Information Law

David M. Duree has more than 40 years experience in handling cases involving Internet and Intellectual Property Issues. With offices in St. Louis, Mo. and O'Fallon, Ill., he also handles cases in numerous other states.

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Law updates about web technology law, information law, internet law, digital disk law, internet privacy law, internet trademark law, internet trade secrets and internet technology law. Internet Lawyer.

These materials are in reverse chronological order. New material is added at the top. Older material is inserted in the correct chronological spot. Overruled, modified and/or obsolete material is deleted, revised, consolidated and/or moved, when appropriate. Citations preceded by <>are linked to the complete court opinion. (NOTE: Some linked court sites are not always available).

AT & T acquired TCI, a cable t.v. service provider, to facilitate providing broadband internet high speed access through its @Home subscriber service on TCI'S cable network. Cable service providers must obtain approval of the local franchising authorities where required by local franchising agreements, 47 U.S.C. 537. Internet service providers (ISPS), which connect their subscribers to the internet through leased telecommunications lines, are not subject to regulation as telecommunications carriers; ISPS provide "information services" under the telecommunications act, 47 U.S.C. 151, 541, 522,et seq. The service between the ISP and the internet backbone, generally provided over leased telecommunications lines is ,however, a telecommunications service governed by the act. AT & T's @Home broadband internet service combines the services usually provided by the ISP and the telecommunications carrier, through the use of the cable system it acquired from TCI. While AT & T required approval of the local franchising authority to provide cable t.v. services, it did not require that approval to provide broadband internet service in the same area through @Home. Since the FCC and Department of Justice approved the merger of AT & T and TCI, a local franchising authority could not require AT & T to provide access to its broadband internet cable network to local ISPS as a condition to providing approval to AT & T as the local cable service provider. The FCC has exclusive authority to require broadband cable internet service providers to provide "open access" to their networks, and it has declined to do so, in part because of the competing DSL high speed technology provided by telecommunications carriers over telecommunications lines and the prospect of development of other competing technology. The judgment requiring AT & T to provide open access to local ISPS was reversed. <>AT & T Corporation, et al., v. City of Portland, et al., 216 F.3d 871, (2000 WL 796708) (9th Cir.6-22-2000)

The first female pilot for Continental Airlines filed a claim for sexual harassment under Title VII, eventually recovering more than $600,000.00. Blakey v. Continental Airlines, Inc. 992 F.Supp 731 (D.C.N.J. 1998). While the sexual harassment suit was pending, some of her fellow employees posted allegedly harassing and defamatory messages about her on the Employees' internet bulletin board, which could be read by about 250 Continental employees in New Jersey, and throughout the country. These fellow employees, defendants, thereby submitted to personal jurisdiction in New Jersey, where plaintiff was stationed at the time. Even though the bulletin board messages were not posted in plaintiff's actual worksites, there was sufficient nexus between the internet bulletin board and Continental Airlines, to permit plaintiff to proceed on her complaint against her employer and fellow employees for defamation and related torts and for violation of the New Jersey Law against Discrimination, N.J.S.A. 10:5-1 et seq. Judgment of dismissal on the pleadings reversed. <>Blakey v Continental Airlines, Inc., 751 A.2d 538 (N.J. Sup. Ct. 6-01-2000).

Arbitration clauses in point and click electronic contracts are enforceable notwithstanding the FAA (9 U.S.C. 4) requirement of a "written" agreement. An internet software company requires internet users to accept its electronic license agreement before downloading its free software, which permits users to download, record, and play music. The license agreement required arbitration in the state of Washington, applied the law of Washington and provided that the state and federal courts of Washington have exclusive jurisdiction. The Defendants moved to stay the litigation pending arbitration and to enforce the forum selection clause. The court stayed the case pending arbitration under 9 U.S.C. 3, and did not reach the forum selection issue, applying the state law of Washington under Illinois choice of law rules and Seventh Circuit federal law instead of the conflicting Ninth Circuit federal law that would have been applied in Washington federal courts. Lieschke et al., v. Realnetworks, Inc. , 2000 WL 198424 (N.D.Ill. 2-11-2000) and In re: Realnetworks, Inc, Privacy Litigation, 2000 WL 631341, ___ F.Supp.2d ___ (No. 00-C-1366) (N.D.Ill. 5-8-2000)

