http://cyberlaw.info/ CyberLaw.Info (tm) en-us http://cyberlaw.info/images/logo.gif http://cyberlaw.info/ legal@cyberlaw.info http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=121 Toronto Radio NewsTalk 1010 host Jamie Hofing interviewed Elliot Zimmerman on Dec. 16, 2009 regarding whether students have a right to be mean online. A recent LA Times article reported that a Beverly Hills school suspended an 8th grade student who posted a video on YouTube with several other students calling yet another student "spoiled," a "brat," and a "slut." Read the article here. The suspended student took the case to federal court, saying her free speech rights had been violated. See J.C. v. Beverly Hills Unified School District, Case No. 08-cv-03824, California, U.S. District Court (2009). Last month, U.S. District Court Judge Stephen V. Wilson sided with her. "To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school's activities, runs afoul of the law," wrote Judge Wilson in a 60 page opinion. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=120 The Arizona Supreme Court ruled on Thursday, October 29, 2009, in Lake vs. City of Phoenix, CV-09-0036-PR that: Arizona law provides that “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” Ariz. Rev. Stat. (“A.R.S.”) § 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws. Click here to read the full opinion. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=119 On August 12, 2009, just one day after Judge Marilyn Hall Patel ruled against RealNetworks, Inc. and RealNetWorks Home Entertainment, Inc. ("RealNetworks") granting DVD Copy Control Association, Inc. ("DVD CCA") and several motion picture studios a preliminary injunction that prevents RealNetworks from selling or licensing its RealDVD software [RealNetworks, Inc. et al. v. DVD CCA et al., Case No. C 08-04548 MHP (N.D. Ca. 2008)], the California Court of Appeals for the Sixth Appellate District (Santa Clara) overturned a trial court's finding that Kaleidescape, Inc.'s DVD copy product did not violate its DVD CCA contract. Click here to see the Order in DVD CCA v. Kaleidescape, Inc., Case No. H031631 (Santa Clara County Super. Ct. No. CV031829). The appellate court remanded the case for trial. See related articles at www.CyberLaw.Info:Judge Patel Gets Real, Is RealDVD Steal DVD?, and Is RealDVD Legit? http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=118 On August 11, 2009, Judge Marilyn Hall Patel ruled against RealNetworks, Inc. and RealNetWorks Home Entertainment, Inc. ("RealNetworks") granting DVD Copy Control Association, Inc. ("DVD CCA") and several motion picture studios a preliminary injunction that prevents RealNetworks from selling or licensing its RealDVD software. See RealNetworks, Inc. et al. v. DVD CCA et al., Case No. C 08-04548 MHP (N.D. Ca. 2008). Click here to read the 58 page Order and Memorandum. The court found that RealNetworks' DVD copy software, which decrypts copy protection, violated the Digital Millennium Copyright Act and RealNetworks' contract with the DVD CCA. See related articles at www.CyberLaw.Info:Is RealDVD Steal DVD?, and Is RealDVD Legit? http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=117 In Cadkin v. Loose, 569 F.3d 1142 (9th Cir. 2009), the Ninth Circuit held that a voluntary dismissal without prejudice does not confer prevailing party status for a claim brought under the Copyright Act. Accordingly, Defendant was not entitled to attorneys' fees under Section 505 of the Copyright Act which provides that the court may, in its discretion, award full costs, including reasonable attorneys’ fees, to the prevailing party in a claim arising under the Copyright Act. 17 U.S.C. § 505. The Court overruled Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575, 576 (9th Cir. 1941) in light of Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, because “prevailing party” status turns on whether there has been a “material alteration of the legal relationship of the parties.” In Oscar v. Alaska Dep’t of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir. 2008), the Ninth Circuit recently held that a dismissal without prejudice does not alter the legal relationship of the parties in a similar fee shifting statute. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=115 In the retrial of RIAA v. Thomas, initially written about here, the Defendant was found guilty of willful infringement of copyright in the amount of $1.92M by a jury in a Minnesota federal court. This exceeded the first judgment by $1.7M. Obviously, two times is not a charm. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=114 On June 1, 2009, Psion stated that it and Intel had "settled the trademark cancellation and infringement litigation brought in the Northern District of California relating to the 'Netbook' trademark registration. The litigation has been settled through an amicable agreement under which Psion will voluntarily withdraw all of its trademark registrations for 'Netbook.' Neither party accepted any liability. In light of this amicable agreement, Psion has agreed to waive all its rights against third parties in respect of past, current or future use of the 'Netbook' term." See our prior article at: http://cyberlaw.info/Article112.htm. