Court Refuses to Enforce Netscape/AOL's
"Browse-Wrap" Agreement.....
Reminding the reader that "Promises become binding when
there is a meeting of the minds, and consideration is exchanged,"
U.S. District Court Judge Alvin K. Hellerstein ruled that the
mere downloading of free software, without some sign of assent
to the terms and restrictions sought by the provider, does not
bind the user to those terms and restrictions. Acknowledging
that agreement could be indicated by "a click of a mouse,"
or even a willful failure to act in certain circumstances, the
Court ruled that Netscape's failure to require users to affirmatively
indicate their assent, or even to view the license agreement
before downloading the software, was fatal to its argument that
a contract had been formed. The Court therefore refused to enforce
the mandatory arbitration clause contained in that license agreement.
Specht,
et al vs. Netscape Communications Corp. and America Online, Inc.,
No. 00 Civil 4871, (U.S.D.C., NY, July 3, 2001).
......While the ABA Considers a Resolution
Opposing UCITA.
Customarily, the American Bar Association (ABA) reviews and votes
on all proposed uniform laws, but until now, the proponents of
UCITA, the Uniform Computer Information Transactions Act, have
blocked that review. However, the Tort and Insurance Section
of the ABA will propose a resolution at its Annual Meeting in
Chicago, Illinois on August 2-8, 2001, recommending that the
ABA vote to oppose the adoption of UCITA anywhere. The proposed
resolution recommends
that NCCUSL withdraw and extensively revise UCITA "to more
adequately reflect the current state of the law concerning the
licensing of intellectual property with due regard for basic
rights of consumers and the protection of Licensees from unwarranted
unilateral actions of the Licensor."
Area Code 224 by November, 2001;10-Digit
Dialing by January, 2002?
Richard Matthias, Chair of the Illinois Commerce Commission (ICC)
reported at the ICC's meeting this month that 7-digit dialing
may soon become a thing of the past, contrary to the preference
of the ICC and most Chicago-area consumers. The problem, Matthias
reported, is that both the telecommunications industry and the
Federal Communications Commission (FCC) want 10-digit dialing
nationwide. Although Neustar, Inc., the company that distributes
phone numbers for the FCC, reports that it has run out of numbers
for the 847 area code, the ICC notes that about half of all 847
numbers have been assigned to telephone service providers, but
are not in use, so that there is no crisis. However, the FCC
has ordered the imposition of the overlay area code of 224 for
Chicago's northwest suburbs beginning in November, 2001, refusing
to grant any more waivers, and proposes 10-digit dialing in the
Chicago area by January, 2002. Seamus Glynn, associate director
of the Citizens Utility Board, said his organization plans to
go to federal court to try to block enforcement of the FCC's
10-digit dialing order for Illinois once the 224 code is activated.
As reported by the Chicago Tribune.
Copyright I: Owner
of Copyright and Not Exclusive Licensee, Must Register.
Under 17
USC 411 (a), only the owner of a copyright, and not the exclusive
licensee, has the right to register copyrights for which enforcement
is sought under The Copyright Act. Morris
vs. Business Concepts, Inc., No 00-7509 (2d Cir. July 27,
2001) Copyright II: Part
Numbers Defining Characteristics Not "Creative;" No
Copyright.
Manufacturer's part numbers which were composed based on a system
of defining characteristics, were, in themselves, utterly lacking
in creativity, and not entitled to copyright protection. Southco,
Inc. vs. Kanebridge Corporation, No. 00-1102 (U.S.Ct.App,
3rd Cir., July 20, 2001).
Law Practice I: New
York Approves Nation's First Multi-Disciplinary Practice Rules.
Following the recommendation of the New York State Bar Association,
New York has become the first state in the nation to adopt multi-disciplinary
practice (MDP)
rules. Law Practice II: While
the Georgia Bar MDP Committee Recommends Approval.
Calling MDP "inevitable," as we go to press, the Georgia
State Bar Association's MDP Committee has just released its report,
though the report is not yet posted on the State
Bar of Georgia website. As reported by Law.com.
Law Practice III: California Rules Lawyer Websites Do Not Constitute
Solicitation....
The Ethics Committee of the California State Bar Association
has ruled that law firm websites do not constitute solicitations,
but rather "communications,"
which must not be false or misleading. Law Practice IV: ....While
Maryland Rules that Websites Linking Lawyers to Clients is Unethical.
A website on which clients posted their cases, and lawyers bid
for the work was found by the Maryland
State Bar Association to violate several ethical canons,
including fee sharing and possible conflicts of interest. As
reported in BNA's
E-Commerce Law Daily.
Trade Secret: Patent
& Trade Secret Claims Based on Same Facts Should Not be Split.
Even though Plaintiff filed State trade secret claims
along with his Federal patent claim, it was error to split the
two claims arising from the same set of facts, so that each was
appealable to a separate Judicial Circuit. Doing so had a "troublesome
effect" on the calculation of damages, and "squander[ed]
judicial resources." Nilssen
vs. Motorola, Inc., No. 00-2049, U.S. Ct.App, 7th Cir. (June
25, 2001).
Defendant's Delegation of Duty to 3rd
Party Does Not Equal Agreement by Plaintiff.....
Pursuant to contract, Defendant promised Plaintiff $15 million
worth of business as a subcontractor, then delegated that duty
to a separate entity. But without Plaintiff's consent to the
delegation or agreement to novation, Defendant was still liable
under the contract to Plaintiff. Transportation
and Transit Associates, Inc. vs. Morrison-Knudsen Corporation,
Nos. 00-1934 and 00-2055, U.S. Ct. App, 7th Cir, (June 25,
2001).
.....But Plaintiff, Entitled to Match
Low Bid, Cannot Prove Lost Profit from Denial.
Plaintiff, whose status as "most preferred vendor"
entitled him to match the low bid of any competing subcontractor,
could not prove that he would have earned any profit on such
undertakings, even if he had had the opportunity to match the
low bid, and therefore, could not prove damages. Transportation
and Transit Associates, Inc. vs. Morrison-Knudsen Corporation,
Nos. 00-1934 and 00-2055, U.S. Ct. App, 7th Cir. (June 25,
2001).
No Preliminary Injunction for Plaintiff
Who Sought Only Damages.
Where Plaintiff sought only damages in contract dispute, and
damages were adequate remedy at law, it was error to grant preliminary
injunction in favor of Plaintiff. Franz
v. Calaco Development Corp., No. 2-00-1023, McHenry County
(June 21, 2001).
GPS: The Sequel?
Location Privacy Bill Introduced in U.S. Senate. You will undoubtedly remember our report last month
about the unsuspecting fellow who rented a car with Global Positioning
Satellite (GPS) technology, only to find $450 charged from his
credit card for exceeding the speed limit (found out by the GPS)
even before he returned the car. Perhaps in response to that
episode, Senator John Edwards, D, North Carolina, has introduced
S 1164, the Location Privacy Protection Act, designed to give
users notice that such data will be collected, and to prevent
its sale and use without the user's permission. To view the bill,
go to http://thomas.loc.gov/,
and search for S 1164.