| Divided Court Upholds
Injunction Against Spamming by Ex Intel Employee |
12/10. The California
Court of Appeal (3) issued its opinion
[PDF] in Intel v. Hamidi, an appeal of an
injunction issued against a former Intel employee barring him
from sending unsolicited e-mail to addresses on Intel's
computer systems. The injunction was based upon California
tort law pertaining to trespass to chattels. A divided Court
of Appeal panel affirmed the injunction.
Background. Intel
fired Hamidi. He is an angry ex-employee with a talent for
spamming. He and another defendant (FACE Intel, which
defaulted) obtained Intel's e-mail address list and on six
occasions sent e-mail to up to 29,000 employees. Intel was
unable to block this e-mail.
Superior Court. Intel filed a complaint in the Superior
Court of Sacramento County, California, against Hamidi and
another party alleging nuisance and trespass to chattels. The
District Court granted summary judgment to Intel on the
trespass to chattels claim, and granted it an injunction which
states that "defendants, their agents ... are hereby
permanently restrained and enjoined from sending unsolicited
e-mail to addresses on INTEL's computer systems."
Court of Appeal. A divided three judge panel of the
Court of Appeal affirmed the injunction. Justice Fred
Morrison wrote the opinion of the Court, in which Arthur
Scotland joined. Daniel
Kolkey wrote a dissent (beginning at page 35).
Trespass to Chattels. Relying on Prosser, the
Restatement 2d Torts, and case law, the Court stated that
trespass to chattels occurs when one intentionally
intermeddles with another's chattel where the intermeddling is
harmful to the possessor's materially valuable interest in the
physical condition, quality, or value of the chattel. The
Court also held that "demonstrating harm is not
necessary" when damages are not sought. The Court added
that Intel "showed it was hurt by the loss of
productivity caused by the thousands of employees distracted
from their work and by the time its security department spent
trying to halt the distractions after Hamidi refused to
respect Intel's request to stop invading its internal,
proprietary e-mail system by sending unwanted emails to
thousands of Intel's employees on the system." The Court
concluded that Intel "showed he was disrupting its
business by using its property and therefore is entitled to
injunctive relief based on a theory of trespass to
chattels."
Trespass to Chattels in Cyberspace. The Court noted
that while trespass to chattels has been a rarely invoked
legal theory, it has enjoyed a revival with the development of
cyberspace. Citing several recent cases, the Court wrote that
sending electronic mail can constitute trespass to chattels.
See, for example, CompuServe
v. Cyber Promotions (S.D. Ohio 1997) 962 F.Supp. 1015; Hotmail
Corporation v. Van$ Money Pie (N.D.Cal. 1998); America
Online v. IMS (E.D.Va. 1998) 24 F.Supp.2d 548; and eBay Inc. v. Bidder's
Edge, Inc. (N.D.Cal. 2000) 100 F.Supp.2d 1058.
Free Speech. Hamidi, and two amicus curiae parties,
also argued that the injunction violates federal First
Amendment and California Constitution free speech rights. The
Court held that the First Amendment is not implicated, because
there was no state action; this is a dispute between private
parties. Moreover, the Court wrote, "Judicial enforcement
of neutral trespass laws has been held not to constitute state
action." Also, the Court rejected a public forum
argument. It wrote that "Private e-mail servers differ
from the Internet; they are not traditional public forums. ...
The Intel e-mail system is private property used for business
purposes. Intel's system is not transformed into a public
forum merely because it permits some personal use by
employees."
Dissent. Judge Kolkey dissented on the issue of
trespass to chattels. He wrote that "While common law
doctrines do evolve to adapt to new circumstances, it is not
too much to ask that trespass to chattel continue to require
some injury to the chattel (or at least to the possessory
interest in the chattel) in order to maintain the
action." He distinguished the other spam trespass to
chattel cases on the basis that in those cases the spammers
"burdened the computer equipment, thereby interfering
with its operation and diminishing the chattel's value". |
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| First Circuit Rules on
Advertising Injuries and IPR Claims |
12/10. The U.S.
Court of Appeals (1stCir) issued its opinion
in Ekco
v. Travellers Indemnity, a case regarding
whether an insurance policy covering advertising injuries
applies to suits for trade dress infringement and patent
infringement. The Appeals Court held that there is no coverage
in this case.
