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Today, the volume of such laws is staggering. As perhaps fits the regional, and often local, level of business in the United States ' and how business is regulated here ' many states have stepped into the breach and enacted legislation requiring data security, as well as notice to consumers, when security breaches occur. And although there is no federal law that generally requires information security, recent Federal Trade Commission actions indicate that the FTC is, for the first time, imposing a general duty to establish information security under the Federal Trade Commission Act. <br>Compliance with these laws isn't only a legal reality, but a business one, as the frequent and well-publicized data-security incidents of recent years demonstrate. New notice laws require companies to advise customers of the high-profile data-security incidents that frequently make headlines. Now, companies must deal with increasingly complex requirements that are not consistent from state to state. The price of failure can be high ' including significant penalties, as well as unfavorable press coverage.
The Federal Trade Commission (FTC) last month joined the call by the Organisation for Economic Cooperation and Development (OECD) for government and industry worldwide to battle spam.
We're there, and we know it: The union of the Internet and commerce has led to increases in productivity, convenience and access for consumers everywhere. At the same time, it has spawned volumes of acute privacy concern. It's not unusual to hear of businesses inadvertently publicizing consumers' personal data ' or, worse, hackers obtaining personal financial information. It seems to happen all too often at credit-card companies, banks and the local supermarket.<br>Of course, concerns over these privacy issues have reached the sector of the legal trade that advises and defends the banking industry, and with a vengeance, as evidenced by the various privacy related provisions incorporated in the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). In particular, the BAPCPA incorporated the Leahy-Hatch Amendment, also known as The Privacy Policy Enforcement in Bankruptcy Act of 2001 (PPEBA), which I had the honor of drafting. In particular, the PPEBA, in order to address certain privacy concerns, amended Bankruptcy Code '363(b)(1) and added pre-conditions to the sale or use of consumer data; added a new '332, creating the 'privacy ombudsman'; and defined 'personally identifiable data' in '101(41A). This article will review the development of these amendments, and analyze their potential impact for practitioners.
Do e-commerce clients really understand when they cross the imaginary boundary where the law stops and the ambiguity begins? In other words, do lawyer and client realize what each knows ' or thinks he or she knows ' about Internet law, on the one hand, and the realities of online business, on the other hand? Do clients realize how much lawyers don't know about e-commerce law and business, and how much law hasn't yet been developed?
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With securities claims involving improper Internet disclosures on the rise, a company would be wise to institute a review process, carried out by a qualified person (general counsel or compliance officer), to assure that its Internet disclosures are accurate, complete, and appropriate. Following are some questions that should be asked as part of an Internet review, along with suggestions for 'common sense' measures for reducing a company's exposure and keeping pace with Web evolution.
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I find it rather ironic that at the same time I was speaking on the subject of 'Patent Trolls' at the Patent Strategies 2006 conference in New York, in Washington, DC, the Supreme Court was deliberating this very topic in connection with eBay's appeal of an injunction granted to MercExchange by the U.S. Court of Appeals for the Federal Circuit. 'The long-anticipated eBay case gets to the heart of the debate over so-called patent trolls ' companies that obtain patents only to license them, often using the threat of an injunction to extract a high price from infringers.' Woellert, L.: eBay Takes on the Patent Trolls. <i>Business Week</i>, March 30, 2006. One of the arguments that eBay made was that non-practicing inventors, quaintly nicknamed 'patent trolls,' should not be entitled to an injunction as a matter of course. This suggestion, however, seems to fly in the face of the Constitution, patent law, and common sense. Here are 10 reasons why injunctive relief should not be tied to practice of an invention.
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Most experienced intellectual property attorneys understand the significant role surveys play in trademark infringement and other Lanham Act cases, but relatively few are likely to have considered the use of such research in patent infringement matters. That could soon change in light of the recent admission of a survey into evidence in <i>Applera Corporation, et al. v. MJ Research, Inc., et al.</i>, No. 3:98cv1201 (D. Conn. Aug. 26, 2005). The survey evidence, which showed that 96% of the defendant's customers used its products to perform a patented process, was admitted as evidence in support of a claim of inducement to infringe. The court admitted the survey into evidence over various objections by the defendant, who had argued that the inducement claim could not be proven without the survey.
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