Developments of Note

Utah's governor recently signed the Spyware Control Act, which prohibits the installation of “spyware,” as defined in the act, on another person's computer. H.B. 323 (Utah 2004 General Sess. March 23, 2004). The legislation also prohibits the use of “a context based triggering mechanism,” as defined in the act, to display ads that obscure Web site content or paid advertising from a user's view. The act establishes a private right of action, with up to $10,000 in damages for each violation of the act, to be trebled in the event of a willful or knowing violation.

On March 16, the House Energy and Commerce Committee approved and sent to the full House a database-protection bill that would define database misappropriation as “an unfair method of competition and an unfair or deceptive Act or practice in commerce” under the Federal Trade Commission Act. H.R. 3872 (108th Cong., 2d Sess. 2004). The bill defines database misappropriation as occurring when a database is collected “at some cost or expense” and consists of “information that is highly time-sensitive,” and when a competitor's use of the information falls in the bill's parameters when it “constitutes free-riding” and reduces the database owner's incentive to produce the database such that “its existence or quality would be substantially threatened.” The Federal Trade Commission would enforce the provisions of the bill.

The American Library Association and other non-profit groups filed an action seeking review of the Federal Communications Commission (FCC) digital broadcast flag rule adopted in November that mandates the inclusion of a signal in digital broadcast television streams to facilitate the use of technologies that control further distribution of digital content. American Library Association v. Federal Comm-unications Commission, No. 04-1037 (D.C. Cir. March 3, 2004). The rule also requires, among other things, that devices that can receive such streams be capable of implementing the associated control technologies. The complaint alleges that the rule exceeds the FCC's regulatory authority.

Utah Enacts Anti-Spyware Law

Utah's governor recently signed the Spyware Control Act, which prohibits the installation of “spyware,” as defined in the act, on another person's computer. H.B. 323 (Utah 2004 General Sess. March 23, 2004). The legislation also prohibits the use of “a context based triggering mechanism,” as defined in the act, to display ads that obscure Web site content or paid advertising from a user's view. The act establishes a private right of action, with up to $10,000 in damages for each violation of the act, to be trebled in the event of a willful or knowing violation.

On March 16, the House Energy and Commerce Committee approved and sent to the full House a database-protection bill that would define database misappropriation as “an unfair method of competition and an unfair or deceptive Act or practice in commerce” under the Federal Trade Commission Act. H.R. 3872 (108th Cong., 2d Sess. 2004). The bill defines database misappropriation as occurring when a database is collected “at some cost or expense” and consists of “information that is highly time-sensitive,” and when a competitor's use of the information falls in the bill's parameters when it “constitutes free-riding” and reduces the database owner's incentive to produce the database such that “its existence or quality would be substantially threatened.” The Federal Trade Commission would enforce the provisions of the bill.

The American Library Association and other non-profit groups filed an action seeking review of the Federal Communications Commission (FCC) digital broadcast flag rule adopted in November that mandates the inclusion of a signal in digital broadcast television streams to facilitate the use of technologies that control further distribution of digital content. American Library Association v. Federal Comm-unications Commission, No. 04-1037 (D.C. Cir. March 3, 2004). The rule also requires, among other things, that devices that can receive such streams be capable of implementing the associated control technologies. The complaint alleges that the rule exceeds the FCC's regulatory authority.