cyberlaw informer #63


Welcome to the 63rd 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 

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In this issue:



1. Introduction

2. UDRP - Domain Name Disputes: Part IV -Special Issues

3. The Cyberlaw Reader

4. Cyberlaw Resource Review

5. Computer & Internet Law News and Updates



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

1. Introduction

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



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

Informer since the previous issue.



The Cyberlaw Informer is published biweekly, so the next issue is

scheduled for the end of December. Since many of you will be away on

vacation during the holiday season, issue #64 will only be published

during the first week of January.



I would like to take this opportunity to wish you all happy holidays of

all Faiths and a happy new year. May it be a year of peace, joy and

prosperity for all. 

The year will probably start well for all you high tech people since,

unlike last year, you don't have to worry about any computer bug during

new year celebrations :-)





This issue's feature article is the fourth of a five part series about

the Uniform Domain Name Dispute Resolution Policy (UDRP), adopted by

ICANN a year ago. The UDRP spells out an arbitration procedure to

resolve domain name disputes between domain holders and trademark

owners.



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 the second part we examined the UDRP procedure - how to file a

complaint and a response, who the arbitrators are, the timetable for

resolving a dispute, etc. If you missed that part, you can find it at:

http://mishpat.net/cyberlaw/archive/cyberlaw61.shtml

The third part discussed the general principles of allocating the rights

for a disputed name under the UDRP. If you missed that part, you can

read it at: http://mishpat.net/cyberlaw/archive/cyberlaw62.shtml



In the fourth part we will explore special issues that arise during

domain name disputes, such as the use of generic names, freedom of

speech in domain names, geographical names and more.





As usual you will find the recommended cyberlaw reader, the cyberlaw

news and the resource review sections at the end of this newsletter. 





You can recommend resources and discuss various cyberlaw topics at the

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





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 1-62) 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 IV - Special Issues

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



In the previous parts we lay the ground to the Internet Corporation for

Assigned Names and Numbers' (ICANN) Uniform Domain Name Dispute

Resolution Policy (UDRP) intended to resolve conflicts between trademark

holders and domain name registrants.. 

In Part I we defined what a domain name is and what the dispute is

about. In Part II we described the procedural aspects of resolving a

domain name dispute. And in Part III we defined the three elements that

a claimant must prove in order to win the rights for a disputed domain

name.



In this article we will look at some special situations in which the

UDRP does not provide a strait forward answer. Special problems arise

from ambiguous language contained in the UDRP and from the fact that the

UDRP (as any legal text) can not cover all possible situations.







Non-Use

==========



As you recall from the previous article, one of the elements the

claimant must prove in order to gain the rights for the domain name, is

that the domain name was registered and used in bad faith.



The requirement is therefor double - both the registration and the use

must be in bad faith. Out of the three phrases - registration, use and

bad faith - only two are defined.

Registration is the process of registering a domain name with one of the

accredited registrars. Bad faith is not defined in the UDRP, but as

discussed in the previous article, the UDRP includes broad examples of

bad faith registration and use, that cover almost any use in bad faith.





The term "use" seems simple, as it is a commonly used English term.

However, a problem arises with what I will call "non-use".



If a registrant wants to harm a competing trademark owner, it could

register a domain name identical or similar to the trademark, and not

use the name for any web site. Since the trademark owner that wants to

claim the rights to the name according to the UDRP must show that the

name is "used" in bad faith, the question is whether the non-use can be

considered as use.



The first case to tackle that question was the Telstra case. Telstra,

the giant Australian communications provider, owns the trademark for the

name Telstra, which has no simple-language meaning. The respondent

registered telstra.org but had neither put up an active website nor

offered the name for sale. 

The panel found bad faith in the combination of the following factors:

The registrant had no legitimate commercial or non-commercial activities

in Australia, it concealed its true identity by giving false contact

information to the registrar during the registration procedure, thus

insuring that communication with it could not be made. The panel

concluded that the inaction was sufficient to prove bad faith use.



While this is no doubt not the simple interpretation of "use" - since

all the factors mentioned by the Telstra panel where only proof of bad

faith registration, or have to do with a different UDRP element

(legitimate interest) - it seems that it is the only interpretation that

can block non-use registrations done by competitors and others seeking

to block the mark owner from using it on the web.





