In Which a Building is Built, and a Domain Name Registered: Cleary Building Corp, V. David A. Dame, Inc.

Today’s case involves the classic alleged scenario of a gripe site which used a Plaintiff’s trademark in Defendant’s web site domain name - and whether this might be a violation of the Anti Cybersquatting Consumer Protection Act (ACPA). Cleary Building Corp, V. David A. Dame, Inc., Civil Action No. 09-cv-01578-CMA-MEH. (DCo Dec. 1, 2009).

But first, a visit to the Wayback Machine, back, oh, let’s say 15 years. The 1990s saw a domain name land grab. With only a few top level domains such as DOT COM in which to register web sites, it became a gold mine for first movers to toss a couple of pesos speculating on any domain name they might think of – warehousing them for a while – and then attempting to extort some late-to-the game company. Cybersquatters were warehousing 1000s of domain names and making fortunes off of a few exclusive lines of code in a data base.

In that cyber libertarian era, Congress did not pass a lot of Internet related laws (or any other laws) – however they thought they ought to squat on cybersquatters – and passed the AntiCybersquatting Consumer Protect Act. Speculating on domain names - - - bad.

Which leads us to today’s case. This case involves a dispute with a contractor (did I just hear a series of groans-of-empathy from the audience). Defendant allegedly hired Plaintiff to build a building. A dispute arose about the construction. A list of issues to be addressed was created. A second list of issues to be addressed was created. Ultimately defendant refused to permit Plaintiff access to the site in order to complete the work. After this came a domain name registration and a website. Defendant put the building up for sale and created the website "my[plaintiff]building.com," presenting information about the building (the website was blank when we checked it). Plaintiff alleged ten complaints in total against defendant, and there are more facts to the disputes, but these are the facts relevant to the ACPA claim.

In order for a trademark owner to bring a claim under the ACPA, the trademark owner must establish:

• the trademark owner’s mark is distinctive or famous;
• the domain name owner has a bad faith intent to profit from the mark; and
• the domain name and the trademark are either identical or confusingly similar (or dilutive for famous trademarks).

15 USC § 1125(d)(I)(A)

This case turns on bad faith. It was conceded that the mark was famous, and the court found it was "plausible" that Plaintiff’s trademark and Defendant’s domain name were confusingly similar (the court will later confusingly take this back).

The bad faith element is the key. Normally, cybersquatters register many domains and then try to sell them. But in this case, Defendant was not warehousing and speculating on domain names; there’s just one domain name in question. Defendant did not offer to sell the domain name; Defendant used the domain name to gripe about the Plaintiff. So how does Plaintiff try to get around that? Plaintiff alleges that Defendant tried to use the domain name to gain an advantage in negotiations with Plaintiff.

Congress provided the Courts with nine factors to assist with the analysis of bad faith. According to Congress,

"These factors are designed to balance the property interests of trademark owners with the legitimate interests of Internet users and others who seek to make lawful uses of others' marks, including for purposes such as comparative advertising, comment, criticism, parody, news reporting, fair use, etc." H.R.Rep. No. 106-412, at 10 (1999) (Conf.Rep.).

In other words, Congress recognized the democratic necessity and value of griping! The courts have affirmed the value of griping.

The Court did not review the nine factors, item for item. Instead, the Court concluded that Defendant was all about informing "fellow consumers about his experiences with the Plaintiff's company, which he believed performed inferior work."

"The exhibits to the Complaint show that the DEFENDANT Website is nothing more than a ‘gripe site.’ The Defendant is using the site to tell his story and make his complaints and grievances with Plaintiff known."

The Court rejected Plaintiff’s argument that Defendant sought to use the website in order to gain an advantage in negotiations – and that this constituted bad faith.

The Court also was not persuaded that Defendant’s Site was confusingly similar to Plaintiff's trademark. Defendant’s site is entitled "My New Building By Plaintiff" and "contains information about Defendant's experiences with Plaintiff regarding the DEFENDANT Building." The Court concluded, "it is simply not reasonable to conclude that someone viewing this website would be confused as to the source, sponsorship, affiliation, or endorsement of this site."

It's clear that this court was not going to let the ACPA be used as a weapon to censor consumer discourse concerning (dis)satisfaction with vendor goods or services. Consumer feedback on the Internet, including griping, ratings, reputations, have empowered consumers with information enabling them to make more informed purchases.

