THE INFORMATION SUPERHIGHWAY -RECENT COURT DECISIONS

A number of cases should be of interest to some people involve software and actions by those who communicate by the Internet and bulletin boards (BBS's). The cases discussed here are actions for software piracy and defemation.

Two college students, one from Brown and one from MIT, used the Internet to copy copyrighted software. This is a crime commonly called software piracy.

Three other college students in Texas have been convicted for operating a bulletin board to swap copies of copyrighted software. These kinds of actions not only lead to criminal charges for piracy, but also to seperate charges of conspiracy to commit software piracy. Computer users and BBS operators should be warned that law enforcement agencies are paying more attention to their activities than in the past.

Another question is what are the consequences when someone publishes a defamatory statement about another person on a BBS and who is liable, the one who made the statement, the BBS or both. Unlike publication in a newspaper or on the evening news, a defamatory staement on a BBS is easy to respond to. The defamed person can publish his own comments on the BBS and these new comments will usually even be linked to the original false statement in the BBS files. Does this availability for a response make court damages unecessary? A New York court went that direction when it that the operator of a large BBS cannot police everything that gets posted and the victim had an opportunity to respond to the allegedly false accusations on the same BBS.

On the other hand, a case in an Australia court when the opposite direction. When an anthropologist was found to have made defamatory statements about an archeologist on an Internet BBS, Western Australia's Supreme Court awarded the victim the equivalent of $28,000 US dollars in damages.

The point therefore, is that you must be careful how you deal with defamation, computer bulletin boards and the copying of software that may be protected by copyright. The Internet is not as free-wheeling as it used to be. Law has come to that new frontier.

First Published Version, copyright 1995 David M. Spatt

MORE COURT DECISIONS - DECENCY & THE INTERNET

In June of 1996, the Third Circuit Court of Appeals declared that the Federal Communications Decency Act was unconstitutional as being overly broad and a violation of the First Amendment's guarantee against restriction of freedom of speech.

This law was supposedly Intended to protect childdren by banning anything "indecent" or "patently offensive" from the Internet. The violation of this law is punishable by fines up to $250,000 and imprisonment for up to two years. Obviously, statutory use of words like "indecent" create problems of definition and point of view, and these words were too vague to give internet users sufficient notice of what is illegal.

The federal Court also said that the Interenet is more like print media than broadcasting in that the government has a greater right to regulate broadcasts than print. It further admitted that the Internet would be almost impossible to regulate anyway and that role would be better left to the newly-emerging technology of software-filtering devices which will operate at the option of the receivers of the Internet's information.

The Third Circuit ruling does not create an anything goes-type of environment. Internet users and publishers should remain aware that there are other valid state and federal laws that may prevent and punish various kinds of pornography, treasonous or other materials from being published. Obvious examples of punishable materials include child pornography and defamatory works.

The question of whether this law is enforceable is now before the U.S. Supreme Court. Stay tuned for their decision.

MORE COURT DECISIONS (Will it ever end?) - TRADEMARKS & URL's

In April of 1996, the Central District of California Court granted a preliminary injunction to a company that owns the federally registered trademark, "Juris." This injunction prohibited another company from using "Juriscom.com" as a domain name. Therefore, the argument that a domain name is nothing more than a web site address and does not infringe a trademark would not be upheld in some courts at the moment.

All web site creators should now consider doing some kind of trademark search before establishing a domain name. The most basic kind of search can be done through numerous public libraries as well as some university libraries which subscribe to a computer database called "TrademarkScan," a service of Thomson & Thomson.

The search must look not only for the same name which you plan to use, but also for confusingly similar names. Another issue is whether a same or similar name that you locate is registered for goods or services in a market that competes with your intended market. If the registered mark is being used in an unrelated market, you may be allowed to use it as well, though you should probably consult an experienced trademark attorney first.

In any event, technology, arts and the law are changing constantly these days, so stay tuned for further developments.

SUCH AS:

Hasbro, Inc., a Rhode Island based toy company, makes a children's board game called Candyland which was created in the 1940's. Many have played it and it has a strong public identity. Therefore, Hasbro has a strong interest in protecting its name, and it decided that a Seattle, Washington adult sex web site should not be allowed to call itself "candyland.com."

There are a limited number of internet addresses and those are given out on a first-come first-served basis. Government trademark records need not consulted prior to the establishing of the web sites as they are not done through a government agency. Hasbro complained that "the use of Candyland as a pornographic internet site would dilute the wholesome nature of the name."

In order to prevent the sex site's use of the mark, Hasbro brought suit in federal court in Seattle this past February. The real battle is which of the parties owns the trademark for purposes of a web site. Without much of a fight, the defendant IEG, has largely conceded the issue and will give up the site's name. The moral of this story is that, purchasing the right to name a website because you are the first to do so, may still constitute infringement of another's trademark when the name is actually used.

First Published Version, copyright 1996 David M. Spatt