December 01, 2001
Internet Law Update
-- December, 2001
Use of Web Site Screen Scraper Program Enjoined Under Computer
Fraud and Abuse Act
A company's use of a "screen scraper" program to extract
and compile, on a comprehensive basis, all of the pricing information
from a competitor's web site was properly enjoined because the program
was designed with proprietary information provided by a former employee
of the competitor. EF Cultural Travel BV v. Explorica, Inc., No.
01-2000 (1st Cir. Dec. 17, 2001). The Circuit Court concluded that
the use of proprietary information to gain pricing information from
the competitor's site exceeded "authorized access" of
such site, in violation of the federal Computer Fraud and Abuse
Act (CFAA). The court also found that although the use of the screen
scraper program did not "damage" the competitor's computer
system within the meaning of the CFAA, the competitor suffered a
cognizable "loss" in the form of consultant fees expended
to assess the potential damage to its system from the use of the
screen scraper.
Editor's Note: This case is the latest in a series of cases to apply the Computer Fraud and Abuse Act to screen scraping and spidering of a competitor's site. This case is unique, however, in a number of ways. Most notably, it represents a new approach to what generally would be viewed as a case of trade secret misappropriation.
The opinion is available at http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-2000.01A
California Appeals Court Upholds Injunction Against E-Mail Sent
to Company by Former Employee
In an action based on the theory of trespass to chattels, Intel
was granted a permanent injunction against a former employee who
repeatedly sent e-mail to Intel employees via the company e-mail
system. Intel Corp. v. Hamidi, No. C033076 (Cal. Ct. App. 3d Dist.
Dec. 10, 2001). The court concluded that Intel had shown a trespass
to chattels by the fact that the sending of the e-mail was "disrupting
its business by using its property," and that it was harmed
by "the loss of productivity caused by thousands of employees
distracted from their work," as well as the time spent by Intel's
security department in attempting to block the unwanted e-mail.
The court also rejected arguments that Intel's e-mail system was
a "public forum" and that limits on the right to expression
in that forum violated the employee's constitutional rights.
Editor's Note: While the previous case illustrates how relatively modern laws are invoked in the face of high-tech challenges, this case illustrates the application of old and arcane doctrines as well. Trespass to chattels has often been applied to "new technology" issues such as unwanted e-mail, "screen scraping" and "spidering."
The opinion is available at http://www.courtinfo.ca.gov/opinions/documents/C033076.PDF
Narco News Web Site Entitled to Same First Amendment Protections
as Traditional Media Publication
The Narco News web site, which publishes information on the illegal
drug trade, is a "media defendant" entitled to the same
"heightened protection under the First Amendment" as traditional
media outlets such as television, radio and print publications.
Banco Nacional de Mexico, S.A. v. Rodriguez, No. 603429/00 (N.Y.
Sup. Ct. Dec. 5, 2001). The court found that in a defamation action
involving allegations that a principal of the plaintiff corporation
was connected with the drug trade, the plaintiff must allege and
prove that specific statements were false and that they were made
with knowledge of falsity or a reckless disregard for the truth.
The complaint against Narco News was dismissed for failure to meet
the pleading requirements for a defamation action against a media
defendant.
The opinion is available at http://www.eff.org/Censorship/SLAPP/Forum_shopping/BNM_v_Narco_News/20011205_decision.pdf
Losing Party in ICANN Domain Name Arbitration Proceeding May
Re-Litigate Under Federal Anticybersquatting Consumer Protection
Act
A domain name registrant who is unsuccessful in an ICANN Uniform
Domain Name Dispute Resolution Policy arbitration may bring an action
to reverse that result in a U.S. court under the federal Anticybersquatting
Consumer Protection Act (ACPA). Sallen v. Corinthians Licenciamentos
LTDA, No. 01-1197 (1st Cir. Dec. 5, 2001). The appeals court reversed
the District Court's dismissal of the registrant's action, holding
that the Dispute Resolution Policy itself anticipates that court
actions may be brought to overcome such results and that the ACPA
expressly provides for a cause of action for injunctive relief to
domain name registrants who are unsuccessful in such arbitrations.
Editor's Note: This is a significant first impression issue. The result will likely lead to further lawsuits by registrants who are unsuccessful in ICANN arbitration proceedings.