Let’s spin the Wheel of Morality and learn the lesson of today’s post! "Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn." [Whirl, Click, Click, Clock]. "You have to Fight! For Your Right! To Whine and Gripe!" (Can you believe the Beastie Boys are in their 40s!).

[Disclaimer]

[Notice] FCC Announces Next Round Of Public Workshops For Open Internet Proceeding

The FCC today announced the dates, times, and locations of the January public workshops for the FCC's open Internet proceeding. These workshops will explore the impact of the Internet's openness on consumers, innovation, and investment.

The next public workshop will occur on Jan. 13, 2010 at 5 p.m. at the MIT Media Lab in Cambridge, Mass. and will address innovation, investment, and the open Internet. It will be followed by a workshop on consumers, transparency, and the open Internet on Jan. 19, 2010 starting at 1 p.m. in the Commission meeting room. The dates, locations, and topics for additional spring workshops for the open Internet proceeding will be announced in early 2010.

Agendas for the Jan. 13 and Jan. 19 workshops will be made available in early January. All workshops will be open to the public; however, admittance will be limited to the seating available. Audio/video coverage of the workshops will be broadcast live with open captioning over the Web on www.OpenInternet.gov .

Reasonable accommodations for persons with disabilities are available upon request. Please include a description of the accommodation you will need. Individuals making such requests must include their contact information should FCC staff need to contact them for more information. Requests should be made as early as possible. Please send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau: 202-418-0530 (voice), 202-418-0432 (TTY).

For additional information about the workshops, please visit www.OpenInternet.gov .

--FCC--

FOR IMMEDIATE RELEASE: NEWS MEDIA CONTACT:

December 17, 2009 Mark Wigfield, (202) 418-0253

Email: mark.wigfield@fcc.gov

FCC ANNOUNCES NEXT ROUND OF PUBLIC WORKSHOPS FOR OPEN INTERNET
PROCEEDING. News Release. News Media Contact: Mark Wigfield at (202)
418-0253, email: Mark.Wigfield@fcc.gov WCB
http://hraunfoss.fcc.gov/ edocs_public/attachmatch/DOC- 295283A1.doc
http://hraunfoss.fcc.gov/ edocs_public/attachmatch/DOC- 295283A1.pdf
http://hraunfoss.fcc.gov/ edocs_public/attachmatch/DOC- 295283A1.txt

It's Safe to be a Dog on the Internet Again: Lori Drew Prosecution Terminated

"On the Internet, no one knows whether you're a dog." Of course, if you are a dog, and you are fibbing about it, according to the US Attorneys Office out in California you're a felon and should be sent to the dog pound. Fortunately, there's a new dog in town who seems to be howling a different tune.

Bad facts make for bad law. The unfortunate alleged facts of this case involved fibbing about actual identities, playing with a young girl's emotions, and the girl's eventual suicide. As recited by the District Court

The Indictment included the following allegations (not all of which were established by the evidence at trial). Drew entered into a conspiracy in which its members agreed to intentionally access a computer used in interstate commerce without (and/or in excess of) authorization in order to obtain information for the purpose of committing the tortious act of intentional infliction of emotional distress upon Megan Meier. Megan was a 13 year old girl who had been a classmate of Drew’s daughter Sarah. Pursuant to the conspiracy, on or about September 20, 2006, the conspirators registered and set up a profile for a fictitious 16 year old male juvenile named “Josh Evans” on the www.MySpace.com website, and posted a photograph of a boy without that boy’s knowledge or consent. Such conduct violated MySpace’s terms of service. The conspirators contacted Megan through the MySpace network (on which she had her own profile) using the Josh Evans pseudonym and began to flirt with her over a number of days. On or about October 7, 2006, the conspirators had “Josh” inform Megan that he was moving away. On or about October 16, 2006, the conspirators had “Josh” tell Megan that he no longer liked her and that “the world would be a better place without her in it.” Later on that same day, after learning that Megan had killed herself, Drew caused the Josh Evans MySpace account to be deleted.

These unfortunate facts led to a large public emotional outcry and pressure for prosecution.

Lacking a specific law that the defendant violated, the US attorney distorted the Computer Fraud and Abuse Act. The Computer Fraud and Abuse Act was designed to smack hackers who gain unauthorized access to computers and networks. CFAA prosecutions involve individuals who break through computer security or who go beyond signs that say "None Shall Pass."