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=113 The Second Circuit Court of Appeals in Rescuecom v. Google 06-4881-cv ruled on April 3, 2009, that a trademark owner can sue Google for trademark infringement for selling its mark as a keyword in the AdWords program. Read the decision here. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=112 On February 25, 2009, Intel filed suit in the Northern District of California for a declaratory judgment against Psion, purported owner of U.S. Trademark Registration No. 2404976 issued on November 21, 2000 for the mark Netbook for use in connection with laptop computers. Intel contends "that the term 'netbook' is a widely used generic term that describes a class of affordable computing devices, much like the term 'notebook' or 'ultra-mobile PC.'" Adding fuel to Intel's fire is that Psion did not file suit against Intel and others even though it was aware this mark has been used generically by them for the past few years. Additionally, Intel alleges that Psion has not used the mark since the year 2000 because their product wasn't successful and was discontinued. Psion did sue Google, which now disallows others to use their search engine advertising services for the term as a result of the said suit. Intel claims it is now suffering damages because of Google's position. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=111 On Febraury 18, 2009, Dell filed a petition with the U.S. Patent and Trademark Office to cancel the mark "Netbook," registered by a Canadian company that sells mobile computers named "Psion." Dell has accused Psion of failing to defend the mark, not presently and contiuously using the term, and for lying about it. Dell further contends that the mark has become purely descriptive and generic. Check TARR status here. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=110 An agreement between the National Association of Broadcasters ("NAB") and SoundExchange (royalty collectors) was reached February 17, 2009 covering the Internet streaming operations at several thousand NAB member stations, including those owned by Clear Channel Communications Inc. and CBS Corp. Stations that are not members of the broadcasters' group have the option of joining the agreement, according to the NAB. The stations will now pay $1.50 for every song heard by a thousand listeners in 2009, rising to $2.50 per 1,000 listeners in 2015. This agreement comes several weeks after SoundExchange struck a similar deal with the Corporation for Public Broadcasting. Under that agreement, SoundExchange gets an upfront royalty payment of $1.85 million for streaming of sound recordings on numerous public radio web sites from Jan. 1, 2005, through Dec. 31, 2010. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=109 In McIntyre v. Ohio Elections Commn., 514 U.S. 334 (Supreme Court of the United States, 1995), a woman was fined in violation of the Ohio Elections Commission Code for composing, printing, and distributing anonymous campaign literature which expressed her views on a proposed school tax. The Supreme Court held: "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society." http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=108 Is the use of a competitor's trademark in metatags trademark infringement? See Brookfield Communications, Inc. v. West Coast Entertainment Corporation, 174 F.3d 1036 (9th Cir. 1999), which held that West Coast's use Brookfield’s "moviebuff" trademark in a metatag on its website is infringement. But see, Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004), where the Court stated that there would be no likelihood of confusion if the visitor knew from the address bar it was not visiting the trademark owner's site, but the competitor's. When the dust settles, we'll see whether metatag infringement really is a viable cause of action. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=107 On Tuesday, January 6, 2009, U.S. District Judge for the Middle District of Florida, Virginia Hernandez Covington, ordered Tampa Bay Downs to pay the American Society of Composers, Authors and Publishers (ASCAP), $90,000 in copyright statutory damages for using their music without a license. Additionally, Judge Covington granted a permanent injunction preventing Tampa Bay Downs from playing any ASCAP controlled compositions without permission. Covington also held Tampa Bay Downs president Stella Thayer responsible for the violations, saying she had the authority to supervise the racetrack's conduct. Apparently, Tampa Bay Downs did not comply with ASCAP's pre-suit notice to cease and desist playing its controlled compositions wthout license until after suit was filed. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=106 On Dec. 26, 2008, United States District Judge Jeremy D. Fogel in San Jose, CA, issued a default judgment of $33.2M for Verizon Communications in its suit based on claims of trademark infringement, illegal cybersquatting, and registering knockoff names which intentionally confused users as to the source of its products and services, against an Icann accredited registrar known as OnlineNic. In addition to the monetary award, Judge Fogel froze OnlineNic's assets and ordered the transfer to Verizon of all identical or conmfusingly similar domains, including, myverizonwireless.com, iphoneverizonplans.com and verizon-cellular.com. