Safe Harbor Certification: More Than Just a Privacy Policy

If your company collects personally identifiable information from Internet users via a website, you should have a privacy policy.  However, simply copying and pasting the numerous privacy policies that exist today may not be enough to protect your business.  In fact, if your business has not implemented the proper privacy protections, you may face liability, especially when dealing with individuals and business located outside the United States.

As such, the best way to ensure adequate privacy policy terms and conditions is to become certified with the Safe Harbor.  The Safe Harbor is a way for companies located in the United States to avoid interruptions in their business dealings with the European Union countries and to avoid having to face prosecution by European authorities under European privacy laws.  Being Safe Harbor certified will assure that EU organizations know that your company provides "adequate" privacy protection.

Benefits of the Safe Harbor certification include:

• All 27 Member States of the European Union will be bound by the European Commission’s finding of adequacy
• Companies participating in the safe harbor will be deemed adequate and data flows to those companies will continue;
• Member State requirements for prior approval of data transfers either will be waived or approval will be automatically granted; and
• Claims brought by European citizens against U.S. companies will be heard in the U.S. subject to limited exceptions.

In order to become Safe Harbor certified, an organization must draft a privacy policy that incorporates all of the Safe Harbor Principles (Notice, Choice, Onward Transfer, Access, Security, Data Integrity, Enforcement).  The privacy policy must also note that the organization adheres to the Safe Harbor.  With a properly drafted privacy policy in place, an organization must publicly declare its willingness to adhere to the Safe Harbor by self-certifying annually with the Department of Commerce.  If approved, the organization, along with the necessary filings, will be included in the Safe Harbor List.

We can draft a Safe Harbor compliant privacy policy, advise you as to the best ways to implement the privacy policy including dispute resolution, draft and file the certification form, and handle yearly reaffirmations to ensure your organization remains Safe Harbor certified.  Therefore, if your organization does business online, you should contact us today.

RSS Feeds: Does posting third-party sydicated content as an RSS feed on my web site create liability?

Question: "We publish RSS feeds on our community portal - EverythingLubbock.com. I wanted to make sure that there were no rules or restrictions about syndicating RSS feeds on our site."

LinkedIn: Answers: Are there RSS laws or restrictions on Internet syndicated information?

RSS in and of itself presents several traditional legal issues that need to be considered, but there is no specific "RSS" law. You don't mention the type of feeds you are intending to publish, and Several BitTorrent-based peer-to-peer applications support RSS, but I am assuming you are not going to be facilitating Broadcatching like data feeds.

The legal issues you will face, (aside from the contract issues of the RSS syndicator), are similar to the issues faced whenever you are allowing user generated content (UGC) to be presented on your site. First, you are likely acting as an interactive service provider under the Communications Decency Act (CDA), and you will have general publisher immunity. If, however, you start editing the RSS feed and become a content provider by making editor-like decisions you need to be very careful since you might lose your immunity (an example, although not on point, is the roommates.com case in the 9th Circuit). If you are going to take a feed, don't try to edit the content.

Assuming you have immunity, you do not have a problem with product disparagement or defamation. However, immunity does not apply to a copyright infringement claim, and knowledge or intent is not necessary, but you can get immunity under the Digital Millenium Copyright Act (DMCA) if you follow the provisions of that law. As far as trademark infringement goes, if you are notified of an infringement, or you have actual or constructive knowledge of an infringement, you must act reasonably and promptly to stop it. If not, you may have contributory trademark infringement exposure. There are also privacy and commercial exploitation issues to consider, but both of those are usually covered by the immunity provisions of the CDA.

You do have exposure for contract commitments you make in your site's user agreement if the feed content violates a term of the contract. For instance, a site "dedicated exclusively to the remediation of alcohol problems" in which you promise that all information on the site is abstinence-oriented could open you up to liability if your feed content contradicts that promise by either carrying headlines or linking to content through the feed. That is just an example.

Technorati Tags: rss, sydication, dmca, copyright, CDA, UGC

Whistleblowers & Wikileaks: Using the First Amendment to Uncover Wrongdoing.

Wikileads » Interview: Attorney who represented a Wikileaks Facebook group officer against Bank Julius Baer explains flaws in the bank's legal logic

What about Wikileaks? Could they get in trouble for leaking a classified document - even when the document proved Bank Julius Baer was breaking the law?

“The Cayman Islands bank. What do those guys do?” Koltun said. “They provide anonymity for people who are hiding money from the IRS.”

“The bank secrecy laws of offshore tax havens are designed to break the laws of other countries,” Koltun said about the Cayman Islands, Switzerland and other countries known for secretive banking practices.

