e-Commerce Docket Sheet

Where a telecommunications-services agreement contained unambiguous language allowing the provider to modify its rates by a posting to its Web site, the posted rates are effective to modify an agreement with another provider. Wholesale Telecom Corp. v. ITC Deltacom Communications, 2006 U.S. App. LEXIS 9304 (11th Cir. Apr. 14, 2006) (unpublished). The court noted that the agreement contained a provision under which the subscriber agreed to 'the terms and conditions of the state and federal tariffs' of the provider 'filed with the respective regulatory bodies and/or as the same may appear' on the provider's Web site. Although prior to the execution of the agreement such rates were required to be approved by a regulatory body, under the telecom-deregulation regime in place at the time of the agreement, the provider was not required to obtain such approval. Nevertheless, the court concluded, the subscriber was still required to pay the 'tariffs' posted on the provider's Web site, because the term 'tariffs' was not limited to rates filed with a regulatory body.

The compiler of a proprietary database of information on businesses and consumer households in the United States is immune under Section 230 of the Communications Decency Act for erroneous information submitted online by third parties for inclusion in the database. Prickett v. InfoUSA, Inc., 2006 U.S. Dist. LEXIS 21867 (E.D. Tex. March 30, 2006). The court dismissed a tort action brought by private individuals who were the subject of erroneous and apparently malicious entries into the online database describing them as adult entertainers and lingerie retailers. The court rejected the plaintiffs' argument that the compiler was an 'information content provider' not entitled to immunity because its entry form prompted third parties to select categories for including provided entries. The court also rejected the argument that the compiler was liable because it allegedly failed to verify the accuracy of the information submitted to it. The court noted that the critical information about which the plaintiffs complained was entered by a third party, and transferred unaltered into its database, so the compiler 'did not play a significant role in creating or developing the information at issue.'

An e-mail offer of a specific sum to create choreography for a theatrical production may have given the choreographer the power to accept the offer by performance. Einhorn v. Mergatroyd Productions, 2006 U.S. Dist. LEXIS 20645 (S.D.N.Y. Apr. 17, 2006) (corrected opinion). The court declined to dismiss the choreographer's breach-of-contract claim, ruling that on a motion to dismiss, it could not say as a matter of law that the choreographer was unreasonable in inferring that there was a binding promise, and proceeding to perform the contract. The court noted that while the defendant alleged that the parties contemplated a subsequent written agreement, the defendant did not expressly reserve the right not to be bound in the absence of such a writing. The court reserved other related issues for later determination, such as whether all of the necessary terms were agreed on, and whether theatrical contracts of this type are typically committed to writing.

The manufacturer of a device designed to circumvent copy-protection technology on DVDs that contain copyrighted works may not claim the protection of the Digital Millennium Copyright Act's (DMCA) 'fair use' provision. Macrovision v. Sima Products Corp., 2006 U.S. Dist. LEXIS 22106 (S.D.N.Y. Apr. 20, 2006). The court noted that unlike the provisions applicable to users, the DMCA provisions applicable to manufacturers of circumvention devices do not contain any fair-use exception to its prohibitions. The court also rejected the manufacturer's argument that the 'primary purpose' of its devices was not circumvention, finding that although some of the manufacturer's devices had some auxiliary functions other than for copying, the circumvention function was not necessary for the device to perform the auxiliary functions.

The terms of an end-user license agreement included in a box along with a CD containing plaintiff's software may be enforceable against the purchaser of the software under California law. Meridian Project Systems, Inc. v. Hardin Construction Co., 2006 U.S. Dist. LEXIS 16751 (E.D. Cal. April 6, 2006). The court concluded that while the enforceability of this type of 'shrinkwrap' license is 'a much disputed question,' the rationale of the appellate court in ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) is 'compelling.' The court noted that the agreement was not an unconscionable contract or contract of adhesion, because there was no dispute that the purchaser had notice of the license agreement, had the opportunity to return the software if it disagreed with the terms of the license but did not do so, and never objected to the terms or sought to amend them. The court also concluded that the plaintiff's breach-of-contract claim based on the purchaser's unauthorized copying of the help files accompanying the software was not pre-empted by the Copyright Act.

A blogger's use of a trademark in describing his negative experiences with the trademark owner is non-actionable 'news reporting or news commentary' under the Lanham Act. Bidzirk, L.L.C. v. Smith, 2006 U.S. Dist. LEXIS 19116 (D. S.C. Apr. 10, 2006). The court noted that the Lanham Act does not define the terms 'news reporting or news commentary,' and it determined to apply a 'functional analysis,' under which 'the content of the material, not the format' is examined to determine whether the usage in question is journalistic. The court noted that the blogger used the trademark in the course of relating in great detail the negative and the positive aspects of his experience with the trademark owner, and included a checklist to be used by readers in determining whether they should employ the services of such companies themselves. In concluding that the blogger's purpose was to convey information, the court commented that the fact that the blogger reported negatively about his experience with the trademark owner 'does not dictate that the article's function was not news reporting or news commentary.'

