to support a conclusion that the defendant used the Web site to divert business from any Web site of the plaintiff.

California Appeals Court Applies Single Publication Rule To Internet

In a defamation action brought under California law, the single-publication rule applies to defamatory statements made on an Internet Web site. The Traditional Cat Association v. Galbreath, Cal. Ct. App. 4th Dist. (May 6, 2004). The California Court of Appeals ruled that the 1-year California statute of limitations barred the action, because the allegedly defamatory Web site had last been altered more than 1 year prior to the filing of the action. The court adopted the reasoning of the New York Court of Appeals in Firth v. State, concluding that “the need to protect Web publishers from almost perpetual liability for statements they make available to the hundreds of millions of people who have access to the Internet is greater even than the need to protect the publishers of conventional hard copy newspapers, magazines and books.”

Prior Business Relationship Is 'Preexisting Relationship'
Under Utah Spam Statute

A promotional e-mail sent to a recipient with whom the sender had a prior business relationship is not an unsolicited e-mail within the meaning of the Utah anti-spam statute. Gillman v. Sprint Communications Co., No. 20030349-CA (Utah Ct. App. May 6, 2004). The court concluded that the statutory language excepting messages sent to recipients with whom the sender had a “preexisting business or personal relationship” from the definition of “unsolicited” was not limited to those with whom the sender had a current relationship. The court held that the term preexisting, interpreted literally, referred to a relationship that existed in the past, whether or not that relationship continued in the present.

e-Mail Signature Satisfies New York Statute Of Frauds

A typed signature at the foot of an e-mail message memorializing the oral acceptance of an offer for the sale of real property satisfies the New York general Statute of Frauds requirement that a writing be subscribed. Rosenfeld v. Zerneck, 776 N.Y.S.2d 458 (Sup. Ct., Kings Cty May 4, 2004). The court noted that the general Statute of Frauds was amended in 1994 to provide that an electronic message may constitute a “writing” within the meaning of the statute, and held that the party's intention to authenticate that writing was manifested by the “act of typing his name at the bottom of the e-mail.” The court concluded, however, that the e-mail did not constitute a binding contract of sale for the property because it failed to lay out all of the essential terms of the agreement, such as the amount of the contract deposit or the treatment of a commercial lease that encumbered the property.

Private Right Of Action Under ECPA Is Narrower Than Criminal Scope

The Electronic Communications Privacy Act (ECPA), 18 U.S.C. '2510 et seq., criminalizes the possession of devices that are “primarily useful” for pirating electronic signals, but the civil provisions of the act do not provide a private civil cause of action for such violations. DirecTv, Inc. v. Massey, No. 03 C 3492 (N.D. Ill. May 27, 2004). The court dismissed the civil claim brought by the operator of a satellite-television network that alleged the defendant had purchased a device used to pirate its satellite-television signals. The district court concluded that the civil cause of action the ECPA provided is narrower than the scope of the criminal provisions, and is limited to violations of the prohibition against the interception, disclosure or intentional use of a party's wire, oral or electronic communications. The court also dismissed the plaintiff's conversion claim under Illinois law on the grounds that the network had failed to allege that any action of the defendant denied it the use or control of its satellite signals.

Forum Selection Clause In License Agreement
Not Limited To Contract Claims

A forum-selection clause in a technology-license agreement referring to “any lawsuit regarding this Agreement” encompasses tort claims based on alleged extra-contractual use of the licensed technology. Digital Envoy, Inc. v. Google, Inc., No. 1:04-CV-0864-CAP (N.D. Ga. May 21, 2004). The court rejected the argument that the forum-selection clause did not apply to the plaintiff's tort claims because they were independent of the license agreement. The court ruled that the forum-selection clause applied and, in the absence of allegations that the chosen forum was “sufficiently inconvenient to justify retention of the dispute,” transferred the case to the chosen forum pursuant to 28 U.S.C. '1404(a).

Disbarred Lawyer Held In Criminal Contempt For Web Site Content

A disbarred attorney willfully disobeyed a disbarment order by maintaining a Web site on which he referred to himself as an “attorney” and a “lawyer,” and through which he provided legal forms with accompanying instructions and advice. In re Clarkson, 2004 S.C. LEXIS 131(May 25, 2004). The court noted that the material on the respondent's “Patriot Network” Web site referred to the respondent as being available to provide advice on matters of law and legal procedure. The court concluded that the respondent should be held in criminal contempt and sentenced to 5 years of incarceration, subject to suspension on replacement of the Web content with court-specified disclaimers.

Julian S. Millstein Edward A. Pisacreta Jeffrey D. Neuburger