However, in at least one case (presidentschoicesocks.com) the registrant

retained the rights for the name even though it did not even file a

response to the complaint. The arbitrator said he was unable to find

evidence that the domain had actually been used in bad faith, and

disagreed with the assumption that the mere threat to infringe

trademarks by registering a domain name constitutes bad faith use. 





If the name is not used, but the registrant can show plans for future

use, then the fact that the domain is temporarily non-used does not

constitute bad faith.



In Microcell Solutions Inc. v. B-Seen Design Group Inc., involving the

domain fido.com a three-member panel ruled that the refusal to sell an

inactive generic domain is not bad faith when respondent has plans to

use the name.

The panel found that since B-Seen had the bona fide intention to use the

fido.com domain for an Internet search engine in the future, it had

registered a name that seemed to it to be likely to be useful for

something (perhaps a search engine) someday. 







Generic Marks

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



Generally speaking (as trademark laws vary form country to country)

generic words can be registered as a trademark as long as they are

distinctive and non-descriptive. 



A simple example will illustrate this point. Consider the word "apple".

An apple juice manufacturer can not register the term "apple" as a

trademark for the juice it produces, since it simply describes the

product (apple flavored juice).

However, a computer manufacturer marketing its products under the brand

"apple" can register a mark for the term "apple", since the term "apple"

is in this case not a description of the product, but a name

distinguishing the products from that of other computer manufacturers.



The mechanism that enables such registration is known as classification.

If Apple computers registers the term "apple" as a trademark for

computer hardware and software, it can not prevent a shoe manufacturer

from registering a trademark for shoes branded as "apple", since the

registration is under a different classifications.



In the international domain-name-land, where many identical mark owners

are seeking to use the same domain name (since there might be many

owners to the name under different classifications, or the same name

might be registered in different countries) the rights are generally

assigned on a first-come-first-served basis.

The first mark owner to register the domain has a legitimate interest in

the name, and his rights to register the name can hardly be contested.





The situation becomes more complicated when we consider another aspect

of generic marks. The fact that Apple computers owns a trademark for the

term "apple" can not prevent other people or entities from using that

word. Apple Inc. does not have a monopoly over the word "apple" only a

limited monopoly of using the word "apple" in connection with computer

hardware and software.



Now consider a hypothetical scenario, in which a grocery store owner

registers the name apple.com in order to run a virtual grocery store

under that domain. Should Apple computers be assigned the rights for the

domain since it owns a trademark for the term "apple"?





This was exactly the situation in the UDRP case Hearst Communications v.

David Spencer, involving the domain name esquire.com.



Hearst owns the trademark "Esquire" for use in conjunction with the

magazine named Esquire. Spencer sold the domain to a company that had a

domain name business where it would rent domain names, such as

accountant.com and doctor.com  for email purposes (e.g. a doctor named

smith could pay for the use of email address smith@doctors.com). It

intended to use esquire.com to offer similar services to members of the

legal profession.



The panel majority found that Spencer had registered and used

esquire.com in bad faith, since he had registered other names

confusingly similar to well known marks such as buicksource.com and

porschesource.com. The majority did not agree with the claim that

"esquire" was a generic term or that Hearst's trademark was so weak that

it should not be protected. 



However, in a very convincing dissent, one panelist argued that no one

would necessarily assume that esquire.com was associated with the

magazine of the same name, since the word "esquire" is too generic and

widely used as descriptive of lawyers and gentlemen. 





In another controversial split decision,  J. Crew International Inc. v.

crew.com, the majority again sided  with the generic mark holder.



The Complainant, a clothing retailer, held the trademarks for J.CREW and

CREW relating to clothing business. 

Complainant invited the respondent, which had already registered

crew.com, to join the its affiliate program and place a banner ad on the

crew.com web site with a link to complainant's own web site located at

jcrew.com, in exchange  complainant promised respondent commissions for

sales. Later the parties tried unsuccessfully to reach an agreement for

the sale of crew.com to J Crew, and then J Crew filed a UDRP claim.



Respondent argued that the domain name had not been registered in bad

faith, since it had no knowledge of the trademarks at the time it

registered the domain name and that it had not used the domain name in

bad faith because it was asked to join Complainant's affiliate group. 



