Aba section of Intellectual Property Law


Did Globe violate CAN-SPAM?



Download 419.52 Kb.
Page7/7
Date05.05.2018
Size419.52 Kb.
#48098
1   2   3   4   5   6   7

Did Globe violate CAN-SPAM?

Were the subject headers on Globe’s emails false, misleading or misrepresentative of material facts regarding the subject matter of the emails in violation of CA law?

Were MySpace’s Terms of Service unenforceable as unconscionable?

Was the liquidated damages clause in MySpace’s Terms of Service enforceable, and if so, were they enforceable against all Globe’s emails, notwithstanding the fact that some of Globe’s messages came from MySpace accounts opened before the liquidated damages clause was added to the terms of Service?


The Holding

Regarding the CA cause of action, with very little discussion, the court found that based on the evidence of record, there was no triable issue as to whether Globe violated the law against false and misleading subject headers .

Regarding the Terms of Service, the court held that they were not unconscionable because MySpace gave Globe alternative means of marketing through MySpace, the terms were not harsh, oppressive or one-sided, and the wording of the Terms were not hidden in prolix. Furthermore, the court held that the liquidated damages clause was enforceable in general because the damages would have been otherwise difficult to calculate; and the liquidated damages clause was enforceable with respect to all Globe’s emails because the Terms of Service always had specifically provided that future modifications of the Terms were binding.

The primary issue in MySpace was whether Globe violated CAN-SPAM. CAN-SPAM provides a private cause of action to (1) providers of “Internet access service" that (2) provide access to electronic mail, and (3) are harmed by violations of that law. The court easily determined that Globe’s actions plainly constituted violations of CAN-SPAM. The more important discussion upon which the CAN-SPAM claim hinged, seemed to be over the issue of whether MySpace had standing to sue under CAN-SPAM (i.e., whether MySpace was an internet access provider that provided access to electronic mail.)

As the court stated, CAN-SPAM defines "internet access service" as a "service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers." 15 U.S.C. § 7702(11), referencing 47 U.S.C. § 231(e)(4). The court held therefore, that internet access services "includes traditional Internet Service Providers (ISPs), any email provider, and even most website owners," (citing White Buffalo Ventures, LLC v. University of Texas at Austin, 420 F.3d 366, 373 (5th Cir. 2005); and Hypertouch v. Kennedy Western, 2006 WL 648688 at *3 (N.D. Cal. Mar. 8, 2006).) As such, the court held that MySpace was an internet access provider under CAN-SPAM.

With respect to whether MySpace provided access to email, the court stated that CAN-SPAM defines "electronic mail messages" as messages sent to "a unique electronic mail address." 15 U.S.C. § 7702(6). And an "electronic mail address" is defined as "a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox… and a reference to an Internet domain…, whether or not displayed, to which an electronic mail message can be sent or delivered." 15 U.S.C. § 7702(5).



The Court held that CAN-SPAM’s scope is not limited to "traditional" emails. Furthermore, the court held that because all MySpace email contains routing information, all email-box addresses contain references to a username and the MySpace domain, and for each MySpace message sent, a companion email message is sent to the recipient’s alternative (external) email address, MySpace messages qualify as email under CAN-SPAM.

Relevance to Attorneys With Clients Doing Business in Virtual Worlds
  • Standing to sue under CAN-SPAM might165 no longer be limited to traditional ISP’s.

    • This has the potential consequence of increasing the plaintiff pool

  • Under CAN-SPAM, the scope of the word “email” might166 go beyond the traditional definition of the word.

    • This may increase the scope of what constitutes a violation under CAN-SPAM


Bragg v. Linden Research, Inc., Eastern District of PA167
Denying a motion to dismiss for lack of Personal Jurisdiction and a motion to Compel Arbitration.
Summary of Facts
In this case, Plaintiff Marc Bragg (“Mr. Bragg”) sued Linden Research Inc. (“Linden”) and its Chief Executive Officer, Philip Rosedale (“Mr. Rosedale”). Mr. Bragg was a participant in the Second Life virtual world, which is operated by Linden. Mr. Bragg alleges that he signed up and paid Linden to participate in Second Life in 2005 and then went on to purchase numerous parcels of land and other virtual items based on: (1) Linden’s announcement, in November 2003, that it would recognize virtual property rights allowing participants’ to buy, rent and sell land to other participants (or avatars) for a profit; and (2) Mr. Rosedale’s repeated media announcements confirming these rights.
On April 30, 2006, Mr. Bragg bought land in Second Life, named “Taessot,” for $300. In response, Linden sends Mr. Bragg an email stating that his purchase was improper through an “exploit.” Linden took the Taessot land away and froze Bragg’s Second Life account.
Mr. Bragg maintains that Mr. Rosedale’s representations in the national media and at town hall meetings he hosted in Second Life induced Second Life participants, including himself, to purchase virtual property.
Legal Issues