Background. Ekco sells kitchen products, including
metal tea kettles. Chantal Cookware, which also makes tea
kettles, alleged that Ekco copied one of its tea kettles.
Chantal filed a complaint in another action in U.S. District
Court (SDTex) against Ekco alleging trade dress infringement
and unfair competition under both the Lanham Act, 15 U.S.C. §
1125(a), and state law, and for infringement of a design
patent covering a Chantal tea kettle, pursuant to 35 U.S.C. §
271. Travellers Indemnity had issued an insurance policy to
Ekco. Ekco asserted that Travellers had a duty to defend an
indemnify it in the Chantal proceeding, pursuant to the
policy's advertising injury provisions. Travellers refused.
Insurance Policy. The policy provides coverage for
"Advertising injury", which it defines as
"injury arising out of one or more of the following
offenses: a. Oral or written publication of material that
slanders or libels a person or organization or disparages a
person's or organization's goods, products or services; b.
Oral or written publication of material that violates a
person's right of privacy; c. Misappropriation of advertising
ideas or style of doing business; or d. Infringement of
copyright, title or slogan."
District Court. Ekco filed the a complaint in the
present action in New Hampshire state court. Travellers
removed the case to U.S. District Court (DNH), based upon
diversity. On cross motions for summary judgment, the District
Court ruled in favor of EKCO -- that there was coverage. This
appeal followed.
Appeals Court. The First Circuit, construing the
meaning of the term "advertising", held that there
was not coverage, and reversed and remanded. |
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| Bush Administration to
Raise MTOPS Threshold for HPC Exports |
| 12/10. The State Department issued a release
in which it stated that the "Bush administration intends
to raise sharply the threshold for exports of advanced
computers to a group of more than 40 countries including
Russia, China, India, Pakistan and Israel". It also
stated that "the threshold for export without a license
to the group called Tier 3 countries will rise to cover
computers capable of 190,000 million theoretical operations
per second (MTOPs), up from 85,000 MTOPs now." |
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| Supreme Court Rules Utility
Patents May Be Issued for Plants |
| 12/10. The Supreme
Court issued its opinion
[PDF] in JEM
AG Supply v. Pioneer Hi-Bred, a case involving
patents in plants. Justice Clarence Thomas, writing for a six
justice majority, wrote that utility patents may be issued for
plants pursuant to 35 U.S.C.
§ 101; hence, the Plant Variety Protection Act, 7 U.S.C.
§ 2321 et seq., and the Plant Patent Act of 1930, 35 U. S.
C. §§ 161-164, are not the exclusive means of obtaining
a federal statutory right to exclude others from reproducing,
selling, or using plants or plant varieties. |
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| Supreme Court Denies Cert
in PSLRA Case |
| 12/10. The Supreme
Court denied certiorari in Scholastic Corp. v.
Truncellito, a case regarding pleading standards in
class action securities suits under the Private Securities
Litigation Reform Act (PSLRA). See, December 10 Order
List at page 6 (No. 01-397). See also, opinion
of the U.S. Court of Appeals (2ndCir). |
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| People and Appointments |
12/7. On Thursday, December 6, the Senate confirmed Susan
Bies and Mark Olson to be members of the Board of
Governors of the Federal
Reserve System. On Friday, December 7, they were sworn in
to office. See, FRB
release.
11/26. Jeffrey Blattner joined the Washington DC office
of the law firm of Hogan &
Hartson as a partner the firm's Antitrust, Competition and
Consumer Protection and Legislative Groups. He was previously
a Deputy Assistant Attorney General and Special Counsel for
Information Technology in the Antitrust Division of the
Department of Justice. He worked on the Microsoft litigation.
He is also a former long time staff assistant to Sen. Ted Kennedy (D-MA);
he was one of the architects of the Senate rejection of Robert
Bork's nomination to be a Supreme Court Justice. See, H&H
release.
12/6. Rob Stoddard will join the National Cable &
Telecommunications Association (NCTA) as SVP for
Communications and Public Affairs, effective January 2, 2002.
He is currently SVP for Public Relations at AT&T Broadband.
See, NCTA
release.
12/6. The law firm of Fulbright
& Jaworski announced new partners, effective January
1, 2002. The list includes Lucas Elliot, who focuses on
general commercial and complex tort litigation, with a
concentration on information technology and telecommunications
litigation. See, F&J
release.
12/3. The law firm of Arnold
& Porter announced new partners, effective January 1.