The opinion is available at http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-1197.01A
Domain Name Registrant May Not Bar Trademark Owner's Purchase
of Domain Name as Search Term
The Nissan Computer Corporation, the registrant of the domain names
"nissan.com" and "nissan.net," unsuccessfully
challenged Nissan Motor Company's purchase from search engines of
links tied to the search terms "nissan" and "nissan.com."
Nissan Motor Co., Ltd. v. Nissan Computer Corp., No. CV 99-12980
DDP (Mcx) (C.D. Cal. Dec. 12, (2001). Nissan Computer Corporation
conceded that the Nissan Motor Company was entitled to "purchase"
the trademark term "nissan" as a linked search term but
sought to challenge the "purchase" of the term "nissan.com."
The court found that the addition of the suffix ".com"
to the term "nissan" was irrelevant in analyzing Nissan
Motor Company's right to purchase the search terms, and concluded
that "[a]bsent a basis for claiming broader intellectual property
rights in a domain name, a domain name is an address, nothing more."
The opinion is available at http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61
c530eab0911c882567cf005ac6f9/0bfa6244b91108e688256b1e0079be32?OpenDocument
Plaintiff Seeking Damages in Domain Name Dispute Entitled to
Discovery of Defendant's Business Records
A plaintiff that obtained an injunction against a competitor's use
of the "aframepools.com" domain name is entitled to discovery
of the defendant's business records in order to prove its full measure
of damages. A-Frame, Inc. v. Concord Pools, Ltd., No. 90090 (Sup.
Ct. App. Div., 3d Dept., Dec. 27, 2001). The trial court had denied
the plaintiff's request for discovery of the defendant's business
records on the ground that the plaintiff was entitled to damages
measured by its lost profits, which it could establish through its
own business records. The appellate court found that the plaintiff
was entitled to the opportunity to prove all recoverable damages
under the Lanham Act, and that the defendant's business records
are "material and necessary" to plaintiff's claim for
damages measured by defendant's profits.
The opinion is available at resources/documents/aframepools.txt
Redirecting From the Web Site "fuckgeneralmotors.com"
to "Ford.com" is Not a Violation of Ford's Trademark Rights
Redirecting users of the "fuckgeneralmotors.com" web site
to the “ford.com” web site is not actionable as an infringement
of Ford's trademark rights. Ford Motor Co. v. 2600 Enterprises,
et al., No. 01-CV-71685-DT (E.D. Mich. Dec. 20, 2001). The court
held that the use of the term "ford" in the web site programming
code used to redirect users to the "ford.com" web site
is a "noncommercial use" that is not actionable under
the Lanham Act.
The opinion is available at http://www.mied.uscourts.gov/_opinions/Clelandpdf/RHC01-71685.PDF
Exercise of In Rem Jurisdiction in Domain Name Dispute Held
Barred by Due Process Clause
A federal district court has declined to exercise in rem jurisdiction
in a domain name dispute brought by the Ford Motor Company under
the Anticybersquatting Consumer Protection Act (ACPA), because the
domain name registrar is not located in the same district as the
court. Ford Motor Co. v. Greatdomains.com, Inc., No. 00-CV-71544-DT
(E.D. Mich. Dec. 20, 2001). Ford Motor Company brought the action
against numerous individuals and entities that registered domain
names incorporating Ford Motor Company trademarks such as "ford,"
"volvo" and "jaguar." The court held that the
plaintiff had not alleged a sufficient connection between the domain
names and the forum for the exercise of in rem jurisdiction, either
as specified in the in rem provisions of the ACPA or as required
by the Due Process clause of the U.S. Constitution.
The opinion is available at http://www.mied.uscourts.gov/_opinions/Clelandpdf/RHC00-71544.PDF
New York Governor Pataki Signs New Internet Privacy Policy Law
New York Governor Pataki signed the Internet Privacy Policy Act
on December 19. L.2001, c.578. The Act limits the extent to which
New York State agencies may collect personal information regarding
users of State web sites, and requires agencies that maintain web
sites to adopt, post and implement a privacy policy in accordance
with the requirements of the Act.
The text of L.2001, c.578 is available at http://assembly.state.ny.us/leg/?ch=578
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