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cyberlaw informer #61

Welcome to the 61st issue of the Mishpat Cyberlaw Informer - 
Law on the Internet newsletter from http://mishpat.net

This newsletter is sent only to subscribers. If you no longer 
wish to receive the Cyberlaw Informer, follow the unsubscribe 
instructions at the bottom of this newsletter.

--------------------------------------------------------
 
In this issue:

1. Introduction
2. UDRP - Domain Name Disputes: Part II -The Procedure
3. Cyberlaw resource review
4. Computer & Internet law news and updates

--------------------------------------------------------

################
1. Introduction
################

I would like to welcome the many new subscribers who joined the Cyberlaw
Informer since the previous issue.

This issue's feature article is the second of a five part series about
the Uniform Domain Name Dispute Resolution Policy (UDRP), adopted by
ICANN a year ago. 
In the first part we explained what domain names are and why a uniform
dispute resolution mechanism is needed. If you missed that part, it is
available at the online archive:
http://mishpat.net/cyberlaw/archive/cyberlaw60.shtml
In this part we will explore the UDRP procedure - who solves disputes,
how long does it take, and what law applies.

As usual you will find the cyberlaw news and the resource review
sections at the end of this newsletter. 


In the next issue of the Cyberlaw Informer I plan to launch a new
section - "The Cyberlaw Reader". The reader will link to 3-5 new
articles about Internet law and online legal information and research. 
If you come across any new and interesting articles, please send me the
URL, and I'll include them in the Cyberlaw Reader.


You can also recommend resources and discuss various cyberlaw topics at
the message boards http://mishpat.net/cgi-bin/bbs/UltraBoard.pl
You can access the message boards directly at the above URL, or click on
the "Discuss Law" icon on the top of every page at http://mishpat.net


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 1-60) 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. UDRP - Domain Name Disputes: Part II -The Procedure
######################################################

In the previous article we explored the domain name system, and the
reasons that many disputes arise over the rights to domain names.

This part will discuss the dispute resolution procedure set out in the
Internet Corporation for Assigned Names and Numbers' (ICANN) Uniform
Domain Name Dispute Resolution Policy (UDRP) - a mechanism intended to
resolve conflicts between trademark holders and domain name registrants. 

This article is about the procedural aspects, including the identity of
the dispute resolvers, the law applied, default rulings, and more. In
the next articles we will explore the core of the UDRP - who should be
assigned the rights for a specific disputed domain name.



A Domain Dispute
=========================

The UDRP was adopted in order to provide a quick and inexpensive means
to adjudicate domain name disputes between legitimate trademark holders
(or other intellectual property holders - as will be explained in one of
the next articles) and bad faith registrants of domain names, also known
as cybersquatters. 


As you recall from the previous article, a domain name dispute arises
when one party registers a domain name ("registrant") through any ICANN
accredited registrar, and another party claims the rights to the same
name ("claimant").


A claimant can become aware of the problem in a variety of ways. He
might try to register the domain name and find that it is already taken
by someone else, or a registrant (especially in cases of cybersquatting)
might approach the claimant and offer to sell the domain.
Another way claimants can learn of the registrant's actions is by
employing intellectual property online researchers. Large corporations
protect their intellectual property by actively searching the web for
infringers, including copyright violators and infringing domain
registrants.


The claimant, who to this point did not sign any contract with an ICANN
accredited registrar regarding the disputed domain, has an option to
litigate or file a complaint according to the UDRP.
In case the claimant chooses the UDRP option, the registrant is required
to take part in the arbitration process, since (as mentioned in the
previous article) all ICANN accredited registrars include a provision in
their domain registration contracts, stating that the UDRP will govern
any domain name disputes.



Arbitration v. Litigation
=========================

Whereas litigation of a domain name dispute in court can be
prohibitively expensive and take a long time to resolve (including the
option of appeal), resolution of a dispute under the UDRP takes less
than two months and can cost as little as $750. 


Further more, as explained in the previous article, by providing a
uniform set of guidelines, the UDRP overcomes jurisdictional problems,
choice of law questions, and the costs of international litigation and
enforcement.

Statistics show that domain disputes are indeed becoming more
international. While in the past .com was considered American, from data
provided by The World Intellectual Property Organization (WIPO), it
appears the approximately half of the claimants in cases filed with the
WIPO arbitration center were non-American. The ratio of non-American
respondents (registrants) is similar.
One can assume that the same trend will continue is the future, as
domain registration is becoming more international, and the percent of
.com, .net and .org registered by Americans is declining.


