CYBERSPACE LAW
TABLE OF CASES AND STATUTES
by Eric Goldman (formerly Eric Schlachter)
http://eric_goldman.tripod.com
NOTE (8/13/04): I AM NO LONGER MAINTAINING THIS PAGE. I AM, HOWEVER, MAINTAINING SOME SECTIONS—YOU
CAN FIND THEM FROM http://eric_goldman.tripod.com.
This document provides a non-comprehensive list of statutes, cases and
other relevant source materials applicable to topics in cyberspace law. The last nontrivial set of additions were
made July 26, 2003.
1. AGENCY LIABILITY.
Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991), http://www.alw.nih.gov/Security/FIRST/papers/legal/cubby.txt.
Haybeck v. Prodigy Services Corp., 944 F. Supp. 326 (S.D.N.Y. November
12, 1996) (finding Prodigy not liable for an employee’s failure to tell a woman
that he met in a Prodigy chat room that the employee had AIDS even though they
engaged in unprotected sex).
Stratton Oakmont v. Prodigy, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct.
May 24, 1995), http://www.epic.org/free_speech/stratton_v_prodigy_1995.txt.
2. ANONYMITY/JOHN DOE
CASES.
Georgia Computer Systems Protection Act, § 93.1, Ga. Code § 16-9-93.1
(1996), http://www.jmls.edu/cyber/statutes/ga-fraud.txt.
American Civil Liberties Union of Georgia v. Miller (N.D. Ga. June 20,
1997), http://www.aclu.org/court/aclugavmiller.html.
America Online v. Nam Tai Electronics, Inc. (Va. Sup. Ct. Nov. 1,
2002), http://www.courts.state.va.us/txtops/1012761.txt.
Dendrite International v. Doe (NJ Superior Ct November 23, 2000) (refusing to order Yahoo to reveal personal information on John Does due, in part, to First Amendment concerns). Upheld on appeal to the NJ Superior Court, Appellate Division, July 11, 2001.
Doe v. 2TheMart.com, Inc. 140 F.Supp.2d 1088 (W.D. Wash. 2001), http://eon.law.harvard.edu/stjohns/2themart.html.
Pacific Bell Internet Services v. Recording Industry Assoc. Jurisdictional ruling: 2003 WL 22862662
(N.D. Cal. Nov. 26, 2003).
Recording Industry Assoc. v. Verizon Internet Servs. First district court ruling. 240 F. Supp. 2d 24 (D.D.C. 2003). Second district court ruling. 257 F. Supp. 2d 244 (D.D.C. 2003). DC Ct. App. Ruling: 2003 WL 22970995 (D.C.
Cir. Dec. 19, 2003) (no 512(h) subpoena unless a 512(c)(3) has been sent).
Sony Music Entertainment v. Doe (SDNY July 26, 2004)
BMG Canada v. Doe, 2004 FC 288 (March 31, 2004).
3. ANTITRUST.
America Online, Inc. v. Cyber Promotions, Inc. (E.D. Pa. November 26,
1996), http://www.bna.com/e-law/cases/cyber32.html.
America Online, Inc. v. Greatdeals.net (E.D. Va. May 4, 1999) (holding
that AOL is not a common carrier and did not engage in monopolistic practices
by restricting plaintiff’s spam from reaching AOL subscribers), http://www.bna.com/e-law/cases/aolgtnet.html.
Beverly v. Network Solutions, Inc., 1998 U.S. Dist. LEXIS 8888 (N.D.
Cal. 1998) (holding that NSI is immune from antitrust liability because it is
acting in compliance with a clearly articulated government program through its
Cooperative Agreement with NSF), http://www.bna.com/e-law/cases/nsibeverly.html.
Beverly v. Network Solutions, Inc., 1998 U.S. Dist. LEXIS 20453 (N.D. Cal. December 30,
1998) (NSI’s suspension of a domain name does not constitute a civil
conspiracy).
Image Online Design, Inc. v. Internet Assigned Number Authority
(complaint only) (Cal. Superior Court filed February 27, 1997), http://www.iodesign.com/complaint.html. Case was dismissed.
Name Space Inc. v. Network Solutions, Inc. (2d Cir. Jan. 21, 2000)
(rejecting antitrust claims based on NSI’s restrictions on TLDs).
PGP Media, Inc. v. Network Solutions, Inc. (S.D.N.Y. March 16, 1999)
(NSI is protected monopoly).
Thomas v. Network Solutions, Inc., 1998 U.S. Dist. LEXIS 4835 (D.D.C.
April 3, 1998) (NSI not subject to a Sherman Act claim for allegedly colluding
with NSF because NSF is a government actor and therefore NSI benefits from
NSF’s immunity from Sherman Act claims), http://www.aira.org/legal/jh3.html. On appeal, the court found that Congress
authorized the fees (D.C. Cir. May 14, 1999), http://www.cadc.uscourts.gov/common/opinions/199905/98-5502a.txt.
4. CO-BRANDING/ADVERTISING
AGREEMENTS.
HotJobs.com v. Digital City (Virginia March 2000) (awarding HotJobs an
injunction against Digital City implementing an exclusive advertising agreement
with Monster.com based on HotJobs’ exclusive ad agreement with Digital City).
5. COMMERCE
CLAUSE/RESTRICTIONS ON INTERSTATE COMMERCE.
American Civil Liberties Union v. Johnson, 4 F. Supp. 2d 1029 (D.N.M.
June 30, 1998) (enjoining enforcement of New Mexico’s CDA-style law).
American Civil Liberties Union v. Johnson (10th Cir. 1999)
(upholding the injunction against the New Mexico CDA-style law).
American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. June
20, 1997), http://www.aclu.org/court/nycdadec.html.
Beskind v. Easley (4th Cir. Apr. 8, 2003)
Cyberspace Communications, Inc. v. Engler, 1999 U.S. Dist. LEXIS 12843
(E.D. Mich. July 29, 1999) (striking down a state CDA-style law on both First
Amendment grounds and commerce clause grounds).
Dickerson v. Texas (S.D. Tex. July 17, 2002) (striking down Texas law
restricting the cross-border sales of wine).
Ferguson v. Friendfinder (Cal. Superior Court, June 7, 2000) (striking
down California’s anti-spam statute B&P 17538.4), http://www.law.washington.edu/LCT/files/Cal_spam_decision.pdf. Reversed on appeal, 94 Cal. App. 4th
1255 (2001),
http://www.timothywalton.com/fergusonvfriendfinders.html#asterisk.
Ford Motor Co. v. Texas Dep’t of Transportation, 106 F. Supp. 2d 905
(W.D. Tex. 2000) (restricting Ford’s ability to sell cars direct to consumers
in violation of a Texas statute requiring such sales to take place through a
dealer). Affirmed on appeal, 264 F.3d
493; 2001, 5th Cir. August 27, 2001, http://laws.findlaw.com/5th/050cv0.html.
Heald v. Engler, 2003 Fed. App. 0308P (6th Cir. Aug. 28,
2003) (restrictions on out-of-state wine sales violates DCC).
Knoll Pharmaceutical Co. v. Sherman, 1999 WL 569540 (N.D. Ill. Aug 3. 1999)
(striking down Illinois’ restriction on advertisements for “controlled
substances” as violating the commerce clause in part because such restriction
would interfere with web-based ads).
Lorillard Tobacco Co. v. Reilly (D. Mass. Jan. 24, 2000) (state tobacco
advertising restrictions as applied to the Internet violate the commerce
clause).
Santa Fe Natural Tobacco Co. v. Spitzer (SDNY Nov. 2000) (TRO against
laws restricting cigarette shipments to NY based on discrimination against
out-of-staters). Injunction issued June
8, 2001.
Washington v. Heckel (Wash. Superior Ct. March 10, 2000) (striking down
Washington’s anti-spam statute as violating the commerce clause). Reversed on appeal by the WA. Supreme Court,
June 7, 2001, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2001_sc/69416-8&invol=3.
6. COMPUTER FRAUD AND
ABUSE ACT (CFAA).
18 U.S.C. §1030, http://www4.law.cornell.edu/uscode/18/1030.html.
America Online, Inc. v. Christian Brothers (SDNY December 9, 2000)
(finding that sending spam caused violations of both (a)(5) an (a)(5)(C)), http://www.nylj.com/links/aol.html.
America Online, Inc. v. LCGM, 1998 US Dist. LEXIS 20144 (finding a
spammer violated the CFAA).
America Online, Inc. v. National Health Care Discount, Inc. 2000 WL
1724884 (N.D. Iowa Sept. 25, 2000) (sending unwanted email is “access” for
purposes of CFAA and large volume of email impairs the availability of a
computer system; also finding that scraping email addresses could violate
(a)(2)(C)).
Doubleclick Inc. Privacy Litigation (S.D.N.Y.
March 29, 2001), 2001 U.S. Dist. LEXIS 3498.
EF Cultural Travel v. Explorica, 274 F.3d 577 (1st Cir. Dec. 17, 2001) (scraping
pricing information violated CFAA (a)(4)), http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-2000.01A.
EF Cultural Travel v. Zefer Corp. (1st
Cir. Jan. 28, 2003) (interpreting “exceeding authorization” as requiring an
explicit anti-robot notice on a webpage or a clearly labeled link, or through
implied language that was more than a copyright notice), http://laws.lp.findlaw.com/1st/012001.html.
Hotmail Corporation v. Van$ Money Pie Inc.,
1998 WL 388389 (N.D. Cal., April 20, 1998) (a default judgment finding, among
other things, that bounced back emails caused by spammers were a violation of
the Computer Fraud and Abuse Act), http://eric_goldman.tripod.com/caselaw/hotmailvvansmoneypie.htm.
IMS Inquiry Management Systems v. Berkshire
Information Systems, 2004 WL 345556 (SNDY Feb. 23, 2004).
In re Intuit Privacy Litigation, 2001 WL 370081 (C.D. Cal. April 10,
2001) (dismissing a claim that placing cookies violates the CFAA).
Moulton v. VC3, 2000 U.S. Dist. LEXIS 19916 (N.D. Ga. November 7,
2000). http://pub.bna.com/eclr/00434.htm.
Nexans Wires SA v. Sark USA Inc (SDNY May 25, 2004) (excluding some
remediation activities from the definition of “loss”).
Register.com v. Verio (SDNY Dec. 8, 2000) (access by search robots
could give rise to (a)(5)(C) and (a)(2) violation), http://www.icann.org/registrars/register.com-verio/order-08dec00.htm.
Shurgard Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 F.
Supp. 2d 1121 (W.D. Wash. October 26, 2000).
U.S. v. Morris, 928 F.2d 504 (2d Cir. 1991), http://www.Loundy.com/CASES/US_v_Morris2.html.
U.S. v. Riggs, 743 F. Supp. 556 (N.D. Ill. 1990), http://www.Loundy.com/CASES/US_v_Riggs.html.
7. CONSUMER PROTECTION.
Directive 97/7/EC of the European Parliament and of the Council of 20
May 1997 on the Protection of Consumers in Respect of Distance Contracts, http://europa.eu.int/en/comm/dg24/cad/dir1en.html.
California Business & Professions Code §17538 (amended September
1996), http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_3301-3350/ab_3320_bill_960923_chaptered.html.
California AB 583 (chaptered Sept. 21, 1999) (authorizing online escrow
agents).
California Civil Code §1789 (the “Electronic Commerce Act of 1984”).
California Business & Professions Code §17538.35 (requiring email
service providers to give 30 days notice prior to permanently terminating email
accounts; this right is not waivable by contract).
Cease and Desist Order issued by Idaho Department of Finance against European
Union Bank, May 29, 1997 (prohibiting the Internet-based bank from soliciting
deposits from Idaho residents). See http://www.state.id.us/finance/pr/eurobank.htm.
Access Now, Inc. v. Southwest Airlines Co. (S. D. Fla. Oct. 15, 2002)
(airline website not obligated under ADA to build website readable by visually
impaired users), http://www.techlawjournal.com/courts2002/accessnow_southwest/20021018.asp.
Department of Transportation v. Hotwire (DOT, Oct. 4, 2002) ($50,000
fine for deceptive ads based on advertisements that touted low fares that may
not have been available).
Dickerson v. Texas (S.D. Tex. July 17, 2002) (striking down Texas law
restricting the cross-border sales of wine).
Federal Trade Commission v. FutureNet Online, Inc. (C.D. Cal. Nov. 24,
1998) (consent order regarding online pyramid scheme).
Federal Trade Commission v. Hill (June 17, 2004) (consent order against
phishing).
Federal Trade Commision v. Verity International (S.D.N.Y. May 1, 2001)
(penalizing Internet pornographers for fraudulent billing practices).
Hinther v. Electronic Arts, Inc. (Cal. Superior Ct. September 25, 1998)
(denying class certification for breach of contract/warranty claims against
Ultima Online).
Howard v. America Online, Inc. (C.D. Cal. May 14, 1998) (rejecting
plaintiff’s attempts to establish a RICO claim against AOL for various
advertising claims and service delivery issues; also ruling that AOL was not a
“common carrier” under FCC regulations), http://legal.web.aol.com/decisions/dlpriv/howard.html.
Missouri v. Beer Nuts Ltd. (Mo. Cir. Ct. March 31, 1999) (restricting
an out-of-state company’s ability to sell alcohol in Missouri).
Noah v. AOL Time Warner, 261 F. Supp. 2d 532 (E.D. Va. May 15, 2003) (AOL chat room is not a place of public accommodation), http://eric_goldman.tripod.com/caselaw/noahvaol.htm.
Rudder v. Fedtrust Liquidations (Cal. Ct. App. Feb. 13, 2004) (inaccurate eBay listing could give rise to fraud).
Schwab v. America Online, Inc. (Ill. Cir. Ct. February 19, 1998)
(approving a class action settlement arising out of AOL’s service outages).
Taucher v. Born (D.D.C. June 21, 1999), http://lw.bna.com/lw/19990713/971711a.htm.
Wine and Spirits Wholesalers v. Net Contents, 10 F. Supp. 2d 84 (D.
Mass. July 23, 1998) (holding that a trade association lacks standing to bring
a private action to enforce wine-related statutes against an Internet website
selling wine into the state).
8. CONTRACT.
Electronic Signatures in Global & National Commerce Act, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_bills&docid=f:s761enr.txt.pdf.
Uniform Electronic Transactions Act (Dec. 1999 draft), http://www.law.upenn.edu/bll/ulc/uecicta/eta1299.htm.
America Online, Inc. v. Booker, 781 So. 2d
423 (Fla. App. 2001).
Barnett v. Network Solutions, 38 S.W.3d 200
(Tex. Ct. App. Jan. 11, 2001) (upholding the forum selection clause in NSI’s
user agreement, even though the user had to scroll to see the clause).
Begraft v. eBay (N.J. Super. Ct. Oct. 1,
2003), http://eric_goldman.tripod.com/caselaw/begraftvebay.pdf
(upholding eBay’s user agreement).
Caspi v. Microsoft Network LLC, 732 A.2d 528
(N.J. Superior Ct. July 2, 1999) (upholding the forum selection clause in MSN’s
clickthrough user agreement), http://www.bna.com/e-law/cases/caspi.html.
Celmins v. America Online, 738 So. 2d 1041
(Fla. Dist. Ct. App. May 19, 1999) (enforcing AOL’s forum selection clause in
its user agreement).
Comb v. PayPal, Inc., 2002 U.S. Dist. LEXIS
16364 (N.D. Cal. Aug. 30, 2002) (rejecting a motion to compel arbitration
because the user agreement was unconscionable), http://pub.bna.com/eclr/021227.htm.
Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743 (D. N.J. May 12,
1999) (dismissing jurisdiction based on Internet order for a hotel room given
forum selection language on the site).
DiLorenzo v. America Online (N.Y. Supreme Ct.
January 22, 1999), (upholding AOL’s choice of forum clause in its terms of
service), http://legal.web.aol.com/decisions/dlother/dilorenzo.html.
Evans v. Matlock (Tenn. Ct. App. Dec. 23,
2002) (eBay user agreement arbitration clause does not apply to intra-user
disputes), http://www.tsc.state.tn.us/opinions/tca/PDF/024/EvansD.pdf.
Forrest v. Verizon Communications, Inc. (D.C.
App. Ct. Aug. 29, 2002) (upholding arbitration clause in DSL service
clickthrough agreement that was in a scroll box), http://www.dcbar.org/dcca/pdf/01-cv-1101.pdf.
Groff v. America Online, Inc., 1998 R.I.
Super. LEXIS 46 (Super. Ct. R.I. May 27, 1998) (upholding AOL’s forum selection
clause), http://legal.web.aol.com/decisions/dlother/groff.html.
Hotmail Corporation v. Van$ Money Pie Inc.,
1998 WL 388389 (N.D. Cal., April 20, 1998) (a default judgment finding, among
other things, that spammers breached Hotmail’s clickthrough agreement, that a
violation of the clickthrough agreement was trespass, and that bogus consent to
a clickthrough agreement was fraud/misrepresentation), http://eric_goldman.tripod.com/caselaw/hotmailvvansmoneypie.htm.
Hughes v. McMenamon, 204 F. Supp. 2d 178 (D. Mass. May 28, 2002)
(dismissing AOL from case based on contract).
I. Lan Sys., Inc. v. Netscout Serv. Level Corp., 183 F. Supp. 2d 328
(D. Mass. Jan. 2, 2002)
Jessup-Morgan v. AOL, 20 F. Supp. 2d 1105 (E.D. Mich. July 23, 1998)
(finding that a user had breached AOL’s Member Agreement by sending a false
message to USENET), http://legal.web.aol.com/decisions/dlpriv/jessup.html.
Kilgallan v. Network Solutions, 99 F. Supp. 2d 125 (D. Mass. 2000).
Koch v. America Online, 139 F. Supp. 2d 690 (D. Md. 2000).
Liekschke v. RealNetworks, Inc., 2000 U.S. Dist. LEXIS 1683 (N.D. Ill.
February 10, 2000) (directing the lawsuit to arbitration based on the clause in
RealNetworks’ user agreement).
Lim v. dotTV Corp. (Cal. Ct. App. June 24, 2002) (disputes over whether
dotTV’s way of auctioning golf.tv was a binding contract).
Mendoza v. America Online (Cal. Superior Ct. September 25, 2000) (rejecting AOL’s venue clause in its member agreement as unfair). Upheld on appeal: America Online, Inc. v. Superior Court (Mendoza), 90 Cal.App.4th 1 (Cal. App. Ct. June 21, 2001), http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/90/1.html
Mudd-Lyman Sales and Service Corp. v. United Parcel Service, Inc., 236
F. Supp. 2d 907 (N.D. Ill. Nov. 26, 2002) (proper contract formation through
shrinkwrap agreement and bootscreen), http://www.sfl-legal.com/cases%202003/Mudd-Lyman%20v.%20UPS.htm.
Net2Phone, Inc. v. State ex rel Consumer Cause, Inc. (Cal. App. Ct.
June 9, 2003) (implicitly upholding Net2Phone’s forum selection clause, even if
the user agreement was formed only through a hyperlinked contract with the
language “by using the site or materials, you agree…”), http://www.courtinfo.ca.gov/opinions/documents/B162210.PDF.
Oppedahl & Larson v. Network Solutions, Inc. (D. Colo. April 16,
1998) (deeming the application of NSI’s registration contract in Oppedahl’s
circumstance a question of fact), http://www.bna.com/e-law/cases/oppensi.html.
Pollstar v. Gigmania (E.D. Cal. Oct. 17, 2000) (contract action based
on non mandatory T&Cs survive 12b6 motion).
Ploharski v. eBay (N.D. Ga. August 1, 2000) (upholding the forum
selection clause in eBay’s user agreement).
In re. RealNetworks Privacy Litigation, 2000 U.S. Dist. LEXIS 6584
(N.D. Ill. May 8, 2000) (clickthrough agreement with arbitration sufficient to
dismiss class action request).
Register.com v. Verio, 126 F. Supp. 2d 238 (SDNY Dec. 8, 2000) (terms
of use on search submission page formed contract), http://www.icann.org/registrars/register.com-verio/order-08dec00.htm.
Spera v. America Online, Inc. (N.Y. Supreme Court, January 27, 1998)
(upholding the enforceability of a forum selection clause in AOL’s clickthrough
terms of service).
Specht v. Netscape Communications Corp., 150 F.Supp.2d 585 (S.D.N.Y.,
July 5, 2001) (non-mandatory clickthrough not a binding contract), http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07482.PDF. Affirmed on appeal, 2002 WL 31166784 (2d
Cir. Oct. 1, 2002), http://csmail.law.pace.edu/lawlib/legal/us-legal/judiciary/second-circuit/test3/01-7860.opn.html.
Ticketmaster, Inc. v. Tickets.com, 2000 WL 1887522 (C.D. Cal. August 10, 2000) (contract terms
linked to from the bottom of the page are not necessarily binding on people who
access the page), http://pub.bna.com/ptcj/ticketmaster.htm. Ruling denying Tickets.com summary judgment
on the contract claim, March 6, 2003, 2003 U.S. Dist. LEXIS 6483, http://eric_goldman.tripod.com/caselaw/ticketmastermarch72003.htm.
Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 (N.D. Tex. March 25,
1998) (declining to give effect to an express but “inconspicuous” clause in the
user agreement requiring arbitration in the defendant’s home court).
Williams v. America Online, 2001 WL 135825 (Middlesex
Superior Ct. February 8, 2001) (refusing to enforce AOL’s forum selection
clause in its user agreement because it was possible to download the software
without agreeing to it), http://www.socialaw.com/superior/000962.html.
Zurakov v. Register.com (NY Appellate Division
April 22, 2003) (discussing what a domain name registrant expected based on
their contract), http://www.courts.state.ny.us/reporter/slips/13230.htm.
Also relevant:
Bishoff v. DirectTV Inc., 180 F. Supp. 2d 1097 (CD Cal. 2002)
(upholding satellite TV provider’s customer agreement).
Boomer v. AT&T Corp., 2002 U.S. Dist. LEXIS 10679 (N.D. Ill. June
13, 2002) (refusing to grant motion to compel arbitration based on service
agreement). Reversed on appeal, 309
F.3d 404 (7th Cir. Oct. 3, 2002).
Brower v. Gateway 2000, 676 N.Y.S.2d 569 (New York Appellate Division,
August 13, 1998), http://www.ljx.com/cgi-bin/f_cat?test/ht-docs/ny.archive.html/98/08/081798dd.html.
Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997), http://www.law.emory.edu/7circuit/jan97/96-3294.html.
Klocek v. Gateway, Inc., 104 F. Supp. 3d 1332 (D. Kansas, June 15, 2000) (rejecting the enforceability of
shrinkwraps), http://www.ksd.uscourts.gov/opinions/99-2499-26.html.
Levy v. Gateway 2000, Inc. 1997 WL 823611 (NY Supreme Ct. August 12,
1997) (enforcing the documents sent with the package).
Licitra v. Gateway, Inc., 734 N.Y.S.2d 389 (NY Civil Court, October
2001) (small claims action trumps arbitration clause in user agreement).
M.A. Mortensen Co. v. Timberline Software Corp., 970 P.2d 803 (Wash.
Ct. App. Feb. 1, 1999) (upholding the enforceability of a shrinkwrap agreement
included on the envelope inside the box), http://www.bna.com/e-law/cases/timber.html.
Mattingly v. Hughes Elecs. Corp., 2002 WL 3144472 (Md. Ct. Spec. App.
Nov. 4, 2002) (amendment to customer agreement failed).
ProCD v. Zeidenberg, 89 F.3d 1257 (7th Cir. 1996), http://www.bna.com/e-law/cases/procd.html.
Rinaldi v. Iomega, 1999 WL 1442014 (Del. Superior Ct. Sept. 3, 1999)
(enforcing a disclaimer of warranties contained inside the packaging when there
was a refund opportunity).
Storm Impact Inc. v. Software of the Month Club, 1998 U.S. Dist. LEXIS
11789 (N.D. Ill. July 29, 1998) (shareware license agreement contained valid
restrictions on redistribution).
Ting v. AT&T, 182 F. Supp. 902 (N.D. Cal. Jan. 15, 2002) (striking
down an arbitration clause in a service agreement as unconscionable).
Westendorf v. Gateway 2000, Inc., 2000 WL 307369 (Del. Ch. Ct., March
16, 2000) (enforcing the contract contained in the packaging even though the
computer was paid for by someone else).
9. COPYRIGHT.
17 U.S.C. §101 et seq., http://fatty.law.cornell.edu/uscode/17/index.html.
In particular, see 17 U.S.C. §512 (added by the Digital Millennium
Copyright Act), http://thomas.loc.gov/cgi-bin/cpquery/z?cp105:hr796:.
A. Civil.
321 Studios v. Metro Goldwyn Mayer Studios (N.D. Cal. Feb. 19, 2004)
(321’s software violates 1201).
A & M Records v. Internet Site Known as Fresh Kutz (S.D. Cal. June
10, 1997) (TRO), http://www.bna.com/e-law/docs/amkutz.html.
Adam.com v. Drkoop.com (N.D. Georgia settled
April 2000) (settling a claim over Drkoop.com’s continued use of a medical
encyclopedia after a license agreement expired).
Bernstein v. J.C. Penney (C.D. Cal. September
1998) (no copyright liability for a website linking to an allegedly photograph
which was three links away).
Bird v. Parsons (6th Cir. May 21,
2002) (no copyright in single word used as domain name), http://laws.lp.findlaw.com/6th/02a0177p.html.