A company which sold products in Missouri via telephone solicitations and the internet by selling "beer-of-the-month club" memberships thereby submitted to personal jurisdiction in Missouri, under internet technology law. The Missouri Supreme Court agreed to review the case on June 27, 2000; <>State ex rel. Nixon v. Beer Nuts, LTD., ____ S.W. 3d _____, 2000 WL 270671 (Mo. App. 2000)

The domain name "Sportys.com" was confusingly similar to the defendant's use of "Sporty's" in mail order sales. The Court found that plaintiff's use of the domain name was in bad faith and in violation of internet trademark law. <>Sporty's Farm v. Sportsman Market, 202 F. 3d 489 (2nd Cir. 2000)

A preliminary injunction was issued against several web sites that distributed software allowing users to copy DVD (Digital Versatile Disks) movies, under web technology law. The Court found the defendants' conduct would likely be held to violate the Digital Millennium Copyright Act, 17 U.S.C. § 1201 (a) (2), extablishing a rule of digital disk law. Universal City Studios, Inc. v. Reimerdes, 82 F. Supp. 2d 211 (S.D.N.Y. 2000)

A complaint which request declaratory and injunctive relief against an internet service provider for alleged violations of the racketeer influenced and corrupt organization act (RICO), for violations of internet technology law, including the communications act, and for false advertising, fraud and deceit and unfair business practices did not sufficiently allege the predicate acts necessary to establish a pattern of racketeering activity (at least two acts within ten years of each other). The internet server was also not considered a "common carrier" under the communications act, 47 U.S.C. § 153, 201, 202, 223, 551 or the telecommunications act; 47 U.S.C. § 230. The request for a declaratory judgment did not provide an independent basis for federal jurisdiction, and the internet server provider was not considered to be a "state actor" for purposes of the constitutional claims, resulting in an absence of federal jurisdiction over the requests for declaratory and injunctive relief. Since the complaint failed to allege infringement of copyright claims, the allegations that the internet server violated the copyright act, 17 U.S.C. § 101 et seq., by transferring and receiving copyrighted material, failed to state a claim establishing federal jurisdiction. The plaintiffs, internet subscribers who claimed they were misled by the internet server's advertising about rates, service charges, billing practices and the delay in connecting and disconnecting from the internet, failed to allege copyright infringement, under internet copyright law, or violation of any other federal Statutes. The case was dismissed for failing to state a federal claim and the absence of diversity jurisdiction for the state claims. <>Howard v. America Online, Inc. 208 F.3d 741, ( 2000 WL 320396) (9th Cir. 2000)

The contract between a michigan automobile dealership and an online service, which referred potential car buyers to the dealership, was not a franchise contract covered by the the Michigan Franchise Investment law, M.C.L. 445.1502(3). While the dealership paid a franchise fee, it did not offer goods or services under a marketing plan implemented by the online company, and it did not offer goods or services substantially associated with the online company's service or trade marks. <>Jerome-Duncan,Inc. v. Auto-By-Tel., LLC, et al., 176 F.3d 904 (6th Cir. 1999)

The copying of anticopying computer software for the purpose of designing a program to defeat the anticopying software program did not violate the copyright of the producer of the anticopying software, under internet copyright law, the computer software copyright Act of 1980, 17 U.S.C. § 117; it also did not constitute contributory infringement and did not violate the Louisiana software license enforcement act. Vault Corporation v. Quaid Software Limited, 847 F. 2d 255 (5th Cir. 1988);<>Ringgold v. Black Entertainment Television, Inc., 126 F. 3d 70, 150 A.L.R. Fed. 813 (2nd Cir. 1997); <>Alcatel USA, Inc. v. DGI Technologies, Inc. v. DGI Technologies, Inc., 166 F. 3d 772 (5th Cir. 1999)

