By Jason Boulette and Tanya DeMent
5 Shidler J.L. Com. & Tech. 1 (2008)
Litigation
9/23/2008
The rise in blogs (short for "Web-logs") has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that run the gambit of subjects from politics to sports to literature to personal materials. The exponential rise in blogging stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of legitimacy and legal protection. At the same time, blogging is also creating its own unique brand of legal issues. Of specific concern to lawyers are the ethical issues surrounding a lawyer's use of blogs, particularly as blog-based discovery becomes more and more common. This article will provide an overview of a lawyer's obligations under the Model Rules of Professional Conduct and the corresponding Washington Rules of Professional conduct with respect to blog-based discovery.
By Riana Pfefferkorn
5 Shidler J.L. Com. & Tech. 2 (2008)
Intellectual Property
9/23/2008
“Trademark keying” is the practice of buying and selling trademarked terms as keywords in search engine advertising campaigns. In September 2006, a federal district court in Rescuecom Corp. v. Google, Inc. held that the practice does not constitute trademark use, a threshold criterion in a trademark infringement claim. Since Rescuecom, the focus of trademark keying litigation has shifted, giving some guidance to potential litigants. In addition, the U.S. Court of Appeals for the Second Circuit has diverged from other circuits. While federal courts within the Second Circuit have fashioned the emerging rule that an advertiser’s internal use of trademarked terms as search engine keywords, without more, is not a trademark use within the meaning of the Lanham Act, courts in other circuits have consistently held that such internal use does constitute trademark use. This Article evaluates the diverging lines of recent cases giving rise to these two approaches, explores what implications the split holds for potential litigants, and provides general guidelines for businesses wishing to avoid infringement claims for trademark keying.
By C. Christine Porter
5 Shidler J.L. Com. & Tech. 3 (2008)
Constitutional and Regulatory
9/23/2008
Recent computer science research demonstrates that anonymized data can sometimes be easily re-identified with particular individuals, despite companies’ attempts to isolate personal information. Netflix and AOL are two examples of companies that released personal data intended to be anonymous but which was re-identified with individual users with the use of very small amounts of auxiliary data. Re-identification of anonymized data may expose companies to increased liability, as the information may no longer be treated as anonymous. In addition, companies may violate their own privacy policies by releasing anonymous information to third parties that can be easily re-identified with individual users. The potential for third parties to re-identify anonymous information with its individual source indicates the need for both increased privacy protection of anonymized information and increased security for databases containing anonymized information.
By Chelsea Peters
5 Shidler J.L. Com. & Tech. 4 (2008)
Constitutional and Regulatory
9/23/2008
The Federal Trade Commission recently exposed Whole Foods’ CEO John Mackey for having made pseudonymous posts on financial message boards for over seven years. Mackey’s practice of “sock puppeting,” or posting under a false identity to praise and build support for one’s company, is becoming more common among high-powered corporate executives who have few other outlets in which to vent their frustrations and spar with their critics. In July, the SEC began an informal investigation into Mackey’s posts. This article examines the liabilities sock puppeteers may face under current securities regulations, particularly § 10b-5 of the Securities Exchange Act of 1934 and Regulation Fair Disclosure (“FD”).
By Shaobin Zhu
5 Shidler J.L. Com. & Tech. 5 (2008)
Constitutional and Regulatory
9/23/2008
The Internet and advances in telecommunications technology present unprecedented opportunities for cross-border fraud and deception directed at U.S. consumers and businesses. However, the Federal Trade Commission’s (“FTC”) ability to obtain effective relief may face practical impediments in prosecuting these cross-border wrongdoers. To help address the challenges posed by the globalization of fraud, President Bush signed the Undertaking Spam, Spyware and Fraud Enforcement With Enforcers Beyond Borders Act of 2006 (“U.S. SAFE WEB Act” or “Act”) into law on December 22, 2006. This Article discusses the FTC’s expanded enforcement authority granted by the Act to fight fraud and deception, and particularly to fight illegal spam, spyware, and cross-border fraud and deception. Privacy advocates have voiced concern that the FTC may now have more power to invade the privacy of U.S. citizens. This Article concludes that the Act’s grant of power to the FTC is not too broad, and that the Act maintains an appropriate balance between law enforcement interests and privacy interests.