e-Commerce Docket Sheet

UK Libel Jurisdiction Extends To Statements
In The United States

California Gov. Arnold Schwarz-enegger can be sued for libel in the United Kingdom for a campaign spokesman's statements published in the print and online versions of a U.S. newspaper denying that Schwarzenegger had sexually harassed of a UK citizen. Richardson v. Schwarzenegger [2004] EWHC 2422 (QB) (Oct. 29, 2004). The UK trial court ruled that it was “well settled” under precedents in the UK and in Australia that “an internet publication takes place in any jurisdiction where the relevant words are read or downloaded.” The court also stated that “[t]here is no 'single publication rule' applying to trans-national libels.” The court concluded that the court should exercise jurisdiction because of several factors, including that the plaintiff was a UK citizen and resident with a widely known and established reputation in the United Kingdom; the plaintiff had no connection with any other jurisdiction; the underlying events took place in the United Kingdom; the plaintiff was entitled to a presumption of damage to her reputation in the United Kingdom; and English law is applicable to publication in the United Kingdom.

A microchip that enables the use of competitive toner cartridges by circumventing a printer manufacturer's authentication sequence does not violate the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). Lexmark International, Inc. v. Static Control Components, Inc., 2004 U.S. App. LEXIS 22250 (6th Cir. Oct. 26, 2004). The circuit court ruled that the printer-to-printer-cartridge authentication sequence circumvented by the distributor's microchip did not “effectively control access to” a copyrighted work because the copyrighted printer-control program to which the microchip enabled access was freely accessible to reading and copying without the benefit of the authentication sequence. The circuit court commented that “[n]owhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected.”

In file-sharing litigation brought by the recording industry, the University of Pennsylvania, the ISP for the alleged illegal file-sharers, has been ordered to give its subscribers notice that it has been served with subpoenas requesting their identifying information. Elektra Entertainment Group Inc. v. Does 1-6, No. 04-1241 (E.D. Pa. Oct. 13, 2004). Among other things, the notice informs the subscribers that they have 21 days in which to challenge the subpoena, provides information concerning assistance in obtaining an attorney, and suggests possible defenses to the subpoena and the possibility of settlement with the record companies.

In fashioning an injunction under the Anticybersquatting Consumer Protection Act (ACPA), a federal district court may enjoin activity outside the scope of the plaintiff's ACPA claim. DaimlerChrysler v. The Net Inc., 2004 U.S. App. LEXIS 22438 (6th Cir. Oct. 28, 2004). The district court granted summary judgment on the plaintiff's claim that the registration of the “foradodge.com” domain name violated the ACPA, finding that the plaintiff had a valid trademark entitled to protection, that the mark was distinctive and famous, and that the disputed domain name was confusingly similar to the plaintiff's mark and was registered in bad faith. The circuit court upheld the grant of an injunction against any further use of the term “foradodge” by the defendants, concluding that the plaintiff was entitled to an injunction that was more broad than the scope of its ACPA claim “in order to protect the reputation and goodwill it has established in its marks and to prevent defendants from infringing on, or otherwise harming, those marks.”

The $5000 floor for damages under the federal Computer Fraud And Abuse Act (CFAA) may be established by aggregating damages from individual acts of computer intrusion taking place over a 1-year period. Creative Computing v. Getloaded.com LLC, 2004 U.S. App. LEXIS 21469 (9th Cir. Oct. 15, 2004). The court upheld a judgment of more than $500,000 under the CFAA against a company that hacked into a competitor's Web site. The court rejected the defendant's contention that the plaintiff must make an evidentiary showing that each individual instance of unauthorized access resulted in damage or loss exceding $5000.

A company that required advertisers to comply with an “Anti-Spam Agreement” is not liable for the advertisers' violations of the Utah Unsolicited Commercial and Sexually Explicit Email Act. Fenn v. Redmond Venture, Inc., 2004 Utap App. LEXIS 362 (Utah. Ct. App. Oct. 15, 2004). The court concluded that the anti-spam agreement absolved the company from liability under the provision of the Utah statute that subjects a person “who sends or causes to be sent” unsolicited e-mail to violating the statute. The court rejected the plaintiffs' argument that the anti-spam agreement was a sham and was fabricated as a response to the institution of the plaintiffs' action.

An insurance company's production of certain records containing “nonpublic personal information” of nonparty policyholders in compliance with a civil-discovery demand did not violate the nondisclosure provisions of the Gramm-Leach-Bliley (GLB) Act. Ex parte Mutual Savings Life Insurance Co., 2004 Ala. LEXIS (Ala. Oct. 8, 2004). The court held that under a “plain reading” of the GLB exception permitting financial institutions to “respond to judicial process,” the insurance company was authorized to produce the requested information without providing notice to the policyholders, who were not parties to and had no interest in the litigation. The court also ruled that the privacy obligations that the GLB imposed on financial institutions concerning customer information extend to parties receiving the information pursuant to a civil-discovery order, and that the trial court should accordingly issue a “comprehensive protective order to guard the customers' privacy.” The same court ruled similarly the same day in an unrelated case that also involved nonparty insurance policyholders. See, Ex parte National Western Life Insurance Co., 2004 Ala. LEXIS 263 (Ala. Oct. 8, 2004).