Creative Labs, Inc. v. Cyrix Corp., (N.D. Cal. May 7, 1997) (awarding
an injunction against the websites distributing Creative Lab’s copyrighted
applets based on the likelihood of such behavior being both direct and
contributory infringement), http://www.bna.com/e-law/cases/cyrix.html.
DVD-CCA v. McLaughlin, 2000 WL 48512 (Cal. Superior 2000), http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/20000120-pi-order.html
Edelman v. N2H2 Inc. (D. Mass. Apr. 7, 2003)
(no declaratory judgment for researcher planning to reverse engineer censorware
block list), http://cyber.law.harvard.edu/people/edelman/edelman-v-n2h2/order-040703.pdf.
Expert Pages v. Universal Networks, Inc. (N.D. Cal. May 2, 1997) (TRO),
http://www.jmls.edu/cyber/cases/expert2.html.
Frank Music Corp. v. CompuServe (S.D.N.Y, settled October 25,
1995). This was a class action against
CompuServe for distributing MIDI files.
This case settled with CompuServe paying $568,000. The settlement agreement is at http://www.courttv.com/legaldocs/cyberlaw/compuserve2.html.
IMS Inquiry Management Systems v. Berkshire
Information Systems, 2004 WL 345556 (SNDY Feb. 23, 2004) (using password to
access copyrighted works not circumvention).
Intellectual Reserve v. Utah Lighthouse Ministry (D. Utah 1999)
(browsing can constitute infringement), http://www.utlm.org/images/courtcase.
Kelly v. Arriba Software Corp., 77 F. Supp. 2d 1116 (C.D. Cal. Dec. 16, 1999) (a search engine
scraping photos and redisplaying thumbnail versions was fair use and didn’t
violate requirements to display copyright management information under 1202), http://www.ipwatchdog.com/kelly_v_arriba.html. On Feb. 6, 2002, the Ninth Circuit affirmed
that thumbnails were fair use but held that in-line linking and framing was
not. 280 F.3d 934 (2002). Then, on July 7, 2003, the Ninth Circuit
withdrew its 2002 ruling and issued a new one that removed all discussion about
the in=line linking and framing, saying that the plaintiff had never moved for
summary judgment on the issue. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8E22982657C96BE188256D5C00518BF5/$file/0055521oop.pdf?openelement.
Los Angeles Times v. Free Republic (C.D. Cal. Nov. 8, 1999) (rejecting
use of full text articles was fair use), http://www.techlawjournal.com/courts/freerep/19991108.htm.
Los Angeles Times v. Free Republic (C.D. Cal. July 31, 2000), http://www.techlawjournal.com/courts/freerep/20000731ord.asp.
Los Angeles Times v. Free Republic (C.D. Cal. Nov. 14, 2000), http://www.freerepublic.com/judgment.html
(final judgment).
Lowry’s Reports v. Legg Mason (D. Md. July 10, 2003) (internal
redistribution of copyrighted email reports infringes).
Marobie-FL, Inc. v. National Association of Fire Equipment
Distributors, 2000 WL 1053957 (N.D. Ill. July 31, 2000)
Michaels v. Internet Entertainment Group, Inc., 5 F. Supp. 2d 823 (C.D.
Cal. 1998) (making available a videotape for downloading which depicts two
people having sex could be copyright infringement; judge awards an injunction
against posting the videotape in total or even posting “small portions” or
still images).
Microsystems Software, Inc. v. Scandinavia Online, 98 F. Supp. 2d 74
(D. Mass. March 28, 2000) (injunction against distributing cphack), http://www.politechbot.com/cyberpatrol/final-injunction.html. Microsystems Software, Inc. v. Scandinavia
Online (1st Cir. Sept. 27, 2000) (a technical ruling regarding the
standing of nonparties to intervene).
MyWebGrocer v. Hometown Info. (2d Cir. July 13, 2004) (online grocery
product description compilation may be copyrightable)
Paramount Pictures v. 321 Studios (SDNY March 3, 2004) (DeCSS violates
1201).
Pearl Investments v. Standard I/O, 257 F. Supp. 2d 326 (D. Maine Apr.
2, 2003). In subsequent proceeding, the
district court upheld the jury verdict that there was no circumvention (D.
Maine April 20, 2004).
Phillips v. Kidsoft LLC, 52 USPQ2d 1102 (D. Md. 1999) (infringing
copies on website).
RealNetworks, Inc. v. Streambox, Inc., 2000 WL 127311 (W.D. Wash. Jan.
18, 2000) (finding violations of 1201 and finding that a plug-in impermissibly
modifies the user interface of Real’s software, creating a derivative work), http://www.streambox.com/RNvsSB/ruling.htm.
Religious Technology Center v. Netcom On-Line Communications Services
(N.D. Cal. September 22, 1995), http://www.eff.org/pub/Legal/Cases/CoS_v_the_Net/whyte_cos_v_erlich_092295.ruling.
Religious Technology Center v. F.A.C.T.Net, 901 F. Supp. 1519 (D. Colo.
September 15, 1995), http://www.Loundy.com/CASES/RTC_v_FACTnet.html.
Religious Technology Center v. Lerma (E.D. Va. August 30, 1995), http://www.eff.org/pub/Legal/Cases/CoS_v_the_Net/brinkema_rtc_washpost_083095.ruling. Subsequent ruling November 28, 1995, http://www.eff.org/pub/Legal/Cases/Scientology_cases/brinkema_rtc_washpost_112895.opinion. Final ruling October 4, 1996, http://www.bna.com/e-law/cases/lerma.html.
Rossi v. Motion Picture Association of America, Inc. (D. Hawaii Apr.
29, 2003) (MPAA has sufficient good faith basis to submit take down notice even
if it does no investigation), http://63.104.208.130/webdoc.nsf/Files/250b/$file/250b.pdf.
Scanlon v. Kessler, 1998 U.S. Dist. LEXIS 10201 (S.D.N.Y. July 9, 1998)
(a nonprofit group putting copyrighted photos taken by a group member on the
group’s website was copyright infringement).
Schlessinger v. Internet Entertainment Group (C.D. Cal. November 2,
1998) (upholding the right of IEG to display photos of Dr. Laura, since she did
not own the copyrights).
Storm Impact Inc. v. Software of the Month
Club, 1998 U.S. Dist. LEXIS 11789 (N.D. Ill. July 29, 1998) (redistribution of
shareware was copyright infringement).
See also 1998 US Dist. LEXIS 12060.
Ticketmaster, Inc. v. Tickets.com (C.D. Cal. March 27, 2000), http://www.ipwatchdog.com/ticketmaster.html. Denial of preliminary injunction on August
10, 2000; see http://pub.bna.com/ptcj/ticketmaster.htm
(scraping to remove factual information could be copyright infringement but may
be fair use). Granting Tickets.com’s
motion for summary judgment, March 6, 2003, 2003 U.S. Dist. LEXIS 6483, http://eric_goldman.tripod.com/caselaw/ticketmastermarch72003.htm.
Universal City Studios v. Reimderdes (S.D.N.Y. January 20, 2000) (preliminary injunction), http://cryptome.org/dvd-mpaaa-3-pi-htm. Opinion supporting the preliminary injunction, February 2, 2000, http://www.2600.com/dvd/docs/2000/0202-mo.html. Consent judgment against Kazan dismissing him from the case based on his representation that they were not involved in DeCSS, March 17, 2000, http://cryptome.org/dvd-mpaa-3-rk.htm. Preliminary injunction grant: 82 F. Supp. 2d 211 (S.D.N.Y. 2000) (granting preliminary injunction), http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000202_ny_memorandum_order.html. Finding a violation of 17 USC 1201(a)(2), 111 F. Supp. 2d 294 (S.D.N.Y. Aug 17, 2000), http://www.2600.com/dvd/docs/2000/0817-decision.pdf. Amended final judgment: 111 F. Supp. 2d 346 (S.D.N.Y. Aug. 19, 2000). Affirmed as Universal City Studios v. Corley (2d Cir. Nov. 28, 2001), http://www.sims.berkeley.edu/academics/courses/is235/f01/ reimerdes_nov28_2001.pdf.
In re. Verizon Internet Services Inc. (D.C. D.C. Jan. 21, 2003 and Apr. 24, 2003) (ordering Verizon to comply with 512(h) for its Internet access subscribers).
Video Pipeline, Inc. v
Buena Vista Home Entertainment, Inc. (D.N.J. April 2002) (creating and
streaming video clips is copyright infringement), http://lawlibrary.rutgers.edu/fed/html/ca00-5236-1.html.
WebSideStory v. WebTrends (S.D. Cal. Dec. 1999) (TRO from launching
competitive service that allegedly ripped off too much).
Cyboza v. NeoJapan, Inc. (Tokyo District
Court June 13, 2001) (web page encoded in HTML is copyrightable).
Pacific Internet v. Catcha.com (Singapore
High Court August 2000) (case involving scraping and linking of factual-type
data).
The Shetland Times Ltd. v. Wills (Court of
Sessions, Edinburgh, October 24, 1996), http://www.shetland-news.co.uk/opinion.html. Settled on November 11, 1997; see http://www.shetland-times.co.uk/st/daily/dispute.htm.
B. Criminal.
No Electronic Theft Act, Public Law 105-147
[H.R. 2265], enacted December 16, 1997 (amending Section 506(a) of the
Copyright Act to permit criminal liability even in the absence of private
financial gain if there is willful infringement of copyrighted works with an
aggregate retail value of more than $1,000 in any 180 day period), http://www.cs.hmc.edu/~smikes/property/net/bill.html.
Ohio v. Perry, 1997 Ohio App. LEXIS 453 (Ct.
App. Ohio February 12, 1997) (finding that a state law action for criminal use
of property for placing stolen computer software onto a BBS is preempted by
federal copyright law), http://www.bna.com/e-law/cases/perry.html. Affirmed at 697 N.E.2d 624 (Ohio Supreme
Court, August 19, 1998), http://www.sconet.ohio.gov/ftp/opinions/1998/970628.rtf.
U.S. v. Elcom (N.D. Cal. May 8, 2002)
(denying motion to dismiss indictment under 1201(b)), http://www.planetpdf.com/mainpage.asp?webpageid=2049,
U.S. v. LaMacchia, 871 F. Supp. 535 (D. Mass.
1994), http://www.jmls.edu/cyber/cases/lamacchi.txt.
10. DEFAMATION.
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C.
April 22, 1998), http://www.ljx.com/LJXfiles/drudge/drudgedecision.html. Case ultimately dismissed in Drudge’s favor.
DeNigris v. Medphone (settled).
Firth v. New York (NY Ct. Claims, March 8,
2000) (single publication rule applies to web publishing). Affirmed 747
N.Y.S.2d 69 (2002).
Global Telemedia Int’l v. Doe (C.D. Cal. Feb.
2001) (rants about a company on a message board were opinions and thus not
defamatory).
Hall v. Earthlink, 2004 WL 22990064 (SDNY
Dec. 19, 2003) (dismissing liability for labeling an email accountholder a
spammer).
Hammer v. Trendl, 2003 U.S. Dist. LEXIS 623
(E.D.N.Y. Jan. 18, 2003) (book review on Amazon.com was statement of opinion
and thus not defamatory).
It’s in the Cards, Inc. v. Fuschetto, 535
N.W.2d 11 (Wis. Ct. App. 1995), http://www.jmls.edu/cyber/cases/in-cards.txt.
Mathis v. Cannon, 2002 Ga. LEXIS 1071 (Ga.
Sup. Ct. Nov. 25, 2002) (reaching an opposite result to It’s in the Cards,
requiring a retraction demand for an Internet posting prior to awarding
punitive damages).
Mayflower Transit LLC v. Prince (D. N.J. May
2004) (gripe site).
McCarthy v. McCahan (San Francisco Superior
Court 1998) (a California small claims court suit alleging that a mail list
posting was defamatory; reversing a $5,000 award by the small claims court, the
Superior Court, on appeal, found that the posting was not defamatory).
National Technical Systems v. Schoneman (Cal.
App. Ct. Feb. 5, 2004) (anti-SLAPP suit over message board posting by critic).
Nicosia v. De Rooy (N.D. Cal. July 1999)
(potentially defamatory statements on the web need to be evaluated in light
that web readers may be less likely to believe things they read on the web).
Rindos v. Hardwick, no. 1994 of 1993 (W.
Austrl. Sup. Ct. March 31, 1994), http://www.law.auckland.ac.nz/cases/Rindos.html.
Sheehan v. King County (W.D. Wash., July 17,
1998) (no preliminary injunction based on allegedly defamatory website).
Suarez v. Meeks (settled).
Traditional Cat Assoc. v. Gilbreath (Cal. Ct.
App. May 6, 2004) (single-publication rule bars claim over web posting).
Tzougrakis v. Cyvelliance, Inc., 2001 US
Dist. LEXIS 6680 (SDNY May 21, 2001) (no defamation for press release issued in
accordance with sound journalistic practices).
Van Buskirk v. New York Times Co. (2d Cir.
Apr. 2, 2003) (dismissing a claim over an allegedly defamatory article on the
Internet based on the single publication rule).
Wagner v. Miskin, 2003 N.D. 69 (N.D. Sup. Ct.
May 6, 2003) ($3M judgment based on defamatory Internet posting by student
against professor), http://www.court.state.nd.us/COURT/OPINIONS/20020200.htm.
Zelinka v. Americare Healthscan, 763 So. 2d
1173 (Fla. Ct. App. January 26, 2000) (holding that a Florida lawsuit requiring
pre-suit demands for correction/retraction did not limit suit against an
individual who contributed to a Yahoo message board).
Also relevant:
Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S. 749 (1985), http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=472&page=749.
Computer XPress, Inc. v. Jackson (Cal. Ct. App. Nov. 15, 2001)
(litigation over message board postings violated anti-SLAPP law), http://www.courtinfo.ca.gov/opinions/documents/E027841.PDF.
11. DERIVATIVE
LIABILITY.
A. General.
47 U.S.C. §230, http://www4.law.cornell.edu/uscode/47/230.html.
Australia Broadcasting Services Amendment
Act, http://www.ozemail.com/~mbaker/amended.html
European Union E-Commerce Directive, http://europa.eu.int/eur-lex/pri/en/oj/dat/2000/l_178/l_17820000717en00010016.pdf.
German Federal law to Regulate the Conditions
for Information and Communications Services, http://www.kuner.com/data/reg/multimd3.htm.
Singapore Electronic Transaction Act, Section
10 (broad safe harbor for network service providers for liability due to third
party materials), http://www.ech.ncb.gov.sg/view/ech/index.html.
Swedish Act on Responsibility of Electronic
Bulletin Boards (passed May 1998) (criminal law requiring BBS operators to
supervise user content as reasonable and to remove offending messages; but if
it is too burdensome to check everything, a BBS can set up a complaint
process).
Also relevant: Smith v. California, 361 U.S.
147 (1959), http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=361&page=147.
Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241 (1974), http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=418&page=241.
Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.
3d 259 (9th Cir. 1996), http://www.law.vill.edu/Fed-Ct/Circuit/9th/opinions/9415717.htm.
B. Copyright.
17 U.S.C. §512 (Digital Millennium Copyright
Act—especially subsections (c) and (d)),
http://thomas.loc.gov/cgi-bin/cpquery/z?cp105:hr796:.
A & M Records v. Napster (N.D. Cal. March
2000) (Napster can’t claim 512(a) safe harbor), http://www.riaa.com/PDF/Court512aRuling.pdf. 2000 WL 1009483 (N.D. Cal. 2000)
(preliminary injunction hearing of July 26), http://riaa.org/PDF/NapsterPatel.pdf. On August 11, 2000, the district court held
that Napster contributorily infringed because it has both actual knowledge and,
at least, constructive knowledge that users were using the software to infringe
and facilitates the infringement; and found vicarious infringement through some
dubious assertions about Naspter’s supervision/policing of its service), http://www.cand.uscourts.gov/cand/tentrule.nsf/4f9d4c4a03b0cf70882567980073b%202e4/74bf2867dde99f0f88256938007a1205?OpenDocument. On February 12, 2001, the 9th
circuit issued a ruling partially reversing the district court in 239 F.3d
1004, http://www.ce9.uscourts.gov/web/newopinions.nsf/4bc2cbe0ce5be94e88256927007a37b9/c4f204f69c2538f6882569f100616b06?OpenDocument. On March 5, 2001, the district court issued
a preliminary injunction requiring the record companies to submit some
information about the infringing items to force Napster to remove the items
within 3 business days. On March 25,
2002, the Ninth Circuit affirmed the District Court’s modified injunction and
shutdown order, 2002 WL 449550 (9th Cir. March 25, 2002).
In re. Aimster Copyright Litigation (N.D. Ill.,
Sept. 4, 2002) (issuing an injunction based on contributory and vicarious
infringement). Affirmed by the Seventh
Circuit June 30, 2003, http://news.findlaw.com/hdocs/docs/aimster/inreaimster63003opn.pdf.
ALS Scan v. RemarQ Communities (D. Maryland March 2000)
(dismissing a copyright infringement claim over user-posted infringements over
two USENET newsgroups). Reversed by the
4th circuit, holding that ALS Scan submitted a DMCA-compliant
notice, even though the notice was deficient, because it “substantially”
complied with the requirements; thus, RemarQ cannot claim the 512(c) safe
harbor. 2001 US App. LEXIS 1567 (4th
Cir. Feb. 6, 2001), http://www.loundy.com/CASES/ALS_v_RemarQ.html.
Arista Records, Inc. v. MP3Board, Inc., 2002 U.S.
Dist. LEXIS 16165 (S.D.N.Y. Aug. 28, 2002) (denying summary judgments for both
sides).
Central Point Software, Inc. v. Nugent, 903 F. Supp.
1057 (E.D. Tex. 1995) (the sysop was liable for “reproducing” software solely
because the files were on the sysop’s system–without any allegation that the
sysop loaded the files or knew they were there).
Copeland v. Collins (N.D. Cal. March 25,
1999) (a not-for-publication case dismissing direct, contributory and vicarious
copyright infringement for a USENET provider for an infringing USENET posting).
CoStar Group Inc. v. LoopNet Inc., 164 F.
Supp. 2d 688 (D. Md. 2001).
Ellison v. Robertson (C.D. Cal.
Jan. 12, 2001) (in a dispute over copyright infringement committed by users on
USENET, rejecting AOL’s and RemarQ’s motion to dismiss although the judge is
not favoring plaintiff’s claims).
RemarQ settled the case in January 2002. AOL’s motions for summary judgment were granted March 12, 2002
based on 512(a), 2002 WL 407696, http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/47819ca5ada002af88256b7c006a4494/$FILE/CV00-04321FMC.pdf.
Frank Music v. CompuServe (S.D.N.Y November
29, 1993) (a class action suit by various copyright owners against CompuServe
for distributing MIDI files). The case
settled with CompuServe paying $568,000: http://www.courttv.com/library/cyberlaw/compuserve2.html.
Hendrickson v. eBay, Inc., 165 F.
Supp. 2d 1082 (C.D. Cal. Sept. 4, 2001)
(summary judgment for eBay on copyright infringement claim due to 512(c)(3)
defense under DMCA), http://eric_goldman.tripod.com/caselaw/hendricksonvebay.htm. Earlier ruling denying plaintiff’s
preliminary injunction ruling issued May 7, 2001.
Los Angeles Times v. Free Republic (C.D. Cal.
July 31, 2000) (in an effectively uncontested ruling, finding contributory
infringement for encouraging users to post full text articles), http://www.techlawjournal.com/courts/freerep/20000731ord.asp.
Marobie-FL, Inc. v. National Association of
Fire Equipment Distributors, 1997 WL 709747 (N.D. Ill. Nov. 13, 1997), http://www.Loundy.com/CASES/Marobie_v_NAFED.html.
Metro-Goldwyn-Mayer Studios Inc. v. Grokster
(C.D. Cal. Apr. 2003) (dismissing contributory and vicarious copyright
infringement claims against file-sharing software manufacturers).
Perfect 10, Inc. v. Cybernet Ventures, Inc.,
213 F. Supp. 2d 1146 (C.D. Cal. April 22, 2002), http://www.adlawbyrequest.com/2pdf/adultcheck.pdf.
Playboy Enterprises, Inc. v. Frena, 839 F.
Supp. 1552 (M.D. Fla. 1993), http://www.leepfrog.com/E-Law/Cases/Playboy_v_Frena.html.
Playboy Enterprises, Inc. v. Russ
Hardenburgh, Inc., 982 F. Supp. 503 (N.D. Ohio November 25, 1997) (holding a
BBS directly liable for copyright infringement committed by its users when the
BBS encouraged users to upload files and prescreened user file transfers; and
holding the BBS contributorily liable for copyright infringement committed by
its users because the BBS encouraged users to upload adult files, benefited
from having more files available, and constructively knew that infringing
activity was occurring because the BBS knew Playboy was enforcing its rights against
the world and it seemed likely that Playboy photos would find their way onto
the system), http://www.Loundy.com/CASES/Playboy_v_Hardenburgh.html.
Playboy Enterprises v. Sanfilippo, 1998 U.S.
Dist. LEXIS 5125 (S.D. Cal. March 25, 1998) ($3.7 million judgment for
copyright infringement when a website provided subscription access to pictures
that may have been uploaded by a third party).
Playboy Enterprises, Inc. v. Webbworld, Inc.,
968 F. Supp. 1171 (N.D. Tex. June 27, 1997), http://www.Loundy.com/CASES/PEI_v_Webbworld.html.
Playboy Enterprises, Inc. v. Webbworld, Inc.,
991 F. Supp. 543 (N.D. Tex. December 11, 1997) (permanent injunction), affirmed
without opinion, 169 F.3d 486.
Religious Technology Center v. Netcom On-Line
Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. November 21, 1995), http://www.jmls.edu/cyber/cases/netcom.txt. Settled–see Netcom’s policy at http://www.netcom.com/about/protectcopy.html.
Sega Enterprises Ltd. v. MAPHIA, 857 F. Supp.
679 (N.D. Cal. 1994), http://www.Loundy.com/CASES/Sega_v_MAPHIA.html.
Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp.
923 (N.D. Cal. 1996), http://www.bna.com/e-law/cases/sega2.html.
Sega Enterprises Ltd. v. Sabella, 1996 U.S.
Dist. LEXIS 20470 (N.D. Cal. December 18, 1996), http://www.bna.com/e-law/cases/sega1.html.
U.S. v. LaMacchia, 871 F. Supp. 535 (D. Mass.
1994), http://www-swiss.ai.mit.edu/dldf/dismiss-order.html.
Church of Spiritual Leaders v. Dataweb,
District Court of the Hague (June 9, 1999) (another case involving the Church
of Scientology v. XS4All, suggesting that an ISP who receives adequate notice
of copyright infringement has a duty to take down the infringing material
within a reasonable period of time or be liable for infringement itself. The case also suggests that an ISP can be
liable for linking to infringing material if it fails to remove the link within
a reasonable period of time after notice).
Hit Box v. America Online (Germany April 12,
2000) (AOL is liable for allowing users to download pirated bootlegs).
Hogsta Domstolen (Stockholm February 22,
1996) (BBS operator not liable for copyright infringement committed by users).
JASRAC v. MMO Japan (Tokyo Dist. Ct. April
2002) (shutting down a Japan-based MP3 file swapping service).
Scientology v. Providers, District Court of the
Hague (March 12, 1996), http://www.xs4all.nl/~kspaink/cos/verd1eng.html.
C. Defamation.
Aquino v. Electriciti Inc. (Cal. Superior
Crt., San Francisco City and County, Sept. 23, 1997).
Barrett v. Clark, 2001 WL 881259 (Cal.
Superior Ct. July 25, 2001) (230 protects person who forwards a message to a
newsgroup).
Batzel v. Cremers, 2001 US Dist. LEXIS 8929
(C.D. Cal. June 5, 2001) (in a weird procedural position—trying to decide if
the case should be stricken under anti-SLAPP laws—holding that a website and
its operator were not ICSs for purposes of 230(c)). Partially reversed on appeal, remanding to the district court to
determine if the blogger should have thought the tipster email was private or
if he could have assumed it was intended for posting to the blog; in the latter
case, 230(c) applies. Batzel v. Smith,
2003 U.S. App. LEXIS 12736 (9th Cir. June 24, 2003), http://www.ca9.uscourts.gov/ca9/newopinions.nsf/AE0A858C82A2EA8F88256D4E007A736C/$file/0156380.pdf?openelement.
Ben Ezra Weinstein & Co. v. America
Online Inc., 1998 WL 896459 (D. N.M. July 16, 1998) (47 USC 230 can support a
motion to suspend discovery pending summary judgment motions in a suit against
the ICS for defamation and inaccurate information). Subsequent ruling on March 1, 1999, 1999 WL 727402 http://legal.web.aol.com/decisions/dldefam/bnezdistrictopinion.html. Upheld by 10th Circuit, 206 F.3d
980 (March 14, 2000) (cert. denied), http://legal.web.aol.com/decisions/dldefam/bnezcoa.pdf.
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C.
April 22, 1998) (AOL not liable for the Drudge Report per Section 230 even when
AOL pays a monthly fee for the content and reserves by contract the right to
exercise editorial control over the content), http://www.ljx.com/LJXfiles/drudge/drudgedecision.html.
Cubby v. CompuServe, 776 F. Supp. 135
(S.D.N.Y. 1991), http://www.alw.nih.gov/Security/FIRST/papers/legal/cubby.txt.
Doe v. Oliver, 46 Conn. Supp. 406 (Conn. Super. Ct. March 7, 2000) (under 47 USC 230, rejecting negligence claims that AOL allowed a user to send defamatory emails).
