cyberlaw informer #48


Welcome to the 48th issue of the weekly Mishpat Cyberlaw Informer - 

Law on the net newsletter from http://mishpat.net



This newsletter is sent only to subscribers. If you no longer 

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In this issue:



1. Introduction

2. Telstra wins its .org name 

3. Musicweb domain dispute 

4. Cyberlaw resource of the week

5. Computer & Internet law news and updates





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1. Introduction

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I would like to welcome the many new subscribers who joined the

Cyberlaw Informer this week. 

 

This week's newsletter focuses on two recent domain name arbitration

decisions under the new ICANN uniform domain name dispute resolution

policy. The defendants in both cases did not file any response, but the

arbitrators analysis is still an interesting part of the growing body of

'domain-name-law'.

As usual you will find the cyberlaw news and the weekly resource at the

end of this newsletter. 



I hope you enjoy reading the newsletter. Comments, tips, and articles

are always welcome. Send them to mailto:editor@mishpat.net



The Mishpat Cyberlaw Informer Archive (issues 1-45) is located at:

http://mishpat.net/cyberlaw/archive



Feel free to use any of the material, or forward the newsletter to a

friend. Just don't forget to mention that they can subscribe to the

Cyberlaw Informer by visiting http://CyberlawInformer.com





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2. Telstra wins its .org name

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The arbitration decision in the Telstra.org domain name dispute has set

a precedent for what constitutes a bad faith domain name registration. 



Telstra, Australia's largest telecommunications carrier and the largest

company listed on the Australian stock exchange, filed a complaint with

the World Intellectual Property Organization's Arbitration and Mediation

Center in Geneva (WIPO center) on January 4th. 

The domain name in dispute, telstra.org, was registered with Network

Solutions (NSI) by 'Nuclear Marshmallows', an unregistered business name

of an unidentifiable business entity, linked to a post office box in

Gosford, NSW (Australia). The street and post box addresses of Nuclear

Marshmallows were for persons unassociated with the Respondent, and that

the telephone number was for a person unassociated with the Respondent.



The WIPO Center issued to the Respondent on January 12, 2000, a

Notification of Complaint and Commencement of Administrative Proceeding

to both the postal and email addresses of the Respondent as provided by

the Registrar. On January 14, 2000, an email was received by the WIPO

Center from the email address of Nuclear Marshmallows' Contact, saying

"cannot read attachment". On that day, the WIPO Center replied to the

Contact by email, attaching the Notification of Complaint in four

different formats in four separate transmissions, and inviting the

Contact to specify any other format required. No response to these

emails was received. 



Having received no response from the Respondent within the specified

time, the WIPO Center issued to both parties a Notification of

Respondent Default. Dr Andrew Christie, a University of Melbourne

associate professor of law was appointed to adjudicate the telstra.org

dispute.





Telstra is the proprietor of more than 50 registrations in Australia of

trademarks consisting of or containing the word TELSTRA, including a

number of registrations in respect of telecommunications services.

Telstra has also registered, or applied for registration of, a range of

trademarks consisting of or containing the word TELSTRA, in a large

number of countries, such as Cambodia, France, Germany, Hong Kong,

Indonesia, Ireland, Japan, Kiribati, Korea, Laos, Malaysia, Mauritius,

New Zealand, Papua New Guinea, Russian Federation, Saudi Arabia,

Singapore, and the United States of America.

Telstra already owns the domain names telstra.com, telstra.net,

telstra.com.au, telstra-inc.com and telstrainc.com. Its main web site

operates at telstra.com. 





*  The UDRP provisions * 

 

Paragraph 4(a) of the Uniform Domain Resolution Policy (UDRP) sets out

the three elements which must be present for a proceeding to be brought

against the Respondent, all of which the Complainant must prove to

obtain a remedy:

(i) The domain name is identical or confusingly similar to a trademark

or service mark in which the complainant has rights; and

(ii) The respondent has no rights or legitimate interests in respect of

the domain name; and

(iii) The domain name has been registered and is being used in bad

faith.





Paragraph 4(b) of the UDRP identifies, in particular but without

limitation, four circumstances which, if found to be present, shall be

evidence of the registration and use of a domain name in bad faith. 

(i) Circumstances indicating that the respondent has registered or

acquired the domain name primarily for the purpose of selling, renting,

or otherwise transferring the domain name registration to the

complainant who is the owner of the trademark or service mark, or to a

competitor of that complainant, for valuable consideration in excess of

the documented out-of-pocket costs directly related to the domain name;

or

(ii) Respondent registered the domain name in order to prevent the owner

of the trademark or service mark from reflecting the mark in a

corresponding domain name, provided that respondent engaged in a pattern

of such conduct; or

(iii) Respondent registered the domain name primarily for the purpose of

disrupting the business of a competitor; or

(iv) By using the domain name, respondent intentionally attempted to

attract, for commercial gain, Internet users to his web site or other

online location, by creating a likelihood of confusion with the

complainant's mark as to the source, sponsorship, affiliation, or

endorsement of his web site, his products and services or his location.