UK Libel Jurisdiction Extends To Statements
In The United States

California Gov. Arnold Schwarz-enegger can be sued for libel in the United Kingdom for a campaign spokesman's statements published in the print and online versions of a U.S. newspaper denying that Schwarzenegger had sexually harassed of a UK citizen. Richardson v. Schwarzenegger [2004] EWHC 2422 (QB) (Oct. 29, 2004). The UK trial court ruled that it was “well settled” under precedents in the UK and in Australia that “an internet publication takes place in any jurisdiction where the relevant words are read or downloaded.” The court also stated that “[t]here is no 'single publication rule' applying to trans-national libels.” The court concluded that the court should exercise jurisdiction because of several factors, including that the plaintiff was a UK citizen and resident with a widely known and established reputation in the United Kingdom; the plaintiff had no connection with any other jurisdiction; the underlying events took place in the United Kingdom; the plaintiff was entitled to a presumption of damage to her reputation in the United Kingdom; and English law is applicable to publication in the United Kingdom.

A microchip that enables the use of competitive toner cartridges by circumventing a printer manufacturer's authentication sequence does not violate the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). Lexmark International, Inc. v. Static Control Components, Inc., 2004 U.S. App. LEXIS 22250 (6th Cir. Oct. 26, 2004). The circuit court ruled that the printer-to-printer-cartridge authentication sequence circumvented by the distributor's microchip did not “effectively control access to” a copyrighted work because the copyrighted printer-control program to which the microchip enabled access was freely accessible to reading and copying without the benefit of the authentication sequence. The circuit court commented that “[n]owhere in its deliberations over the DMCA did Congress express an interest in creating liability for the circumvention of technological measures designed to prevent consumers from using consumer goods while leaving the copyrightable content of a work unprotected.”

In file-sharing litigation brought by the recording industry, the University of Pennsylvania, the ISP for the alleged illegal file-sharers, has been ordered to give its subscribers notice that it has been served with subpoenas requesting their identifying information. Elektra Entertainment Group Inc. v. Does 1-6, No. 04-1241 (E.D. Pa. Oct. 13, 2004). Among other things, the notice informs the subscribers that they have 21 days in which to challenge the subpoena, provides information concerning assistance in obtaining an attorney, and suggests possible defenses to the subpoena and the possibility of settlement with the record companies.

In fashioning an injunction under the Anticybersquatting Consumer Protection Act (ACPA), a federal district court may enjoin activity outside the scope of the plaintiff's ACPA claim. DaimlerChrysler v. The Net Inc., 2004 U.S. App. LEXIS 22438 (6th Cir. Oct. 28, 2004). The district court granted summary judgment on the plaintiff's claim that the registration of the “foradodge.com” domain name violated the ACPA, finding that the plaintiff had a valid trademark entitled to protection, that the mark was distinctive and famous, and that the disputed domain name was confusingly similar to the plaintiff's mark and was registered in bad faith. The circuit court upheld the grant of an injunction against any further use of the term “foradodge” by the defendants, concluding that the plaintiff was entitled to an injunction that was more broad than the scope of its ACPA claim “in order to protect the reputation and goodwill it has established in its marks and to prevent defendants from infringing on, or otherwise harming, those marks.”

The $5000 floor for damages under the federal Computer Fraud And Abuse Act (CFAA) may be established by aggregating damages from individual acts of computer intrusion taking place over a 1-year period. Creative Computing v. Getloaded.com LLC, 2004 U.S. App. LEXIS 21469 (9th Cir. Oct. 15, 2004). The court upheld a judgment of more than $500,000 under the CFAA against a company that hacked into a competitor's Web site. The court rejected the defendant's contention that the plaintiff must make an evidentiary showing that each individual instance of unauthorized access resulted in damage or loss exceding $5000.

A company that required advertisers to comply with an “Anti-Spam Agreement” is not liable for the advertisers' violations of the Utah Unsolicited Commercial and Sexually Explicit Email Act. Fenn v. Redmond Venture, Inc., 2004 Utap App. LEXIS 362 (Utah. Ct. App. Oct. 15, 2004). The court concluded that the anti-spam agreement absolved the company from liability under the provision of the Utah statute that subjects a person “who sends or causes to be sent” unsolicited e-mail to violating the statute. The court rejected the plaintiffs' argument that the anti-spam agreement was a sham and was fabricated as a response to the institution of the plaintiffs' action.

An insurance company's production of certain records containing “nonpublic personal information” of nonparty policyholders in compliance with a civil-discovery demand did not violate the nondisclosure provisions of the Gramm-Leach-Bliley (GLB) Act. Ex parte Mutual Savings Life Insurance Co., 2004 Ala. LEXIS (Ala. Oct. 8, 2004). The court held that under a “plain reading” of the GLB exception permitting financial institutions to “respond to judicial process,” the insurance company was authorized to produce the requested information without providing notice to the policyholders, who were not parties to and had no interest in the litigation. The court also ruled that the privacy obligations that the GLB imposed on financial institutions concerning customer information extend to parties receiving the information pursuant to a civil-discovery order, and that the trial court should accordingly issue a “comprehensive protective order to guard the customers' privacy.” The same court ruled similarly the same day in an unrelated case that also involved nonparty insurance policyholders. See, Ex parte National Western Life Insurance Co., 2004 Ala. LEXIS 263 (Ala. Oct. 8, 2004).