Grace v. Neeley (Cal. Superior Ct. April 28,
2003) (dismissing a claim against eBay for a defamatory feedback posting, but
saying that 230 did not cover the plaintiff’s claims regarding fictitious name
registrations and the presentation of information about sales tax), http://eric_goldman.tripod.com/caselaw/graceneeley.pdf.
Kempf v. Time, Inc. (Cal. Superior Ct. June
11, 1998) (dismissing a claim against various ISPs based on 230(c)(1)), http://legal.web.aol.com/decisions/dldefam/kempfdis.html.
Hammer v. Trendl, 2003 U.S. Dist. LEXIS 623
(E.D.N.Y. Jan. 18, 2003) (limiting Amazon.com’s liability for a review posted
on its site).
Lunney v. Prodigy Services Corp., 250 A.D.2d
230 (N.Y. Supreme Ct., App. Div., Dec. 28, 1998) (finding that Prodigy
was not the publisher of allegedly defamatory statements in emails and message
board postings; and even if it was, Prodigy had a qualified telecommunications
company-style privilege), http://legal.web.aol.com/decisions/dldefam/lunneyopinion.html. Upheld by New York Ct. App., 94 N.Y.2d 242
(Dec. 2, 1999), http://legal.web.aol.com/decisions/dldefam/lunneyappeal.html.
Marczeski v. Law, 122 F. Supp. 2d 315 (D.
Conn. Nov. 2, 2000) (chat room operator not liable for defamation committed
therein).
Morrison v. American Online, Inc., 153 F.
Supp. 2d 930 (N.D. Ind. Aug 2, 2001) (can’t claim to be third party beneficiary
of member contract as end-run around 230).
PatentWizard, Inc. v. Kinko’s, Inc, 2001 U.S.
Dist. LEXIS 15675 (D. S.D. Sept. 27, 2001) (in a sloppy opinion, dismissing a
set of negligence and similar claims brought against Kinko’s for allowing a
customer to use Internet terminals to post allegedly defamatory content in a
chat room).
Sabbato v. Hardy (Ohio Ct. App. Dec. 18,
2000) (overturning a 12b6 motion to dismiss based on 230 because some evidence
was required to conclude that defendant was a “provider”).
Schneider v. Amazon.com, Inc., 2001 WL
1079588 (Wash. App. Div. September 17, 2001) (230 precludes defamation
liability for a book review written by one of its users), http://www.cdlaw.com/cases/apps/09_01/46791-3.htm.
Smith v. Intercosmos Media Group, 2002 U.S.
Dist. LEXIS 24251 (E.D. La. Dec. 17, 2002) (domain name registrar not liable
for negligence based on allegedly defamatory website hosted at the domain
name), http://www.lextext.com/intercosmos.html.
Stratton Oakmont v. Prodigy, 1995 N.Y. Misc.
LEXIS 229 (N.Y. Sup. Ct. May 24, 1995), http://www.epic.org/free_speech/stratton_v_prodigy_1995.txt. Reaffirmed by the judge on December 11,
1995: http://www.courttv.com/library/cyberlaw/prodigy3.html.
Tabor v. Willey, 2001 U.S. Dist. LEXIS 10445
(N.D. Iowa May 3, 2001) (procedural case involving the removal of a case from
federal to state court based on 47 USC 230).
Truelove v. Mensa (D. Md. Feb. 10, 1999)
(dismissing a complaint against L-Soft, a mail list operator, on defamation and
negligence based on 230(c)—but the plaintiffs had conceded that L-Soft was an
I.C.S.), http://legal.web.aol.com/decisions/dldefam/truelove.html.
Tzougrakis v. Cyvelliance, Inc., 2001 US
Dist. LEXIS 6680 (SDNY May 21, 2001) (no liability for websites republishing
allegedly defamatory press release; no mention of 230(c) even though it may
have applied).
Zeran v. America Online 958 F. Supp. 1124
(E.D. Va. 1997), http://www.bna.com/e-law/cases/zeran.html. Upheld by the 4th Circuit, 129
F.3d 327 (Nov. 12, 1997) (cert denied), http://laws.lp.findlaw.com/4th/971523P.html.
Also Relevant:
AXA Conseil IARD v. M. Christophe (France Tribunal
de Instance de Puteaux, Sept. 28, 1999) (dismissing a defamation claim against
an ISP for user-initiated defamation).
Godfrey v. Demon Internet Ltd. (High Court of
Justice, Queen’s Bench, March 26, 1999) (holding an ISP liable for a defamatory
Usenet posting when the ISP had received notice that the posting was defamatory
and the ISP did not remove the posting), http://www.courtservice.gov.uk/godfrey2.htm.
Landgericht Hamburg Urteil (Case 312 O 85/98,
Hamburg Court, Germany, May 12, 1998) (holding Michael Best, a web page
operator of emergency.de, for the defamatory content on pages he linked
to). For more information in German,
see http://www.online-recht.de/vorent.html?LGHamburg980512.
NIFTYServe case (Tokyo District Court May 26,
1997) (NIFTYServe liable for user-caused defamation when it failed to delete
the defamatory posting after knowledge).
D.
Trademarks (see
also Registry/Registrar Liability).
Ford Motor Co. v. Greatdomains.com, 2001 WL
1176319 (E.D. Mich. Sept. 25, 2001) (230(c) doesn’t preempt trademark claims).
Gucci America v. Hall & Assocs., 2001 WL
253255 (S.D.N.Y. Mar. 14, 2001) (rejecting 230 as a defense to contributory
trademark infringement), http://www.Loundy.com/CASES/Gucci_v_Hall.html.
E. Other Torts.
Georgia Code 16-12-100.2(d)(1) (holding
owners/operators of computer online service, Internet service or BBS liable for
user communications related to child porn if the operator intentionally or
willfully permits a subscriber to utilize the service to commit a violation of
the code, knowing that such person intended to utilize the service to violate
the code), http://www.state.ga.us/cgi-bin/pub/leg/legdoc?billname=1999/HB213&docpart=full.
Begraft v. eBay (N.J. Super. Ct. Oct. 1, 2003),
http://eric_goldman.tripod.com/caselaw/begraftvebay.pdf.
Carafano v. Metrosplash, Inc., 207 F. Supp.
2d 1055 (C.D. Cal. March 12, 2002) (47 USC 230 did not apply to matchmaking
website because they were deemed an information content provider by asking
multiple-choice questions and specific essay questions), reversed on appeal to
the Ninth Circuit, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir.
2003), http://caselaw.lp.findlaw.com/data2/circs/9th/0255658p.pdf.
Doe v. America Online, 1997 WL 374223 (Ct.
Court Fla., June 26, 1997), http://legal.web.aol.com/decisions/dldefam/doedec.html. On appeal, the appellate court upheld the
lower court’s decision that AOL could not be liable under 230(c) for a user’s
violation of certain Florida anti-pornography statutes, 718 So.2d 385 (Fla. Ct.
App. October 14, 1998), http://www.techlawjournal.com/courts/zeran/81014.htm. At the Florida Supreme Court, the court
upheld the decision 4-3, 783 So.2d 1010 (Fla. Supreme Ct. March 8, 2001) (US
Sup. Ct. cert. denied).
Doe v. Franco, 2000 US Dist Lexis 8645 (ND Ill. June 21, 2000) (applying 47 USC 230 to grant web host immunity from privacy rights claims and public nuisance claims), http://eric_goldman.tripod.com/caselaw/doevfranco.htm; upheld on appeal in an opinion that raises questions about the scope of 230 in the Seventh Circuit. Doe v. GTE (7th Cir. Oct. 21, 2003), http://www.ca7.uscourts.gov/op3.fwx?submit1=showop&caseno=02-4323.PDF.
Gentry v. eBay (Cal. Superior Cr. Oct. 11,
2000) (dismissing some claims against eBay for selling fake sports
memorabilia), http://www.krausekalfayan.com/ebruling.htm. The remaining claims against eBay were
dismissed January 18, 2001, http://www.krausekalfayan.com/ebrulin2.htm. Ruling affirmed on appeal, 99 Cal. App. 4th
816 (Cal. App. Ct. June 26, 2002), http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2002/d037661.html.
Green v. America Online, 2003 U.S. App. LEXIS
750 (3d Cir. Jan. 16, 2003) (AOL not liable under 47 USC 230 for transmission
of harmful code in chatroom).
Hart v. Internet Wire, 2001 US Dist LEXIS
7881 (S.D.N.Y. June 14, 2001) (press release publishers not liable under
Securities law for bogus press release).
Kathleen R. v. City of Livermore, 87 Cal.
App. 4th 684 (March 8, 2001).
Mainstream Loudoun v. Board of Trustees, 1998
U.S. Dist. LEXIS 4725 (E.D. Va. April 7, 1998), http://www.techlawjournal.com/courts/loudon/80407mem.htm
(finding that 47 USC 230(c)(2) does not prevent an action for equitable relief
against a library using filtering software that allegedly violates the First
Amendment).
Noah v. AOL Time Warner, 261 F. Supp. 2d 532 (E.D. Va. May 15, 2003) (230 shields AOL from claim of Title II of Civil Rights Act), http://eric_goldman.tripod.com/caselaw/noahvaol.htm.
New York v. Buffnet (settlement Feb. 2001) (an ISP pled guilty to criminal facilitation in the fourth degree for failing to remove newsgroups that carried child porn).
Ramey v. Darkside Productions, Inc. (D.C. D.C. May 17, 2004) (230 precludes liability for ads provided to it, even if the website categorizes ads and makes minor modifications).
Stoner v. eBay, 2000 WL 1705637 (Cal.
Superior Ct. Nov. 7, 2000) (based on 47 USC 230, dismissing a claim against
eBay for violating Cal. Business & Professions Code 17200 based on bootleg
recordings being sold via eBay), http://www.Loundy.com/CASES/Stoner_v_eBay.html.
J’accuse c. AFA (TGI Paris, October 30, 2001) (US web host ordered by French court to block access to hate speech).
LICRA v. Yahoo (County Court of Paris, Nov.
20, 2000) (ordering Yahoo.com to block all access by French-based IP addresses
to Nazi memorabilia, and to ask unidentifiable IP addresses to state what
country they are from), http://www.cdt.org/speech/international/001120yahoofrance.pdf. In Yahoo v. La Ligge Contre le Racisme et
L’Antisemitisme, 145 F.Supp.2d 1168
(N.D. Cal June 7, 2001), the district court extended jurisdiction over the
French plaintiffs using the effects test; http://www.cdt.org/jurisdiction/010607yahoo.pdf,
and subsequently stayed enforcement of the French order in http://www.cdt.org/jurisdiction/011107judgement.pd
Lacoste v. Multimania Co. (French Tribunal de Grand Instance de Nauterre, Dec. 8, 1999) (holding a web hosting company liable for hosting photos of models without consent).
Lefebure v. Lacambre (French Tribunal de
Grande Instance de Paris, June 9, 1998) (holding a web provider liable for
right of privacy violation because a user posted nude photos. However, since the photos were removed the
day the provider learned of their availability, the court only ordered an
injunction requiring the sysop to install a mechanism “to ensure the
impossibility of diffusion of the photos” from the service in the future), http://www.legalis.net/legalnet/judiciaire/decisions/ord_0698.htm
(in French). This case was upheld on
appeal February 10, 1999, http://altern.org/defense/jugement.html
(in French).
In re. Tele2 Norge (Oslo City Ct. June 5,
2002) (holding an IAP liable as an accomplice for illegal pornography
distributed on newsgroups it carried).
Union of Jewish Students v. Multimania
(Nanterre, France May 2000) (dismissing a claim against a web host for hosting
a Nazi-oriented site because the host didn’t know of the material on the site).
12. ELECTRONIC
COMMUNICATIONS PRIVACY ACT.
The statute: 18 USC §§ 2510-22, 2701-2711.
42 U.S.C. §227 (requiring “electronic
communication services” and “remote computing services” to make disclosures to
law enforcement agencies when they learn of facts related to certain illegal
behavior regarding child pornography).
Andersen Consulting LLP v. UOP (N.D. Ill.
January 23, 1998) (an internal email system is not a public system, even when
the benefits have been offered to system integrators, and therefore the system
is not subject to the ECPA provisions regarding disclosure of stored
communications), http://www.bna.com/e-law/cases/andersen.html.
Davis v. Gracey, 111 F.3d 1472 (10th Cir.
1997), (finding that a warrant permitting the seizure of “CD-ROMS, equipment,
order materials, paper, membership lists and other paraphernalia pertaining to
the distribution or display of pornographic material” did not give rise to an
ECPA claim when the agents seized a BBS with 150,000 private emails), http://www.law.emory.edu/10circuit/apr97/95-6245.wpd.html.
Guest v. Leis, 2001 WL 733419 (6th Cir.
July 2, 2001) (seizure of BBSs containing private emails did not exceed scope
of warrant; users forfeit right to expect privacy in their subscriber info when
disclosed to system operator).
In re Intuit Privacy Litigation, 2001 WL 370081
(C.D. Cal. April 10, 2001) (analyzing whether placing cookies violates the
ECPA; refusing to dismiss the 2707 claim).
Jessup-Morgan v. America Online, Inc. (E.D.
Mich. July 23, 1998) (rejected an ECPA violation when AOL disclosed member
information to a private individual), http://legal.web.aol.com/decisions/dlpriv/jessup.html.
Konop v. Hawaiian Airlines, 2001 US App.
Lexis 191 (9th Cir. Jan. 8, 2001) (accessing a password protected
website with someone else’s password constituted an interception for ECPA
purposes). After ruling was withdrawn,
revised opinion was issued in 2002 U.S. App. LEXIS 17586 (9th Cir.
Aug. 23, 2002).
Labwerks, Inc. v. Sladekutter, Ltd. (W.D. Pa.
February 17, 1999) (ECPA violation when a competitor accessed customer
information via unauthorized access to the other company’s computer network).
McVeigh v. Cohen, 983 F. Supp. 215 (D.C. D.C.
Jan. 28, 1998) (the Navy violated the ECPA by seeking disclosure of AOL records
without proper authorization), http://www.loundy.com/CASES/McVeigh_v_Cohen.html.
In re. Pharmatrak, Inc. Privacy Litigation (1st
Cir. May 9, 2003) (use of clear GIF, which led to collection of personal
information through referring URL, may violate ECPA), http://laws.lp.findlaw.com/getcase/1st/case/022138&exact=1. Case dismissed on remand for lack of
scienter. D. Mass, Nov. 6, 2003, http://pub.bna.com/ctlr/11672.pdf.
Sega Enterprises Ltd. v. MAPHIA, 948 F. Supp.
923 (N.D. Cal. 1996), http://www.bna.com/e-law/cases/sega2.html.
Steve Jackson Games, Inc. v. U.S. Secret
Service, 816 F. Supp. 432 (W.D. Texas 1993), http://www.law.seattleu.edu/chonm/Cases/jacksodc.htm;
affirmed 36 F.3d 457 (5th Cir. 1994), http://www-swiss.ai.mit.edu/6095/assorted-short-pieces/sjg-appeal.txt.
Thoefel v. Farey-Jones (9th Cir.
Aug. 28, 2003) (cause of action when bogus subpoena causes IAP to disclose
private emails).
United States v. Alibris (settlement November
1999) (settling for $250,000 a claim that Alibris had violated the ECPA by
reviewing emails sent via its network from Amazon to various booksellers). United States v. Councilman (1st
Cir. June 29, 2004) (no criminal liability under ECPA for intercepting emails
when captured by IAP employee while passing through system).
United States v. Hambrick (W.D. Va. July 7,
1999) (refusing to suppress the defendant’s name, address, social security
number, credit card number and proof of Internet connectivity, as supplied by
the defendant’s ISP (Mindspring), even though the subpoena served on Mindspring
was insufficient, since the defendant revealed this information to a
non-government actor who was not restricted from further disclosing this
information to others), http://www.bna.com/e-law/cases/hambrick.html. Note this case smells very fishy, as the
court did not address Mindspring’s announced privacy policies.
United States v. Moriarty (D. Mass. April 3,
1997) (finding that criminal prosecutions under both Section 2511 and 2701 of
the ECPA constituted double jeopardy), http://www.bna.com/e-law/cases/moriarty.html.
13. EMAIL
PRIVACY.
Andersen Consulting LLP v. UOP and Bickel
& Brewer, 991 F. Supp. 1041 (N.D. Ill. January 26, 1998) (an internal email
system is not a public system, even when the benefits have been offered to
system integrators, and therefore the system is not subject to the ECPA
provisions regarding disclosure of stored communications), http://www.bna.com/e-law/cases/andersen.html.
Bohach v. City of Reno, 932 F. Supp. 1232 (D.
Nev. 1996).
Bourke v. Nissan Motor Corp. (Cal. Ct. App.
July 26, 1993), http://www.law.seattleu.edu/chonm/Cases/bourke.html.
Flanagan v. Epson America, Inc. (Cal. Super.
Ct. Jan. 4, 1991).
Florida v. Clearwater (Fla. Sup. Ct. Sept.
11, 2003) (not all public employee emails are public records).
Fraser v. Nationwide Mutual Insurance Co. (3rd
Cir. Dec. 10, 2003).
Freeman v. America Online (D. Conn. Feb.
2004).
Haynes v. Kline (D. Kansas Dec. 23, 2003).
McLaren v. Microsoft (Texas Ct. App. May 28,
1999) (upholding Microsoft’s accessing of personal emails during a corporate
investigation).
Putnam Pit, Inc. v. City of Cookeville (M.D.
Tenn. September 21, 1998) (rejecting a newspaper’s request to obtain access to
city employees’ Internet use records), http://www.putnampit.com/higgins.html.
Restuccia v. Burk Technology, Inc. (Middlesex
Superior Ct. of Massachusetts, 1996).
Shoars v. Epson America, Inc. (Cal. Ct. App.
April 14, 1994), http://www.law.seattleu.edu/chonm/Cases/shoars.html.
Smyth v.
Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. January 23, 1996), http://www.Loundy.com/CASES/Smyth_v_Pillsbury.html.
State ex rel. Wilson-Simmons v. Lake County
Sheriff's Dept., 82 Ohio St. 3d 37 (1998) (finding that emails—that were
allegedly racist—sent on the internal network to only a few recipients did not
constitute a “public record”), http://www.lweekly.com/ohsc/970797.htm.
Theofel v. Farey-Jones (9th Cir.
Aug. 28, 2003) (bogus subpoena does not protect against Stored Communications
Act claim).
14. ENCRYPTION.
Bernstein v. United States, 922 F. Supp. 1426
(N.D. Cal. 1996), http://www.bna.com/e-law/cases/bernstein.html Further ruling, 945 F. Supp. 1279 (N.D.
Cal. 1996), http://www.bna.com/e-law/cases/bernstein2.html. Further ruling, 974 F. Supp. 1288 (N.D.
Cal. 1997), http://www.epic.org/misc/gulc/cases/bernstein_1997.html. On appeal (9th Cir. 1999), http://jya.com/bernstein-9th.htm.
DVD Copy Control Ass’n v. Bunner (Cal. App. Ct.
Nov. 1, 2001) (no injunction under trade secret law for disseminating trade
secrets in DVD encryption technology).
CA Supreme Court held that a trade secret injunction does not violate
the First Amendment. 31 Cal. 4th
864 (Aug. 25, 2003). On remand, the
Appeals Court once again concluded that an injunction was not warranted because
of the widespread distribution of DeCSS prior to Bunner’s dissemination. Cal. App. Ct. Feb. 27, 2004.
Karn v. United States, 925 F. Supp. 1 (D.C.
D.C. 1996), http://www.Loundy.com/CASES/Karn_v_US.html.
Junger v. Daley, 9 F. Supp. 2d 708 (N.D. Ohio
July 2, 1998), http://samsara.law.cwru.edu/comp_law/jvd/pdj11.html. On appeal, reversing the lower court and
holding that source code may be protected by the First Amendment, 2000 Fed.
App. 0117P (6th Cir. April 4, 2000), http://samsara.law.cwru.edu/victory.txt.
Universal City Studios v. Reimerdes, 111 F.
Supp. 2d 294 (S.D.N.Y. Aug 17, 2000) (rejecting the argument that
encryption-evading software is protected speech), http://www.2600.com/dvd/docs/2000/0817-decision.pdf
U.S. v. Elcom (N.D. Cal. May 8, 2002)
(denying motion to dismiss indictment under 1201(b)), http://www.planetpdf.com/mainpage.asp?webpageid=2049,
15. FRANCHISE.
Federal Trade Commission v. Inetintl.com,
Inc. (C.D. Cal. March 29, 1999) (consent order regarding bogus franchises, with
over $1.75 million in redress), http://www.ftc.gov/os/1999/9905/inetsjud.htm.
Federal Trade Commission v. iMall (Stipulated
Final Judgment May 1999) (ordering defendants to stay out of certain Internet
businesses, to flush their database of user information, and to pay $4 million
in redress), http://www.ftc.gov/os/1999/9904/imallincstipfinal.htm.
Drug Emporium case (AAA ruling September
2000) (ruling that Drug Emporium’s website violated the exclusivity provisions
in its franchise agreements).
Jerome-Duncan, Inc. v. Auto-by-Tel, LLC, 989
F. Supp. 838 (E.D. Mich. December 24, 1997).
Jerome-Duncan, Inc. v. Auto-by-Tel, LLC, 176
F.3d 904 (6th Cir. May 21, 1999) (finding that an exclusive
agreement to refer car sales leads gathered from a website to a dealer was not
a franchise agreement even though the referrer promulgated standards for
performance).
16. GAMBLING.
18 U.S.C. 1084, http://www.law.cornell.edu/uscode/18/1084.shtml.
Louisiana R.S. 14:90.3 (criminalizing
gambling by computer and operating a gambling site by computer; provides a safe
harbor for certain service providers).
In re Mastercard International Inc. Internet
Gambling Litigation (5th Cir. Nov. 20, 2002) (dismissing a lawsuit
against Mastercard and Visa under RICO for supporting Internet gambling
websites), http://caselaw.lp.findlaw.com/data2/circs/5th/0130389p.pdf.
Missouri v. Coeur d’Alene Tribe, 1997 U.S.
Dist. LEXIS 14980 (W.D. Mo. September 29, 1997) (holding that the state’s
consumer protection laws would be heard in federal court, not state court,
because adjudication will require interpretation of whether the state law claim
is preempted by the federal Indian Gaming Regulatory Act). Interlocutory appeal denied, 1997 U.S. Dist.
21776 (November 19, 1997). The Eighth
Circuit ruling is at 164 F.3d
1102, January 6, 1999. A rehearing en
banc and certiorari by the Supreme Court were both denied.
Missouri v. Interactive Gaming &
Communications Corp. (Cir. Ct. Mo. May 22, 1997), http://www.bna.com/e-law/cases/intergame.html.
In the Matter of PayPal, Inc. (settled Aug.
16, 2002) (PayPal has to cease processing payments for online gambling
merchants on behalf of NY residents, and must notify law authorities when it
determines that a member’s website violates the law; $200k settlement).
Missouri v. UniStar Entertainment (Cir. Ct.
Mo. January 29, 1998) (the State obtained an injunction against online gambling
offered by an Idaho Indian tribe, including advertising that the site was legal
in Missouri; the state went through significant efforts to bypass the tribe’s
authentication systems).
State v. Youbet.com (settled January 2000)
(LA county enforcement against an off-track betting site predicated on false
advertising; case settled with Youbet paying $1.3 million and moving out of
CA).
Olivier v. Ministry of Safety and Security
(South Africa 1997) (refusing the reclamation of computer equipment used for
Internet gambling).
Florida Attorney General Advisory Legal
Opinion AGO 95-70 (October 18, 1995) (indicating that it is illegal for a
Florida resident to gamble over the Internet), http://legal1.firn.edu/ago.nsf/aaee37715760bbce852563cc001bacf7/5bfc8db232c406828525626900683218?OpenDocument.
17. HARASSMENT/DISCRIMINATION.
ApolloMedia Corp. v. Reno, 19 F. Supp. 2d
1081 (N.D. Cal. Sept. 22, 1998) (concluding that the legislative restriction on
various activities done with the intent to annoy applied only to obscene
activities, not indecent activities), http://annoy.com/cda/ruling.html.
Daniels v. Worldcom Corp., 1998 U.S. Dist.
LEXIS 2335 (N.D. Tex. Feb. 24, 1998) (dismissing various
discrimination/harassment complaints brought on the basis of 4 emails sent by a
non-supervisor; in particular, noting that the organization was not negligent
when the organization organized meetings in response to the emails, reprimanded
the sender, and had an email use policy).
Internet America Inc. v. Massey (Tex. Dallas
County Dist. Ct. Oct. 14, 1996), http://www.jmls.edu/cyber/cases/massey1.htm.
Mourad v. Bojekian (3d Cir. Dec. 22, 1999)
(posting judges’ names and addresses on USNET was not a threat).
Owens v. Morgan Stanley & Co. (S.D.N.Y.
settled February 10, 1998) (settling a racial discrimination case based on the
circulation of racist jokes on the internal email network). An earlier ruling was made at 1997 U.S.
Dist. LEXIS 20493 (S.D.N.Y. Dec. 24, 1997).
People v. Kochanowski (NY App. Term Oct.
2000) (website listing a phone number constitutes criminal harassment).
People v. Munn (N.Y. Crim. Ct. February 9,
1999) (newsgroup article urging others to kill a specific police officer
constituted harassment).
