E-TIPS

In the recent case of Buskirk v. The New York Times Co., and John L. Plaster, the United States Court of Appeals for the Second Circuit upheld a New York District Court's dismissal of a defamation suit. The plaintiff, Robert Van Buskirk ("Buskirk"), brought an action against both The New York Times ("Times") and John L. Plaster ("Plaster") for libel. The subject of the action against Plaster was a letter he had written and posted on an Internet site. The suit against the Times arose from the publication of an opinion article based on a revised version of the letter. In both the letter and the subsequent Times article, Plaster had declared that Buskirk was the source of various allegedly untrue statements made within a report broadcast by CNN.

On April 10, 2003, the U.S. 6th Circuit Court of Appeals, in Interactive Products Corporation v. a2z Mobile Office Solutions, Inc. ("Interactive Products"), ruled that there was no liability for U.S. trademark infringement where one party's trademark appeared in the post-domain path field of another party's web page uniform resource locator ("URL", e.g., dww.com/bios/dd.htm).

Two recording companies, Universal Music Group and EMI Recorded Music, filed suit recently in the U.S. District Court in Los Angeles against the venture capital firm, Hummer Winblad Venture Partners (the "VC"), accusing the VC of contributing to widespread Internet music piracy through its financial support of Napster in the form of a $13 million investment. This lawsuit is one of a number of lawsuits that have arisen after Napster sought bankruptcy protection in June of 2002.

Legal steps being taken against spam have increased considerably. Here are some recent developments: America Online has recently filed five lawsuits against alleged spammers. The spammers are accused of sending approximately 1 billion spam emails promoting mortgages, steroids, and pornography to its subscribers. AOL launched the suits after receiving roughly 8 million individually spam complaints through a "Report Spam" feature that AOL introduced last fall. The identity of some of the spammers is unknown. However, filing the lawsuit has now enabled AOL to subpoena service providers and others to attempt to locate more information on the spammers.

On April 7, 2003, a sole panelist of the World Intellectual Property Organization (WIPO) Arbitration and Mediation Center issued his decision in Urbani Tartufi s.n.c. v. Urbani U.S.A., a dispute involving the domain name "urbani.com". The Complainant, Urbani Tartufi s.n.c., is a world leader in the harvesting and sales of truffles and owns the registered trademark word "URBANI" in the U.S.A. and Italy.

The UK based EasyInternet Café (the "Café") chain has paid the British Phonograph Industry ("BPI") ₤180,000 in damages and fees to settle a court battle over copyright infringement. The issue arose out of a music downloading service offered by the EasyInternet Café chain. For a fee of ₤5, the Café chain allowed customers to download music from the Internet and copy it onto a CD.

The U.S. Court of Appeals (4th Cir.) released its decision in Beskind v. Easley, holding that North Carolina's ban on direct shipment of wine from out of state wineries to North Carolina residents violates the U.S. Constitution's Commerce Clause.

Earlier this month, a British Columbia manwasconvicted of violating the Canada Elections Act("the Act") and fined C$1,000for posting federal election results on the Internet. Paul Bryan is the only individual ever convicted under the provisions of the Act which make it an offence to publish election results in parts of the country where the polls are still open. Bryan published the results of the 2000 election on his Internet site as soon as they were available in each region of the country, before polls closed in BC.

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 March 27, 2003, the Supreme Court of Canada granted leave to the Canadian Association of Internet Providers ("ISPs") to appeal the Federal Court of Appeal's judgment of the Canadian Copyright Board's "Tariff 22" decision. The original decision of the Copyright Board ISPs to pay royalties to copyright music collectives, such as the Society of Composers, Authors and Music Publishers of Canada ("SOCAN"), for music downloaded over the Internet by the ISP's subscribers. No royalties were required to be paid where the ISP was acting solely as a conduit for the music being transferred.

