On Wednesday, a federal judge in California granted class-action status to a lawsuit against Target Corp. filed by the Baltimore-based National Federation for the Blind under the American's with Disabilities Act and two state law claims.
"This is a tremendous step forward for blind people throughout the country who for too long have been denied equal access to the Internet economy," said Marc Maurer, president of the NFB. "All e-commerce businesses should take note of this decision and immediately take steps to open their doors to the blind."
This comes on the heels of the DOJ settlement with Sylvan Learning Centers, and bodes well for increased accessibility for blind web surfers. Want to make your website more accessible? Check out the World Wide Web Consortium Web Content Accessibility Guidelines.
Here's the E-Commerce Times Article with more details.
The TechLawJournal has two articles today that do an excellent job of summarizing the state of the law as it applies to web sites and the ADA, and the recent settlement agreement between the Department of Justice and Sylvan Learning Centers. The settlement agreement imposes on Sylvan obligations of public accommodation under the Americans with Disabilities Act. This is not necessarily consistent with the limited judicial precedent on the topic. The articles are reproduced below with permission from the TLJ. By the way, although much of it is subscription based, this type of excellent content is typical of what you will find at David Carney's TLJ.
This is a tremendous lecture from Randy Pausch, given as part of the "Last Lecture" series, where professors are asked to speak to their audience as if they were giving their last lecture, on the topics that are most important to them. Pausch, a Carnegie Mellon University computer-science professor, had coincidentally just been diagnosed with pancreatic cancer, and is expected to live just a few months, making his presentation particularly poignant. This is one brilliant guy, and he provides his audience with an entertaining view of life's lessons, delivered in an upbeat presentation that will give you a fresh outlook on life, work, and personal fulfillment. The talk is titled "How to Live Your Childhood Dreams". Not your typical fare for the TechKnowledgy Blog, but the fact that Pausch is a virtual reality pioneer (visit Alice) was enough of an excuse to share this with you all. It is a gem.
You know the Video Professor - he's the guy on those infomercials that urges you to buy his computer education programs by trying them for free. The company even encourages consumers to search for reviews online before buying. Problem is, lots of consumers are complaining online that they were mislead as to the "free" part, or are otherwise unhappy with the product. Perhaps in an effort to draw more attention to the negative reviews, the Video Professor has taken to suing the bastards who are saying these bad things.
Do you suppose the Prof. is aware of the Streisand Effect? Or the likelihood of succeeding in stifling anonymous criticism in light of the First Amendment rights involved and other available defenses? In any event, right or wrong, the online world does not like bullies, and the backlash has begun (see below).
On a practical note, these links provide a good tutorial and resources (including forms) for those involved, or considering getting involved, in litigation to identify anonymous internet posters.
-Photo courtesy of Llyod Doppler under Creative Commons
AltLaw is a web searchable database of federal court opinions. Pretty handy. Here's what it says about itself:
AltLaw is a joint project of Columbia Law School’s Program on Law and Technology, and the Silicon Flatirons Program at the University of Colorado Law School. AltLaw was written by Stuart Sierra and Paul Ohm, with help from Luis Villa, and produced by Tim Wu.
For most courts, opinions are available from mid 1990's to April of 2007, and recent opinions should be available soon. Before long, the site expects to be able to offer opinions within 24 hours of publication by the courts. More from the site:
The law is meant to belong to the people, but it can be surprisingly hard to find. Case reports, a major part of the laws of the United States, are hard to get at, and even when on the Internet, rarely searchable. To get full access you generally need either a library of law reports, or an expensive subscription to an online database, which can cost hundreds of dollars per hour.
AltLaw is a small effort to change that—to make the common law a bit more common. AltLaw provides the first free, full-text searchable database of Supreme Court and Federal Appellate case reports. It is a resource for attorneys, legal scholars, and the general public.
- Full text search of the last decade or so of federal appellate and Supreme Court opinions.
- Advanced search options (proximity searching, Boolean, concentration, wildcards, etc.)
- Fast and free
- Updated daily (not yet, work in progress)
- Coverage, for most Circuits, limited to about the last 10 to 15 years.