But when information about these banks leaks, “law enforcement in America is all over that,” Koltun said. U.S. law does not follow the privacy laws of other countries, Koltun said, citing the current debacle about leaked Liechtenstein bank documents as an example.

Leaking secret bank documents is illegal in some countries, but in the U.S., the opposite is true. Holding onto documents that you suspect contain evidence of wrongdoing could get you in trouble with the law. It’s against public policy to keep a crime under taps.

What about Wikileaks? Could they get in trouble for leaking a classified document - even when the document proved Bank Julius Baer was breaking the law?

The Cayman Islands bank. What do those guys do? Koltun said. They provide anonymity for people who are hiding money from the IRS.

The bank secrecy laws of offshore tax havens are designed to break the laws of other countries, Koltun said about the Cayman Islands, Switzerland and other countries known for secretive banking practices.

But when information about these banks leaks, law enforcement in America is all over that. U.S. law does not follow the privacy laws of other countries, Koltun said, citing the current debacle about leaked Liechtenstein bank documents as an example.

Leaking secret bank documents is illegal in some countries, but in the U.S., the opposite is true. Holding onto documents that you suspect contain evidence of wrongdoing could get you in trouble with the law. Its against public policy to keep a crime under taps.

Technorati Tags: wikileaks, whistleblower, cayman

Google To Allow Trademark Use In Adwords Adverertising

FT.com - Anger at Google's keyword shift

A sudden change in Google (NASDAQ:GOOG) 's policy on brand-name advertising in its search results has angered British advertisers, even as it opens up competitive opportunities in search marketing.

From May, Google will allow anybody to buy trademarks as "keywords", allowing rivals' sites to appear in sponsored search results when users query a specific brand or company name.

Critics say the decision will inflate costs of keyword advertising, set by auction, and will confuse consumers seeking particular companies' websites. "The changes mean competitors are going to start bidding against brand terms," said Phil Sheard, e-marketing manager at PlusNet, an internet service provider owned by BT. "It will force companies who aren't [already] advertising against their own terms to start doing so to get representation."

We have previously posted about liabililty for use of trademarks in Google Adwords campaigns in the following post:

• Google Adwords Campaigns Can Support Trademark Infringement Litigation
• More Commentary on the Vulcan v. Google Cybersquatting Class Action
• Parking Pages Can Create Risk Of A Finding Of Bad Faith Under the UDRP

Technorati Tags: trademark, google, adwords, google

LegalZoom.com Faces Consumer Fraud Class Action Over Trademark Filing Fees

Legal Zoom is in hot water over allegations of consumer fraud related to its trademark registration fees of $325. Actually, the registration fees vary depending on whether the filing is electronic (which it always is with LeglaZoom.com) and which eTEAS system is accessed. LegalZoom appears to have used a USPTO service with a registration fee of $275.00, but represented on its web site that 'hard' or "pass-on" "Standard Government Filing Fee" was $325. LegalZoom has since changed its web site to add a $50 administrative fee to the USPTO filing fee.

Law.com - Class Certification Sought Over LegalZoom's Filing Fees

As alleged in the petition, LegalZoom charges consumers a "U.S. Government Filing Fee (required)" of $325 and a $159 service fee to file a trademark application with the USPTO. But LegalZoom pays $275, the actual fee for the USPTO's TEAS Plus (Trademark Electronic Application Service), and has been overcharging consumers since July 2005, when the TEAS Plus application service took effect, Solotko alleges.

"They're misleading consumers," contends Robert Kleinman, a shareholder in Austin's Sutton Kleinman and one of the attorneys representing Solotko.

Solotko says in an interview that after LegalZoom filed the trademark application, he determined through research of USPTO public records that the actual government fee for the TEAS Plus application was $275. "Once I discovered this, I realized there were probably many, many people like me," says Solotko, who paid an extra $50 for his filing.

On-line retailers, merchants and service providers must be extremely
careful to ensure that its on-line information is extremely accurate on deliverables and pricing. Traverse Legal attorneys expect to
see an growing trend in these types of consumer class actions against on-line web service providers and eRetailers.

Technorati Tags: legalzoom.com, legal zoom, legal zoom, class action

The CAN-SPAM Act: Requirements for Commercial Emailers

The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.

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Don't Let Web Developers Register Your Domain Name

Domain Names = Business Asset | Masterful Marketing: 8 Steps to Marketing Success

I recently had the pleasure of wrestling a new client’s domain name and web site from their current developer. It is not a pleasant experience but when you ask the developer to make changes and nine weeks later they haven’t even returned a phone call, something has to be done.

But even more disconcerting is when I find out that the domain name is registered under the web developer’s name.