The majority found that speculation in domain names is not a legitimate

interest in respect of a domain name (as discussed in the previous

article, this view is not commonly accepted). The majority reasoned that

conduct which precludes others who have a legitimate desire to use the

domain name and which increases costs to the operators of web sites and

limits the availability of domain names is contrary to principles of

trademark law, which prohibit speculations in trademarks. The majority

continued and found that the respondent had constructive notice of the

federally registered US trademarks.

Finally, the majority ruled that that the lack of any demonstrable plan

to use the domain name for a bona fide purpose, respondent's pattern of

conduct involving speculative registration of domain names, and the fact

that the registration prevented the trademark holder from having a

domain name that corresponded to its registered mark was sufficient

evidence of bad faith registration and use.



Again, a more convincing dissent, did not help the registrant.

The dissent argued that one could even be on actual notice of a

trademark and be registering it as a domain for perfectly legal use in a

manner that does not conflict with the trademark use or class. This is

especially true for generic marks that have many potential uses. 

According to the dissent, the majority's mistake was the assumption that

if a trademark exists, and if one registered an identical domain name,

then the registrant would be acting in bad faith, which makes every

registration of a domain where there is a trademark, bad faith.

The dissent further stated that registrants should have rights and

legitimate interests in the sale of domain names that are constructed

using generic terms.





A final example of problematic rulings regarding generic trademarks is

eResolution v. eResolution.com.



eResolution, itself a UDRP dispute resolution provider, brought a UDRP

claim in front of WIPO, over the domain name eResolution.com. 

eResolution filed for trademarks in Canada (August 1999), in the U.S.

(January 2000) and the European Union (February 2000) and commenced

business on September 1, 1999. eResolution.com registered the disputed

domain on March 13, 1999, prior to eResolution's trademark registration

and to its registration of eresolution.ca.

eResolution offered to buy the domain, but a series of negotiations and

bids was unsuccessful.



The panel found that eResolution.com's misleading contact information

and attempts to sell the domain name constituted bad faith. 

This decision is rather troublesome considering the fact that the

registrant was contacted by the complainant several times while

negotiating a sale, so the contact information was not misleading.

Further more, as discussed in the previous article, simply adding the

letter e (electronic) I (internet) or v (virtual) to a generic term,

does not change the generic nature of the term. That means that not only

was eResolution.com registered prior to the trademark registration

(making it a good faith registration), its generic nature means that

auctioning the name should not be considered bad faith.





While the above decisions (Esquire, Crew and eResolution) seem to expand

the rights of the holder of a generic trademark, in most cases no bad

faith was found in such registrations. 

For example, in the Fido case mentioned above, in finding lack of bad

faith, the panel concluded that mere registration of a common or generic

name such as Fido could not be considered bad faith without some other

factors indicating bad faith.

Even when a common name has become highly distinctive of a particular

product because massive advertising has generated substantial secondary

meaning associated with the name, another party might legitimately

register the common name because of its primary meaning.  







Personal & Geographical Names

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



A personal name that had been registered as a trademark fits the strict

reading of the UDRP element requiring that  claimant have rights to a

trademark.



For example, pop superstar Madonna won the rights for the name

madonna.com after proving she owned a registered trademark for her name,

and the family of guitar legend Jimi Hendrix won the rights to the

domain Jimihendrix.com. 





On the other hand, unregistered personal names require a more creative

reading of the UDRP. In several cases famous complainants brought UDRP

actions against respondents who registered the complainant's famous

names.





The first case involved Jeanette Winterson, a well-known British author

whose name had been registered by a person who wanted to create a site

dedicated to Winterson's work.

The registrar's domain registration agreement provided: "...neither the

registration of the domain name nor the manner in which it is directly

or indirectly used infringes the legal rights of a third party." 

The panelist then consulted U.K. case law and concluded that, under the

registration agreement, "legal rights" in a mark does not require that

the trademark be registered.



In another case, actress Julia Roberts won the rights for the domain

name juliaroberts.com. Citing the Winterson case, the panel concluded

that registration of Julia Roberts' name mark was not necessary since

the name "Julia Roberts" had sufficient secondary association with

complainant and that "common law trademark rights" do exist under U.S.

trademark law.





Note that both panels referred to local law (U.K. and U.S) to determine

that the names were protected trademarks for the purpose of the UDRP. A

different outcome is possible if the parties are from other countries.