Planned Parenthood v. American Coalition of
Life Activists, 244 F.3d 1007 (9th
Cir. March 28, 2001) (reversing a $107 million jury award based on
anti-abortionists publishing on a website personal informationabout doctors who
perform abortions).
State v. Vijay (Cal. Superior Ct. jury
ruling, October 2001) (man guilty of using public library Internet terminal to
cyberstalk).
U.S. v. Baker, 890 F. Supp. 1375 (E.D. Mich.
1995), http://ic.net/~sberaha/baker.html,
affirmed, U.S. v. Alkhabaz, 1997 FED App. 0036P (6th Cir. 1997), http://www.law.emory.edu/6circuit/jan97/97a0036p.06.html.
U.S. v. Kammersell, 7 F. Supp. 2d 1196 (D.
Utah June 3, 1998) (electronically transmitted bomb threat from one Utah
resident to another, routed through Virginia, was a transmission in interstate
commerce), http://www.Loundy.com/CASES/US_v_Kammersell.html.
U.S. v. Machado (S.D. Cal. February 1998) (UC
Irvine student sends hate mail to other students).
18. “HOT
NEWS”/DATABASE PROTECTION.
Pollstar v. Gigmania (E.D. Cal. Oct. 17,
2000) (hot news claim survived 12b6 motion).
Ticketmaster, Inc. v. Tickets.com (C.D. Cal.
August 10, 2000) (ticket pricing/availability information may be hot news, but
probably no misappropriation here because Ticketmaster still has monopoly on
sale of the related tickets), http://pub.bna.com/ptcj/ticketmaster.htm.
Also relevant:
Fred Wehrenberg Circuit of Theatres v.
Moviefone, 73 F. Supp. 2d 1044 (E.D. Mo. Nov. 1, 1999) (finding no hot news
violation in the case of movie times because the movie theaters will continue
to produce movie schedules irrespective of third party publication).
Lowry’s Reports v. Legg Mason (D. Md. July 10, 2003).
Morris Communications Corp. v. PGA Tour (M.D.
Fla. Oct. 23, 2000) (refusing to mandate access to the PGA’s system for
gathering real time scores). In a
subsequent ruling from Dec. 13, 2002, the court said that golf scores are not
yet “in the public domain” while they are still under the PGA’s embargo.
National Basketball Association v. Motorola,
105 F. 3d. 841 (2d Cir. 1997), http://www.tourolaw.edu/2ndcircuit/January97/96-7975.html.
British Horseracing Board Ltd. v. William Hill
Org. Ltd. (High Court of Justice, Chancery Div. Feb. 9, 2001).
Danish Newspaper Publishers’ Association v.
Newsbooster (July 5, 2002 ) (restricting deep linking to newspapers’ sites).
Royal Dutch Telecom v. Xbase Software (Hague Court
Jan. 14, 2000) (restricting Xbase’s use of the telecom’s website directory of
subscribers under the EU Database Directive).
19. INACCURATE/HARMFUL
INFORMATION.
Daniel v. Dow Jones & Co., 520 N.Y.S. 2d
334 (N.Y. Civ. Ct. 1987), http://snyside.sunnyside.com/cpsr/free_speech/daniel_v_dowjones.txt.
James v. Meow Media (D. Ky. April 6, 2000)
(no liability based on website content for contributing to a shooting death).
Remsburg v. Docusearch (N.H. Sup. Ct. Feb.
18, 2003) (Internet information broker can be liable for shooting death caused
by access to its information), http://www.courts.state.nh.us/supreme/opinions/2003/remsb017.htm.
French Union of Jewish Students v. Yahoo
(France Nov. 20, 2000) (ordering Yahoo.com to remove Nazi memorabilia from its
auction pages available in France).
Also relevant: Rice v. Paladin Enterprises,
128 F.3d 233 (4th Cir. November 10, 1997), http://caselaw.findlaw.com/data2/circs/4th/962412p.html.
20. JURISDICTION,
VENUE AND CHOICE OF LAW.
[NOTE—THIS SECTION IS PARTICULARLY
INCOMPLETE, AS THE NUMBER OF CASES IN THIS AREA CONTINUE TO EXPLODE AND MAKE IT
IMPOSSIBLE TO KEEP CURRENT WITH EVERY CASE].
A. Cases Involving General
Jurisdiction.
3D Systems, Inc. v. Aarotech Laboratories,
Inc. (Cr. App. Fed. Cir. Nov. 12, 1998) (rejecting general jurisdiction on the
basis of a website and other limited contacts), http://www.finnegan.com/finnegan/finnegan/cases/97-1514.htm.
Atlantech Distribution Inc. v. Credit General
Insurance Co. (D. Md. November 10, 1998) (passive website does not create
general jurisdiction).
Bird v. Parsons (6th Cir. May 21,
2002) (no general jurisdiction over domain name registrar based on general
availability of website), http://laws.lp.findlaw.com/6th/02a0177p.html.
Gator.com v. LL Bean, Inc. (9th
Cir. Sept. 2, 2003) (LL Bean subject to general jurisdiction in CA).
Gifford v. Bruce Strumpf, Inc., 1997 U.S.
Dist. LEXIS 11876 (D. Maine August 7, 1997) (no general jurisdiction conveyed
based on advertising website).
Gorman v. Ameritrade Holding Corp. (D.C. Cir.
June 14, 2002) (Ameritrade can be susceptible to general jurisdiction in DC
based on its online brokerage services; “Cyberspace however is not some
mystical incantation capable of warding off the jurisdiction of courts built
from bricks and mortar”).
Graphic Controls Corp. v. Utah Medical
Products, Inc., 1997 U.S. Dist. LEXIS 7448 (W.D. N.Y. May 21, 1997) (website
insufficient to confer general jurisdiction).
Green v. William Mason & Co., 1998 U.S.
Dist. LEXIS 3315 (D. N.J. March 5, 1998) (website insufficient to confer
general jurisdiction).
Haelan Products Inc. v. Beso Biological, 1997
U.S. Dist. LEXIS 10565 (E.D. La. July 11, 1997) (finding a company subject to
general jurisdiction based on a nationwide advertising campaign, the
availability of a toll free 800 number and its website, but the website alone
would have been insufficient; this case is wrongly reasoned and would have been
better analyzed as a specific jurisdiction case).
IDS Life Insurance v. SunAmerica, 958 F.
Supp. 1258 (N.D. Ill. 1997)
McDonough v. Fallon McElligott, 1996 U.S.
Dist. LEXIS 15139 (S.D. Cal. August 5, 1996).
Mieczkowski v. Masco Corp., 1998 U.S. Dist.
LEXIS 3502 (E.D. Tex. March 18, 1998) (general jurisdiction found based on
combination of defendant doing substantial business in Texas and a website that
provides detailed product information, printable online order form, screen
where users could check on the status of their order, and the ability to email
a sales representative).
Robbins v. Yutopian Enterprises, Inc. (D.
Md.) (rejecting Zippo in determining no general jurisdiction despite an active
website; but case is transferred to defendant’s home court).
SF Hotel Company LP v. Energy Investments
Inc., 985 F. Supp. 1032 (D. Kan. Nov. 19, 1997) (declining to exercise either
specific or general jurisdiction in a trademark dispute based solely on a
website that it deemed passive), http://www.bna.com/e-law/cases/sfhotel.html.
Smith v. Hobby Lobby Stores, 968 F. Supp.
1356 (W.D. Ark. 1997) (Hong Kong company not subject to general jurisdiction in
Arkansas because it advertised its website on advertising collateral).
Soma Medical Int’l v. Standard Chartered Bank
(10th Cir. Dec. 1, 1999) (no general jurisdiction based on passive
website).
Telephone Audio Productions, Inc. v. Smith,
1998 U.S. Dist. Lexis 4101 (N.D. Tex. March 26, 1998) (website alone does not
confer general jurisdiction).
Weber v. Jolly Hotels, 977 F. Supp. 327 (D.
N.J. 1997) (no general jurisdiction over a company based solely on a “passive”
advertising website), http://www.bna.com/e-law/cases/weber.html.
B. Cases Involving Specific
Jurisdiction.
(i) Copyright.
3D0 Co. v. Poptop Software (N.D. Cal. Dec. 8,
1998) (finding jurisdiction where the allegedly infringing games could be
downloaded, using the effects test).
ALS Scan, Inc. v. Digital Service Consultants,
Inc., 2002 US App LEXIS 11745 (4th Cir. June 14, 2002), http://pacer.ca4.uscourts.gov/cgi-bin/getopn.pl?OPINION=011812.P.
CNN v. GoSMS.com, 2000 US Dist. Lexis 16156
(SDNY October 30, 2000) (asserting jurisdiction over a service that was
scraping data and retransmitting it by phone).
Coastal Video Communications Corp. v. The
Staywell Corp, 1999 WL 592025 (E.D. Va., Aug. 2, 1999).
Expert Pages v. Buckalew, 1997 U.S. Dist. LEXIS 12205 (N.D. Cal. August 8,
1997).
MGM Studios v. Grokster, Ltd., 2003 U.S.
Dist. LEXIS 865 (C.D. Cal. Jan. 9, 2003).
Mink v. AAAA Development LLC (5th Cir. Sept. 17, 1999) (finding a
website that has a printable order form, email access and a toll free number
was passive and thus dismissing jurisdiction), http://legal.web.aol.com/decisions/dlother/mink.html.
Winfield Collection v. McCauley (E.D. Mich.
July 24, 2000) (declining personal jurisdiction based on a website the court
felt wasn’t interactive), http://pub.bna.com/ptcj/9975875.htm.
(ii) Defamation.
Barrett v. Catacombs Press, 44 F.
Supp. 2d 717 (E.D. Pa. 1999) (passive website
did not confer jurisdiction)..
Batzel v. Cremers, 2001 US Dist.
LEXIS 8929 (C.D. Cal. June 5, 2001).
Blakey v. Continental Airlines,
Inc., 730 A.2d 854 (N.J. Super. A.D. 1999).
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C.
April 22, 1998) (Drudge’s website was deemed interactive because it allows
browsers to email Drudge and sign up for his mail list, and because it
solicited contributions; the court also notes that the Drudge Report was
available to residents 24 hours a day; these in combination with some other
limited contacts supported jurisdiction in plaintiff’s home court), http://www.ljx.com/LJXfiles/drudge/drudgedecision.html.
California Software Inc. v. Reliability Research,
Inc., 631 F. Supp. 1356 (C.D. Cal. 1986).
Edias Software International LLC v. Basis
International Ltd., 947 F. Supp. 413 (D. Az. Nov. 19, 1996), http://www.bna.com/e-law/cases/edias.html.
English Sports Betting, Inc. v. Tostigan
(E.D. Pa. March 15, 2002) (article posted by Virginia resident allegedly
defaming Jamaica resident doesn’t give basis to sue in Pennsylvania).
Griffis v. Luban (Minn. Sup. Ct. July 11,
2002) (USENET postings allegedly defaming an Alabama resident did not give rise
to jurisdiction under the Effects test), http://www.lawlibrary.state.mn.us/archive/supct/0207/c301296.htm.
Hammer v. Trendl, 2003 U.S. Dist. LEXIS 623
(E.D.N.Y. Jan. 18, 2003) (posting allegedly defamatory review on Amazon.com
does not give rise to jurisdiction in plaintiff’s home court).
Hy Cite Corp. v. badbusinessbureau.com, 2004
WL 42641 (W.D. Wisc. Jan. 8, 2004) (no jurisdiction over defamatory posting).
Machulsky v. Hall (D.N.J. July 9, 2002)
(dismissing jurisdiction in plaintiff’s home court based on allegedly
defamatory feedback comments left on eBay), http://lawlibrary.rutgers.edu/fed/html/ca01-4444-1.html.
Mallinckrodt Medical, Inc. v. Sonus
Pharmaceuticals, Inc., 1998 U.S. Dist. LEXIS 136 (D. D.C. January 5, 1998)
(allegedly defamatory message posted on AOL message board was insufficient by
itself to meet the statutory definition of “transacting business” in a state
where it presumably was read).
Marczeski v. Price, 1999 WL 66105
(D. Conn. 1999).
Media3 Technologies v. Mail Abuse Prevention
System (MAPS) (D. Mass. Jan 2. 2001) (finding jurisdiction over MAPS), http://pub.bna.com/eclr/00cv12524.htm.
Naxon Resources (USA) Ltd. v. Southam, Inc,
1996 U.S. Dist. LEXIS 21759 (C.D. Cal. 1996) (applying Calder v. Jones, a
Canadian newspaper publisher was not subject to general or specific
jurisdiction in California for an allegedly defamatory article, even though the
article was available on the Internet and in Lexis and Westlaw).
Resnick v. Manfredy, 52 F.Supp.2d
462 (E.D. Pa. 1999).
Revell v. Lidov (5th
Cir. Dec. 31, 2002) (no jurisdiction based on defamatory article posted to
interactive message board), http://caselaw.findlaw.com/data2/circs/5th/0110521p.pdf.
Telco Communications Group, Inc. v. An Apple
a Day, Inc., 977 F. Supp. 404 (E.D. Va. September 24, 1997) (releasing
allegedly defamatory press releases to Business Wire, which apparently were
distributed on the Internet, sufficient to support jurisdiction where the
plaintiff was located), http://www.bna.com/e-law/cases/telco.html.
Wagner v. Miskin, 2003 N.D. 69 (N.D. Sup. Ct.
May 6, 2003) (student’s defamatory posting about North Dakota professor
sufficiently targeted North Dakota to support jurisdiction), http://www.court.state.nd.us/COURT/OPINIONS/20020200.htm.
Young v. New Haven Advocate, 2002 WL 31780988
(4th Cir. Dec. 13, 2002) (no effects jurisdiction based on posting
newspaper article), http://laws.lp.findlaw.com/getcase/4th/case/012340Pv2&exact=1.
Gutnick v. Dow Jones & Co., [2001] VSC
305 (Victoria Supreme Court Aug. 28, 2001), http://www.austlii.edu.au/vic/VSC/2001/305.html.
MacQuarie Bank Ltd. v. Berg (New South Wales
Supreme Court, June 2, 1999) (refusing to enjoin the publication of defamatory material
on the Internet from NSW since the defendant was not present in NSW), http://austlii.edu.au/au/cases/nsw/supreme_ct/1999/526.html.
In re. Moshe D. (Italy Ct. Cassation 2000)
(issuing an injunction over defamatory content on servers outside of Italty).
(iii) Gambling.
Minnesota v. Granite Gate Resorts, Inc., 1996
WL 767431 (Minn. Dist. Ct. December 11, 1996), http://www.bna.com/e-law/cases/granite.html. Appeals Court ruling: 568 N.W.2d 715 (Minn.
Ct. App. September 5, 1997), http://www.courts.state.mn.us/library/archive/ctappub/9709/c69789.htm. Affirmed without an opinion, 576 N.W.2d 747
(Minn. Sup. Ct. May 14, 1998).
People v. World Interactive Gaming Corp., 185
Misc. 2d 852 (Sup. Ct. N.Y.Co. Jul. 22, 1999).
(iv) Miscellaneous.
Blackburn v. Walker Oriental Rug Galleries, 999
F. Supp. 636 (E.D. Pa. April 7, 1998) (ability to send email from the website
did not make the website interactive; therefore, the case was transferred to
the defendant’s home court), http://www.bna.com/e-law/cases/blackburn.html.
Cody v. Ward, 954 F. Supp. 43 (D. Conn.
February 4, 1997), http://www.bna.com/e-law/cases/cody.html.
Cybertech Communications Corp. v. Quad
Intern., Inc., 691 N.Y.S.2d 460 (N.Y.A.D. 1 Dept. 1999).
Decker v. Circus Circus Hotel (D. N.J. May 12, 1999) (dismissing jurisdiction
based on Internet order for a hotel room given forum selection language on the
site).
Efford v. Jockey Club, 2002 PA Super 100 (PA.
Superior Ct. April 5, 2002) (applying Zippo to a middle-tier horse registry
site, rejecting personal jurisdiction).
GTE New Media Services Inc. v. Ameritech
Corporation, 1998 U.S. Dist. LEXIS 15413 (D.D.C., Sept. 28, 1998) (finding
jurisdiction in case involving conspiracy to monopolize Internet yellow pages
market). See subsequent ruling at 44 F.
Supp. 2d 313 (D.D.C. 1999).
Hall v. LaRonde, 66 Cal. Rptr. 2d 399 (Cal. Ct. App. August 7, 1997) http://www.ljx.com/LJXfiles/laronde/laroncourt.html.
Hornell Brewing Co. v. Rosebud Sioux Tribal
Court, 133 F. 3d 1087 (8th Cir. Jan. 14, 1998).
Intercon, Inc. v. Bell Atlantic Internet
Solutions, Inc., 205 F.3d. 1244 (10th Cir. 2000)
http://caselaw.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=986428.
Northwest Healthcare Alliance Inc. v.
Healthgrades.com, Inc., 2002 WL
31246123 (9th Cir. Oct. 7, 2002) (applying the Effects test
to a consumer protection action involving the grading of plaintiff’s services
by the website).
Metcalf v. Lawson (N.H. Supreme Ct. June 25,
2002) (rejecting jurisdiction in eBay purchaser’s home court because eBay
seller didn’t know where buyer would be located).
Plus System v. New England Network, 804 F.
Supp. 111 (D. Colo. 1992)
Pavlovich v. Superior Court of
Santa Clara County, 109 Cal.Rptr.2d 909 (Cal.App. 2001), http://eon.law.harvard.edu/stjohns/Pavlovich.html.
Precision Laboratory Plastics,
Inc. v. Micro Test, Inc., 981 P2d 454 (Wash. App. 1999).
Remick v. Manfrendy (E.D. Pa. April 22, 1999)
(dismissed based on passive advertising-style website).
Resuscitation Technologies, Inc. v.
Continental Health Care Corp., 1997 U.S. Dist. LEXIS 3523 (S.D. Ind. March 24,
1997), http://www.bna.com/e-law/cases/resus.html.
Richard Howard, Inc. v. Hogg, 1996 Ohio App. LEXIS
5533 (Ohio Ct. App. November 19, 1996).
Thompson v. Handa-Lopez, Inc., 998 F. Supp.
738 (N.D. Tex. March 25, 1998) (finding that jurisdiction over a gambling site
attached in plaintiff’s home court when the plaintiff alleged that the site
failed to pay the amount won by plaintiff at the casino; in so doing, the court
declined to give effect to an express but “inconspicuous” clause in the user
agreement requiring arbitration in the defendant’s home court).
Tamburo v. eBay, 2002 U.S. Dist. LEXIS 22686
(N.D. Ill. Nov. 22, 2002) (dismissing claim on awry eBay transaction for lack
of jurisdiction).
Verizon Online Services v. Ralsky, 203 F.
Supp. 601 (E.D. Va. June 7, 2002) (sending spam and trespassing on a Virginia based
server creates jurisdiction in Virginia).
Vitullo v. Velocity Powerboats Inc., 1998
U.S. Dist. LEXIS 7120 (N.D. Ill. April 24, 1998).
Yahoo v. La Ligge Contre le Racisme et
L’Antisemitisme, 145 F.Supp.2d 1168
(N.D. Cal June 7, 2001) (jurisdiction over French plaintiffs using the effects
test), http://www.cdt.org/jurisdiction/010607yahoo.pdf.
(v) Patent.
3D Systems, Inc. v. Aarotech Laboratories,
Inc. (Cr. App. Fed. Cir. Nov. 12, 1998) (in a patent infringement suit, holding
that a website, combined with other sales activity, was sufficient to establish
jurisdiction; but without such other activity, the website alone was
insufficient), http://www.finnegan.com/finnegan/finnegan/cases/97-1514.htm.
Agar Corp. v. Multi-Fluid, Inc., 1997 U.S.
Dist. LEXIS 17121 (S.D. Tex. June 25, 1997), http://www.bna.com/e-law/cases/agar.html.
CoolSavings.Com, Inc. v. IQ.Commerce Corp.,
1999 WL 414371 (N.D. Ill., June 10, 1999).
E-Data Corp. v. Micropatent Corp., 989 F. Supp. 173 (D. Conn. September 29,
1997) (rejecting Inset, the court refused to extend jurisdiction over a patent
claim based on the availability of the website since there was no showing that
a Connecticut user had accessed the website in a way that might have infringed
the patent; mere allegation that a Connecticut user must have visited the site
did not meet plaintiff’s evidentiary burden).
Edberg v. Neogen Corporation, 1998 WL 458249
(D. Conn., August 4, 1998) (passive website did not give rise to jurisdiction
in patent infringement suit).
Esab Group, Inc. v. Centricut LLC
(D. S.C. Jan. 1999) (dismissing a patent infringement claim based on a passive
website, even though a few orders had been shipped to the forum), http://law.sc.edu/dsc/is0291.htm.
Kollmorgen Corp. v/ Yaskawa
Electric Corp. (W.D. Va. Dec. 13, 1999) (holding that the Japanese parent could
be subject to jurisdiction based on the US subsidiary’s activities because the
parent acted in consort with the subsidiary).
Moenlycke Health Care AB v. Dumex
Medical Surgical Products, Ltd., 1999 WL 695579 (E.D. Pa., Sept. 7, 1999).
Stomp, Inc. v. Neato, LLC, 61
F.Supp.2d 1974 (C.D. Cal. 1999).
(vi) Personal
Injury.
Bedrego v. Triple E-Canada, Ltd.,
1999 WL 672217 (Mont. Supreme Ct., Aug. 30, 1999).
Broussard v. Deauville Hotel
Resorts, Inc., 1999 WL 621527 (E.D. La., Aug. 13, 1999).
Decker v. Circus Circus Hotel, 49
F.Supp.2d 743 (D. N.J. 1999).
Hurley v. Cancun Playa Oasis
International Hotels, Inc., 1999 U.S. Dist. LEXIS 13716 (E.D. Pa., Aug. 31,
1999).
Jones v. Beech Aircraft
Corporation, 995 S.W.2d 767 (Tex. App. 1999).
(vii) Trademark.
Advanced Software Inc. v. Datapharm Inc.
(C.D. Cal. Nov. 3, 1998) (no personal jurisdiction when there is no showing
that residents of the forum state actually took advantage of a website’s
interactivity).
American Honda Motor Co. v. Rinkied Inc.
(C.D. Cal. March 3, 1999).
American Network, Inc. v. Access
America/Connect Atlanta, Inc., 975 F. Supp. 494 (S.D.N.Y. August 14, 1997)
(finding a Georgia ISP subject to personal jurisdiction in New York for
trademark infringement because, among other reasons, the Georgia ISP had 6 New
York subscribers (out of 7500) that the ISP had mailed disks to), http://www.bna.com/e-law/cases/amnet.html.
Archdiocese of St. Loius v. Internet
Entertainment Group, 1999 U.S. Dist. LEXIS 1508 (E.D. Missouri, February 12,
1999) (a totally result-driven decision, finding jurisdiction despite what was
a largely passive website).
Bancroft & Masters v. Augusta National,
Inc. (N.D. Cal. Dec. 24, 1998) (no personal jurisdiction).
Bensusan Restaurant Corp. v. King, 937 F.
Supp. 295 (S.D.N.Y. September 9, 1996), http://www.bna.com/e-law/cases/bluenote.html. On appeal, 126 F.3d 25 (2d Cir. September
10, 1997), http://www.ljx.com/internet/bluenote.html.
Bird v. Parsons (6th Cir. May 21,
2002) (domain name registrar has specific jurisdiction where it has customers),
http://laws.lp.findlaw.com/6th/02a0177p.html.
Bunn-O-Matic Corp. v. Bunn Coffee Service
(C.D. Ill. April 1, 1998) (in contrast to most recent decisions, passive
website creates jurisdiction in trademark plaintiff’s home court).
Cello Holdings v. Cello Music & Film
Systems, 89 F. Supp. 2d 464 (S.D.N.Y. March 29, 2001) (finding jurisdiction in
trademark case).
CFOs 2 Go, Inc. v. CFO 2 Go, Inc., 1998 U.S.
Dist. Lexis 8886 (N.D. Cal. June 5, 1998) (following Cybersell, the court
denied personal jurisdiction in Lanham Act case when the website only offered
an email address and there was a single instance of sending promotional
materials into the jurisdiction).
Conseco v. Hickerson, 1998 Ind. App. Lexis
1328 (Ind. Ct. App. August 14, 1998) (no personal jurisdiction), http://www.ai.org/judiciary/opinions/archive/081406.wig.html.
CyberSell, Inc. v. CyberSell, Inc., 130 F. 3d
414 (9th Cir. Dec. 2, 1997) (Florida website allegedly committing trademark
infringement not subject to jurisdiction in Arizona when it was effectively a
passive website and there was no purposeful availment of Arizona laws), http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9617087.
Desktop Technologies, Inc. v.
Colorworks Reproduction & Design, Inc., 1999 WL 98572 (E.D. Pa., February
25, 1999) (no jurisdiction over passive website in domain name litigation).
Digital Equipment Corp. v. Altavista
Technology, Inc., 960 F. Supp. 456 (D. Mass. March 12, 1997), http://www.bna.com/e-law/cases/alta.html. This case settled; in late July 1998 it was
reported that Compaq (which had bought DEC) paid $3.35 million to buy the
domain name.
Euromarket Designs, Inc. v. Crate &
Barrel (N.D. Ill. May 16, 2000) (finding jurisdiction in domain name case over
Irish company operating e-commerce site).
Fix My PC v. N.F.N. Associates,
Inc., 48 F. Supp. 2d 640, (N.D. Tex., March 26, 1999).
