E-Commerce Law Week, Issue 691

Road Runner Escapes Harm Once Again

A federal district court in New York has dismissed claims that an Internet service provider deceived its customers by misrepresenting the speed and quality of its Internet service.  Time Warner Cable, which advertises its Road Runner Internet service as “always-on” and “up to 100 times faster than dial-up,” allegedly throttled the use of certain peer-to-peer applications, like Skype.  The plaintiffs in Fink v. Time Warner Cable – subscribers to Time Warner’s Internet service in New York and California – alleged that Time Warner’s actions were “deceptive” and “fraudulent” within the meaning of the common law and state consumer protection laws.  The court dismissed these claims in December, on the ground that plaintiffs had alleged only the impairment of certain online operations, as opposed to their entire Internet connection.  The court also dismissed a claim under the Computer Fraud and Abuse Act, finding that the plaintiffs had failed to allege “loss” as required for a civil action under the statute.

Copyright Office Requests Public Comment on DMCA Exemptions

The U.S. Copyright Office is seeking comment on the latest set of proposed exemptions from the “anticircumvention provision” of the Digital Millennium Copyright Act.  The agency initiated its fifth triennial review of exemptions in September in order to identify additional classes of copyrighted work to exempt from the provision, which proscribes the circumvention of technical controls on the use of digital content and products.  In this rulemaking proceeding, the Copyright Office is considering exemptions for various digital technologies, including literary works in the public domain that are made available in digital copies, as well as computer programs that enable various products to execute lawfully acquired software, if circumvention is undertaken for the purpose of enabling interoperability.  If designated, an exemption will remain in place for three years.  Comments addressing the proposed exemptions are due February 10. 

APEC Leaders Endorse Regional Data Privacy and Protection Scheme

Late last year, Asia-Pacific Economic Cooperation (APEC) leaders endorsed and declared their intent to implement a new regional data privacy and protection scheme.  According to a statement issued by APEC leaders, the Cross Border Privacy Rules System (which is part of the broader APEC Privacy Framework) will “reduce barriers to information flows, enhance consumer privacy and promote interoperability across regional data privacy regimes.”  Participation in the system is voluntary, and an effective system depends on businesses in participating economies opting to align their company data privacy and protection plans with the recommended system.  Though certification under the system may require many businesses in the region (particularly those operating in countries without domestic data protection policies) to radically alter their data practices, it would also likely offer opportunities for increased regional trade and international investment.  The new privacy system is expected to be launched by APEC member countries later this year.

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