Below is an index for the articles posted on the Privacy and IP Law Blog during 2009. They are sorted below into two groupings: first, by date (in reverse chronological order) and then by category (including an item count showing how many posts fit into each category).
Topics Covered, Sorted by Date (in Reverse Order)
12/22/09 – White House Names Cybersecurity Coordinator cybersecurity, Dept of Homeland Security, government oversight, privacy
12/16/09 – Google Book Project – Notice of Revised Settlement Agreement copyright, Google Book Project
12/15/09 – ICANN Seeks Independent Proposals relating to WHOIS Data cybersecurity, identity theft, privacy, trademarks, WHOIS Data
12/10/09 – NJ District Court Launches New Version of Electronic Filing System ECF System, privacy, redaction
12/4/09 – Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required Enacted legislation, identity theft, privacy, social security numbers
12/1/09 – Update on Google Book Settlement copyright, Google Book Project, privacy
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
11/3/09 – Basic Questions – Differences between Copyrights and Trademarks copyright, trademarks
10/23/09 – NJ Federal Court Issues Notice about Redaction of Private Information from Court Filings ECF System, privacy, redaction
10/18/09 – Final Fairness Hearing on Google Books Settlement Re-Scheduled for November 9 copyright, Google Book Project
10/15/09 – White House appoints IP Enforcement Coordinator Cabinet Positions, copyright, counterfeiting, trademarks
9/30/09 – Google Book Settlement Agreement to be Modified copyright, Google Book Project
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
9/8/09 – Further Update: Google Book Settlement copyright, Google Book Project
9/4/09 – Update: Google Book Settlement Challenged by Several Opponents copyright, Google Book Project
8/26/09 – Blips in Google’s Book Project Settlement copyright, Google Book Project
8/25/09 – New Copyright Suit Filed against Publishers of Music Lyrics copyright, music
8/13/09 – Proposed Legislation to Address Perceived Misidentification of Geographic Source of Goods common law marks, geographically (mis)descriptive, Proposed legislation, requirement of use, trademarks
7/30/09 – Why You Should Read a Web Site's Terms of Service Before Posting copyright, privacy, terms of use policies
7/23/09 – Recommended Reading: Privacy Policies for Web Sites You Visit privacy, privacy policies
7/17/09 – Fraud on PTO Refusal is not Obviated by Lack of Counsel; Amendments Cannot Expand Goods Sought to be Covered Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
7/2/09 – Court Enters Order Banning Publication of Unauthorized Sequel to Catcher in the Rye copyright, fictional characters, Salinger
6/29/09 – Copyright Protection Proposed for Fashion Designs copyright, fashion design, Proposed legislation
6/19/09 – When is a Fictional Character Copyrightable? Copyright, fictional characters, Salinger
6/6/09 – Proposal to Restrict Use of Whole Body Image Scanners as Primary Screening Tool in Airport Security privacy, Proposed legislation, whole body image scanners
5/31/09 – Update on Anticipated Appointment of a Cybersecurity Coordinator cybersecurity, government oversight, NSA
5/28/09 – Anticipated Appointment of “Cyber Czar” on May 29, 2009 cybersecurity, Dept of Homeland Security, government oversight, NSA, privacy
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/12/09 – Newly Introduced Bill Proposes Chief Privacy Officer for Health Information Technology (i.e., Electronic Medical Records) electronic medical records, health information technology, privacy, Proposed legislation, Stimulus Act
5/8/09 – Newly Introduced Bill Would Require Shutter Sounds in Camera Phones camera phones, copyright, privacy, Proposed legislation
4/29/09 – Privacy Resources on the Internet privacy, social security numbers
Topics Covered, Sorted by Category
Note that the number counts in each of these categories are totals for 2009 only. When you click on each link, you should see all of the articles – including those posted later than 2009 – covering a particular topic.
