Packets: Vol. 1, No. 2

Federal Jury Hands Down First Conviction Under the DMCA in DirecTV Case
by Lauren Gelman, posted on October 7, 2003 - 11:33am

In U.S.A. v. Thomas Michael Whitehead, Case No. 2:03CR53 (C.D.C.A. Sept. 19, 2003), the U.S. Attorney for the Central District of California alleged that Whitehead purchased software code needed for reprogramming DirecTV access cards, paid a coconspirator to periodically update the code to circumvent current DirecTV security measures, and then used the code to reprogram DirecTV access cards, which he sold nationwide. In addition to charging Whitehead with conspiracy, and sale of devices to illegally decrypt satellite programming under 47 U.S.C. Section 605(e)(4), the U.S. Attorney charged him with violation of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. Section 1201(a)(2)(A): (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

Federal Court Dismisses Hyperphrase Patent Infringement Case Against Microsoft
by Lauren Gelman, posted on October 7, 2003 - 11:28am

Hyperphrase Technologies sued Microsoft for patent infringement of three of Hyperphrase’s patents relating to storage and retreival of information in computer systems. The first patent is for automatically storing and retreiving data records in computer systems. The other two are for improvements of the method disclosed in the first patent, such as resolving ambiguity in recognized terms, using a variety of techniques. One of the features of Microsoft Office XP is called Smart Tags. This feature allows users to perform actions based on recognized text in a Word document or Excel spreadsheet. Smart Tages includes two components: recognizers and action handlers. The recognizers identify specific types of data in the document, such as names, dates, and telephone numbers, and the recognized text becomes a Smart Tag. Each Smart Tag is assigned a data type and underlined with dots that are visible to the user. The action handler then allows a user to request that certain actions, such as “send mail,” or “insert address” be performed.

Refusal to Establish Hyperlink May Violate First Amendment Rights
by Lauren Gelman, posted on October 7, 2003 - 11:25am

Geoffrey Davidian publishes The Putnam Pit, a tabloid and website that monitors corruption in Cookeville, Tennessee. Davidian lives in California but developed an interest in Cookeville after learning of an unsolved murder in the Cookeville area. After years of interacting with city officials, Davidian requested a hyperlink from the city’s website to his online newspaper. In response, the city created and modified a policy on establishing links, finally denying Davidian’s request. Additionally, the city refused Davidian’s request for electronic copies of city parking tickets. Davidian sued the city and city manager Jim Shipley for violating his First Amendment rights on two separate issues. First, Davidian alleged that the refusal to establish the hyperlink violated his First Amendment freedom of speech. Second, Davidian claimed that the city’s refusal to provide electronic copies of parking tickets violated his First Amendment freedom of the press.When Davidian first requested the hyperlink, the city’s website contained links to both for-profit and non-profit entities, and the city had no stated policy on allowing links. Instead, computer operations manager Steve Corder simply added links upon request, without consulting the city manager Shipley. When Davidian made his request, however, Corder deferred to Shipley, stating that The Putnam Pit was “a very controversial topic” and that it was not in his “personal best interest to make the decision” on establishing the link. Shipley responded by creating a policy limiting links to non-profit organizations, and Davidian followed by informing Shipley of his intention to transform The Putnam Pit into a non-profit organization. Shipley then modified the policy, determining that only links to organizations that “promote the economic welfare, tourism, and industry of the city” would be permitted. Acting under the new policy, Shipley denied a link to Davidian and removed several existing links. Davidian alleged that this final denial represented an unconstitutional viewpoint discrimination.

Class Certification Denied in Infringement Action against Copyright Clearance Center, Inc.
by Lauren Gelman, posted on October 7, 2003 - 11:22am

The District Court of Massachusetts denied plaintiff's motion for class certification in a copyright infringement suit by three freelance photographers against Copyright Clearance Center Inc. Defendant acts as an agent for magazine publishers, licensing rights to photocopy magazine articles. Plaintiffs allege that they, like most freelance photographers, grant limited-use licenses to magazine publishers while retaining for themselves all rights beyond one-time publication; therefore defendant infringes their copyright by unauthorized copying, licensing, or sales of images used in the articles.Plaintiffs brought a motion under Fed. R. Civ. P. 23 to certify a class action. The proposed class includes holders of copyright in at least one photographic image, created after January 1, 1978, appearing in a publication in the defendant's database and which without prior authorization from the copyright holder was copied, licensed, sold, or authorized to be copied by defendant. Pursuant to Rule 23(a), class certification requires a showing, among other things, that the class is so numerous that joinder of all members in the action is impracticable, and that the claims or defenses of the representative parties are typical of the claims or defenses of the class.