However, the remedy (in case the complainant wins) under the UDRP is
limited to the transfer of the disputed domain name to the complainant
or cancellation of the domain name registration. 

>From a successful complainant point of view, this is less than the
expected remedy in court which includes monetary compensation. 
For example, The U.S. Consumer Protection Anti-Cybersquatting Act
provides for up to $100,000 in damages for each infringing domain
registration. Recently a federal judge ruled that a cybersquatter must
pay the trademark owner $500,000 in damages over 5 domain names
registered in bad faith.


Instead of litigation, the UDRP spells out an arbitration process. 
The arbitration process is much faster than traditional litigation. More
than 75% of  the 2,216 claims filed under the UDRP have already been
decided.
Another factor speeding up the process is that the panel rules without
any in-person hearings (and no teleconferencing).
According to the UDRP Procedure Rules, the panel must hand in its ruling
within 14 days of being appointed - much faster than any court
procedure.


ICANN itself is not involved in resolving any specific dispute. ICANN's
part is limited to the adoption of the UDRP, and to accrediting "Dispute
Resolution Service Providers".



The Resolvers
==================

A claimant can file his complaint with any of the ICANN accredited
dispute resolution providers. Currently there are four accredited
providers, but there is no limit to the number of providers, and any
organization that meats the ICANN standards can become a dispute
resolution service provider. The current providers are:

(1) The World Intellectual Property Organization (WIPO) located in
Geneva, Switzerland. 
(2) The National Arbitration Forum (NAF), located in Minneapolis,
Minnesota.
(3) Disputes.org/eResolution Consortium, located in Quebec, Canada and
Amherst, Massachusetts. 
(4) CPR Institute for Dispute Resolution in New York.

Judging by the number of cases, WIPO is currently no doubt the most
popular dispute resolution provider, with more than 60% of the market
share.

Each provider can adopt rules administering a proceeding to supplement
the ICANN procedure rules. Supplemental rules must be consistent with
the ICANN policy cover technical issues such as fees, word and page
limits, the means for communicating with the provider and the panel, and
the form of cover sheets.


For each dispute, an administrative panel is appointed by the relevant
service provider. The administrative panel is to apply the UDRP to the
facts of the case. 

The panel may be made up from one to three panelists with one being the
presumption, but either party may request three. 
If only one panelist is requested, the complainant pays a $750-$1500 fee
(price is set by the resolution service provider). If the complainant
requests a three-member panel, it will pay the $2200-$3000 fee. If the
respondent (the registrant) requests three panelists, the fee is split
evenly.



The UDRP claim
=================

Any person or entity may initiate an administrative proceeding by
submitting a complaint in accordance with the UDRP to any Provider
approved by ICANN. 
The complaint shall be submitted in hard copy and in electronic form and
shall include the details set out in the rules for the UDRP.


An interesting point to note is that the complaint may relate to more
than one domain name, provided that the domain names are registered by
the same registrant.

In fact, the average domain names per UDRP claim is currently 1.81.
Statistical analysis reveals an interesting indicator - While the
average domain name per successful claim (claimant wins all domain names
or at least some of the names) is 1.86 (1.62 without split decisions),
in cases the respondent wins the average domain name per claim was only
1.28.

This leads to a conclusion that cases involving more then one domain
name have a higher tendency to involve cybersquatting. This is the case
of "typosquatting" which will be elaborated in the next article.
Typosquatting involves the practice of registering misspellings of
famous names, or adding prefixes to those famous names (e.g.
yahoochat.com, yaho.com etc.).


UDRP section 4(a) requires a domain name registrant to submit to
mandatory administrative proceedings when a trademark holder files a
UDRP complaint.

Section 4(a) states:

"You are required to submit to a mandatory administrative proceeding in
the event that a third party (a "complainant") asserts to the applicable
Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark
or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain
name; and
(iii) your domain name has been registered and is being used in bad
faith."

The three elements mentioned is section 4(a) are the basis of a UDRP
resolution. The complainant carries the burden of proof, and must prove
ALL three elements in the specific disputed domain case.
Part III of this series will focus on the meaning of the three elements,
and the way they are applied and interpreted.



The Time Table
==============

The UDRP sets out a strict timetable for the arbitration process.

After the resolution service provider accepts the fees from the
complainant, it must forward the complaint to the registrant within 3
calendar days (that is unless the complaint doesn't meet the submission
rules).
The respondent (registrant) has only 20 days to file a response with the
resolution service provider.

If only one panelist is requested, the service provider should appoint
him within 5 days of receiving the registrants' response, or if no
response is filed within 5 days of the 20 day period. The process for
appointing a 3-member panel is a bit more complicated, and is set out in
section 6 of the UDRP rules.

