Internet Law

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Jurisdiction:

i. (1) To say defendant has a website that can be seen and can be experienced by any person with a computer to any state and therefore should be subject to personal jurisdiction in any state.
ii. (2) Nothing that you can do on a website can constitute a contact for personal jurisdiction. Have to have something in the traditional sense.

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Two Ways to classify internet activity in terms of contacts

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Personal Jurisdiction:


the courts have treated this as minimum contacts as sui generis. Basically created their own minimum contacts in order to establish personal jurisdiction. Don’t need to know civil procedure for this class.

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Website Activity

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Personal Jurisdiction

) Which of three categories does the website fit into:
1. Passive Website – that does little more then making information available, and very little else.
2. Middle Ground - Anything else in between this belongs in this middle category.
3. Does Business on the Internet - When a defendant does business on the Internet that involves the knowing and repeated transmitting of computer files.
ii. (2) If Category Two (Middle Ground):
1. Look at the level of Interactivity, and
2. Whether it is of a Commercial Nature.
1. If test is satisfied then it is a category 3 and there is personal jurisdiction.

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Test when analyzing minimum contacts

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personal jurisdiction:

that does little more then making information available, and very little else.

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passive website

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personal jurisdiction:

- Anything else in between this belongs in this middle category.

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middle ground

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Personal jurisdiction:

When a defendant does business on the Internet that involves the knowing and repeated transmitting of computer files.

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does business on the internet

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personal jurisdiction:

1. Look at the level of Interactivity, and
2. Whether it is of a Commercial Nature.
1. If test is satisfied then it is a category 3 and there is personal jurisdiction.

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if middle ground

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personal jurisdiction:

Did the website intentionally direct activity into the forum state. (Different then Minimum Contacts).
i. Directs electronic activity into forum state
ii. With intent to engage in business in state
iii. Creates potential cause of action.

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ALS TEST

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personal jurisdiction:

a. Courts generally require some type of actual or potential transaction.

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interactivity

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personal jurisdiction:

purchasing with an item with a credit card.

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actual transaction

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personal jurisdiction:

not sufficient to satisfy due process, there must be a deliberate action. Ex. – Actual sales are unnecessary as long as they provide goods for sale.

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interactivity: potential transactions

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personal jurisdiction:

websites that solicited donations, that hosts a bulletin board, that allows software download, that allows prospective employees to provide there website

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interactivity: not active websites

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personal jurisdiction:

website that allows people to make reservations to hotel, rental vehicle, and etc.

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interactivity; interactive

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personal jurisdiction:

a. Not a very important cause a lot of websites’ are not commercial in nature. Commercial in Nature: Company Information, Ads solicit potential transactions, and Apply for new service because it is buying and selling.

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commercial nature

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personal jurisdiction:

Personal Jurisdiction can be predicated on Intentional actions Expressly aimed at forum state Causing harm, Brunt of which defendant knows is likely to be Felt in the forum state.

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effects test

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personal jurisdiction:

1. Facts: He registered the plaintiff’s trademarks and tried to extort money out of them. Court Says: by intentionally trying to sell the domain names that is an intentional action aimed at the forum state.

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effects test: panavision v. toeppen

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personal jurisidction:

1. Facts: Plaintiff sues the defendant based on defamation from an article posted on his website. Court Says: Regarding the effects test the court said, it was directed at the world at large and in fact the defendant did not even know the plaintiff lived in Texas when he wrote the article. For someone to expressly aim something at the forum state they need to know where the forum state is.

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effects test; Revell v. Lidov

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personal jurisdiction:

a. Mcgree: SC found jurisdiction on single contract. Now, a single contract is not an automatic jurisdiction creator and you have to look more than that.
b. CompuServe v. Patterson Pg. 357
i. Facts: Patterson entered into a contract with CompuServe.
ii. Court Said: (1) there were repeated and purposeful transmissions. (2) He also signed the software registration agreement. (3) This was a continual contractual relationship. (4) Quality over Quantity. (5) Communicated with lawyers and threatened to sue in the forum state.

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commercial transactions via online communications case law

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personal jurisdiction:

a. Web hosting in forum state is not enough. Making payments to a forum state and accessing a database in the forum state is not enough.

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use of computer equipment located in the forum state

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personal jurisdiction:

a. Look at all contacts

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combining offline and online contracts

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personal jurisdiction:

a. If you want jurisdiction with an out of country business it is their contracts with the US not the contracts with any particular state.

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rule 4(k)(2)

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Trademarks

i. Marks must be valid
ii. Owned by plaintiff, and
iii. (Likelihood of Confusion) - The defendant’s use is likely to create confusion. (usually the issue in all trademark cases).

