JOLT Digest

By Ian B. Brooks

Paris Hilton Obtains Small Victory in Ninth Circuit

WSJ Blogs reports that the Ninth Circuit gave Paris Hilton the green light on August 31 to proceed in her lawsuit against Hallmark for its use of her image and the phrase “That’s Hot” in a birthday greeting card. The court made note of the similarities between the card and Hilton’s appearance on the television show “The Simple Life.” In support of Hilton, the court stated that she “has at least some probability of prevailing on the merits before a trier of fact.” The case name is Hilton v. Hallmark Cards.

Cable Companies No Longer Capped at 30% Market Share

The Washington Post reports that on August 28, the Court of Appeals for the D.C. Circuit in Comcast v. FCC invalidated an FCC rule that capped the market share of cable companies at 30%. The FCC supported the rule because it believed that cable companies with market share larger than 30% would harm consumers. The court rejected the FCC’s rule in part because it failed to show how consumers would be harmed by the large cable companies in the current market, given the competition between cable, satellite, and fiber optic providers.

Texas Links DNA to Criminal Records

WSJ Blogs reports that on September 1, a new law took effect in Texas will link DNA evidence to sexual assault suspects’ criminal records. The link will be maintained regardless of whether the statute of limitations has passed or the suspect has been tried. The law’s supporters want to ensure harsher penalties to these suspects should they face legal troubles in the future, as the record would be available to parole boards and prosecutors. Critics of the law, including the ACLU, fear the potential abuse of due process rights.

Florida Bar Wants Access to Certain Applicant Facebook Profiles

The Florida Board of Bar Examiners will now be requesting access to the Facebook profiles of certain applicants on a case-by-case basis. The Board has identified a number of categories of applicants that it will require access from, including persons with a history of certain types of legal experience or substance abuse. The Citizen Media Law Project notes many of the privacy concerns related to the Bar’s decision.

By Evan Kubota

Microsoft, Yahoo, Amazon Join Opposition to Google Settlement

The New York Times reports that Microsoft, Yahoo, and Amazon have joined library associations, nonprofits, and individuals in opposing the Google Books settlement in The Authors Guild v. Google. The settlement, which would allow Google to provide digital versions of millions of books, still requires court approval and remains the subject of a Department of Justice antitrust investigation. The opposition group, tentatively called the Open Book Alliance, will argue to the Department of Justice that the settlement agreement is anticompetitive.

Internet Law Group Brings Suit Against Unidentified Hackers

“John Doe” suits brought against unidentified Eastern European hackers may offer a glimpse of the hackers’ targets and techniques through subpoenas against defrauded banks. However, the banks may challenge the subpoenas in order to protect customer privacy. Unspam Technologies, a group that recently filed suit against bank hackers in the Eastern District of Virginia, hopes to improve bank security and potentially identify the hackers. The New York Times outlines the stakes and key players in the case, Project Honey Pot v. Does.

Mozilla Versus Microsoft in EU Browser Investigation

Ryan Paul at Ars Technica criticizes Mozilla’s complaints regarding Microsoft’s Internet Explorer bundling and default-setting practices. Paul not only argues that many of Mozilla’s complaints “lack substance,” but also claims that the European Union has no business intervening to encourage competition because Mozilla’s Firefox browser has a 22 percent market share “amidst an increasingly competitive browser market.” In contrast, Mitchell Baker of Mozilla argues that the Firefox browser is at a disadvantage because Internet Explorer has a “uniquely privileged position on Windows installations.”

By Andrew Jacobs

Marine Corps Bans Social Networking Sites

In a directive issued Monday, the U.S. Marine Corps banned the use of social networking sites on its Marine Corps Enterprise Network, Wired and InformationWeek report. Characterizing these sites — including Facebook, MySpace, and Twitter — as “a proven haven for malicious actors and content,” the Corps hopes the ban will protect the network from cyberattacks and keep adversaries from acquiring user-generated information leaks. The directive does not limit Marines’ access to social networking sites on non-military networks, and a follow-up press statement encouraged the use of social media by Marines on their own ISPs.