In the absence of exceptional circumstances, the Panel shall forward its
decision to the service provider within 14 days of its appointment. The
provider must then send the decision to the parties, the relevant
registrar, and ICANN within 3 days.

The total time set out by the rules for resolving a dispute is therefor
(calculated from the date of the complaint filing and until the decision
is sent to the parties) 3+20+5+14+3=45 days.

In some cases the time to resolve the dispute is longer (for example
when the registrant is granted a extension to file his response, or when
the panel asks the parties to submit further statements or documents),
but statistical evidence shows that the majority of cases are resolved
within the time schedule set out by the UDRP rules.



Default Ruling
===============

According to section 14 of the UDRP rules, in the event that a party
does not comply with any of the time periods established by the rules or
the panel, the panel shall proceed to a decision based on the complaint.

In practice, it means that if a respondent (registrant) does not submit
a response, then in the absence of exceptional circumstances, the panel
will decide the dispute based upon the complaint filed by the claimant.


There is no up to date data about the number of default cases, but based
on research regarding the first several hundred UDRP cases, the number
of registrant defaults is around 30%.

While the burden of proof is on the complainant, UDRP section (4)(c)
requires that the respondent (the registrant), in its response to the
complaint, demonstrate its "legitimate interests" in the domain name.

Since in default rulings the panel decides based upon the complaint, and
draws negative inferences from the registrants failure to respond, it is
very rare (~2%) that a registrant wins a default ruling.


There are two possible reasons for the high rate of respondent defaults.
The first is that the registrants don't have enough time to file a
response. That is probably not the main reason, as in almost all cases
in which an extension was asked for it was also granted.
The other explanation is that in the default cases, the registrants see
little point of filing a defense, since they are aware of the true
squatting reasons for registration.


Settlement
==============

As in regular civil litigation, many cases are settled after filing but
before the panel has issued a decision. Under such circumstances the
panel shall terminate the proceedings.

ICANN's statistics show that 222 complaints (about 13% of disposed
cases) where disposed without a decision (settlements and dismissals).
In 52 out of the 222 the parties announced a settlement. It is safe to
assume that in several of the cases dismissed without prejudice, a
settlement between the parties was reached.


The Law
==========

The UDRP does not specify a controlling legal doctrine. Instead, the
panel has full discretion in deciding which law, if any, to apply to any
particular dispute (along with the UDRP itself). 
The UDRP gives little guidance to panelists on how to determine which
law to apply. The Rules require only that "a Panel shall decide a
Complaint on the basis of the statements and documents submitted and in
accordance with the Policy, these Rules and any rules and principles of
law that it deems applicable".

The freedom to choose and apply law at the panelist's discretion might
lead panelists to apply the laws with which they feel most comfortable,
usually the laws of their country, even if the parties are from other
jurisdictions..

When the parties are from the same country, the laws of that country are
applied. This is very reasonable since decisions under these conditions
are likely to be more consistent with the legal environment each party
envisioned for their own case. 
However, panel decisions citing previous panel decisions (UDRP
precedents) might cause foreign law to be applied to otherwise domestic
disputes. 

In one case (the domain tourplan.com), the complainant was a New Zealand
company with London offices, the respondent had registered the domain in
Australia, and the panelist was American. The panelist concluded that
the term "confusing similarity" in the UDRP is drawn from "general
principles of trademark and unfair trade law," and that no specific
legal system's general principles are indicated by the UDRP Rules. It
would be impossible for any panel to be conversant with the laws of
every jurisdiction in the world, and therefor the panelist applied a
"broad and common sense interpretation" (probably relying the US common
sense, as that is the law the panelist was familiar with).



The Outcome
============

The panel can rule in favor of the respondent or the complainant.

In case the panel rules in favor of the registrant, no action is to be
taken, since the registrant is already the domain holder. Unlike past
policies, the disputed domain is not put on-hold until a panel decision.

While a successful respondent is not eligible for compensation for the
resources put into defending his rights, he may ask the panel to
announce that the complaint is an attempted "Reverse Domain Name
Hijacking", i.e. that the complainant brought his claim in bad faith or
primarily to harass the domain holder.
Panels tend not to use this option, and it has only been applied in very
few cases.


In case the complainant wins, the panel can order to transfer the domain
name to the complainant, or to cancel the registration. While 1855
domain names where transferred,  only 19 where cancelled.
If the complainant asks to cancel the registration (e.g. the name
infringes upon its trademark, but  it does not wish to use it for its
own site), it risks that third party, with a legitimate claim for the
name, will register the domain name after the cancellation of the
registrant's registration.