According to the prosecutor, Defendant violated the CFAA, not through hacking, not through cracking, not by defeating a security system. No, defendant violated the CFAA by violating MySpace's terms of service. Defendant (a) lied about Defendant's age, (b) lied about defendant's name and (c) uploaded without permission a picture of someone else. By violating the TOS, prosecutor argued, Defendant had never actually gained permissive use of the computer system. Therefore, Defendant's use of MySpace was unauthorized and constituted a criminal violation of the Computer Fraud and Abuse Act.

The prosecutor's argument was met by a backlash of individuals and experts who claimed that, based on the prosecutors argument, anyone who has violated a terms of service of any site in any way was a criminal. Use a pseudonym, you're a criminal. Lie about your age, you're a criminal. Upload a fake address, you're a criminal. Indeed, many of the actions individuals regularly take in order to protect their identity and privacy would equally make them a criminal.

After a drawn-out legal proceeding, the district court finally agreed. The US Attorney's crow barring of the CFAA to meet the facts of this case would have produced bad law. In the words of the court,

Treating a violation of a website's terms of service, without more, to be sufficient to constitute “intentionally access[ing] a computer without authorization or exceed[ing] authorized access” would result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals. . . .

One need only look to the MSTOS terms of service to see the expansive and elaborate scope of such provisions whose breach engenders the potential for criminal prosecution. Obvious examples of such breadth would include: 1) the lonely-heart who submits intentionally inaccurate data about his or her age, height and/or physical appearance, which contravenes the MSTOS prohibition against providing “information that you know is false or misleading”; 2) the student who posts candid photographs of classmates without their permission, which breaches the MSTOS provision covering “a photograph of another person that you have posted without that person's consent”; and/or 3) the exasperated parent who sends out a group message to neighborhood friends entreating them to purchase his or her daughter's girl scout cookies, which transgresses the MSTOS rule against “advertising to, or solicitation of, any Member to buy or sell any products or services through the Services.” However, one need not consider hypotheticals to demonstrate the problem. In this case, Megan (who was then 13 years old) had her own profile on MySpace, which was in clear violation of the MSTOS which requires that users be “14 years of age or older.”No one would seriously suggest that Megan's conduct was criminal or should be subject to criminal prosecution.

. . . . .

In sum, if any conscious breach of a website's terms of service is held to be sufficient by itself to constitute intentionally accessing a computer without authorization or in excess of authorization, the result will be that section 1030(a)(2)(C) becomes a law “that affords too much discretion to the police and too little notice to citizens who wish to use the [Internet].”

On August 28, 2009, with the above opinion, the District Court dismissed the US Attorney's prosecution. On November 20, 2009, the US Attorney's Office filed papers with the 9th Circuit Court of Appeals indicating it will not appeal its case against Lori Drew.

Perhaps, now that we have a more technologically sophisticated administration that can appreciate how this prosecution would have led to bad implications, the US Attorney thought better of its prosecution. In the words of Prof. Orin Kerr, "The case should have never been filed, and it was a stretch from the beginning."

This doesn't change the unfortunate facts of this case; but it avoids a potentially unfortunate legal precedent.

[Meeting Notice] FCC Announces Initial Public Workshops For Open Internet Proceeding

"The FCC today announced that Commission staff will hold an initial round of public workshops in December and January as part of the open Internet Notice of Proposed Rulemaking (NPRM). These workshops will explore issues raised in the proceeding, including the technical realities of broadband networks and the impact of the Internet's openness on various interests, including speech, democratic engagement, consumers, innovation, and investment. The dates, locations, and topics for additional spring workshops on the open Internet rulemaking will be announced in early 2010.

"The first public workshop -- part of the Technical Advisory Process -- will address basic technical issues relevant to the proceeding and will occur on Dec. 8, 2009 starting at 10 a.m. in the Commission meeting room. It will be followed by a workshop on speech, democratic engagement, and the open Internet on Dec. 15, 2009 starting at 1 p.m. in the Commission meeting room. In January, Commission staff will hold two additional workshops: one on innovation, investment, and the open Internet, and the other on consumers, transparency, and the open Internet.

"Agendas for the Dec. 8 and Dec. 15 workshops will be made available soon, as will dates and times for the January workshops. All workshops will be open to the public; however, admittance will be limited to the seating available. Audio/video coverage of the workshops will be broadcast live with open captioning over the Web on www.openInternet.gov .

"Reasonable accommodations for persons with disabilities are available upon request. Please include a description of the accommodation you will need. Individuals making such requests must include their contact information should FCC staff need to contact them for more information. Requests should be made as early as possible. Please send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau: 202-418-0530 (voice), 202-418-0432 (TTY).

