CyberLaw P.C. - Internet Lawyer, Intellectual Property Law Firm

I was recently quoted on the FTC's proposed "Do Not Track" list in the Maryland Daily Record (subscription required). The proposed "Do Not Track" list is a follow-up proposal in light of the success of the "Do Not Call" list. The proposal would allow consumers to notify advertisers that they do not want their personal information shared for online marketing purposes. The article discusses a variety of viewpoints as to the necessity of such regulation and looks at the potential difficulties with implementing such a list.

My quote in the article points out that advertisers' fears about implementation of a "Do Not Track" list are probably a bit overstated. Consumers that are on the "Do Not Call" list are among those least likely to respond to a phone advertisement and being on the "Do Not Call" list is a free way for advertisers to eliminate people least likely to be good telephone sales prospects. I suspect that the same principle will be true of people that actively maintain membership on a "Do Not Track" list.

I am often contacted by potential clients that discover that ostensibly “private” information on social networks, particularly Facebook and Twitter, has become public, often to the potential client’s detriment. The content has often become public because a third-party, including other Facebook or Twitter users, or a third party blog, reposts the information, often in a negative light.

Content of concern to potential clients often includes an inappropriate photograph, or a now-regretful Facebook comment or Twitter post. I also routinely see concerns about direct messages on Twitter or wall-posts on Facebook. In most cases, the potential client asks what can be done to remove the offending content.

Unfortunately, there is usually little chance to remove such content because there is no legal basis on which to base demands for removal. Information that a user generates and publicly posts is generally not legally protected from further dissemination or commentary, except in very special cases where other legal principles such as copyright protection, false light or defamation may apply. If you have questions about your specific situation, contact a privacy attorney here at CyberLaw PC.

Potential clients are often frustrated to hear that opportunity for removal is limited and ask what can be done to prevent future scenarios. I generally offer three main tips to such potential clients:

First, you should always assume that ANY content you post or share on the Internet can become public. Whether it is e-mail, a photograph, a video or simple text, any document shared digitally, even amongst friends, can often find itself becoming viral, replicated thousands of times as it is shared via e-mail and other electronic means. Search for Karen Owen’s “List”, for one such example of an unintended viral consequence.

Second, I generally do not recommend that you issue any type of takedown notice unless you are confident that you have a colorable legal justification for doing so. Individuals that were willing to post the original content in a negative light are quite likely to post your takedown notice as well, compounding the problem. More importantly, there is little chance that the content will be removed as a result of the takedown notice.

Finally, I strongly recommend that EVERYONE that maintains any type of Internet presence register and develop the .com version of their full name. For example, if your name is John Smith, I would recommend that you register JohnSmith.com. If your name is similarly common to John Smith, you may want to use your profession, location or middle initial or name. For example, AttorneyJohnSmith.com or JohnSmithWashingtonDC.com, or JohnMSmith.com.  Prominent individuals at start up companies or firms with strong figure heads may also want to do the same.  

Once the name is registered, be sure to occasionally post newsworthy information about yourself using simple blogging software such as Wordpress or Joomla. In most cases, you website will rise very quickly to the top of the search results when people search for you by name and will give you the opportunity to have the opportunity to share “your side of the story” as to any criticism you receive for uncontrolled content or other issues that may arise.

Many people, particularly professionals such as doctors, lawyers, accountants and journalists, will receive some type of negative online attention, warranted or not, at some point in their lives. While an unfortunate reality, taking steps to maintain control of your content and being prepared to proactively respond to criticism makes good sense in both a personal and business context.

CyberLaw P.C. recently launched a new website, available at USCopyrightGroupDefense.Com, aimed at providing information about U.S. Copyright Group and its copyright infringement cases against numerous John Doe defendants. The site features general information about U.S. Copyright Group, including details about the parties, ISPs and works involved in many of its cases, most of which are filed in Washington, D.C. The site provides simple and straightforward information about U.S. Copyright Group cases, including possible defenses.