  1. Does the PA District Court have personal jurisdiction over Mr. Rosedale?




  1. Should Mr. Bragg be compelled to submit his claims to arbitration because he clicked an “accept” button indicating acceptance of a Terms of Service, which included an arbitration provision and forum selection clause?




  1. What rights and obligations grow out of the relationship between the owner and creator of a virtual world and its resident-customers?


Legal Findings


  1. The Court finds that Mr. Rosedale’s representations “which were made as part of a national campaign to induce persons, including [Mr.] Bragg, to visit Second Life and purchase virtual property” rise to the level of minimum contacts in Pennsylvania and allow the Court to exercise specific personal jurisdiction over Mr. Rosedale.

The Court based this finding on the fact that Mr. Bragg’s injuries were related to the distribution of the advertisements in the forum state, indeed they “constitute part of the alleged fraudulent and deceptive conduct at the heart of [Mr.] Bragg’s claims in this case.” In addition, the Court found that since Mr. Rosedale’s marketing efforts were interactive (Mr. Rosedale’s avatar on Second Life during town hall meetings that he held on the topic of virtual property) they provide the necessary support for specific personal jurisdiction. Finally, the Court found it would not offend due process to exercise personal jurisdiction over Mr. Rosedale in part because “Pennsylvania has a substantial interest in protecting its residents from allegedly misleading representations that induce them to purchase virtual property.”




  1. No, because under California contract law, the Terms of Service are unconscionable and Linden made no showing that “business realities” created a special need to justify the “one-sidedness of the dispute resolution scheme” in the agreement.

The Court found that Second Life’s Terms of Service were a contract of adhesion, which rendered the arbitration clause procedurally unconscionable. The Terms of Service were offered on a “take-it-or-leave-it basis” by a party (Linden) with “superior bargaining strength” and there were no reasonably available market alternatives (“Second Life was the first and only virtual world to specifically grant its participants property rights in virtual land”). The Court also found that the arbitration provision was “buried” in a lengthy paragraph under the benign heading “GENERAL PROVISIONS” and it failed to provide the costs and rules of arbitration in the ICC by way of summary or a hyper-link.


In addition, the Court found that the Terms of Service were substantively unconscionable because the arbitration provision allowed a choice of forums for the stronger party (Linden had the options of suspending or terminating the Second Life account or this Agreement without any notice or liability), but required the customer to arbitrate claims. Linden also had the right to modify the agreement, and the arbitration clause, at any time in its sole discretion. The arbitration costs, which the Court found to be significantly higher than the cost of filing in state or federal court, and “fee-splitting scheme” of sharing the costs of arbitration, also support substantive unconscionability. Finally, the rules of ICC require the arbitration to be kept confidential, which supports a finding of substantive unconsionability in the Ninth Circuit.
Mr. Bragg entered the Second Life Terms of Service as a result of representations made on the national media.


  1. While this issue has not been addressed yet in this case, the Court in this opinion does seem to be leaning towards a finding that virtual property in Second Life be treated the same as any other intangible property right. In just one example, the Court characterizes Linden’s freezing of Mr. Bragg’s account as “effectively confiscating all of the virtual property and currency that he maintained on his account with Second Life.”


Why is This Case Interesting?

There are several aspects of this case that are interesting and should be noted by anyone running an online virtual world or game system:




  • It demonstrates a broad view of personal jurisdiction reaching an entity that has used the national media to advertise an online virtual world, citing Second Life’s town hall meetings on a touted feature of their product as creating “interactive” marketing that supports a finding of specific personal jurisdiction.




  • It brings into question the enforceability of point and click Terms of Service contracts by finding Second Life’s Terms of Service to be a contract of adhesion based on of procedural unconscionability. Because Mr. Bragg entered into the contract because of a feature that no other virtual world offered, there were no available market alternatives and even though Mr. Bragg was an experienced attorney, since he had no way to negotiate the terms of the contract if he wanted to participate in Second Life, the arbitration clause in the Terms of Service is unenforceable.