Your domain name is a business asset. To have anyone else hold that name in their possession is a disaster waiting to happen. But many business owners don’t realize the value of those domain names. Keep in mind that if I wanted to buy your business sometime in the future, one of the assets I want is your domain name.

Another thing that concerned me about this situation is that when I initiated the transfer of the domain name to a registrar in the business owner’s name, the web developer told the owner that doing that would mean he would relinquish control of the domain to the registrar. Mis-information like this really annoys me. Are they uninformed or just lying?

Technorati Tags: web, developer, internet

YouTube.com Traffic Hijack As A Result of Faulty Route Announcement

News & Announcements from the RIPE NCC

On Sunday, 24 February 2008, Pakistan Telecom (AS17557) started an unauthorised announcement of the prefix 208.65.153.0/24. One of Pakistan Telecom's upstream providers, PCCW Global (AS3491) forwarded this announcement to the rest of the Internet, which resulted in the hijacking of YouTube traffic on a global scale.

In this report we show how the events were seen by RIPE NCC's Routing Information Service (RIS) and how, in general, one can use the RIS tools to obtain hard data on network events.

The Class Action Filed Against Network Solutions & ICANN Relies on Erroneous Facts

The Internet are abuzz over the class action supposedly filed by the law firm Kabateck Brown Kellner, LLP.  Thus far, we have been unable to confirm that anything has been filed in the U.S. District Court, Central District of California as stated by class counsel. We were able to obtain a copy of the complaint, signed by counsel but with no case number, which you can view here.

Many lawyers who specialize in internet law are intersted to see what theories of liability have been alleged against Network Solutions and ICANN. While there are many people hoping that this class action goes a long way and brings Network Solutions to its knees, the case may be dismissed rather quickly since lead counsel appears to have plead erroneous facts as the foundation of liability against Network Solution.

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The Anti-Phishing Consumer Protection Act of 2008

As originally posted by Mike Berkens at thedomains.com, Senate Members have proposed a bill to eliminate the practice of phishing e-mails and websites. 

BILL PROPOSED TO TAKE AWAY YOUR DOMAINS

Yesterday Senator Olympia J. Snowe (R-Maine) with support of Senator, Bill Nelson (D-Florida) and Senator, Ted Stevens (R-Alaska), introduced, a bill entitled “The Anti-Phishing Consumer Protection Act of 2008″ The stated purpose of the bill is to stop the practice of phishing e-mails and websites. A Phishing is a scam whereby people receive e-mails or instant messages directing them to go to websites which are usually set up to look identical to the site that the internet user has an account with, and then tries to get the user to enter personal information into the fake website, such as their login info, user id and password. The scammers then use this information to access the internet user’s actual account and scam them out of their money. There is a serious and substantial phishing problem going on. I personally receive these types of e-mail many times each day both from banks and institutions I do business with, and many I do not.

The bill contains substantial civil, and potential criminal penalties, not only for owners of domains used in phishing scam, but includes ANY domain name, which contains or uses a brand name, trademarked name, or names of a government entity, agency, non-profit agency or any business or other entity.They are basically taking domain disputes out of the hand of the arbitrators, mediators and the courts and handing it over directly to the Federal Trade Commission and the Attorney Generals of each state for civil enforcement. The bill allows the government to get injunctive relief, without showing anything but the domain name itself.  No intent or other issues seem to be required other than the domain name for an injunction.The bill also gives the Federal Trade Commission and the Attorney General’s office the right to seek up to 6 million dollars for each violation, plus all attorney fees of the government

Technorati Tags: phishing, anti-phishing, consumer protection

Software Licenses Violate Consumer Protection Laws?

Consumer group claims software licences are unfair | OUT-LAW.COM

Software licences are obscure, unbalanced and unfair, according to the National Consumer Council (NCC), which has filed a complaint with the Office of Fair Trading (OFT). It wants the OFT to force software publishers to use clearer licences.

The NCC says that consumers are stripped of their rights by overly-legal licences that they cannot understand, and has called for licences to be written in plain English, in line with OFT guidelines.

The NCC bought 25 software products and found problems with the licences in 17 of them. It has referred these for investigation by the OFT to find out if they breach consumer legislation that demands that contracts be fair.

It said that problems include a lack of notice that users will even have to sign an end user licence agreement (EULA), and the fact that they do not have a chance to review it before purchasing software.

"Plugging the gaps in consumer legislation is a vital move," said Carl Belgrove, senior policy advocate at the NCC. "Consumers can't have a clue what they're signing up to when some terms and conditions run to 10 or more pages. There's a significant imbalance between the rights of the consumer and the rights of the holder."