Fleetboston Financial Corp. v.
Fleetbostonfinancial.com (D. Mass. March 27, 2001) (in an uncontested ACPA in
rem action, the court still refused to extend jurisdiction over the case).
Gary Scott Int'l, Inc. v. Frank Baroudi, 1997
U.S. Dist. LEXIS 18234 (D. Mass. November 13, 1997).
Hasbro, Inc. v. Clue Computing Inc., 1997
U.S. Dist. LEXIS 18857 (D. Mass. Sept. 30, 1997), (maintaining a Colorado-based
website accessible by Massachusetts residents was sufficient to constitute
“soliciting business” in Massachusetts, giving rise to jurisdiction), http://www.bna.com/e-law/cases/hasbro.html.
Hearst Corp. v. Goldberger, 1997 U.S. Dist.
LEXIS 2065 (S.D.N.Y. February 26, 1997), http://www.jmls.edu/cyber/cases/esqwire1.html. Settled; see http://www.ljx.com/LJXfiles/domainsuits/esqwire.html.
Heroes, Inc. v. Heroes Foundation, 958 F.
Supp. 1 (D.D.C. December 19, 1996), http://www.bna.com/e-law/cases/heroes.html.
Inset Systems, Inc. v. Instructional Set,
Inc., 937 F. Supp. 16 (D. Conn. April 17, 1996), http://www.bna.com/e-law/cases/inset.html.
International Star Registry of
Illinois v. Bowman-Haight Ventures, Inc., 1999 WL 300285 (N.D. Ill., May 4,
1999) (a few e-commerce sales support jurisdiction).
K.C.P.L. Inc. v. Nash (S.D.N.Y., Nov. 24,
1998) (dismissing trademark case based on lack of jurisdiction), http://www.bna.com/e-law/cases/kcpl.html.
M&B Beverage v. New York New York Hotel
LLC (unpublished) (S.D. Fla. December 13, 1996).
Maritz, Inc. v. CyberGold, Inc., 947 F. Supp.
1328 (E.D. Mo. August 19, 1996), http://www.bna.com/e-law/cases/cyb_gold.html.
Mattel, Inc. v. Barbie-Club.com (2d Cir. Nov.
7, 2002) (rejecting attempt to bring consolidated in rem action against domains
in a single jurisdiction when some of the registrars were not located in the
jurisdiction).
Mattel, Inc. v. Securenet Information Services (S.D.N.Y. May 22, 2001) (in a domain name case over barbiesgrill.com, rejecting jurisdiction over a Canadian restaurant).
Mattel,
Inc. v. Adventure Apparel, 2001 WL 1035140 (S.D.N.Y. Sept. 7, 2001) (ACPA
violation, $2,000 of damages).
McMaster-Carr
Supply Co. v. Supply Depot, Inc., 1999 WL 417352 (N.D. Ill., June 16, 1999).
Mid
City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, Inc., 35 F. Supp. 2d
507 (E.D. La. 1999).
Millennium
Enterprises v. Millennium Music, 33 F. Supp. 2d 907 (D. Oregon January 4, 1999)
(finding no specific jurisdiction over an etailer site that had no evidence of
sales into the forum jurisdiction), http://www.kentlaw.edu/classes/rwarner/legalaspects/millennium.html.
No Mayo-San Francisco v. Memminger, 1998 U.S.
Dist. Lexis 13154 (N.D. Cal., Aug. 20, 1998).
Origin Instruments Corp. v. Adaptive Computer
Systems, Inc., 1999 WL 76794 (N.D. Tex., February 3, 1999) (dismissing a
trademark infringement case for lack of personal jurisdiction because the
website was partially interactive and there was no evidence to indicate any
effort to direct sales into the forum jurisdiction).
Panavision International, L.P. v. Toeppen,
938 F. Supp. 616 (C.D. Cal. Sept. 19, 1996), http://www.bna.com/e-law/cases/panavision.html.
Panavision International, LP v. Toeppen, 1998
U.S. App. LEXIS 7557 (9th Cir. April 17, 1998) (a domain name
squatter is subject to suit in the trademark owner’s home court based on the
Effects Doctrine), http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=docket&no=9755467.
Patriot Systems, Inc. v. C-Cubed
Corp., 21 F. Supp. 2d 1318 (D. Utah Nov. 4. 1998).
Pheasant Run, Inc. v. Moyse, 1999
WL 58562 (N.D. Ill., February 3, 1999).
Playboy Enterprises, Inc. v. AsiaFocus
International (E.D. Va. April 10, 1998) (use of infringing domain names gave
rise to jurisdiction wherever the pages could be accessed).
Playboy Enterprises, Inc. v. Chuckleberry
Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. June 19, 1996), http://www.bna.com/e-law/cases/playmen.html. Dismissal of reconsideration, July 12, 1996,
http://www.jmls.edu/cyber/cases/playmen2.txt.
Prime Publishers, Inc. v.
American-Republican, Inc.,160 F.Supp.2d 266 (D.Conn. Aug 07, 2001) (ACPA
violation but no damages)
PurCo Fleet Services, Inc. v.
Towers, 38 F. Supp. 2d 1320 (D. Utah, March 9, 1999).
Quality Solutions, Inc. v. Zupanc, 993 F.
Supp. 621 (N.D. Ohio 1997) (personal jurisdiction attached in trademark
infringement case based on advertisements and the registration of the domain
name containing the trademark).
Quokka Sports v. Cup Int’l, 1999
US Dist. LEXIS 21000 (N.D. Cal. Dec. 13, 1999) (finding jurisdiction).
Rannoch, Inc. v. Rannoch Corp.,
52 F. Supp. 2d 681 (E.D. Va., June 30, 1999).
Rubbercraft Corp. v. Rubbercraft Inc. (C.D.
Cal. December 17, 1997) (finding sufficient contacts to establish specific
jurisdiction over a trademark dispute when the defendant made $20,000 a year of
sales into the jurisdiction (0.5% of their business), advertised in national
periodicals, maintained an 800 phone number, and operated a web page that advertised
products and collected consumer information).
SF Hotel Company LP v. Energy Investments
Inc., 985 F. Supp. 1032 (D. Kan. Nov. 19, 1997) (declining to exercise either
specific or general jurisdiction in a trademark dispute based solely on a
website that it deemed passive), http://www.bna.com/e-law/cases/sfhotel.html.
SuperGuide Corporation v. Kegan, 1997 U.S.
Dist. LEXIS 19317 (W.D. N.C. July 29, 1997) (finding personal jurisdiction in
trademark infringement case in plaintiff’s jurisdiction based strictly on use
of the trademark on a website), http://www.bna.com/e-law/cases/superg.html.
Telephone Audio Productions, Inc. v. Smith,
1998 U.S. Dist. Lexis 4101 (N.D. Tex. March 26, 1998) (website contributed to
finding specific jurisdiction).
Toys ‘R’ Us v. Step Two (3d Cir. 2003), http://www.ca3.uscourts.gov/opinarch/013390.pdf.
Transcraft Corp. v. Doonan Trailer Corp.,
1997 U.S. Dist. LEXIS 18687 (N.D. Ill. November 17, 1997) (no specific
jurisdiction over a vendor for trademark infringement based on a passive
website, even if the website contained contact information).
Zippo Manufacturing Co v. Zippo Dot Com,
Inc., 952 F. Supp. 1119 (W.D. Pa. January 16, 1997), http://www.bna.com/e-law/cases/zippo.html.
C. “Server-Based” Personal
Jurisdiction.
Bochan v. La Fontaine, 1999 WL
343780 (E.D. Va., May 26, 1999).
CompuServe, Incorporated v. Patterson, 89
F.3d 1257, 1996 FED App. 0228P (6th Cir. July 22, 1996), http://www.ljextra.com/internet/i0622dec.html.
Jewish Defense Organization, Inc. v. Superior
Court, 72 Cal. App. 4th 1045 (1999) (declining to exercise jurisdiction in a
defamation case in the state where the web hosts were located).
Krantz v. Air Line Pilot Association, 245 Va. 202 (1993).
Melvin v. Doe (Va. Cir. Ct., June
24, 1999) (no jurisdiction in AOL’s home court for defamatory posting on AOL’s
servers), http://www.bna.com/e-law/cases/melvin.html.
Pres-Kap, Inc. v. System One, Direct Access,
Inc., 636 So.2d 1351 (Fla. App. 1994), http://www.jmls.edu/cyber/cases/pres-kap.txt.
D. Choice of Law.
America Online, Inc. v. National Health Care
Discount, Inc. 2000 WL 1724884 (N.D. Iowa Sept. 25, 2000) (Iowa court applies
Virginia law in a spamming lawsuit brought by AOL).
Oppedahl & Larson v. Network Solutions,
Inc. (D. Colo. April 16, 1998) (applying Virginia law to a dispute over NSI’s
registration policy because that is where NSI’s servers are located), http://www.bna.com/e-law/cases/oppensi.html.
E. Venue.
Graham Technology Solutions, Inc. v. Thinking
Pictures, Inc., 949 F. Supp. 1427 (N.D. Cal. January 7, 1997) (involving the
adjudication of a forum selection clause in a website development contract for
“Rock.com”).
IA Inc. v. Thermacell Technologies, 983 F.
Supp. 697 (E.D. Mich. November 10, 1997) (the company posting on their website
statements alleged to constitute “passing off” of plaintiff’s goods meant venue
was proper where the plaintiff was located, but the independent contractor who
helped draft the statements not subject to venue there since he did not operate
the website).
Shapiro v. Santa Fe Gaming Corp., 1998 U.S.
Dist. LEXIS 2488 (N.D. Ill. February 26, 1998) (finding improper venue in an
attorneys’ fee case deriving from a shareholder derivative suit given that the
defendants’ only contact was a toll free number and passive website).
US v. Thomas, 1996 FED App. 0032P (6th Cir.
1996), http://www.law.emory.edu/6circuit/jan96/96a0032p.06.html.
F.
Other Civil Procedure.
Dow Jones & Co. v. Harrods, Ltd., 2002 U.S.
Dist. LEXIS 19516 (S.D.N.Y. Oct. 15, 2002) (dismissing, for lack of subject
matter jurisdiction, a US declaratory judgment motion by Dow Jones over a bogus
press release that triggered a British lawsuit).
ErieNet, Inc. v. Velocity Net, Inc., 1998
U.S. App. LEXIS 23931 (3rd Cir. September 25, 1998) (in a dispute
between two ISPs regarding spam allegedly sent by one ISP to users of the
other, the court rejected federal court subject matter jurisdiction over a
claim under the Telephone Consumer Protection Act (the “anti-junk fax law”)), ftp.vcilp.org/pub/law/Fed-Ct/Circuit/3d/98a1975p.asc.
U.S. v. Kammersell (D. Utah June 3, 1998)
(electronically transmitted bomb threat from one Utah resident to another,
which was routed through Virginia, was a transmission in interstate commerce), http://www.Loundy.com/CASES/US_v_Kammersell.html.
21. LINKING
AND FRAMING.
17 U.S.C. §512(d)
Bernstein v. J.C.
Penney, 1998 US Dist Lexis 19048
(C.D. Cal. September 21, 1998) (no copyright liability for a
website linking to an allegedly photograph which was three links away).
Futuredontics, Inc., vs. Applied Anagramics, Inc,
1998 U.S. Dist. LEXIS 2265 (C.D. Cal. January 30, 1998). In a November 27, 1997 order, the court
refused to grant a preliminary injunction to plaintiff on the grounds that
plaintiff had not offered sufficient evidence that framing creates a derivative
work. In the January 30, 1998 ruling,
the court refuses to dismiss plaintiff’s claim for copyright infringement since
the complaint alleged enough to permit the suit to go forward. Both rulings are at http://www.law.gwu.edu/facweb/claw/futured.htm.
Futuredontics, Inc., vs. Applied Anagramics,
Inc, 1998 U.S. App. LEXIS 17012 (9th Cir. July 23, 1998) (Appeals
court refused to reverse the lower court’s decision not to grant an injunction
against the framing activity, saying that there is no tangible harm—irreparable
or not—from the link).
Hard Rock Café International (USA) Inc. v.
Morton, 1999 U.S. Dist. LEXIS 8340 (S.D.N.Y. June 1, 1999) (limiting the use of
co-branded frames on a third party e-commerce site when the trademark license
was geographically limited). This
ruling was limited in Hard Rock Café International (USA) Inc. v. Morton, 1999
U.S. Dist. LEXIS 13760 (S.D.N.Y. September 8, 1999), where the court said that
framing of a third party site did not actually constitute the sale of goods by
the framing site.
Intellectual Reserve v. Utah Lighthouse
Ministry (D. Utah 1999) (linking to infringing material could constitute
contributory infringement), http://www.utlm.org/images/courtcase. Case settled December 8, 2000, apparently
without payment.
Jeri-Jo Knitwear Inc. v. Club Italia Inc., 2000 US Dist Lexis 4891 (SDNY 2000).
New York State Society of CPAs v. Eric Louis
Associates, Inc.. 79 F. Supp. 2d 331 (SDNY Dec. 2, 1999) (bad faith trademark
infringement based in part on framing).
Playboy Enterprises
Inc. v. Universal Tel-A-Talk Inc., 1998 U.S. Dist. LEXIS 8231 (E.D. Pa., June
3, 1998) (denying Playboy’s motion to add a claim for trademark counterfeiting
when a website merely linked to the Rabbit head logo allegedly counterfeited).
Playboy Enterprises
Inc. v. Universal Tel-A-Talk Inc., 1998 US Dist LEXIS 17282 (E.D. Pa. Nov. 2,
1998) (injunction against establishing links to Playboy).
Putnam Pit, Inc. v. City of Cookville, 2000
FED App. 0235P (6th Cir. July 19, 2000) (determining that the city
website was a nonpublic forum but requiring the district court to determine if
Putnam Pit was denied a link on the website for discriminatory reasons), http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0235p.06.
SearchKing, Inc. v. Google Technology, Inc.
(W.D. Okla. Jan. 13, 2003) (Google’s diminution of links to SearchKing
protected under First Amendment as an opinion). Court dismissed SearchKing’s
complaint on May 27, 2003. http://google.searchking.com/dismiss.htm.
Ticketmaster Corp. v. Microsoft Corp. (C.D.
Cal. April 28, 1997) (complaint only), http://www.bna.com/e-law/docs/ticket.html. Case settled in February, 1999.
Ticketmaster, Inc. v. Tickets.com (C.D. Cal.
August 10, 2000) (not limiting Tickets.com’s ability to deep link), http://pub.bna.com/ptcj/ticketmaster.htm. Granting summary judgment to Tickets.com on
trespass and copyright claims, March 6, 2003, 2003 U.S. Dist. LEXIS
6483, http://eric_goldman.tripod.com/caselaw/ticketmastermarch72003.htm.
Universal City Studios v. Reimerdes, 111 F.
Supp. 2d 294 (S.D.N.Y. Aug 17, 2000) (injunction against linking to an
encryption-bypassing software), http://www.2600.com/dvd/docs/2000/0817-decision.pdf
Washington Post Co. v. Total News, Inc.
(S.D.N.Y. February 20, 1997) (Stipulation, Order of Settlement and Dismissal), http://www.bna.com/e-law/cases/totalset.html.
Algemeen Dagblad BV v. Eureka
Internetdiensten (D. Ct. Rotterdam August 22, 2000) (an aggregator site using
titles of news articles, with deep links to the original newspaper sites, not
copyright infringement).
Church of Spiritual Leaders v. Dataweb,
District Court of the Hague (June 9, 1999) (another case involving the Church
of Scientology v. XS4All, suggesting that an ISP can be liable for linking to
infringing material if it fails to remove the link within a reasonable period
of time after notice).
International Federation of the Phonographic Industry
v. Olsson (Sweden Dist. Ct. September 1999) (linking to infringing MP3 files
not direct copyright infringement).
Guillot v. Arvic Search Services Inc., 2001 FCT 799 (Canada Federal Court July 17, 2001) (refusing to grant the plaintiff summary judgment for copyright infringement because the defendant took plaintiff’s compilation of links), http://decisions.fct-cf.gc.ca/fct/2001/2001fct799.html.
IFPI Belgium v. Doe (Antwerp Ct. of First Instance Dec. 21, 1999) (knowingly establishing links to infringing MP3 files is infringement).
Kauchi case (Osaka District Court, March 30, 2000) (links to pornography may be criminal distribution of pornography), http://w3.scan.or.jp/sonoda/data/fl_link01.html.
NV Belgacom Skynet v. VZW IFPU Belgium (Brussels App. Ct. Feb. 13, 2001) (requiring an ISP to remove links to infringing material created by their users, within 3 working days, if the music companies notify the ISP with some specificity and accept liability for the removal).
PCM v. Kranten.com (Rotterdam, Netherlands, August 2000) (rejecting an attempt to stop deep linking by a rival news service).
In re. Rediff (Pune, India, December 2000)
(holding that the search engine could be liable for linking to pornography).
The Shetland Times Ltd. v. Wills (Court of
Sessions, Edinburgh, October 24, 1996), http://www.shetland-news.co.uk/opinion.html. Settled on November 11, 1997; see http://www.shetland-times.co.uk/st/daily/dispute.htm.
StepStone v. OfiR (Germany Jan. 2001) (a
recruiting company gets an injunction against a competing company deep-linking
to its job listings).
OCC Bulletin 2001-31, July 3, 2001
(announcing the OCC’s perspectives on web linking relationships (a regressive and
paranoid document that fails to distinguish between casual linking
relationships and full-blown outsourcing), http://www.occ.treas.gov/ftp/bulletin/2001-31.txt.
22. MUSIC.
A & M Records v. Internet Site Known as
Fresh Kutz (S.D. Cal. June 10, 1997) (TRO), http://www.bna.com/e-law/docs/amkutz.html.
A & M Records, Inc. v. Napster, Inc., 2000 WL 573136 (N.D. Cal.
2000) (Napster doesn’t qualify for 512(a) safe harbor); http://www.law.uh.edu/faculty/CJoyce/release10/AMRecords.html.
A & M Records, Inc. v. Napster, Inc, 2000
WL 1009483 (N.D. Cal. 2000) (preliminary injunction hearing of July 26), http://riaa.org/PDF/NapsterPatel.pdf.
A & M Records, Inc.
v. Napster, Inc. (August 11, 2000), http://www.cand.uscourts.gov/cand/tentrule.nsf/4f9d4c4a03b0cf70882567980073b%202e4/74bf2867dde99f0f88256938007a1205?OpenDocument.
Bonneville Int'l Corp. v. Peters, 153 F.
Supp. 2d 763 (E.D. Pa. 2001).
Frank Music Corp. v. CompuServe (S.D.N.Y,
settled October 25, 1995). This was a
class action against CompuServe for distributing MIDI files. This case settled with CompuServe paying
$568,000. The settlement agreement is
at http://www.courttv.com/legaldocs/cyberlaw/compuserve2.html.
Recording Industry Association of America v.
Diamond Multimedia Systems, Inc. (9th Cir. June 15, 1999) (finding
that the Rio portable MP3 player did not violate the Audio Home Recording Act).
UMG Recordings, Inc. v. MP3.com, Inc., 92 F.
Supp. 2d 349 (S.D.N.Y. May 4, 2000) (MP3.com’s service to allow users to listen
online to music they owned on CDs infringed), http://www.gigalaw.com/library/umg-mp3-2000-05-04-p1.html. September 6, 2000 ruling on damages, 2000 WL
1262568: http://news.findlaw.com/cnn/docs/mp3/0906_mp3_unoffruling.html.
23. OBSCENITY/INDECENCY/CHILD
PORNOGRAPHY.
Communications Decency Act of 1996, http://www.cdt.org/policy/freespeech/12_21.cda.html.
47 U.S.C. §231 (“CDA II”), http://www.gse.ucla.edu/iclp/copa.htm.
42 U.S.C. §227 (requiring “electronic
communication services” and “remote computing services” to make disclosures to
law enforcement agencies when they learn of facts related to certain illegal
behavior regarding child pornography).
18 U.S.C. §2252B (no misleading domain names
leading to porn).
Georgia Code 16-12-100.2 (restricting certain
communications as they may relate to child pornography), http://www.state.ga.us/cgi-bin/pub/leg/legdoc?billname=1999/HB213&docpart=full.
American Booksellers Foundation v. Dean (2d
Cir. Aug. 27, 2003) (enjoining Vermont’s CDA-style law).
American Civil Liberties Union v. Johnson, 4
F. Supp. 2d 1029 (June 30, 1998) (enjoining enforcement of New Mexico’s
CDA-style law). On appeal, American
Civil Liberties Union v. Johnson (10th Cir. 1999) (upholding the
injunction against the New Mexico CDA-style law).
American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa. June 11, 1996)
(injunction against CDA), http://www.aclu.org/court/cdadec.html.
Supreme Court affirmed injunction against CDA, 117 S. Ct. 2329 (June 26, 1997),
http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=96-511.
American Civil Liberties Union v. Reno (E.D.
Pa. November 20, 1998) (TRO against COPA), http://www.aclu.org/court/acluvrenoII_order.html. Preliminary injunction issued
(E.D. Pa. February 1, 1999), http://www.aclu.org/court/acluvrenoII_pi_order.html. Upheld on appeal (3d Cir. June 22, 2000)
(upholding the lower court’s injunction against COPA; claiming that the Miller
standard is inapplicable to the Web), http://www.epic.org/free_speech/copa/3d_cir_opinion.html.
Reversed by the Supreme Court, Ashcroft v. ACLU, 122 S.Ct. 1700 (May 13, 2002),
http://supct.law.cornell.edu/supct/html/00-1293.ZS.html. On remand to the Third Circuit, which once
again struck down the law as unconstitutional (3d Cir. Mar. 6, 2003), http://www.ca3.uscourts.gov/opinarch/991324.pdf.
American Library Association v. United States
(E.D. Pa. May 31, 2002) (striking down the Children’s Internet Protection Act, requiring
libraries to use Internet filters to receive federal funds), http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM. The Supreme Court reversed and upheld CIPA,
meaning that Congress could withhold federal funds from libraries that do not
use filtering technology, U.S. v. American Library Association (US Sup. Ct.
June 23, 2003), http://www.supremecourtus.gov/opinions/02pdf/02-361.pdf.
Ashcroft v. Free Speech Coalition (April 16,
2002) (striking down the Child Pornography Prevention Act), http://supct.law.cornell.edu/supct/html/00-795.ZS.html.
ApolloMedia Corp. v. Reno, 19 F. Supp. 2d
1081 (N.D. Cal. Sept. 22, 1998) (concluding that the legislative restriction on
various activities done with the intent to annoy applied only to obscene
activities, not indecent activities), http://annoy.com/cda/ruling.html.
Cashatt v. Florida (Fla. Dist. Ct App. April
26, 2004) (criminal conviction for using online service to entice child into
sexual activity).
Cyberspace Communications, Inc. v. Engler,
1999 U.S. Dist. LEXIS 12843 (E.D. Mich. July 29, 1999) (striking down a state
CDA-style law on both First Amendment grounds and commerce clause
grounds). Upheld by the 6th
Circuit in an unpublished opinion Nov. 14, 2000. Final dismissal occurred June 1, 2001.
Davis v. Oklahoma (Okla. Crim. App. April 12,
1996).
Kathleen R. v. Livermore (Cal. Superior Ct.
October 20, 1998) (under 47 USC 230(c), library cannot be liable for allowing
minors to access pornography through the Internet).
Loving v. Boren (W.D. Okla. January 28,
1997), http://www.gseis.ucla.edu/iclp/loving.html. Loving v. Boren, 133 F.3d 771 (10th
Cir. 1998) (professor lacks standing to sue based on the University’s refusal
to provide a full USENET feed), http://lawlib.wuacc.edu/fedcases/ca10/cases/1998/01/97-6086.htm.
Mainstream Loudoun v. Board of Trustees, 1998
U.S. Dist. LEXIS 4725 (E.D. Va. April 7, 1998), http://www.techlawjournal.com/courts/loudon/80407mem.htm
(while libraries are not required to offer Internet access, if they choose to
offer Internet access they cannot use filtering software to effectuate
content-based restrictions unless such restrictions meet strict scrutiny; a
policy to unblock sites based on patron requests without a standard to do so
was insufficient to change the analysis).
Mainstream Loudoun v. Board of Trustees (E.D. Va. Nov. 23, 1998), http://www.techlawjournal.com/courts/loudon/81123op.htm
(memorandum order) and http://www.techlawjournal.com/courts/loudon/81123ord.htm
(order).
People v. Foley (NY Ct. App. April 11, 2000)
(upholding the dissemination of indecent materials to minors with the intent to
lure them into sex), http://www/nycourts.com/scripts/csearch.exe/singledecision?&FILE=cpny1020.002&CRT=5.
PSINet v. Chapman (W.D. Va. August 8, 2000)
(striking down a statute prohibiting knowing display of material used for a
commercial purpose that are harmful to minors), http://www.techlawjournal.com/courts/psinetvva/20000808op.asp. Affirmed on appeal, 4th Cir.
March 25, 2004.
Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. July
29, 1996), http://www.bna.com/e-law/cases/shea.html.
Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va.
February 26, 1998) (broad restrictions on government employee access of
indecent material via the Internet deemed unconstitutional, even when selective
(but standardless) permission for such access could be granted), http://www.aclu.org/court/urofskyvallendec.html. Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. February 10,
1999) (state employees can restricted from surfing for porn).