The site also advertises the availability of a low-cost individual phone consultation option for U.S. Copyright Group defendants. The phone consultation is always with a copyright attorney with defense experience against U.S. Copyright Group. The offer is designed to assist individual defendants, many of whom may not be entirely familiar with the legal process or copyright law, in understanding their individual case and evaluating options for best handling the matter in a cost-effective way.

I’m a bit late to discuss this, but I aim to give it appropriately detailed attention now. In Charter Communications, Inc. v. CK Ventures Inc. / Charterbusiness.com the Hon Neil Brown QC, a respected UDRP Panelist, cited my prior post on the potential applicability of laches as a defense to a UDRP complaint:

This panelist was part of a majority in Board of Trustees of the University of Arkansas v. FanMail.com, LLC, WIPO Case No. D2009-1139 that felt that there is scope for looking again at the assumption that laches has no part to play in UDRP proceedings, a decision that has been the subject of at least one commentary at “www.cyberlawonline.com” and which may stimulate some debate.

My article to which the Hon. Neil Brown specifically refers is entitled “A Potential New Defense Under UDRP.”

The Charterbusiness.com matter involved a case where the complainant had waited approximately seven years to file its complaint. While recognizing that laches “is not generally recognized under the Policy” Respondent, correctly in my view, raised a laches defense. The majority rejected the defense, citing decisions in The E.W. Scripps Company v. Sinologic Industries and Tom Cruise v. Network Operations Center / Alberta Hot Rods. Panelist Brown issued a separate opinion. Notably, he opined:

Without going into it in detail here, it may be time for a closer examination of [laches] and whether it is appropriate to exclude it as a defence in cases where the complainant has waited years before filing a complaint.

For better or for worse, a laches defense continues to be a topic of discussion in UDRP decisions. As a result, two questions arise. First, does such a defense make sense in a UDRP context? Second, what is a rational defense practitioner to do?

On the first issue, I am of the opinion that a laches defense, or some related “time-limit” protection, such as a statute of limitations, makes sense in a UDRP context. The present policy effectively allows a complainant to wait for an eternity before filing a case. While there is certainly some unfairness to a respondent in such situations, there is also the added potential problem of “spoliation” of evidence. Furthermore, the preclusion of a laches defense (or a related statute of limitations) has the effect of failing to motivate a mark holder to pursue the action in a timely manner. For example, an unscrupulous mark holder might take advantage of an unsuspecting domain owner by allowing development of the domain prior to the filing of a complaint and potential seizure of the name.

On the other hand, I certainly appreciate the counterarguments that the UDRP policy does not specifically provide for a laches defense or that the specific factual inquiries may be problematic in the context of an arbitration proceeding that is designed to favor efficiency.

In my view, however, the implementation of a laches defense would not be a terrible hindrance to the goals of an efficient arbitration proceeding. In many cases the inquiry could be almost as simple as calculating the time between the registration date of the domain name and the date the complaint was filed. Furthermore, arbitrators regularly decline to reach certain conclusions about, for example, potential trademark infringement or unrelated business disputes when the facts of the matter exceed the scope of the policy. In the end, I see little reason that a laches defense could not be considered in a UDRP context when the circumstances warrant.

The second issue, of particular interest to practitioners, requires us to consider the appropriate course of action when it comes to a UDRP defense. I’m of the opinion that when you or your client has a colorable laches defense, it is proper to raise it. While I appreciate that laches is “not generally recognized under the Policy,” it is also clear enough that the defense of laches is at least “in play.” UDRP respondents would be wise to use that status to their advantage when appropriate.

Recently introduced legislation entitled "The Main Street Fairness Act" seeks to require online retailers to collect sales tax for the benefit of states on most online purchases. Internet Retailer recently examined the bill in some detail. CyberLaw PC attorney Eric Menhart is quoted in the piece, entitled "Online sales tax proposed in Congress." Eric was asked if the recently proposed legislation, introduced by Rep. Bill Delahunt (D, MA) had a decent chance of success: "You need a decent majority of states as members of the SST,” he says. “Until you have that, it will be very difficult to get enough Congressional attention and support for this legislation.”