For additional information about the workshops, visit www.openInternet.gov .

--FCC--

12/3/09 FCC Announces Initial Public Workshops for Open Internet Proceeding.
News Release: Word | Acrobat

[Notice] Comment Sought On Transition From Circuit-Switched Network To All-Ip Network

Comment Date: December 21, 2009 In the American Recovery and Reinvestment Act of 2009 (“Recovery Act”), Congress directed the Commission to create a national broadband plan by February 17, 2010, that seeks to “ensure that all people of the United States have access to broadband capability and … establish[es] benchmarks for meeting that goal.” Among other things, the Commission is to provide “an analysis of the most effective and efficient mechanism for ensuring broadband access by all people of the United States” and “a detailed strategy for achieving affordability of such service and maximum utilization of broadband infrastructure and service by the public.”

Broadband itself is a leading indicator of the major transitions in communications technology and services provided by incumbents and new entrants into virtually every segment of the communications industry. No longer is broadband simply another service—it is a growing platform over which the consumer accesses a multitude of services, including voice, data, and video in an integrated way across applications and providers.

Driven by technology and market forces, this evolution of communications services to broadband creates many opportunities for our country, but it also has a significant impact on the circuit switched Public Switched Telephone Network (PSTN), a system that has provided, and continues to provide, essential services to the country. Our country has been through other communications transitions, such as the transition from analog mobile service to digital mobile service or the transition from analog broadcast television to digital broadcast television. While each transition is different, policy has played an important role in ensuring consumers were protected from loss of essential services and were informed of the choices presented by the transition. Policy also has played a role in providing a glide path for all industry players, enabling more efficient planning and adjustment over the course of the transition.

The intent of this Public Notice is to set the stage for the Commission to consider whether to issue a Notice of Inquiry (NOI) relating to the appropriate policy framework to facilitate and respond to the market-led transition in technology and services, from the circuit switched PSTN system to an IP-based communications world.

In the spirit of understanding the scope and breadth of the policy issues associated with this transition, we seek public comment to identify the relevant policy questions that an NOI on this topic should raise in order to assist the Commission in considering how best to monitor and plan for this transition. In identifying the appropriate areas of inquiry, we seek to understand which policies and regulatory structures may facilitate, and which may hinder, the efficient migration to an all IP world. In addition, we seek to identify and understand what aspects of traditional policy frameworks are important to consider, address, and possibly modify in an effort to protect the public interest in an all-IP world. For example, one line of questioning that a Notice of Inquiry may pursue is how to continue ensuring appropriate protections for and assistance to people with disabilities in the transition to an IP-based communications world. Another could focus on the role of carrier of last resort obligations. In this Public Notice, we seek comment on what policy areas should be understood in considering how best to prepare for the transition from the circuit-switched to the IP-based communications world.

This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. See 47 C.F.R. §§ 1.1200, 1.1206. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented generally is required. See 47 C.F.R. § 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in section 1.1206(b) of the Commission's rules, 47 C.F.R. § 1.1206(b).

• All comments should refer to GN Docket Nos. 09-47, 09-51, and 09-137.

• Please title comments responsive to this Notice as “Comments – NBP Public Notice #25.

• Filers using the Commission's Electronic Comment Filing System (ECFS) should enter the following text in the “Custom Description” field in the “Document(s)” section of the ECFS filing page: “Comments – NBP Public Notice # 25”.

Comments may be filed using (1) the Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. Comments can be filed through the Commission's ECFS filing interface located at the following Internet address: http://www.fcc.gov/cgb/ecfs/. Comments can also be filed via the Federal eRulemaking Portal: http://www.regulations.gov. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties who choose to file by paper must file an original and four copies of each filing.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, S.W., Washington, D.C. 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530, (202) 418-0432 (TTY).

For further information about this Public Notice, please contact Randy Clarke at (202) 418-1500.

- FCC -

DA 09-2517

Released: December 1, 2009

NBP Public Notice # 25

PLEADING CYCLE ESTABLISHED

GN Docket Nos. 09-47, 09-51, 09-137

[Order & NPRM] FCC Releases E-rate Funding Year 2010 Eligible Services List, and Seeks Further Comment on Eligible Services.

