CyberLawg by www.CyberLaw.pro http://www.cyberlaw.pro Thu, 24 Jul 2008 19:18:52 +0100 FeedCreator 1.7.2 http://www.cyberlaw.pro/images/M_images/joomla_rss.png http://www.cyberlaw.pro CyberLawg by www.CyberLaw.pro http://www.cyberlaw.pro/cyberlawg/government-regulation/fcc-to-approve-xm-sirius-merger.html The FCC, after being deadlocked along party lines, is expected (http://www.washingtonpost.com/wp-dyn/content/article/2008/07/23/AR2008072303351.html) to clear a merger between satellite radio providers XM and Sirius, so long as the firms meet certain conditions, reportedly the firms' payment of $20 million in fines for violations regarding tower locations and power limits. The approval of the merger comes as a disappointment to consumer groups and Democratic FCC Commissioners, who had heavily opposed the merger based on monopoly concerns. These interests were of the opinion that the combination of the only two satellite radio providers would be the definition of a monopoly. Others, such as Republican FCC Commissioners and the firms themselves, felt that the varied choices in audio programming, such as HD Radio, analog radio, podcasts and similar alternatives were sufficient to restrict any potential price gouging by the new combined firm. The Department of Justice’s Antitrust Department had previously cleared the merger on similar grounds. This was the classic “close call.” XM and Sirius have been struggling with profitability from the beginning of their existence and there were legitimate questions as to whether satellite radio would be viable at all. On the other hand, the technology is very new. There are equally legitimate questions as to whether allowing a merger of such new technology is a sound long-term choice. All is not lost even if the DOJ and FCC’s decisions are proven to be wrong as the years pass The Federal Government has the power to break up monopolies when the need arises. While the “break up” process is substantially more problematic than the “prevention” powers, the option does remain. More likely, market powers will be sufficient to keep the XM-Sirius entity in check, at least in the short term. CyberLawg - Government Regulation Thu, 24 Jul 2008 08:43:28 +0100 http://www.cyberlaw.pro/cyberlawg/trademarks/web-retailers-bear-no-burden-to-police-trademarks.html A federal judge in New York has ruled that online retailers do not have a burden to affirmatively police trademark infringers that sell on their sites. The case pitted Tiffany, maker of fine jewelry, against eBay. Tiffany asked the court to rule that eBay should be responsible for policing its site for trademark infringers, often in the form of forgeries sold on eBay. The Court ruled (http://www.washingtonpost.com/wp-dyn/content/article/2008/07/14/AR2008071401971.html) that eBay did not have a duty to affirmatively seek trademark infringers on its site, noting that the duty to protect a trademark falls to the mark’s owner, not a third party sales outlet. Of particular importance, however, was the fact that eBay had promptly investigated and removed any reports of trademark infringements provided by Tiffany. This is a sensible ruling. eBay and other online retailers should not be assigned policing tasks that are already assigned to other parties, notably, the mark holders. Once the mark holders do their part by notifying retailer of infringement, however, online retailers should have the burden of investigating credible IP threats on their respective sites. The judge noted that eBay had done that in this particular factual scenario. Other courts would be wise to adopt similar assignments of burden to both mark holders and online retailers in future matters. CyberLawg - Trademarks Tue, 15 Jul 2008 15:57:22 +0100 http://www.cyberlaw.pro/cyberlawg/security/telecom-granted-spying-immunity-by-senate.html The Senate approved a bill today that will finally provide some guidance on procedures for government eavesdropping under what the Bush Administration has dubbed its “terrorist surveillance program.” The bill provides that any future surveillance be approved by the non-public United States Foreign Intelligence Surveillance Court. Of particular note in the bill is the fact that telecom companies were granted immunity for providing assistance to the Bush Administration so long as they can show that they were given assurances from the Administration that the eavesdropping was legal. Opinions were mixed about this immunity. Senator Patrick Leahy noted (http://www.washingtonpost.com/wp-dyn/content/article/2008/07/09/AR2008070901780.html) that the bill “does not provide accountability for the six years of illegal, warrantless wiretapping initiated and approved by this administration.” Others note that telecommunication firms were placed in difficult positions; either obey the administration or suffer the political consequences. Of