Eric is the author Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue. Published in 2007 by the Journal of State Taxation, the article is an in-depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions. Eric also spoke on similar topics at the 2010 Internet Retailer Conference and Exhibition in Chicago, IL.

The recent UDRP decision concerning “razorbacks.com” caught my eye due to a relatively comprehensive panel discussion on the issue of laches (pronounced: ˈla-chəz) under the UDRP.

Laches in law is a defense that calls into question the complaining party’s good faith in bringing its complaint in a untimely manner. A defendant asserting laches argues that a plaintiff that delays in asserting its claims, to the detriment of the defendant, should not be entitled to recover on its claims.

In “razorbacks.com” the Panel noted that “a majority of the Panel (Messrs. Badgley and Brown) is prepared to acknowledge the possible applicability, in appropriate and limited circumstances, of laches in a case under the Policy.”

The Panel supported their decision in several ways. First, the Panel notes that Rule 15(a) of the UDRP provides that “a panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”

The Panel also addressed previous decisions addressing and dismissing a laches defense under the Policy. First, the Panel addressed whether laches fell within the “‘catchall’ language of Rule 15(a) because, strictly speaking, it is a principle of equity and not law.” Panelists Badgley and Brown disagreed, noting that in many jurisdictions, the “sharp line between law and equity has been blurred if not effaced.” Panelists Badgley and Brown also found that concerns about intense factual inquiry in laches analysis “might be no more difficult than disposition of other questions that routinely come before UDRP panelists.”

In the end, the majority of the Panel did not decide the “case on the basis of a laches defense,” but whether “characterized as laches or not, the considerable delay on the part of Complainant in bringing the Complaint militates against its success in this proceeding.” The Panel went on to deny the relief sought by Complainant.

While the Panel chose their words carefully, the implication seems clear: UDRP respondents that have a colorable laches defense would be wise to raise it in their responses under the Policy. The Panel seems to be inviting laches defenses in the hopes that the issue will become more salient in the minds of other panelists. While there is no guarantee that future panelists will agree with the razorbacks.com Panel, this decision has unquestionably presented an open invitation for future laches defenses under the UDRP.

A recent decision by the District of Columbia Court of Appeals addressed whether a private right of action under the Telephone Consumer Protection Act (TCPA) required a separate act of enabling legislation. The Court found that private causes of action may be brought in the Washington D.C. Superior Court under the Act without the need for enabling legislation. CyberLaw PC attorney Eric Menhart was on the brief for the prevailing appellant. Read the full text of the opinion: Portuguese American Leadership Council of the United States, Inc. v. Investors’ Alert, Inc. No. 04-CV-1187 (D.C. 2008).

In its decision, the Court finds that the TCPA provides that a “person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State . . . an action based on a violation” of the Act. The trial court interpreted the “if otherwise permitted” language in the TCPA to mean that before a private right of action can be exercised, a state must “opt in” through enabling legislation that allows the lawsuits to proceed.

The opinion notes that the language “if otherwise permitted by the laws or rules of court of a state” in the TCPA appears to refer to the neutral general jurisdictional and procedural laws and rules governing each state’s court system. Second, the Court notes that rulings by the Federal Communications Commission support the view that no enabling legislation is necessary. Third, the D.C. Court of Appeals finds that a majority of state courts hold that enabling legislation is unnecessary to make the TCPA’s private action provision enforceable in state courts. Finally, the court refers to the legislative history of the TCPA to further support its ruling.

The ruling brings D.C. to the same result that all other reviewing states have reached: allowing a private right of action under the Telephone Consumer Protection Act.

Everyone wants great value when they spend money. The same is true when it comes to law firms and legal services.

