E-Commerce Law Week, Issue 440

Just What Makes Larry Lessig Think He Can Move That Rubber Tree Plant?

Those who feel the copyright system unfairly advantages intellectual property holders have once again come up empty in the courts.  In Kahle v. Gonzales, the Ninth Circuit ruled that Congress had acted reasonably when it removed copyright renewal requirements and extended copyright terms.  In reaching its decision, the court followed the Supreme Court's reasoning in Eldred v. Ashcroft (2003).  The Ninth Circuit found that Congress' decision to move from an "opt-in" to an "opt-out" copyright renewal system did not require First Amendment scrutiny, and that its extension of copyright terms did not violate the Copyright Clause of the U.S. Constitution.  Accordingly, it affirmed the district court's dismissal for failure to state a claim.  While the ruling should hearten copyright holders, it does little to lessen the legal uncertainty faced by companies and individuals that provide access to old, out-of-print and hard-to-find content over the Internet and cannot determine or locate the owner of the copyright.

New Group Hopes to Help International E-Businesses Walk the Line

In an effort to help Internet and technology companies "seek solutions to ... free expression and privacy challenges," the Center for Democracy and Technology and Business for Social Responsibility announced last week that they had joined over 20 "companies, human rights groups, investors, academics and technology leaders" to "produce a set of principles guiding company behavior when faced with laws, regulations and policies that interfere with the achievement of human rights."  The new group -- which includes Yahoo!, Microsoft, Google, and Vodafone -- also announced its intention to "establish[] a framework to implement the principles, hold signatories accountable and provide for ongoing learning."  While it will likely prove difficult for the group to reach consensus on specific guidelines, the group's end product could at least influence the way Congress and the media assess the next big controversy involving a company's compliance with oppressive foreign laws.

Arizona Court Applies Summary Judgment Standard to Effort to Unmask Web Posters

Following the Delaware Supreme Court's seminal ruling in Doe v. Cahill, another court has found that a plaintiff "must show that its claim would survive a Motion for Summary Judgment before being entitled to discover the identity of an anonymous speaker through any compulsory discovery process."  In McMann v. Doe, an Arizona trial court found that Massachusetts real estate developer Paul McMann had not made out a prima facie claim, and therefore could not subpoena domain name registrar GoDaddy.com or anonymization service Domains by Proxy, Inc., for the identity of the creator of an allegedly defamatory web site.  With Cahill and the Arizona court's ruling in McMann, these cases suggest that courts may be approaching a consensus that plaintiffs must meet something akin to the "summary judgment standard" before courts will require Internet service providers to disclose the identity of anonymous posters.

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