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Date: Fri, 17 Nov 2000 10:58:29 -0800
From: listadmin
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FindLaw's DOWNLOAD THIS!
A Weekly Newsletter Covering Law and the Internet
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November 17, 2000 Issue #10
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IN THIS ISSUE:
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>> NOTES ON DOMAIN NAMES
>> NEW AND NOTEWORTHY MP3.com To Be Completely Legit Deep Digging Members Of Congress Oppose ICANN Action
>> ARRESTING DEVELOPMENTS European Cybercrime Treaty Gets Overhaul
>> SCRIPT KIDDIES Palestinians Continue Hacktivism Colorado, Georgia Schools Targeted
>> CASE SUMMARIES Corporations Are Persons Too No Use Is Bad Faith Registration Is Use
>> FAQTOIDS
>> FEEDBACK
>> SUBSCRIPTION INFORMATION
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NOTES ON DOMAIN NAMES by Timothy J. Walton
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An English court has ordered the transfer of several domain names to certain trademark owners. While this has been going on in America for years, and in international arbitrations since earlier this year, this is the first appellate court ruling from a British court.
The interesting thing about the opinion is its circular reasoning: (1) cybersquatters are people who infringe trademark rights by registering domain names; (2) this person is a cybersquatter; (3) therefore, this person has infringed a trademark. The decision discounted the defendant's suggestion that he could possibly have non-infringing uses for the names, because he had previously registered names for the purposes of ransoming them to trademark holders.
This justifies transfer of "bt.org" to British Telecom? As if no one but British Telecom could legitimately own and operate a web site at www.bt.org Actually, this is what happens when trademark owners get to fashion the law surrounding trademark rights. Domain name resellers, often accused of cybersquatting, do not lobby much, and they typically cannot afford the costs of trademark litigation. So they hire weak lawyers and we get bad law, which assumes that the cyber pirate will probably infringe at the first opportunity, so he is getting what he deserves now, before anyone has been harmed. It really irks me that referees are so eager to transfer domain names, never mind that there has been no use in commerce.
It's also annoying that the media keeps saying that everyone who speculates in domain names is a cybersquatter. I see nothing wrong in registering a generic domain name like "law.biz" with the hope of selling it to the highest bidder. Nor do I think that such activity would be unlawful. But everyone seems concerned that new top-level domains will result in that evil capitalist vice, speculation in a market.
A recent report entitled "Rough Justice" argues that the extent of fairness a domain name registrant will receive in arbitration depends upon which arbitrator the trademark holder chooses. The Uniform Dispute Resolution Policy ("UDRP") allows the trademark holder to choose one of four arbitration centers. An analysis of their decisions since the beginning of the year shows that only one offers much of a chance that a respondent can prevail, particularly if the respondent defaults.
Which brings us to the ICANN conference going on in Marina del Rey. ICANN, the Internet Corporation for Assigned Names and Numbers, has added seven new top-level domains to the Internet, even as critics are asking for interim board members to step down (the international body is getting respect on par with the United Nations: some administrators are refusing to pay dues). With the addition of new domains, even more names will be subject to the UDRP.
I don't have a problem with trademark owners policing their brands. I expect them to send cease and desist letters when a true cybersquatter infringes on a trademark. But I do think the pendulum has swung too far. Trademark holders, even those with weak common law marks, seem to feel they have a right to the domain names that are similar to their marks, whether the registrant has infringed the mark or not. I hope that some of their attorneys start to think critically about whether an infringement has actually occurred before threatening litigation, and whether following through on that threat would violate Rule 11.
English Court Evicts Cybersquatter Source: Pro2Net http://legal.pro2net.com/x26644.xml
Internet Address Body Seeks Respect Source: Associated Press http://news.findlaw.com/ap/ht/1700/11-16-2000/20001116052856960.html
Alternatives To Dot-Coms Discussed Source: Associated Press http://news.findlaw.com/ap/f/1310/11-13-2000/20001113050037340.html
Net Name Body OKs Seven New Domains Source: CNET http://news.cnet.com/news/0-1005-200-3730464.html
Rough Justice: An Analysis of ICANN's Uniform Dispute Resolution Policy Source: Convergence Center http://dcc.syr.edu/roughjustice.htm
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Napster MP3 files on FindLaw!