Many other personal name UDRP cases have been brought by famous artists,

celebrities, businessmen and politicians. Following are just a few

examples:



Actress Isabelle Adjani won the rights for the domain carrying her name;

Garry Kasparov, the world's most famous chess champion won the rights to

kasparov.com;  Canadian Justice Minister Anne McLellan won the rights

for annemclellan.com and annemclellan.org; and Rosa Parks, 87, who in

1955 fought for her space on a bus in the U.S. won the rights to

rosaparks.com.

One artist that filed an unsuccessful claim was British singer Sting,

who lost his claim for sting.com since sting is a generic word.

In another interesting case Grammy Award winner Helen Folsade Adu, who

uses the stage name Sade won the rights for Sade.com.





A somewhat different problem involves domain names incorporating names

of cities an countries.



An arbitration panel ruled that the rights for the domain name

barcelona.com, that was registered by a Spanish portal, should be given

to the City of Barcelona, which owns several registered trademarks over

the city name.



The panel, in a somewhat self-invented standard, ruled that the

registrant did not have a legitimate right, since the city had "more

legitimate interests". The panelist further found that the fact that the

registrant used the city's official guides (that are freely

distributed!) was bad faith use, and ordered the transfer of the name.

The registrant has filed a lawsuit in a Federal U.S. court in order to

block the decision, and currently still holds the rights for the name.





The Barcelona decision prompted several other cities and even countries

to file UDRP claims over geographical domain names. 

An announcement by the South African government, according to which the

government plans to file a claim over southafrica.com, led the

registrant to file a preemptive lawsuit in the United States.





However, other geographical domains were resolved in favor of the

registrant.

For example in the dispute over StMoritz.com the panel found that the

registrant provides informational services about the city of St. Moritz

and about Switzerland, an activity the Panel ruled does qualify as a

bona fide activity. 







Free Speech

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



Are domain names a protected form of speech, or are they just a

navigational tool not worthy of free speech protection?





In the case over saint-gobain.com the panel held that the registrant,

who registered a domain that was identical to complainant's trademark

for use in conjunction with a web site on which the shareholders of

Complainant could exchange views, did not have rights or legitimate

interests in respect of the domain name.

The panel held that the issue was not one of freedom of speech, but

rather of the choice of a domain name for use as a web site where such

speech could be exercised. 





However, in the dispute over Bridgestone-firestone.net the panel ruled

that the operator of a site critical of  Bridgestone-Firestone has

legitimate fair use and free speech rights and interests in respect of

the domain name.





Many cases involve domain names featuring company names with the suffix

"sucks".



William Cornish, a Cambridge University law professor serving as WIPO

panelist, awarded 15 domain names with the "sucks" suffix to the

companies who supposedly "suck". Cornish ruled that the registrant of

all the names registered and used them in bad faith. Specifically, he

cited the registrant's efforts to sell the names to the companies in

question at a profit.



Prof. Cornish, however, also used his rulings to endorse the need to

protect free speech and protest sites in cyberspace, and added the

following notes:

"Those who have genuine grievances against others or wish to express

criticisms of them -- whether the objections are against commercial or

financial institutions, against governments, against charitable,

sporting or cultural institutions or whatever -- must be at liberty,

within the confines set by the laws of relevant jurisdictions, to

express their views. If today they use a Web site or an e-mail address

for the purpose, they are entitled to select a domain name which leads

others easily to them, if the name is still available."





Recently Canadian Author Kenneth Harvey became the first to win the

rights for a "sucks" domain. After two earlier defeats against U.S.

retail giant Wal-Mart Stores Inc., in which Harvey lost the rights for

the names including walmartcanadasucks.com, he won the rights for

wallmartcanadasucks.com (note the extra 'l').

The panel ruled that Wal-Mart should not be allowed to use the system to

"shut down robust debate and criticism". The panel found that Harvey has

rights or legitimate interests in respect of the domain name, to use it

as a foundation for criticism of the Wal-Mart.

The panel added, that the UDRP procedure is "meant to protect against

trademark infringement, not provide a general remedy for all misconduct

involving domain names".







In this article we conclude a four-part tour of the UDRP procedure. We

did of course not cover all the possible situations that arise in domain

name disputes, but we dealt with the most common and problematic issues.

In the next and final part, we will evaluate the UDRP process, and try

answering the following questions: Does the UDRP live up to the

expectations from it and is there a need to change the UDRP itself

and/or the UDRP process.