The list includes Scott Feira (a member of the
telecommunications and corporate and securities groups), Myles
Hansen (antitrust), and Frank Liss (antitrust).
See, AP
release.
12/3. The law firm of Baker
& Botts announced new partners, effective January 1,
2002. The list includes Terry
Stalford, who was named a partner in the Intellectual
Property group in the Dallas office. He focuses on digital
circuitry, integrated circuit fabrication methods, devices,
materials and packaging, mass storage device design and
fabrication, switching and transmission equipment, SONET, ATM,
IP, and other communication protocols, and system level
applications including advanced intelligence systems and
services. He also focuses on software for automated calling
systems, data storage and retrieval systems, and automated
information routing and tracking systems. The list also
includes Roger
Fulghum, who was named a partner in the Intellectual
Property group in the Houston office. He focuses on
preparation and prosecution of patent applications, the
preparation of software licenses, and involvement in patent
and trade secret litigation. See, B&B
release.
12/3. Michael
Schlesinger joined the Washington DC office of the law
firm of Latham & Watkins
as a partner in its Corporate Department. He focuses on
venture capital and technology. He was previously at partner
at the Venable law firm.
See, L&W
release. |
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| Tuesday, Dec 11 |
The House will meet at 12:30 PM for morning hour and at 2:00
PM for legislative business. No recorded votes are expected
before 6:30 PM. The House will consider a number of measures
under suspension of the rules.
The Senate will meet at 9:30 AM. It will resume consideration
of S 1731,
the Agriculture, Conservation, and Rural Enhancement Act of
2001 (aka Farm Bill). It will also vote on a few judicial
nominees.
Day one of a two day conference hosted by the Information
Technology Association of America (ITAA) titled Developing
Cyber Security Solutions in the e-Gov Era. This is an
invitation only event. For information, contact Shannon
Kellogg at skellogg @itaa.org.
The press contact is bcohen@itaa.org.
See, agenda.
Location: Executive Briefing Center, Computer Sciences
Corporation, 3170 Fairview Park Drive, Falls Church, VA.
11:45 AM - 12:45 PM. Ken Feree, Chief of the FCC's Cable Services Bureau, will
be the luncheon speaker at the Power Line Communications
Conference. Location: Troutman Sanders, Washington DC.
12:00 NOON. The E Voter Institute will hold a press
conference. For more information, contact Karen Jagoda at 202
338-2430. Location: Murrow Room, National Press Club, 529 14th
St. NW, 13th Floor.
POSTPONED TO DEC 18. 12:15
PM. The FCBA's
Young Lawyers Committee will host a brown bag lunch. The
speakers will be Commissioner Michael Copps' Legal Advisors:
Jordan Goldstein, Paul Margie, and Susanna Zwerling.
3:00 PM. The House
Commerce Committee's Subcommittee on Telecommunications
and the Internet will hold a hearing for on the proposed
settlement between the U.S. and Nextwave over spectrum
licenses. The witnesses will be FCC Chairman Michael Powell,
Joseph Hunt (USDOJ), Denny Strigl (Verizon Wireless), Frank
Cassou (NextWave), and Jim Winston (Urban Communicators).
Location: Room 2123, Rayburn Building. |
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| Wednesday, Dec 12 |
9:00 AM. - 2:30 PM. The American
Enterprise Institute (AEI) will host a program titled
"Telecommunications Policy as Trade Policy: Negotiations
with Japan over Interconnection Pricing". See, online information and
registration page. See also, agenda, at right. Location:
Wohlstetter Conference Center, AEI, 1150 17th Street, NW.
9:00 AM. FTC Commissioner Mozelle Thompson will participate in
a private forum titled, "From Principles to
Performance," sponsored by the American Advertising
Federation. Location: Ronald Reagan Building and International
Trade Center, Pennsylvania Avenue and 13½ Street, NW.
9:30 AM. The FCC will hold a meeting. The agenda
includes the following: (1) a Notice of Proposed Rule Making (NPRM)
initiating a comprehensive examination of the appropriate
regulatory framework for incumbent local exchange carriers' (ILECs')
provision of broadband services; (2) a NPRM to initiate
the FCC's triennial review of the definitions of and rules
concerning access to ILEC unbundled network elements; (3) an
order in regarding the FCC's plans for nationwide thousands
block number pooling (CC Docket No. 96-98 and CC Docket No.