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traditional trademark infringement:

3 part test for infringement

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trademarks

8 factors for liklihood of confusion

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strength of mark
similarity of mark
the competitive proximity of the products
the liklihood that plaintiff will bridge the gap
actual confusion
the defendant's good faith
the quality of defendant's product
the sophistication of the buyers

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trademarks

a. Facts: Plaintiff registered the domain names of moviebuff.com. But, the defendant used for its tags moviebuff.com.
b. Court Says: If you got the plaintiffs website here, and the defendants website, there is initial interest confusion because internet users will be given a choice and the fact that the defendant shows up on a search that was used in trademark, means that they are benefiting from the goodwill of plaintiffs trademark.

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initial interest confusion

Brookfield

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tradmark

for an initial amount of time the plaintiff is confused as to the plaintiffs sponsorship of this banner ad, and this is a form of confusion that is prohibited by trademark law.

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initial interest confusion

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trademarks

a. Facts: Bihari is an interior designer and Gross is the client. The work is not finished, so a complaint was filed. Settlement negotiations fail, so Gross registers his marks. Bihari sends a demand letter, and Gross delivers pens bearing the words www.Bihari.com. It appears that Bihari has held up some sofas, so Gross files a criminal compliant against the Bihari’s and she was arrested. Gross, takes down the website, but uses websites under different domain names, with behari in the key word metatag area. 8 of them were defendant’s websites, so the plaintiff goes with the initial consumer confusion thing.
b. Court says that it is clear from looking at the results page that these are not the plaintiff’s websites. Also plaintiff does not have a website.

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initial interest confusion:

Bihari

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trademarks

(trademark) use or displayed in the sale or advertising of services/services in commerce. Need use of mark in commerce for trademark infringement.

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pop up advertisements:

use in commerce

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trademarks:

(1) use in commerce, (2) used or displayed in the site or advertising or advertising (3).

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pop up advertisements:

trademark infringment

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trademark dilution:

Dilution potentially prevents another from using your trademark even absent the use in competing goods or services. Dilution is the lessoning of the capacity of a famous mark to identify and distinguish its goods in services. There does not have to be a likelihood of confusion in dilution. Dilution is about the lessoning of a marks ability to identify the goods in services. To bring a dilution claim you need identical or nearly identical marks. It is impossible to dilute this mark with another mark that looks different.

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dilution

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trademark dilution:

this is more like classic dilution. When an ability of a mark to serve as a unique identifier as the plaintiffs goods or services is weakened because the relevant public now also associates that mark with a new and different source.

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dilution: blurring

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trademark dilution:

When the selling power of a trademark is undermined by an association with negative goods and services.

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dilution: tarnishment

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trademark dilution:

8 factors for famous mark

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1. Degree of inherent or acquired distinctiveness of hte mark
2. The Duration and the extent of advertising
3. Geographical extent of th trading area in which the mark is used
4. channels of trade for the goods
5. Degree of recognition of the mark
6. Nature and extent of the use of hte same or similar mark by third parties
7. wheteher the mark is registered.
8. duration and extent of use of the mark in connectino with the goods and services

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Trademark Defenses:

Allows the defendant to use the plaintiff’s trademark to describe the defendant’s own product. You can raise this defense when you are using a mark other than as a product identifier or trademark

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traditional fair use

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trademark defenses:

whenever you see criticism you will be talking about a fair use defense.

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general rule in intellectual property

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trademark defenses:

whenever you see criticism you will be talking about a fair use defense.

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traditional fair use elements

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tradmark defenses:

Allows a defendant to use a plaintiff’s trademark to describe the plaintiff’s product. This is used in the context of comparative advertising. Difference, does it look like comparative advertising or not.

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nominative fair use

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trademark defenses:

1. Plaintiffs product not readily identifiable without use of trademark,
2. Only so much of the mark or marks may be used as is reasonably necessary to identify the product,
3. User does nothing that would suggest sponsorship or endorsements by the trademark holder.

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three requirements for nominative fair use

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trademark defenses:

Available to a defendant when defendants use of the plaintiffs mark is used to identify a message rather then identify the source of the product.

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first amendment defense

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trademark defense:

1. Defendant who is an anti-abortion activist did register plannedparenthood.com, when the page opens up you get an image of an anti-abortion book. Defendant admits that he was trying to reach people that he usually cannot reach. Defendant claims 1st amendment defense.
2. Court Says: Here defendant is using plaintiffs trademark to identify his own site rather then to identify a message.