Technorati Tags: software, license, consumer protection

Wikileaks.org Subjected to Injunction Requiring Documents To Be Removed From Web Site

[See Court Documents Below]  - Thanks to Dave Zan who reported an interesting new lawsuit involving wikileaks.org (no longer live but available at http://88.80.13.160/wiki/Wikileaks) a “website dedicated to leaking documents that are “anonymous, untraceable, uncensorable.”  Time Magazine allegedly described the site by stating that it "could become as important a journalistic tool as the Freedom of Information Act."

The case involves the alleged posting of private internal documents of Bank Julius Baer & Co and its bank customers by a whistle blower reporting that a bank's data had been compromised.  Certain alleged private documents were allegedly posted on the wikileaks.org web site. Plaintiff Bank Julius Baer alleged that the posted documents were "internal nonpublic company documents and/or which contains private client or customer bank records and/or identifies client or customer names, data, account records and/or bank account numbers" and sought to have the documents removed from the site. it is unclear whether the documents have been removed as of today's date, although there are still pages of unknown veracity devoted to the bank data issue here and here.  The case certainly raises issues concerning First Amendment Rights, censorship and freedom of speech.

For some unknown reason the complaint has not been made public by the court, although there is a court order sealing certain private records attached as exhibits. The most controversial part of this case is the Court's order to shut down the entire Wikileaks.org web site by way of Permanent Injunction - stipulated to by Registrar Defendant Dynadot (it appeared in the court record that Dynadot stipulated to the order, but it is now clear that the order Dynadot stipulated to here was not the order entered by the Court)- ordering:

Dynadot shall immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.

It is unclear on the court record why the draconian approach of shutting down the site which certainly contained a large amount of legitimate content protected by the First Amendment was the Court's first step. Regardless, as noted above, the site survived the order issued against the registrar which is still live here.

The Court entered another order against Wikileaks and its directors (see extended post) remove certain allegedly private documents by wikileaks.org, who never appeared in the proceeding through counsel or otherwise. Further hearings, including an opportunity for Wikileaks to oppose the injunction is scheduled for Feb 29.

[update 030108 - Judge Reverses Prior Ruling and Dissolves Injunction]

[update 030108 - Amicus Brief Filed by Various national Newspapers]

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College Web site posts sex gossip, hate, rumor raising first amendment and defamation concerns

First Amendment rights pushed to the extreme at juicycampus.com

College Web site posts sex gossip, hate, rumor - CNN.com

Under U.S. law, sites like JuicyCampus generally bear no responsibility for what their users post, said George Washington University law professor Daniel Solove, author of the recent book "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet."

But Solove believes Congress and the courts have gone overboard protecting such sites. It's one thing to protect the owner of a Web site when someone posts a defamatory message unbeknownst to the operator. But Solove says sites like JuicyCampus exist solely to propagate gossip and should be held to a different standard.

In fact, JuicyCampus seems designed to shield its users from the threat of libel claims. The site's privacy page notes that it logs the numeric Internet protocol addresses of its users, but does not associate those addresses with specific posts. That is unlike mainstream social networking sites, which do maintain such detailed logs.

JuicyCampus also goes further by directing posters to free online services that cloak IP addresses. "Just do a quick search on Google and find one you like," JuicyCampus advises.

The site's companion blog reminds users that "our terms and conditions require users to agree not to post anything that is defamatory, libelous, etc." But a few paragraphs later, the blog implies that it will rebuff anything short of a public safety query: "If your school calls upset about some girl being called a slut, we're not handing over access to our server data. If the LAPD calls telling us there is a shooting threat, you better believe we're gonna help them ..."

Technorati Tags: first amendment, juicy campus, juicycampus, defamation, libel, slander, internet

Data Security, DNS Server Corruption and Malware

DNS Inventor Warns of Next Big Threat - Desktop Security News Analysis - Dark Reading

Mockapetris -- who is also chief scientist and chairman of the board for network naming and address vendor Nominum -- says the recent research on corrupted DNS resolution servers by researchers at Georgia Tech and Google demonstrates yet another way the bad guys are attacking DNS to infect users. (See Hacking a New DNS Attack .)

Researchers David Dagon, Chris Lee, and Wenke Lee of Georgia Tech, and Google's Niels Provos, dubbed the new threat "DNS resolution path corruption,” where malicious DNS servers provide false information in order to send users to malicious sites. The researchers officially presented their findings today at the Network and Distributed System Security Symposium (NDSS) in San Diego.

In their study of DNS resolution, they found around 17 million open-recursive DNS servers on the Net, and discovered that about .4 percent, or 68,000 of them, are performing malicious operations by answering DNS queries with false information that sends them to malicious sites. About 2 percent are returning suspicious results, they reported.