Paragraph 4(c) of the UDRP sets out circumstances, in particular but

without limitation, which demonstrate the Respondent's rights or

legitimate interests to the domain name for the purposes of paragraph

4(a)(ii). 

(i) Before any notice of the dispute, respondent uses of, or does

demonstrable preparations to use, the domain name or a name

corresponding to the domain name in connection with a bona fide offering

of goods or services; or

(ii) Respondent has been commonly known by the domain name, even if he

acquired no trademark or service mark rights; or

(iii) Respondent is making a legitimate noncommercial or fair use of the

domain name, without intent for commercial gain to misleadingly divert

consumers or to tarnish the trademark or service mark at issue.





*  The Ruling * 

The domain name in issue is telstra.org. The relevant part of this

domain name is telstra. The panelist, Prof. Christie concluded that this

part of the domain name is identical to the numerous trademark

registrations held by Telstra. In addition, Christie agreed with Telstra

that the whole of the domain name is confusingly similar to those

trademark registrations.



The Respondent did not provide evidence of circumstances of the type

specified in paragraph 4(c) of the UDRP, or of any other circumstances

giving rise to a right to or legitimate interest in the domain name. In

light of the fact that the word TELSTRA appears to be an invented word,

and as such is not one traders would legitimately choose unless seeking

to create an impression of an association with the Complainant, Christie

concluded that the Respondent has no rights or legitimate interests in

the domain name.



The problem in this case was proving the third element in paragraph 4(a)

namely that the domain name "has been registered and is being used in

bad faith". 



Prof. Christie noted that the provision contains the conjunction "and"

rather than "or", and that it refers to both the past tense ("has been

registered") and the present tense ("is being used"). The use of the

conjunction "and" is that the complainant must prove use in bad faith as

well as registration in bad faith. Bad faith registration alone is an

insufficient ground for obtaining a remedy under the UDRP. The use of

both tenses draws attention to the fact that, in determining whether

there is bad faith on the part of the Respondent, consideration must be

given to the circumstances applying both at the time of registration and

thereafter. 



Following that reasoning, Christie concluded that the requirement that

the domain name "has been registered and is being used in bad faith"

will be satisfied only if the Complainant proves that the registration

was undertaken in bad faith and that the circumstances of the case are

such that Respondent is continuing to act in bad faith.





In light of the facts established in this case: Respondent does not

conduct any legitimate commercial or non-commercial business activity in

Australia; Respondent has taken deliberate steps to ensure that its true

identity cannot be determined and communication with it cannot be made;

and the Complainant's numerous trademark registrations and its wide

reputation in the word TELSTRA; Christie reasoned that it is not

possible to conceive of a plausible circumstance in which the Respondent

could legitimately use the domain name telstra.org. It is also not

possible to conceive of a plausible situation in which the Respondent

would have been unaware of this fact at the time of registration. 

These findings, together with the finding that the Respondent had no

rights or interests in the domain name, led Christie to conclude that

the domain name telstra.org was registered by the Respondent in bad

faith.



The domain name telstra.org does not resolve to a web site or other

online presence. There is no evidence that a web site or other online

presence is in the process of being established which will use the

domain name. There is no evidence of advertising, promotion or display

to the public of the domain name. There is no evidence that the

Respondent has offered to sell, rent or otherwise transfer the domain

name to the Complainant, a competitor of the Complainant, or any other

person. 

The relevant issue is not whether the Respondent is undertaking a

positive action in bad faith in relation to the domain name, but instead

whether, in all the circumstances of the case, it can be said that the

Respondent is acting in bad faith. The concept of a domain name "being

used in bad faith" is not limited to positive action; inaction is within

the concept. That is to say, it is possible, in certain circumstances,

for inactivity by the Respondent to amount to the domain name being used

in bad faith.



Prof. Christie reasoned that only one of the circumstances mentioned in

paragraph 4(b) (which as mentioned above identifies circumstances that

"shall be evidence of the registration and use of a domain name in bad

faith"), by necessity, involves a positive action post-registration

undertaken in relation to the domain name (paragraph 4(b)(iv) - using

the name to attract customers to a web site or other online location).

The other three circumstances contemplate either a positive action or

inaction in relation to the domain name, including a passive holding of

the domain name registration. These three paragraphs require additional

facts (as mentioned above), nevertheless, the point is that paragraph

4(b) recognizes that inaction (e.g. passive holding) in relation to a

domain name registration can, in certain circumstances, constitute a

domain name being used in bad faith. Furthermore, it must be recalled

that the circumstances identified in paragraph 4(b) are "without

limitation" - that is, paragraph 4(b) expressly recognizes that other

circumstances can be evidence that a domain name was registered and is

being used in bad faith.



In considering whether the passive holding of a domain name, following a

bad faith registration of it, satisfies the requirements of paragraph

4(a)(iii), the Panel must give close attention to all the circumstances

of the Respondent's behavior. A remedy can be obtained under the UDRP

only if those circumstances show that the Respondent's passive holding

amounts to acting in bad faith.