  • This case demonstrates that arbitration clauses in Terms of Service agreements should be carefully scrutinized for enforceability. If a company running an online game or virtual world has such a clause in their Terms of Service, they should at least provide a link to the rules and think about adding clauses which attempt to keep the arbitration costs for customers low, by providing for exemptions from arbitration rules requiring more than one arbitrator and mandatory venue. This Court does not look kindly on a requirement that an individual customer is required by the contract to travel to California and pay arbitration fees significantly higher than the costs of finally in state or federal court.




  • Finally, while this case does not get to the merits of virtual property rights, it does seem to indicate that, this Court at least, is willing to entertain the notion that virtual rights (at least as here where Second Life has advertised this as feature of its environment) are equivalent to any other intangible property right and a company offering such a benefit may not be able to contract around these rights, once given, by providing themselves unilateral self-help remedies in their Terms of Service.

C.B.C. DISTRIBUTION AND MARKETING, INC. (Plaintiff–Appellee) v. MAJOR LEAGUE BASEBALL ADVANCED MEDIA, L.P. (Defendant–Appellant.) (U.S.C.A. 8th Cir, 2007) 505 F. 3d 818168
Summary Judgment for Plaintiff, Affirmed November 26, 2007
Facts:

Plaintiff is a producer of fantasy baseball games. Plaintiff initially licensed use of the names and statistics from Defendant. After license/contract expired, Plaintiff sought to clarify its rights.


Plaintiff sought declaratory judgment that it had a right to use players’ names and statistics. Defendant counterclaimed, alleging violation of players’ rights of publicity, for which Defendant previously obtained a license.
The Major League Baseball Players Association intervened on behalf of Defendant, asserting claim for breach of contract.
Summary of Legal Issues:

1. First amendment rights supersede rights of publicity. Under Missouri law, right

of Plaintiff to use the names and statistical information of baseball players took precedence over player’s rights of publicity, inasmuch as the information was already available in the public domain. The court cited Gionfriddo v. Major League Baseball 94 Cal.App. 4th 400 which concluded that the “recitation and discussion of factual data concerning the athletic performance of [players] command a substantial public interest, and therefore, is a form of expression due substantial constitutional protection.”
2. A clause in the contract between Plaintiff and Defendant specifying that

Defendant owned players’ publicity rights was determined faulty, inasmuch as Defendant had no rights in the first place, given the first amendment analysis, supra. The Court stated that the Doctrine of Licensee Estoppel gives way when “strong federal policy favoring the full and free use of ideas in the public domain...outweighs the competing demands ... of contract law.” Lear, Inc. v. Adkins 395 U.S. 653.


Judge Colloton dissented in the contract issue, stating that “CBC surely can ‘agree’ as a matter of good business judgment, to bargain away any uncertain First Amendment Rights that it may have in exchange for the certainty of what it considers to be an advantageous contractual arrangement.”
Virtual World Interest:

In contract/license negotiations, venue choice is crucial. Plaintiff would have lost if California publicity statutes applied.


EXHIBIT E
Virtual Worlds Fact Sheet:


1 http://www.iso.org/iso/catalogue_detail?csnumber=21823

2 508 F.3d 1146 (9th Cir. 2007), superseding 487 F.3d 701 (9th Cir. 2007)).

3 336 F.3d 811, 818 (9th Cir. 2003).

4 ___ F. Supp. 2d ____, 2008 WL 728389 (E.D. Va. 2008).

5 508 F.3d 1146 (9th Cir. 2007), superseding 487 F.3d 701 (9th Cir. 2007)).

6 Committee still reviewing Second Circuit’s opinion, which appears here: http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTU5NDMtY3Zfb3BuLnBkZg==/05-5943-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl69fe/3/hilite.

7 489 F. Supp. 2d 1087 (N.D. Cal. 2007).

8 505 F.3d 818 (8th Cir. 2007).

9 C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006), aff’d, 505 F.3d 818 (8th Cir. 2007)

10 884 A.2d 451 (Del. 2005).

11 Court of Appeals, Sixth Appellate District of Texas at Texarkana, No. 06-07-00123-CV Dec. 12, 2007.

12 884 A.2d 451 (Del. 2005).

13 Id. At 460.

14 E.D.N.Y. Feb. 13, 2007.

15 Members voted on a version of this report before slight revisions to A.V., Perfect 10, and C.B.C. The chairman did not receive votes from the great majority of members of the committee, despite multiple efforts to solicit their votes. No votes against the report were received. In light of these facts, the reports is being submitted as a “final draft” without further efforts to solicit committee member votes.

