The following, in no particular order, are our top ten favorite TechKnowledgy stories of 2006:

1.  Posner Appears Live as Avatar on Second Life.  If the words in that headline are gobbledygook to you, you better get with it!  Second Life is a popular online virtual world where users interact with each other through "avatars", which are basically animated cartoons of themselves.  Judge Richard Posner appeared live on Second Life on December 7th, and was interviewed on a variety of topics for two hours.   The illustrated transcript can be found here.  The idea that one of the most influential legal minds of our time is willing to embrace this emerging technology is just, well, cool. . ..

2.  Supreme Court Alit in Patent Cases.  While the world focused on the drama of the appointment of Justice Alito, IP lawyers had some drama of their own, with a fully loaded patent docket.  Decisions included eBay Inc. v. MercExchange LLC ,  where the Court sided with E-Bay against patents that would have shut down the "Buy-it-Now" feature, holding that patent holders are not automatically entitled to an injunction upon a finding of infringement.   The court also heard a number of high-profile cases including KSR v. Teleflex, seeking to resolve conflicts in standards for the obviousness requirement.  The year was capped with the Medlmmune decision, released early this year,  where the Supreme Court held that a patent license does not bar a validity challenge.  See Patently-O's in-depth recap of 2006.

3.  Keyword Advertising Rollercoaster.   2006 didn’t do much to clarify the state of the law on the use of trademarks in keyword advertising.  Two cases, Edina Realty v. TheMLSOnline.com and 800-JR Cigar v. GoTo.com held that the use of trademarks in keywords was a use in commerce, although in neither case did the plaintiff win summary judgment on likelihood of confusion.   The Merck v. Mediplan, Rescuecom and Buying for the Home cases reached opposite conclusions on whether trademark use in a keyword is a use in commerce. Rescuecom expanded the WhenU case’s ruling from adware to search engines.   Buying for the Home found the use to be nominative fair use.    Although much remains unclear, it appears that the original Geico v. Google decision’s acceptance of behind-the-scenes trademark use is the cornerstone of keyword analysis. 

4.  SPAM Stays on the Menu.  Anti-spam advocates faced a number of challenges this year and direct marketers were found licking their chops.  In Omega World Travel v. Mummagraphics, the Fourth Circuit found that the permissive CAN-SPAM act preempted Oklahoma's anti-spam statute, misleading headers were immaterial, and a common law trespass to chattels claim needs more than nominal damages.   Although domestic spammers appear to have free reign, Congress did assist in efforts to control foreign generated SPAM through the US SAFE WEB ACT.

5.   Passage of the Trademark Dilution Revision Act of 2006.  The new legislation makes it much easier for the owners of famous marks to prevent their use in non-competitive industries. 

6.  Dubious Milestones.  In the patent arena, IBM sets a high water mark for most patents ever issued to one company in one year (3, 621), while on the privacy front, sometime in mid December it is estimated that more than 100 million private personal records had been compromised through various security breaches reported as a result of Data Breach Security Laws.   

7.  Expansion of Section 230 Immunity.  It seems as though every new case under Section 230 of the Communications Decency Act further expanded the ISP safe harbor of that act.  Barrett v. Rosenthal, ruled that the ISP could not be held liable for republishing defamatory content, even if the ISP was aware of the defamatory nature of the content.  The court stated:

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.

In Delfino v. Agilent Technologies, Inc., the court held that Agilent was immune from suit under Section 230 where its employee used his office computer to send a number of emails, and make postings to online forums that were threatening in nature.  The plaintiff claimed that Agilent failed to take adequate measures to protect the plaintiff from those communications.  In so holding, the court found that the employer was a "provider of an interactive computer service", i.e., an ISP.  It appears to be the first court to so hold.

8.  Electronic Voting Shorts Out.  Many voters in the 2006 mid-term Congressional elections experienced electronic voting for the first time.  There were few instances of long days of vote recounting and hanging chad scrutiny as there was in the 2002 Presidential election.  That may because there aren't any chads to recount.  Many voters and a federal agency that advised the U.S. Election Assistance Commission spent 2006 challenging the new paperless voting systems

9.  The Switzernet.  Net neutrality continued to be a hot topic in 2006 although no significant legislation resulted.  The House Energy and Commerce subcommittee rejected a net neutrality bill in April of 2006.  The coming year should include renewed focus on this issue, particular given the change in control in Congress.

10.  New Software Licensing Models.  The ever changing hardware and software environment (i.e. ASP, Software as a Service, and Multi-Core Processors) are forcing creative approaches to software licensing.

By:  Tim Feathers and Steve Cosentino