Statistical evidence shows that the panels tend to rule in favor of the
complainant. In approximately 80% of the cases in which panels issued a
final opinion, they ruled in favor of the complainant.
When we eliminate the default rulings, that number drops to just under
70% of the cases ruled in favor of the complainants.
Many UDRP critics claim that this data proves that the UDRP favors
trademark owners, over small businesses and private users. We will
elaborate this point in Part V of this series, that will evaluate the
UDRP process.



Precedent
===========

The online publication of UDRP opinions has led to a practice of citing
previous panel decisions. In several cases, panels used opinions from
previous cases as persuasive authority to help address a variety of
procedural and substantive matters. Other cases used the prior decisions
as bearing some binding precedential value for future cases. 

For example in a case between two Hungarian parties over the domain
zwackunicum.com, the panelist noted that both the applicable Hungarian
law and the legislative history of ICANN and the decisions of the WIPO
Center Administrative Panel have to be considered.



This article covered the procedural aspects of the UDRP - we described
the arbitration process, the parties, and the procedure used to resolve
the disputes.
In the next article we will examine the core sections of the UDRP, and
start answering the most important question - given the UDRP arbitration
procedure, who should be assigned the rights for a disputed domain name.



Resources:

A list of accredited dispute resolution providers, and their
supplemental rules
http://www.icann.org/udrp/approved-providers.htm


ICANN's UDRP, Rules, and related documents:
http://www.icann.org/udrp/udrp.htm


Using ICANN's UDRP:  Library, From Harvard University
http://eon.law.harvard.edu/udrp/library.html



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############################
3. Cyberlaw resource review
############################

This week's resource is FindSame at http://www.findsame.com

FindSame is a new approach for online research. Instead of searching for
keywords, such as we do in traditional search engines, the search "term"
is a whole document - a URL (Internet address) you supply, full text you
type into the search box, or even a file you upload to FindSame's
servers.

I ran a couple of law related searches, and came up with surprising
results:

First I entered a URL for one of the previous issues of the Cyberlaw
Informer. The top 20 results where other archived issues of the Cyberlaw
Informer.

Second I entered the URL for a recent ICANN report. Again the top
results where other documents from the ICANN site.

Then I entered an article about domain names, and got back some other
relevant articles.

Finally, I entered the URL of a US supreme court about the use of
polygraph (it is relevant for a case I'm working on), and got excellent
results - a CourtTV article about a similar case, and .... the text of
the same Supreme Court decision from FindLaw.


The above testing showed that FindSame can be an additional good online
legal research tool. However, there is a built-in bias towards showing
pages from the same site, as they share much of the same text (for
example - the same navigation buttons, the same footer, etc.).

One final note - I don't think that this was FindSame's intention, but
the results indicate that FindSame can be a good tool for detecting
online verbatim copyright violations.



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



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#############################
4. Cyberlaw news and updates
#############################


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
========

* No dot-law *
The staff report published by the Internet Corporation for Assigned
Names and Numbers (ICANN) states that only 17 of the 44 proposals for
new top level domain names met the technical, financial and other
minimum standards. 
Suggestions worthy of further consideration include dot-web, dot-info
and dot-per (for personal use). For all the lawyers out there - the
dot-law proposal was also rejected.
None of the four applications proposing to create a dot-kids domain -
restricted to sites with material appropriate for children, or a dot-xxx
domain, limited to pornographic material, were recommended. 
ICANN's upcoming board meeting will discuss the staff report and the
public comments. The full report is available at:
http://www.icann.org/tlds/report


* Experts say Yahoo! Can block French access to Nazi auctions *
A panel of experts told a Paris court that it is technologically
possible to bar most French citizens from Yahoo's Nazi memorabilia
auctions. In May, Judge Jean-Jacques Gomez ordered Yahoo to block French
surfers from viewing auctions for Nazi memorabilia that took place on
Yahoo's main site, since a French law makes it illegal for French
citizens to exchange or buy such items (the Yahoo France site bars Nazi
relics, but French surfers can reach auctions on other Yahoo sites).
Yahoo claimed that it was technologically impossible to prevent surfers
from accessing all parts of its site, but the experts said technology
could keep 70 to 80 percent of French users out of banned Yahoo
auctions. 
http://www.thestandard.net/article/display/0,1151,19965,00.html


