e-Commerce Docket Sheet

A search engine's automatic archiving of USENET postings and caching of plaintiff's Web site, as well as excerpting of plaintiff's Web site in its hyperlinked results to users' search queries, do not constitute direct, contributory or vicarious copyright infringement. Parker v. Google, Inc., No. 04-CV-3918, 2006 U.S. Dist. LEXIS 9860 (E. D. Pa. Mar. 10, 2006). The court concluded that these activities did not constitute direct infringement because the search engine was merely a system that automatically transmits users' material and was indifferent to the material's content. The court also concluded that these activities were protected by the DMCA's safe-harbor provisions concerning system caching. The court dismissed the secondary-infringement claims because the plaintiff failed to show any requisite knowledge of the infringement or supervisory activity by the search engine. The court also dismissed related state-tort claims based on defendant's immunity under Section 230 of the Communications Decency Act.

User concerns over privacy weigh against enforcing a U.S. government third-party subpoena request to a search engine requiring the compilation and production of user search requests. Gonzales v. Google, Inc., No. 5:06-mc-80006-JW (N.D. Cal. Mar. 17, 2006). The government served the third-party subpoena on the search engine in aid of its position in a constitutional challenge to the Child Online Protection Act (COPA), a litigation in which the effectiveness of filtering software is at issue. The court concluded that the potential for loss of user trust in the privacy of search requests was a potential burden to the search engine in the form of a loss of goodwill. The court also concluded that the compromise of the search engine's trade secrets, as well as the potential for the search engine to become entangled in the underlying litigation, weighed against ordering the production of user search requests. The court ruled that the government had established a need only for a significantly scaled-down request for a sample of 50,000 URLs from the search engine's search index to measure the effectiveness of filtering software.

An online document containing an arbitration clause was not effectively incorporated by reference in a paper agreement concluded by the parties, despite a statement in the paper agreement that it was subject to online terms. Affinity Internet, Inc., v. Consolidated Credit Counseling Services, Inc., No. No. 4D05-1193 (Fla. Ct. App. 4th Dist. March 1, 2006). The court noted that under Florida law, a simple statement that an agreement is subject to a collateral document is not sufficient to incorporate the collateral document into the agreement. The court ruled that the online terms were not binding, because the online terms were not attached to the paper agreement, nor provided to the other party subsequent to the signing of the agreement and because the agreement lacked clear language evidencing an intent to incorporate the online document.

The sentence of a defendant convicted of possession of prohibited images of minors can be affected under the federal Sentencing Guidelines by a showing that the defendant stored the images in a shared folder accessible to other users of a peer-to-peer network. United States v. Robinson, No. 05-5032, 2006 U.S. App. LEXIS 3159 (10th Cir. Feb. 8, 2006) (unpublished). The circuit court upheld the lower court's calculation of the defendant's sentence starting from a base-offense level for 'trafficking' rather than the lower-offense level for possession, where the defendant admitted pursuant to his plea agreement that he downloaded the images from a peer-to-peer network, and then stored them in a shared folder that was 'immediately available' to any other user of the network.

Search Engine Caching Of Sites,
Archiving USENET Postings Not Infringement

A search engine's automatic archiving of USENET postings and caching of plaintiff's Web site, as well as excerpting of plaintiff's Web site in its hyperlinked results to users' search queries, do not constitute direct, contributory or vicarious copyright infringement. Parker v. Google, Inc., No. 04-CV-3918, 2006 U.S. Dist. LEXIS 9860 (E. D. Pa. Mar. 10, 2006). The court concluded that these activities did not constitute direct infringement because the search engine was merely a system that automatically transmits users' material and was indifferent to the material's content. The court also concluded that these activities were protected by the DMCA's safe-harbor provisions concerning system caching. The court dismissed the secondary-infringement claims because the plaintiff failed to show any requisite knowledge of the infringement or supervisory activity by the search engine. The court also dismissed related state-tort claims based on defendant's immunity under Section 230 of the Communications Decency Act.

User concerns over privacy weigh against enforcing a U.S. government third-party subpoena request to a search engine requiring the compilation and production of user search requests. Gonzales v. Google, Inc., No. 5:06-mc-80006-JW (N.D. Cal. Mar. 17, 2006). The government served the third-party subpoena on the search engine in aid of its position in a constitutional challenge to the Child Online Protection Act (COPA), a litigation in which the effectiveness of filtering software is at issue. The court concluded that the potential for loss of user trust in the privacy of search requests was a potential burden to the search engine in the form of a loss of goodwill. The court also concluded that the compromise of the search engine's trade secrets, as well as the potential for the search engine to become entangled in the underlying litigation, weighed against ordering the production of user search requests. The court ruled that the government had established a need only for a significantly scaled-down request for a sample of 50,000 URLs from the search engine's search index to measure the effectiveness of filtering software.

An online document containing an arbitration clause was not effectively incorporated by reference in a paper agreement concluded by the parties, despite a statement in the paper agreement that it was subject to online terms. Affinity Internet, Inc., v. Consolidated Credit Counseling Services, Inc., No. No. 4D05-1193 (Fla. Ct. App. 4th Dist. March 1, 2006). The court noted that under Florida law, a simple statement that an agreement is subject to a collateral document is not sufficient to incorporate the collateral document into the agreement. The court ruled that the online terms were not binding, because the online terms were not attached to the paper agreement, nor provided to the other party subsequent to the signing of the agreement and because the agreement lacked clear language evidencing an intent to incorporate the online document.

The sentence of a defendant convicted of possession of prohibited images of minors can be affected under the federal Sentencing Guidelines by a showing that the defendant stored the images in a shared folder accessible to other users of a peer-to-peer network. United States v. Robinson, No. 05-5032, 2006 U.S. App. LEXIS 3159 (10th Cir. Feb. 8, 2006) (unpublished). The circuit court upheld the lower court's calculation of the defendant's sentence starting from a base-offense level for 'trafficking' rather than the lower-offense level for possession, where the defendant admitted pursuant to his plea agreement that he downloaded the images from a peer-to-peer network, and then stored them in a shared folder that was 'immediately available' to any other user of the network.