E-TIPS

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").

The Government of New Zealand ("New Zealand"), lost its complaint alleging that Virtual Countries, Inc. ("Virtual") had no legitimate interest or rights in the domain name www.newzealand.com. New Zealand further alleged that the name "˜NEW ZEALAND' is their trade and service mark and that Virtual registered the domain name and used it in bad faith.

In its second scoping study of Internet defamation law (the "Report"), amongst other things, the Law Commissioner of England and Wales notes that some companies and their counsel are using the threat of libel suits to pressure Internet Service Providers (ISP) into removing websites set up by disgruntled customers. Rather than complaining to authors of the websites, these companies threaten the ISPs who consider the safest course under the present law is to remove the allegedly defamatory material even if the posted material is in the public interest or true. As such, the Report concludes that the current UK law may violate the right to freedom of expression guaranteed by the European Convention on Human Rights.

In its 23 December 2002 opinion, the U.S. District Court for District of Maryland granted Sun Microsystem's request that Microsoft be forced to include the Java programming language with its Windows operating system. Judge Motz accepted Sun's theory that Microsoft deliberately thwarted the adoption of Java by creating its own unauthorized and incompatible version of Java.

In the last days of 2002, the U.S. Supreme Court granted a temporary stay in an appeal from a decision of the California Supreme Court for a case that pitted the DVD Copy Control Association (the "Association"), a non-profit group for DVD makers for licensing DVD anti-copying technology to the motion picture industry, against the defendant Matthew Pavlovich and others. The plaintiff alleged that the defendants violated trade secrets by posting decoding software (allowing people to copy DVD content) on the Internet. No patent or copyright infringements were claimed.

© 2002, Deeth Williams Wall LLP. All Rights Reserved. By: Michael Erdle The Privacy Commissioner of Canada has found that a courier company's practice of collecting electronic signatures from parcel recipients and posting them on its parcel tracking Web site, along with the recipient's name and address, violates Canada's Personal Information Protection and Electronic Documents Act (PIPEDA).

© 2002, Deeth Williams Wall LLP. All Rights Reserved. By: Amy-Lynne Williams Outsourcing is not new - it has been variously called data processing management, facilities management and service bureau processing.

© 2002, Deeth Williams Wall LLP. All Rights Reserved. By: Amy-Lynne Williams It may surprise some people to learn that many companies will spend significant amounts of money and embark on mission critical software development projects without signing a detailed agreement clearly setting out what is to be developed, who owns what and what the respective duties and responsibilities of the parties are.

© 2002, Deeth Williams Wall LLP. All Rights Reserved. By: Amy-Lynne Williams Over the past 22 years or so, I have acted for vendors and users of many different forms of technology. In most cases, the vendors and the users are interested in getting the best deal possible at the best price and finishing with the system/software/web site that the user wants and needs. However, that doesn't mean that there can't be some games played along the way.

© 2002, Deeth Williams Wall LLP. All Rights Reserved. By: Amy-Lynne Williams Everyone knows now that good quality content is a valuable commodity on the Internet.