Resources:



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. The Cyberlaw Reader

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



Each issue of the Cyberlaw Reader links to new articles related to

cyberlaw and online legal research. Your recommendations are welcome,

send suggestions to mailto:editor@mishpat.net





* Ten Key Legal Concerns in E-Commerce Ventures and Contracts *

By Dennis M. Kennedy

Hi-Tech lawyer Dennis Kennedy describes key elements of contracts for

e-commerce ventures. Kennedy discusses issues such as ownership of

intellectual property, rights for future use, customer privacy

protection, click-wrap contracts and business method patents.

http://www.llrx.com/features/ecommerce.htm





* Better Search Engines for Law *

By Deanna Barmakian

Barmakian, a Harvard law librarian, evaluates 15 search engines and

directories for their effectiveness in locating law related information,

and finds that they are generally an effective tool. The article

analysis both general search tools and specific legal search engines.

http://www.aallnet.org/products/2000-36.pdf (In Acrobat PDF format).









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4. Cyberlaw resource review

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This week's resource is the American Bar Association's e-Lawyering site

at http://www.abanet.org/elawyering



The site includes examples and case studies of how law firms,

law-related organizations and lawyer/client marketplaces can use

innovative approaches to the use of information technology in the

practice of law.



You will also find articles about practicing law in cyberspace, how-to

guides, links to complementary sites and resources. Elawyering also

offers discussion forums and chat rooms, but unfortunately those

sections are not very active.



The site is nicely designed and is very user friendly.

 



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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5. Cyberlaw news and updates

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The Cyberlaw Informer brings you the latest news about online and

computer law, with links to the full reports available on the web.





Top news

==========



* FTC approves AOL - Time Warner merger *

The US Federal Trade Commission (FTC) accepted a proposed consent order

that would remedy the anticompetitive effects of the proposed merger of

America Online (AOL), the largest Internet service provider and Time

Warner, a media conglomerate comprising a cable television system

servicing about 20 percent of U.S. cable households, and various

cable-programming networks, publishing and recording interests, and film

libraries.

AOL Time Warner would be: required to open its cable system to

competitor ISPs; prohibited from interfering with content passed along

the bandwidth contracted for by non-affiliated ISPs and from interfering

with the ability of non-affiliated providers of interactive TV services

to interact with interactive signals, triggers or content that AOL Time

Warner has agreed to carry. The proposed consent order would be

effective for a term of five years.

http://www.ftc.gov/opa/2000/12/aol.htm





* EU passes jurisdiction rule *

The European Union passed rules that allow consumers to sue an online

retailer in their own country even if the retailer is based in another

union country. The EU regulation states that if a web site does not

specify a country, then it should be assumed that the online company has

all EU countries as its target.

European officials argue that such a consumer right is essential to help

e-commerce take-off in Europe. However, industry representatives claim

that the regulation will create legal uncertainty for small companies

that would be burdened with substantial legal and insurance costs if

they sought protection against litigation from outside their home

market.

http://www.nytimes.com/2000/12/01/technology/01NET.html





* Germany will retry Australian online 

A German court ordered the retrial of Frederick Toeben, a German-born

Australian, for denying, on his web site, that the Holocaust ever

happened. The Federal Supreme Court ruled that Toeben could be charged

with inciting racial hatred under German law because the offending

material could be accessed by German Internet users. 

The court acknowledged that whether offenders can be prosecuted depends

on the willingness of other countries to extradite suspects for trial in

Germany.

Toeben was previously sentenced by a regional court to 10 months in jail

for distributing leaflets in Germany alleging that the Holocaust did not

happen, but was acquitted on charges of doing the same over the Internet

after the court said the fact the site was hosted on computers outside

Germany meant it was outside its jurisdiction. 

http://www.washtech.com/news/regulation/5940-1.html





* Parents liable for child's online action *

Judge Ward S. Arnold of Illinois ruled that the father of a high school

student accused of digitally grafting the picture of a female

classmate's face to a sexual image displayed on a web site can be sued

for damages. 

http://www.nytimes.com/2000/12/08/technology/08CYBERLAW.html





* Search engine liable in India for links to porn *

An Indian magistrate ruled that Rediff.com is responsible for spreading

pornographic material on the Internet, and that there was enough

evidence to place the Directors of Rediff Communications Ltd. on trial

for distribution of pornographic material. The complainant alleged that

the Rediff search engine was providing links to pornographic sites even

though such sites could be blocked by filtering technology.

