E-TIPS

© 2004, Deeth Williams Wall LLP. All Rights Reserved. By: Rosa Kim (October 13, 2004) The Ontario Ministry of Consumer and Business Services recently released a revised version of its draft Regulation under the Consumer Protection Act, 2002 (Act)1 following an official public consultation process2.

On September 30, 2004, the Canadian Creative Commons project was launched online. Led by the University of Ottawa's Canadian Internet Policy and Public Interest Clinic, it is designed to allow Canadians who create digital works, such as web sites, texts, courseware, music, film and photography, to share their works and allow others to copy, modify and redistribute them. The project attempts to create a balance between a system of total creative control ("all rights reserved"), and an unprotected public domain in which creators are vulnerable to exploitation. A creator using the Creative Commons (cc) licence will be able to publicize terms and conditions under which other creators may have access to the work's source code. In other words, it's a system of "some rights reserved".

It was recently reported in E-TIPS® (Volume 3, Number 1, June 23, 2004) that Canadian resident Eric Head, his brother, and his father had settled a lawsuit with Yahoo! Inc. The Heads were running a spamming operation, sending more than 94 million e-mails to users of Yahoo!'s e-mail service in one month alone, when they were sued in March under the US CAN-SPAM legislation. They agreed to stop sending unwanted e-mails and to pay Yahoo! at least US$100,000.

In Robertson v The Thomson Corporation et al (October 6, 2004, Court Docket C38148, not yet indexed by the Canadian Legal Information Institute), the Ontario Court of Appeal has ruled in a split 2-1 decision on several pre-trial motions involved in a class-action copyright dispute between freelance journalists and The Globe and Mail newspaper and other related parties, over the use of the journalists' articles in archival electronic databases.

In an effort to stem trafficking in infringing copyrighted works through "increasingly sophisticated electronic means, including peer-to-peer file trading networks, Internet chat rooms, and news groups", the US House of Representatives has passed the Piracy Deterrence and Education Act of 2004 (C 108:HR 4077). The legislation has the following implications:

In response to public pressure to stifle the spread of spyware, an anti-spyware bill was recently passed into law in California.

More Japanese companies are suing over violations of their intellectual property than ever. The number of IP suits filed by Japanese businesses has doubled in the past two years, enough to turn heads, given that more patents are granted worldwide to holders in Japan than from any other country (about 40 percent, according to the Japanese Ministry of Economy, Trade, and Industry).

If proponents of the so-called "broadcast flag" get their way, Canadians may no longer be able to record a hockey game on television for later viewing. A broadcast flag is a piece of code embedded in digital broadcasts that instructs flag-enabled devices on how the broadcast can be subsequently used.

The Privacy Rights Clearinghouse (PRC), a San Diego-based non-profit consumer advocacy group, has recently filed a lawsuit alleging that the Albertsons supermarket chain and its affiliated pharmacy units have violated the privacy rights of thousands of customers by selling confidential medical information to drug companies for marketing purposes.

The police want you to pay for them to read your e-mail. Recently, the Canadian Association of Chiefs of Police called on the federal government to require that telecommunications service providers charge their subscribers a fee to offset the cost of intercepting private communications. The proposal was the latest development in the ongoing debate over how law enforcement should address the issue of crime in cyberspace.

A former employee of Teledata Communications Inc (TCI), a New York credit reporting company, has pleaded guilty in an identity theft case described by prosecutors as the largest in US history. Philip Cummings admitted using his position as a customer help desk person at TCI to misappropriate confidential passwords and codes which gave access to the personal credit reports of more than 30,000 people. These reports were sold to a network of identity thieves, who used the information to deplete bank accounts, charge credit cards, take out loans and engage in other activities, resulting in losses of between $50 million and $100 million over a period of three years.