Christie considered the following circumstances of this particular case

in finding that the passive holding of the domain name by the Respondent

amounts to the Respondent acting in bad faith:

(i) Telstra's trademark has a strong reputation and is widely known;

(ii) the Respondent has provided no evidence whatsoever of any actual or

contemplated good faith use by it of the domain name;

(iii) The Respondent has taken active steps to conceal its true

identity, by operating under a name that is not a registered business

name;

(iv) The Respondent has actively provided, and failed to correct, false

contact details, in breach of its registration agreement, and;

(v) Taking into account all of the above, it is not possible to conceive

of any plausible actual or contemplated active use of the domain name by

the Respondent that would not be illegitimate.



Accordingly, Christie required that the domain name telstra.org be

transferred to Telstra.





The full arbitration decision can be read at:

http://arbiter.wipo.int/domains/decisions/html/d2000-0003.html







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3. Musicweb domain dispute

########################



Robert Ellenbogen , the owner of Musicweb, a company which sells compact

discs and tapes online, filed a complaint with the World Intellectual

Property Organization Arbitration and Mediation Center (WIPO center)

against Mike Pearson. Ellenbogen  was used the domain name musikweb.com

since Pearson had already registered the domain name musicweb.com.



Ellenbogen's Musicweb has a registered service mark for the term

MUSICWEB, for computer online retail services in the field of recorded

music and music information, since September 1998.



Ellenbogen filed a complaint electronically on January 3, 2000, two days

after the new domain name dispute policy took effect. NSI confirmed that

the domain was registered with NSI and that Mike Pearson was the

registrant of that name. 



Although Pearson did not make a formal response to the complaint, WIPO

received two email communications from "Mike Pearson" at the email

address provided by NSI. 

The first email was made in reply to an email message from WIPO

transmitting notification of the complaint. In that email, dated January

10, 2000, Pearson stated, "I have no relation to this domain whatsoever.

The listing of me as the administrative contact is in error. Please take

whatever steps are necessary to remove my name, Mike Pearson." In

response, the WIPO Center advised Pearson of the requirement that he

submit a response no later than January 29, 2000 and that any concerns

he had with respect to the registration information on record with the

domain name musicweb.com should be directed to NSI. 

On January 11, 2000 Pearson responded with a second email, stating "I

have been trying for over a year to get my name disassociated from this

domain. I have not now nor have I ever had anything to do with the

domain. Please take whatever action is necessary to remove my name, Mike

Pearson." 



On February 1, 2000, having received no formal response from the

designated respondent, the WIPO Center transmitted to the parties a

Notification of Respondent Default, and appointed Roderick Thompson as a

single panelist. 





In this case, the complainant, the respondent, and the registrar are all

domiciled in the United States. 

The Final Report of the WIPO Internet Domain Name Process envisaged the

very situation, stating "if the parties to the procedure were resident

in one country, the domain was registered through a registrar in that

country and the evidence of bad faith registration and use of the domain

name related to activity in the same country, it would be appropriate

for the decision-maker to refer to the law of the country concerned in

applying the definition" of what became paragraph 4(a) of the Policy.

Accordingly, the looked at rules and principles of law set out in

decisions of the courts of the U.S. in determining whether the

complainant has met its burden.



Paragraph 4(a) of the Policy directs that the complainant must prove

each of the following:

(i) That the domain name registered by the respondent is identical or

confusingly similar to a trademark or service mark in which the

complainant has rights; and,

(ii) That the respondent has no legitimate interests in respect of the

domain name; and,

(iii) The domain name has been registered and used in bad faith.



The domain name musicweb.com is identical to the service mark registered

and used by complainant, MUSICWEB. It was uncontested that Pearson had

no rights or legitimate interests in respect of the domain name.

Pearson's email has expressly disavowed "any relationship to this domain

whatsoever." Since the domain name was offered for sale on the Internet

and respondent has acknowledged "trying for over a year to get my name

disassociated from this domain," the Panel concluded that the name was

registered or maintained in bad faith within the meaning of paragraph

4(a)(iii) of the Policy.



The domain name, however, must not only be registered in bad faith, but

it must also be used in bad faith. 



The issue is whether the Pearson used the domain name in bad faith. 

There is no allegation or evidence that the Pearson established a site

corresponding to the registered domain name. The Complaint, whose

allegations are to be accepted as established because of respondent's

default, states only that "Respondent, by using the domain name, has the

potential to attempt" to attract business from complainant and that

"Respondent's use of the domain name misleadingly diverts customers."

But elsewhere the Complaint states that "Respondent is not using" the

domain name "in connection with a bona fide offering of goods or

services." Respondent's emails disavow any association with the domain

name, and, by implication, any domain name use. The Panelist concluded

that there is insufficient documentation to support the assumption that

respondent is using musicweb.com as a website or domain name address.

But that does not end the "use" inquiry.



The Complaint alleges, in the context of supporting the allegation that

the domain name is being used in bad faith, that the domain name was

listed on the "Great Domains.com" website as a domain name for sale,

being offered for sale to anyone interested, including complainant or a

competitor. 