16 Pub. L. 90-351 (June 19, 1968).

17 See 18 U.S.C. § 2510(1). Unless otherwise noted, all citations to a section of the U.S. Code are to Title 18.

18 § 2510(2).

19 § 2510(12).

20 18 U.S.C. § 2510 et seq.

21 Id. at § 2515.

22 Id. at § 2517.

23 Id. at § 2520.

24 18 U.S.C. § 2701 et seq.

25 Id. at § 2701(a).

26 In re Doubleclick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001) (plaintiff’s computer is a “facility” within the meaning of the SCA); In re Pharmatrak, Inc. Privacy Litigation, 220 F. Supp. 2d 4 (D. Mass. 2002) (plaintiff’s computer is not a “facility”).

27 18 U.S.C. at § 2701(c).

28 § 2703.

29 § 2704.

30 § 2707.

31 Pub. L. 98-473 (Oct. 12, 1984), codified at 10 U.S.C. § 1030.

32 10 U.S.C. § 1030(a)(2).

33 § 1030(a)(4).

34 § 1030(a)(5).

35 § 1030(a)(6).

36 § 1030(f).

37 § 1030(d).

38 § 1030(g).

39 S. 2168, approved by the Senate and referred to the House Subcommittee on Crime, Terrorism, and Homeland Security as of Feb. 4, 2008.

40 H.R. 964, approved by the House and in the Senate Committee on Commerce, Science, and Transportation as of June 7, 2007.

41 S. 1625, in the Committee on Commerce, Science, and Transportation as of June 14, 2007.

42 Spy Act, § 2; Counter Spy Act, § 3.

43 Spy Act, § 3; Counter Spy Act, § 4.

44 Counter Spy Act, § 3(3).

45 Counter Spy Act, § 5.

46 Spy Act, § 4; Counter Spy Act, §§ 7(a), 8(a), 9(a).

47 Spy Act, § 6(a); Counter Spy Act, § 11(b).

48 H.R. 1525, approved by the House and in Senate Committee on the Judiciary as of May 23, 2007.

49 I-SPY Act, § 2.

50 I-SPY Act, § 2, text of new § 1030A(c).

51 S. 2661, in the Committee on Commerce, Science, and Transportation as of Feb. 25, 2008.

52 APCPA, § 3.

53 APCPA, § 4(a).

54 APCPA, §§ 4, 5.

55 APCPA, § 7.

56 See 15 U.S.C. § 41-58. The Federal Trade Commission Act prohibits the acts or practices that are unfair or deceptive. According to the FTC, an unfair act or practice is one which is injures consumers, or is likely to cause an injury; the injury is not reasonably avoidable by the consumer; and the act or practice has no countervailing benefit. A deceptive practice is an act or a practice that a misrepresentation of a material fact.

57 18 U.S.C. § 1030.

58 FTC v. Seismic Entertainment et al, FTC File Nos.: 042 3142; X05 0013.

59See FTC v. Seismic Entertainment, Complaint at http://www.ftc.gov/os/caselist/0423142/041012comp0423142.pdf.

60 FTC v. Zango et al., FTC File No. 052 3130

61 See FTC v. Zango, Complaint (filed Nov. 5, 2006) (http://www.ftc.gov/os/caselist/0523130/0523130cmp061103.pdf)

62 FTC v. Odysseus Marketing, FTC File Nos.: 042 3205; X050069.

63 FTC v. Odysseus Marketing, , complaint (filed October 5, 2005) (http://www.ftc.gov/os/caselist/0423205/050929comp0423205.pdf).

64 Remarks of Deborah Platt Majoras, Chairman, Federal Trade Commission, Anti-Spyware Coalition Public Workshop, Feb. 9, 2006, http://www.ftc.gov/speeches/majoras/060209cdtspyware.pdf.

65 Remarks of Ari Schwartz, Deputy Director of the Center for Democracy and Technology, “Consumer Protection Issues”, before The Financial Services and General Government Subcommittee of the House Committee on Appropriations, February 28, 2007, http://www.cdt.org/privacy/20070228schwartzftc.pdf.

66 These include Alaska, Arizona, Arkansas, California, Georgia, Indiana, Iowa, Louisiana, Nevada, New Hampshire, Rhode Island, Tennessee, Texas, Utah, Virginia and Washington.