An entertainment-industry information provider was entitled to an injunction against a video rental store chain where the provider was the senior user of the "MovieBuff" trademark, under internet trademark law. The video chain could not use the term "MovieBuff.com" on its internet web site as a result of its earlier use of the trademark "The MovieBuff's Movie Store." Use of the "MovieBuff.com" domain name would create likelihood of confusion which is actionable under the Lanham Act. <>Brookfield Communications, Inc. v. West Coast Entertainment Corporation, 174 F. 3d 1036 (9th Cir. 1999)

Private businesses acting under clearly articulated government programs or providing quasi-governmental functions, are not liable for violating antitrust law or internet technology law. Network Solutions, Inc. is a private company that registers internet domain names in the United States under a contract with National Science Foundation, an independent agency of the United States Government that supports the development of the internet and facilitates its use. In this capacity, Network Solutions Inc. may not be found liable for violating the antitrust laws. Domain names are not free speech protected by the First Amendment. Beverly v. Network Solutions, Inc., 49 U.S.P.Q. 2d 1567 (N.D. Cal. No. C-98-0337-VRW 1998); Thomas v. Network Solutions, Inc. and National Science Foundation, 2 F. Supp. 2d 22 (D.D.C. 1998); PGMedia v. Network Solutions, Inc. and National Science Foundation, 51 F. Supp. 2d 389 (S.D.N.Y. 1999)

Internet email Law, Internet Patent Law, Information Service Provider Law, Internet Trademark Infringement, Internet Service Provider Law, Domain Registration Law, Service Provider Law, Internet Personal Jurisdiction.

The District Court abused its discretion in failing to approve a consent antitrust decree between the United States and Microsoft under the Tunney Act, 15 U.S.C. § 16 (e). Microsoft had been charged with maintaining a monopoly by requiring original equipment manufacturers to pay Microsoft a royalty for each computer sold, containing a particular microprocessor, whether or not the original equipment manufacturer had included a Microsoft Operating System with that computer. Subsequent antitrust claims regarding Microsoft's browser are still pending. United States v. Microsoft Corporation, 159 F.R.D. 318 (D.D.C. 1995), reversed, <>56 F. 3d 1448 (D.C. Cir. 1995); United States v. Microsoft Corporation, 980 F. Supp. 537 (D.D.C. 1997), reversed,<>147 F. 3d 935 (D.C. Cir. 1998)

Under internet trademark law, a squatter may not secure domain names using well established trademarks and tradenames held by others, then deny use of the domain name to the owner of the trademark. Such use of the domain name infringes the trademark rights of the trademark holder and dilutes the value of the trademark. Panavision Intern, L.P. v. Toeppen, 945 F. Supp. 1296 (C.D. Cal. 1996), affirmed, <>141 F. 3d 1316 (9th Cir. 1998); Jews for Jesus v. Brodsky, 993 F. Supp. 282 (D.N.J. 1998); Cairns v. Franklin Mint Co., 24 F. Supp. 2d 1013 (C.D. Cal. 1998)

West Publishing Company and Thomson Corporation, the third and first largest publishers of law books and legal research materials proposed a merger. The United States and seven states filed an antitrust action to bar the merger. West also owns Westlaw, an online legal research service. West also claimed copyright protection for its "star pagination" system, which provides for the insertion of numeric symbols in the text of decisions to indicate the equivalent West reporter page break and page number. Star pagination permits an individual to rely on a printed decision not published by West, while retaining the ability to cite to West's national reporter system. After initially disapproving a proposed consent decree to permit the merger, the district court entered a final decree approving the merger, specifically providing that the decree did not confirm West's claims of copyright protection for its star pagination system under internet copyright law. Subsequently, Matthew Bender & Co. and Hyperlaw, Inc. filed declaratory judgment actions seeking a ruling that sales of CD-ROM disks containing compellations of judicial opinions, including star paginations, did not infringe West's copyrights. The second circuit confirmed a New York district court decision holding that West's star pagination system was not entitled to copyright protection because it merely compiled data without contributing sufficient original, creative material to warrant copyright protection under internet copyright law. United States v. Thomson Corp., 949 F. Supp. 907 (D.D.C. 1996); United States v. Thomson Corp., 1997 WL 226233 (D.D.C. 1997); <>Matthew Bender & Co., Inc. and Hyperlaw, Inc. v. West Publishing Co., 158 F. 3d 674 (2nd Cir. 1998); <>Matthew Bender & Co., Inc. and Hyperlaw, Inc. v. West Publishing Co., 158 F. 3d 693 (2nd Cir. 1998)

