Search

Courts and law professors often praise "fair use" as the counterweight that keeps copyright balanced with free expression. Those who actually litigate fair use cases, however, will tell you a very different story. They will tell you that, when it comes to copyright cases, it's the copyright owner that has all the advantages. <br>Thanks to the recent federal district court ruling in Online Policy <i>Group v. Diebold</i>, however, the times they may be a-changin'. Fair users on the Internet can now go on the offensive to vindicate their free speech interests against overzealous copyright owners.

Recent developments of note in the Internet industry.<br>This month:<br>Google Sues Internet Marketer Over False Ad Clicks <br>Movie Studios Take Cue From Record Industry ' File Suit against File-sharers <br>Another 761 Added To RIAA Tally <br>Perfect 10 Says Google Removes the Towel

After years of promise and hype, Voice over Internet Protocol (VoIP), the ability to make telephone calls over the Internet, has emerged as a mainstream service for businesses and, increasingly, for consumers. Lower cost, competitive quality and ease of use are responsible for VoIP's accelerated adoption. However, the very features driving VoIP's rollout have brought to the fore the stresses that the Internet and modern telecommunications technology have put on the 70-year-old regulatory framework that governs them.

National rulings of interest to you and your practice.

For nearly 15 years, the Americans With Disabilities Act of 1990 (ADA) has helped clear away barriers to public accommodations, employment, transportation, government services and telecommunications for disabled Americans. This landmark legislation granted long-overdue civil rights protections and equal opportunity guarantees to individuals with disabilities, just as earlier civil rights legislation addressed discrimination based on race, color, sex, national origin, religion or age. While the ADA improved the lives of countless disabled individuals, it also created new challenges for many employers. And as of this summer, some employers will likely face an even tougher, more complex set of ADA accessibility guidelines, the impact of which is only beginning to be understood.

Cellular phone ownership and use is pervasive. More than 70 million Americans reportedly own a cell phone and a high percentage are used for business purposes. Also on the rise are instances of phone use while driving, increasingly blurring the boundary between work and personal time, as people can stay connected professionally during commutes, vacations or other personal pursuits.

In addition to or in lieu of broad-based tax-qualified retirement plans, employers often provide select executives or groups of executives with nonqualified deferred compensation arrangements. These "arrangements" may be in the form of a plan, a written agreement or even a clause in an employment agreement. Much like a "401(k)" tax-qualified retirement plan, these arrangements typically provide for an advance written election by the executive to defer the receipt of otherwise payable future compensation. However, unlike tax-qualified retirement plans, which by law must generally preclude the distribution of benefits prior to an event such as death, disability, retirement or separation from service with the employer maintaining the plan, many nonqualified deferred compensation arrangements have provided for far greater flexibility as to early access to plan funds. To date, the tax law has permitted nonqualified deferred compensation, along with the attendant deferral of tax revenues for the government, on the theory that it provided a tax-favored mechanism for the accumulation of additional savings for retirement. The implementation of nonqualified deferred compensation arrangements providing for distributions upon certain types of arguably foreseeable "hardships" (eg, to pay for college) or in return for a "haircut" forfeiture, cut against the notion that the revenue deferral effect on the government is outweighed by the benefit of permitting the accumulation of additional retirement funds, as these arrangements provide benefits which may not be used for purposes of retirement.

This edition of the Quarterly State Compliance Review looks at some of the significant legislative enactments and court decisions from the last 3 months, including two Delaware Chancery Court decisions dealing with the duty of disclosure.

Timing is everything. The U.S. Sentencing Commission's Revised Organizational Sentencing Guidelines, with their significant shift in focus from corporate compliance programs to a broader assessment of corporate efforts to create corporate to instill cultures of "compliance and ethics," took effect on Nov. 1, 2004. The Revised Sentencing Guidelines are published at 69 Fed. Reg. 28994, 29018-29024 (May 19, 2004). (A copy annotated with LRN's comments is available at www.lrn.com /news/ussc2.htm, as is LRN's testimony and comments to the Commission.) But even before their effective date, their future, particularly with respect to individual defendants, was in doubt. On Oct. 4, the Supreme Court heard oral argument, on an expedited basis, in two cases -- <i>Booker</i> and <i>Fanfan</i> -- that challenge the constitutionality of the basic structure of the Federal Sentencing Guidelines themselves.

Recent rulings of importance to you and your practice.