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first amendment defense;

planned parenthood case

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domain names:

a. Facts: Lockheed has the trademark skunkworks and someone came in and registered skunkworks.com, and Lockheed is going after networks solutions says that they cannot register their trademarks to someone else.
b. Court Says: because NSI has not used Lockheeds services then the court does not apply the likelihood of confusion test. The point is that their use is not in connection with selling anything.

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traditional trademark law and domain names:

lockhead case

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domain names:

a. Facts: preliminary injunction, but they did not want to turn it over while litigation was going on. So the court has to look at a few things that involve issuing a preliminary injunction. One of the things they have to do is look at plaintiff’s likelihood of success.
b. Court Says: look at likelihood of confusion – similarity between the marks, icbp concedes that they are very similar (domain names identify the products or services); consumer confusion – the court distinguishes some cases and says that because the channels of trade are identical or they might assume that there was a corporate merger; Balancing of Harm

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traditional trademark law and domain names:

green products

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domain names:

a. Facts: They attempted to register Panavision.com and they find out that Toeppen is the owner of this trademark. After they have not settled on this, Tooppen goes out and registers Panavisions trademark. His first website has aerial photos of Pana Illinois and the other says hello. Court: potential customers will be discouraged if they can’t type in its website by typing in panavision.com and instead they will have to go through 100’s of websites and this will diminish the capacity of panavisions trademark.

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trademark dilution:

panavision

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domain names:

a. Facts: Ty makes bennie babies and Perryman sells used bennie babies online. Court Says: The court talks about dilution and says that there are 3 possibilities. First, the dilution through blurring is that before whenever you said the word tiffany’s all they thought about is jewelry and not the restaurant. Now you think the word tiffany’s you think jewelry and restaurant.

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trademark dilution:

ty inc

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copyright:

a work is fixed in a tangible medium of expression when its embodiment in a copy or phorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

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fixed

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copyright:

1. Facts: has a computer manufacturer who produces software to operate their stuff. Peak repairs computers. Employees left MAI, more like trade secrets case. Court Says: MAI software license does not allow the use or copy of there software by Peak therefore any copying done is beyond the scope of the use of the license.
2. Copying: for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer’s RAM.

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exclusive control: reproduction right:

MAI case

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copyright:

the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only if maintenance or repair of that machine.

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exclusive control: reproduction right:

copyright act 1998

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copyright

A derivative work must be fixed to be protected but not to infringe.

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exclusive copyright:

derivative work

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copyright:

is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.

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exclusive copyright:

derivative work definition

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copyright:

1. Facts: Nintendo makes games for NES, and Galoob put out a game genie that alters up to three effects on the Nintendo games but are not permanent alterations. Nintendo sued cause they said that they have created a derivative work. Court Says: This game genie does not alter the copyrighted work in a concrete or permanent form.

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exclusive copyright:

derivative work case law

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copyright:

(1) The work must exist in a concrete and or permanent form. (2) Must substantially incorporate the copyrighted work.

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exclusive copyright:

derivative work new definition

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copyright:

1. Facts: Frena supplied a product of unauthorized copies on his website. He ran a bulletin board, people were posting pics of playboy and people were downloading them. Court Says: that you don’t have to be the one making the copies to infringe. Intent is not an element in copyright law, so if someone else makes a copy and you distribute or display it then you can be liable. Has to be to the public though, not just posting it on your refrigerator.

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exclusive copyright:

the distribution and public display rights

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copyright:

This is what you claim when you have been found to infringe on someone copyright, but despite the fact that I am infringing my use falls within the fair use affirmative defense.

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copyright fair use defense

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copright:

fair use factors

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1. purpose (transformative) and Character (commercial) of the Use

2. nature of the Copyrighted Work

3. Amount and Substantially of hte Portion Used

4. Effect on the Potential Market

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copyright:

i. Facts: These newspapers post-there article online and you have to pay to look at them. Defendant has a website where they copy verbatim from other newspapers and they post them on websites and they post them to comment on them. The primary purpose of the fair use defense is to protect free speech. Court Says: linking to the plaintiff’s site rather then copying verbatim is not impractical. Therefore, they will get paid. Comments on facts are less protected then criticism of style.

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copyright fair use defense case law

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copyright:

a. You can sell the LP record that you purchase. Whoever buys this has a right to distribute.

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first sale doctrine

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copyright:

a. Link: click on a link and your comp will download the page.
b. What if I had a hyperlink on my webpage that linked to a site that has copyrighted material on it. That is not copyrighted material because you are providing the link, but a website that is providing the copyrighted material will be infringing.

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copyright and common internet activities:

linking and framing

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copyright:

i. Court Said: that it is commercial, but the purpose is transformative. Purpose is not to provide the work in an artistic value, but instead to provide the link to go somewhere else.

