E-Commerce Law Week, Issue 397

Old Searches Never Die, They Just Get Laid Away ... for Future Discovery
Many people don’t realize that every time they type "teri hatcher" into a search engine, logs of those queries are recorded and stored. But since Google chose to fight a Justice Department subpoena for a random sampling of its search query logs, along with a random sampling of URLs accessible through its search engines, a lot more people will realize that every search leaves a trace that at some point may be discoverable. So Google's partial victory in a federal court case on March 17 may be a Pyrrhic one indeed. For as people realize that their searches are in fact not as private or anonymous as they once thought, they may be less apt to "google" their favorite Hollywood starlets -- and so may be less likely to see the paid ads that Google has turned into a multi-billion dollar business. Then again, if, as the government claimed in this case, over one quarter of all Internet searches are for pornography, the potential loss of privacy may not pose much of a deterrent after all. If that proves to be the case, Google may have to change its motto from "Do No Evil" to "The Flesh Is Weak."

S&M, Meet TCP/IP
It may seem obvious that any legal standard based on "community standards" would need to be adjusted when faced with the universality of the Internet. But that's still very much an open question as a result of the Supreme Court's summary affirmance on March 20 of the district court's decision in Nitke v. Gonzales. In that case, a special three-judge panel of the federal district court in New York rejected a constitutional challenge to the Communications Decency Act’s (CDA) prohibition on knowingly transmitting obscenity over the Internet to a minor.  That court held that the plaintiffs had not adduced enough evidence to show that the CDA was "substantially overbroad." With just four words (“The judgment is affirmed.”), the Supreme Court upheld the district court's judgment, but left unresolved the question whether, or how, the community standards test for defining obscenity should be applied to speech on the Inernet. The Court thus effectively ensured that the most socially conservative communities (or perceptions of what they think) theoretically have the power to determine what the rest of the nation can see online, at least for the time being.

FCC Deadlocks on Verizon Petition for Relief from Broadband Obligations
On March 20, 2006, as a result of a 2-2 deadlock among Commissioners, the Federal Communications Commission ("FCC") failed to act on Verizon's petition to be relieved of common carrier (and related) obligations for its broadband services, resulting in the automatic grant of Verizon's petition by operation of law. This means that more of Verizon's broadband services (even when not used for Internet access) will now be immune from the reasonable rate and nondiscrimination requirements in Title II of the Communications Act. The broadband services covered by Verizon's petition include frame relay and asynchronous transfer mode services, as well as non-time-division-multiplexed-based (non-TDM) optical networking, optical hubbing, and optical transmission services. Excluded from Verizon's petition are special access services and TDM-based optical networking. Verizon also narrowed its petition so as not to request relief from universal service obligations.

FCC Seeks To Impose New Rules on Customer Proprietary Network Information
In response to public outcry over the commercial availability of personal telephone records, the FCC released a request for comments on the need to increase protection for customer proprietary network information ("CPNI") held by telecommunications carriers and, possibly, Voice over Internet Protocol ("VoIP") providers. The FCC released its request in response to a petition filed by the Electronic Privacy Information Center that described numerous sources that offer to provide personal telephone records for a price. The Commission also seeks comments on the effectiveness of the current opt-out rule for the transfer of CPNI between a telecommunications carrier and its joint venture partners or independent contractors, and it asks if an opt-in consent requirement should be implemented instead. Comments must be filed with the FCC by April 14, 2006 and reply comments are due May 15, 2006.

Open Content Movement Finds a Poster Child From MTV
In early March, the District Court of Amsterdam ruled that Dutch gossip magazine Weekend infringed the copyright in four photos which were posted on photography website flickr. Adam Curry, who, among other things, is a former MTV "video jockey," had posted the photos under the Creative Commons Attribution-NonCommercial-ShareAlike license, which allows photos to be used freely (with attribution) for non-commercial purposes, but not for commercial purposes (such as the use by Weekend). Weekend defended Curry's action by arguing that it was misled by the notice "This photo is public" that was posted with the photos, and therefore did not click on the Creative Commons "CC" symbol accompanying a "some rights reserved" notice (also posted with the photos), which led to a summary of the terms of the license. The court rejected this argument, stating that "it may be expected from a professional party like [the publisher of Weekend] that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet." The Curry decision thus holds (at least under Dutch law) that not only are Creative Commons licenses valid, but more suprisingly that publishers are under a duty to understand and investigate such licenses even in the face of a confusing statement like "This photo is public."

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