E-Commerce Law Week, Issue 352

Federal Court Cuts Down "Broadcast Flag" in Battle Against Piracy
In a sweeping victory for electronics manufacturers, a federal appeals court overturned new government regulations designed to restrict copying of digital television content. On May 6, a three-judge panel for the US Court of Appeals for the District of Columbia Circuit held that the Federal Communications Commission (FCC) overstepped the limits of its Congressionally delegated authority.  The FCC had prohibited the manufacture of any hardware that would not support its anti-piracy technology called the “broadcast flag.”  The decision is also important because it dramatically curtails future FCC efforts to  dream up new  ways of regulating the design of consumer electronics  (and because Steptoe & Johnson represented the winning side).  

Protectionism In The Garden State ... and Beyond
Bruce Springsteen was famously born in the USA, and, if he wants a service contract with his home state of New Jersey, he'll have to stay there.  On May 5, New Jersey Acting Gov. Richard Codey signed into law S.B. 494, a bill requiring that all work done under state contract be performed within the United States.  New Jersey joins a growing number of states -- including Maryland, North Carolina, North Dakota, and Tennessee -- that have enacted legislation targeting the outsourcing of jobs to foreign countries.  Lately, there has been an affinity of governments -- both in the US and abroad -- to use the excuse of “data protection” to pursue protectionist policies.  But these states have decided they don't need an excuse; they've simply banned the outsourcing of work to other countries.

FTC Tries to Take Mystery out of CAN-SPAM
Most consumers of canned meat take the view that the less they know about spam the better.   But businesses can't take the same approach to the CAN-SPAM Act, particularly because the FTC continues to publish interpretations and clarifications of the Act's terms.  On May 12, the FTC issued its latest, a new Notice of Proposed Rulemaking, seeking, among other things, to define a "person" and a "sender" under the meaning of the statute and asking whether entities that receive opt-out requests from email recipients should be required to honor those requests within three days, rather than the current ten-day timeframe.

Trademarks Blindside Google
Search engines make a remarkable amount of money selling ads that are triggered by the search terms you enter.  Type in "American music" and Google serves you an ad for allcoolmusic.com.  Type in "American clothes" and Google serves you an ad for unionwear.com.  Type in "American blinds" and Google, well, Google gets served with a lawsuit.  That's because there's a company called American Blind & Wallpaper Factory, which claims that its trademarked name allows it to prevent the use of "American blinds" as a trigger for ads for any other company.  This is a controversial claim, to say the least, but it has proven surprisingly strong in the courts.  The most recent court to buy into the cause of trademark maximalism, at least preliminarily, is the US District Court for the Northern District of California, which denied Google's motion to dismiss American Blind's trademark counterclaims.  The court found that  when search engines use a trademarked name to trigger ads for competing companies, the search engines have used the trademark in commerce, a use that supports a claim of trademark infringement.  This is bad news for search engines and consumers but good news for companies with aggressive trademark programs.  

Questions and comments about E-Commerce Law Week are always welcome.  Please send your feedback to Sally Albertazzie.