U.S. v. Barrows, 1997 N.Y. Misc. LEXIS 473
(NY Sup. Ct. September 26, 1997) (denying a motion to dismiss an action brought
under a New York state law prohibiting dissemination of indecent materials to
minors).
U.S. v. Chapman, 60 F.3d 894 (1st Cir. 1995).
U.S. v. Matthews (D. Md. June 29, 1998) (each
email transmission of child porn is a separate offense).
U.S. v. Maxwell, 42 M.J. 568 (A.F. Ct. Crim.
App. 1995), review granted in part, 44 M.J. 41 (C.A.A.F.), reversed in part, 45
M.J. 406 (C.A.A.F. 1996).
U.S. v. Strauser (E.D. Mo. Mar. 6, 2003)
(suppressing evidence when FBI mistakenly assumed that every member of a Yahoo
Group received emails through the group), http://pacer.moed.uscourts.gov/opinions/USA_V_GREGORY_STRAUSER-CDP-75.PDF.
U.S. v. Thomas, 1996 FED App. 0032P (6th Cir.
1996), http://www.law.emory.edu/6circuit/jan96/96a0032p.06.html.
U.S. v. Thomas, 113 F.3d 1247 (10th Cir. June
3, 1996) (upholding conviction for Utah child pornography violation).
Australian Broadcasting Services Amendment
(Online Services) Bill 1999, http://www.ozemail.com/~mbaker/amended.html.
In re. Rediff (Pune, India, December 2000) (holding
that the search engine could be liable for linking to pornography).
Regina v. Pecciarich, 22 O.R. (3d) 748
(Ontario Ct. Provincial Division April 6, 1995), http://insight.mcmaster.ca/org/efc/pages/law/court/R.v.Pecciarich.html.
People v. Somm (Bavarian Court judgment
against a CompuServe manager for allowing access to illegal pornographic USENET
postings that were located on the American servers, even though the German
subsidiary merely had a dedicated data line to the servers and in this respect
was no different from any ISP), http://www.cyber-rights.org/isps/somm-dec.htm.
Also relevant:
F.C.C. v. Pacifica Foundation, 438 U.S. 726
(1978), http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=438&page=726.
Miller v. California, 413 U.S. 15 (1973), http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=413&page=15.
Sable Communications of California, Inc. v.
F.C.C., 492 U.S. 115 (1989), http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=492&page=115.
Stanley v. Georgia, 394 U.S. 557 (1969), http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=US&vol=394&invol=557.
24. PATENT.
Amazon.com v. Barnesandnoble.com, 1999 WL
1095502 (W.D. Wash. Dec. 1, 2000).
Reversed on appeal (Fed. Cir. Feb. 14, 2001), http://www.law.stanford.edu/faculty/radin/ecommerce/readings/patents/ippatent-amazon.pdf. Settled March 2002.
British Telecommunications PLC v. Prodigy
Communications (SDNY). Markman hearing
at 189 F. Supp. 2d. 101, March 13, 2002)http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/02-02452.PDF. Motion granting summary judgment to Prodigy,
August 22, 2002.
Catalina Marketing Int’l, Inc. v.
Coolsavings.com, Inc. (Fed. Cir. May 8, 2002) (interpreting a patent for the
online delivery of coupons), http://laws.lp.findlaw.com/fed/011324.html.
Interactive Gift Express, Inc. v. CompuServe
Inc. (S.D.N.Y. May 13, 1998), (rejecting the application of the Freeny patent
to Internet commerce), http://www.patents.com/ige/order.htm. Reversed by the Court of Appeals for the
Federal Circuit, November 3, 2000, http://laws.lp.findlaw.com/fed/991324.html.
Netword LLC v. Centraal Corp. (E.D. Va. January
12, 1999) (no infringement).
Wang Laboratories v. Netscape (E.D. Va. May
1998). Dismissal upheld in Wang
Laboratories v. America Online (Fed. Cir. Dec. 17, 1999).
25. PRIVACY
OF INFORMATION.
Children’s Online Privacy Protection Act of
1998, 15 USC 6501, http://www.gseis.ucla.edu/iclp/coppa.htm. Implementing regulations, 16 CFR Part 312: http://www.ftc.gov/os/1999/9910/childrensprivacy.pdf.
47 U.S.C. §231(d) (restricting the disclosure
of authenticating information without consent, and requiring providers to take
efforts “as are necessary” to prevent the inadvertent disclosure of such
information), http://www.gse.ucla.edu/iclp/copa.htm.
42 U.S.C. §227 (requiring “electronic
communication services” and “remote computing services” to make disclosures to
law enforcement agencies when they learn of facts related to certain illegal
behavior regarding child pornography).
Graham Leach Bliley Act, 15 USC §6801-6809,
6821-6827, 16 CFR 313.
EU Data Protection Directive – Council
Directive 95/46/EC of 24 October 1995 on the Protection of Individuals with
Regard to the Processing of Personal Data and on the Free Movement of Such
Data, http://www.privacy.org/pi/intl_orgs/ec/dp_directive_final.txt. Decision recognizing the adequacy of regimes
in US< Switzerland and Hungary (July 27, 2000), http://europa.eu.int/comm/internal_market/en/media/dataprot/news/safeharbor.htm. Decision regarding the use of standard
contract clauses for transferring data to this parties (June 15, 2001), http://europa.eu.int/comm/internal_market/en/dataprot/news/clauses2.htm.
California Business & Professions Code
§1798.82 (requiring companies with computer databases containing certain types
of personal information to disclose any security breach of the database).
San Francisco Business and Tax Regulation
Code Article 20 (requiring financial institutions doing business in San
Francisco to do more to protect consumer privacy than required by GLB).
Division of Consumer Affairs v. DirectWeb Inc. (N.J. Superior Ct. April 2001) (fining a free PC company $15,000 for violating New Jersey’s Consumer Fraud Act for breaching its privacy policy by transferring data when it went bankrupt).
In re Doubleclick Inc. Privacy Litigation
(settled May 2002) ($1.8M settlement of
class action lawsuit over plan to combine personal info database with banner ad
ser).
FTC v. Guess? Inc. (settled 2003) (settlement
based on Guess’ failure to comply adequately with its security policy).
FTC v. Rennert (D. Nev. 2000) (Stipulated
Final Order and Permanent Injunction) (restricting the use of information
conducted under misleading privacy statements).
FTC v. Toysmart.com LLC (D. Mass. July 2000)
(Stipulated Consent Agreement and Final Order) (permitting the use of personal
information by an acquirer only under restricted situations), http://www.ftc.gov/os/2000/07/toysmartconsent.htm.
In the Matter of DoubleClick (settled August
2002) ($450,000 settlement of state investigation over plan to combine personal
info database with banner ad serving).
In the Matter of GeoCities, Agreement
Containing Consent Order (August 1998), http://www.ftc.gov/os/1998/9808/geo-ord.htm.
In the Matter of Liberty Financial Companies,
Inc., Agreement Containing Consent Order (May 1999), http://www.ftc.gov/os/1999/9905/lbtyord.htm
(in response to Liberty falsely advertising that personal information collected
would be treated “totally anonymously, requiring, among other things, that
Liberty Financial flush all information relating from children from its
database).
In the Matter of the National Research Center
for College and University Admissions, Inc. (consent orders regarding
NRCCUA/Munce and American Student List, LLC.)
In the Matter of Yahoo (settlement with NY
Attorney General Sept. 24, 2003) (Yahoo agrees to restrict usage of information
from when it reset default privacy settings in 2002).
In the Matter of Ziff-Davis Media (case
settled August 2002) (Website promotion malfunctioned and exposed credit cards
of users who were victims of identity theft; remedies included $25,000
restitution to users and $100,000 for investigation costs).
Letter regarding SpectraCom/Kidscom (FTC
Bureau of Consumer Protection, July 15, 1997) (denying an enforcement action
against a website collecting personal information from minors after the site
had made FTC-requested changes), http://www.ftc.gov/os/9707/cenmed.htm.
New York v. AltaVista (case settled August
21, 2001) (AltaVista violated privacy policy by transferring data to a business
partner; remedies included more disclosures and $70,000).
Remsburg v. Docusearch (N.H. Sup. Ct. Feb.
18, 2003) (Internet information broker can be liable for shooting death caused
by access to its information), http://www.courts.state.nh.us/supreme/opinions/2003/remsb017.htm.
Supnick v. Amazon.com; Bieles v. Amazon.com;
Sklare v. Alexa Internet; Newby v. Amazon.com, Stone v. Alexa Internet (W.D.
Wash.) (settled April 16, 2001) (settlement requiring Alexa to delete data,
follow certain privacy practices, and pay $100,000 into a Cy Pres fund and
$1.9M in attorneys fees).
CDW Computer Centers (BBBOnline Decision
2000-001), http://www,bbbonline.org/businesses/privacy/dr/decisions/2000-001.html.
eBay (BBBOnline Decision 2000-002), http://www,bbbonline.org/businesses/privacy/dr/decisions/2000-002.html.
eBay (BBBOnline Decision 2000-003), http://www,bbbonline.org/businesses/privacy/dr/decisions/2000-003.html.
Privacy Commissioner of Canada Ruling August 28, 2002 (accepting emails
into a terminated email account and withholding them in exchange for payment in
arrears constituted unauthorized use of personal information), http://www.privcom.gc.ca/cf-dc/cf-dc_020828_e.asp.
26. PUBLICITY/PRIVACY
RIGHTS.
Carafano v. Metrosplash, Inc., 207 F. Supp.
2d 1055 (C.D. Cal. March 12, 2002).
Comedy III Productions, Inc. v. Class
Publications, Inc., 1996 U.S. Dist. LEXIS 5710 (S.D.N.Y. May 1, 1996)
(involving the continued dissemination of Three Stooges paraphernalia from a
website following an injunction prohibiting such conduct).
Crump v. DJ Forbes, 52 Va. Cir. 52 (Va. Cir.
2000).
Dangerfield v. Epoch Networks (settled in
1998).
Gionfriddo v. Major League Baseball, 94 Cal.
App. 4th 400 (2001).
KNB Enterprises v. Matthews, 78 Cal. App. 4th
362 (2000).
Louder v. CompuServe (complaint only)
(California Superior Court July 5, 1996), http://www.jmls.edu/cyber/cases/louderc.html.
Michaels v. Internet Entertainment Group,
Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) (posting a videotape of two people
having sex could infringe on right of publicity and the right to privacy, even
if the two people are public figures (and, in Pamela Anderson Lee’s case, whose
career involves performing roles involving sex)).
Perfect 10, Inc. v. Cybernet Ventures, Inc.,
213 F. Supp. 2d 1146 (C.D. Cal. April 22, 2002).
Stern v. Delphi, 626 N.Y.S.2d 694 (N.Y. Sup.
Ct. 1995), http://www.Loundy.com/CASES/Stern_v_Delphi.html.
27. REGISTRAR/REGISTRY
LIABILITY.
Academy of Motion Picture Arts and Sciences
v. Network Solutions, Inc., 989 F. Supp. 1276 (C.D. Cal. December 10, 1997)
(dismissing various dilution and trademark attacks on NSI; in particular,
dismissing contributory trademark infringement because NSI lacked actual
knowledge of the infringement, dismissing dilution because NSI does not make
commercial use of the trademarks, and dismissing contributory dilution because
no such cause of action exists).
Beverly v. Network Solutions, Inc., 1998 U.S.
Dist. LEXIS 8888 (N.D. Cal. 1998) (rejecting various contract and tort causes
of action raised by a domain name holder whose name was placed on hold pursuant
to NSI’s dispute policy), http://www.bna.com/e-law/cases/nsibeverly.html.
Bird v. Parsons (6th Cir. May 21,
2002) (dismissing claims against domain name registrar and domain name auction
site because they don’t “use” the trademark), http://laws.lp.findlaw.com/6th/02a0177p.html.
DataBase Consultants, Inc. v. Network
Solutions, Inc. (N.D. Tex. Apr. 23, 1997) (Stipulation), http://www.patents.com/real/real.sht.
Economic Solutions, Inc. v. ICANN (E.D.
Missouri Nov. 13, 2000) (rejecting a TRO request to limit ICANN’s ability to
establish .biz or .ebiz TLDs), http://www.icann.org/tlds/correspondence/esi-v-icann-13nov00.htm.
Giacalone v. Network Solutions, Inc., 1996
U.S. Dist. LEXIS 20807 (N.D. Cal. 1996).
KnowledgeNet v. Boone (N.D. Ill. Eastern
Division filed 1994) (ultimately settled).
Kremen v. Cohen, 99 F. Supp. 2d 1168 (N.D.
Cal. May 5, 2000) (dismissing NSI from a lawsuit over sex.com). The Ninth Circuit reversed this ruling July
26, 2003, finding that a domain name was capable of being converted. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/999D1D5B0D734B6088256D6D0078CB88/$file/0115899.pdf?openelement.
Lockheed Martin Corp. v. Network Solutions, Inc.,
1997 U.S. Dist. LEXIS 10314 (C.D. Cal. March 19, 1997), http://www.patents.com/skunk/mar19.sht. Subsequent ruling at 985 F. Supp. 949 (C.D.
Cal. November 17, 1997), http://www.bna.com/e-law/cases/locknsi.html. Ninth circuit ruling: 194 F.3d 980 (9th
Cir. October 25, 1999) (NSI not liable for contributory trademark
infringement), http://eon.law.harvard.edu/h2o/property/domain/Lockheed.html. Lockheed brought a separate action under
ACPA and lost that as well: 2001 US Dist LEXIS 5459 (N.D. Tex. May 1, 2001).
Network Solutions, Inc. v. Clue Computing,
Inc., 946 F. Supp. 858 (D. Colo. Oct 29, 1996), http://www.bna.com/e-law/cases/cluecomp.html.
Oppedahl & Larson v. Network Solutions,
Inc. (D. Colo. April 16, 1998) (deeming the application of NSI’s registration
contract in Oppedahl’s circumstance a question of fact), http://www.bna.com/e-law/cases/oppensi.html.
Panavision International L.P. v. Toeppen
(C.D. Cal. November 27, 1996), http://www.bna.com/e-law/cases/pana2.html.
Pike v. Network Solutions, Inc. (N.D. Cal. November
25, 1996).
Roadrunner Computer Systems, Inc. v. Network
Solutions, Inc (E.D. Va. 1996).
Seven Words LLC v.
Network Solutions, Inc. (9th Cir. August 13, 2001) (dismissing a
lawsuit over NSI’s refusal to register certain dirty words).
Size, Inc. v. Network
Solutions, Inc., 2003 WL 1857501 (E.D. Va. April 1, 2003) (NSI not liable for
contributory trademark infringement based on how a domain name was
used/assigned because NSI is merely a routing service).
Smith v. Intercosmos Media Group, 2002 U.S.
Dist. LEXIS 24251 (E.D. La. Dec. 17, 2002) (domain name registrar not liable
for negligence based on allegedly defamatory website hosted at the domain
name), http://www.lextext.com/intercosmos.html.
Worldsport Networks
Limited v. Artinternet, 1999 U.S. Dist. LEXIS 6080 (E.D. Pa April 28, 1999)
(requiring NSI to prescreen registrations for a limited number of words).
Zurakov v. Register.com
(NY Supreme Ct. July 25, 2001) (dismissing a claim by a domain name registrant
over Register.com’s practice of displaying ads on the “coming soon” page). Reversed on appeal at the NY Appellate
Division (April 22, 2003), http://www.courts.state.ny.us/reporter/slips/13230.htm.
Pitman Training Ltd. v. Nominet UK (High
Court of Justice, Chancery Division, Royal Court of Justice May 22, 1997), http://www.nic.uk/news/pitman-judgment.html.
28. SECURITIES.
America Online v. Anonymous Publicly Traded
Co. (Va. Cir. Ct. March 2, 2001) (refusing to order AOL to disclose information
to a company that refused to identify itself), http://www.courts.state.va.us/txtops/1000974.txt.
Global Telemedia Int’l v. Doe (C.D. Cal. Feb.
2001) (rants about a company on a message board were opinions and thus not
defamatory).
Hart v. Internet Wire, 2001 US Dist LEXIS
7881 (S.D.N.Y. June 14, 2001) (press release publishers not liable under
Securities law for bogus press release).
Philip Services Corp v. Doe (Ontario Court,
General Division, June 24, 1998) (ordering the ISP to disclose information
about the Does), http://aix1.uottawa.ca/~geist/Philip.v.JohnDoe.24jun98.html.
SEC v. Long (N.D. Okla. April 8, 1999) (a TRO
against a bogus offshore $350M bond offering).
Star Telecommunications Inc. v. Doe (Cal.
Superior Ct.) (settled August, 1999) (company critics posting cyber-rumors
about a public company agreed to stop).
29. SPAM
AND TRESPASS.
See www.spamlaws.com
for the latest anti-spam laws.
CA Business & Professions Code Sec.
17538.41 (regulating ads via cell phone text messages)
American Airlines v. Farechase (Tex. Dist.
Ct. March 8, 2003) (TRO against scraping), http://www.eff.org/Cases/AA_v_Farechase/20030310_prelim_inj.pdf. This case settled June 2003.
America Online, Inc. v. Christian Brothers
(SDNY December 9, 2000), http://www.nylj.com/links/aol.html.
America Online, Inc. v. CN Productions (E.D.
Va. Oct. 25, 2002) (awarding AOL nearly $7 million under Virginia’s anti-spam
statute).
America Online, Inc. v. Cyber Promotions,
Inc. (E.D. Va. April 26, 1996) (preliminary injunction).
America Online, Inc. v. IMS, 24 F. Supp. 2d
548 (E.D. Va. October 29, 1998) (AOL wins against spammer on trespass
claim). A final ruling, awarding
$65,000 each against 2 defendants and $184,000 against another, was issued
December 30, 1998 at 1998 US Dist. LEXIS 20645.
America Online, Inc. v. LCGM, 1998 US Dist.
LEXIS 20144 (finding the spammer violated the Lanham act, dilution, CFAA,
Virginia’s computer crimes statute, and trespass).
America Online, Inc. v. National Health Care
Discount, Inc. 2000 WL 1724884 (N.D. Iowa Sept. 25, 2000) (addressing the
liability of a marketing company for the spamming done by its independent
contractors; finding that the spamming created prima facie violations of the
Virginia computer crimes act and was a trespass to chattels).
America Online, Inc. v. Netvision Audiotext
Inc. (April 2002) (injunction against spammer and an affiliate marketer).
America Online, Inc. v. Over the Air
Equipment, Inc. (E.D. Va. October 31, 1997), http://legal.web.aol.com/decisions/dljunk/oaeorder.html. Amended November 19, 1997 (restricting
unsolicited messages to AOL subscribers, the use of false header info, using
AOL’s trademarks and the collection of AOL member addresses for sending
unsolicited mail), http://legal.web.aol.com/decisions/dljunk/oaeamend.html.
America Online, Inc. v. Prime Data Systems,
1998 US Dist. LEXIS 20226 (E.D. Va. Nov. 20, 1998) (magistrate recommendation
for permanent injunction and a damage award (compensatory and punitive) of over
$400,000).
Ameriweb v. Netcom (Ohio Ct. Common Pleas,
April 15, 1998) (TRO ordering Netcom to restore Internet service to an ISP
customer it alleged was a spam haven), http://www.stassen.com/chris/anti-spam/linkus/37.html.
Aronson v. Bright-Teeth Now LLC (Pa. Superior
Ct. May 8, 2003) (TCPA does not apply to email spam), http://www.spamlaws.com/cases/aronson.html.
Bigfoot Partners, L.P. v. Cyber Promotions,
Inc. (S.D.N.Y. March 2, 1998) (consent
order), http://www.bigfoot.com/RUN?dyn=&FN=CYBERPROMO_CONSENT&locale=en&ver=1.0.0.
CompuServe Inc. v. Cyber Promotions, Inc.
(S.D. Ohio, October 24, 1996) (TRO), http://www.jmls.edu/cyber/cases/cs-cp1.html.
CompuServe Inc. v. Cyber Promotions, Inc.,
962 F. Supp. 1015 (S.D. Ohio Feb. 3, 1997), http://www.jmls.edu/cyber/cases/cs-cp2.html.
CompuServe Inc. v. Cyber Promotions, Inc.
(E.D. Pa. May 9, 1997), http://www.jmls.edu/cyber/cases/cs-cp3.html
(settled).
Concentric Network Corp., Inc. v. Wallace
(N.D. Cal. November 4, 1996) (Declaration), http://www.Loundy.com/CASES/Concentric_v_Wallace.html.
Cyber Promotions, Inc. v. Apex Global
Information Services, 1997 U.S. Dist. LEXIS 15344 (E.D. Penn. September 30,
1997) (breach of contract claim against ISP for failure to carry spam), http://www.jmls.edu/cyber/cases/cp-agis1.html.
Cyber Promotions, Inc. v. America Online,
Inc. (E.D. Pa. September 4, 1996) (TRO).
Earthlink Network Inc. v. Cyber Promotions,
Inc. (L.A. Super. Ct. May 7, 1997) (settled for $2 million), http://www.ljx.com/LJXfiles/spamsuits/cyber1.html
(consent judgment), http://www.ljx.com/LJXfiles/spamsuits/cyber2.html
(settlement agreement).
eBay v. Bidder’s Edge, 100 F. Supp. 2d 1058 (N.D. Cal. May 24,
2000) (granting eBay a preliminary injunction against Bidder’s Edge’s trespass
based on its crawling of eBay search results), http://pub.bna.com/lw/21200.htm.
eBay v. Reverseauction.com (settled July 2000
for $1.2 million) (settling a claim against Reverseauction for scraping email
addresses from eBay and then sending ambiguous spam to the users).
ErieNet, Inc. v. Velocity.Net, Inc., 1998
U.S. App. LEXIS 23931 (3rd Cir. Sept. 25. 1998) (in a complaint
trying to apply the anti-junk fax law to spam, ruling that the law only had
subject matter jurisdiction in state court and not federal court).
Federal Trade Commission v. Lockery (D. Conn.
Oct. 4, 2002).
Federal Trade Commission v.
Reverseauction.com (D.D.C. January 6, 2000) (stipulated consent agreement and
final order), http://www.ftc.gov/os/2000/01/reverseconsent.htm.
Federal Trade Commission v. Scott (E.D. Ca.
Oct. 3, 2002).
Gillman v. Sprint Communications Co. (Utah
State District Ct. Feb. 28, 2003) (sending commercial email to someone who requested
to be removed is not spam under Utah’s anti-spam statute). Upheld by the Utah Ct. App. May 6, 2004.
Hartford House, Ltd. v. Microsoft Corp. (Cal.
Superior Ct. December 13, 1998) (an injunction limiting Microsoft’s ability to
automatically place emails sent by the Blue Mountain Arts electronic greeting
cards into Microsoft Outlook’s “Junk” file), http://www2.bluemountain.com/home/courtorder122198.html.
Hodgell v. Amato (Wa. King Cty. Dist. Ct.
Aug. 2002) (spam plaintiff hit with $7,000 judgment for bringing the lawsuit).
Hotmail Corporation v. Van$ Money Pie Inc.,
1998 WL 388389 (N.D. Cal., April 20, 1998) (a default judgment finding, among
other things, that spammers using forged headers committed trademark
infringement and dilution; further finding that the bounced back emails were a
violation of the Computer Fraud and Abuse Act, that the spammers breached
Hotmail’s clickthrough agreement, that a violation of the clickthrough agreement
was trespass, and that bogus consent to a clickthrough agreement was
fraud/misrepresentation. The injunction
included, among other things, a prohibition of the defendants from using the
service at all), http://eric_goldman.tripod.com/caselaw/hotmailvvansmoneypie.htm. A permanent injunction was issued June 15,
1998, awarding Hotmail $275,000, $55,000 and $7,500 from 3 of the defendants.
Intel Corp. v. Hamidi (Cal. Superior Ct.
1999) (former Intel employee sending emails to up to 30,000 employees, and
evading IP address blocks to do so, warrants a preliminary injunction against
trespass), http://www.parrhesia.com/intelvhamidi.html.
Affirmed on appeal, 2001 WL 1563769 (Cal. App. Ct. Dec. 10, 2001), http://www.courtinfo.ca.gov/opinions/documents/C033076.PDF. Reversed by the California Supreme Court,
rejecting a common law trespass claim without a showing that the chattels were
damaged. 2003 WL 21488209 (Cal. Sup.
Ct. June 30, 2003), http://www.courtinfo.ca.gov/opinions/documents/S103781A.DOC.
MonsterHut, Inc. v. Paetec Communications,
Inc. (N.Y. Sup. Ct. Aug, 17, 2001) (injunction against IAP terminating
spammer’s account based on an apparent pink addendum to contract). Reversed, and granting defendant the right
to immediately terminate (N.Y. App. Div. May 3, 2002).
New York v. Lipsitz, 1997 N.Y. Misc. LEXIS
382 (N.Y. Sup. Ct. June 23, 1997), http://www.jmls.edu/cyber/cases/lipsitz.html.
Parker v. C.N. Enterprises (Tex. Dist. Ct.
November 10, 1997), http://www.Loundy.com/CASES/Parker_v_CN_Enterprises.html.
Register.com v. Verio (SDNY Dec. 8, 2000)
(use of some system resources by robot could constitute trespass), http://www.icann.org/registrars/register.com-verio/order-08dec00.htm.
Simple Network Communications v. VNZ
Information & Entertainment (S.D. Cal. 1998) (ISP won $173,000 default
judgment against a party sending spam through its network).
Spertus v. Kozmo.com (Cal. Small Claims Ct.