In Re Schools and Libraries Universal Service Support Mechanism, CC Docket No. 02-6, Report and Order, and Further Notice of Proposed Rulemaking (Dec. 2, 2009)

In this report and order and further notice of proposed rulemaking, we address and seek comment on issues regarding the services eligible for funding under the schools and libraries universal service support mechanism, also known as the E-rate program. First, we modify our rules to expressly include interconnected voice over Internet protocol (VoIP) and text messaging as eligible services under the E-rate program. Second, we release the list of services that will be eligible for discounts for E-rate funding year 2010. Finally, we seek further comment on the eligibility of certain services in future funding years, as well as on proposed changes to the process for determining the services that will be eligible for support under the E-rate program.

In the report and order, we conclude that interconnected VoIP service is eligible for E-rate support and should continue to be an eligible service under the E-rate program. We also conclude that text messaging is eligible for E-rate support. In response to the 2010 ESL Public Notice , we clarify the E-rate program eligibility of video on-demand servers, ethernet, web hosting, wireless local area network (LAN) controllers, and virtualization software. We find that telephone broadcast messaging, unbundled warranties, power distribution units, softphones, interactive white boards, and e-mail archiving are ineligible for E-rate program funding. F inally, we release the Eligible Services List (ESL) for E-rate funding year 2010.

In the further notice of proposed rulemaking, we seek comment on whether particular services should be designated as eligible for E-rate support in funding year 2011 and beyond. Specifically, we tentatively conclude that the ESL should not include separately-priced firewall services, anti-virus/anti-spam software, scheduling services, and wireless Internet access applications. Also, we tentatively conclude that web hosting should not be eligible for funding under the E-rate program, or, alternatively, should only be eligible for E-rate program funds as a Priority 2 service. In the further notice w e also tentatively conclude that we should change our rules to establish that specific eligible products and services should be listed in the ESL as opposed to being listed individually in the rules. We seek comment on our tentative conclusions on the process for developing the ESL, including requiring the Universal Service Administrative Company (USAC) to submit any proposed changes to the ESL to the Commission no later than March 30 th of each year. Finally, we tentatively conclude to revise our rules to eliminate the requirement that the ESL be released by public notice, which would provide the Commission the flexibility to release the ESL by order .

12/2/09 FCC Releases E-rate Funding Year 2010 Eligible Services List, and Seeks Further Comment on Eligible Services.
Order and FNPRM: Word | Acrobat
Eligible Services List: Acrobat

Comment Date: (30 days after publication in the Federal Register)
Reply Comment Date: (45 days after publication in the Federal Register)

[Notice] FCC's Office Of Engineering & Technology Establishes Technical Advisory Process For Open Internet Proceeding And Announc

The Federal Communications Commission (FCC) today announced that the Chief of the FCC's Office of Engineering & Technology (OET) has established a Technical Advisory Process to ensure that decisions in the Commission's proceeding on the open Internet reflect a thorough understanding of current technology and future technology trends. The process will provide an inclusive, open, and transparent forum for obtaining the best technical data and insights from a broad range of stakeholders, including through a public workshop on December 8, 2009 in the Commission meeting room.

The Technical Advisory Process was called for in the FCC's October 22, 2009 Notice of Proposed Rulemaking, “In the Matter of Preserving the Open Internet, Broadband Industry Practices” (FCC 09-93), GN Docket No. 09-191, WN Docket 07-52, which proposed draft rules to preserve the open Internet. OET has now established a technical working group comprised of engineers and technologists from across the FCC's bureaus and offices to receive information from stakeholders on the technical issues in the open Internet proceeding. The working group will hold ex parte meetings with engineers and other interested parties to understand the range of views in the technical community on the issues presented by the open Internet rulemaking, identify any areas of common ground between stakeholders, and clarify the scope of key differences. In addition, FCC engineers from the working group will be integrated into other teams within the Commission considering the various issues raised in the open Internet proceeding.

The Technical Advisory Process will include a workshop on December 8, 2009 starting at 10 a.m. in the Commission meeting room, which will be open to the public and live streamed via the Internet. The workshop will consist of tutorial presentations by experts on network management practices for various Internet access service delivery platforms, followed by questions from the Commission's technical working group and members of the public.

An agenda for the workshop will be made available soon. The workshop will be open to the public; however, admittance will be limited to the seating available. Audio/video coverage of the workshop will be broadcast live with open captioning over the Internet from the website for this proceeding at http://www.openinternet.gov .

. . . . .

-FCC-

12/2/09 Federal Communications Commission's Office of Engineering and Technology Establishes Technical Advisory Process for Open Internet Proceeding and Announces Workshop. News Release: Word | Acrobat