In a case involving an anonymous defendant who is alleged to be an unlawful file-sharer, a motion to dismiss for lack of jurisdiction should not be entertained until the identity of the defendant is ascertained. Virgin Records America, Inc. v. John Does 1-35, 2006 U.S. Dist. LEXIS 20652 (D.D.C. April 18, 2006). The court refused to quash the plaintiffs' subpoena to the anonymous defendant's ISP on the ground that the court lacked personal jurisdiction over the defendant, reasoning that the court would not be able to assess the defendant's contacts with the jurisdiction until the defendant had been named. The court also concluded that the plaintiffs had made a prima facie showing of jurisdiction over the anonymous defendant by showing that the defendant had contracted with an ISP based in the forum state, and that the defendant had 'clearly directed tortious activity into' the forum state by offering to distribute the plaintiffs' copyrighted music files to the public. Further, the court concluded that participation by the anonymous defendant in a P2P network constituted 'continuous' and 'systematic' contacts with the forum state sufficient to support the exercise of jurisdiction.

In a case involving third-party subpoenas to obtain the identify of anonymous posters to an Internet bulletin board, third parties who showed no close relationship with the anonymous posters do not have standing to challenge the subpoena on First Amendment grounds. Matrixx Initiatives, Inc. v. Doe, 2006 Cal. App. LEXIS 544 (Cal. Ct. App. 6th Cir. April 18, 2006). The court noted that several rulings in similar cases recognized the right of third parties to assert the First Amendment rights of the anonymous posters whose information was being sought. The court pointed out, however, that the third parties in those cases were ISPs whose own business interests gave them a 'vested interest' in protecting the rights of their subscribers. The court concluded that the third parties in the instant case did not show a close relationship, or indeed any relationship, to the anonymous posters whose rights they sought to assert.

The Fourth Circuit upheld a judgment totaling $433,500 against an online international matchmaking agency in favor of a Ukrainian woman who was psychologically and physically abused by the American spouse to whom she was introduced by the agency. Fox v. Encounters International, 2006 U.S. App. LEXIS 9269 (4th Cir. April 13, 2006) (unpublished). The court referenced explicit representations on the Web site of the agency in upholding the jury's finding that the agency had established a fiduciary relationship with the plaintiff, and that the duty was breached when the agency, knowing of the husband's abuse, withheld information concerning immigration law that would have aided the defendant in leaving her husband. The court concluded that a reasonable jury could have found that the agency withheld the information because it wished to avoid a negative effect on the 'success rate' advertised on the agency's Web site.

Telecom Rates Posted On Provider Site
Can Modify Prior Agreement With Another Provider

Where a telecommunications-services agreement contained unambiguous language allowing the provider to modify its rates by a posting to its Web site, the posted rates are effective to modify an agreement with another provider. Wholesale Telecom Corp. v. ITC Deltacom Communications, 2006 U.S. App. LEXIS 9304 (11th Cir. Apr. 14, 2006) (unpublished). The court noted that the agreement contained a provision under which the subscriber agreed to 'the terms and conditions of the state and federal tariffs' of the provider 'filed with the respective regulatory bodies and/or as the same may appear' on the provider's Web site. Although prior to the execution of the agreement such rates were required to be approved by a regulatory body, under the telecom-deregulation regime in place at the time of the agreement, the provider was not required to obtain such approval. Nevertheless, the court concluded, the subscriber was still required to pay the 'tariffs' posted on the provider's Web site, because the term 'tariffs' was not limited to rates filed with a regulatory body.

The compiler of a proprietary database of information on businesses and consumer households in the United States is immune under Section 230 of the Communications Decency Act for erroneous information submitted online by third parties for inclusion in the database. Prickett v. InfoUSA, Inc., 2006 U.S. Dist. LEXIS 21867 (E.D. Tex. March 30, 2006). The court dismissed a tort action brought by private individuals who were the subject of erroneous and apparently malicious entries into the online database describing them as adult entertainers and lingerie retailers. The court rejected the plaintiffs' argument that the compiler was an 'information content provider' not entitled to immunity because its entry form prompted third parties to select categories for including provided entries. The court also rejected the argument that the compiler was liable because it allegedly failed to verify the accuracy of the information submitted to it. The court noted that the critical information about which the plaintiffs complained was entered by a third party, and transferred unaltered into its database, so the compiler 'did not play a significant role in creating or developing the information at issue.'

An e-mail offer of a specific sum to create choreography for a theatrical production may have given the choreographer the power to accept the offer by performance. Einhorn v. Mergatroyd Productions, 2006 U.S. Dist. LEXIS 20645 (S.D.N.Y. Apr. 17, 2006) (corrected opinion). The court declined to dismiss the choreographer's breach-of-contract claim, ruling that on a motion to dismiss, it could not say as a matter of law that the choreographer was unreasonable in inferring that there was a binding promise, and proceeding to perform the contract. The court noted that while the defendant alleged that the parties contemplated a subsequent written agreement, the defendant did not expressly reserve the right not to be bound in the absence of such a writing. The court reserved other related issues for later determination, such as whether all of the necessary terms were agreed on, and whether theatrical contracts of this type are typically committed to writing.