* Microsoft hacked again *
Just a week after Microsoft reported an intrusion into its corporate
networks, another hacker claimed that he penetrated the company's
servers. The Dutch hacker said Microsoft failed to install a patch for a
known bug in its OWN Internet Information Server (IIS) software. A
Microsoft spokesman confirmed that the hacker reached at least one
server, but said that Microsoft security personnel were rechecking their
servers for holes to patch.
http://idg.net/ic_280414_1794_9-10000.html


* Email snooping illegal in France *
A French court ruled that email is covered by the country's privacy laws
and awarded 10,000 Francs in damages to a Kuwaiti student who was
snooped on by university authorities. The judge said that intercepting
emails is illegal except for clearly defined reasons such as national
security.
http://www.globetechnology.com/archive/gam/News/20001103/IBSOME.html



Intellectual Property
===============

* Supreme Court will hear freelancer-database copyright case *
The US Supreme Court agreed to consider whether print publications may
add articles written by freelance writers to electronic databases
without the authors' permission.
Freelance writers claim that the right to publish a printed version of
an article does not automatically include the right to publish it
electronically. Last year a federal appeals court ruled in the writers'
favor, saying the publishers are not authorized to sell an electronic
version of an article just because they own the rights to the printed
version.
http://www.newsbytes.com/news/00/157749.html
A review of the appeals court decision was published in Cyberlaw
Informer #29 at: http://mishpat.net/cyberlaw/archive/update29.shtml


* Panda wrestles the pro wrestlers *
The World Wide Fund for Nature, best known for its efforts to protect
the panda and other endangered animals, is battling with the World
Wrestling Federation over the use of the initials WWF. The fund accuses
the federation of breaking an agreement the two parties reached in 1994
over the use of the logo and trademark, and filed a lawsuit in London
seeking enforcement of its trademarks, including the rights for the
domain wwf.com.
http://www.salon.com/business/wire/2000/10/26/wwf/index.html


* Mexican company sues over wrong piracy raid *
Consultores en Computacion y Contabilidad, a provider of computer
consulting and accounting services in Mexico City, sued Microsoft and
three other companies claiming it was wrongfully targeted in a 1998 raid
aimed at finding pirated software products. The raid produced no
evidence but caused the Mexican company's sales to drop. 
http://www.usatoday.com/life/cyber/tech/cti739.htm


* eBay immune from infringing items sale *
Judge Stuart Pollak ruled, in a motion for summary judgement, that  eBay
cannot be sued for auctioning recordings that may infringe on a
copyright. Judge Pollak reasoned that the Communications Decency Act
specifies that the provider of an interactive computer service cannot be
treated as the publisher of information provided by another content
provider.
http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZRBM2EAFC


* Patenting e-commerce *
A federal appeals court ruled for Interactive Gift Express against a
group of companies, including CompuServe and Ziff-Davis, and reinstated
a 1996 lawsuit by Gift Express, now known as the E-Data, which claims it
holds a 1985 business method patent that covers the basic process for
selling digital content including downloadable music, and electronic
books.
http://www.nylj.com/stories/00/11/110700a1.htm


* Microsoft looses copyright case in Thailand *
The Thai Supreme Court acquitted Atec Computer, a local PC vendor, of
copyright infringement, stating that Atec's illegal conduct was
facilitated by a Microsoft employee who deliberately asked a dealer to
download unlicensed software on to a computer without Atec's knowledge.
http://www.newsbytes.com/news/00/157759.html


* MP3.com claims Universal's copyrights invalid *
MP3.com claimed in court that Universal Music Group's copyrights are
invalid, since the disputed music disks were not work-for-hire as stated
by Universal in its copyright applications. Several leading musicians
supported MP3.com's claim. The Recording Industry Association of America
(RIAA) responded by characterizing the action by MP3.com as a
"litigation play".
http://www.wired.com/news/business/0,1367,39961,00.html


* Is SDMI cracked? *
The Secure Digital Music Initiative (SDMI), a coalition of companies in
the software and recording industries said that three of five
technologies aimed at stopping online music piracy survived attack by
hackers seeking to win $10,000 for cracking the security measures. Some
participants questioned SDMI's statement, as a group of researchers
based at Princeton University, Rice University and the Xerox claimed
that it cracked all the proposed security measures.
http://www.wired.com/news/technology/0,1282,40054,00.html


* DoubleClick settles patent lawsuits *
Internet advertising giant DoubleClick and 24/7 Media settled their
patent dispute. DoubleClick also settled a lawsuit with another rival,
L90. The networks granted each other rights in certain of their
respective patents.
http://www.newsbytes.com/news/00/157760.html