Technorati Tags: dns, kacking, server

Phishing Scam on TrofficZ Site

TrafficZ customers targeted by phishing scam » Domain Name News

According to an email by TrafficZ, customers of the parking company have been target of a phishing scam. The email entitled “TrafficZ | Domain Termination Notice” states that one of [the customer’s] domains has been deleted from [their] TrafficZ account and asks them to visit Traffiz.com within 72 hours in order for their account not to be blocked. The link in the email leads the user to TrofficZ.com instead of going to TrafficZ.com. The originators of this phishing scam are attempting to capture the usernames and passwords of the mislead users.

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Microsoft to buy Yahoo

It was announced today that Microsoft is proposing to buy Yahoo at a substantial premium over Yahoo’s current stock value.  This is an attempt to Microsoft to gain leverage in the search engine market against Google. 

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Beijing company known for fakes applies for trademark, warns counterfeiters

A Beijing clothing market famous for selling fakes has started its own line of brand-name products, filed for trademark protection and has warned counterfeiters that it intends to enforce it's mark.

Counterfeit Brand Naming Hotspot Tries To Go Legit With SilkStreet: Name Wire: The Product Naming Blog

In what Agenda Inc. refers to as a “highly ironic move,” notorious brand naming counterfeit hotspot Silk Street Market in Beijing has applied for a trademark to its own SilkStreet clothing label and warned counterfeiters not to copy it.

In what must be the most lenient criterion for reselling a high end brand in the world, the company solemnly assures us that only traders with ““no record of selling fake or shoddy products within six months and no [customer] complaints.” can sell SilkStreet brands.

This will surely raise a few eyebrows over at Burberry, Chanel, Gucci, Louis Vuitton and Prada, who won a symbolic $1,387.00 in a joint lawsuit against Silk Street and five of its tenants, “the first case in China to end in such a settlement.”

Technorati Tags: trademark, counterfeit, brand, silkstreet

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US-Based Company Privacy Policies May Not Comply With EU Privacy Laws

Many United States Companies with high-traffic web sites do considerable business in the European Union. Few US companies understand and appreciate that privacy laws are much stricter in the EU than the US. Privacy Policies need to cover both US privacy laws, as well as EU privacy laws. 

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Microsoft Awarded Damages, Attorney Fees & Injunction Precluding Further Counterfeiting

Seattle Trademark Blog - Published by Michael Atkins- Microsoft Wins Most of Georgia Counterfeiting Case

In 2006, Microsoft Corp. brought suit in the Northern District of Georgia against Silver Star Micro, Inc., and its principal, Chase Campbell, for trademark and copyright infringement. On Jan. 6, Judge William Duffey, Jr., granted in large part Microsoft’s motion for summary judgment and imposed a permanent injunction against the defendants.

The court awarded Microsoft $30,000 for each of the nine copyrights infringed, plus $25,000 for each of the four trademarks infringed, for total of $370,000. The court also found this was an “exceptional” case under the Lanham Act, entitling Microsoft to an award of its attorneys’ fees and costs.

Finally, the court entered a permanent injunction against the defendants, enjoining them from copying, selling, or making any other infringing use of Microsoft products.

Technorati Tags: microsoft, counterfeiting, trademark, lawsuit

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No Word On Sunrise Registration For Trademark Holders For .Me Domain Extensions

New ccTLD (Country Code Top Level Domains) for .me:  Domain registrar and Web hosting provider Go Daddy (godaddy.com) announced on Friday that it has been selected by the government of Montenegro as one of the three members in a joint venture that will be operating the new domain extension, .me. Go Daddy says interested customers will be able to register for the new domain extension for personal or business use later this year.  This continues the trend of small countries finding ways to monetize country code domain extensions. Instead of using the 2 digit extension .me to indicate country of origin, anyone can use the extension for any lawful (an perhaps unlawful) purpose.  Two digit domain extensions for countries are provided for under ISO 3166 is the International Standard for country codes and contemplated by RFC 1591, Domain Name System Structure and Delegation, March 1994.

Sunrise Registration Period?  GoDaddy has not indicated thus far whether Sunrise Registration Period
for trademark holders (allowing trademark holders exclusive rights to register their UDRP and ACPA protected .me domains before opening registration up to the general public).

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Email Squatting The New Typosquatting?

A new cyber crime was recently brought to our attention. Everyone knows that cybersquatting is a rampant problem in the world wide web. What happens if cybersquatting spreads to other areas of the internet? What we are referring to is a new internet crime known as “email squatting.”