http://www.wired.com/news/business/0,1367,40432,00.html







Intellectual Property

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



* Online radio stations must pay royalties *

The Library of Congress's U.S. Copyright Office ruled that the more than

4,000 radio stations that already transmit music over the Internet must

pay additional copyright fees for broadcasting the music online.

http://www.washingtonpost.com/wp-dyn/articles/A46279-2000Dec8.html





* EMusic wants Napster to block users *

EMusic.com asked Napster to block access to 600 of its users who

supposedly illegally traded EMusic tunes through the Napster

file-swapping service. EMusic, an MP3 service, claims that more than

35,000 of its tunes are being illegally traded by some 20,000 users.

Napster has recently banned about 317,000 users who illegally copied

Metallica songs and 230,000 users found with music from Dr. Dre.

http://www.zdnet.com/zdnn/stories/news/0,4586,2659221,00.html





* Rage against Napster block *

Fans of rock band Rage Against The Machine were banned from Napster, but

this case took an interesting twist since the band was just as surprised

by the action as its fans, and apologized for the act claiming it was a

wrong move by the band's managers.

http://news.cnet.com/news/0-1005-200-4049160.html





* MP3.com and music labels win rights for online transmission *

MP3.com and four major record companies won dismissal of a suit by

musicians seeking royalty payments for songs disseminated over the

Internet. US District Judge Jed Rakoff rejected the artists claim

concluding that the artists had signed contracts in the 1950s and 1960s

giving the labels the right to distribute songs by any method

whatsoever.

http://www.usatoday.com/life/cyber/tech/review/crh766.htm





* Priceline wins patent dispute *

U.S. District Judge Charles Legge dismissed most of a suit brought by

Marketel International against Priceline.com. Marketel accused Priceline

of stealing its business method 10 years ago and then patenting it in

1998. Judge Legge said that even if Priceline learned of the bidding

concept through investment negotiations with Marketel, any agreements

not to disclose the business method had expired by the time Priceline

was founded two years ago. 

http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZ1TIGZGGC







Domain names

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



* Japanese credit company wins domain name *

A Japanese court ordered Nihonkai Pakuto, a portable toilet sales

company, to stop using the domain jaccs.co.jp (.jp is Japan's top level

domain name) since it incorporates words identical to the name of major

consumer credit firm Jaccs Co. 

http://www.yomiuri.co.jp/newse/20001207wo32.htm





* Los Angeles company gets .la TLD *

dotLA Inc., a Los Angeles-based company, announced a licensing deal with

the government of Laos, giving it rights to market the .la top-level

domain. The deal between dotLA Inc. and the Laotian government is part

of a trend in which small nations are selling rights to their

country-code domains to unofficial domain-name registries. DotLA's

target customers include businesses in Los Angeles, Louisiana and Latin

America.

http://computerworld.com/cwi/story/0,1199,NAV47_STO55092_NLTpm,00.html







Cyber Crime

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



* Keystroke surveillance *

A US federal gambling case against Nicodemo S. Scarfo, the son of a

jailed mob boss, will be the first legal test of new surveillance

technology. The investigation against Scarfo utilized a sophisticated

surveillance tool called keystroke-logging device, that allowed the FBI

to reproduce every stroke Scarfo entered on a computer on which gambling

records allegedly were stored in encrypted files. Scarfo's lawyers claim

that since the bug recorded anything typed including letters to his

lawyers, and personal records, the bug constitutes unconstitutional

search.

http://inq.philly.com/content/inquirer/2000/12/04/front_page/JMOB04.htm





* Computer expert guilty of online threat *

Paul Clark, 33, a British computer expert who admitted setting up two

sites offering $108,000 to kill his American e-mail friend and her

husband, was acquitted of trying to arrange the murder, but was found

guilty on two charges of threatening to kill. Prosecutors failed to

prove that anyone other than Clark or the intended victim could have

found the sites.

http://www.salon.com/tech/wire/2000/12/12/web_murder/index.html





* 55,000 credit card numbers stolen *

Creditcards.com was the victim of an extortion by a hacker who broke

into its site and exposed more than 55,000 credit card numbers. After

Creditcards.com refused to pay an $100,000, the hacker posted

information regarding about 25,000 of the users.

