By Lawrence F. Rozsnyai
2 Shidler J. L. Com. & Tech. 15 (2006)
Intellectual Property
4/14/2006
In Rossi v. Motion Picture Association of America Inc., the U.S. Court of Appeals for the Ninth Circuit recently held that the notice and takedown provision of the DMCA requires a subjective “good faith” belief that a website is infringing copyrighted material, and not an objective showing by the complaining party. A subjective standard for notice and takedown may do less to promote collaboration between service providers and copyright owners, judicial economy, or fair website management than would an objective standard requiring a minimal degree of investigation. This article concludes, however, that a subjective standard is supported by the literal wording of the statute and results in a cautious approach to protecting copyright owners.
By Evgenia Fkiaras
2 Shidler J. L. Com. & Tech. 16 (2006)
Intellectual Property
4/14/2006
Canada’s copyright system imposes a levy on manufacturers and importers of blank audio recording media. Revenue raised by this levy goes to the eligible owners of musical copyright—rightsholders. Thus, Canada squarely faces the reality of the modern age by acknowledging that users will duplicate copyrighted material at the same time that it attempts to guarantee compensation to certain rightsholders. Like its counterpart, the American Audio Home Recording Act of 1992, this system has certain fundamental flaws. What these flaws indicate about the future of copyright law is unclear.
By Andrew T. Braff
2 Shidler J. L. Com. & Tech. 17 (2006)
Constitutional & Regulatory
4/14/2006
The question of how to stymie the proliferation of spyware on computers has been a recurring topic of debate in Congress and in the technology industry. With the passage of the SPY ACT (H.R. 29) a high probability, this article highlights its prohibitions, with particular emphasis on how they change current legal regimes. Most federal computer statutes—insofar as they address actions victimizing private citizens—require damage to the computer. In addition, one of the elements of common law trespass to chattel is damage. Whether intended or not, the SPY ACT subtly introduces a strict liability component into federal computer and Internet law.
By Jessica Belskis
2 Shidler J. L. Com. & Tech. 18 (2006)
Constitutional & Regulatory
4/14/2006
This article examines the federal Wiretap Act and its application to online communications in light of the United States Court of Appeals for the First Circuit’s recent decision in United States v. Councilman. The federal Wiretap Act places legal limits on the surveillance of electronic communications, but courts struggle to make sense of its application to online communications. Formerly, courts held that the Wiretap Act did not apply to the retrieval of communications from places of electronic storage. However, in United States v. Councilman, the First Circuit suggests that retrieval of emails from temporary places of electronic storage fall within the Wiretap Act. In order to avoid liability, businesses that monitor customers online should seek customer consent and familiarize themselves with different interpretations of the federal statute as well as various state wiretap statutes.
By Anthony D. Milewski Jr.
2 Shidler J. L. Com. & Tech. 19 (2006)
Constitutional & Regulatory
4/14/2006
Over the past several years, personal information has been lost or stolen as a result of a series of high profile security breaches. In January 2006, the U.S. Federal Trade Commission announced that ChoicePoint will be required to pay $15 million in fines and penalties for a high profile security breach that occurred in 2005. The ChoicePoint breach and similar events have spurred an explosion of state and federal privacy legislation. In particular, the State of California has taken the lead by enacting the strictest disclosure and security procedure requirements in the country. The implications of California’s new laws can be felt throughout the U.S. since they affect any business that collects personal information about California residents. This article will focus on a new California law, Assembly Bill 1950, which requires businesses to maintain “reasonable security standards” for personal information without further defining such standards. In particular, the article examines how businesses can comply with A.B. 1950 by performing a risk management analysis and borrowing security standards from the federal Gramm-Leach-Bliley and the Health Insurance Portability and Accountability Acts.