CAN SPAM Act: A Compliance Challenge A Detailed Look At What The New Act Means For e-Commerce; Marketers May Still Have A Say
January 01, 2004
In recent years, Congress has considered, but failed to adopt, dozens of proposals to control unsolicited commercial e-mail. Meanwhile, more than half the states passed laws banning specific forms of e-mail deception and requiring affirmative disclosures. California's much-discussed anti-spam law took the next step, prohibiting commercial e-mail sent without consumers' affirmative, opt-in, consent. This legislation, which was set to take effect Jan. 1, forced the e-mail marketing industry to lobby Congress for less restrictive, pre-emptive federal legislation. The result was the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act of 2003 (the Act), which President Bush signed Dec. 16, and took effect Jan. 1. The Act pre-empts state laws, except to the extent that they prohibit any e-mail message or attachment falsity or deception. This article provides a detailed look at the new federal Act ' including the possibility for e-mail marketers to continue shaping the law in upcoming rulemaking proceedings.
E-mail: The New Records Management Frontier
January 01, 2004
Law firms have historically recognized the need to keep all legal matters in some kind of permanent file. For that reason, the position of record manager is well known. But the definition of a record has expanded in scope with the proliferation of communications technology and means by which to store communications. The definition of a record, for example, now encompasses all computer-generated documents. It's significant to firms that advise e-commerce ventures, and the ventures themselves, that the new definition of a record includes e-mail and e-mail attachments. This article will explore the differences between records and documents, the unique challenge e-mail represents and issues to be aware of when setting up a cutting-edge records-management system.
File Sharing: A Problem for Congress or the Courts?
January 01, 2004
Online digital file sharing enjoys massive popularity. Its wide use, however, threatens to destroy the interests of copyright owners. Yet, its broad consumer support and touted technological potential have raised questions about who should bear the risks of such activity, and who — <i>ie,</i> Congress or the courts — should make such determinations.
FTC Recommendations Seek Balance Between Competition and Patent Law
January 01, 2004
As has been widely reported, this past October the Federal Trade Commission (FTC) released a 300-page report titled "To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy." The report, including its 18-page executive summary, is available on the FTC Web site at <i>www.ftc.gov.</i> It is the end product of 24 days of hearings.
Duty to Protect: What Every Landlord and Tenant Should Know
January 01, 2004
Turn on the local news and you'll know that we live in violent times. This violence often manifests itself in the form of criminal activity. And as more and more commercial real estate owners and operators are learning, this criminal activity can translate into significant liability and damage awards, thanks to the recent willingness of courts around the country to impose on these entities a duty to protect those on their property or premises from third-party criminal acts.
In the Spotlight: Review Condominium Declaration When Drafting Lease for Commercial Unit
January 01, 2004
Special care should be given when drafting and negotiating a lease for a commercial condominium unit. Because the landlord in such a situation has rights and responsibilities as an owner of the condominium unit which comprises all or a portion of the leased premises, both parties to the transaction should review the relevant condominium declaration (which should consist principally of a recorded Declaration of Condominium and any amendments) to ensure that the lease terms comply with the condominium documents. The tenant will want assurances that the execution and delivery of the lease will not require any consents pursuant to the condominium declaration or violate the terms of the declaration or any other relevant documents. The landlord, on the other hand, will want to provide that the tenant will comply with all relevant terms of the declaration and not otherwise adversely affect the landlord's status as a condominium owner. Both parties will want to make sure that the lease accurately reflects their business deal.
The Leasing Hotline
January 01, 2004
Highlights of the latest commercial leasing cases from around the country.
Using Lease Provisions to Address Mold Growth
January 01, 2004
Mold growth has existed for centuries; litigation involving mold growth, however, has come into vogue only recently. Such litigation, despite its relative infancy, has proven costly to a variety of parties involved in the real estate industry — builders, property management companies, product manufacturers, commercial property owners, and insurers, among others. Verdicts in mold damage cases have occasionally reached multimillion dollar levels, while additional cases undoubtedly have settled for significant amounts. Landlords potentially could face major damage claims resulting from mold growth, and therefore it is recommended that landlords address mold-related issues by including in most leases specific provisions regarding mold growth.
When One Patent Application Begets 10: Today's Hyperproliferative U.S. Restriction Practice
January 01, 2004
Restriction practice (<i>ie</i>, the restriction of a patent application to prosecution of a single claimed invention (per filing fee)) has been around since the mid-1800s. In recent years, hyperproliferation of restriction requirements, especially in the biotechnology, chemical and software arts, has occurred. It has not been uncommon for the U.S. Patent and Trademark Office (PTO) to assert that a patent application contains 10, 20, even 100 distinct inventions. In fact, the PTO itself recently stated that there had been an application in which the PTO had determined that there were 400,000 distinct inventions. Excessive use of restriction requirements has the potential to stagger a corporate patent budget, because multiple divisional applications must be filed to prosecute all claims, and hence, all "inventions" of the original application. If a company has budgeted for one patent application, it is then faced with filing multiple applications to receive the complete patent coverage that was envisioned. This leads to increased costs of the filing, prosecution and maintenance; multiplication of patents with overlapping subject matter and related claims; shortened statutory patent terms (depending on the timing of filing of the divisional applications), and a question of whether complete patent coverage is truly achieved by compartmentalizing the "invention" into many patents.