- West Reporter Citations (i.e., 23 F.3d 178) not yet available (work in progress)
- As of yet, no state law or district court cases.
Watch out Westlaw and Lexis . . ..
The Appellate Court of Illinois recently denied a motion to dismiss filed by the online stock photo company Corbis, effectively preserving claims that Corbis violated Jame's Browns right of publicity by offereing to license photos of the the late singer. The decision is here. The case is interesting, because presumably there would be some uses of the photos that would not violate Brown's right of publicity, for fair use or first amendment reasons. Corbis would presumably license the photos to anyone who would pay the fee, and note that the photo comes without a publicity release, leaving it up to the licensee to use the photo in a lawful manner. Nonetheless, the court is willing to entertain the claim that Corbis, by offering to license the photos, is thereby engaging in some commercial activity for which it may need the permission or consent of The Godfather of Soul. Internet Cases has a good summary of the case.
The US District Court in Utah has ruled that "Novell is the owner of the UNIX and UnixWare copyrights" that are the subject of the dispute between Novell and SCO. The opinion will undoubtedly impact SCO's suit against IBM. The opinion is here. The Court concluded:
"Therefore, Novell is entitled to a declaration of rights under its Fourth Claim for Relief that it was and is entitled, at its sole discretion, to direct SCO to waive its claims against IBM and Sequent, and SCO is obligated to recognize Novell's waiver of SCO's claims against IBM and Sequent. Accordingly, Novell's motion for partial summary judgment on its Fourth Claim for Relief for declaratory judgment is granted, and SCO's cross-motion for summary judgment on Novell's Fourth Claim for Relief is denied."
SCO responded in a statement that it "is obviously disappointed with the ruling", but that it is only a flesh wound, and that even though its arms and legs had been chopped off, it could still butt IBM and Novell with its head.
Just finished my Journal of the Licensing Executive Society, which includes the results of their most recent member survey on licensing issues. There were some interesting statistics that suggest some best practices to adopt in negotiating deals. For example, when asked "thinking about licensing agreements entered into in the last twelve months, with the benefit of hindsight, which, if any of the following contract characteristics would you now restructure?" The top three answers were as follows:
· Field of use restrictions (43%)
· Technical Milestones (40%)
· Business Milestones (44%)
· The other side is not putting their promised effort into the product/technology. (53%)
· Revised business strategy. (40%)
· New Information has emerged about the market opportunity. (39%)
I think it is interesting to note that 28% responded that they would restructure some of last year's deals if they could, because they now realize that they made mistakes in negotiating. Isn't that amazing? Over one fourth of the respondents would restructure some of last year's deals, and mostly because the other side is not putting their promised effort into the product/technology. Even more amazing is the fact that among respondents that identified themselves in the university/government space, a whopping 71.8% complain that the reason for wanting to restructure would be the failure of the other side to put forth the promised effort.
So what does all this mean? The survey results would tend to suggest that when structuring and drafting license and development agreements, more focus should be placed on the technical and business milestones, and, to the extent possible, contractual provisions should be structured to provide some assurance that each party will, in fact, put forth the promised level of effort into the subject technology. Carefully crafted, detailed, technical and business milestones will clarify the party's expectations, duties, obligations, and assumptions on the front end of the deal, and considerably decrease the likelihood of any surprises in terms of the level of effort or achievement as the transaction proceeds.
Every once in a while, it's not an entirely bad thing when lawyers get sued, just to keep them honest. The case of Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey is one lawsuit that I was glad to see dismissed on summary judgment by the United States District Court for the Eastern District of Pennsylvania. Users of the popular internet archive tool the Wayback Machine , will breathe a sigh of relief. The dispute began in early July 2005, when Healthcare Advocates filed suit against the law firm of Harding, Earley, Follmer & Frailey alleging, among other things, that the law firm violated the Digital Millennium Copyright Act, protections against circumvention of a technological measure. (Section 1201(a) of the Digital Millennium Copyright Act provides "no person shall circumvent a technological measure that effectively controls access to a work protected under this title.")