The defendant committed trademark infringement, under internet trademark law, and violated the federal anti-dilution act by registering a domain name substantionally similar to the plaintiff's registered trademark and then attempting to sell the domain name. Minnesota Mining and Manufacturing Co., v. Taylor, 21 F. Supp. 2d 1003 (D.Minn. 1998)

Computer methods of doing business are statutorily protectable and patentable interests. <>State Street Bank and Trust Co. v. Signature Financial Group, Inc., 149 F. 3d 1368 (Fed. Cir. 1998)

Internet email Law, Internet Patent Law, Information Service Provider Law, Internet Trademark Infringement, Internet Service Provider Law, Domain Registration Law, Service Provider Law, Internet Personal Jurisdiction.

A manufacturer of a lead detection system was entitled to a preliminary injunction against its competitor, because it was likely to succeed on the merits of its claims that the defendant's internet web site led customers to believe that defendant was also known as the plaintiff and that the two were affiliated, a violation of web technology law. Niton Corporation v. Radiation Monitoring Devices, Inc., 27 F. Supp. 2d 102 (D. Mass. 1998)

A corporation that monitors internal email messages for intra-company communications is not liable, under internet privacy law; the electronic communications privacy act, 18 U.S.C. § 2701 et seq. As a result the defendant was able to disclose to a newspaper email messages from its internal system that were sent from a contractor performing services for the defendant. Andersen Consulting L.L.P. v. UOP and Bickel & Brewer, 991 F. Supp. 1041 (N.D. Ill. 1998)

Operators of an internet web site and its principals were found liable to the internet service provider for sending unauthorized and unsolicited bulk email advertisements to the internet service provider's customers, violating web technology law. The internet web site operators violated the Lanham Act, 15 U.S.C. § 1125, by unauthorized use of the internet service provider's domain name, diluted the value of the domain name, violated the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, violated the Virginia Computer Crimes Act and committed trespass under the common law of Virginia. America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998)

A New York Statute which criminalized using a computer to transmit materials that are "harmful" to minors was held void as an unconstitutional burden on Interstate Commerce. American Library Association v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997)

Portions of the Communications Decency Act of 1996, 47 U.S.C. § 223, which criminalized the knowing transmission of obscene or indecent messages to any recipient under 18 are unconstitutional as content-based blanket restrictions on speech and as facially overbroad in violation of he First Amendment. The constitutionality of the provision prohibiting transmission of "obscene or indecent" communications by means of telecommunications devices to persons under 18 was saved from the facial overbreadth challenge by severing the term "or indecent" from the statute, pursuant to its severability clause. <>Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

An injunction was granted to an internet service provider against providers of unsolicited bulk email (spam) and the injunction requested by the bulk email provider against the internet service provider was denied. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 456 (E.D. Pa. 1996); CompuServe, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997)

The manufacturer of "Zippo" cigarette lighters could not recover under the Lanham Act or under state law against a computer news service which used domain names "Zippo.com" and "Zippo.net" and "Zipponews.com." Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997)

A business physically located in New York that engaged in deceptive and false selling practices through email over the Internet was subject to personal jurisdiction in an action brought by the New York Attorney General and was held liable for consumer fraud and false advertising with respect to both in-state and out-of-state residents, and enjoined from future violations. People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S. 2d 468 (N.Y. 1997)