April 4, 2001) (awarding $77.50 for violation of California’s anti-spam statute
when Kozmo.com sent an email to its opt-out users encouraging them to opt-in), http://www.spertus.com/ellen/Kozmo/kozmo.html.
Ticketmaster, Inc. v. Tickets.com (C.D. Cal.
August 10, 2000) (no preliminary injunction against scraping given no showing
of harm), http://pub.bna.com/ptcj/ticketmaster.htm. Granting summary judgment to Tickets.com on
trespass claim, March 6, 2003, 2003 U.S. Dist. LEXIS 6483, http://eric_goldman.tripod.com/caselaw/ticketmastermarch72003.htm.
Tierney and Email America, Virtual Magistrate
Project Docket No. 96-0001 (May 20, 1996), http://vmag.vcilp.org/doksys/96-0001/index.html?6.
Typhoon, Inc. v. Kentech Enterprises (C.D.
Cal. Sept. 30, 1997) (consent judgment), http://www.jmls.edu/cyber/cases/typhoon2.html.
Washington v. Heckel (Wash. Superior Ct. March 10, 2000) (striking down
Washington’s anti-spam statute as violating the commerce clause). Reversed by the Washington Supreme Court, http://www.wa-state-resident.com/sc02.htm. In September 2002, Heckel was found guilty
and ordered to pay $98,198 representing a $2,000 penalty plus attorney’s fees
and court costs. The judgment was
upheld by the WA Appeals Court June 28, 2004.
In re Laurence A. Canter (Disciplinary
District of the Board of Professional Responsibility of the Supreme Court of
Tennessee February 25, 1997) (attorney disciplined for, in part, USENET
spamming), http://www.jmls.edu/cyber/cases/canter.html.
1267623 Ontario Inc. v. Nexx Online Inc.
(Ontario Superior Court, June 14, 1999) (after a spammer spamvertised its
website and was terminated by the web host, the spammer sued; the court ruled
against the spammer because, among other reasons, the host’s ISP Exodus
threatened to cut the host off and because the spammer had violated a contract
clause requiring the spammer to comply with “netiquette”), http://www.digitaldesk.com/stuff/netiquette.htm.
The RBL cases:
Exactis v. Mail Abuse Prevention System
(MAPS) (D. Colo. Nov. 2000) (TRO ordering MAPS to remove Exactis from the RBL).
Media3 Technologies v. Mail Abuse Prevention
System (MAPS) (D. Mass. Jan 2. 2001) (denying Media3’s motion for a preliminary
injunction), http://pub.bna.com/eclr/00cv12524.htm. Case settled August 2001.
Yesmail v. Mail Abuse Prevention System
(MAPS) (N.D. Ill. July 2000) (TRO preventing MAPS from placing Yesmail on the
RBL).
Which Company v. McNicol (West Australia Oct.
2002) (rejecting a suit by a spammer against an individual who added the
spammer to the SPEWS database).
Xtra v. ORBS (New Zealand High Court May
2001) (requiring the removal of an ISP from the ORBS database).
30. STATE
ACTION.
Beussink v. Woodland R-IV School District
(E.D. Mo. December 28, 1998) (a school’s suspension of a student for posting
criticism of the school on a personal website was unconstitutional), http://www.aclu.org/court/beussinkvwoodland_pi_order.html.
Cuellar v. Texas, 1999 Tex. App. LEXIS 511 (Tex.
Ct. App. January 28, 1999) (striking down a lower court requirement that a
defendant place on his web site a statement that he had been convicted of
theft).
Cyber Promotions, Inc. v. America Online,
Inc., 1996 U.S. Dist. LEXIS 16237 (E.D. Pa. November 4, 1996), http://www.bna.com/e-law/cases/aolcyb2.html.
Intel Corp. v. Hamidi (Cal. Superior Ct.
1999) (corporate email system not a public forum), http://www.parrhesia.com/intelvhamidi.html.
Kathleen R. v. Livermore (Cal. Superior Ct.
October 20, 1998) (under 47 USC 230(c), library cannot be liable for allowing
minors to access pornography through the Internet).
Loving v. Boren (W.D. Okla. January 28,
1997), http://www.gseis.ucla.edu/iclp/loving.html.
Loving v. Boren, 133 F.3d 771 (10th
Cir. 1998) (professor lacks standing to sue based on the University’s refusal
to provide a full USENET feed), http://lawlib.wuacc.edu/fedcases/ca10/cases/1998/01/97-6086.htm.
Mainstream Loudoun v. Board of Trustees, 1998
U.S. Dist. LEXIS 4725 (E.D. Va. April 7, 1998), http://www.techlawjournal.com/courts/loudon/80407mem.htm
(while libraries are not required to offer Internet access, if they choose to offer
Internet access they cannot use filtering software to effectuate content-based
restrictions unless such restrictions meet strict scrutiny; a policy to unblock
sites based on patron requests without a standard to do so was insufficient to
change the analysis).
Putnam Pit, Inc. v. City of Cookeville (M.D.
Tenn. September 21, 1998) (rejecting a newspaper’s request to obtain access to
city employees’ Internet use records, and rejecting a claim that a city’s web
page was a public forum where the newspaper could force the city to provide it
with a link), http://www.putnampit.com/higgins.html.
Putnam Pit, Inc. v. City of Cookville, 2000
FED App. 0235P (6th Cir. July 19, 2000) (determining that the city website
was a nonpublic forum but requiring the district court to determine if Putnam
Pit was denied a link on the website for discriminatory reasons), http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0235p.06.
Quad/Graphics, Inc. v. Southern Adirondack
Library System, 664 N.Y.S.2d 225 (N.Y. Sup. Ct. September 30, 1997) (refusing
to permit a company, who suspected that its employees were using a library
system to steal long-distance phone service from it, to force the library to
divulge identifying information about the patrons associated with identifying
numbers), http://www.lcp.com/products/NY/slipops/pay/misc/F9757370.htm.
State ex rel. Wilson-Simmons v. Lake County
Sheriff's Dept., 82 Ohio St. 3d 37 (May 20, 1998) (finding that emails—that
were allegedly racist—sent on the internal network to only a few recipients did
not constitute a “public record”), http://www.lweekly.com/ohsc/970797.htm.
Thomas v. Network Solutions, Inc. (D.D.C.
April 3, 1998) (NSI’s collection of the “Preservation Assessment” of $30 per
name, when done as a proxy for NSF and used for government/public goals, was an
illegal tax—but NSI deemed not a public actor), http://www.aira.org/legal/jh3.html.
Urofsky v. Allen, 995 F. Supp. 634 (E.D. Va.
February 26, 1998) (broad restrictions on government employee access of
indecent material via the Internet deemed unconstitutional, even when selective
(but standardless) permission for such access could be granted), http://www.aclu.org/court/urofskyvallendec.html.
Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. February 10,
1999) (state employees can restricted from surfing for porn).
31. TAXES.
Internet Tax Freedom Act, HR 4105.
California A.B. 1614.
Arkansas 26-53-124 (extending sales tax
obligations based on the situs of clicks ‘n’ mortar subsidiaries).
America Online, Inc. v Johnson (Tenn. Ct.
App. July 30, 2002).
Virginia Ruling of Commissioner PD 00-53
(April 14, 2000) (private letter ruling that a website hosted in Virginia
doesn’t, by itself, create a nexus for sales tax purposes).
32. TRADEMARK/UNFAIR
COMPETITION.
A. Domain Names—United States.
Anticybersquatting Consumer Protection Act, http://www.eff.org/pub/GII_NII/DNS_control/s1255_1999_bill.html.
18 U.S.C. §2252B (no misleading domain names
leading to porn).
ICANN Uniform Dispute Resolution Policy, http://www.icann.org/udrp/udrp.htm.
California Business & Professions Code
§§17525-17528, http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=03691615555+0+0+0&WAISaction=retrieve.
Actmedia, Inc. v. Active Media Int’l, Inc.,
1996 WL 399707 (N.D. Ill. July 12, 1996), http://www.Loundy.com/CASES/ActMedia_v_Active_Media.html.
The Alta Vista Corp. v. Digital Equipment
Corp. (D. Mass. Oct. 21, 1998) (dismissing the complaint of a senior trademark
holder to force DEC to stop using the trademark Altavista; among other reasons,
DEC would have incurred substantial costs in changing its name since the altavista.com
mark had become so ubiquitous).
American Standard v. Toeppen, 1996 U.S. Dist.
LEXIS 14451 (C.D. Ill. Sept. 3, 1996), http://www.jmls.edu/cyber/cases/amerstan.html.
Archdiocese of St. Loius v. Internet
Entertainment Group, 1999 U.S. Dist. LEXIS 1508 (E.D. Missouri, February 12,
1999) (a totally result-driven decision, various church entities blocked a
pornmeister from using various domain names containing terms related to the
Pope’s 1999 visit to St. Louis because the common law marks used since 1998 (!)
were famous and thus being diluted).
Avery Dennison Corp. v. Sumpton, 999 F. Supp. 1337 (C.D. Cal.
March 19, 1998), http://www.iplawyers.com/averydennison.htm
(finding that Avery.net and Dennison.net was a dilutive use when used by an
email service that rented such names to multiple accountholders).
Avery Dennison Corp. v. Sumpton (9th
Cir. August 23, 1999) (reversing the lower court, finding that Avery Dennison’s
trademarks, while “distinctive,” did not rise to the level of famousness
required to find dilution), http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9855810.html.
Barcelona.com v. Excelentisimo Ayuntamiento
de Barcelona (4th Cir. June 2, 2003) (reversing judgment under ACPA
for the City of Barcelona).
Bartog & Co v. Swix.com, 2001 WL 300382
(E.D. Va. March 16, 2001) (rejecting an ACPA claim over the swix.com and
swix.net domain names as used by a Switzerland ISP without any relation to the
plaintiff, a Norwegian manufacturer of ski waxes).
Bihari v, Gross, 119 F. Supp. 2d 309
(S.D.N.Y. Sept. 25, 2000) (a “sucks” site isn’t confusing, and rejecting the
application of the initial interest confusion doctrine to a sucks site).
Bird v. Parsons (6th Cir. May 21,
2002) (rejecting ACPA claims against domain name registrar and auction site;
auction site didn’t traffic in the domain name), http://laws.lp.findlaw.com/6th/02a0177p.html.
Brookfield Communications v. West Coast
Entertainment, 174 F.3d 1036 (9th Cir. April 22, 1999) (finding that using a
third party trademark as a domain name was infringement), http://www.bna.com/e-law/cases/brookca9.html. On September 22, 1999, a jury in the case
awarded Brookfield the domain name and damages of over $1.5 million.
Cable News Network v. Maya Online Broadband
Network (4th Cir. Jan. 23, 2003) (upholding in rem action under ACPA
against Chinese registrant).
Caesars World, Inc. v. Caesars-Palace.Com
(E.D. Va. March 2000), http://www.ipwatchdog.com/caesarsworld.html.
Cardservice International, Inc. v. McGee, 950
F. Supp. 737 (E.D. Va. 1997), http://www.jmls.edu/cyber/cases/cardsvc1.txt.
CCBN.com, Inc. v. C-Call.com, Inc. (D. Mass.
November 18, 1999) (rejecting a preliminary injunction over StreetEvents.com
and StreetFusion.com).
CD Solutions Inc. v. Tooker (D. Ore. April
22, 1998) (dismissing a trademark infringement suit by a holder of a trademark
in “CDS” over the domain name cds.com since the expression CDs is generic when
applied to compact disk products and services), http://www.bna.com/e-law/cases/cdsol.html.
Cello Holdings v. Cello Music & Film
Systems, 89 F. Supp. 2d 464 (S.D.N.Y. March 29, 2001) (in ACPA case, finding
issues of fact in case over cello.com; including whether “cello” is famous or
even distinctive).
Cerutti 1881 SA v. Cerutti, Inc. (S.D.N.Y.
Jan. 5, 1998) (injunction against domain name use by a competitor), http://cyber.harvard.edu/propertycourse/class-info/syllabus.htm.
Chaikan v. Hopen (San Mateo County Superior
Court June 1998) (upholding an arbitrator’s decision that an attorney who
registered peninsulaw.com could keep the name after departing the firm).
The Cit Group, Inc. v. Citicorp, 1998 U.S.
Dist. Lexis 15474 (D. N.J. Sept. 25, 1998) (suggesting that the domain name
citigroup.com might infringe citgroup.com).
Comp Examiner Agency v. Juris, 1996 WL 376600
(C.D. Cal. April 26, 1996), http://www.jmls.edu/cyber/cases/juris1.html.
Computers for Education, Inc. v. Automated
Systems Design Inc. (M.D. Tenn. Feb. 20, 1997) (consent judgment), http://www.jmls.edu/cyber/cases/asd1.html.
CPC International v. Skippy Inc. (4th
Cir. June 2, 2000) (regarding a trademark action over skippys.com, reversing an
injunction restricting the content displayed on the site).
Data Concepts, Inc. v. Digital Consulting,
Inc. (M.D. Tenn. January 31, 1997), http://www.bna.com/e-law/cases/datacon.html.
Data Concepts, Inc. v. Digital Consulting,
Inc., 1998 FED App. 0241P (6th Cir. 1998), http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=980241p
(domain name owner of dci.com had a stylized logo mark containing DCI; company
with registered trademark in DCI before domain name registration had superior
trademark rights; however, the court remanded for a reanalysis of the
likelihood of confusion).
Dorer v. Arel (E.D.Va. August 26, 1999)
(holding that a domain name could be transferred to satisfy a judgment), http://www.bna.com/e-law/cases/dorer.html.
E-Cards v. King (N.D. Ca. Dec. 13, 1999) (the
trademark “e-cards” may be generic and thus not sufficient to obtain the domain
name ecards.com from a competitor).
E&J Gallo Winery v. Spider Webs Ltd. (5th
Cir. April 3, 2002) (APCA victory regarding ernestandjuliogallo.com).
Electronics Boutique Holding Corp. v.
Zuccarini, 2000 US Dist. Lexis 15719 (E.D. Pa. Oct. 30, 2000) ($500,000 award
under ACPA for typosquatting).
eToys v. etoy (case settled January 2000)
(eToys brought an action to obtain etoy.com from artists; eToys settled by
paying $40,000 to etoy even though eToys initially won a preliminary
injunction).
Famology.com Inc. v. Perot Systems Corp.,
2001 US Dist. LEXIS 8554 (E.D Pa. June 19, 2001) (domain name can’t be
converted).
Fleetboston Financial Corp. v.
Fleetbostonfinancial.com (D. Mass. March 27, 2001) (in an uncontested ACPA in
rem action, the court still refused to extend jurisdiction over the case).
Ford Motor v. Ford Financial (N.D. Iowa May 9, 2000) (finding trademark confusion and dilution when a financial services company used fordfinancialsolutions.com; disclaimers didn’t help).
Ford Motor Co. v. Catalanotte, 2003 Fed. App.
0310P (6th Cir. Aug. 28, 2003) (ACPA case).
FreeI.net v. FreeI Networks (W.D. Wash. Sept.
22, 2000) (domain name is not chattel).
Fry’s Electronics, Inc. v. Octave Systems,
Inc. (N.D. Cal. 1995).
Gateway 2000, Inc. v. Gateway.com, Inc., 1997
U.S. Dist. LEXIS 2144 (February 6, 1997), http://www.jmls.edu/cyber/cases/gw2000-1.txt.
Giacalone v. Network Solutions, Inc. (N.D.
Cal. June 13, 1996) (preliminary injunction), http://www.iplawyers.com/CyberCounsel/giacalon.htm. Settled.
Green Products Co. v. Independence Corn
By-Products Co., 992 F. Supp. 1070 (N.D. Iowa September 25, 1997) (enjoining a
party from using its competitor’s trademarks as domain names and diverting
those domain names to its website).
Harrods Ltd. v. 60 Domain Names, 2001 US Dist
LEXIS 9103. On appeal, Harrods Ltd. v.
54 Domain Names, 2002 U.S. App. LEXIS 17530 (4th Cir. Aug. 23, 2002)
(ACPA in rem action).
Hasbro, Inc. v. Clue Computing Inc., 66 F.
Supp. 2d 117 (D. Mass. September 2, 1999) (holding that using clue.com for a
computer site didn’t infringe or dilute the trademark in the board game), http://www.clue.com/legal/hasbro/d2.html.
Hasbro, Inc. v. Clue Computing Inc., 2000 US
App. Lexis 27856 (1st Cir. Nov. 7. 2000) (upholding lower court
judgment dismissing the claim), http://laws.lp.findlaw.com/1st/001297.html.
own website).
Hasbro v. Internet Entertainment Group, 1996
U.S. Dist. LEXIS 11626 (W.D. Wash. February 9, 1996), http://www.Loundy.com/CASES/Hasbro_v_IEG.html.
HQM Ltd. v. Hatfield (D. Md. Dec. 2, 1999)
(dismissing a claim for hatfield.com because the registrant had the last name
Hatfield).
Interactive Products Corp. v. a2z Mobile
Office Solutions, Inc., 2003 FED. App. 0111P (6th Cir. Apr. 10,
2003) (trademark in post-domain name path does not signify source, even if the
associated page is for competitive product), http://www.keytlaw.com/urls/a2zmobile.htm.
Intermatic Inc. v. Toeppen, 947 F. Supp. 1227
(N.D. Ill. October 3, 1996), http://www.bna.com/e-law/cases/intermat.html.
Interstellar Starship Services v. Epix Inc., 983 F. Supp 1331 (D. Ore. Nov.
20, 1997) (finding that there was no likelihood of confusion over epix.com), http://www.bna.com/e-law/cases/epix.html. On appeal, the 9th circuit
reversed the district court, holding that there were factual disputes on
certain infringement factors that precluded summary judgment (9th
Cir. July 19, 1999). On remand, the
district court dismissed the claim.
2001 US Dist. LEXIS 100 (Jan. 3, 2001).
Jack in the Box, Inc. v. Jackinthebox.org,
143 F. Supp. 2d 590 (E.D. Va. April 17, 2001) (in an in rem action held by a
magistrate, finding ACPA violation even when no use of the name). Adopting the magistrate’s conclusion at 2001
US Dist LEXIS 7533 (E.D. Va. May 21, 2001) (erroneously concluding that
registering a domain name, without more, constitutes a use in commerce)..
Jews for Jesus v. Brodsky, 993 F. Supp. 282
(D. N.J. March 6, 1998) (holding that the criticism sites jewsforjesus.org and
jews-for-jesus.com infringed the organization’s trademark and committed
dilution (merely by using it); the infringement was not cured by a disclaimer,
the infringement was “willful” and in bad faith, and the site was commercial
because it provided a single link to another site where a few items were
available for sale. Also, the court
said that the organization’s Class 16 registration for “religious pamphlets”
extended to online publication, while suggesting that Class 42 was only
applicable to “link providers” like old-style online services and not for
content providers (which presumably includes websites)).
Kaplan v. Princeton Review, 1994 (unpublished
arbitration).
Kremen v. Cohen, 99 F. Supp. 2d 1168 (N.D.
Cal. May 5, 2000) (holding that a domain name is intangible personal property
and thus cannot support a conversion claim).
The Ninth Circuit reversed this ruling July 26, 2003, finding that a
domain name was capable of being converted.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/999D1D5B0D734B6088256D6D0078CB88/$file/0115899.pdf?openelement
Lewis v. Rocky Mountain Internet (D. Colo. September
26, 1997) (restricting a website not associated with the Colorado Rockies
baseball team from using its domain name or website to engage in activity that
was confusing with the baseball team’s trademarks), http://home.dti.net/bdpc/rockies.htm.
Lozano Enterprises v. La Opinion Publishing
Co., 1997 U.S. Dist. LEXIS 20372 (C.D. Cal. July 30, 1997) (finding
infringement and dilution when a newspaper publisher registered domain names
containing the plaintiff’s registered trademarks; court imposed a ridiculously
broad order, including an obligation to assign to plaintiff any websites, web
pages, home pages, Internet sites, Internet pages, databases and programs that
used or contained the trademark!)
Lucent Technologies, Inc. v. Lucentsucks.com,
95 F. Supp. 2d 528 (E.D. Va. May 3, 2000) (ACPA in rem action failed).
Maritz v CyberGold, 1996 U.S. Dist. LEXIS
14977 (E.D. Mo. August 29, 1996), http://www.Loundy.com/CASES/Maritz_v_Cybergold2.html.
Mattel, Inc. v. Hasbro, Inc. (C.D. Cal.
October 8, 1997) (stipulated settlement) (a dispute between the US owner of the
trademark in Scrabble and the owner of the term in other jurisdictions over who
could use the domain name “scrabble.com”; the domain name now gives users
choices based on if they are from the US or the rest of the world).
Mayflower Transit LLC v. Prince (D. N.J. May
2004) (ACPA and gripe site).
McGraw v. Salmon, 1998 U.S. Dist. LEXIS 10987
(C.D. Cal. June 30, 1998) (injunction against using certain celebrity names as
domain names or in metatags and transferring the domain names to the respective
celebrities).
Minnesota Mining and Manufacturing Co. v.
Taylor, 21 F. Supp. 2d 1003 (D. Minn. Aug. 6, 1998).
MTV Networks v. Curry, 867 F. Supp. 202
(S.D.N.Y. 1994), http://www.Loundy.com/CASES/MTV_v_Curry.html.
Network Solutions v. Umbro International (Va.
Sup. Ct., April 21, 2000) (domain name agreement is not a “liability” for
purposes of creditor laws), http://www.courts.state.va.us/txtops/1991168.txt.
New York State Society of CPAs v. Eric Louis
Associates, Inc., 79 F. Supp. 2d 331 (SDNY Dec. 2, 1999) (bad faith
infringement when accountant used a professional organization’s name in the
domain name and metatags).
Nintendo v. Stefani (D. Wa. November 2001)
(winning 48 domain names and $560,000 under ACPA).
Northern Light Technology v. Northern Lights
Club (D. Mass. March 21, 2000) (pirate site mimicking the Northern Light search
engine and operating under northernlights.com infringed and violated ACPA);
upheld by the 1st circuit: (1st Cir. Jan. 8, 2001)
(upholding a violation of ACPA), http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=00-1641.01A.
Northland Insurance Co. v. Blaylock (D. Minn.
Sept. 25, 2000) (no preliminary injunction over a sucks site).
PACCAR v. Telescan Technologies, 115 F. Supp.
2d 772 (E.D. Mich. Aug. 25, 2001) (truck location service that used Peterbuilt
and Kenworthy in its domain names held to infringe; disclaimer didn’t help).
PaineWebber, Inc. v. wwwpainewebber.com, 1999
U.S. Dist. LEXIS 6551 (E.D. Va. April 2, 1999) (TRO) and 1999 U.S. Dist. LEXIS
6552 (E.D. Va. April 9, 1999) (preliminary injunction against the use of
wwwpainewebber.com).
Panavision International, LP v. Toeppen, 945
F. Supp. 1337 (C.D. Cal. November 1, 1996), http://www.bna.com/e-law/cases/pana1.html. Affirmed by the 9th circuit: 141
F. 3d 1316 (9th Cir. April 17, 1998) (domain name squatter in the
business of registering and selling domain names with third party trademarks is
using such domain names in a commercial way (for reselling purposes) and
diluting the mark by preventing the trademark owner from using the domain name;
therefore, such behavior violates dilution law), http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=docket&no=9755467.
Patmont Motor Werks, Inc. v. Gateway Marine,
Inc., 1997 WL 811770 (N.D. Cal. December 17, 1997) (use of a trademarked term
in a URL after the second level domain to describe the good being sold is
trademark fair use when the goods could not be identified another way, the
trademark is used only as necessary to identify the goods, and the use in no
way indicates endorsement or sponsorship by the trademark owner; in a footnote
the court indicates that using the trademark as a second level domain may have
been infringing, but as a part of the URL beyond the second level domain it was
not), http://www.Loundy.com/CASES/Patmont_v_Gatrway.html.
People for the Ethical Treatment of Animals
v. Doughney, 2001 U.S. App. LEXIS 19028 (4th Cir. August 23, 2001), http://pacer.ca4.uscourts.gov/cgi-bin/getopn.pl?OPINION=001918.P.
Planned Parenthood Federation of America,
Inc. v. Bucci, 1997 U.S. Dist. LEXIS 3338 (S.D.N.Y. March 24, 1997), http://www.bna.com/e-law/cases/bucci.html. Affirmed without comment, 152 F.3d 920 (2nd
Cir. 1998).
Playboy Enterprises, Inc. v. AsiaFocus
International (E.D. Va. April 10, 1998) (use of the domain names
Asian-playmates.com and playmates-asian.com and the email address
playmates@pinmail.com infringed Playboy’s trademarks).
Porsche Cars North America, Inc.
v. Porsch.Com, 51 F. Supp. 2d 707 (E.D. Va., June 8, 1999) (no in rem action
against domain names in NSI’s home court), http://www.bna.com/e-law/cases/porsche.html. On appeal, 2002 U.S. App. LEXIS 17531 (4th
Cir. Aug. 23, 2002) (ACPA in rem action).
Porsche Cars North America v. Spencer (E.D.
Cal. May 18, 2000) (violation of ACPA).
Public Service Co. v. Nexus Energy Software,
1999 WL 98973 (D. Mass. Feb. 24, 1999).
Ringling Bros. – Barnum & Bailey v.
People for Ethical Treatment of Animals (E.D. Va. 1998) (complaint for PETA’s
use of ringlingbrothers.com to describe animal cruelty in the circus; dispute
settled).