The allegation of bad faith also finds support in paragraph 4b which

identifies circumstances which, if found to be present, shall be

evidence of the registration and use of a domain name in bad faith. One

of these circumstances is a request for payment of an amount above the

registrant's out-of-pocket costs. 

In this case respondent did not limit its request for payment of

out-of-pocket expenses. He sought payment for transfer of the domain

name by soliciting offers of any amount through a domain name broker

site.



This conclusion is consistent with a U.S. district court decision in

Intermatic Inc. v. Toeppen, finding that an intent by the domain name

registrant to sell a domain name constitutes a "commercial use" under

U.S. anti-dilution law.



The evidence in the documentation submitted shows only one purpose --

selling for profit -- for respondent's acquisition or registration of

musicweb.com. There is no indication of any other actual or intended use

of the domain name. The panelist concluded that the circumstances

presented in this default proceeding qualify as sufficient evidence of

registration and use in bad faith.



Accordingly the Panelist ordered that the registration of the domain

name musicweb.com be transferred to Musicweb.



*  A few comments * 



I find this ruling somewhat troublesome. 

While I agree that since this was a default ruling (respondent didn't

file a formal response) the ruling is correct, part of the reasoning is

problematic.



In my opinion, the decision that auctioning a domain name can be "use"

in bad faith is correct. However, this is only true if "registrant has

no legitimate interests in respect of the domain name". If registrant

has a legitimate interest in the domain name, he might under some

circumstances also have a legitimate interest in selling it.



In this case, absent a response from the registrant, no legitimate

interest was shown. However, this is not a case of cybersquatting, but

of cyber speculating. The domain musicweb.com was registered prior to

the registration of the trademark musicweb. 

Furthermore, musicweb is not a distinctive name, since it is descriptive

of the service. 



An example might help clarify this point: 

If I decide to register a domain name such as

BestLegalServicesOnline.com, the domain is descriptive of services the

site might offer (legal services available online), therefor if someone

else sets up a company with that name, he or she can not register a

trademark (trademarks must be distinctive). This means that if I believe

that in the future someone will be willing to pay for the domain

BestLegalServicesOnline.com, then I can speculate and buy it now, even

if I don't currently intend to use it. This is similar to buying a plot

in a cheap part of town, when I have reasons to believe that in the

future its price will increase (for example if a business center is

planned in the area).

However, if one of you registered a name such as

DidiMelchiorLegalServicesOnline.com, that would be cybersquatting since

Didi Melchior is a distinctive name describing the origin of the service

(a legal service given by Didi Melchior).



The same rule should apply to musicweb.com which I think is a generic

descriptive term since it describes the type of service -- music

services available online (could be CD sales, music reviews, online

radio station etc.).





Full text of the decision can be found at:

http://www.nylj.com/links/domaindispute.html







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#######################

4. Resource of the week

#######################



This week's resource is the site of British law firm Kaltons at

http://www.kaltons.co.uk



Kaltons is a niche law practice specializing in e-commerce and property,

describing itself as a "clicks & mortar" firm (I really like that

slogan). 



In my opinion the most important part of the site, and the reason I

recommend a visit, is the "News" section which includes articles and

comments about British technology law at

http://www.kaltons.co.uk/news.htm





If you would like to recommend an Internet legal resource, please send

the details to mailto:editor@mishpat.net Full credit is given to

contributors.

You can also recommend resources at the online bulletin board

http://mishpat.net/cgi-bin/bbs/UltraBoard.pl







#############################

5. Cyberlaw news and updates

#############################



Each week Mishpat Cyberlaw Informer brings you the latest news about

online and computer law, with links to the full reports available

on the web.





Top news

========



*  MafiaBoy charged in DoS attacks * 

The Canadian Police announced that charges had been brought against a

15-year-old boy who used the online nickname MafiaBoy, for taking part

in the cyber attacks that brought down web sites such as Yahoo, Amazon

and CNN in February. Records in the case are sealed because of the

suspect's age. In the assault, attackers took over computers around the

world by remote control and used them to bombard victims' sites with so

much data that legitimate users could not get through. 

Investigators traced the attacks to MafiaBoy by examining the log files

of a computer at a University of California research lab that was among

those used to attack CNN.com. MafiaBoy was also partly brought down by

online bragging after soliciting suggestions for which sites to invade

in an online chat room.

However, MafiaBoy is probably not responsible for three denial of

service attacks launched earlier against Yahoo, eBay and Amazon. He is

likely a copycat  responsible for the CNN denial of service that came

after the first major hit of Yahoo. The teen was released on bail under

the conditions that he not use a computer without a teacher present and

not visit stores that sell computers or related equipment. 

http://www.computerworld.com/home/print.nsf/CWFlash/000420D71A





*  Japanese court says links can be illegal * 

In a landmark verdict, the Osaka (Japan) District Court ruled that,

under certain circumstances, links connecting one web page to another

could be considered illegal. The ruling means that if somebody creates a

site that includes a link to another page that contains illegal data,

then the person who creates the link can be charged with aiding and

abetting the crime, regardless of whether or not they are aware of the

illegality of the page they linked to. 