Appellant filed a compact disc-read only memory (CD-ROM) brief which contained Internet Links to the texts of the cases cited in the brief. The Federal Circuit granted the Appellee's Motion to Strike the brief, establishing a rule of digital disk law. The digital brief also contained hypertext links to the trial transcripts and a video tape deposition. <>Yukiyo, LTD v. Watanabe, 111 F. 3d 883 (Fed. Cir. 1997)

A party defamed by a message on the internet, placed there by a third party, could not recover from the internet service provider, America Online, under 47 U.S.C. § 230 which provides immunity to Internet providers and users for defamatory language placed on the internet by third parties. <>Zeran v. America Online, 129 F. 3d 327 (4th Cir. 1997

A web site which used Playboy's federally registered trademarks "Playboy" and "Playmate" in the background code (meta tags) for its web page infringed Playboy's trademarks by intentionally misleading viewers into believing that the site was connected with Playboy. Playboy Enterprises v. AsiaFocus Int'l, Inc., (unreported) 1998 WL 724000 (E.D. Va. 1998); Playboy Enterprises v. Calvin Designer Label, 985 F. Supp. 1220 (N.D. Cal. 1997)

Posting allegedly defamatory press releases about plaintiff on an internet site established personal jurisdiction. TELCO Communications v. An Apple A Day, 977 F. Supp. 404 (E.D. Va. 1997)

A nonresident's transmission of allegedly fraudulent misrepresentations to a resident through telephone and email messages established sufficient minimum contacts to support personal jurisdiction. Cody v. Ward, 954 F. Supp. 43 (D. Conn. 1997)

Allegedly defamatory email messages and website postings were sufficient to confer personal jurisdiction. EDIAS Software Int'l L.L.C. v. Basis Int'l LTD., 947 F. Supp. 413 (D. Ariz. 1996)

An employee of Computer Associates accepted employment from a competitor, taking with him copies of the computer source code for two versions of the ADAPTER operating system which allegedly violated his employment agreement. Computer Associates filed suit against the competitor alleging copyright infringement and violation of texas state trade secret law. The district court found copyright infringement on one claim and ruled that the federal copyright act preempted the State Trade Law Secret claim. The second circuit reversed on the preemption issue while affirming the part of the judgment providing copyright protection. On remand, the district court held that the Texas 2 year statute of limitations for misappropriation of internet trade secrets applied, was constitutional and not subject to the "discovery" exception. On appeal the Second Circuit certified these questions to the Texas Supreme Court which also held that the 2 year statute of limitations applied, was constitutional and not subject to the "discovery" rule. Computer Associates International, Inc. v. Altai, Inc., 775 F. Supp. 544 (E.D.N.Y. 1991), reversed and remanded, 982 F. 2d 693 (2nd Cir. 1992), on remand, 832 F. Supp. 50 (E.D.N.Y. 1993), questions certified to the Texas Supreme Court by the Second Circuit, 22 F. 3d 32 (2nd Cir. 1994); Texas Supreme Court decision, 918 S.W. 2d 453 (1996)

Point and click contracts (executed electronically over the internet) to pay royalties under "shareware" contracts, to refrain from providing unsolicited email (spam) under an internet provider-subscriber contract and to license software under a "shrinkwrap" contract have all been held enforceable. <>CompuServe, Inc., v. Patterson, 89 F. 3d 1257 (6th Cir. 1996); Hotmail Corp., v. Van$ Money Pie, Inc., 47 U.S.P.Q. 2d 1020, 1998 WL 388389 (N.D. Cal. 1998); <>ProCD v. Zeidenberg, 86 F. 3d 1447 (7th Cir. 1996)

A web site could qualify as an electronic agent for its owner under the Uniform Commercial Code. An electronic telephone switching system has previously been determined to be an electronic agent for purposes of liability for a telecommunications tariff issued by a state public utilities commission. <>Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 54 Cal. Rptr. 2d 468 (Cal. App. Dist. 4 1996)

