e-Commerce Docket Sheet

The e-mail, which spelled out terms of a negotiated license agreement and stated that the terms “had been agreed in principle,” may satisfy the writing requirement of the California Statute of Frauds. Lamle v. Mattel, Inc., 394 F.3d 1455 (Fed. Cir. 2005). The court noted that the e-mail sent by an employee of the party disputing the agreement did not contain all of the terms that the proponent of the agreement asserted were part of an oral contract memorialized in the e-mail. The court concluded, however, that a jury might reasonably conclude that the missing terms were not material to the agreement and so their absence would not preclude a finding that all of the material terms of the agreement were contained in the e-mail. The court also concluded that the signature requirement of the statute was met by the typed name of the sender appearing at the end of the e-mail.

A showing that a defendant distributed large quantities of a product in an established nationwide distribution network may not be sufficient to establish specific jurisdiction in a particular state in a case alleging that the product infringed the plaintiff's patent. Commissariat a l'Energie Atomique v. Chi Mei Optoelectronics Corp., 395 F.3d 1315 (Fed. Cir. 2005). The court commented that the U.S. Supreme Court “has been less than clear” as to whether a showing of distribution into the “stream of commerce” satisfies the purposeful-minimum-contacts requirement for personal jurisdiction. The court concluded that because of “substantial uncertainty” in the interpretation of the long-arm statute of the forum state and the due-process clause, the case should be remanded to permit jurisdictional discovery directed to the defendant's intent and purpose to serve the market in the forum state.

Under the “exceptionally deferential” standard of review applicable to royalty rate-setting determinations by the Librarian of Congress, there was no reversible error in the Librarian's decision setting copyright license rates for Webcasters. Beethoven.com LLC v. Librarian of Congress, No. 02-1244 (D.C. Dir. Jan. 14, 2005). The court of appeals noted that under the exceptionally deferential standard, such rate determinations are upheld “if the Librarian has offered a facially plausible explanation for it in terms of record evidence.”

The Digital Millennium Copyright Act (DMCA), Section 512(h), does not authorize the issuance of a subpoena to an Internet service provider (ISP) that “merely acts as a conduit for data transferred between two Internet users” that are alleged to be using peer-to-peer file-sharing software to exchange copyrighted files. In re: Charter Communications, Inc., 393 F.3d 771 (8th Cir. 2005). In reversing the lower court's opinion, the court followed the reasoning of the District of Columbia Court of Appeals in RIAA v. Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003), concluding that the subpoena provisions apply only to an ISP that is capable of locating and removing the material alleged to be infringing.

An embedding bit included in software fonts to indicate the font vendor's embedding preferences is not a “technological measure” that “effectively controls access to” a copyrighted work within the meaning of the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). Agfa Monotype Corp. v. Adobe Systems, Inc., No. 02 C 6320 (N.D. Ill. Jan. 13, 2005). The font vendor claimed that the DMCA was violated by a document-creation program that ignored the embedding bit, which permitted recipients to edit a document even though they did not have a license to use the copyrighted fonts. The court concluded that an embedding bit is “a passive entity” that does not, in the ordinary course of its operation, control access to the fonts within the meaning of DMCA Section 1201(a). The court also concluded that an embedding bit does not “'prevent[ ], restrict[ ], or … limit[ ] the exercise of a right of copyright” within the meaning of DMCA Section 1201(b).

The use and distribution of devices that enable unauthorized viewers to bypass security technology used to protect satellite TV signals violates the Federal Communications Act, the Digital Millennium Copyright Act (DMCA) and the Federal Wiretap Act. DirecTV v. Borow, 2005 U.S. Dist. LEXIS 1328 (N.D. Ill. Jan. 3, 2005). In granting the satellite TV company's motion for summary judgment on its claims under each of the statutes, the court noted abundant, unrefuted evidence that the defendant purchased devices that bypassed the company's security technology, publicly bragged about using the devices himself and assisting others in doing so, and possessed software commonly used to pirate satellite television signals.

A magistrate judge properly granted summary judgment validating a modification of a Web site development agreement that had the effect of limiting the developer's liability for damages and attorney fees. Uncle Henry's Inc. v. Plaut Consulting Co., Inc., 2005 U.S. App. 3017 (1st Cir. Feb. 22, 2005). The modification limited the developer's damages to no more than the contract price, foreclosed consequential damages, and limited recoverable attorney fees to 20% of the developer's maximum liability. The appeals court upheld the magistrate judge's conclusion that the modification document signed by the plaintiff was effective even though it was not returned to the developer, because the plaintiff's counsel communicated the plaintiff's acceptance, and the plaintiff admitted in discovery that the modified contract represented the parties' agreement.

The Federal Communications Commission (FCC) released a list of mail domain names used to send messages to wireless services, as part of its implementation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). Under an FCC rule adopted last year, sending commercial messages to any address referencing an Internet domain on this list is prohibited, unless the subscriber has given prior express authorization for such messages from specific companies. The rule prohibits sending any commercial messages to addresses that contain domain names that have been listed on the official list for at least 30 days or at any time prior to 30 days if the sender otherwise knows that the message is addressed to a wireless device.

The FCC press release is available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-05-331A1.pdf.