An Ontario court has ruled that there must be something more than a mere "˜exchange of consideration' to characterize an activity as commercial under federal privacy legislation. In finding that the Personal Information Protection and Electronic Documents Act (PIPEDA) did not prohibit the disclosure of the membership list of a non-profit club that was otherwise permitted by law, MacKenzie J of the Ontario Superior Court rejected the argument that non-profit status automatically exempts an organization from PIPEDA. The relevant test is whether specific activities are commercial in nature. The Court also dismissed the respondents' claim that because the information that made up the list had been collected along with a membership fee in expectation of certain benefits and services, that the activity was commercial in nature and therefore subject to PIPEDA.

On September 17, California Governor Arnold Schwarzenegger signed new anti-spam legislation into law. In addition to an outright prohibition and criminalization of the sending of unsolicited e-mail, the new law also allows ISPs, the California Attorney General, and recipients of commercial spam e-mail to recover damages of up to $1,000 for each unsolicited e-mail that does not disclose valid e-mail contact address and the name and location of the sender.

In a follow-up to his July 7, 2004 opinion in <em>Mosaid Technologies Inc v Samsung Electronics Co</em>, 01-CV-4340 (USD NJ), Magistrate Judge Hedges has imposed monetary sanctions against Samsung in the amount of US$566,838 for what he termed "extremely reckless behavior" in destroying e-mail relevant to Mosaid's patent infringement claim. In addition to the monetary award, the Judge also finalized instruction language to the jury, permitting the jury to make an adverse inference as a result of the defendant's failure "to produce virtually all technical and other e-mails in the case". The Judge's key finding was that "No reasonable litigant could believe that [Mosaid's definition of "document"] did not include e-mails."

© 2004, Deeth Williams Wall LLP. All Rights Reserved. By: Jason Young, Student at Law (September 28, 2004) In The Pickwick Papers, a 19th Century account of the comical adventures of a hunt and game association, Charles Dickens ends his fiction with the happy dissolution of the club "to the satisfaction of all members." The case of Rodgers v. Calvert (8 September 2004), 03-BN-6556 (On. Sup.

In mid-December 2003, the Ontario Ministry of Consumer and Business Services released its draft Regulation under the Consumer Protection Act, 2002 (Act) for public comment (see E-TIPSâ„¢ Volume 2, Number 15, January 8, 2004). The draft Regulation deals with a wide range of consumer protection issues, including Internet agreements and other e-commerce concerns.The Ministry has now posted the revised draft Regulation which incorporates the changes made as a result of consultation input.

In Harrison v Teton Valley Trading Co [2004] EWCA Civ 1028, the English Court of Appeal upheld the decision of the Registrar of Trade Marks to reject an application for the trade mark CHINA WHITE on the basis that the application had been made in bad faith. The Applicant had applied to register the trade mark for a cocktail drink. The Opponents, the owners of a London night club named CHINAWHITE, argued that the registrations should be refused under section 3(6) of the Trade Marks Act 1994 which states that "a trade mark shall not be registered if or to the extent that the application is made in bad faith".

On August 24, 2004, the United States Patent Office (USPTO) issued US Patent No 6,781,030, entitled "Methods for cloning mammals using telophase oocytes" which includes claims directed to methods for cloning "mammals". Although the USPTO has long issued patents on transgenic mammals and the methods for producing these, the issuance of this patent is noteworthy, following as it does with the recent enactment of the "Weldon amendment" which was an attempt to bar the USPTO from issuing patents on human organisms.

The Motion Picture Association of America (MPAA), a trade association whose members include Buena Vista Pictures Distribution and Universal Studios, has recently brought lawsuits against two manufacturers of chips used in DVD players. These chips allegedly bypass copy-protection schemes required by the CSS (Content Scramble System) licence.

Tiffany & Co, the luxury jewelry company, recently filed suit in US District Court against eBay Inc, the online auction company, alleging that eBay had assisted in diluting the TIFFANY brand by allowing fake items to be sold on its web site. Tiffany claimed that eBay has profited from the sale of counterfeit products and demanded an accounting of profits. It also wants eBay to stop listing any TIFFANY product that is known to be counterfeit.