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=105 Hailed as the largest civil penalty ever to be paid in a violation of the Children's Online Privacy Protection Act (COPPA), Sony BMG Music Entertainment (Sony) agreed to pay the US $1 million to settle the Federal Trade Commision's charges that it improperly collected and disclosed personal information on thousands of chilften under 13 without parental consent. The settlement also requires Sony to delete all personal information collected and maintained in violation of the law. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=104 On Dec. 10, 2008, the U.S. Attorney's Office filed a civil action on behalf of the United States against Sony BMG (which is in process of changing its name to Sony Music Entertainment) at the U.S. District Court in Manhattan for violating The Child Online Privacy Protection Act ("COPPA"), 15 U.S.C. §§ 6501-6506, P.L. No. 105-277, 112 Stat. 2681-728, and the Federal Trade Commission's COPPA Regulation, 64 Fed. Reg. 212. The complaint alleged Sony was in violation because it improperly accepted registrations at its music websites from users who were under 13, without first obtaining consent from their parents. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=103 Is the First Amendment a shield for anonymous defamatory remarks? That's the issue the Maryland Supreme Court faced on December 10, 2008 in the case of Independent Newspapers v. Brodie. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=102 On Dec. 2, 2008, J.P. Weichel, a Colorado man who allegedly posted comments suggesting his former lover traded sexual acts for legal services from her attorney on the rants and raves section at www.CraigsList.com, was charged with two counts of criminal libel under Colorado law. Statements "tending to blacken the memory of one who is dead" or that "impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive" violate Colorado's criminal libel law, which has been on the books since 1963. Critics warn that this may have a chilling effect on free speech and that civil laws against libel are enough. Proponents argue that there is no other way to deal with the power of the Internet. Criminal libel laws are on the books in at least 16 states, but are rarely used and may be unconstitutional. Florida Statutes 836.01-836.11 also contain laws making DEFAMATION; LIBEL; THREATENING LETTERS AND SIMILAR OFFENSES criminal. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=101 The Florida Department of Business and Professional Regulation ("DBPR") has received several inquiries regarding whether out-of-state talent agencies who represent out-of-state talent must be licensed to sell talent to Florida buyers. The DBPR's position is set forth in this short article. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=100 Los Angeles, 11.26.8. Lori Drew was convicted by a federal jury of three misdemeanor charges of computer fraud for her involvement in creating a fake MySpace account to taunt a teenager, who later committed suicide as a result thereof. The jury deadlocked on a 4th count of conspiracy, and federal judge George H. Wu, declared a mistrial on that charge. Read more at NyTimes.com by clicking here. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=99 Facebook, in a suit against a Canadian purported spammer and his alleged company (Adam Guerbuez and Atlantis Blue Capital) for sending over 4 million bogus emails to its members, scored a default judgment in the amount of $873 Million Dollars. Read the complaint by clicking here. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=98 The Lord is my drummer, I shall not rush, He maketh me to layout in tasteful places, He leadeth me beside cool meter changes, He restoreth my "one." Yeah, man, though I read through the trickiest of charts, I will fear no train wrecks, For you are with it. Your ride and your snare they comfort me, You setteth up a solo for me In the presence of mine guitarists, You anointeth my lines with drive, My groove overfloweth. Surely good feel and swing will follow me through all the tunes of each set, And I will dwell in the pocket the whole gig long. Amen http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=97 Union Square is usually a merry place before the holidays. Not so this year. Savitri Durkee, an activist concerned with preserving the character of Union Square and Union Square Park, in an effort to speak out against Union Square Partnership (USP), a group backing extensive redevelopment of the area, created a website parodying the official website of USP. In response, USP flexed its muscles and sent Durkee's Internet service provider a notice pursuant to the Digital Millennium Copyright Act asserting that her parody site infringed USP's copyright, leading to the shutdown of the site. USP then filed a copyright lawsuit against Durkee and later filed a claim with the World Intellectual Property Organization (WIPO) seeking to take control of the parody site's domain name. http://cyberlaw.info/modules.php?op=modload&name=News&file=article&sid=96 Click here to view the proposed Settlement of a class action lawsuit brought by authors and publishers claiming Google has violated their copyrights and those of other Rightsholders of Books and Inserts, by scanning their Books, creating an electronic database and displaying short excerpts without the permission of the copyright holders. Google denies the claims. The lawsuit is entitled The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.).