* Sony uses software to defeat multi-region DVD players *
Sony's Columbia TriStar Home Video confirmed that it is using security
software on some of its DVDs that prevents the discs from being played
in unauthorized players. Regional Coding Enhancement is used on some
movie discs to prevent them from being played outside their intended
region.
http://www.inside.com/story/Story_Cached/0,2770,13777_10_18_1,00.html


* Farmers sue Gates' Corbis *
The United Farm Workers filed a lawsuit against Corbis Corp. (owned by
Bill Gates) for allegedly selling digital photos of their works without
permission. 
http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/016374.htm


* HarvardNet and HarvardNetSucks.com *
HarvardNet, a web hosting provider, sued Jason Sadofsky, a former
employee, for posting proprietary information about the company's
security system on his site HarvardNetSucks.com. Judge Julian Houston
issued a temporary restraining order barring Sadofsky from further use
of the disputed information.
http://www.bostonherald.com/business/technology/hnet11072000.htm



Domain names
===========

* Asian languages domain registration *
Internet users around the world began registering domain names in
Chinese, Japanese and Korean. Until now, domain names could only be in
Roman letters or numbers. There are also plans to introduce
registrations in Spanish, Portuguese and Arabic in the near future.
http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/086345.htm


* Hasbro looses Clue Appeal *
The US Court of Appeals For the First Circuit dismissed Hasbro's appeal,
and affirmed a lower court's ruling that Clue Computing Inc. has a
legitimate right to use the domain name clue.com. 
Since 1950 Hasbro, the giant toy maker, holds a trademark for the term
"clue" which is the name of its popular detective board game. Clue
Computing registered the domain name clue.com, and uses the domain name
for its business web site.
Hasbro sued Clue, charging Clue with infringement and dilution of the
Clue trademark. The district court ruled in favor Clue, as there was no
evidence to establish the likelihood of confusion necessary for
trademark infringement, and there is very little similarity between
Hasbro's products and Clue Computing's services. The court also found
that the Clue mark was not famous, that Clue Computing's use of the
domain name did not tarnish Hasbro's mark. The appeals court adopted the
district court's analysis, and affirmed its ruling.
Full ruling at: http://laws.lp.findlaw.com/1st/001297.html


* NSI can't be sued for not registering obscene domains *
US District Judge David G. Trager ruled that since there are now many
competing domain name registrars, Network Solutions Inc. (NSI) could not
be viewed as participating in governmental action, and could not be sued
for civil rights violations for denying a company domain names that
included obscene words.
http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZW1XHDEFC


* Cybersquatter to pay $530,653.34 in damages *
As reported in the previous issue, a federal judge in Pennsylvania ruled
that a  cybersquatter must pay $530,653.34 to a trademark owner. The
court's opinion is available from GigaLaw at:
http://www.gigalaw.com/library/electronicsboutique-zuccarini-2000-10-30-p1.html


* South Africa wants domain name *
South African Communications Director General, Andile Ngcaba, said an
application claiming the southafrica.com domain would be filed with
World Intellectual Property Organization.
http://news.24.com/News24/Technology/Infotech/0,1113,2-13-45_933674,00.html


* Ski resort angers winter Olympic committee *
Brighton Ski Resort angered the Olympic authorities by using the domain
Brightonupthegames.com.
http://dailynews.yahoo.com/h/ap/20001031/sp/oly_salt_lake_resort_ads_1.html


* Mark owners win WIPO domain name rulings  *
French actor Alain Delon, KLM airlines, Nintendo, Suzuki and EMI Group
won cases against alleged cybersquatters. WIPO arbitrators ordered the
contested domain names transferred to the complainants after finding the
other parties had no legitimate claim.
http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/039582.htm



Cyber crime
=========

* Computer search the same as property search *
The 9th US Circuit Court of Appeals, hearing the appeal of a man
convicted of possession and distribution of child pornography, ruled
that the US Customs Service established probable cause to search his
entire computer system, and concluded that the search was justified. The
court said that the search of a computer is similar to the search of any
other property that might contain incriminating material.
http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZIQYFUYEC


* Top ten "dot con" *
The US Federal Trade Commission posted its top-10 list of Internet
scams, dubbed "dot con" scams, and vowed to work with overseas law
enforcement agencies to crack down on online con artists. The FTC said
the government brought 251 lawsuits against alleged online scammers this
year. 
http://www.ftc.gov/opa/2000/10/topten.htm


* Draft of Cyber-crime convention published *
The European Community published the 22nd draft of the EC Cyber
Crime Convention, available at:
http://conventions.coe.int/treaty/EN/projets/cybercrime22.htm
I want to than Boaz Guttman for sending me the draft.


