| U.S. Business Groups File
Amicus Brief in Yahoo v. LICRA |
8/6. Several American business groups filed an amicus
curiae brief [PDF] with the U.S. District Court (NDCal)
in the case Yahoo
v. LICRA. The case, which concerns French
efforts to limit speech on Yahoo servers located in the U.S.,
involves constitutional and jurisdictional issues raised by
Internet speech.
French Action. Last year two French groups, LICRA
and UEJF,
obtained a judgment from a French court ordering Yahoo to
"render impossible" access by persons in France to
certain content on servers located in the United States.
U.S. Action. Yahoo, which is a Delaware corporation
based in San Jose, California, then filed a complaint in U.S.
District Court seeking a declaratory judgment that the
judgment the French court is unenforceable in the U.S. as
contrary to the U.S. Constitution.
French Motion to Dismiss. The French, who asserted
French jurisdiction over Yahoo in their suit in France,
asserted that the U.S. Court did not have jurisdiction over
them in Yahoo's suit against them. They filed a Rule 12(b)(2)
motion to dismiss the complaint in the U.S. District Court for
lack of personal jurisdiction. The District Court issued its Order
Denying Motion to Dismiss [PDF] on June 7. It held that it
had personal jurisdiction over the defendants under
California's long arm jurisdiction statute, which permits a
court to exercise jurisdiction to the full extent authorized
by the Due Process Clause of the Constitution. The Court
stated that the purposeful availment requirement was met
because defendants had written a demand letter to Yahoo in
California, used U.S. Marshals in California to serve papers
on Yahoo, and sought an order of the French court directing
Yahoo's operations in California.
Amici. The groups filing the amicus brief on the merits
in support of Yahoo are the U.S. Chamber of Commerce,
Commercial Internet eXchange Assoc., Information Technology
Association of America, US Internet Industry Association,
Online Publishers Assoc., and U.S. Council for International
Business.
Threat to the Internet. Amici argued in their brief
that "At issue in this case is whether a foreign country
can control the content that U.S. individuals, entrepreneurs,
businesses, community organizations, libraries and churches
can place on the "exponentially growing, worldwide medium
that is the Internet." ", quoting from ACLU v. Reno.
The amici stressed that the French ruling could have a
"devastating impact" on the Internet and internet
commerce. It elaborated that "The decision of the French
court in this case represents one of the greatest threats to
the promise of the Internet seen to date. The French court
concluded that, because French citizens sought out and managed
to located material on a U.S. company's website that is
offensive to French law, courts in France can assert
jurisdiction over the U.S. company, and mandate that the
company restrict French citizens' access to that
material." Hence, "if the French court's decision is
recognized in this country, every piece of information posted
on the Internet will have to conform to the laws of every
country in which that material might be accessed ..."
Legal Arguments. The amici advanced two legal
arguments. First, they argued that "United States courts
may not enforce judgments of foreign courts that lack personal
jurisdiction over U.S. defendants, because enforcement of such
judgment would violate the Due Process Clause of the Fifth
Amendment." Second, they argued that "even if a
foreign court properly exercises personal jurisdiction over a
given defendant, a foreign judgment should not be enforced if
the foreign legal system lacked prescriptive jurisdiction over
the subject matter of the conduct at issue." |
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| New Documents |
USCA:
opinion
in Seven Words v. Network Solutions, 8/13 (PDF, USCA).
USChamber:
amicus
curiae brief of U.S. business groups in Yahoo v. LICRA,
8/6 (PDF, CDT). |
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| Ninth Circuit Rules Seven
Dirty Words Case Is Moot |
8/13. The U.S.
Court of Appeals (9thCir) issued its opinion
in Seven
Words v. Network Solutions a case regarding the
principle of mootness. This appeal arose out of the incessant
efforts by Seven Words LLC to compel Network Solutions, on
freedom of speech grounds, to register to it as domain names
various "dirty words" once used by comedian George
Carlin.
NSI's Refusal to Register. Seven Words LLC initially
sought to register ten second level domain names through Network Solutions
(NSI). The names included seven words that were the subject of
a comic monologue titled "Seven Words You Can Never Say
on Television" from the recording "Class Clown"
by George Carlin (Little David Records, 1972). Seven Words
sought to register each word with each of the top level
domains (TLDs) of .com, .org, and .net. NSI, which at the time
had the exclusive authority to register domain names with
these TLDs, refused to register domains containing all but one
of the dirty words, on the grounds that it violated its policy
against registering domains it deemed inappropriate.
Seven Words I. Seven Words filed an original complaint
in the U.S. District Court (CDCal)
against NSI for injunctive and declaratory relief, but not
damages. It sought an order compelling NSI to register the
names. It also sought a declaration that NSI violated its
rights under the federal and California law. It later sought
registration of six more similar words; NSI again refused;
and, it sought to amend its complaint. This complaint included
a claim for damages. Meanwhile, a similarly minded plaintiff
on the east coast sought registration of some of the same
words. NSI refused her requests as well. She filed a complaint
in U.S. District Court (DNH) alleging
violation of her First Amendment rights. The California action
(Seven Words I) was transferred to New Hampshire, and
consolidated with that action. The District Court in
California declined to exercise jurisdiction over the
remaining state law claim. Seven Words failed to comply with
various orders issued by the New Hampshire court, and as a
result, its portion of that consolidated action was dismissed.