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Google Adwords Campaigns Can Support Trademark Infringement Litigation

Our lawyers are often asked about whether a competitors use of their trademarks in Google adwords campaigns can result in legal liability.  The answer is that, in some circumstances, use of a competitors trademarks in Google adword advertising is unlawful.  While this is a very young area of law with few reported decisions, the Australian Gold v. Hatfield, 436 F.3d 1228 (10th Cir. 2006) case makes it clear that legal counsel should be consulted before starting any adwords campaign using some else's trademarks and threat letters are appropriate by trademark owners. Eric Goldman over at the Eric Goldman blog has some fun with 1-800 Contacts Google Adwords litigation filed last week. 

Technology & Marketing Law Blog: 1-800 Contacts Sues LensWorld for Keyword Advertising

In any case, the LensWorld lawsuit is a garden-variety advertiser-vs.-advertiser keyword advertising lawsuit. Based on the limited data we have, I'm guessing the Utah federal court will deem keyword advertising a trademark use in commerce, but after that, who knows? The only twist here is that 1-800 Contacts claims that LensWorld aped their FAQs, prompting a tossed-in copyright infringement claim as part of the package. Also I can't help but note that there appear to be many other possible defendants who are buying 1800contacts as a keyword (see the screenshot in para. 22/page 6)...is a 1-800 Contacts litigation frenzy imminent, or is LensWorld uniquely positioned for 1-800 Contacts' enmity?

Technorati Tags: trademark, adwords, google

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Sears Alleged To Have Disclosed Data In Violation of We Site Privacy Policy

Sears sued over privacy breach | InfoWorld | News | 2008-01-08 | By Robert McMillan, IDG News Service

The lawsuit seeks damages as well as an accounting by Sears to determine whether the Web site was misused by criminals. It was filed on Friday by New Jersey resident Christine Desantis, who is represented by KamberEdelson, a technology law firm. KamberEdelson is best known for its recent settlement with social networking site Facebook over its sending of unwanted text messages to recycled cell-phone numbers.

"It's a pretty simple case," said Jay Edelson, a partner with the Chicago-based law firm. "Sears decided to put private information of its customers up on the Web site and make it publicly available. They did it without telling their customers that it was going to happen ... and they really did it for their own financial reasons."

Manage My Home is a community portal where Sears shoppers can download product manuals, find product tips, and get home renovation ideas. The Web site had a feature called "Find your products" that ostensibly was designed to help users look up past purchases.

Last Thursday, researchers at security vendor CA pointed out that the feature could be used to look up the purchase history of any Sears customer, an apparent violation of the company's privacy policy.

Technorati Tags: sears, privacy policy, data security

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Cybersquatting UDRP Cases Continue to Rise

The number of complaints filed by real or alleged trademark owners against alleged cybersquatters under the “Uniform Domain Name Dispute Resolution Policy” (UDRP) hit an all-time high in 2007, according to this data from the World Intellectual Property Organization, riding from1857 to 2156 in the last seven years.

Technorati Tags: icann, udrp, cybersquatting

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Data Discrimination Allegations Against Comcast

FCC Investigating Comcast Data Discrimination - News and Analysis by PC Magazine

Kevin Martin is raining on Comcast's CES parade.

On the same day Comcast CEO Brian Roberts gave the first ever CES keynote by a cable chief (with the Flight of the Conchords in tow, no less), the FCC chairman said at a separate CES panel that the commission would be investigating whether Comcast was involved in data discrimination.

"Sure, we're going to investigate and make sure that no consumer is going to be blocked," Martin was quoted as saying.

In October, AP conducted a test that it said proved Comcast was blocking access to peer-to-peer networks; an experiment that was later replicated and confirmed by the Electronic Frontier Foundation (EFF). Comcast accused AP and EFF of using too narrow a focus with its tests. The cable provider admitted to "delaying" certain P2P traffic, but denied that it was blocking access to any content.

Two months ago, the SavetheInternet.com coalition and several academics filed a complaint with the FCC calling on the commission to stop Comcast from violating customer rights.

Technorati Tags: Electronic Frontier Foundation, Data Discrimination, Comcast

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ValueClick Moves Closer to End Of Consumer Protection Probe

ValueClick sees FTC probe resolved soon | Technology | Internet | Reuters

NEW YORK (Reuters) - Online marketing company ValueClick Inc said on Wednesday it was optimistic it would soon settle a Federal Trade Commission investigation into some of its Web sites, possibly in the first quarter.

In May, ValueClick said the FTC was looking into a few of its Web sites that promise consumers free gifts, as well as the way in which it drives traffic to such sites.

