e-Commerce Docket Sheet

The determination of the Federal Communications Commission ('FCC') determination that state regulation of VoIP services is preempted under federal law because it is currently impossible to separate the interstate and intrastate aspects of VoIP service was not arbitrary or capricious. Minnesota Public Utilities Commission v. Federal Communication Commission, 2007 U.S. App. LEXIS 6448 (8th Cir. Mar. 21, 2007). In upholding the agency's order and denying various state regulatory agency petitions for review, the court ruled that the FCC could preempt state regulation of VoIP after determining it would be impractical to separate the intrastate portions of VoIP service from the interstate portions, particularly given the practical difficulties with determining the geographic location of 'nomadic' VoIP phone calls (i.e., VoIP service via any available broadband connection) versus 'fixed' VoIP service (i.e., service from a fixed location, such as home cable-TV equipment). Referencing the FCC's previous E911 Order, which required VoIP providers to ensure that customers using VoIP have 911 emergency service, the court commented that the current preemption order had a potentially limited temporal scope, because it could be lifted if technology is developed to identify the geographic location of nomadic VoIP communications.

A marketing agency's inclusion of a brochure containing a previously licensed photograph in an online portfolio that promoted past advertising campaigns is not protected by the copyright fair-use doctrine. Straus v. DVC Worldwide, Inc., 2007 U.S. Dist. LEXIS 20907 (S.D. Tex. Mar. 23, 2007). In denying the agency's motion for partial summary judgment, the court rejected the argument that posting past advertising materials containing copyrighted images for promotional purposes satisfies the criteria for fair use. The court found, among other things, that the defendant's 'transformative' use of the photo as commentary on its own advertising practice was 'slight to non-existent' given that the use of the entire photograph was wholly for private commercial gain and outside the terms of the original license agreement. The court also declined to grant summary judgment in the agency's favor on the theory that use of the photograph was subject to an implied license based on advertising-industry custom, finding that the copyright owner's expressed disapproval of the use of the photograph prior to the filing of the lawsuit created an issue of fact that could not be resolved on summary judgment.

A commercial e-mail that otherwise conforms to the Washington state anti-spam law by providing accurate transmission path information and unsubscribe links is not in violation of the law simply because the e-mail recipient is unable to send a reply e-mail to the sender. Benson v. Oregon Processing Service, Inc., No. 34195-6-II, 2007 Wash. App. LEXIS 31 (Wash. Ct. App. Jan. 9, 2007). The court noted that the plaintiff elected not to click on the 'unsubscribe' links provided in the e-mails, nor use the physical address or phone number provided in the e-mails to unsubscribe. The appellate court affirmed the lower court's dismissal of the plaintiff's claim, finding that the defendant's failure to provide 'reply' functionality to the commercial e-mail did not 'misrepresent' or 'obscure' the point of origin or transmission path of the message. The appellate court concluded that the statute says nothing about how useful a commercial e-mail's point of origin or transmission path must be, does not require a commercial e-mail sender to acknowledge or respond to a recipient's reply e-mail, and does not require that e-mail replies be deliverable.

A federal district court did not abuse its discretion in giving the Lanham Act extraterritorial effect by permanently enjoining a U.S. resident from using the 'Versace' name to sell commercial goods anywhere in the world or over the Internet. Gianni Versace, S.P.A. v. Alfredo Versace, 2007 U.S. App. LEXIS 705 (2d Cir. Jan. 10, 2007). In rejecting the defendant's argument that the district court failed to consider that he is a U.S. resident and not a citizen, the appellate court pointed to the defendant's 40 years of residence and business activity in the United States, coupled with the lack of conflict with foreign law and 'the existence of a substantial effect on commerce.' The court also noted the defendant's violations of prior injunctions, which supported the district court's refusal to permit the defendant to use the 'Versace' name accompanied by a disclaimer.

A defendant in a CAN-SPAM Act case who won a motion to dismiss for lack of personal jurisdiction is not entitled to an award of attorney's fees when there is no evidence of bad intentions or frivolousness on the plaintiff's part, and when such an award would not be consistent with the purposes of the act. Phillips v. Worldwide Internet Solutions, 2007 U.S. Dist. LEXIS 4974 (N.D. Cal. Jan. 22, 2007). In adopting and affirming the magistrate judge's recommendation, the court denied the defendant's motion for attorney's fees, finding no evidence that the plaintiff's suit was 'frivolous' or 'objectively unreasonable,' in the factual and legal components of the case. The court found that an award of attorney's fees in this case would not be consistent with the purposes of the CAN-SPAM Act, namely to 'protect the convenience and efficiency of e-mail' and to 'prevent time and monetary losses to individuals and internet service providers.'

A Web site owner who created a spam 'block list' that identified open-relay servers useful to spammers is immune from liability under the 'Good Samaritan' provision of the Communications Decency Act ('CDA') for incorrectly listing the plaintiff's IP address on the block list. Pallorium, Inc. v. Jared, 2007 Cal. App. Unpub. LEXIS 241 (Cal. Ct. App. Jan. 11, 2007) (unpublished). The appellate court upheld a trial-court judgment finding the owner immune under Section 230(c)(2)(B) as a 'provider' of an 'interactive computer service' who made available 'technical means' to restrict access to material that the provider thought was 'harassing or otherwise objectionable.' The court also found that the fact that the owner's block list might have been over-inclusive was irrelevant so long as the owner deemed the material he sought to block (i.e., offensive spam e-mails) as harassing and objectionable.

