Monday, November 27, 2006

Cyberspace Law: We're More than Just Website Advisors!

From today's WSJ Law Blog, on the pending changes to the Federal Rules of Civil Procedure regarding electronic evidence:

Alvin Lindsay, a partner with Hogan & Hartson, laid out for the WSJ the implications of the new rules. “Lawyers will now have to know about their clients’ computer architecture: How do they store their data? How do their computer systems operate? This is not something they teach in law school.”

Full posting here.

Gosh -- Doesn't that sound like what the Cyberspace Committee has been teaching its members since, oh, let's see--ABOUT A DECADE?

Folks from this committee who are in private practice: If you have not already made your presence and depth of knowledge known to your own firm's litigators, you are missing a great opportunity. This is one of the better 'convergence' moments in our history, so go take advantage of it!

Wednesday, November 08, 2006

News News News

November 8, 2006 -- A busy day in the news. Not that election thing silly -- In Cyberspace news!

I had a small start when reading a squib in the BNA eCommerce Reporter this morning, which discussed a New York federal trial court decision which proclaimed that a Web site is not interactive for personal jurisdiction purposes if the interactivity is merely through password-protected activity. Whoa! I thought, since that would be a major change to the Zippo standards if it were followed. However, careful reading of the squib (as opposed to just the headline...) reveals that the New York case was one regarding general jurisdiction. As any of us who walk these cyberlaw halls knows, Zippo was a specific jurisdiction case. The law as we knew it has not changed. Cite is to C.B.C. Wood Products Inc. v. LMD Integrated Logistics Serv. Inc., E.D.N.Y., No. 06-2673, 10/7/06. {Note: For those of you who aren't lawyers and have no idea what the difference is between specific versus general jurisdiction -- Well, not to be elitist on you, but that's one of those ones I couldn't begin to explain in a sentence, particularly since you need a good grounding on the concept of 'personal jurisdiction' in the first place. You can try this outline from a law school professor on the concept if you want, or this Wikipedia article. And, if you want a cyberspace law angle, read this article by another law professor.}

The Supreme Court of Kansas has taken a look at shrink-wrap licenses, and has dealt a blow against them. In Wachter Mgmt. Co. v. Dexter & Chaney Inc., Kan., No. 95,102, 10/27/06, the court looked at a software transaction that was initially done through a paper purchase order between the parties, and then was followed by the unwrapping of a shrink-wrap license by the software user. When the user ultimately decided to claim a problem, and brought a claim in his local court in Kansas, the software developer pointed to its shrink-wrap license and the venue clause therein. Most of us might have presumed that this would ultimately have favored the developer -- But, the Kansas court revived the thinking of Step-Saver Data Sys. v. Wyse Tech. Inc., 939 F. 2d 91 (3d Cir. 1991). In Step-Saver, the shrink-wrap was ignored on the basis of its being 'a proposal for additional terms' under the UCC, and hence rejectable by the other party. The court in Kansas felt that this was the case here, and refused to enforce the shrink-wrap license. (One should note that the case was a 4-3 decision, and the dissent was clearly bothered with the revival of Step-Saver.) All that said, and whether you agree with one side or the other, this leads to a PRACTICE NOTE: When counseling clients who are using the paper followed by shrink-wrap process, advise them to have an unequivocal statement in the paper that the transaction is subject to the shrink-wrap (or click-wrap, or whatever...) terms that will follow. The Kansas court seems to suggest that this would have avoided the problem, and there is no harm in adding such statements to one's paper contracts, particularly since most of our clients will still like to hold out the possibility of doing business in Kansas!

Finally, an idea that many have bounced around has been endorsed in a U.S. District Court -- Is the transfer of a domain name from one party to another an event that should be treated as a new 'registration' by the recipient? Recall that both the Anti-Cybersquatting Protection Act and the ICANN Uniform Domain Name Dispute Resolution Policy provide that the defendant's actions in registering the domain are important to the case. In many cases, the original registration of the domain was years in the past, and may have actually been done by somebody in good faith or the facts are hard to prove from that ancient time. But, one might have easy facts to show that the subsequent registrant took and uses the domain in bad faith. Some of us wondered if we could simply look to the most recent registrant for our analysis.

In Christensen Firm v. Chameleon Data Corp., W.D. Wash., No. C06-337Z, 11/1/06, the court agreed under the ACPA that each act of transfer was a new 'registration' for the purposes of ACPA analysis. Thus, one need not trace the progeny of a domain back through to the first party that registered it, but only to the most recent (i.e., the one the complaint is all about). Although this is an ACPA case, the logic would seem to apply equally to a UDRP analysis, and one might at least cite this as persuasive evidence on point.

[If anybody with more time than I have wants to find public links to any of those opinions, please let me know and I shall post them. The ones I have are through a password-protected site, so they are not of much use to the rest of the world. UPDATE: I found a free link to the Wachter Mgmt case out of Kansas. Still looking for the other two...]

Wednesday, November 01, 2006

Internet Governance Forum -- Our session

David Satola reports that the session at the IGF entitled 'Legal Aspects' was a big success and well attended. Kristine Dorrain suggested that interest was high amongst the panel as well as the audience and felt it could have gone on easily for another hour. Theoretically the session was recorded (audio) and will be posted on-line, but I have not found a link to such yet.

David sent over a couple of photographs from the session -- Kristine also has some and will send them along when she can.