E-TIPS

A man convicted under a strict U.S. federal law that outlaws cyber-stalking was sentenced to eight years in prison. In June, a jury convicted Eric Bowker of stalking a television reporter by sending obscene e-mails and telephone messages and by stealing her mail.

The U.S. District Court for Northern District of Illinois (Eastern Division) recently granted a motion by various record companies and music publishers for a preliminary injunction against the Aimster file sharing service (also known as "Madster"). In granting the motion, the Court held that the "Plaintiffs have unequivocally established that Aimster's users are engaged in direct copyright infringement" and moreover, that the Plaintiffs demonstrated a likelihood of success on the merits for both the contributory and vicarious infringement claims. In coming its decision, the Court noted that Aimster "is a service whose very raison d'être appears to be the facilitation of and contribution to copyright infringement on a massive scale.'"

The Electronic Privacy Information Center (EPIC) and Privacy International released the 2002 edition of their annual survey on the state of privacy in over fifty countries, titled "Privacy and Human Rights 2002: An International Survey of Privacy Laws and Developments" (the "Report"). The Report outlines legal protections for privacy and summarizes issues and events relating to privacy and surveillance.

In the recent decision of Sparaco v. LMS, the U.S. 2nd Circuit Court of Appeals dealt with the issue of the existence of copyright in a construction site plan. The plaintiff was retained to prepare a site plan for a proposed assisted living facility. According to the Court, a "site plan is a development plan for a plot of land. It specifies existing land conditions, including topography, boundaries, and physical structures, and can also specify the proposed improvements to the site." In this case, the prepared site plan included renderings of the existing physical characteristics of the site and proposed physical improvements to the site. The developers of the property then went on to copy much of the prepared site plan in the preparation of an amended plan without the plaintiff's participation. The plaintiff commenced proceedings claiming, amongst others, for breach of copyright in the preparation of the amended plan.

The law governing clickwrap contracts was recently addressed in two U.S. cases with very different results: In Forrest v. Verizon Communication, the District of Columbia Court of Appeals examined the validity of a forum selection clause contained in a clickwrap agreement. The Court had to determine whether the appellant, Forrest, had demonstrated that the enforcement of the clickwrap forum selection clause was unreasonable under the circumstance. The forum selection clause mandated that claims be brought in Virginia. The state of Virginia is one of the only two states in U.S. that do not provide for a class action procedure. Forrest claimed that he would be denied his day in court due to his inability to file a class action suit. The court held that the appellant would still be entitled to his day in court and could still benefit from remedies that are available to individual plaintiffs. The clickwrap forum selection clause was held to be reasonable and enforced.

On a complaint from a photographer, the owner of a profitable website advertising 8,000 pop idol photographs scanned from newspapers, was arrested by police on charges of violating Copyright law.

Industry Canada, in conjunction with its provincial counterparts, has issued a consultation paper on the possible harmonisation of jurisdictional issues surrounding E-commerce transactions.

In a recent article, the National Law Journal discusses a trend in the U.S., whereby higher learning institutions such as universities are increasingly suing private companies over intellectual property rights such as patent and licensing rights. The following are some examples of such litigation currently before U.S. courts:

On a complaint from a Vancouver man, the Canadian Human Rights Tribunal (CHRT) ruled that an Internet site containing anti-gay propaganda linking all homosexuals to pedophiles, was discriminatory under the Canadian Human Rights Act, and that the offensive portions must be removed.

The National Intellectual Property Researchers Association (NIPRA), a U.S. intellectual property interest group, is suing the U.S. Patent and Trademark Office (USPTO) in a last-minute bid to stop the USPTO from dismantling its paper collection of patents and trademarks, beginning on August 26th as part of that agency's e-government initiative.

Canada's Justice Department has released a discussion paper which sets out the government's attempt to increase its powers relating to the interception of e-communications and its search and seizure powers relating to entities such as Internet Service Providers (ISP). The government's main reason for such changes is the goal of allowing Canada to ratify the Council of Europe Convention on Cyber-crime.

On August 23, 2002, the United States Court of Appeals released two interesting cybersquatting decisions which looked into the nature of in rem jurisdiction under the Anticybersquatting Consumer Protection Act ("ACPA"). In an in rem suit, the plaintiff takes action against property instead of individuals or organizations. In the case of cybersquatting, this means that the plaintiff would take action against the domain names instead of the persons or entities individually, who registered the domain names.

SEDAR is the System for Electronic Document Analysis and Retrieval, the electronic filing system for the disclosure documents of public companies and mutual funds across Canada. All Canadian public companies and mutual funds are generally required to file their documents in the SEDAR system. SEDAR's website is an easy to use and a great place to find information on Canadian public companies and mutual funds.

On July 19, 2002, the Ontario provincial government released new draft legislation related to the Retail Sales Tax ("RST") treatment of computer programs. The draft legislation is intended to simplify the taxation of computer software and IT services. The legislation includes new industry specific definitions which reflect the characteristics of the services provided by the IT industry.

The Missouri Court of Appeals has extended First Amendment protection to a work of fiction merely adopting a real person's name. Former hockey "enforcer", Tony Twist, the namesake of mob enforcer, Antonio Twistelli, a.k.a. Tony Twist, in Todd McFarlane's "Spawn" comic book, had been awarded $24.5 Million by a jury in a case dealing with "misappropriation of name" and "right to publicity" issues.

The Canadian Booksellers Association ("CBA") has filed a judicial review application with the Federal Court of Canada. The CBA has asked the Court to quash the current Department of Canadian Heritage ("DCH") ruling and launch a formal review of amazon.ca.

As part of Microsoft's settlement of the Federal Trade Commission (FTC) complaint that Microsoft misrepresented security features in its various Passportâ„¢ Internet services, Microsoft has agreed to provide an improved security program according to guidelines set out in the agreement.

The recent decision in Richmond (City of) v. S.L. & T. Dynamic Enterprises Ltd. [2002] B.C.S.C. 1093 reinforces the general approach adopted by many courts to regulate Internet activities according to traditional principles of law even if the end result is somewhat unusual. In this case an Internet café was declared an "amusement centre."

The Technical Information Bulletin B-90 GST/HST and Electronic Commerce released by the Canada Customs and Revenue Agency (CCRA) in July 2002 provides some guidance on whether "a supply of intangible personal property or a service" is made in Canada for the purposes of the GST.

The U.S. Court of Appeals (7thCir) released its decision in Promatek v. Equitrac, a case involving the use of trademarks in HTML metatags. The case involved two companies, Promatek and Equitrac, whose systems enable professional firms, such as law firms or accounting firms, to automatically capture expenses related to a client and integrate them into the firm's billing system.