E-Commerce Law Week, Issue 522

Ninth Circuit  Remands Warrantless Wiretapping Case Against AT&T

The Ninth Circuit has sent Hepting v. AT&T back to the U.S. District Court for the Northern District of California for consideration "[i]n light of the FISA Amendments Act of 2008."  As we have previously reported, Hepting challenges the legality of AT&T's alleged cooperation with the Bush Administration's former warrantless wiretapping program, and was on appeal following Judge Vaughn Walker's 2006 denial of both the government's and AT&T's motions to dismiss on state secrets and other grounds.  Odds seem good that Judge Walker will grant the motions to dismiss this time around, since the FISA Amendments Act of 2008 effectively provides communications providers with retroactive immunity for their alleged cooperation in the warrantless wiretapping program.  The FISA Amendments Act states that any civil action alleging that an "electronic communications service provider" cooperated with the warrantless wiretapping program must be dismissed if:  (1) the Attorney General certifies that the provider received a "written request ... from the Attorney General or the head of an element of the intelligence community ... indicating that the [requested surveillance] was ... authorized by the President ... and ... determined to be lawful"; and (2) the district court with jurisdiction over the suit determines that this certification is "supported by substantial evidence."

Federal Circuit Rules that Open Source License Creates Enforceable Copyright Conditions

In a win for the open source movement, the Federal Circuit recently held that "[c]opyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material" and can obtain an injunction to enforce the terms of their licenses. In Jacobsen v. Katzer, the Federal Circuit held that a developer who licensed his software under an open source license had an economic interest in ensuring compliance with the licensing conditions, and that this interest was protected under copyright. This ruling should help companies obtain injunctions to protect their own open source software against unauthorized use by competitors.  On the flip side, companies should review their own use of open source software to ensure that they are complying with all relevant licensing conditions.

Court Lowers the Bar for ISPs' CAN-SPAM Suits

The CAN-SPAM Act bars false or misleading "from" lines and deceptive "subject" lines in emails.  It also allows any “provider of Internet access service adversely affected by a violation” of these or certain other provisions of the Act to sue the alleged spammers for an injunction or damages.  In ASIS Internet Services v. Active Response Group, a federal court in California ruled in July that an ISP is “adversely affected by a violation” within the meaning of the statute if it has "carried the [defendant's] unlawful spam over its facilities" and has "suffered ISP-specific harms, such as ... network problems or increased costs" due to any spam sent through its servers -- even if the ISP does not allege that the defendant's spam in particular caused the spam-related harm.  Because the plaintiff ISPs alleged that their servers processed allegedly unlawful emails sent by the defendant, and claimed that they "incurred spam-related expenses for filtering systems, expanded server and network capacity, and personnel time," the court found that they had standing to sue the alleged spammers and therefore denied the defendant's motion to dismiss.

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