99-200); (4) a second NPRM concerning new equal employment
opportunity rules for broadcast licensees and cable entities;
(5) a Report and Order concerning allocation and service rules
to reallocate television channels 52-59; and (6) a First
Report and Order to provide for new ultra wideband (UWB)
devices (ET Docket No. 98-153). Location: Commission Meeting
Room, FCC, 445 12th Street, SW, Room TWC305.
Location Change. 10:00 AM.
The Senate
Judiciary Committee will hold a hearing on the future of
the Microsoft settlement. The scheduled witnesses
include Charles James (Antitrust
Division), Jay Himes (NY Office of the Attorney General),
Charles Rule (counsel to Microsoft), Lawrence
Lessig (Stanford), Mark Cooper (Consumer Federation of
America), Jonathan Zuck (Association
of Competitive Technology), Matthew Szulik (Red Hat,
Inc.), and Mitchell Kertzman (Liberate Technologies).
Location: Room 106, Dirksen Building.
10:00 AM. The Senate
Finance Committee will hold a business meeting. The agenda
includes mark up HR
3005, the Bipartisan Trade Promotion Authority Act of
2001. Location: Room 215, Dirksen Building.
2:00 PM. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Intellectual Property will hold the first part of a two
part hearing titled "The Digital Millenium Copyright Act:
Section 104 Report." The witnesses will be Marybeth
Peters (Register of Copyrights), Carey Ramos (NMPA), Cary
Sherman (RIAA),
and Emery Simon (Business
Software Alliance). Location: Room 2141, Rayburn Building. |
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| Thursday, Dec 13 |
Day one of a two day conference titled the "19th Annual
Institute on Telecommunications Policy & Regulation".
Location: International Trade Center.
9:15 AM - 4:30 PM. The International
Trademark Association will host a CLE program titled
"Trademark Trial and Appeal Board (TTAB) Practice for
Advanced Practitioners Forum." The price to attend is
$395. See, brochure
and agenda.
Location: Crystal Gateway Marriott, 1700 Jefferson Davis
Highway, Arlington, VA.
10:00 AM. The Senate
Judiciary Committee will hold a business meeting.
Location: Room 226, Dirksen Building.
10:00 AM. The House
Judiciary Committee's Subcommittee on Courts, the Internet
and Intellectual Property will hold the second part of a two
part hearing titled "The Digital Millenium Copyright Act:
Section 104 Report." The witnesses will be Marybeth
Peters (Register of Copyrights), Marvin Berenson (Broadcast Music Inc.), Jonathan
Potter (Digital Media
Association), and Gary Klein (Consumer
Electronics Association). Location: Room 2141, Rayburn
Building.
2:00 PM. The Progressive
Policy Institute (PPI) and the NanoBusiness Alliance
will jointly host a panel discussion on the public policy
implications of emerging science and business of nanotechnology.
The panelists will be Rob Atkinson (PPI), Mark Modzelewski (NanoBusiness
Alliance), Mike Roco (National Nanotechnology Initiative),
Steve Johns (Ardesta Capital),
Meyya Meyyapan (NASA
Ames Center for Nanotechnology), Steve Wilson (NYU Center
for Advanced Materials and Nanotechnology), Stephan
Maebius (Foley and Lardner Law), and Josh Wolfe (Lux Capital). Location:
Capitol Building, Room SC4.
2:00 PM. House Science
Committee Chairman Sherwood Boehlert
(R-NY) will hold a year end on the record question and answer
session on Committee business, accomplishments, and plans for
next year. Location: Room 2318, Rayburn Building.
6:00 PM. The FCBA will
hold its 15th Annual FCBA Chairman's Dinner. The reception
begins at 6:00 PM; dinner begins at 7:30 PM. Location:
Washington Hilton & Towers, 1919 Connecticut Avenue, NW. |
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| Friday, Dec 14 |
8:30 - 10:00 AM. The American
Enterprise Institute (AEI) will host a press breakfast on
"The Role of the FCC in Restricting the Ownership of
Licenses". Harold Furchtgott Roth and other AEI scholars
will speak. RSVP to Veronique Rodman at 202 862-4871 or vrodman@aei.org. Location:
AEI, 1150 17th Street, NW, 11th Floor Conference Room.
Day two of a two day conference titled the "19th Annual
Institute on Telecommunications Policy & Regulation".
Location: International Trade Center. |
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