The manufacturer of a device designed to circumvent copy-protection technology on DVDs that contain copyrighted works may not claim the protection of the Digital Millennium Copyright Act's (DMCA) 'fair use' provision. Macrovision v. Sima Products Corp., 2006 U.S. Dist. LEXIS 22106 (S.D.N.Y. Apr. 20, 2006). The court noted that unlike the provisions applicable to users, the DMCA provisions applicable to manufacturers of circumvention devices do not contain any fair-use exception to its prohibitions. The court also rejected the manufacturer's argument that the 'primary purpose' of its devices was not circumvention, finding that although some of the manufacturer's devices had some auxiliary functions other than for copying, the circumvention function was not necessary for the device to perform the auxiliary functions.

The terms of an end-user license agreement included in a box along with a CD containing plaintiff's software may be enforceable against the purchaser of the software under California law. Meridian Project Systems, Inc. v. Hardin Construction Co., 2006 U.S. Dist. LEXIS 16751 (E.D. Cal. April 6, 2006). The court concluded that while the enforceability of this type of 'shrinkwrap' license is 'a much disputed question,' the rationale of the appellate court in ProCD v. Zeidenberg , 86 F.3d 1447 (7th Cir. 1996) is 'compelling.' The court noted that the agreement was not an unconscionable contract or contract of adhesion, because there was no dispute that the purchaser had notice of the license agreement, had the opportunity to return the software if it disagreed with the terms of the license but did not do so, and never objected to the terms or sought to amend them. The court also concluded that the plaintiff's breach-of-contract claim based on the purchaser's unauthorized copying of the help files accompanying the software was not pre-empted by the Copyright Act.

A blogger's use of a trademark in describing his negative experiences with the trademark owner is non-actionable 'news reporting or news commentary' under the Lanham Act. Bidzirk, L.L.C. v. Smith, 2006 U.S. Dist. LEXIS 19116 (D. S.C. Apr. 10, 2006). The court noted that the Lanham Act does not define the terms 'news reporting or news commentary,' and it determined to apply a 'functional analysis,' under which 'the content of the material, not the format' is examined to determine whether the usage in question is journalistic. The court noted that the blogger used the trademark in the course of relating in great detail the negative and the positive aspects of his experience with the trademark owner, and included a checklist to be used by readers in determining whether they should employ the services of such companies themselves. In concluding that the blogger's purpose was to convey information, the court commented that the fact that the blogger reported negatively about his experience with the trademark owner 'does not dictate that the article's function was not news reporting or news commentary.'

In a case involving an anonymous defendant who is alleged to be an unlawful file-sharer, a motion to dismiss for lack of jurisdiction should not be entertained until the identity of the defendant is ascertained. Virgin Records America, Inc. v. John Does 1-35, 2006 U.S. Dist. LEXIS 20652 (D.D.C. April 18, 2006). The court refused to quash the plaintiffs' subpoena to the anonymous defendant's ISP on the ground that the court lacked personal jurisdiction over the defendant, reasoning that the court would not be able to assess the defendant's contacts with the jurisdiction until the defendant had been named. The court also concluded that the plaintiffs had made a prima facie showing of jurisdiction over the anonymous defendant by showing that the defendant had contracted with an ISP based in the forum state, and that the defendant had 'clearly directed tortious activity into' the forum state by offering to distribute the plaintiffs' copyrighted music files to the public. Further, the court concluded that participation by the anonymous defendant in a P2P network constituted 'continuous' and 'systematic' contacts with the forum state sufficient to support the exercise of jurisdiction.

In a case involving third-party subpoenas to obtain the identify of anonymous posters to an Internet bulletin board, third parties who showed no close relationship with the anonymous posters do not have standing to challenge the subpoena on First Amendment grounds. Matrixx Initiatives, Inc. v. Doe, 2006 Cal. App. LEXIS 544 (Cal. Ct. App. 6th Cir. April 18, 2006). The court noted that several rulings in similar cases recognized the right of third parties to assert the First Amendment rights of the anonymous posters whose information was being sought. The court pointed out, however, that the third parties in those cases were ISPs whose own business interests gave them a 'vested interest' in protecting the rights of their subscribers. The court concluded that the third parties in the instant case did not show a close relationship, or indeed any relationship, to the anonymous posters whose rights they sought to assert.

The Fourth Circuit upheld a judgment totaling $433,500 against an online international matchmaking agency in favor of a Ukrainian woman who was psychologically and physically abused by the American spouse to whom she was introduced by the agency. Fox v. Encounters International, 2006 U.S. App. LEXIS 9269 (4th Cir. April 13, 2006) (unpublished). The court referenced explicit representations on the Web site of the agency in upholding the jury's finding that the agency had established a fiduciary relationship with the plaintiff, and that the duty was breached when the agency, knowing of the husband's abuse, withheld information concerning immigration law that would have aided the defendant in leaving her husband. The court concluded that a reasonable jury could have found that the agency withheld the information because it wished to avoid a negative effect on the 'success rate' advertised on the agency's Web site.