The defendant in the case was selling image-processing software capable

of removing the photomask, commonly employed in Japan to censor the most

explicit parts of pornographic images. On his own site, the defendant

linked to other sites that displayed obscene pictures, meaning that

people using the program could easily use the links to jump to them and

then view the pornographic images without any masking censorship. 

Judge Masayuki Kawai of the Osaka District Court ruled that the

defendant had increased the number of ways to access obscene sites and

had made it easier for many people to view pornographic pictures, and

that he therefore was guilty of aggravating crime. 

An article about the case can be found at:

http://www.nikkeibp.asiabiztech.com/wcs/leaf?CID=onair/asabt/news/99001

Editors note: I personally do not agree with the opinion stated in this

article.





*  Software is protected speech * 

The 6th U.S. Circuit Court of Appeals ruled that computer source code is

protected by the First Amendment. The decision in Junger v. Daley

overturns a district court ruling which held that the functional

characteristics of source code overshadow its expressive nature. The 6th

Circuit decision is in line with a 1999 ruling by the 9th U.S Circuit

Court of Appeals In Bernstein v. U.S. Department of Justice, which found

that software is protected speech. 

Peter Junger, a professor at Case Western Reserve University School of

Law, sought to post encrypted source code on his Web site. He filed suit

to enjoin the Department of Commerce from enforcing regulations that

require a license to export encryption hardware, software and

technology.

While ruling on the issue of First Amendment claims, the 6th Circuit

remanded the case back to the district court to determine whether

posting of the source code in question would violate government

encryption export regulations.

http://www.lawnewsnetwork.com/stories/A20836-2000Apr7.html

Full report in planned for the next issue of the Cyberlaw Informer.





*  Yahoo! Sued in France over Nazi memorabilia * 

The French group, International League against Racism and Anti-Semitism

(LICRA), said it was taking Yahoo to court over the sale of Nazi

memorabilia on one of the sites it hosts. LICRA said it was seeking an

injunction in a Paris court to force the California-based company to

stop the sales in France. A Yahoo auction site puts hundreds of Nazi and

Ku Klux Klan objects up for auction, including films, uniforms, daggers,

photos, and medals. Under French law, it is illegal to exhibit or sell

objects with racist overtones. LICRA did not say how access to a

worldwide website could be blocked in France only. 

http://www.wired.com/news/politics/0,1283,35592,00.html





*  AOL found guilty of allowing music piracy in Germany * 

A German court found America Online (AOL) liable for allowing people to

swap pirated music files on its service. The case began in 1998 after

Hit Box, a German company, sued AOL after learning that people were

downloading digital instrumental versions of pop hits for free using

AOL's service. Hit Box's digital recordings were intended for use as

karaoke tracks, and cost about $15 on a CD. The court put off a ruling

on the size of the award. AOL said that it will appeal the decision. 

It remains unclear whether the European music industry's victory will

have any effect in the U.S. 

http://www.zdnet.com/zdnn/stories/news/0,4586,2541173,00.html







Intellectual Property

===============



*  Metallica sues Napster and Universities * 

Heavy metal band Metallica filed a lawsuit against Napster alleging that

the company encourages piracy by enabling its users to trade copyrighted

songs through its servers. The suit also named the University of

Southern California, Yale University, and Indiana University. Yale

University told students it will ban use of the company's software on

its college networks. In response, Metallica's agents said that the band

is dropping Yale from the lawsuit - a move that could put pressure on

other universities to follow Yale's lead. 

The Recording Industry Association of America (RIAA) filed a lawsuit

against Napster in November. The case against Napster raises questions

about whether a software manufacturer is liable for the ways in which

their product is used. 

http://news.cnet.com/news/0-1005-200-1694163.html





*  MPAA v. 2600.com - second round *  

The Motion Picture Association of America (MPAA) has filed another suit

against Eric Corley, publisher of 2600.com. The MPAA is requesting a

second injunction against Corley, this time to stop him from linking to

hundreds of sites with the DVD encryption-busting DeCSS program. In

January, the MPAA won an injunction  against 2600 that made DeCSS

available for download. 

http://www.wired.com/news/politics/0,1283,35394,00.html





*  Intouch sues Amazon over music samples patent * 

Intouch charged Amazon and other Internet site operators including

Liquid Audio, Listen.com, Discover.music.com and Time Warner's

Entertaindom, with misappropriating technology that allows customers to

listen to parts of songs through a computer, before deciding whether to

buy, despite being warned of the alleged infringement. Intouch was

granted two patents for this technology.

http://www.newsbytes.com/pubNews/00/147401.html





*  Jurisline Looses round against Lexis * 

District Judge Jed S. Rakoff ordered Lexis' contract and fraud claims

against Jurisline.com returned to state court. The ruling might strip

Jurisline's main defense: that the case law material taken from Lexis'