67 See L. Elizabeth Bowles, “Survey of State Anti-Spyware Legislation,” The Business Lawyer, Vol. 63, November 2007.

68 Consumer Protection Against Computer Spyware Act, Cal. Bus. & Prof. Code § 22947.

69 Cal Bus & Prof Code § 22947.2 through 22947.4 (2007).

70 See e.g., Arkansas Consumer Protection Against Computer Spyware Act, A.C.A. § 4-111-103(b)(1)(C) (2007).

71 See e.g., Cal Bus & Prof Code § 22947.4(b) (2007).

72 See e.g., Arizona Computer Spyware Act, A.R.S. § 44-7304 (2007).

73 See e.g., A.C.A. § 4-111-104 (2007).

74 See e.g., Georgia Computer Security Act O.C.G.A. § 16-9-155(b)(1) (2007)

75 See e.g., Computer Crimes Act, Va. Code Ann. § 18.2-152.3 (2008).

76 See e.g., Louisiana Computer Spyware Act, La. R.S. 51:2014(C) and (D) (2007).

77 Spyware Control Act, Utah Code Ann. § 13-40-101, et seq. (2007)

78 Id. at § 13-40-102(8)(a) (2007).

79 Id. at § 13-40-201 (2007).

80 WhenU.com Inc. v. Utah, Case No. 040907578 (Utah Dist. Ct. June 22, 2004).

81 U.S. Const. art. I, § 8, cl. 3.

82 Oklahoma Tax Comm’n v. Jefferson Lines, 514 U.S. 175, 179 (1995).

83 Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 328 (1977).

84 Brown-Forman Distillers Corp., 476 U.S. 573, 578 (1986); Granholm v. Heald, 544 U.S. 460, 479 (2005).

85 Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

86 Unlawful Acts Regarding Computers and Information Services, Nev. Rev. Stat. Ann. § 205.473(2)(b) (2007).

87 See, e.g., Computer Crimes Act, Va. Code Ann. § 18.2-152.4 (2008).

88 http://www.consumersunion.org/campaigns/learn_more/003484indiv.html

89 “Minnesota Gives PCI Rules a Legal Standard” (May 28, 2007) (http://computerworld.com/action/article.do?command=viewArticleBasic&taxonomyName=standards_and_legal_issues&articleId=293804&taxonomyId=146)

90 Minn. Stat. § 325E.64 (2007).

91 Thomas J. Smedinghoff, It's All About Trust: The Expanding Scope Of Security Obligations In Global Privacy And E-Transactions Law, 16 Mich. St. J. Int'l L. 1 (2007).

92 Until noted otherwise, prepared by Jon Garon

93 Until noted otherwise, prepared by Emile Loza

94 See MySpace, Inc. v. Wallace, 498 F. Supp. 2d 1293, 1299 (C.D. Cal. 2007) (citing 15 U.S.C. §§ 7704(a)(1), (3), (5) and (b)(2)).

95 See id. (citing Cal. Bus. & Prof. Code § 17529.5, §§ 22984 et. seq. & §§ 17200 et seq., and §§ 17500 et seq.).

96 The Court also dispatched evidentiary objections going to the relevant facts. It nullified testimony of Wallace’s purported expert, sustaining MySpace’s objections and overruled other evidentiary objections in summary fashion. See id. at 1298-99.

97 See id. at 1298 (citations omitted).

98 See id. at 1300.

99 See id. at 1299 (citations omitted).

100 See id. at 1299-1301 (citations omitted).

101 Id. at 1299 (quoting 15 U.S.C. § 7702(6)).

102 Id. at 1299-1300 (quoting 15 U.S.C. § 7702(5)).

103 Id. at 1300 (quoting 15 U.S.C. § 7702(4)).

104 See id. at 1300 (citations omitted). The Court also opined MySpace would still have a right to private action under the narrower interpretation of the Act advocated by Wallace because the recipient email addresses were resident at unique uniform resource locators, or URLs, and required routing as the Act. Id. at 1300-01.

105 See id. at 1301-04 (citations omitted).

106 See id. at 1302 (citing Cherosky v. Henderson, 330 F.3d 1243, 1246-47 (9th Cir. 2003); United States v. Ironworkers Local 86, 443 F.2d 544, 552 (9th Cir. 1971); Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348, 358 (4th Cir. 2006)).