SEDO Auction Error on Music.mobi domain?

There is a lot of chatter going on right now concerning the SEDO auction of the music.mobi domain. Here is what one auction participant (Costa G Roussos) said about his alleged winning bid at the auction close:

I have been a part of this SEDO .mobi auction auction and I am the one responsible for the bid $611,000 for music.mobi. However I stopped bidding at the point where I realized that the NEW auction was a scam because the two bidders that were bidding me up were NEW bidders who were not even involved in the initial auction. The initial auction closed with me winning the last bid at $66,000. I received an invoice and 2 emails regarding the winning bid.

They proclaimed me winner send me 2 emails, sent me an invoice. I considered the bid finished and was ready to go and play guitar and record this new song I was working on in the studio. By chance, I get an email by whom? BOTH the .mobi MTLD who started INVITING people via a bulk message hyping them up that the servers have crashed and that there is huge demand for the .mobi auction. Then Sedo followed. So 2 bulk messages sent to the world inviting them to attend a NEW auction. Not only that, they extended the auction to 2.5 hrs NOT 5 minutes.

Sedo claimed this was because their servers were slow in the last few minutes of the 7-day auction claiming that they could do this according to their Terms of Service / Conditions. The extended bidding apparently drew attention from a number of bidders that were not active in the original auction, causing the domain to sell for $616,000, nearly 10x the price at which Roussos claims he won the domain name.  Here is the policy of SEDO which, of course disclaims liability. 

Here is Constantine Giorgio Roussos' blog at http://entrepreneur.pro relating the and his legal analysis incident from his point of view.

Here is the commentary so far....

• http://www.namepros.com/dot-mobi/403779-i-bid-611-000-music-mobi.html
• http://www.namepros.com/dot-mobi/403847-the-reality-yesterdays-mobi-auction.html
• http://www.namepros.com/dot-mobi/404038-music-mobi-lawsuit-sedo-mtld-auction.html
• http://mobi.music.us/ (Class action subscription request)
• http://www.conceptualist.com/2007/12/11/directnavigationcom-dot-mobi-retracts-press-release/
• Domain Name News Article

Google, Fair Use, and a Perfect 10

In the recent case of Perfect 10 v. Google, Perfect 10 sought relief from damages alleged against Google for its part in aiding users in viewing Perfect 10’s copyrighted work. Perfect 10 is a site that allows the viewing of nude models with a required subscription. Some of Perfect 10’s content has hosted on other sites that are copyright infringing by hosting the files. The reason that Perfect 10 went after Google is because Google’s search engine was displaying copyright infringing content that was being hosted by the websites that have leaked the Perfect 10 content. The whole story can be found here.

The Ninth Circuit Court ruled, “Google does not … display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in–line linked images that appear on a user’s computer screen.  Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act.  In other words, Google does not have any “material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy.  Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image.  Providing these HTML instructions is not equivalent to showing a copy.  First, the HTML instructions are lines of text, not a photographic image.  Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen.  The HTML merely gives the address of the image to the user’s browser.  The browser then interacts with the computer that stores the infringing image.  It is this interaction that causes an infringing image to appear on the user’s computer screen.  Google may facilitate the user’s access to infringing images.  However, such assistance raised only contributory liability issues and does not constitute direct infringement of the copyright owner’s display rights. … While in-line linking and framing may cause some computer users to believe they are viewing a single Google web page, the Copyright Act, unlike the Trademark Act, does not protect a copyright holder against acts that cause consumer confusion.”

The Ninth Circuit Court, under U.S.C. Section 107, used four factors in determining whether a particular use of a copyrighted work was a permissible fair use, those factors are: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Utilizing those four factors the Ninth Circuit Court holds that Google’s creation and display in search results of lower resolution ‘thumbnail’ copies of infringing images found on third party websites for the purpose of aiding the public in locating such images is a fair use that does not infringe the rights of the copyright therein.

Tech-Lawyers For Technology Companies

Our Lawyers Know Technology.

• Are you a technology company paying legal fees to a lawyer who doesn't really 'get it'?
• If your lawyers don't understand technology, how can you expect them to competently protect your intellectual property, negotiate contracts or structure business deals with other tech-sector companies? 

At Traverse Legal, our lawyers represent a variety of technology companies -  and other businesses which rely on technology -  whose legal problems require specialized counsel.  Contact one of our lawyers today and we will change the way you value legal services.

Toshiba recalling laptop batteries

Toshiba is recalling 340,000 laptop batteries worldwide made by Sony Corp., the latest in a series of problems for the company.   The defect is not directly related to the problem behind last month's recall of Sony batteries by Dell Inc. and Apple Computer Inc., which cited concerns that the batteries could overheat and catch fire.  Dell asked customers to return 4.1 million faulty laptop batteries, while Apple recalled 1.8 million batteries worldwide.  In both those cases...more here.