http://www0.mercurycenter.com/svtech/news/breaking/ap/docs/744436l.htm





* Network Associates hacked *

Network Associates, a leading network security company, has been hit by

hackers that defaced two of the company's Brazilian-based websites.

http://www.wired.com/news/business/0,1367,40445,00.html





* Hacker gets probation *

Robert Russell Sanford, 18, of Texas, admitted hacking into sites owned

by a Wisconsin publishing company and five government agencies and

defacing those sites. Sanford was sentenced in a plea agreement to

probation, including drug treatment. He was also ordered to pay $45,856

in restitution. 

http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/064296.htm





* Hacker steals medical records *

A hacker gained access to confidential medical information at the

University of Washington Medical Center, and downloaded thousands of

files containing patient names, conditions, home addresses and Social

Security numbers. 

http://www.newsbytes.com/news/00/159209.html





* Spam highjacker pleads guilty *

Jason Garon, 46, pleaded guilty to second-degree forgery, for sending

millions of spam messages to AOL subscribers disguised as if they had

been sent from ibm.net, IBM's Internet provider. 

http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/055559.htm





* PlayStation 2 fraud *

Scott Byers, a 20-year-old Canadian, was arrested and released on bail

after being charged with fraud, for selling Sony's popular PlayStation 2

consoles on two sites, but never delivering them to customers. U.S.

authorities are investigating two other sites that sold but failed to

deliver thousands of PlayStation 2.

http://www.nytimes.com/cnet/CNET_0_4_4104024_00.html





* Producing fake driving licenses *

A US federal court has shut down a site that offered templates to help

produce fake driver's licenses and state identification cards. 

http://www.wired.com/news/politics/0,1283,40630,00.html





* Malaysian chat room drug sale *

The Malaysian Central Narcotics Bureau's new Internet Enforcement Team

arrested two people accused of attempting to sell Ecstasy through an

online chat room. 

http://www.newsbytes.com/news/00/159100.html





* Actor hacked into audition lists *

Chad Horton, a 21-year-old aspiring actor, is charged with computer

fraud and theft for allegedly hacking into a Hollywood talent agency's

site, stealing private audition listings and reselling them on the

Internet. 

http://www.apbonline.com/newscenter/breakingnews/2000/12/11/acthack1211_01.html







Securities

===========



* Gateway shareholder lawsuit *

James Burton, a Gateway shareholder, filed a lawsuit against the company

alleging that the computer seller misled investors in its financial

statements. The lawsuit is seeking class-action securities status.

http://www0.mercurycenter.com/svtech/news/breaking/ap/docs/729270l.htm





* L&H assets frozen *

Days after Lernout & Hasupie's bankruptcy protection bid was denied, a

Belgian judge froze the assets of the speech-recognition software maker

(the company's holdings include Dragon and Dictaphone). L&H owes five

banks a total of about $430 million. On November the company announced

that errors and irregularities were found on its books would result in

the restating earnings for the past two and a half years.

http://boston.internet.com/news/article/0,1928,2001_533651,00.html







Privacy & Spam

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



* Amazon's privacy policy under fire *

The Electronic Privacy Information Center (EPIC) asked the US Federal

Trade Commission to investigate Amazon.com's privacy practices and

compel the online retailer to withhold information about its customers

instead of selling it to third parties. A human rights group in London

is seeking a similar recourse from England's Data Protection

Commissioner. 

http://www.newsbytes.com/news/00/158938.html





* Only one company jumps on safe harbor wagon *

Almost two month after the EU-US privacy safe harbor agreement, designed

to make it easier for US companies to comply with the EU data privacy

directive, went into effect, only one company, the Dun & Bradstreet

Corporation, registered under the agreement. Dun & Bradstreet was

inspired in part to seek safe harbor certification because Sweden had

blocked a data transfer to the company.

http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZ11XW47GC





* Fax spammer fined $1,107,500 *

21st Century Fax has been fined more than $1 million by US federal

regulators for conducting a fax spam campaign.

http://www.newsbytes.com/news/00/159113.html





* Anonymous posters retain privacy *

Superior Court Judge Kenneth C. MacKenzie refused to unmask four

individuals who posted anonymous online messages about Dendrite

International, a software company. 