FTC Proposes Settlement of Unfair Practice Charges with AOL, CompuServe
by Lauren Gelman, posted on October 7, 2003 - 11:12am

On September 23, the Federal Trade Commission (FTC) published a proposed consent order settling complaints with AOL and its subsidiary, CompuServe. The FTC had alleged that AOL's procedures for handling customer cancellation requests and AOL and CompuServe's handling of a recent "CompuServe $400 Rebate Plan" were flawed in that: (1) some customers who had requested cancellation of service had continued to be billed for monthly service, and (2) AOL and CompuServe had failed to deliver promised $400 rebate checks toward consumers' purchase of a computer after the consumer contracted for three years of CompuServe Internet Service. The proposed settlement requires better procedures by AOL and CompuServe in both areas. First, the proposed order requires AOL to adopt measures to ensure that once a customer has requested cancellation of service, AOL will promptly stop billing the customer. The order also requires that AOL send confirmation notices and obtain explicit informed consent from any customer who, having called AOL to cancel service, is convinced by an AOL representative not to do so. Upon receiving the confirmation notice, customers who do not wish to continue their AOL service would be able to mail or fax back an enclosed cancellation form.

Although Product Distributor’s Web Activity Did not Create Minimum Contacts with Forum State, Personal Jurisdiction Held Proper
by Lauren Gelman, posted on October 7, 2003 - 11:10am

The plaintiff, a New York resident, brought claims under the Lanham Act, Clean Air Act, Kansas state unfair trade law, and common law negligence against several defendants in the District of Kansas. The defendants included the manufacturer (a Kansas resident) and two distributors (the movants here, neither resident in Kansas) of ‘Black Knight,’ a reptile care product. These two distributors moved to dismiss before trial for lack of personal jurisdiction.The plaintiff argued that the out-of-state distributors had ‘minimum contacts’ with Kansas, sufficient for personal jurisdiction under the Supreme Court’s Int’l Shoe analysis, in at least one of three ways: (1) by offering to sell Black Knight to Kansas residents; (2) by likely selling Black Knight to Kansas residents; and (3) by purchasing Black Knight from the Kansas manufacturer. Settles Class Action Suit
by Lauren Gelman, posted on October 7, 2003 - 11:07am

Michael Zurakov filed a lawsuit based on’s practice of initially pointing newly registered domain names to a “Coming Soon” Page, which informs Internet users that the domain name has been recently registered by and provides hyperlinks to some of’s services, as well as the services of others. Plaintiff alleged that’s pointing of domain names to the Coming Soon Page was not adequately disclosed to him, and improperly deprived him of the benefits of the domain name he registered.
On April 13, 2001, filed a motion to dismiss the Complaint, denying any violation of law and claiming that the page was provided as a benefit to registrants in accordance with standard industry practices. On July 25, 2001, The Supreme Court, New York County, issued an order dismissing the Complaint in its entirety. Plaintiff appealed.

Federal Court Strikes Down FTC’s National Do-not-call List, Allows Other Telemarketer Regulations
by Lauren Gelman, posted on October 7, 2003 - 11:03am

Several groups representing telemarketing firms sued the Federal Trade Commission (FTC) in the District Court for the Western District of Oklahoma. The suit challenges the FTC’s legal authority to enforce three measures the FTC promulgated under its Telemarketing Sales Rule (TSR):
1) establishing a national do-not-call registry
2) prohibiting telemarketing calls where the person receiving the call is not connected to a representative within two seconds of the person’s completed greeting
3) requiring telemarketers to obtain an audio recording of a person providing the last four digits of the account number to be charged and express agreement to be charged before actually charging a pre-acquired account

Attachmnent of GPS Devices to Private Vehicles Requires a Warrant
by Lauren Gelman, posted on October 7, 2003 - 10:56am

William Bradley Jackson reported his daughter Valiree missing on October 18, 1999. Police soon suspected that Jackson was involved in the disappearance and obtained a warrant to search his home and impound and search Jackson’s two vehicles. Police also obtained two 10-day warrants to attach and maintain global positioning system (GPS) devices on Jackson’s vehicles. The data from these devices eventually led police to Valiree’s body. Jackson was tried and convicted of first degree murder and was given an exceptional sentence of 672 months because of aggravating factors. On appeal, Jackson claimed that the trial court erred in refusing to suppress evidence obtained from the GPS devices because the GPS warrants had been issued without probable cause. The intermediate appellate court rejected Jackson’s claim, holding that a warrant is not required for GPS devices under Wash. Const. art. I, § 7. Jackson appealed to the Supreme Court of Washington, claiming, inter alia, that (1) under Wash. Const. art. I, § 7, a warrant is required for police to install and use a GPS device on a private vehicle and (2) the warrants issued in his case were not supported by probable cause and were, therefore, invalid.

Headline: Advertisers in the UK Must Get Explicit Permission Before Marketing By E-mail

by Lauren Gelman, posted on October 7, 2003 - 10:08am

The UK’s ASA is an independent self-regulatory body responsible for supervising the CAP Code as applied to the advertising industry. The CAP Code is written by the advertising industry via its Committee of Advertising Practices (CAP). The ASA applies sanctions against parties who fail to follow its rulings.
Recipients of unsolicited commercial e-mails filed a complaint against the Training Guild (a Southampton seminar provider) alleging that their marketing violated Section 22.1 and Section 43.4 of the CAP Code. The CAP Code requires that (1) e-mails make clear that they are marketing communications, and (2) advertisers get explicit consent before sending e-mails to consumers.