CD-ROMs is in the public domain and is not protected under federal

copyright law. Without the protection of federal copyright law,

Jurisline has few defenses to state law claims that one of its co-owners

breached the form contract he signed when he purchased more than 60 of

Lexis' CD-ROMs. 

http://www.lawnewsnetwork.com/practice/techlaw/news/A21083-2000Apr12.html





*  Sony bans sale of online characters * 

Sony is banning auctions of virtual-world characters and goods from its

popular online game EverQuest, a fantasy world where thousands of

players interact with one another. Because players need goods to move up

the game's 50 levels, they are frequently willing to pay cash to speed

the process. Some players have turned the game into an industry by

building up characters or searching out sought-after equipment and then

selling them at auction.  In addition to the rewritten user agreement

that bans the sale of "characters, items, coin or copyrighted material"

the company is also going to the auction houses. 

http://news.cnet.com/news/0-1007-200-1675669.html





*  Japanese Supreme Court ruled against Texas Instruments in patent

dispute * 

Japan's Supreme Court ruled that chipmaker Fujitsu Ltd. Did not infringe

on a patent that covers techniques to isolate electronic circuits on a

chip during the chip making process, owned by U.S. competitor Texas

Instruments.

http://www.mercurycenter.com/svtech/news/breaking/merc/docs/028085.htm





*  Restaurant guides battle online *  

Zagat Survey, publisher of more than 30 dining guides, filed suit

against E-Compare, an online shopping service, claiming that E-Compare

illegally copied its 14,381 restaurant reviews and posted them online.

The suit seeks $100 Million. E-Compare, contends that a Zagat employee

told them "Go ahead and use it," and that E-Compare had planned to pay a

licensing fee. 

http://news.cnet.com/news/0-1007-200-1677599.html





*  Affymetrix loses gene-chip patent dispute * 

The English High Court ruled against Affymetrix, famous for its

Gene-Chip technology, in a patent dispute with British Oxford Gene

Technology. The court ruled that Affymetrix used genetic analysis

technology developed by Oxford Gene without its permission. Affymetrix

said it will appeal the ruling. Oxford Gene said it would claim damages

of up to US$300 million.

http://www.wired.com/news/business/0,1367,35532,00.html





*  Hasbro settles computer game copyright suit * 

Hasbro Interactive said it settled a lawsuit with two companies that

were accused of violating its copyright on video games such as 'Pac-Man'

for an undisclosed sum.

http://www.digitalmass.com/news/daily/04/20/hasbro.html







Domain names

===========



*  Irish PM targeted by cybersquatters * 

A website set up under the name of Irish Prime Minister Bertie Ahern at

bertieahern.com leads to a pornographic site. Cybersquatters demand 1

million Irish pounds for the name.

http://news.bbc.co.uk/hi/english/uk/northern_ireland/newsid_711000/711923.stm





*  Buy.com in Australian domain name dispute * 

Buy.com filed  suit in Australian federal court in attempt to get the

rights for the domain name Buy.com.au (au is the Australian top level

domain name). The name holder, Duncan Angus started running

advertisements towards the launch of an auction site. This is not a

simple cybersquatting case since 'buy' is a generic name. A generic name

is descriptive just as car.com is and toyota.com isn't (Toyota is a

brand name).

http://www.it.fairfax.com.au/industry/20000405/A50429-2000Apr5.html





*  eBay goes after Canadian domain name * 

eBay, the largest online auction site, is claiming the rights to the

domain name ebay.ca (ca is the Canadian top level domain name) currently

registered by Alex Libbus from Toronto. eBay took control of

ebaycanada.ca at no cost in February after demanding that Dave

Darchangelo turn the name over.

http://www.globetechnology.com/archive/gam/News/20000411/REBAY.html





*  Tuvalu cashes in on  .tv * 

The tiny Island nation of Tuvalu cashed in on the its top level domain

name .tv. DotTV has agreed to pay Tuvalu $50 million in royalties over

the next decade for use of the country code. DotTV intends to sell

domain names ending with .tv, such as www.channel4.tv.

http://www.usatoday.com/life/cyber/zd/zd10.htm





*  Philips wins Indian domain name dispute * 

Philips India won the rights for the domain name philipsindia.com

registered by an Indian web development company. The development company

was hired by Philips to develop a website for its electronics division.

It wrongfully registered the domain philipsindia.com in its own name and

not in their client's name. Later Philips India decided to develop a

corporate website for the entire company and this work was assigned to

another company. An arbitration panelist ordered the transfer of the

name to Philips India.

http://www.economictimes.com/today/14comp04.htm





*  Balkan war moves to domain names * 

Individuals listing Serbian and Albanian postal addresses exploited a

weakness in registrar Network Solutions (NSI) and appropriated names

registered through the company. Hijackers then reassigned the domains to

other servers redirecting all traffic intended to go to the site. Among

the victimized sites were those run by pro-democracy groups and other

Serbian political opponents, such as Montenegro.com and Bosnia.com, both

of which have since been returned to their owners. 