http://www0.mercurycenter.com/svtech/news/breaking/ap/docs/689409l.htm





* Register.com blocks Verio spamming *

Domain registrar Register.com won an injunction preventing Verio, a web

hosting firm, from marketing its services to individuals on

Register.com's proprietary customer list. Register.com accused Verio of

spamming its new customers to offer them its services.

http://www.wired.com/news/business/0,1367,40609,00.html





* NJ investigates Toys R Us' privacy practices *

The New Jersey Division of Consumer Affairs subpoenaed records from Toys

R Us' Internet division, as part of an investigation of its privacy

practices. The company is accused of illegally sharing personal

information about its customers with market researchers.

http://www0.mercurycenter.com/svtech/news/breaking/ap/docs/733888l.htm





* Dutch ISPs required to install surveillance equipment *

Dutch ISPs have until April 2001 to install sophisticated spying

equipment that enables cops to monitor Internet users suspected of

committing crimes. 

http://www0.mercurycenter.com/svtech/news/breaking/internet/docs/717374l.htm







Online Speech

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



A translation to English of the French Yahoo! Nazi memorabilia auctions

is available at:

http://www.nantaka.com/Yahoo-case.html





* Doctor wins online libel suit *

Dr. Sam D. Graham Jr., a former doctor at Emory University School of

Medicine was awarded $675,000 after an anonymous libel message was

posted on a Yahoo message board suggesting Graham had taken kickbacks

from a urology company after giving his department's pathology business

to the company and had been forced to resign. It was later revealed that

the anonymous poster was Dr. Jonathan R. Oppenheimer, a staff

pathologist.

http://news.cnet.com/news/0-1005-200-4078024.html





* Malaysia will prosecute users who insult Islam *

The Malaysian government announced that it will prosecute surfers who

insult Islam online, under Syariah (Islamic law) criminal law.

http://www0.mercurycenter.com/svtech/news/breaking/internet/docs/734867l.htm







eCommerce 

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



* EU investigates book wholesalers antitrust allegations *

The European Commission is investigating a complaint, filed by the

Belgian online bookseller Proxis, that alleges anti-competitive

practices by a group of German book wholesalers that allegedly refused

to deliver German books, since they are aware Proxis intends to sell

them on to German customers below the retail price set by the publisher.

http://www.thestandard.com/article/display/0,1151,20631,00.html





* US DOJ probing online trading *

The US Justice Department is investigating the competitive effects of

joint ventures in online trading. 

http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/011257.htm







Regulation

===========



* Australia adopts online gambling moratorium *

The Australian Senate passed a law imposing a moratorium on new online

gambling services. Exempt are bets on horse and dog racing.

http://www.it.fairfax.com.au/breaking/20001206/A60223-2000Dec6.html







Labor

========



* Microsoft will pay $97 million to permanent-temporary workers *

Microsoft and a law firm representing more than 8,000 former Microsoft

long-term temporary workers announced a settlement of a class-action

lawsuit under which Microsoft will pay a total of $97 million to the

workers and their attorneys. 

http://computerworld.com/cwi/story/0,1199,NAV47_STO55093_NLTpm,00.html





* C&W fires workers for email abuse *

Cable & Wireless fired six employees for abuse of its email system by

sending obscene emails.. 

http://www.theregister.co.uk/content/6/15097.html





* Walker probed for employment law violations *

Jay Walker, founder of Priceline.com, is under investigation by the

Connecticut attorney general for possible employment law violations,

over allegations that he did not provide proper notice when 100 workers

were laid off at closely held Walker Digital.

http://news.cnet.com/news/0-1007-200-3921646.html







Misc.

======



* California settles with Toshiba *

The state of California settled a lawsuit filed against Toshiba for

selling faulty computers to the state and local governments. Toshiba

will pay a total of $30.13 million plus interest to agencies that bought

the computers. 

http://www0.mercurycenter.com/svtech/news/breaking/merc/docs/033022.htm





* CIA fires employees over secret chat room *

The CIA fired four employees and reprimanded 18 others for participating

in a secret chat room created on the agency's classified computer system

to exchange jokes and gossip.

http://www.newsbytes.com/news/00/158835.html







That is all for this time,

Yedidya (Didi) M. Melchior 

Editor
The Cyberlaw Informer
Back to Cyberlaw Informer archive