Shields v. Zuccarini, 2001 US App. LEXIS
13288 (3d Cir. June 15, 2001) (finding Zuccarini’s use of variations of
joecartoon.com to violate ACPA).
Sporty's Farm, L.L.C. v. Sportsman's Market,
Inc., 202 F.3d 489 (2d Cir. 2000) (finding a violation of the ACPA), http://pub.bna.com/lw/987542.htm.
Taubman Co. v. Webfeats (6th Cir.
Mar. 11, 2002) (staying the injunction pending further proceedings). The case went back to the Sixth Circuit,
which ruled that Taubman could not get an injunction against a fan and gripe
site. 2003 Fed App. 0043P (6th
Cir. Feb. 7, 2003), http://www.michbar.org/opinions/us_appeals/2003/020703/17933.html.
Teletech Customer Care Management
(California), Inc. v. Tele-Tech Company, 977 F. Supp. 1407 (C.D. Cal. May 9,
1997), http://www.bna.com/e-law/cases/teletech.html.
Toronto Dominion Bank v. Karpachev, 2002 WL
342669 (D. Mass. March 6, 2002) (ACPA liability for typosquatting by
disgruntled former customer).
Toys ‘R’ Us v. Abir, 1997 U.S. Dist. LEXIS 22431 (S.D.N.Y. December
19, 1997) (finding that the use of toysareus.com infringed Toys ‘R’ Us’
trademarks; the court rejected a claim that disclaimers could cure the
infringement). Injunction is at 1997 U.S. Dist. LEXIS 22435 (S.D.N.Y.
Dec. 24, 1997).
Toys ‘R’ Us v. Akkaoui, 1996 U.S. Dist. LEXIS
17090 (N.D. Cal. October 29, 1996), http://www.jmls.edu/cyber/cases/toysrus1.txt.
Toys ‘R’ Us v. Feinberg, 1998 U.S. Dist.
LEXIS 17217 (S.D.N.Y. October 28, 1998) (holding that the use of gunsareus.com
by a small gun dealer does not infringe or dilute Toys ‘R’ Us’ trademarks).
Travel Impressions Ltd. v. Kaufman, (E.D. N.Y. May 22, 1997), http://www.bna.com/e-law/cases/travelemp.html.
Ty v. Perryman (7th Cir. 2002), http://caselaw.lp.findlaw.com/data2/circs/7th/021771p.pdf1771.PDF.
Umbro International, Inc. v. 3263851 Canada,
Inc., 1999 Va. Cir. LEXIS 1
(Va. Cir. Ct. Feb. 3, 1999) (holding that a domain name was “property”
sufficient to support a judicial sale to satisfy a money judgment).
Volkswagen v. Virtual Works (E.D. Va. Nov.
23, 1999) (refusing to enjoin the use of vw.net). Then, the district court did find that VW.net did infringe and
awarded the domain name to Volkswagen), (E.D. Va. March 2000) http://www.vw.net/memorandum_opinion.htm. On appeal, the Fourth Circuit affirmed,
holding that the domain name was registered in bad faith and thus the
defendants were cybersquatters under ACPA (Jan. 22, 2001), http://pacer.ca4.uscourts.gov/opinion.pdf/001356.P.pdf.
Washington Speakers Bureau Inc. v. Leading
Authorities Inc., 33 F. Supp. 2d 488 (E.D. Va. Feb. 2, 1999). Subsequent district court ruling April 13,
1999. 4th circuit upheld the
ruling at 2000 US App. LEXIS 14669 (June 27, 2000).
B. Domain Names—ICANN Proceedings
(selected).
Allocation Network GmbH v. Gregory (WIPO
D2000-0016 March 24, 2000) (rejecting a German trademark owner’s attempt to
obtain allocation.com), http://arbiter.wipo.int/domains/decisions/html/d2000-0016.html.
Amazon.com, Inc. v. Amazonpic (WIPO
D2002-0330 July 22, 2002) (transferring amazonpic.com).
Amazon.com, Inc. v. Cho (WIPO Dec. 20, 2001).
America Online v. Ererneev (WIPO Feb. 2001)
(AOL loses claim to ICQplus.org).
America Online v. John Deep (NAF
FA0103000096795 May 14, 2001) (holding that aimster.com and related domain
names violates AOL’s rights when used to offer a service that sits on top of
AIM; this is really a trademark infringement claim in the guise of a UDRP
panel; inconspicuous disclaimer ineffective), http://www.arbforum.com/domains/decisions/96795.htm.
Brisbane City Council v. Warren Bolton
Consulting Pty (WIPO D2001-0047 May 7, 2001) (brisbanecity.com does not violate
any trademark rights of Brisbane, Australia), http://arbiter.wipo.int.domains/decisions/html/2001/d2001-0047.html.
Deutsche Welle v. DiamondWare Ltd. (WIPO
D2000-1202 Jan. 2, 2001) (rejecting a claim for dw.com; a majority found the
attempt was a reverse domain name hijacking attempt).
Eva Airways v. Chiang (AF-0588 Dec. 26, 2000)
(finding evaair.com infringed when the website contained airline-related
content), http://www.eresolution.com/services/dnd/decisions/0588.htm.
Excelentisimo Ayuntamiento de Barcelona v.
Barcelona.com (WIPO D2000-0505 August 4, 2000) (a bizarre ruling holding that
the city of Barcelona could reclaim Barcelona.com), http://arbiter.wipo.int/domains/decisions/html/d2000-0505.html.
Frampton v. Frampton Enterprises (WIPO
D2002-0141 April 17, 2002).
Gene Logic v. Bock (NAF FA0112000103042 March
4, 2002) (STOP proceeding for genelogic.biz; ordered to be transferred)
Goldline International v. Gold Line (WIPO
D2000-1151 Jan. 4, 2001) (refusing to transfer goldline.com given that the
complainant’s trademarks were limited to the precious metals industry;
disclaimer not evidence of bad faith; finding that the complainant was engaged
in reverse domain name hijacking), http://arbiter.wipo.int/domains/decisions/html/2000/d2000-1151.html.
Hearst Communications v. Spencer (NAF FA0093763
April 2000) (finding that the registration of esquire.com in 1994 was bad faith
even though the UDRP didn’t exist at the time), http://www.arbforum.com/domains/decisions/93763.htm.
John Fairfax Publications v. Domain Names 4U
(WIPO D2000-1403 Dec. 13, 2000) (finding confusing similarity with
Australian-registered trademarks, but as there is no reason the registrant
would have known about the trademarks and thus no bad faith), http://arbiter.wipo.int/domains/decisions/html/d2000-1403.html.
Leland Stanford Junior University v. Zedlar
Transcription and Translation (NAF FA0006000094970 July 11, 2000) (awarding
stanfordcardinal.com to the University), http://www.arbitration-forum.com/domains/decisions/94970.htm.
LifePlan v. Life Plan (NAF FA0005000094826
July 13, 2000) (no exclusive monopoly in the term “life plan” when many parties
had unregistered common law rights), http://www.patents.com/lifeplan/icann.htm.
Lockheed Martin v. Parisi (WIPO D2000-1015
Jan. 26, 2001) (lockheedsucks.com not confusing), http://arbiter.wipo.int/domains/decisions/html/2000/d2000-1015.html.
Madonna Ciccone v. Parisi (WIPO D2000-0847
Oct. 12, 2000) (awarding Madonna.com to the singer when it had been used for a
porn site), http://arbiter.wipo.int/domains/decisions/html/d2000-0847.html.
Microsoft Corp. v. Microsof.com (WIPO
D2000-0548 July 21, 2000) (ruling against typosquatter), http://arbiter.wipo.int/domains/decisoins/html/d2000-0548.html.
Montgomery Mall Associates LP v. Smirk (NAF
FA0204000097042 May 14, 2001) (a confused decision over montgomerymall.com,
concluding that no one can have the exclusive right to the term and thus
canceling the domain name—so who gets it?), http://www.arbforum.com/domains/decisions/97042.htm.
NBA Properties v. Adirondack Software (WIPO
D2000-1211 Dec. 8, 2000) (rejecting a claim over Knicks.com because the NBA was
a trademark licensee, not the owner), http://arbiter.wipo.int/domains/decisions/html/d2000-1211.html.
Reg Vardy PLC v. Wilkinson (WIPO D2001-0593
July 3, 2001) (customer registering company domain names still can be bad
faith).
Reuters Ltd. v. Global Net 2000, Inc. (WIPO D2000-0441
July 13, 2000) (ruling against typosquatter). http://arbiter.wipo.int/domains/decisoins/html/d2000-0441.html.
Schimpff v. Sumpton (NAF FA0003000094333 June
16, 2000) (refusing to award over bassets.com when it was being used for
personal email addresses), http://www.arbforum.co/domains/decisions/94333.htm.
Springfield v. Burger (WIPO D2000-1532 Jan.
25, 2001) (refusing to transfer brucespringstreen.com to the singer), http://arbiter.wipo.int/domains/decisions/html/2000/d2000-1532.html.
Strick Corp. v. Strickland (NAF FA 94801 July
3, 2000) (refusing to find reverse name hijacking in this case without more
guidance from ICANN), http://www.patents.com/strick/icann.htm.
Sumner v. Urvan (WIPO D2000-0596 July 24,
2000) (rejecting a claim over sting.com), http://arbiter.wipo.int/domains/decisoins/html/d2000-0596.html.
Toronto Star Newspaper v. Cohen (WIPO
DTV2000-0006 Jan. 22, 2001) (refusing to transfer tstv.tv to a Toronto TV
station, as tstv is also an acronym used by the transvestite/transsexual
community), http://arbiter.wipo.int/domains/decisions-cctld/html/dtv2000-0006.html.
United States Olympic Committee (USOC) v. Tri
B-U-N Eco. Project (WIPO D2000-0435 July 13, 2000) (domain names containing the
word “Olympic” was not authorized), http://arbiter.wipo.int/domains/decisoins/html/d2000-0435.html.
Wal-Mart Stores v. Walsucks (WIPO D2000-0477
July 20, 2000) (awarding sucks-type domains to Walmart), http://arbiter.wipo.int/domains/decisions/html/d2000-0477.html.
World Wresting Federation Entertainment, Inc.
v. Bosman (WIPO D99-0001, January 14, 2000), http://arbiter.wipo.nt/domains/decisions/index.html.
X/Open Co. Ltd. v. Sorensen (WIPO D2002-0287,
June 24, 2002) (transfer of unix.org).
Yahoo! Inc. v. Net Games, Inc. (WIPO
D2002-0304, June 21, 2002) (no transfer of yahoops.com).
Related cases:
Parisi v. Netlearning, Inc., 2001 WL 503004
(E.D. Va. May 10, 2001) (UDRP is not an arbitration for purposes of the Federal
Arbitration Act), http://www.sock.com/domain/netlearning1.html.
Referee Enterprises v. Planet Ref Inc. (E.D.
Wis. Jan. 24, 2001) (a lawsuit ensuing from an ICANN UDRP over ereferee.com; a
preliminary injunction against using the phrase “referee”), http://www.loundy.com/CASES/Referee_Ent_v_Planet_Ref.html.
C. Domain Names—Foreign.
British Telecommunications PLC v. One in a
Million (Supreme Court of Judicature, Court of Appeal (Civil Division), July 23,
1998), http://www.nic.uk/news/oiam-appeal-judgment.html.
ITV Technologies, Inc. v. WIC Television Ltd.
(1997) F.C.J. No. 1803 (1997).
Marks & Spencer plc v. One in a Million
(High Court of Justice, Chancery Division, November 28, 1997), http://www.nic.uk/news/oiam-judgment.html
and http://www.nic.uk/news/oiam-order.html.
Mecklermedia v. DC Congress (Britain 1997).
Société ALICE c/ Société Alice (Tribunal de
grande instance de Paris March 12, 1998), http://www.legalis.net/legalnet/judiciaire/decisions/ord_120398.htm
(in French), reversed on appeal December 4, 1998 (with the appeals court
holding that, because there was no trademark infringement, the domain name is
allocated on a first come, first served basis), http://www.juriscom.net/jurisfr/alice.htm
(in French).
Societe Cooperative Agricole Campagne
Cereales v. G.J. (French Tribunal de Grand Instance, April 14, 1998) (domain
name squatter forced to turn over the names, even though the plaintiff did not
have a registered trademark).
Tractebel v. Capricorn Inc. (Brussels
Commerce Court 1997) (a Belgian decision in favor of the domain name holder)
D. Metatag Use/Search Engine Baiting.
See generally cases regarding Initial
Interest Confusion at http://eric_goldman.tripod.com/resources/iiccasesummary.htm.
Bihari v. Gross, 119 F. Supp. 2d 309
(S.D.N.Y. Sept. 25, 2000) (ACPA does not apply to metatags; use of person’s name
in the metatags for a “sucks” site was fair use).
Brookfield Communications v. West Coast
Entertainment, 174 F.3d 1036 (9th Cir. April 22, 1999) (using a
third party trademark in the metatags would result in “initial interest
confusion” and thus was not permissible; however, using descriptive terms is
permissible), http://www.bna.com/e-law/cases/brookca9.html.
Eli Lilly & Co. v. Natural Answers, Inc.,
2000 WL 223585 (S.D. Ind. Jan. 20, 2000). Eli Lilly & Co. v. Natural Answers, Inc. (7th Cir.
Nov. 21, 2000) (holding the defendant for trademark infringement and dilution
for, among other things, using a term in the metatags), http://laws.lp.findlaw.com/7th/001375.html.
J.K. Harris & Co. v. Kassel, 2002 WL 1303124 (N.D. Cal. Mar. 22, 2002) (initial interest confusion found in criticism site where HTML formatting was used to increase search engine optimization).
Insituform Technologies Inc. v. National
Envirotech Group LLC (E.D. La. August 27, 1997), http://www.cll.com/case1.htm.
McGraw v. Salmon, 1998 U.S. Dist. LEXIS 10987
(C.D. Cal. June 30, 1998) (injunction against using certain celebrity names as
domain names or in metatags and transferring the domain names to the respective
celebrities).
Nettis Environment Ltd. v. IWI Inc., 1999
U.S. Dist. LEXIS 5655 (N.D. Ohio April 14, 1999) (using metatags led to a
contempt order).
New York State Society of CPAs v. Eric Louis
Associates, Inc., 79 F. Supp. 2d 331 (SDNY Dec. 2, 1999) (bad faith
infringement when accountant used a professional organization’s name in the
domain name and metatags).
Niton Corp. v. Radiation Monitoring Devices,
Inc., 27 F. Supp. 2d 102 (D. Mass. November 18, 1998) (enjoining a party from
using its competitor’s trademarks and other content in metatags).
Ohio Art Co. Inc. v. Watts (N.D. Ohio June
23, 1998) (settled) (conceding that the Web-a-Sketch infringed and diluted the
Etch-a-Sketch marks when it contained such marks as search engine baits; a
disclaimer was not sufficient).
Oppedahl & Larson v. Advanced Concepts
(D. Colo.). Permanent injunctions
ordered against Welch and Advanced Concepts on December 19, 1997 (http://www.patents.com/ac/welchord.sht),
against MSI Marketing, Inc., Professional Website Development and Internet
Business Services on December 19, 1997 (http://www.patents.com/ac/msiord.sht)
and Williams on February 9, 1998 (http://www.patents.com/ac/willord.sht).
PACCAR v. Telescan Technologies, 115 F. Supp.
2d 772 (E.D. Mich. Aug. 25, 2001) (using manufacturer trademarks in metatag
contributed to infringement).
Playboy Enterprises, Inc. v. AsiaFocus
International (E.D. Va. April 10, 1998) (default judgment finding that
embedding Playboy and Playmate into the metatags was willful dilution; Playboy
awarded $3,000,000).
Playboy Enterprises, Inc. v. Calvin Designer
Label, 985 F. Supp. 1220 (N.D. Cal. Sept. 8, 1997), http://www.patents.com/ac/playord.sht.
Playboy Enterprises, Inc. v. Welles (S.D.
Cal. May 1998), (defendant used the terms “Playboy”, “Playmate” and “PMOY” both
in page titles and metatags; the court held that these terms were “titles”
bestowed upon her by Playboy, and thus her use of such terms was trademark
“fair use”—in part because she made only the use necessary, and the metatags
appeared to be used in good faith), http://www.Loundy.com/CASES/Playboy_v_Wells.html. Affirmed without comment, 1998 U.S. App.
LEXIS 27739 (9th Cir. October 20, 1998), http://www.pmdlaw.com/MEMORANDUM.htm. Court ultimately dismissed the case in
Welles’ favor on Dec. 1, 1999, 78 F. Supp. 2d 1066. The dismissal was affirmed in part and reversed in part by the
Ninth Circuit on February 1, 2002,
http://caselaw.lp.findlaw.com/data2/circs/9th/0055009p.pdf.
Promatek Indus., Ltd. v. Equitrac Corp., 2002 U.S. App. LEXIS 16207 (7th Cir. Aug. 13, 2002) (initial interest confusion found among competitors), http://www.promatek.com/press/us7.pdf. See October 2002 amendment!
Trans Union LLC v. Credit Research, Inc., 142
F. Supp. 2d 1029 (N.D. Ill. 2001) (metatags was fair use).
Saskatoon Star Phoenix Group v. Noton, 2001
SKQB 153 (Saskatchewan Ct. App. March 28, 2001) (use of metatags, as part of a
copycat site, is passing off).
E. Search Keywords.
Estee Lauder v. iBeauty (case involving
iBeauty’s use of Estee Lauder trademarks to deliver banner ads) (settled August
2000).
Estee Lauder, Inc. v. Fragrance Counter,
Inc., 1999 U.S. Dist. LEXIS 14825 (S.D.N.Y. September 24, 1999) (in a case
involving the use of third party trademarks as keywords to deliver banner ads,
this ruling refused to dismiss a claim for trademark misuse).
Playboy Enterprises, Inc. v. Netscape
Communications Corp., 1999 US Dist. Lexis 9638 (C.D. Cal. June 24, 1999) (use
of the words “Playboy” and “Playmate” to trigger the delivery of banner ads for
competitors is not trademark infringement or dilution), http://www.bna.com/e-law/cases/planetsc.html.
F. Other Trademark Uses.
Albert v. Spencer, 1998 U.S. Dist. LEXIS
12700 (S.D.N.Y. August 17, 1998).
Amazon Bookstore Inc. v. Amazon.com (D. Minn.
complaint filed April 1999). Case
ultimately settled.
America Online, Inc. v. Christian Brothers (SDNY
December 9, 2000) (sending spam with forged headers violated Lanham Act), http://www.nylj.com/links/aol.html.
Bally Total Fitness Holding Corp. v. Faber
(C.D. Cal. December 29, 1998), (finding that a critic’s website was not
infringing or diluting; interestingly, the court refused to look at what was
linked to from the site in determining dilution).
Computer Currents Publishing Corp. v. Jaye
Communications, Inc., 968 F. Supp. 684 (N.D. Ga. 1997) (dispute over whether
web publishing exceeded the scope of a geographically-limited license).
CompuServe Inc. v. Cyber Promotions, Inc.
(S.D. Ohio, October 24, 1996) (TRO), http://www.jmls.edu/cyber/cases/cs-cp1.html.
Concentric Network Corp., Inc. v. Wallace
(N.D. Cal. November 4, 1996) (Declaration), http://www.Loundy.com/CASES/Concentric_v_Wallace.html.
Desknet Systems v. Fitzsimons, 1997 U.S.
Dist. LEXIS 6713 (S.D.N.Y. May 13, 1997) (increased use of trademark on the
Internet does not constitute actionable trademark infringement).
GoTo.com, Inc. v. Walt Disney Co., 202 F.3d
1199 (9th Cir. Feb. 2, 2000) (infringement based on similar logos).
Hard Rock Café International (USA) Inc. v.
Morton, 1999 U.S. Dist. LEXIS 8340 (S.D.N.Y. June 1, 1999) (in a complex
litigation arising out of an asset sale, finding that a trademark license to
use the trademark anywhere in the world permitted the use of the trademark as a
domain name, and limiting e-commerce activities unless the sales can be made
consistent with a geographically limited trademark license). Modified in part by Hard Rock Café
International (USA) Inc. v. Morton, 1999 U.S. Dist. LEXIS 13760 (S.D.N.Y.
September 8, 1999).
Hotmail Corporation v. Van$ Money Pie Inc.,
1998 WL 388389 (N.D. Cal., April 20, 1998) (a default judgment finding, among
other things, that spammers using forged headers committed trademark
infringement and dilution), http://eric_goldman.tripod.com/caselaw/hotmailvvansmoneypie.htm.
Juno Online Services L.P. v. Juno Lighting,
Inc., 979 F. Supp. 684 (N.D. Ill. September 29, 1997) (dismissing a claim for
trademark misuse and finding that merely registering a name was not a trademark
use in commerce or otherwise an infringement), http://www.bna.com/e-law/cases/juno.html.
Kraft Foods Holdings, Inc. v. Helm, 2002 US
Dist LEXIS 10258 (N.D. Ill. June 7, 2002) (pornographer who called himself
“King VelVeeda” on porn website diluted the VelVeeta trademark).
Mattel, Inc. v. JCom, Inc. (S.D.N.Y. Sept.
10, 1998) (use of “Barbie” on porn site was dilution).
Playboy Enterprises, Inc. v. Chuckleberry
Publishing, Inc., 939 F. Supp. 1032 (S.D.N.Y. June 19, 1996), http://www.bna.com/e-law/cases/playmen.html. Dismissal of reconsideration, July 12, 1996,
http://www.jmls.edu/cyber/cases/playmen2.txt.
Playboy Enterprises,
Inc. v. Universal Tel-A-Talk Inc., 1998 U.S. Dist. LEXIS 8231 (E.D. Pa., June
3, 1998) (denying Playboy’s motion to add a claim for trademark counterfeiting;
no counterfeit of the Bunny logo or the term Playboy because the behavior did
not contravene the classes for which the registration was obtained). Injunction granted at 1998 U.S. Dist. LEXIS 17282 (E.D. Pa. Nov. 2, 1998). Reconsideration denied at 1999 U.S. Dist.
LEXIS 6124 (E.D. Pa. Apr. 26, 1999).
Primedia Internec Corp.
v. Technology Marketing Corp. (D. Kan. November 6, 1998) (refusing to prevent a
webzine operating under the name “Internet Telephony,” even though a print
magazine has used the name “Telephony” for nearly a century).
Radio Channel Networks, Inc. v. Broadcast.com
(S.D.N.Y. March 8, 1999) (use of the term “Radio Channel” was descriptive and
thus not infringing).
Register.com v. Verio (SDNY Dec. 8, 2000)
(emails referencing a registered domain name violated Lanham Act), http://www.icann.org/registrars/register.com-verio/order-08dec00.htm.
Richards v. Cable News Network, Inc., 1998
U.S. Dist. Lexis 11537 (E.D. Pa. July 28, 1998) (trademark suit over the
Internet use of the term “World Beat”).
Simon Property Group v. MySimon (N.D. Cal.
2000). SPG wins a jury award of $26.8M
and an injunction; the judge reduced the damages to $50,000.
Snap-On Tools Company v. C|Net, Inc., 1997
U.S. Dist. LEXIS 14581 (N.D. Ill. September 22, 1997).
U-Haul International, Inc. v. WhenU.com, Inc.
(E.D. Va. Sept. 5, 2003), http://eric_goldman.tripod.com/caselaw/uhaulwhenu.pdf.
Saskatoon Star Phoenix Group v. Noton, 2001
SKQB 153 (Saskatchewan Ct. App. March 28, 2001) (a copycat site of a newspaper
was passing off; led to $5,000 of damages and an injunction).
34. TRADE
SECRET.
DoubleClick v. Henderson, 1997 N.Y. Misc.
LEXIS 577 (N.Y. Sup. Ct. November 5, 1997) (restricting former DoubleClick
employees from using DoubleClick trade secrets (which included actual number of
page views and actual pricing of ad deals) to launch a competing venture; among
other things, granting a 6 month injunction instead of a 1 year injunction
because of the speed of changes in the Internet advertising business), http://www.ljextra.com/practice/intellectualproperty/1112dbldec.html.
DVD Copy Control Ass’n v. Bunner (Cal. App.
Ct. Nov 1, 2001) (no injunction for disseminating trade secrets in DVD
encryption technology).
EarthWeb, Inc. v. Schlack, 1999 U.S. Dist. LEXIS 16700 (S.D.N.Y.
October 27, 1999) (refusing to enforce a non-compete on a number of grounds;
including striking down a 1 year duration as too long given Internet time).
Ford Motor Co. v. Lane (E.D. Mich. September
7, 1999) (an injunction against a website publishing trade secrets constitutes
a prior restraint in violation of the First Amendment). Case settled Jan. 2, 2001 with Lane agreeing
not to post entire documents, solicit secrets or violate copyrights.
New England Circuit Sales, Inc. v. Randall
(D. Mass. June 4, 1996), http://www.Loundy.com/CASES/NECS_v_Randall.html.
Religious Technology Center v. Lerma (E.D.
Va. November 28, 1995), http://www.eff.org/pub/Legal/Cases/Scientology_cases/brinkema_rtc_washpost_112895.opinion.
Sprint Corp. v. DeAngelo, 1998 U.S. LEXIS
10929 (D. Kansas June 30, 1998) (refusing to enforce non-compete).
35. VOIP.
Vonage Holdings Corp. v. Minnesota Public
Utilities Comm. (D. Minn. Oct. 16, 2003).