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copyright and common internet activities:

search engines case law

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anticybersquatting:

Must be distinctive or famous. D’s domain name must be identical or confusingly similar to P’s trademarks

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anticybersquating consumer protection act

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anticybersquating:

usually dealing with the bad faith intent to profit**

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bad faith intent to profit

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anticybersquating:

a. trademark or other intellectual property rights of the person, if any, in the domain name
b. the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person
c. the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services
d. the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name
e. the person’s intent to divert consumers
f. the person’s offer to transfer, sell, or otherwise assign a domain name to the mark owner or any 3rd party
g. person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of usich conduct;
h. the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties and
i. the extent to which the mark incorporated in the person’s domain name registration is or isn’t distinctive and famous within the meaning of subection (c)(1) of section 43

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8 factors use as analytical tools

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anticybersquating:

a. distinctive or famous. Identical or confusingly similar. Bad faith intent to profit. Factors - its clear that neither Sporty’s Farm nor Omega had any intellectual property rights in sportsy.com at the time Omega registered the domain name. Sporty’s Farm wasn’t formed until 9 mos after the domain name was registered and didn’t begin operations or obtain the domain name from Omega until after this lawsuit was filed. domain name doesn’t consist of the legal name of the party that registered it, Omega. Entity didn’t exist at the time the domain name was registered. most important grounds are the unique circumstances to the case. The primary purpose was to keep Sportsman from using the domain name. Also the timing looked really bad for them.

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anticybersquating: sporty's case

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anticybersquating:

A way a court can get jurisdiction over a party. Ct exerts jx not over a party but over a piece of property. only available to assert ownership over a piece of property usually comes up in a context of civil litigation where the property is in CA and the person is in FL and so the ct can exert jx over the property when you win your case you can satisfy the damages to the extend of the value of the property. ct may assert jx over the domain itself for the limited remedy of canceling the domain name or having it transferred. So domain name is property. Because of the traditional and constitutional base limitations of in rem all you can do is decide who’s gonna get the property. Before you can do In Rem, you have to show that you exercised due diligence. And even if you can locate them you can still get in rem if you can’t assert the jx. So its (a) no personal jx or (b) can’t locate.

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in rem

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anticybersquating:

a. This guy found commonly misspelled trademarks and registered them. Once you go to this site, you get bombarded with pop ups and every time one of them pops up D gets paid. Ct says that he has these misspellings when a potential or online customer mistypes the sites. Ct turns to what do we do for damages? à Ct says the actual damages suffered by the loss of customers is incalculable.

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electronic Boutique case

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anticybersquating:

a. Registrar handles the consumer interaction. They send appropriate info to the registry and there is only one for .com, .net, .org. All the top level domain names are handled by verisign and they handle all the technical details, they maintain the database that connects domain name with an address. Here the problem is that the registrar is in korea and plaintiff has won their anticybersquating case. They have ordered the registrar and the registry to transfer the domain name from the d to p. Def goes and files something in some district ct in Korea and he gets this injunction preventing the Korean registrar from transferring the name. The ct says whurat are the available remedies. When it comes to the statute, you have 2 choices. (1) transfer or (2) eliminate/ get rid of it altogether so D can’t be using it anymore. Registrar wont transfer it so now we are down to how do we just get rid of it. There are 3 choices (1) get the registrar to delete it. Advantage is if the registrar deletes it, its available for the P to then go in and take it. (2) registry cancels. This is a hold which means D can’t use it anymore but neither can the P. (3) get the registry to delete it. The advantages don’t need the registrar and it makes the name available for the plaintiff. Disadvantage is that Verisign doesn’t want to do it. They said that it would make them violate their Ks. Ct picks (2) because it’s the least intrusive.

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global santa fe corp

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copyright:

want to argue fair use if it has been determined that you have infringed.

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contributory infringment:

fair use defense

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copyright:

i. Holding: one who distributes a device with the object of promoting its use to infringe, copyright, as shown by clear expression or other affirmative steps taken to foster infrignment, is liable for the resulting acts of infrignment by third parties. What evidence do we have that the defendants intentionally induced or encouraged the direct infringement: advertise online to napster customers, distributed electronic newsletters to access music.

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contributory infringment:

metro goldwyn case

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copyright:

One who, with knowledge of infringing activity, induces, causes, or materially contributes to the infringing conduct of another. Elements:
1. Direct infringmenet 3rd party
2. Knowledge of that infringement *need intent, knowledge is not enough.
3. Induce, cause, or materially contribute to the direct infringement

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contributory Infringment:

Classic definition of contributory infringment