Seven Words II. Seven also filed a second action in
California state court, based on the same refusal to register
dirty words, but this time only alleged violation of
California law. It did not seek damages until the case was on
appeal. NSI removed the case to U.S. District Court, based
upon diversity of citizenship. This case, Seven Words II, was
assigned to the same judge, Stephen Wilson, that heard Seven
Words I. NSI then moved to dismiss Seven Words II for failure
to state a claim, pursuant to FRCP 12(b)(6). The Court granted
this motion. This appeal followed.
Registration of Dirty Words to Third Parties.
Meanwhile, the dirty words for which Seven Words sought
registration (except for some which were subject to an order
in the New Hampshire action) were not the subject of any court
injunction. They were registered to other parties. After the
registration of six words, Seven Words sought an injunction
from the Court in Seven Words II. The request was denied, and
Seven Words did not appeal that decision. When the New
Hampshire Court proceeded to release the words under its
control, Seven Words took no action prevent that release.
Those words were then registered. By the time the present
appeal was heard, all of the words at issue had been
registered to third parties.
Mootness. The U.S. Court of Appeals did not address the
merits of the appeal. Rather, it ruled that the case had been
rendered moot by the registration of the words in dispute to
third parties. The Court wrote that "Seven Words never
sought damages in this litigation (until a few days before
argument in this court) and, indeed, effectively disavowed
damages for tactical reasons. As for the declaratory relief,
which is closely intertwined with the injunctive relief, there
is no longer a live controversy. At this juncture, Seven Words
effectively seeks an advisory opinion. We conclude that
neither of these claims is sufficient to resurrect Seven
Words's suit." The Court continued that "Here, the
dispute with NSI has "evaporated" and there is no
remaining potentially adverse effect on the interests of the
parties. NSI no longer has a policy prohibiting registration
of domain names containing certain words; NSI is no longer the
only company that can register the domain names; and the
domain names have already been registered to third
parties." The Court also commented that "a timely
claim for damages could have saved this case from dismissal
for mootness ..."
Finally, the Court granted NSI's motion with respect to
mootness, vacated the District Court's judgment in favor of
NSI, and instructed the District Court to dismiss the case as
moot.
The ACLU Foundation of
Southern California, which apparently has way too much
free time on its hands, filed an amicus curiae brief. |
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| Covad Settles Securities
Class Action Suit |
| 8/13. Covad Communications,
which provides Internet access services via DSL, announced
that it and the other defendants have settled the case D.C. Capital
Partners v. Covad Communications Group. This is
a securities class action case pending in the U.S. District
Court (NDCal).
Covad stated that "Under the terms of this agreement,
Covad will contribute to the settlement fund shares equal to 3
1/2 percent of its fully diluted common stock as of August 10,
2001. Covad's insurance carriers will fund the cash portion of
the settlement. Covad and the other defendants continue to
deny plaintiffs' allegations." See, Covad
release. |
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| Tuesday, August 21 |
| Deadline to submit comments to the FCC in response to its
Notice of Proposed Rulemaking (NPRM) regarding the concept of
a unified intercarrier compensation regime, including
reciprocal compensation, and alternative approaches such as
"bill and keep." See, notice
in Federal Register, May 23, 2001, Vol. 66, No. 100, at Pages
28410 - 28418. |
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| Wednesday, August 22 |
| Deadline to submit comments to the Copyright Office (CO)
in response to its notice
of proposed rule making regarding rates and terms for the
digital performance of sound recordings. The CO requests
comment on proposed regulations that will govern the RIAA
collective when it functions as the designated agent receiving
royalty payments and statements of accounts from nonexempt,
subscription digital transmission services which make digital
transmissions of sound recordings under the provisions of Section
114 of the Copyright Act. See, Federal Register, July 23,
2001, Vol. 66, No. 141, at Pages 38226 - 38229. |
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| Trial Court Quashes
Subpoena for Names of Anonymous Posters |
| 8/10. The Superior Court of California, Santa Clara County,
Judge Neil Cabrinha presiding, issued a bench ruling in Pre-Paid Legal Services
Inc. v. Gregg Sturtz, quashing a subpoena
directed to Yahoo for the identities of anonymous posters who
criticized PPLS on a Yahoo message board. Two of the anonymous
posters targeted by the subpoena are represented by EFF. See, EFF
release. |
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| FCC NPRM Re Local
Competition |
| 8/13. The FCC published a notice
of regarding its Notice of Proposed Rulemaking (NPRM) in the
Federal Register regarding implementation of the local
competition provisions of the Telecom Act of 1996. This notice
invites parties to update and refresh the record on issues
pertaining to the rules the FCC adopted in the First Report
and Order in CC Docket No. 96-98. Comments are due by
September 12, 2001. Reply comments are due September 27, 2001.
See, Federal Register, August 13, 2001, Vol. 66, No. 156, at
Page 42499. |
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| FEC Fines Announced |
| 8/13. The Federal Election
Commission (FEC) released summary information about 44
cases in which it assessed administrative fines cases totaling
$67,525. Several cases involve tech companies or Members of
Congress who are involved in tech issues. The FEC fined a
committee supporting Rep.
Jerry Weller (R-IL) $9,000 for not filing a 30 day post
general election 2000 report. Rep. Weller, who sits on the
Ways and Means Committee, often takes the lead in protecting
the interests of high tech workers, the Internet economy, and
technology companies on tax issues. The FEC fined a committee
supporting Rep. John
Conyers (D-MI) $3,500 for the same omission. He is the
ranking Democrat on the House Judiciary Committee, where he is
active in intellectual property issues, privacy issues, and in
opposing the Tauzin Dingell bill. The FEC fined the Internet
Leadership PAC $825 for late filing of the same post election
report. Finally, the FEC fined the Qwest PAC $900 for late
filing of the report. See, FEC release. |
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