Occasionally, clients have questions about hourly billing and want to know how to keep their costs as low as possible without sacrificing the quality professional services to which they are accustomed. This short article is intended to answer some of those questions and offers tips to clients to assist in keeping their costs as low as possible. Remember, this memo is intended to be general information. The retainer agreement with your attorney or law firm sets out the particular terms of your legal or business services agreement with your lawyer.

Hourly Billing

Lawyers and staff often bill by the amount of time spent working on your legal or business matters. This is called “hourly billing” or “timed billing.” The tasks for which attorneys and staff will bill on an hourly basis are included in your individual retainer agreement. Generally, attorneys and staff will bill at their prevailing hourly rate for any time that they spend working on your matter. The prevailing hourly rate for your matter is usually contained in your retainer agreement with your lawyer.

Usually, attorneys and staff bill their time in 1/10 of an hour increments which computes to billing in six minute increments. Alternatively, your lawyer may bill his or her time in 1/4 of an hour increments, which computes to 15 minute increments. By billing in such small increments, attorneys are able to keep costs as low as possible for the client, while still using an accurate and readable record keeping system.

Hourly billing is fair to both the attorney and the client because the attorney only bills the client for the actual time assisting the client and the client is not billed for more than the reasonable amount of time spent by the attorney or staff member. Every court and bar association in the United States approves of hourly billing as a fair way to record the value of an attorney or staff person’s services for most matters.

Clients, especially clients that are not used to working with an attorney or law firm, occasionally express concern about hourly billing, especially when the client is used to receiving a tangible object, such as a piece of furniture, a new computer, or a new pair of shoes when spending money.

It is important to remember that attorneys and support staff do provide a great deal of value by virtue of performing work necessary to assist you with your legal or business problem. Attorneys are licensed professionals because they spend substantial time learning about the law, maintaining professional integrity and earning experience that can help you achieve the best possible result for your legal or business matter. While you will occasionally receive tangible goods as a result of your attorney’s work, such as a contract, legal pleading, or memorandum, it is also important to understand that advice provided over the phone, via e-mail or in a client meeting is also valuable use of the attorney’s time.

Because an attorney only has his or her time and expertise to “sell,” the attorney must bill for time spent on a matter, even when it may only be a short period of time spent on the matter. This is because any time spent on your matter could have been spent earning fees helping another client or other valuable use of the attorney’s time.

Attorneys are professionally obligated to accurately report their fees and time spent to the client. Attorneys will only bill you for the reasonable time spent on your matter.

Keeping Client Costs Low

Attorneys are always willing to assist their clients in a diligent and professional manner. However, clients can make changes in their behavior that will help to keep their costs low. Here are some general tips for keeping your hourly billing invoices as low as reasonably possible:

Consolidate Questions: Many clients will call their attorney anytime a question comes up. While most attorneys are more than happy to take your calls as their schedules allow, many “quick questions” via phone, e-mail, or personal visit can lead to higher costs for the client, because the attorney needs to divert her attention from one matter to another. Instead, consider writing down any non-emergency questions and call when you have several questions at once. This will allow the attorney to focus on your matter and likely answer the questions more efficiently than if the questions were asked via several separate phone calls or visits.

Communicate via E-Mail: E-mail has several advantages over phone or letters. First, e-mail is easier for the attorney to file and record, which assists the attorney in efficiently answering your present and future questions. Second, the attorney can be sure to have the answer by the time he or she responds, compared to a phone call where the client may catch the attorney when the client’s file is not immediately available to the attorney. Like telephone calls, try to save multiple questions and put them all into one e-mail, so your attorney can answer all your questions at once.

Respond to Questions and Inquiries in a Timely Manner: Your attorney will likely have questions for you throughout his or her work on your legal matter. Just as your attorneys will do for you, it is important that you respond to any requests as quickly as possible. Forcing a lawyer to make several attempts to get in touch with a client increases costs.

Review Materials from Your Attorney Carefully: Your attorney will typically provide copies of the important documents in your matter, such as your retainer agreement, your invoices, and other important documents such as pleadings or contracts. Reviewing your copies carefully costs you nothing and can often assist you in answering your questions without having to contact your attorney.