http://www.wired.com/news/politics/0,1283,35674,00.html







Cyber crime

=========



*  New York Targets Online Weapons Store *

The New York Attorney General's office cracked down on Family Defense

Products , a Florida company, that sold illegal weapons to New Yorkers

ordering online, including one 13-year-old boy. Family Defense Products

agreed not to sell it's products to New Yorkers. In addition, the

company is supposed to send notifications to all New York customers of

such banned weapons, warning them that they are at risk of arrest and

prosecution and urging them to discard their purchases. The company is

also to pay $7,500 in costs and penalties.

http://www.newsbytes.com/pubNews/00/147049.html





*  U.S. Internet Gambling Prohibition Bill * 

In a 21-8 vote the U.S. House Judiciary Committee approved legislation

to outlaw most forms of Internet gambling, including an amendment that

would prohibit states from conducting lotteries online. The U.S. Senate

passed a somewhat different Internet gambling ban at the end of 1999,

which must now be reconciled with the House version.

http://www.zdnet.com/zdnn/stories/news/0,4586,2523265,00.html





*  U.S. charges five over Internet child pornography * 

U.S. prosecutors indicted five alleged Internet child pornography

peddlers, including the first U.S. charges against suspects abroad for

offering the material for sale online. A federal grand jury charged

three men in Indonesia and Russia and a husband and wife in Texas, for

selling pictures of children having sex. The U.S. is seeking extradition

of the foreign suspects. 

http://www.mercurycenter.com/svtech/news/breaking/internet/docs/425325l.htm





*  Ex-officer accused of online child pornography * 

John W. Davis, 44, a retired U.S. Army officer, has been charged with

sending pornographic material to children over the Internet and

attempting to have sex with two girls. Davis was caught in an online

sting when an undercover police officer posed as a mother who told Davis

he could have sex with her 12- and 14-year-old daughters. Davis was

arrested in San Diego, where he allegedly went to meet the mother.

http://www.mercurycenter.com/svtech/news/breaking/ap/docs/396048l.htm





*  U.S. top-secret laptop stolen * 

In the previous issue of the Cyberlaw Informer I reported the theft of a

British laptop containing top-secret information. Now the U.S. FBI is

looking for a stolen laptop holding secret information that disappeared

from the State Department a few months ago.

http://news.cnet.com/news/0-1003-200-1708583.html







Privacy Spam and Consumer protection

=============================



*  Canada approves privacy bill * 

The Canadian federal government gave final approval to privacy

legislation which lays out requirements for e-commerce and other

marketers to obtain the explicit consent of consumers before providing

their personal information to third parties.

http://www.globetechnology.com/archive/gam/News/20000405/RECOM.html





*  FTC settles online fraud charges * 

Three Internet companies that offered products claiming to cure

everything from arthritis to cancer settled U.S. federal fraud charges

and agreed to repay their customers.

http://www.mercurycenter.com/svtech/news/breaking/merc/docs/073225.htm





*  FTC goes after head lice web sites * 

U.S. Federal Trade Commission (FTC) investigators said that sites

boasting sure cures for head lice may not be entirely true. The FTC

warned 28 site operators that they could be subject to consumer redress

if product claims aren't backed by scientific evidence. 

http://news.cnet.com/news/0-1005-200-1681948.html





*  Washington appeals anti-spam law decision * 

The Washington state attorney general filed a direct appeal to the state

Supreme Court seeking to overturn the ruling, reported here in the

previous issue, that the state's anti-spam law violates the

interstate-commerce clause of the U.S. Constitution. Attorney General

Christine Gregoire said that  "The First Amendment does not protect

misleading commercial speech, and the Commerce Clause does not either". 

http://www.seattletimes.com/news/technology/html98/spam07_20000407.html





*  AOL subscribers' suit dismissed * 

The 9th U.S. Circuit Court of Appeals affirmed a district court's

dismissal of a civil lawsuit brought against America Online (AOL) by a

group of its subscribers for violations of the U.S. federal Racketeer

Influenced and Corrupt Organizations Act (RICO).

http://www.lawnewsnetwork.com/stories/A20853-2000Apr7.html







Securities

=======



*  SEC charges men of international stock manipulation * 

The U.S. Securities and Exchange Commission (SEC) filed suit against

Stephen Marek, of British Columbia, and Dominic Roelandt, of Belgium,

for allegedly fraudulently promoting 35 stocks over the Internet. Almost

all of the stocks promoted by the two rose in price and volumes surged

for about two weeks before returning to previous levels, the two sold

their holdings in stocks immediately after sending the e-mails to

thousands of their subscribers.

http://www.nationalpost.com/financialpost.asp?f=000406/251825







Freedom of Speech

==============



*  ACLU's Cyber Patrol motion denied * 

U.S. District Judge Edward Harrington rejected the ACLU's request to

reconsider his ruling in a case over the Cyber Patrol filtering

software. As reported in previous issues, Judge Harrington ruled that

any site that offers copies of 'cphack', a program that reveals Cyber

Patrol's secret blacklist, have to take down the program or face the

consequences. Judge Harrington said that because the ACLU, which is

representing three mirror sites, was not a party to the case, it had no

standing to ask for a stay of his order. An ACLU attorney said his group

will probably appeal to the U.S. Court of Appeals for the First Circuit. 