* Former teacher goes to prison for online sex *
Billy Joe Manning Jr., a 38-year-old former art teacher, was sentenced
to 16 to 20 months in prison and five years probation, for taking
indecent liberties with a teenage girl he met in cyberspace. The judge
also ordered Manning not to use the Internet for five years. 
http://www.newsbytes.com/news/00/157666.html


* NASA hacker pleads guilty * 
Jason Allen Diekman, 20, pleaded guilty to infiltrating sensitive
computer systems, including those at Stanford University and NASA's Jet
Propulsion Laboratory in Pasadena.

http://www.techserver.com/noframes/story/0,2294,500277324-500434273-502755989-0,00.html



Securities
========

* Australian sent to 6 years in jail for online stock manipulation *
Steven Hourmouzis, 24, of Melbourne, Australia, was sentenced to six
years in prison for sending millions of emails containing false
information, suggesting shares of Rentech, a Nasdaq-listed technology
firm, would jump 1000% after the company released pending patents.
http://www.nationalpost.com/tech/story.html?f=/stories/20001106/452068.html


* Toronto Stock Exchange tests chat room monitoring *
The Toronto Stock Exchange is testing artificial intelligence technology
that monitors chat rooms and bulletin boards for mentions of public
companies, and rates conversations according to their "mood". The TSE
wants to monitor online chats in an attempt to spot stock scams.
http://www.globetechnology.com/archive/gam/News/20001106/RMINN.html


* 3Com settles shareholder class action suits *
3Com agreed to settle two shareholder class-action lawsuits arising out
of its 1997 merger with US Robotics for $259 million in cash.
http://www.wired.com/news/business/0,1367,39976,00.html



Privacy 
======

* TRUSTe Launched EU Safe Harbor Seal *
TRUSTe announced the launch of the new "EU Safe Harbor Privacy Seal" to
coincide with the data-sharing agreement between the US and the European
Union. Entering the safe harbor will immunize US companies from
complying with the EU's Data Protection Directive.
http://www.newsbytes.com/news/00/157551.html


* School logs not private in New Hampshire *
A New Hampshire court granted the father of a public school student the
right to obtain Internet usage records of all students who used
computers and web access supplied by the school district. 
http://www.newsbytes.com/news/00/157754.html


* Anonymous political speakers will be un-masked *
New Jersey Superior Court Judge Miriam Span ordered America Online (AOL)
to identify account holders who spammed the Elizabeth Board of Education
three times from three email addresses by sending up to 60 identical
messages to nearly 2,000 teachers and board employees.
http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZVXZW5DFC


* China fights spam *
The Chinese Ministry of Public Security closed down a few sites selling
collections of personal and company email addresses.
http://www.zdnetasia.com/news/dailynews/story/0,2000010021,20146211-1,00.htm


* AT&T hosted spammer *
AT&T acknowledged that it violated its own spam policy by providing
hosting services to a spammer. AT&T said the contract has been
discontinued.
http://news.cnet.com/news/0-1005-200-3369773.html


* PSINet spam contract surfaces *
Internet service provider PSINet acknowledged providing access to
Cajunnet, a spammer marketing firm. PSINet cut off service to Cajunnet
and pledged to amend its spam policy and educate its sales force.
http://news.cnet.com/news/0-1005-200-3585163.html



Online Speech
===========

* ACLU will continue vote-swapping actions *
Although the US election is over (or not?) the American Civil Liberties
Union (ACLU) will pursue a court order allowing a vote-swapping site to
operate without fear of prosecution. Voteexchange2000.com offered
supporters of Green Party candidate Ralph Nader the chance to "swap"
their votes with Democratic voters in non-swing states. The site was
pulled after the California Secretary of State threatened to prosecute
the owner of a similar vote-trading site.
http://www.usatoday.com/life/cyber/tech/cti784.htm


* China issues online news regulation *
China published regulations aimed at controlling online news and
chatrooms. The rules require sites to seek approval before they can
publish news. Sites are forbidden from reporting or writing news
themselves and must rely on state media.
http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/065942.htm


* German Jewish students hit with racist spam *
A group of German Jewish students was bombarded with more than 17,000
emails containing a threat to repeat the Holocaust. Police in the
southern state of Baden-Wuerttemberg said they were powerless to
investigate because U.S.-originating Internet material falls outside
German laws that make neo-Nazi propaganda a crime.

http://www.techserver.com/noframes/story/0,2294,500278233-500436027-502774100-0,00.html



eCommerce 
=========

* New Zealand online pharmacy regulations *
An investigation by the New Zealand Ministry of Health against Dr. Chris
Simpson, an Auckland doctor who has been prescribing Viagra and Xenical
over the internet, led Simpson to shut down his website. 
http://www.nzherald.co.nz/storydisplay.cfm?storyID=157998