Remember that you are always free to contact your attorney, whether you have one question or many, and he or she will respond within a reasonable amount of time.

Conclusion

While costs can be controlled to some extent with the tips above, remember that your attorney’s primary interest and duty is in protecting your legal interests. He or she must take all the procedural steps necessary to fully represent you. Implementing the practices recommended in this article allows a client to reduce the costs within his or her control, but you should always be wary of “going too far” and restricting an attorney’s ability to fully represent your legal interests.

CyberLaw P.C. attorney Eric Menhart was recently quoted in a Forbes.com article entitled “Web Sales Tax Looms.” The article discusses the potential for additional sales taxes on online transactions, particularly in light of dwindling state budgets.

Menhart is the author of the article “Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue,” published in 2007 by the Journal of State Taxation, which was an in depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions.

In a move that should surprise no one, Google and Yahoo have “officially” abandoned their proposed Internet advertising partnership.

The proposal was laughable from the start, but the two firms took the public stance that the arrangement could somehow have been “pro-competition.” Antitrust regulators were having none of it. As it became clear that the proposal would not simply slide past regulators Google and Yahoo have likely determined that the façade was no longer worth the trouble and legal fees.

As previously noted, it seems unlikely that either party truly thought this would pass antitrust muster. There were potential latent benefits to each, however, which may have led to the proposal’s birth.

While there was little question the proposal had little chance of success, one might wonder if the Obama victory just hours before the firms’ announcement played a role. There was little hope that an Obama administration would be more willing to allow the deal than the outgoing Bush administration. The election may have been the final proverbial straw on the back of this failed-from-the-start alliance.

The joint advertising deal between Google and Yahoo, previously discussed in CyberLawg, is being delayed as the U.S. Department of Justice Antitrust Division continues its review.

Both Yahoo and Google have correctly taken the “we’re happy to help and comply” public line. Still, there is no question that an antitrust review that needs more time is not good news for the potential bedfellows. The Google CEO’s previous suggestion that Google and Yahoo would move forward before the DOJ even completed its review looks pretty silly at this point.

Another concern: the Executive Branch will have a new leader come January. Regardless of the winner of the presidential election, it is hard to imagine that it will lead to an administration more likely to pass on comprehensive review than the current administration.

Of course, there is some question as to whether Google and Yahoo ever thought this would truly work or if they were both just looking to cool down the speculation that Yahoo would be acquired by Microsoft or another third party. Even in a circumstance where DOJ does block the deal both online ad firms do receive some benefit by maintaining their status quo as the two dominant online advertising firms even while the review is pending.

As this election year heats up candidates in all types of political races are trying to reach likely voters at their doors, on their telephones and on the Internet. In this race for voters you might guess that a candidate’s domain name plays an important role in sharing his or her message with likely voters. What if a candidate’s domain name is already taken by a third party? What if a candidate’s name has already been taken by their opponent? Many of today’s candidates, finally recognizing the importance of a strong Internet presence in races for political office, are facing the reality of this intellectual property concern.

First, candidates may find that an “innocent” third party already has their preferred domain name. A classic example of this was the site “kerryedwards.com” in the 2004 United States presidential election. Kerry Edwards is the name of an individual, who had registered the site for his own personal website. Of course, “Kerry” and “Edwards” were also the two last names of the Democratic presidential candidate, John Kerry, and his vice presidential running mate, John Edwards. While the Kerry political campaign reportedly inquired about the name, Mr. Kerry Edwards declined to sell. Because Mr. Kerry Edwards was using the name for his personal use the Kerry campaign had no legal grounds to obtain the name (whether it would have been a wise political choice is another story entirely).

Sometimes, there are more legitimate infringement issues. In Montana, for example, both major political parties have taken turns at registering the names of an opposing candidate. Candidates who are victims of the practice routinely accuse the respective registrants of infringement. Registrants of the names proclaim that their actions are protected under free speech laws.