Service of Process by Email

Internetcases.com has reported this interesting case from New York where a court allowed service of process by e-mail. Tishman v. The Associated Press, (Slip Op.) 2005 WL 288369 (S.D.N.Y. February 6, 2006).

Here is the synopsis provided by internetcases.com:

Plaintiffs Tishman and Wilkinson filed a lawsuit against defendant Pine, but had difficulty serving Pine with the summons. The plaintiffs tried the conventional methods of service under New York law, such as personal delivery. They even tried the "nailing and mailing" method by affixing a copy of the summons to the door of Pine's residence, then sending a copy in the mail.

Tishman and Wilkinson had information, however, that led them to believe Pine was out of the country. Knowing this, they wanted to be sure that service was properly affected. Accordingly, they petitioned the court for permission to serve Pine by e-mail, pursuant to N.Y. C.P.L.R. §308(5), which allows service by such manner as the court directs, when the more conventional methods are "impracticable."

The court allowed service of the summons to an e-mail address Pine had used in a classified ad listing his house for sale. The court held that given the uncertainty about the success of the attempted "nailing and mailing" effort, and the fact that the Pine's attorneys wouldn't give a clear answer as to where Pine was living, alternative service by e-mail was appropriate.

There is a lesson to be learned here. Virtually, every State has a law for alternative service of process. In technology cases, the out of State or out of Country party is fairly common. Don’t forget that you can go to your Judge and ask for alternative service by e-mail in order to make sure you don’t come up against a "lack of notice" defense. Most States also have rules which provide that actual notice, even if it is not notice otherwise provided under the rules, will defeat a motion to set aside of default judgment. So don’t forget to try serving a party by e-mail in addition to all the other methods. Click on the "return receipt" option or hire a verification service so you can prove to the Court that the e-mail was received and opened.

Taking Control of ISP Contracts

Internet services providers (ISPs) face a number of unique and difficult issues on a daily basis. Upstream service providers regularly force complex contracts on downstream bandwidth providers which contain provisions which are neither reasonable nor necessary. Downstream ISP’s sometimes feel they have little leverage in negotiating those terms with large companies such as SBC, Verizon, MCI, Quest, AT&T, AOL, Sprint and other Tier 1 bandwidth providers.

Often, ISPs push many of the same contract terms downstream to their customers, who again feel they have no bargaining leverage.

If you are an ISP dealing with a variety of bandwidth providers, vendors and customers, you need a coordinated strategy to minimize and allocate liability.  We have experience negotiating ISP contracts, both upstream and downstream.  Your contracts define your rights. Treat your contracts like important documents and you will save money, time and resources down the road.

Conducting contract audits and standardizing contracts are will help you take control of your liability risk.  We provide this service to ISPs on a flat fee 'project' basis.  Call us for a quote.  You will be surprised how much value we deliver for each legal dollar spent.

Merging Technology and The Law

When your business is technology, you need lawyers who understand technology. These and other tech-savvy companies have chosen Traverse Legal for legal representation. Shouldn't you see what you are missing?

• Mica Networks
• WD Web Company
• MorePhotos.com
• TruckSkin, LLC
• Leelanau Communication, Inc.
• GLIMANorthwest
• Cybersports, Inc.
• HSA TEAM, Inc.
• The Intelligence Agency
• EveryWhereUgo.com
• Ten-Keys.com
• PM Technolgies
• GreatMichigan.com
• Traverse City Business News
• ForeWord Magazine
• AbsoluteMichigan.com

Contact a tech-lawyer for a free consultation. We will change the way you value legal services.

 

Client's Speak: Mica.net President

Mica.net's president has this to say about Traverse Legal's services:

1. I'm in the High Tech Service Internet service industry, not an easy business to be involved with.  Not only does my company have to consider regularity issues but often we are faced with situations related to the Internet were the law has not been developed.  Enrico Schaefer understands this complex industry and has experience with the technologies and how the law has evolved to cover the complex Internet related issues. Enrico spends the extra time to fully understand, my situation.  He makes himself readily available for questions or follow-up.

2. When I bring an issue to Enrico, I'm getting experience, depth and understanding.  Further, I feel I'm getting value and results from my legal dollar.

3. I've utilized law firms for over 10 years.  In that time, I can't say there were to many attorneys that I would go back except Enrico Schaefer.  I highly recommend Mr.. Schaefer's legal services.  He's competent, experienced and delivers the results we look for in General Counsel.