Cabinet Positions (1)
10/15/09 – White House appoints IP Enforcement Coordinator Cabinet Positions, copyright, counterfeiting, trademarks
Camera Phones (1)
5/8/09 – Newly Introduced Bill Would Require Shutter Sounds in Camera Phones camera phones, copyright, privacy, Proposed legislation
Cancellation (4)
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
Common Law Marks (1)
8/13/09 – Proposed Legislation to Address Perceived Misidentification of Geographic Source of Goods common law marks, geographically (mis)descriptive, Proposed legislation, requirement of use, trademarks
Copyright (15)
12/16/09 – Google Book Project – Notice of Revised Settlement Agreement copyright, Google Book Project
12/1/09 – Update on Google Book Settlement copyright, Google Book Project, privacy
11/3/09 – Basic Questions – Differences between Copyrights and Trademarks copyright, trademarks
10/18/09 – Final Fairness Hearing on Google Books Settlement Re-Scheduled for November 9 copyright, Google Book Project
10/15/09 – White House appoints IP Enforcement Coordinator Cabinet Positions, copyright, counterfeiting, trademarks
9/30/09 – Google Book Settlement Agreement to be Modified copyright, Google Book Project
9/8/09 – Further Update: Google Book Settlement copyright, Google Book Project
9/4/09 – Update: Google Book Settlement Challenged by Several Opponents copyright, Google Book Project
8/26/09 – Blips in Google’s Book Project Settlement copyright, Google Book Project
8/25/09 – New Copyright Suit Filed against Publishers of Music Lyrics copyright, music
7/30/09 – Why You Should Read a Web Site's Terms of Service Before Posting copyright, privacy, terms of use policies
7/2/09 – Court Enters Order Banning Publication of Unauthorized Sequel to Catcher in the Rye copyright, fictional characters, Salinger
6/29/09 – Copyright Protection Proposed for Fashion Designs copyright, fashion design, Proposed legislation
6/19/09 – When is a Fictional Character Copyrightable? Copyright, fictional characters, Salinger
5/8/09 – Newly Introduced Bill Would Require Shutter Sounds in Camera Phones camera phones, copyright, privacy, Proposed legislation
Counterfeiting (1)
10/15/09 – White House appoints IP Enforcement Coordinator Cabinet Positions, copyright, counterfeiting, trademarks
Cybersecurity (4)
12/22/09 – White House Names Cybersecurity Coordinator cybersecurity, Dept of Homeland Security, government oversight, privacy
12/15/09 – ICANN Seeks Independent Proposals relating to WHOIS Data cybersecurity, identity theft, privacy, trademarks, WHOIS Data
5/31/09 – Update on Anticipated Appointment of a Cybersecurity Coordinator cybersecurity, government oversight, NSA
5/28/09 – Anticipated Appointment of “Cyber Czar” on May 29, 2009 cybersecurity, Dept of Homeland Security, government oversight, NSA, privacy
Dept of Homeland Security (2)
12/22/09 – White House Names Cybersecurity Coordinator cybersecurity, Dept of Homeland Security, government oversight, privacy
5/28/09 – Anticipated Appointment of “Cyber Czar” on May 29, 2009 cybersecurity, Dept of Homeland Security, government oversight, NSA, privacy
ECF System (2)
12/10/09 – NJ District Court Launches New Version of Electronic Filing System ECF System, privacy, redaction
10/23/09 – NJ Federal Court Issues Notice about Redaction of Private Information from Court Filings ECF System, privacy, redaction
Electronic Medical Records (“EMR”) (1)
5/12/09 – Newly Introduced Bill Proposes Chief Privacy Officer for Health Information Technology (i.e., Electronic Medical Records) electronic medical records, health information technology, privacy, Proposed legislation, Stimulus Act
Enacted Legislation (1)
12/4/09 – Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required Enacted legislation, identity theft, privacy, social security numbers
Fashion Design (1)
6/29/09 – Copyright Protection Proposed for Fashion Designs copyright, fashion design, Proposed legislation
Fictional Characters (2)
7/2/09 – Court Enters Order Banning Publication of Unauthorized Sequel to Catcher in the Rye copyright, fictional characters, Salinger