Some state legislatures, undoubtedly containing some politicians that were victimized by the practice, have offered legislation seeking to combat the practice. At this time only California has passed such legislation into law. The California Political Cyberfraud Abatement Act defines “political cyberfraud” as:

A knowing and willful act concerning a political Web site that is committed with the intent to deny a person access to a political Web site, deny a person the opportunity to register a domain name for a political Web site, or cause a person reasonably to believe that a political Web site has been posted by a person other than the person who posted the Web site, and would cause a reasonable person, after reading the Web site, to believe the site actually represents the views of the proponent or opponent of a ballot measure.

Effectively, California’s law seeks to provide trademark protection to political candidates, at least to the extent that the site refers to the candidate’s political campaign.

The intersection (or clash) of free speech and intellectual property rights as protected by this law suggests that it is only a matter of time before it is challenged as unconstitutional by a domain registrant. When the time comes, a potential challenger will have a good chance of invalidating the law. Courts have historically been uneasy to limit speech when it comes to matters as open as a campaign for public office.

In the meantime, potential political candidates should always do the simple thing: register your most important domain names before you even consider entering the political arena.

Given that ICANN recently voted to expand the possibilities for gTLDs, the oversight organization must now deal with the logistics of selecting and assigning administrators for each of the soon to be available gTLDs.

One issue is the possibility that two potential organizations may want to be responsible for allocating the same gTLD. For example, perhaps Group A, a non-profit group, wants “.money” for purposes of identifying sites concentrating on proper personal financial management. Group B, a financial services firm, wants “.money” for identifying financial advisors, stockbrokers and other finance professionals. ICANN’s solution for such a quandary: auctions.

ICANN has determined that, assuming all other things are equal, the competing parties will determine the winner of the coveted extension by auction. This is a method that has been used by new extensions in recent years to determine ownership of particular domains. For example, the “.mobi” extension famously auctioned off several of its “premium names,” as opposed to opening them up in a “landrush” public registration format.

The primary problem with an auction is the concern that our fictitious “Group A” would not have the financial means to compete with “Group B” for our example ".money" gTLD. ICANN attempts to resolve this problem by implementing a system of handicaps. These handicaps would favor for example, “community-based bidders whose community is located primarily in [the] least-developed countries.”

Are these procedures enough to ensure fairness? More than likely, they will be more than enough, because it is quite unlikely that there will be many disputes at all. One can imagine certain gTLDs, like “.sex,” may be disputed, but the chances are good that there will be no need for auction handicaps when the proposed gTLDs are propounded by for-profit industries. Even if the auction process is not particularly favored by all interested parties there is peace is knowing that there will be few, if any, auctions implemented in practice

The first federal court review of open source software licenses was recently undertaken by the U.S. Court of Appeals for the Federal Circuit. The decision, Jacobsen v. Katzer, No. 2008-1001, slip op. (Fed. Cir. Aug. 13, 2008), is important because it finds that infringers of open source licenses are subject to Copyright laws, as opposed to only being in breach of contract for a violation of an open source license.

The court determined that the “conditions” of the open source license were violated when the Defendant removed some of the license notices and other non-critical portions of the software. This was different from the “covenants” that are violated under a contract analysis.

Why does it matter? Remedies for breaching a contract are generally more limited, usually to the economic losses of a contractor. Violations of federal copyright laws, however, provide for more substantial remedies. Such remedies include statutory damages, infringer profits obtained as a result of the breach and other damages that would be more substantial than the aggrieved party’s economic loss.

This result is important, perhaps critical, to the open source movement. Had the court concluded that violations of open source licenses were simply breaches of contract violators would use open source software with virtually no liability concern. The reason? Open source copyright holders would virtually never be able to show “classic” economic loss, because their software is generally provided for free.

While a boon for open source authors, the opinion does create a problem for business and industry that may have taken liberties with open source licenses in the past. While always a good idea, now is a sensible time for IT departments to do an audit of its software licensing, both as to open source and more traditional (closed source) software packages to ensure compliance.