Oral arguments before the Ninth Circuit Court of Appeals in RIAA v. Napster, along with appellate documents and updated news on the case, are all available at the FindLaw Napster page. Listen to the lawyers argue and sign up for immediate notification of a decision in the case.
http://ad.doubleclick.net/clk;1940048;4709205;e
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NEW AND NOTEWORTHY
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>> MP3.com To Be Completely Legit
The first of the online MP3 distributors to get licenses from all major record companies has not seen the last of its copyright woes. Unity Entertainment has filed a class action complaint on behalf of copyright owners not represented by RIAA. Meanwhile, MP3.com's stock price has more than doubled in the last week.
Source: Associated Press http://news.findlaw.com/ap/l/0000/11-15-2000/20001115101915040.html
Source: Dow Jones & Company http://dowjones.work.com/display_news.asp?doc_id=DJ20001116000520
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>> Deep Digging
LLRX makes the point that Web research cannot rely solely on search engines. Hundreds of millions of pages of useful information, including free searchable databases, fail to get into indices of search engines. This article links to resources for helping you navigate the invisible web.
http://www.llrx.com/features/mining.htm
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>> Members Of Congress Oppose ICANN Action
Edward Markey (D-Mass.) and Lois Capps (D-Calif.) have asked the Commerce Department to step in and stop ICANN from creating new top-level domains ("TLDs").
Source: Wired http://www.wired.com/news/politics/0,1283,40228,00.html
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ARRESTING DEVELOPMENTS
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>> European Cybercrime Treaty Gets Overhaul
It's back to the drafting board for the proposed treaty on international enforcement of laws on the Internet. European officials expressed surprise that lobbying organizations would have a problem with government access to encryption keys and requirements that Internet Service Providers preserve large amounts of data.
Source: Reuters http://news.findlaw.com/legalnews/s/20001113/internettreaty.html
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SCRIPT KIDDIES
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>> Palestinians Continue Hacktivism
Defacement of Israeli web sites continues as the "E-Jihad" rages on.
http://www.attrition.org/mirror/attrition/2000/11/15/www.topnet.co.il/ mirror.html http://www.attrition.org/mirror/attrition/2000/11/13/www.syscom.co.il-1/ http://www.attrition.org/mirror/attrition/2000/11/13/www.robotec.co.il/ http://www.attrition.org/mirror/attrition/2000/11/13/www.tahal.co.il/ http://www.attrition.org/mirror/attrition/2000/11/11/www.pc-center.co.il/
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>> Colorado, Georgia Schools Targeted
Colorado and Georgia schools were attacked this last week. Just days after losing multiple domains to Anti Security, Colorado K12 Schools again lost control, this time to Security Podre.
http://kim.k12.co.us/ http://www.attrition.org/mirror/attrition/2000/11/13/kim.k12.co.us/ http://www.attrition.org/mirror/attrition/2000/11/14/techservices.doe. k12.ga.us/
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CASE SUMMARIES
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>> Corporations Are Persons Too
18 USC 1030(e)(8)(A), which prohibits intentionally causing damage to "one or more individuals" who own a "protected computer," protects corporations as well as natural persons.
US v. MIDDLETON, No. 99-10518 (9th Cir. November 16, 2000) http://laws.findlaw.com/9th/9910518.html
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>> No Use Is Bad Faith
The inference that "the Respondent has not made, nor taken any preparatory steps to make any legitimate commercial or fair use of the domain name" is sufficient to show bad faith on the part of the domain name registrant.
EUROMARKET DESIGNS, INC. v. DOMAIN FOR SALE VMI, WIPO Case No. D2000-1195 (November 1, 2000) http://arbiter.wipo.int/domains/decisions/html/d2000-1195.html
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>> Registration Is Use
Since Respondent offered no legitimate reason for the registration of a famous mark, Complainant prevails on the issue of use in bad faith.
LINDSKOG v. GRATISPORR, eResolution Case No. AF-0434 (October 30, 2000) http://www.eresolution.com/services/dnd/decisions/0434.htm
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FAQTOIDS from http://boards.findlaw.com/
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Angela Knowslittle - 04:20pm Nov 9, 2000 (21. 39/40)
Domain theft
My father recently had an employee who was setting up a web site for him. We thought the employee had registered the domain name under the business name and address. Since the employee has left on bad terms we found out that he registered using his own name and address. He used my fathers credit card to pay for registering the name. Does my father have the right to the domain name if he has proof that he paid for it?
Devil's Advocate - 06:25pm Nov 14, 2000 (21.1 40/40)
re: Domain theft
Yes. Take a look at MTV v. Curry, 867 F.Supp. 202 (1994).
http://boards.findlaw.com/
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FINDLAW CYBERSPACE LAW UPDATE Copyright 2000 FindLaw, Inc. ```