http://www.wired.com/news/politics/0,1283,35660,00.html





*  New York anti Internet porn law doesn't violate free speech * 

Drawing a sharp distinction between New York's Internet pornography law

and the fatally flawed U.S. federal Communications Decency Act (CDA),

which was struck down by the U.S. supreme court, a New York Court of

Appeals upheld the constitutionality of the state statute. The Court

agreed unanimously that the New York law survives constitutional

scrutiny because unlike the CDA it is directed not only at the

transmission of certain communications, but also the act of luring a

child into sex, which distinguishable from pure speech.

Thomas R. Foley, 51, was prosecuted after sending a State Trooper, who

entered a chat room claiming to be a 15 year old girl, pictures of

minors engaging in sexual acts and arranged a liaison. The Court of

Appeals rejected all Foley's claims stating that the conduct prohibited

by the statute does "not merit First Amendment protection".

http://www.lawnewsnetwork.com/practice/techlaw/news/A21023-2000Apr11.html





*  Bush parody site stays online * 

The U.S. Federal Election Commission dismissed a complaint filed by the

presidential campaign of George W. Bush against an Internet critic whose

site uses the potentially confusing address gwbush.com. The commission

said that it dismissed the complaint on the grounds that it was too low

a priority to warrant the use of the commission's resources. 

http://news.cnet.com/news/0-1005-200-1713111.html





*  Saudi Arabia shuts down cybercafe * 

Officials in Mecca, Saudi Arabia, shut down a women's cybercafe after

finding it a threat to morals. 

http://www.theregister.co.uk/000417-000008.html







Microsoft News

============



*  Microsoft wins round in Java battle * 

Microsoft scored a small victory in its legal battle with Sun

Microsystems over the Java license. Judge Ronald Whyte of the U.S.

District Court in San Jose rejected Sun's interpretation of its contract

with Microsoft concerning updated versions of its Java technology. The

ruling rejected a motion by Sun that it did not have to supply Microsoft

with Java upgrades that are compatible with Microsoft's currently

available software. 

http://news.cnet.com/news/0-1003-200-1656945.html





*  Microsoft faces civil lawsuits * 

Microsoft faces at least 115 civil antitrust lawsuits totaling more than

$7 billion in damages. Private attorneys started filing the bulk of the

civil lawsuits against Microsoft in November, soon after U.S. District

Judge Thomas Penfield Jackson issued his findings of fact in the trial.

If Judge Jackson issues a final ruling on penalties, private lawyers

will be able to use the trial record and Jackson's findings as evidence

in their lawsuits. If Microsoft settles before the final ruling, lawyers

will need to find other evidence to use. Aside from private suits,

companies Judge Jackson cited as wronged by Microsoft's business

practices -- such as Sun Microsystems -- are also considering their own

lawsuits. The fines Microsoft might have to pay in the DOJ case are

limited. The same limits don't apply in civil cases.

http://news.cnet.com/news/0-1003-200-1655573.html







Misc. cyberlaw news

===============



*  Japan eases Sony PlayStation export limits * 

Japan's Trade Ministry simplified export procedures Sony's PlayStation2

video game device after earlier imposing controls amid concerns that

parts could be used for military purposes such as missile guidance

systems. 

http://www.zdnet.com/zdnn/stories/news/0,4586,2550857,00.html





*  EU approves Vodafone-Mannesmann merger * 

The European Commission approved the world's biggest corporate takeover

in which British mobile telephone company Vodafone AirTouch took over

German Mannesmann, after demanding that the firms  sell Orange, the

British mobile phone company owned by Mannesmann. 

http://news.cnet.com/news/0-1004-200-1686674.html





*  Inprise files suit against Iona Technologies * 

Software developer Inprise/Borland Corp. filed a lawsuit against Iona

Technologies Inc. and its Ireland-based parent, alleging unfair business

practices. Inprise/Borland claims that Iona wrongfully solicited its

employees, diluted its trademark and logo, interfered with its customers

and spread misinformation about Inprise/Borland products. 

http://www.mercurycenter.com/svtech/news/breaking/merc/docs/037041.htm





*  Cambridge Technology sues more employees * 

Cambridge Technology Partners Inc. filed a lawsuit against former

employees who founded their own company, claiming that they violated a

non-compete clause. 

http://www.computerworld.com/home/print.nsf/CWFlash/000410D416





*  Bill encourages employers to give PCs to workers * 

The U.S. House of Representatives' Ways and Means Committee introduced

legislation designed to increase computer use in the home and encourage

businesses to provide computers to their employees. The Digital Divide

Access to Technology Act aims at narrowing the gap between those who can

afford computers and those who cannot. 

http://www.computerworld.com/home/print.nsf/CWFlash/000414D512







That is all for this week,

Yedidya (Didi) M. Melchior 

Editor 





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