The media has picked up on a case in the 9th Circuit that examines the definition of an “intercept” under the Wiretap Act. The district court judge in Bunnell v. Motion Picture Association of America found that a hacker had not “intercepted” messages when he simply copied messages being sent via company servers to a Google Mail account. The judge ruled that because the hacker “did not stop or seize” the messages, there was no intercept.

There are two reasons that such a decision should not stand. First, Judge Florence-Marie Cooper found that “under . . . the ordinary meaning of the word 'intercept,' [the hacker’s] acquisitions of the e-mails did not violate the Wiretap Act.” A quick look at the dictionary entry for the word “intercept,” however, seems to disagree. The second entry for intercept reads “to see or overhear (a message, transmission, etc., meant for another): We intercepted the enemy's battle plan.” The hacker in this case “saw or overheard” e-mail messages, so the “ordinary meaning” argument falls somewhat flat. This is particularly true when Section 2510(4) of the Wiretap Act defines the word “intercept” as being the “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.”

Second, the (seemingly) clear policy initiative of the Wiretap Act is that “Interception and disclosure of wire, oral, or electronic communications [are] prohibited.” It’s hard to fathom that Congress intended to allow such “copy and forward” procedures. Particularly when the headings in the Wiretap Act are as concerned with “disclosure” as “interception.”

While the 9th Circuit’s decision won’t be binding on other Circuits, it’s worth watching. A decision upholding the lower court will definitely lead to renewed privacy fears in both a criminal and civil vein.

The FCC, after being deadlocked along party lines, is expected to clear a merger between satellite radio providers XM and Sirius, so long as the firms meet certain conditions, reportedly the firms' payment of $20 million in fines for violations regarding tower locations and power limits.

The approval of the merger comes as a disappointment to consumer groups and Democratic FCC Commissioners, who had heavily opposed the merger based on monopoly concerns. These interests were of the opinion that the combination of the only two satellite radio providers would be the definition of a monopoly. Others, such as Republican FCC Commissioners and the firms themselves, felt that the varied choices in audio programming, such as HD Radio, analog radio, podcasts and similar alternatives were sufficient to restrict any potential price gouging by the new combined firm. The Department of Justice’s Antitrust Department had previously cleared the merger on similar grounds.

This was the classic “close call.” XM and Sirius have been struggling with profitability from the beginning of their existence and there were legitimate questions as to whether satellite radio would be viable at all. On the other hand, the technology is very new. There are equally legitimate questions as to whether allowing a merger of such new technology is a sound long-term choice.

All is not lost even if the DOJ and FCC’s decisions are proven to be wrong as the years pass The Federal Government has the power to break up monopolies when the need arises. While the “break up” process is substantially more problematic than the “prevention” powers, the option does remain. More likely, market powers will be sufficient to keep the XM-Sirius entity in check, at least in the short term.

A federal judge in New York has ruled that online retailers do not have a burden to affirmatively police trademark infringers that sell on their sites. The case pitted Tiffany, maker of fine jewelry, against eBay. Tiffany asked the court to rule that eBay should be responsible for policing its site for trademark infringers, often in the form of forgeries sold on eBay.

The Court ruled that eBay did not have a duty to affirmatively seek trademark infringers on its site, noting that the duty to protect a trademark falls to the mark’s owner, not a third party sales outlet. Of particular importance, however, was the fact that eBay had promptly investigated and removed any reports of trademark infringements provided by Tiffany.

This is a sensible ruling. eBay and other online retailers should not be assigned policing tasks that are already assigned to other parties, notably, the mark holders. Once the mark holders do their part by notifying retailer of infringement, however, online retailers should have the burden of investigating credible IP threats on their respective sites. The judge noted that eBay had done that in this particular factual scenario. Other courts would be wise to adopt similar assignments of burden to both mark holders and online retailers in future matters.

The Senate approved a bill today that will finally provide some guidance on procedures for government eavesdropping under what the Bush Administration has dubbed its “terrorist surveillance program.” The bill provides that any future surveillance be approved by the non-public United States Foreign Intelligence Surveillance Court.