Statements about Howard Stern on Prodigy's "Money Talk" computer bulletin board while he was running for governor, were "published" by Prodigy through its agent, the board leader for "Money Talk", but the comments about a public figure fell within the "incidental use" exception to liability under New York law applicable to commercial misappropriation. Howard Stern v. Delphi Internet Services Corp., 165 misc. 2d 21, 626 N.Y.S. 2d 694 (1995)

The computer copying of red book car prices was a copyright violation, not a lawful copying of "mere facts". The car price data compilation was held to be an "original work of authorship". The "idea merger" and "public domain" defenses were rejected. CCC Information Services, Inc. v. MacLean Hunter Market Reports, Inc., 44 F. 3d 61 (2nd Cir. 1994)

A copyrighted computer program is "copied" for purposes of copyright law when the computer program is transferred from a permanent storage device to a computer's Random Access Memory (RAM). A computer service company which loaded copyrighted software into RAM and was then able to view system errors and diagnose problems with the computer, was engaged in copying for copyright infringement purposes and was misappropriating internet trade secrets. MAI Systems Corporation v. Peak Computer, Inc., 991 F. 2d 511 (9th Cir. 1993)

A BBS operator was found liable for files, that his users had posted on his board, of scanned copies made from Playboy Magazine. A copyright infringement occurred, even if the defendant did not know the files were on his board. In this case, however, the defendant had knowledge of the Playboy materials since he had advertised them on his board. Playboy Enterprises, Inc. v. George Frena, 839 F. Supp. 1552 (M.D. Fla. 1993)

Information in the Yellow Pages is unprotected "fact", not entitled to copyright protection. Computer copying and republication of the Yellow Pages is legal. BellSouth Advertising & Publishing Corp. v. Donnelley Information Publishing, Inc., 999 F. 2d 1436 (11th Cir. 1993)

A system of psychological insights is merely "fact" not subject to copyright protection. Arica v. Palmer, 970 F. 2d 1067 (2nd Cir. 1992)

A written license agreement on the package in which software was shipped, following a telephone order, was not part of the parties agreement under § 2-207 of the Uniform Commercial Code, but was a confirmation of the order which therefore could not modify the original, oral, agreement. As a result the limitations on express and implied warranties and the limitation on remedies contained in the "box-top" limited use license agreement were inapplicable as not part of the contract. Step-Dash Saver Data Systems, Inc. v. Wyse Technology, 939 F. 2d 91 (3rd Cir. 1991)

A college student who experimented with a computer virus and inadvertently shut down most of the internet on November 2, 1988 was held criminally liable under the computer fraud act, for unauthorized access to other computers, even though he had no intent to do any damage. United States v. Robert Morris, 928 F. 2d 504 (2nd Cir. 1991)

CompuServe was not liable for libelous statements posted on one of its forums, since it was held to be a distributor, not a publisher, and did not attempt to exercise editorial control over the contents of the information flowing through its network. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)

Information is property. A Wall Street Journal reporter who leaked information to investor friends about what his articles would say concerning the value of certain stocks was convicted of obtaining "property" from the Wall Street Journal by a fraudulent scheme. <>Carpenter v. United States, 484 U.S. 19 (1987)

Private email communications posted on an internet web site and publicly available through the internet did not establish an indictable crime under 18 U.S.C. § 875 ( c ) which prohibits interstate communication of threats to injure another person. The email communications graphically described torture, rape and murder and specifically named a women classmate of the Defendant. The messages, however, did not assert a specific threat against anyone, but spoke in general of "needs" and fantasies. A more specific threat is required to violate the statute. The statutory prohibition against "pure speech" is limited by the free speech protections of the First Amendment. United States v.. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995); <>Watts v. United States, 394 U.S. 705 (1969); United States v. Kelner , 534 F. 2d 1020 (2nd Cir. 1976)

Internet email Law, Internet Patent Law, Information Service Provider Law, Internet Trademark Infringement, Internet Service Provider Law, Domain Registration Law, Service Provider Law, Internet Personal Jurisdiction.