New Zealand's Ministry of Health pushed through a ban on the sale by New
Zealand companies of prescription medicines to overseas consumers via
the Internet.
http://www.newsbytes.com/news/00/157575.html


* Australian banned form selling contraceptives online *
An Australian federal court temporarily banned David Hughes from selling
contraceptive pills via his website following a complaint from the
Australian Competition and Consumer Commission.
http://www.it.fairfax.com.au/breaking/20001109/A37788-2000Nov9.html


* Cyber Cafe price fixing *
The Australian Competition and Consumer Commission (ACCC) is taking
legal action against a Melbourne Internet cafe accused of threatening
rivals with an aggressive price war if they don't agree upon a minimum
hourly rate for Internet access.
http://www.zdnet.com.au/news/dailynews/story/0,2000011358,20106720-1,00.htm


* AOL can not file brief in Microsoft appeal *
The US Court of Appeals for the District of Columbia ruled that America
Online (AOL) must join with three industry trade groups if the company
wants to file a brief supporting the government's position. The court
said it would permit six friend-of-the-court briefs, including two from
groups that largely support Microsoft's position.
http://www.nytimes.com/2000/11/04/technology/04SOFT.html


* Microsoft ordered to pay legal costs in Bristol antitrust case *
U.S. District Judge Janet C. Hall ordered Microsoft to pay Bristol
Technology $3.7 million in legal fees in addition to $1 million earlier
awarded for unfair trade practices.
http://news.cnet.com/news/0-1003-200-3423562.html



Regulation
========

* Japan approves e-law *
Japan's Lower House approved a bill adopting the Information Technology
revolution as a national goal. The bill urges the revision of 733
regulations and 124 laws obstructing e-commerce.
http://www0.mercurycenter.com/svtech/news/breaking/internet/docs/613562l.htm


* Open-Access requirement ruled unconstitutional in Florida *
A US District Court judge ruled that a Broward County, Florida,
ordinance requiring cable giant AT&T to allow rival Internet access to
their systems violated the First Amendment. 
http://www.washingtonpost.com/ac2/wp-dyn/A63232-2000Nov10



Misc.
=====

* Mideast cyberwar moves to US sites *
Arab hackers targeted the website of Lucent Technologies, a US company
that conducts business with Israel, the first such attack since the
Arab-Israeli cyberwar began a few weeks ago. Lucent said security
workers were able to fend off the attack. Hackers from Pakistan also
hacked the American-Israeli Public Affairs Committee (AIPAC), an
American pro-Israeli lobby group.
http://www.dailystar.com.lb/06_11_00/art2.htm


* Former Microsoft worker wins discrimination claim *
Tom Davis, a systems engineer who worked at Microsoft since 1987 and
diagnosed in 1997 with Hepatitis C, an incurable liver disease, was
awarded $2.3 million for lost wages and benefits, including stock
options. A jury found that Microsoft violated the Washington Law Against
Discrimination by not doing enough to help Davis find a job he could do
in an ordinary work week.
http://www.wired.com/news/business/0,1367,40029,00.html


* AOL faces legal trouble over software v. 6 *
A number of serious networking glitches in AOL 6 made attorneys, leading
ongoing class-action suits against AOL over version 5, to say that they
will likely expand their lawsuits to include the new software. 
http://www.internetnews.com/wd-news/article/0,,10_501941,00.html


* DOJ mistakenly posted confidential trial documents *
Judge Barbara S. Jones of the US District Court in Manhattan, presiding
over the government's antitrust suit against Visa and MasterCard, ruled
that the Justice Department had inadvertently posted confidential trial
documents on its web site, and ordered that anyone who obtained the
information return or destroy it.
http://www.nytimes.com/2000/11/10/business/10CARD.html


* CIA investigates secret employee chat room *
The CIA is investigating 160 of its employees and contract workers for
exchanging messages on a covert chat room set up on the CIA's classified
computer network.
http://www0.mercurycenter.com/svtech/news/breaking/ap/docs/623673l.htm


* Voyeur site must move out of residential area *
An Internet company that set up a "dorm" with cameras so voyeuristic
visitors could follow the daily lives of its young female "residents",
must move from a residential area in Tampa, Florida, since it violates
zoning laws.
http://abcnews.go.com/sections/tech/DailyNews/voyeurdorm001107.html




That is all for this time,
Yedidya (Didi) M. Melchior 
Editor 

The Cyberlaw Informer

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