course, AT T and Verizon Communications, among others, have very large legal departments that could easily have vetted the issue by asking for clarification from the federal courts in a protected, non-public manner. The fact that these firms turned a blind eye to their customers’ civil rights is problematic. If blanket immunity is not appropriate, what is? Appreciating the unique circumstances, perhaps Congress could have split the baby, capping economic damages, but allowing lawsuits to continue. There is little question that civil liberties were violated in this case. Granting a total pass on liability for telecommunications companies that turned a blind eye to these issues was not the best policy choice. CyberLawg - Security Wed, 09 Jul 2008 15:52:41 +0100 http://www.cyberlaw.pro/cyberlawg/government-regulation/doj-antitrust-probes-google-yahoo-deal.html The deal that allows Google to provide some advertising for Yahoo searches has unsurprisingly attracted a formal antitrust probe from the Department of Justice. The fact that the Bush Administration’s Department of Justice, comfortably hands-off in recent years, has begun a formal investigation is not good news for the deal. As a report (http://www.washingtonpost.com/wp-dyn/content/article/2008/07/01/AR2008070102622.html) notes, attorneys for Yahoo and Google believe that the deal is “pro-competition.” Opponents feel that the deal will prevent Yahoo from wanting to compete with the hand that feeds it a portion of its advertisements. This is a classic example of the adage “if you can’t beat ‘em, join ‘em.” Yahoo just failed to consummate a deal that was primarily designed to allow the firm to more fully compete with Google. Weeks later, both firms’ arguments that a combined deal is pro-competition is a tricky pill to swallow. So why even try it? The two firms are unlikely bedfellows because each is able to use the other to its own ends at the present point in time. The Google deal provides Yahoo with an “out” from Icahn, Microsoft, and Yahoo shareholders all clamoring for a deal. The primary beneficiary of an independent Yahoo? Google. The search leader has little interest in anything but the status quo: Google dominance in search marketing. Keeping Yahoo independent helps to maintain that status quo. Adopting the famous quote from Sun Tzu, Google truly believes it is best to “keep its friends close, and its enemies closer,” at least until the Department of Justice has its say. CyberLawg - Government Regulation Tue, 01 Jul 2008 23:42:28 +0100 http://www.cyberlaw.pro/cyberlawg/domain-names/icann-to-vote-on-expansion-of-gtlds.html ICANN, holding its 32nd International Public ICANN Meeting June 22-26, 2008 in Paris, France, is set to vote on an substantial expansion of opportunity for new Generic Top-Level Domains (gTLDs). gTLDs are top-level domain extensions such as (.com, .net, and .org). It is expected that the voting bloc will approve the proposal when it comes up for the vote Thursday. Late last summer, the ICANN Generic Names Supporting Organization issued their final report (http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm) about the potential expansion. In a nutshell, the report recommended that ICANN liberally grant new gTLDs so long as the new gTLD and their operators would meet certain requirements. First, strings in new gTLDs must not be confusingly similar to an existing top-level domain. So, you’re not going to see extensions like .con, .comm, or .nett. Second, strings must not be a “Reserved Word.” This includes no single letters, no two-letter extensions, and no Single  Letter/Single Digit combinations.  You wont see .a or .hq or .4H. Third, “strings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law.” Will “.xxx” be appropriate? We’ll likely see some type of dispute between the powers that be before that question is resolved. Fourth, “strings must not infringe the existing legal rights of others that are recognized or enforceable under generally accepted and internationally recognized principles of law.” Just as the current policies prevent trademark infringing .com or .net names, any new gTLD would require similarly. Finally, there are some technical and procedural requirements, mandating that any operator have the financial, technical and legal means to successfully run the extension. So what does it all mean? In a word: confusion. There are already numerous gTLDs that do not receive much use. Adding hundreds of others could mean a very complicated web browsing environment. Time will tell, but chances are good that this means little for the average consumer unless business and industry start to heavily adopt the new extensions. Given the fact that use of the current alternative gTLDs is limited it is hard to imagine that additional gTLDs will attract much attention. CyberLawg - Domain Names Tue, 24 Jun 2008 17:57:26 +0100