E-Commerce Law Week, Issue 618

Commerce Department Seeks Comment on Cybersecurity Issues

The U.S. Department of Commerce is soliciting comments "from all stakeholders," including the commercial sector, on public policy and operational challenges to cybersecurity.  The notice of inquiry poses questions on a number of topics:  quantifying the economic impact of cybersecurity incidents, raising awareness, website and component security, authentication/identity (ID) management, global engagement, product assurance, research and development, and an incentives framework for evolving cyber-risk options and cybersecurity best practices.  The Department's Internet Policy Task Force will take comments into account when it issues a report to the Obama Administration with recommendations for domestic and international policies aimed at improving cybersecurity and promoting Internet commerce.  This notice of inquiry is a follow-on to an earlier notice regarding privacy issues, which we reported on in April.  Comments in response to this new notice are due by September 13, 2010.

Librarian: I ♥ Jailbreakers

In his fourth triennial rulemaking under the Digital Millennium Copyright Act (DMCA), the Librarian of Congress has delineated six new classes of works that will be exempt from the DMCA's anti-circumvention provision.  According to the DMCA, "[n]o person shall circumvent a technological measure that effectively controls access to a [copyrighted] work," without permission from the owner of that work.  However, the DMCA offers an exception to this rule for "persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of [a] particular class of work."  The Librarian determines which classes of works are subject to this exception.  The six new exempt classes include, inter alia, third-party applications that a person downloads onto a smartphone (aka "jailbreaking") and another that allows mobile phone owners to bypass phone locks in order to switch providers.

French Court Chips Away at Immunity for Third-Party Content

On July 20, a regional French appeals court ruled that eBay International and eBay France were liable for an eBay vendor's sale of counterfeit goods.  The court found that eBay was not a mere "host" or "provider" of communications services protected by the French Law for Confidence in the Digital Economy (LCEN) against liability for third-party content, because "the activity of [eBay] was not … 'purely technical, automatic and passive'" within the meaning of the law.  Rather, "[eBay] exercises a decisive action on the content of advertisements since it incorporates, on its own initiative, information to attract buyers."  eBay's activities thus were those of a "publisher," and were not protected by the LCEN liability shield.

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