New Law Expands Government Surveillance Powers
By Daniel Ray — Edited by Sarah Sorscher

H.R. 6304 — FISA Amendments Act of 2008
Full Text of Enrolled Bill
Senate Vote Summary
GovTrack.us Summary

On July 9, the Senate passed H.R. 6034, the FISA Amendments Act of 2008, and President George W. Bush signed it into law the following day. The new law modifies the Foreign Intelligence Surveillance Act of 1978 (“FISA”) to expand (subject to certain new checks) the federal government’s surveillance powers and retroactively immunize telecommunication companies that cooperated with the warrantless wiretapping program brought to light in 2005.

The New York Times summarizes the politics surrounding the FISA issue, in which presumptive Democratic nominee for president Barack Obama’s “yea” vote attracted scorn from some Democrats.

The Electronic Frontier Foundation (PDF), a longtime opponent of President’s surveillance program, calls Section 202 an immunity “compromise” in name only.

Orin Kerr, writing at The Volokh Conspiracy, criticizes as “misleading” media coverage that ignores the law’s new procedural safeguards (as compared to last year’s less restrictive Protect America Act (“PAA”)).

On the issue of immunity, Charlie Reina (writing at the Huffington Post), regrets that the public will never know who was monitored or which companies cooperated with the original warrantless wiretapping requests.

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District Court Compels Disclosure of YouTube User Logging Records, Protects Source Code
By Jay Gill — Edited by Sarah Sorscher

Viacom International, Inc. v. YouTube, Inc.
S.D.N.Y., July 1, 2008, No. 07 Civ. 2103
Order (Provided by Justia)

The District Court for the Southern District of New York partially granted a discovery motion made by Viacom in its copyright suit against YouTube and YouTube’s parent company Google. The order compels Google to produce the contents of YouTube’s logging database, including the login IDs, IP addresses, and viewing information of YouTube users. The court denied Viacom’s motion to compel production of the protected source code for the Google search engine.

Viacom’s complaint alleges that YouTube is directly or vicariously liable for duplication of copyrighted material on youtube.com, and seeks damages of over $1 billion and injunctions against further infringing conduct.

Wendy Seltzer at the Citizen Media Law Project summarizes the bifurcated outcome of the case: “trade secret wins; privacy loses.” Kurt Opsahl of the Electronic Frontier Foundation calls this a “setback to privacy rights,” and argues that some of the login names and IP address information, which the court states are anonymous, can in fact be used to identify individual users.
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Eleventh Circuit Applies Copyright Act’s Collective Works Provision to CD-ROM Collection
By Dmitriy Tishyevich — Edited by Andrew Ungberg

Greenberg v. National Geographic Society
11th Circuit, June 30, 2008, No. 05-16964
Slip Opinion

On June 30, the Eleventh Circuit issued a divided en banc opinion, affirming by a 7-5 vote the panel decision in Greenberg II, which had vacated Greenberg I.

Writing for the majority, Judge Barkett held that National Geographic was privileged to reproduce its print issues. Section 201(c) of the Copyright Act distinguishes between the copyright of each individual work within a collective work — here Greenberg’s photographs — and copyright of the collective work in its entirety, here National Geographic’s “Complete National Geographic” (“CNG”), a CD-ROM collection of all the back issues of the National Geographic magazine. Citing New York Times v. Tasini, Judge Barkett wrote that § 201(c) granted the publisher privilege to reproduce an article contributed by a freelancer when it was part of (1) the collective work to which the author originally contributed; (2) any revision of that work; or (3) any later collective work in the same series. Emphasizing the importance of the context in which the works were presented, Judge Barkett found that the CNG CD-ROM collection qualified as a “revision” under § 201(c) and Tasini‘s interpretation of the term.

William Patry comments favorably on the majority opinion on his blog, and notes that a grant of certiorari is unlikely as there is no split in the circuits, and the issues decided are close to Tasini. He previously criticized Judge Birch’s approach as at odds with copyright’s constitutional goal of promoting the progress of science. Law.com provides a summary of the decision and the procedural history of the case.

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ICANN Opens Up Available Top Level Domains
By Joshua Gruenspecht — Edited by Andrew Ungberg

June 26, 2008
ICANN press release

The Internet Corporation for Assigned Names and Numbers (“ICANN”), the international organization in charge of allocating resources and establishing protocols on the Internet, last week removed the existing limits on internet generic top-level domains (“gTLD”s) and announced plans to accept applications from operators for new namespaces. Initially, the earliest domain names fell into a few select functionally classified categories, such as .com and .net; subsequent rounds of expansion added new categories such as .biz and .post. Now, however, ICANN will permit private operators to create and vend top-level domains of their own design.

According to ICANN’s Final Report on Introduction of New Top-Level Generic Domains, new gTLDs will continue to be approved by ICANN itself. It is as yet unclear whether registrars who are approved to distribute domain names using new gTLDs will not be required to follow the same Unified Domain Name Dispute Resolution Procedure (“UDRP”) that registrars who handle .com, .net, .org, .biz, .info, and .name are currently required to follow. ICANN itself, however, will follow an entirely new set of procedures. Approval of a new gTLD will take into consideration the string’s similarities to existing gTLDs, how closely it resembles existing trademarks, and whether it fits within existing international standards of “morality and public order,” among several other tests.

Names @ Work is already touting this as the next big trademark challenge for corporations concerned about maintaining their brand online, while Cyber Law Online is dismissing it as a minor shift with few real-world implications. Pangloss predicts that this will ultimately result in legitimate users dispersing across the newly broadened namespace, making it easier to identify determined trademark-infringing cybersquatters, although others are less optimistic.

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First Circuit Lifts Trademark Injunction to Make Way for Super Duck
By Miriam Weiler — Edited by Evie Breithaupt

Boston Duck Tours v. Super Duck Tours
First Circuit, June 18th, 2008, Nos. 07-2078, 07-2246
Slip Opinion

On June 18, the First Circuit lifted a preliminary injunction granted by the District Court of Massachusetts, which had enjoined Super Duck Tours, LLC (“Super Duck”) from using the phrase “duck tours” in its trade name and the cartoon of a duck in its logo. On July 2, 2007, Boston Duck Tours, LP (“Boston Duck”) filed a complaint in the district court alleging federal trademark infringement and unfair competition and seeking a preliminary injunction against Super Duck. The district court granted the injunction and Super Duck appealed.

The First Circuit held that the lower court clearly erred in concluding that Boston Duck was likely to succeed on the merits of its trademark infringement, by over-estimating the likelihood that use of the phrase and image would cause consumer confusion.

The court of appeals did not address the district court’s ruling regarding Super Duck’s purchase of the key word phrase “Boston duck tours” on Google. “Sponsored linking” or “keyword advertising” allows the purchaser of a keyword to link his or her website to the search engine’s results page with a highlighted link at the top of the page.

The district court found that Super Duck’s sponsored linking did not violate the injunction. It found that sponsored linking, however, does constitute “use” under the Lanham Act, which states that “a mark shall be deemed to be in use in commerce. . . (2) on services when it is used or displayed in the sale or advertising of services.” 15 U. S. C. §1127. The district court reasoned that the plain language of the statute and the majority of courts have considered sponsored linking “use.” (more…)