E-Commerce Law Week, Issue 337

Second Circuit Rules That Delaying Delivery of Email Not a Wiretap
The US Court of Appeals for the Second Circuit has found that delaying the delivery of email is not an "intercept" prohibited by the Wiretap Act (18 U.S.C. 2510 et seq.). In its January 25 decision in  Hall v. EarthLink, which involved emails held by EarthLink while account difficulties were resolved, the court noted that section 2510(4) of the Act defines an "intercept" as the "acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." But the definition of "device" in section 2510(5)(a) specifically excludes "any telephone or telegraph instrument, equipment or facility, or any component thereof . . . being used by a provider of wire or electronic communication service in the ordinary course of its business." Relying on the Act's legislative history, the court determined that "Congress’ use of the term 'telephone' was thus understood to include the instruments, equipment and facilities that ISPs use to transmit e-mail," and that the conduct in question was performed in the ordinary course of EarthLink's business.

No DMCA Anti-Circumvention Liability Where Passive Bits Don't Control Access, Court Finds
Has a guilty conscience over violating intellectual property laws ever stopped you from typing with your favorite font? Probably not. Still, thanks to a recent federal court decision, you can rest assured that no copyright laws will be broken the next time you use Adobe Acrobat to edit a document -- no matter which font you use. In  Agfa Monotype v. Adobe Systems, the US District Court for the Northern District of Illinois, Eastern Division, ruled that features of Adobe’s Acrobat 5.0 software that identify which fonts are subject to copyright restrictions did not violate the anti-circumvention provisions of section 1201 of the Digital Millennium Copyright Act (DMCA). The January 13 ruling established that "passive" measures -- which do not encrypt, scramble, or otherwise manipulate data to control access to a copyrighted work -- could not be considered "technological measure[s]" that control access to a copyrighted work under the DMCA. The Agfa Monotype decision stands for the important principle that consumers who buy technology products can ordinarily assume that they are acquiring the full range of rights that normally accompany such a product. 

As if the Emails Weren't Bad Enough -- Spammer Sues User for Complaining
Evidently inspired by Bob Dylan ("everything’s a little upside down"), spammers have started suing their victims, at least when the victims turn the spammers in. In  Atriks v. Jay Stuler, several Internet service providers terminated Atriks' accounts due to a customer’s complaint about receiving spam. Atriks in turn filed suit against the customer who complained. Now, it's up to a judge to decide whether the spammer has a legitimate case. The causes of action, defamation and tortious interference with contract, are fairly broad. If Atriks prevails, companies and individuals who report spammers may have to check twice before treating a message as spam.

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