E-TIPS

A New York state judge recently ruled that Network Associates Inc. (NAI), a security software company in California, cannot use its end-user license agreements to restrict what its customers say about its products.

A twenty-two year old Welsh web designer has been sentenced to two years in prison for creating and distributing computer viruses. Simon Vallor was tracked down by Scotland Yard's computer crime unit and the FBI after he bragged about his viruses on an Internet message board.

A new discussion paper has recently been released by the Canadian government entitled: E-mail marketing: Consumer choices and business opportunities. The paper addresses the choices available to consumers, filtering technologies, current policies, network solutions, the application of existing laws, consumer awareness and the role of the government in dealing with spam.

The United States District Court for the District of Columbia has granted The Recording Industry Association of America's (the "RIAA") motion to enforce its subpoena served on Verizon Internet Services ("Verizon") under the Digital Millennium Copyright Act of 1998 ("DMCA").

The United States Patent and Trademark Office ("USPTO") was planning to convert from a paper to an electronic public search system. However, this plan has now been put on hold. This decision by USPTO came about after a lawsuit was launched by the National Intellectual Property Researchers Association ("NIPRA") to stop the USPTO from its plan to begin dismantling its paper collection of patents and trademarks.

Judge Kerry Smith of British Columbia's Provincial Court recently found unconstitutional those provisions of the Election Act, which prohibit the early posting of election results on the Internet by banning the "premature transmission" of electoral results.

Recently, the Privacy Commissioner of Canada (the "Commissioner") released a series of findings based on individual complaints under the Personal Information Protection and Electronic Documents Act ("PIPEDA")

On January 15, 2003, the U.S. Supreme Court upheld the validity of the Copyright Term Extension Act ("CTEA") in the case of Eldred v. Ashcroft. The Supreme Court decided by a 7-2 majority that the law, which retroactively extends the duration of copyrights for 20 years, is within Congress' authority and does not transgress constitutional limitations. For the majority, Justice Ginsburg wrote, "The CTEA reflects judgments Congress typically makes, judgments we cannot dismiss as outside the Legislature's domain."

Recently, a British Columbia Provincial Court ruled against Merrill Lynch HSBC ("MLH") in a dispute involving the use of its online brokerage system called NetTrader. The Claimant, Wei Zhu, had sought to cancel a sale of shares, which had been transacted online and for which, Zhu claimed to have received confirmation of the cancellation. In fact, the cancellation of the sale had not been completed resulting in duplicate trades of the same shares. MLH argued that the confirmation received was subject to prior fills and as such, the cancellation had not in fact been confirmed.

Joint action between the Nevada State Board of Pharmacy ("Board") and the U.S. Drug Enforcement Administration ("DEA") has resulted in the suspension of the licence of Prescriptiononline.com Inc., which was an online pharmacy based in Las Vegas.

A decision of the Administrative Panel at WIPO's Arbitration and Mediation Center ordered the transfer of the gouvernementduquebec.com domain name to the Government of the Province of Quebec.

In the recent case of eGalaxy Multimedia Inc. v. Bailey, an Ontario Court judge ordered a defendant to pay $5,000 in punitive damages in a cybersquatting dispute involving domain names which included the term "NAKEDNEWS". The Court held that the defendant's conduct deserved public censure and that an award of punitive damages would serve to discourage others from engaging in similar acts.

The U.S. Court of Appeals (9thCir.) has issued an Order certifying questions to be considered by the California Supreme Court in the case of Kremen v. Cohen and Network Solutions. In particular, the Court of Appeals asked the question in its Order whether an Internet domain name lies within the scope of property subject to the law of conversion.

The last issue of e-Tips reported on a stay ordered by U.S. Supreme Court Justice Sandra Day O'Connor on the rulings of the California Supreme Court in a trade secrets' case involving the DVD Copy Control Association (a group representing DVD makers for licensing anti-copying technology to the motion picture industry) and the defendant Matthew Pavlovich. The California Court had ruled that Pavlovich could not be sued in California because he does not live in California and his Web site, at which decoding programs were posted, was not based there.

The Court of Appeals of Tennessee, in Danevans v. Phillip Matlock, et al., has ruled that the arbitration clause in e-Bay's User Agreement cannot be employed in disputes between users. In particular, in this case, the plaintiff alleged that he had purchased an antique Dr. Pepper dispenser after his bid was accepted on e-Bay's Internet auction site. He continued to assert that the defendant proceeded to sell the dispenser to another party. An action was commenced and the plaintiff alleged damages for breach of contract, violation of the Consumer Protection Act and inducement to breach of a contract.

The province of British Columbia is proposing new consumer protection legislation in an attempt to combine and replace seven separate statutes that contain consumer protection laws. The proposed legislation will remove duplications and inconsistencies, simplify consumer protection, create enforcement terms that are similar for breaches that occur across industries, and deal with new areas of consumer protection.

Recently, a jury acquitted ElcomSoft on charges under the Digital Millennium Copyright Act ("DMCA") relating to designing and marketing software that could be used to crack Adobe System's eBook copyright protections and for conspiring to do so.

An American insurer has no duty to defend or indemnify an insured against patent infringement allegations under a general liability policy, the U.S. Court of Appeals (3d Cir.) found on December 20, 2002 in Green Machine v. Zurich American Insurance. The insured, Green Machine Corporation, was accused of infringing or inducing infringement of patents for concrete-cutting saws, owned by Chiuminatta Concrete Concepts.

AOL Time Warner subsidiary, ICQ, has been issued a patent for the instant messaging ("IM") Internet application that allows users to exchange text messages in real time. Filed in 1997, patent No. 6,443,344 was granted in September of 2002 and was based on the work done by technologists at Mirabilis, a company acquired by AOL in 1998. The patent covers a communications network that allows users to monitor when other IM users are on the network and to communicate with them.

In possibly the largest domain name dispute decision under ICANN's Uniform Domain Name Dispute Resolution Policy ("UDRP"), a panel of the National Arbitration Forum ("NAF") ordered the transfer of 325 domain names from the Channel News Network ("Channel News") to Cable News Network ("CNN").