Technology Law Update

Utah Enacts Electronic Trademark Protection Law Aimed At Keyword Advertising

The Utah Trademark Protection Act was signed into law on March 19. Utah SB 236, Chapter Law 365 (2007).

State Law Claim For Accounting Preempted By Copyright Act

A state law claim seeking an accounting of profits derived from use of software owned by a trust and allegedly wrongfully exploited falls within the subject matter of copyright and therefore is preempted by the Copyright Act. Montgomery v. eTreppid Technologies, LLC, No. 3:06-cv-00145, 2007 U.S. Dist. LEXIS 20208 (D. Nev. Mar. 20, 2007).

Investor Not Required To Disclose Documents Concerning Investment In Infringing P2P Service Under The Crime-Fraud Exception To The Attorney-Client Privilege

An entertainment company that structured its investment in the former Napster music service in an effort to limit potential copyright liability is not required to disclose its communications with its attorneys under the crime-fraud exception to the attorney-client privilege. In re: Napster, Inc. Copyright Litigation, No. 06-15886, 2007 U.S. App. LEXIS 5836 (9th Cir. Mar. 14, 2007).

Utah State Child Protection E-Mail Registry Not Likely Unconstitutional As A Prior Restraint Or Preempted By CAN-SPAM Act

The Utah Child Protection Registry Act (CPR), which makes it a crime to send commercial communications to "contact points" on the state's child do-not-email list concerning certain products or service, is not unconstitutional or preempted by the federal CAN-SPAM Act. Free Speech Coalition, Inc. v. Shurtleff, No. 2:05-cv-949, 2007 U.S. Dist. LEXIS 21556 (D. Utah. Mar. 23, 2007).

Use Of Previously Licensed Photograph For Self-Promotional Online Display Not Fair Use

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., No. H-04-4625, 2007 U.S. Dist. LEXIS 20907 (S.D. Tex. Mar. 23, 2007).

Printouts From Internet Archive ‘Wayback Machine' Inadmissible Without Proper Authentication

Printouts of screenshots of Web sites available on the Internet Archive's "Wayback Machine," are inadmissible under Fed. R. Evid. 901 to show how a Web site appeared on a specific date in the past, where the plaintiff proffering the printouts lacked any personal knowledge on which he could hold forth with certainty that the printouts were in fact, true representations of the Web sites. Novak v. Tucows, Inc., No. 06-cv-1909, 2007 U.S. Dist. LEXIS 21269 (E.D.N.Y. Mar. 26, 2007).

Cable TV Company's Remote Storage DVR System Directly Infringes Copyright Despite Customer Operation Of Functions

A cable TV company's remote storage digital video recorder (RS-DVR) system that allows subscribers to record television programming on the company's own servers for subsequent personal viewing amounts to direct copyright infringement. Twentieth Century Fox Film Corp. v. Cablevision Systems Corp., No. 06 Civ. 4092, 2007 U.S. Dist. LEXIS 20787 (S.D.N.Y. Mar. 22, 2007).

Advertiser May Be Vicariously Liable Under CAN-SPAM Act For Affiliate's Violations

An Internet advertiser can be vicariously, but not strictly liable for the CAN-SPAM violations of its paid affiliates if it maintained the requisite amount of control and oversight with its affiliates and had adequate knowledge of such violations. United States v. Cyberheat, Inc., No. 4:05-cv-457, 2007 U.S. Dist. LEXIS 15448 (D. Ariz. Mar. 2, 2007).

Viacom Files Copyright Infringement Suit Against YouTube, Google Over Uploads

Viacom International, Inc., along with a group of its affiliates, filed a lawsuit against YouTube, Inc. and Google, Inc. for direct and secondary copyright infringement in connection with the YouTube online video site. Viacom International, Inc. v. YouTube, Inc., No. 1:2007cv02103 (S.D.N.Y. Mar. 13, 2007).

Child Online Protection Act Held Unconstitutional

The Child Online Protection Act (COPA), which imposes federal civil and criminal penalties for exposing minors to material that is "harmful to minors," facially violates the First and Fifth Amendment rights of providers of content on the World Wide Web. American Civil Liberties Union v. Gonzales, No. 98-5591 (E.D. Pa. Mar. 22, 2007).