In the Healthcare Advocates case, Healthcare Advocates had provided the Wayback Machine with the robots.txt code, which allowed a site to opt out of inclusion in the Wayback Machine. The Healthcare Advocates information
This is an excellent article that takes on the issue of design patents being issued in situations where even the low threshold of originality required for copyright protection is too high, such as in the case of design patents on business forms. Excerpt:
The standard for copyright protection is notoriously low — the work must be independently created by the author and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category.
In contrast, and for good reason, the standard for design patent protection is much more burdensome. Design patents protect new, original, ornamental, and non-obvious designs. This more difficult standard, which generally subsumes the copyright standard, would lead one to assume that anything failing the low copyright would not be eligible for design patent protection. Then again, one might be wrong. The Patent and Trademark Office has issued design patents for blank forms and recent case law has either upheld design patent protection for blank forms or declined to categorically refuse such protection.
This article explores the blank forms doctrine in copyright law, the overlap between copyright and design patent protection, why the law's refusal to protect blank forms under copyright law is necessarily inconsistent with the law's protection of blank forms via design patents, and possible judicial, Congressional, or administrative solutions to resolve this inconsistency.
Read the whole article here.
ChoicePoint - the case that really started it all - announced today that it has settled with 43 states over the 2005 breach of its database that exposed mass quantities of consumer information. A shock at the time, perhaps, but similar disclosures have become a daily occurrence. You might recall that the ChoicePoint breach involved thieves posing as small business customers who were able to gain access to ChoicePoint's database, possibly obtaining the personal information of 163,000 people according to the FTC.
In January, ChoicePoint Settled with the FTC for approximately $15 million. At that time, at least 800 cases of identity theft had reportedly been traced to the breach.
The U.S. Dist. Court in Washington State has dismissed a CAN-SPAM Act case on the basis that the plaintiff suffered damages that were more like those typically experienced by consumers, rather than those experienced by ISP's. At issue in Gordon v. Virtumundo was whether the plaintiff was an "internet access service" that was "adversely affected" by the subject spam. Noting that the plaintiff had not suffered the ISP or IAS specific types of burdens described by Congress (such as harm related to bandwidth, hardware, Internet connectivity, network integrity, overhead costs, fees, staffing and equipment costs), the court concluded that although the statutory definition of an IAS is very broad, the nuisance/consumer type damages alleged were not the type required to be suffered in order to have standing under CAN-SPAM.
According to the opinion, the limited private action under CAN-SPAM is to provide a remedy to true ISP's that have to hire extra resources, provide more bandwidth, and generally incur other direct damages as a result of the volume of spam they handle, not to provide consumers with a cause of action. The decision also held that the state law claims in the case were pre-empted. The case is James S. Gordon et al. v. Virtumundo, Inc., et. al., Case No. 06-0204-JCC.
Photo courtesy of Robyn Lee under Creative Commons.
And we thought we were immune from the risks of IP law that our clients face each day. If the debacle over patented estate planning techniques were not enough, we now have to be concerned about copying the pleadings of others, lest we face a copyright infringement claim! The Wall Street Journal Law Blog has an interesting post on this topic. Most interesting from my perspective for the lack of knowledge of copyright law demonstrated by the comments, presumably from lawyers.
For example, one comment reads: "Any pleading filed with a court is
Follow the money. . .. Do you want to know how the "domainers" are making money off of the internet these days? CNN's Bu;siness 2.0 magazine has a good article about Kevin Ham, who is presumably the best at everything from typosquattintg and domain tasting, to straight domain name brokering. The article covers some of the creative ways these folks are squeezing money out of the net these days (to the tune of perhaps $70 million a year for Ham), and it explains to some extent why the web looks more and more like an endless vista of parked pages cluttered with random ads and links. Thanks to David Canton for pointing out that article.
Search engines and ISP's have widened the moat with this decision from the 9th Circuit, which essentially holds that Google's practice of copying thumbnail versions of photographs from third party web sites, with "in-line linking" to the full size version of those photos at their original location on the web, constitutes fair use. Goldman's summary here.