Recently, an arbiter of Resolution Canada, which is an accredited dispute resolution provider of the Canadian Internet Registration Authority ("CIRA") issued its decision under the Domain Name Dispute Resolution Policy (the "CDRP") on a complaint submitted by Elysium Wealth Management Inc. (the "Complainant"). The Complainant is the owner of the registered trade-mark CEO FUND in Canada (for use in association with the provision of financial portfolio management services) and sought the transfer of the domain name "CEOFUNDS.CA" from Mr. Brian Driscoll (the "Registrant").

The Department of Canadian Heritage recently released the first part of a study on Technological Protection Measures (TPMs). The study discusses a variety of policy considerations associated with the use of TPMs as a means of applying the law of copyright in digital environments.

On March 27, 2003, the U.S. House of Representatives passed a bill called the Child Abduction Prevention Act (CAPA), which includes provisions to punish those who use misleading domain names to lure people into visiting obscene websites. In particular, under this Bill, anyone who knowingly uses a misleading domain name to attract people to a pornographic Internet site could face up to 2 years in prison.

The U.S. Attorney for the Eastern District of Missouri has alleged that eBay's PayPal has violated the Patriot Act (the "Act") by processing payments for online gambling. The Act was passed by Congress following the September 11, 2001 attacks. This legislation broadens law enforcement powers to combat money laundering that is suspected to finance terror attacks and also prohibits transmitting funds known to have come from a criminal offence, or that are intended to promote or support unlawful activities.

The Alberta government is closing a tax loophole that allows cigarette purchasers to avoid paying Alberta provincial sales tax by ordering cigarettes over the Internet. The loophole exists because Alberta does not have an agreement with the Canada Customs and Revenue Agency to collect provincial tax on goods that enter the country.

A trial date has been set for a patent infringement claim against eBay. The suit was filed by MercExchange LLC in September 2001 and involves patents that deal with methods of creating and searching online marketplaces and auctions. These patents date back to the mid 1990's, approximately 5 months before the eBay website was launched. After a long history of motions for dismissal, the trial has been scheduled for April 22, 2003 in the U.S. District Court for the Eastern District of Virginia in Norfolk. eBay contends that they have "meritorious defenses and will defend [themselves] vigorously".

In Japan's first court decision under its anti-spam legislation, Japan's dominant mobile phone carrier, NTT DoCoMo Corp., was awarded 6.57 million yen against a Tokyo company for flooding its wireless e-mail network with spam. Japan's recently enacted anti-spam legislation requires spam e-mail to be labeled in the subject heading as "unsolicited advertising".

© 2003, Deeth Williams Wall LLP. All Rights Reserved. By: Heather Watts (April 4, 2003) An initiative headed by the Medicins Sans Frontieres (MSF), called the Drugs for Neglected Diseases Initiative (or DNDI), was begun in early 2002, and more recently put into action by linking in the support of the World Health Organisation, France's Pasteur Institute, Brazil's Oswaldo Cruz Foundation, the Indian Council of Medical Research and the Malaysian Health Ministry.

The Supreme Court of Canada ("SCC") has released its decision in Editions Chouette (1987) Inc. v. Desputeaux. This decision will have a significant impact on the future use of arbitration in the resolution of intellectual property rights disputes. This case arose out of a dispute concerning the ownership of copyright in the Caillou character appearing in a popular series of children's books. A motion was brought seeking to have the parties referred to an arbitrator by virtue of section 37 of the Quebec Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters (the "ARPSA"). Section 37 of the ARPSA provides that every dispute arising from the interpretation of a contract between an artist and a promoter shall be submitted to an arbitrator. The Quebec Superior Court found that the existence of the contract was not at issue and that there were no allegations relating to its validity and therefore, referred the case to arbitration. After the arbitrator made his decision, a motion for annulment of the arbitration award was brought before the Quebec Superior Court, which was subsequently dismissed.

The Supreme Court of Canada (SCC) recently dismissed the appeal of the Earth Fund Lottery case and upheld the decision of the Prince Edward Island ("P.E.I.") Court of Appeal. The P.E.I. government had originally provided the Earth Fund Internet Lottery with a license to operate a lottery over the Internet. This decision met with protests from other provincial lottery administrators who were worried about Internet based lotteries drawing away their customers.