107 See id. at 1304-05 (citations omitted).

108 See id. at 1301 (citations omitted).

109 Id. at 1301-02 (citations omitted).

110 Id. at 1303; see also id. at 1306.

111 Id. at 1303 & 1306.

112 See id. at 1302-03.

113 Id. at 1303 (quoting 15 U.S.C. §§ 7702(2)(A) & 7704(a)(5)(A)). Regulations promulgated under the CAN-SPAM Act further refined the definition of “primary purpose” to mean an email message “consist[ing] exclusively of” the commercial advertisement or promotion. Id. (citing 16 C.F.R. 316.3(a)(1)) (emphasis supplied).

114 See id. at 1304.

115 See id.

116 See id.

117 See id. at 1305.

118 See id. at 1304-05.

119 See id. at 1305-06 (citations omitted).

120 Id. at 1305-06 (citations omitted).

121 See id. at 1306.

122 See id. at 1306.

123 See id. at 1306.

124 See id. at 1306.

125 See id. at 1308-09.

126 See id. at 1306-08.

127 See id. at 1308-09.

128 See generally Emile Loza, Internet Fraud: Federal Trade Commission Prosecutions of Online Conduct, 23 Communications & the Law 55 (2001).

129 Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005) (Order Granting Plaintiff’s Motion for a Preliminary Injunction) & Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment, 2007 U.S. Dist. LEXIS 57472 (N.D. Cal., filed Aug. 6, 2007).

130 This organization later changed its name to Entertainment Merchants Association. See Media Coalition, Inc. (visited Mar. 12, 2008).

131 See Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034, 1038 (N.D. Cal. 2005) (citing Assembly Bill 1179 (to be codified at California Civil Code §§ 1746-1764.5)).

132 See id. at 1039.

133 See id. at 1037.

134 See id. at 1043-46.

135 See id. at 1046-47.

136 See id. at 1040-42.

137 See id. at 1043 & 1047-48.

138 See Video Software Dealers Ass’n v. Schwarzenegger, Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment (N.D. Cal., filed Aug. 6, 2007). The Court also struck the improper amicus filings by Common Sense Media. See id. at p. 4.

139 See id. at pp. 4-6.

140 See id. at p. 6.

141 Id. at p. 6 (quoting 2005 Cal. Legis. Serv. Ch. 638 (A.B. 1179)(West) § 1).

142 Id. at p. 6 (quoting 395 U.S. 444, 447 (1969) (per curiam)).

143 Id. at p. 7 (citations omitted).

144 See id. at pp. 7-8 (citations omitted).

145 Id. at p. 8 (quoting People v. Winters, 294 N.Y. 545, 549-50, 553 (1945)).

146 See id. (citations omitted).

147 See id. at pp. 8-9.

148 See id. at pp. 8-12 (citations omitted).

149 See id. at p. 9.

150 Id. at p. 12 (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)).

151 See id. at pp. 12-16 (citations omitted). Because it had held the Act to be unconstitutional, the Court did not reach the labeling issue. See id. at p. 16.

152 Eros, LLC v. Robert Leatherwood & John Does 1-10, Dkt. No. 8:07-CV-0115-SCB-TGW (M.D. Fla., filed July 3, 2007). This case was originally filed under the caption, Eros, LLC v. John Doe.

153 See generally 15 U.S.C. §§ 1125 et seq.

154 See Eros, First Amended Complaint 7-11 (filed Oct. 24, 2007).

155 See id.

156 See id.

157 See id., Second Decl. of Kevin Alderman, para. 4 (filed Sept. 4, 2007).

158 The article does not equate the SexGen bed to one of the two products called out in Eros’ original or first amended complaint.

159 Eric Reuters, SL Business Sues for Copyright Infringement (July 3, 2007), attached as Exhibit 1 to Second Decl. of Kevin Alderman, supra note 4.

160 See Eros, Second Decl. of Kevin Alderman, paras. 6-12 (filed Sept. 4, 2007).

161 See id., Docket Rep’t.

162 See generally id., First Amended Complaint.

163 Eros bases its alleged trademark use in interstate commerce on its sale of objects within Second Life to users throughout the United States and in many foreign countries. See id. at para. 12.

164 Summary prepared by Brian Kudowitz

165 In Gordon v. Virtumundo Inc., No. 06-204 (W.D. Wash. May 15, 2007), the district court held that a small email account provider that operated using a commercial web-hosting provider was not an "Internet access provider" and therefore did not have standing under CAN-SPAM.

166 Id.

167 Summary prepared by Jennifer Bisk

168 Summary prepared by Michael Cherskov

i





Download 419.52 Kb.

Share with your friends:
1   2   3   4   5   6   7




The database is protected by copyright ©ininet.org 2024
send message

    Main page