Of particular note in the bill is the fact that telecom companies were granted immunity for providing assistance to the Bush Administration so long as they can show that they were given assurances from the Administration that the eavesdropping was legal.

Opinions were mixed about this immunity. Senator Patrick Leahy noted that the bill “does not provide accountability for the six years of illegal, warrantless wiretapping initiated and approved by this administration.” Others note that telecommunication firms were placed in difficult positions; either obey the administration or suffer the political consequences. Of course, AT&T and Verizon Communications, among others, have very large legal departments that could easily have vetted the issue by asking for clarification from the federal courts in a protected, non-public manner. The fact that these firms turned a blind eye to their customers’ civil rights is problematic.

If blanket immunity is not appropriate, what is? Appreciating the unique circumstances, perhaps Congress could have split the baby, capping economic damages, but allowing lawsuits to continue. There is little question that civil liberties were violated in this case. Granting a total pass on liability for telecommunications companies that turned a blind eye to these issues was not the best policy choice.

The deal that allows Google to provide some advertising for Yahoo searches has unsurprisingly attracted a formal antitrust probe from the Department of Justice. The fact that the Bush Administration’s Department of Justice, comfortably hands-off in recent years, has begun a formal investigation is not good news for the deal. As a report notes, attorneys for Yahoo and Google believe that the deal is “pro-competition.” Opponents feel that the deal will prevent Yahoo from wanting to compete with the hand that feeds it a portion of its advertisements.

This is a classic example of the adage “if you can’t beat ‘em, join ‘em.” Yahoo just failed to consummate a deal that was primarily designed to allow the firm to more fully compete with Google. Weeks later, both firms’ arguments that a combined deal is pro-competition is a tricky pill to swallow.

So why even try it? The two firms are unlikely bedfellows because each is able to use the other to its own ends at the present point in time. The Google deal provides Yahoo with an “out” from Icahn, Microsoft, and Yahoo shareholders all clamoring for a deal. The primary beneficiary of an independent Yahoo? Google. The search leader has little interest in anything but the status quo: Google dominance in search marketing. Keeping Yahoo independent helps to maintain that status quo. Adopting the famous quote from Sun Tzu, Google truly believes it is best to “keep its friends close, and its enemies closer,” at least until the Department of Justice has its say.

ICANN, holding its 32nd International Public ICANN Meeting June 22-26, 2008 in Paris, France, is set to vote on an substantial expansion of opportunity for new Generic Top-Level Domains (gTLDs). gTLDs are top-level domain extensions such as (.com, .net, and .org). It is expected that the voting bloc will approve the proposal when it comes up for the vote Thursday.

Late last summer, the ICANN Generic Names Supporting Organization issued their final report about the potential expansion. In a nutshell, the report recommended that ICANN liberally grant new gTLDs so long as the new gTLD and their operators would meet certain requirements.

First, strings in new gTLDs must not be confusingly similar to an existing top-level domain. So, you’re not going to see extensions like .con, .comm, or .nett. Second, strings must not be a “Reserved Word.” This includes no single letters, no two-letter extensions, and no Single Letter/Single Digit combinations. You wont see .a or .hq or .4H.

Third, “strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.” Will “.xxx” be appropriate? We’ll likely see some type of dispute between the powers that be before that question is resolved.

Fourth, “strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.” Just as the current policies prevent trademark infringing .com or .net names, any new gTLD would require similarly.

Finally, there are some technical and procedural requirements, mandating that any operator have the financial, technical and legal means to successfully run the extension.

So what does it all mean? In a word: confusion. There are already numerous gTLDs that do not receive much use. Adding hundreds of others could mean a very complicated web browsing environment. Time will tell, but chances are good that this means little for the average consumer unless business and industry start to heavily adopt the new extensions. Given the fact that use of the current alternative gTLDs is limited it is hard to imagine that additional gTLDs will attract much attention.