Senate Hears Debate on Radio Performance Rights

The Senate Judiciary Committee heard debate Tuesday on the proposed Performance Rights Act, which would compel terrestrial radio stations to pay royalties recording artists, Ars Technica reports. Under current copyright law, webcasters and satellite radio stations pay royalties to both a song’s writer and its performer, while terrestrial stations are only obliged to pay songwriters. The debate pits two powerful interest groups, among others, against each other: the National Association of Broadcasters (NAB) staunchly opposes the bill, while the Recording Industry Association of America (RIAA) has voiced its strong support.

FTC Takes New View of Online Privacy

The Wall Street Journal and The New York Times report new FTC consumer protection head David Vladeck plans to shift the agency’s approach to online privacy protection. In a New York Times interview, Vladeck states he hopes to address the “notice and consent” framework that he considers “no longer sufficient” online, as it has resulted in privacy disclosures that are rarely read or understood. He also plans to consider not only economic harm, but also the “dignity interest” that arises in online information collection. Though no new rulemaking is yet planned, updated FTC privacy guidelines are expected next summer.

Tenth Circuit Affirms Liability for Seller of Private Telephone Records

By Tyler Lacey – Edited by Anthony Kammer
Federal Trade Commission v. Accusearch Inc., June 29, 2009, No. 08-8003
Slip Opinion

On June 29, 2009, the Tenth Circuit affirmed the Wyoming District Court, holding that Accursearch’s sale of private telephone records on its Abika.com website constituted an unfair practice in violation of the Federal Trade Commission Act (FTCA) and granted summary judgment for the Federal Trade Commission (FTC).

Dan Gooden of The Register provides an overview of the opinion. Eric Goldman criticizes the court’s opinion on his Technology & Marketing Law blog. Although Goldman doubts that “the literal holding of this case is all that troubling to most folks” he believes that the court “muddles the discussion” of each of the CDA immunity prongs.  In particular, Goldman believes that the court erred when it decided that “develop” was essentially synonymous with “publish” for the purposes of analyzing CDA immunity. Goldman describes the opinion as a “major carveback of [the CDA]’s coverage” and predicts problems for online retailers that republish third-party content. (more…)

By Sharona Hakimi

Senators Urge FCC to Carefully Examine Exclusive Cell Phone Deals

On June 16, Ars Technica reported that senators wrote a letter to the FCC voicing concern over exclusivity agreements between service providers and phone manufacturers. The four senators who signed the letter – Senators John Kerry (D-MA), Roger Wicker (R-MS), Byron Dorgan (D-ND), and Amy Klobuchar (D-MN) – expressed particular concern as to whether the deals restrict consumer choice regarding handsets and geographic regions. They also noted that the agreements may disadvantage competing smaller carriers and discourage new innovation. According to the letter, the “Senate Committee on Commerce, Science and Transportation will convene a hearing this week to examine issues confronting wireless consumers” and decide if legislative action is necessary. Although the iPhone’s exclusivity agreements have garnered the most attention, the letter considers all cell phone carriers.

Microsoft Files Suit After Finding Evidence of Click Fraud

On June 16, the New York Times reported that Microsoft sued three individuals and several corporations for $750,000 in damages for click fraud – manipulating clicks on online advertisements. After noticing suspicious spikes in traffic from auto insurance and World of Warcraft web advertisements, Microsoft began an investigation that eventually uncovered an alleged click fraud manipulation scheme. Microsoft’s complaint alleges that the defendant directed traffic to his competitors’ Web sites so they would pay for the clicks and exhaust their advertising budgets. Jeremy Fain, a vice president of Interactive Advertising Bureau, said that although there is much precedent for mail and wire fraud, there is little regarding internet fraud. He went on to say that this case may “create more of a legal precedent, and more of a legal library of cases to draw from in the future.”

EU Seizure of Indian Drugs Hinders Medicine Dispersal

According to a recent report by Intellectual Property Watch, an increase in European seizures of Indian medicines believed to infringe intellectual property rights has triggered concerns that there is a strategic pattern in enforcement. On June 16, Spicy IP reported that India has recently protested to the TRIPS Council, expressing strong disapproval of EU’s controversial regulations and demanding more transparency of the various seizures. In May, German officials held about 3 million pounds of Amoxicillin on suspicion of a trademark infringement, delaying shipment to the Pacific by 4 weeks. “These random seizures seriously impact our ability to service the healthcare needs of people living in developing countries in a timely manner,” according to a drug supplier spokesperson. The EU claims that it is merely trying to reduce the “fast growing and dangerous” problem of counterfeits in developing countries.