USA PATRIOT Act Impasse: E-mail Interception Rules Need Congressional Attention, Too
March 21, 2006
When, if ever, can your Internet Service Provider ('ISP') legally intercept and then read your e-mail? Nearly anytime, according to almost every federal court that has tackled the issue. Due to outdated statutory language, courts have been inconsistent and tentative in applying the federal Wiretap Act to e-mail interception. In recent years, two circuits have flip-flopped on this crucial issue.
Implementing Best Practices Before and After a Security Breach Can Mitigate Corporate Risk
March 20, 2006
Victims of personal data security breaches are showing their displeasure by terminating relationships with the companies that maintained their data. A 'National Survey on Data Security Breach Notification,' released Sept. 26, 2005 by privacy think tank Ponemon Institute and sponsored by White & Case, indicates that 19% of Americans who have received notification that their personal data had been compromised due to a breach have terminated or plan to terminate their relationship with the company where the security breach occurred. Another 40% say that they are considering whether to take their business elsewhere as a result of the breach, and a whopping 58% say that the incident has decreased their trust and confidence in the company. Percentages set forth in this article are based on the total number of survey respondents who reported receiving a breach notification.
Case Briefs
March 01, 2006
Highlights of the latest insurance cases from around the country.
The Brief Case for Insurer Standing in Asbestos Bankruptcies
March 01, 2006
Debtors facing mass-tort asbestos liability frequently challenge their insurers' standing to appear in the debtors' bankruptcy cases. They typically argue that their insurers have no standing because the proposed bankruptcy plan is "insurance neutral." Debtors contend alternatively that the insurers' standing is limited to specific issues directly affecting the insurance contract, such as whether the debtor may assign policy proceeds notwithstanding anti-assignment provisions contained in the policy. Despite insurers' strong incentives to participate in mass-tort bankruptcies, bankruptcy courts have frequently been willing to suppress insurer objections that the debtor finds inconvenient.
Substitution of 'The Sums' or 'Those Sums' for 'All Sums' Does Not Alter the Scope of Coverage
March 01, 2006
One of the major issues for the past quarter century in the litigation of coverage disputes relating to liability for alleged long-term or latent injury or damage (such as those arising from asbestos bodily injury, environmental property damage, or other mass torts) has been "allocation." In particular, insurance companies and policyholders have disputed the scope of coverage provided by an "occurrence"-based general liability policy triggered by injury or damage during its policy period, when the same occurrence also caused harm in other policy periods.
Integrating Software Escrows into Intellectual Property Strategy
March 01, 2006
Software developers invest a great deal of time and effort developing complex code that performs unique functionality for which there is a viable market. These software developers typically offer software licenses that only license object code, <i>ie</i>, the code that can be read by a machine, rather than the source code, <i>ie</i>, code that can be deciphered and read by a person.
Downloading Copyrighted Songs on File-Sharing Network Is Not 'Fair Use'
March 01, 2006
In an important decision interpreting the fair use provision of the Copyright Act (17 U.S.C. §107), the U.S. Court of Appeals for the Seventh Circuit recently held that downloading full copies of copyrighted material without compensation to authors cannot be deemed "fair use." In <i>BMG Music v. Gonzalez</i>, 430 F.3d 888 (7th Cir. 2005), Judge Frank H. Easterbrook, writing for a unanimous three-judge panel, rejected the defendant's argument that she was immune from liability because she was merely sampling songs that she had downloaded from the KaZaA file-sharing network on a "try-before-you-buy basis."
The Dismantling of the DMCA's Anti-Circumvention Provisions
March 01, 2006
According to a recent decision in the U.S. District Court for the District of Columbia, the use of an illicitly obtained password and username to enter an otherwise secure Web site does not violate the anti-circumvention provisions of the Digital Millennium Copyright Act ("DMCA"). In <i>Egilman v. Keller & Heckman LLP</i>, 2005 U.S. Dist. LEXIS 28245 (D.D.C. Nov. 10, 2005), the court held that the law firm Keller & Heckman and others working in concert with it who entered Dr. Egilman's Web site through the use of a username and password that they were not authorized to use had not violated the DMCA, regardless of how the username and password were obtained. This surprising decision runs counter to other decisions interpreting the DMCA and would appear to create a significant loophole to the DMCA's anti-circumvention provisions.
