E-TIPS

In a highly anticipated decision, the Federal Court of Canada today dismissed the Canadian Recording Industry Association's (CRIA) motion to compel several Internet Service Providers (ISPs) to disclose the names of customers who traded music on the Internet.

On March 24, 2004, the European Commission (EC) concluded a five-year investigation of Microsoft by imposing a fine of €497.2 million (over US$600 million) for anti-competitive practices in relation to its server and digital media player software in the European Union (EU).

It was recently noted (in a news report no longer available on the web site), that CanadaRx Corp (CanadaRx) has brought an action in the Federal Court of Canada to prevent Health Canada from inspecting its facility. Although Health Canada has taken the position that the proposed inspection was merely part of its program of random inspections of Internet pharmacies, CanadaRx claims that it was being penalized for selling its cheaper drugs to Americans.

The results of a recent survey put into question the effectiveness of the US CAN-SPAM Act, America's first federal anti-spam legislation, which came into force on January 1, 2004. The statute represents an attempt to regulate spamming by prohibiting some common spamming techniques such as falsifying senders' true identities, using misleading subject lines and improperly harvesting e-mail addresses.

Recently, the decades-old US embargo against trade with Cuba has been invoked against Canadians, this time involving business activity carried on over the Internet. Hola Sun Holidays Limited (Hola) has been designated by the US Treasury Department, Office of Foreign Asset Control, as a Cuban-controlled entity. As a result of this designation, anyone governed by US jurisdiction is prohibited from doing business with Hola under the US Trading With The Enemy Act (1917). (While newspaper reports speculated whether the US designation derived from a mistaken perception that the Toronto owner of Hola, Fidel Ferrer Castro, is a relative of the Cuban dictator, nevertheless the designation stands).

On February 20, 2004, the District Court for the Southern District of New York ruled on a motion to dismiss several claims advanced by a Canadian plaintiff corporation, IMS Inquiry Management Systems (IMS). The case involved the unauthorized use and alleged content appropriation of IMS' web-based advertising tracking software, "e-Basket", by the defendant, Berkshire Information Systems Inc (Berkshire).

On March 4th, the Supreme Court of Canada released a landmark decision, CCH Canadian Ltd v Law Society of Upper Canada, overturning earlier rulings that the Law Society of Upper Canada had infringed copyright in certain publishers' works. The Law Society maintains and operates the Great Library, a research library with one of the largest collections of legal materials in Canada. It provides a request-based photocopy service for authorized researchers and self-service photocopiers for use by its patrons. The respondent legal publishers had brought copyright infringement actions against the Law Society in 1993.

As previously reported in E-TIPSâ„¢, (Vol 2, No 2, July 3, 2003 and Vol 2, No 9, October 9, 2003), attempts were made through Bill C-36 to amend the Canadian Copyright Act to extend the term of copyright to December 31, 2017 over unpublished works of authors who died between 1930 and 1948. The heirs of Lucy Maud Montgomery, author of the Anne of Green Gables stories, were particularly interested in protecting the 10 volumes of diaries written by Ms. Montgomery, which remained unpublished until after she died in 1942.

Depending on the outcome of two pending cases in New Hampshire and Illinois, US state law enforcement agencies may have to revise their methods when investigating and collecting information on individuals from Internet chat rooms. Under state wiretapping laws, evidence acquired through software that "recorded" the Internet chat room conversations may be inadmissible in criminal proceedings.

Radio frequency identification (RFID) technology has been often in the news lately, including a recent move in California to regulate its use. RFID technology uses radio waves to communicate a signal over a short distance between an RFID tag and a reader. Each tag is able to communicate a unique identifier, just as does a bar code. Because the tags and readers are small and inexpensive, a network of tags and readers can be easily and unobtrusively implemented in a location such as a retail store or a warehouse. The tag's signal is picked up by only one reader at a time. When a reader receives a signal from the tag, the reader's location can be correlated with the tag identifier to get a reasonably accurate location of the tag.

In a recent arbitration award involving the transference of domain names, a Domain Name Dispute Resolution Panel (Panel) established by the Canadian Internet Registration Authority (CIRA) refused to rule on the issue of bad faith, in apparent contravention of its Domain Name Dispute Resolution Policy (CDRP). Diners Club International Ltd (DCI) brought a complaint against Planet Explorer Inc. (PEI), which had registered the domain names and . PEI registered the domain names for the purpose of warning potential customers about DCI's business practices and to gather support for a class action lawsuit against DCI.

On February 27, 2004, in the case of DVD Copy Control Association Inc v Bunner, the California Court of Appeal dissolved a preliminary injunction first granted four years earlier under the state's Uniform Trade Secrets Act (UTSA) prohibiting the defendant, Andrew Bunner, from using or publishing the DeCSS code on a web site or in any other medium. The DeCSS code is software that decrypts the content scrambling system (CSS) code found on DVD movies and allows users to copy the contents of the DVD to a computer in an unencrypted format for later viewing.

For many developing countries, the cost of prescription drugs required to fight widespread diseases such as AIDS, tuberculosis and malaria is prohibitive and keeps the drugs out of the hands of many who need them.

On February 27, 2004, Canada's Competition Bureau announced that it had closed its inquiry into the alleged misuse of Canada's drug patent laws by brand-name drug companies engaged in the practice of "evergreening." Under Canada's Patented Medicines (Notice of Compliance) Regulations (NOC Regulations), a generic drug company seeking marketing approval to sell its own version of a brand-name drug must address each patent listed on Canada's Patent Register for that drug and explain why there is no infringement of the listed patents.

Consistent with the example set by its US counterpart, the Canadian Recording Industry Association (CRIA) has applied for an order requiring five major Internet Service Providers (ISPs) to divulge subscriber information for 29 suspected music "uploaders". The motion, brought in the Federal Court of Canada, Trial Division, has been adjourned until March 12, 2004 to allow the defendants to review the scope of the order applied for as well as their ability to comply with the order. In the meantime, Justice von Finckenstein has ordered the ISPs to preserve all customer data related to the request.

A recent press release by the World Intellectual Property Organization (WIPO) regarding filings under the Patent Cooperation Treaty (PCT) has revealed some interesting trends. In 2003, for the first time in 13 years the number of patent applications filed by users from Japan (15.2% of all filings, and the second highest, after the US) exceeded those from third-place Germany (12.7%).

In a spate of moves on the part of governments, consumers and regulatory agencies, a cross-border drama continues in the pharmaceutical sector driven primarily by the influence of the Internet on the industry's distribution system. (See an earlier news item in E-TIPSâ„¢, Vol 2, No 15, January 8, 2004).

A recent case in the Canadian Federal Court Trial Division pitted a trade-mark applicant in the restaurant business, Spiridon Zervas & Dimitr Zervas in Partnership trading as 007 (Zervas), against Danjaq Inc (Danjaq), the owner of a strong trade-mark in the entertainment business associated with the Ian Fleming novels and the movies character James Bond.

A Florida District Court of Appeal has upheld the decision of a trial court in denying a motion by America Online, Inc (AOL) for dismissal of a class action for improper venue. In so doing, the Court refused to enforce the forum selection clause in the company's standard form subscriber agreement (Member Agreement).

Microsoft Corporation (Microsoft) has expanded its legal battle against Lindows.com Inc (Lindows), suing the software maker for trade-mark infringement in Canada. Lindows, a California-based software company, and its Canadian distributor, South West Shore Development Authority (based in Yarmouth, Nova Scotia), are named as defendants in an action launched in the Federal Court, Trial Division. In addition to other relief, Microsoft is seeking an injunction barring the defendants from doing business under the "Lindows" trade name.