FCC Order Preempting State
Regulation of VoIP Is Upheld

The determination of the Federal Communications Commission ('FCC') determination that state regulation of VoIP services is preempted under federal law because it is currently impossible to separate the interstate and intrastate aspects of VoIP service was not arbitrary or capricious. Minnesota Public Utilities Commission v. Federal Communication Commission, 2007 U.S. App. LEXIS 6448 (8th Cir. Mar. 21, 2007). In upholding the agency's order and denying various state regulatory agency petitions for review, the court ruled that the FCC could preempt state regulation of VoIP after determining it would be impractical to separate the intrastate portions of VoIP service from the interstate portions, particularly given the practical difficulties with determining the geographic location of 'nomadic' VoIP phone calls (i.e., VoIP service via any available broadband connection) versus 'fixed' VoIP service (i.e., service from a fixed location, such as home cable-TV equipment). Referencing the FCC's previous E911 Order, which required VoIP providers to ensure that customers using VoIP have 911 emergency service, the court commented that the current preemption order had a potentially limited temporal scope, because it could be lifted if technology is developed to identify the geographic location of nomadic VoIP communications.

A marketing agency's inclusion of a brochure containing a previously licensed photograph in an online portfolio that promoted past advertising campaigns is not protected by the copyright fair-use doctrine. Straus v. DVC Worldwide, Inc., 2007 U.S. Dist. LEXIS 20907 (S.D. Tex. Mar. 23, 2007). In denying the agency's motion for partial summary judgment, the court rejected the argument that posting past advertising materials containing copyrighted images for promotional purposes satisfies the criteria for fair use. The court found, among other things, that the defendant's 'transformative' use of the photo as commentary on its own advertising practice was 'slight to non-existent' given that the use of the entire photograph was wholly for private commercial gain and outside the terms of the original license agreement. The court also declined to grant summary judgment in the agency's favor on the theory that use of the photograph was subject to an implied license based on advertising-industry custom, finding that the copyright owner's expressed disapproval of the use of the photograph prior to the filing of the lawsuit created an issue of fact that could not be resolved on summary judgment.

A commercial e-mail that otherwise conforms to the Washington state anti-spam law by providing accurate transmission path information and unsubscribe links is not in violation of the law simply because the e-mail recipient is unable to send a reply e-mail to the sender. Benson v. Oregon Processing Service, Inc., No. 34195-6-II, 2007 Wash. App. LEXIS 31 (Wash. Ct. App. Jan. 9, 2007). The court noted that the plaintiff elected not to click on the 'unsubscribe' links provided in the e-mails, nor use the physical address or phone number provided in the e-mails to unsubscribe. The appellate court affirmed the lower court's dismissal of the plaintiff's claim, finding that the defendant's failure to provide 'reply' functionality to the commercial e-mail did not 'misrepresent' or 'obscure' the point of origin or transmission path of the message. The appellate court concluded that the statute says nothing about how useful a commercial e-mail's point of origin or transmission path must be, does not require a commercial e-mail sender to acknowledge or respond to a recipient's reply e-mail, and does not require that e-mail replies be deliverable.

A federal district court did not abuse its discretion in giving the Lanham Act extraterritorial effect by permanently enjoining a U.S. resident from using the 'Versace' name to sell commercial goods anywhere in the world or over the Internet. Gianni Versace, S.P.A. v. Alfredo Versace, 2007 U.S. App. LEXIS 705 (2d Cir. Jan. 10, 2007). In rejecting the defendant's argument that the district court failed to consider that he is a U.S. resident and not a citizen, the appellate court pointed to the defendant's 40 years of residence and business activity in the United States, coupled with the lack of conflict with foreign law and 'the existence of a substantial effect on commerce.' The court also noted the defendant's violations of prior injunctions, which supported the district court's refusal to permit the defendant to use the 'Versace' name accompanied by a disclaimer.

A defendant in a CAN-SPAM Act case who won a motion to dismiss for lack of personal jurisdiction is not entitled to an award of attorney's fees when there is no evidence of bad intentions or frivolousness on the plaintiff's part, and when such an award would not be consistent with the purposes of the act. Phillips v. Worldwide Internet Solutions, 2007 U.S. Dist. LEXIS 4974 (N.D. Cal. Jan. 22, 2007). In adopting and affirming the magistrate judge's recommendation, the court denied the defendant's motion for attorney's fees, finding no evidence that the plaintiff's suit was 'frivolous' or 'objectively unreasonable,' in the factual and legal components of the case. The court found that an award of attorney's fees in this case would not be consistent with the purposes of the CAN-SPAM Act, namely to 'protect the convenience and efficiency of e-mail' and to 'prevent time and monetary losses to individuals and internet service providers.'

A Web site owner who created a spam 'block list' that identified open-relay servers useful to spammers is immune from liability under the 'Good Samaritan' provision of the Communications Decency Act ('CDA') for incorrectly listing the plaintiff's IP address on the block list. Pallorium, Inc. v. Jared, 2007 Cal. App. Unpub. LEXIS 241 (Cal. Ct. App. Jan. 11, 2007) (unpublished). The appellate court upheld a trial-court judgment finding the owner immune under Section 230(c)(2)(B) as a 'provider' of an 'interactive computer service' who made available 'technical means' to restrict access to material that the provider thought was 'harassing or otherwise objectionable.' The court also found that the fact that the owner's block list might have been over-inclusive was irrelevant so long as the owner deemed the material he sought to block (i.e., offensive spam e-mails) as harassing and objectionable.