6/19/09 – When is a Fictional Character Copyrightable? Copyright, fictional characters, Salinger
Fraud on the PTO (5)
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
7/17/09 – Fraud on PTO Refusal is not Obviated by Lack of Counsel; Amendments Cannot Expand Goods Sought to be Covered Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
Geographically (Mis)Descriptive (1)
8/13/09 – Proposed Legislation to Address Perceived Misidentification of Geographic Source of Goods common law marks, geographically (mis)descriptive, Proposed legislation, requirement of use, trademarks
Google Book Project (7)
12/16/09 – Google Book Project – Notice of Revised Settlement Agreement copyright, Google Book Project
12/1/09 – Update on Google Book Settlement copyright, Google Book Project, privacy
10/18/09 – Final Fairness Hearing on Google Books Settlement Re-Scheduled for November 9 copyright, Google Book Project
9/30/09 – Google Book Settlement Agreement to be Modified copyright, Google Book Project
9/8/09 – Further Update: Google Book Settlement copyright, Google Book Project
9/4/09 – Update: Google Book Settlement Challenged by Several Opponents copyright, Google Book Project
8/26/09 – Blips in Google’s Book Project Settlement copyright, Google Book Project
Government Oversight (3)
12/22/09 – White House Names Cybersecurity Coordinator cybersecurity, Dept of Homeland Security, government oversight, privacy
5/31/09 – Update on Anticipated Appointment of a Cybersecurity Coordinator cybersecurity, government oversight, NSA
5/28/09 – Anticipated Appointment of “Cyber Czar” on May 29, 2009 cybersecurity, Dept of Homeland Security, government oversight, NSA, privacy
Health Information Technology (“HIT”)(1)
5/12/09 – Newly Introduced Bill Proposes Chief Privacy Officer for Health Information Technology (i.e., Electronic Medical Records) electronic medical records, health information technology, privacy, Proposed legislation, Stimulus Act
Identity Theft (2)
12/15/09 – ICANN Seeks Independent Proposals relating to WHOIS Data cybersecurity, identity theft, privacy, trademarks, WHOIS Data
12/4/09 – Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required Enacted legislation, identity theft, privacy, social security numbers
Medinol (5)
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
7/17/09 – Fraud on PTO Refusal is not Obviated by Lack of Counsel; Amendments Cannot Expand Goods Sought to be Covered Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
Music (1)
8/25/09 – New Copyright Suit Filed against Publishers of Music Lyrics copyright, music
NSA (2)
5/31/09 – Update on Anticipated Appointment of a Cybersecurity Coordinator cybersecurity, government oversight, NSA
5/28/09 – Anticipated Appointment of “Cyber Czar” on May 29, 2009 cybersecurity, Dept of Homeland Security, government oversight, NSA, privacy
Opposition (5)
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
7/17/09 – Fraud on PTO Refusal is not Obviated by Lack of Counsel; Amendments Cannot Expand Goods Sought to be Covered Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
Privacy (13)
12/22/09 – White House Names Cybersecurity Coordinator cybersecurity, Dept of Homeland Security, government oversight, privacy
12/15/09 – ICANN Seeks Independent Proposals relating to WHOIS Data cybersecurity, identity theft, privacy, trademarks, WHOIS Data
12/10/09 – NJ District Court Launches New Version of Electronic Filing System ECF System, privacy, redaction
12/4/09 – Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required Enacted legislation, identity theft, privacy, social security numbers
12/1/09 – Update on Google Book Settlement copyright, Google Book Project, privacy
10/23/09 – NJ Federal Court Issues Notice about Redaction of Private Information from Court Filings ECF System, privacy, redaction
7/30/09 – Why You Should Read a Web Site's Terms of Service Before Posting copyright, privacy, terms of use policies
7/23/09 – Recommended Reading: Privacy Policies for Web Sites You Visit privacy, privacy policies
6/6/09 – Proposal to Restrict Use of Whole Body Image Scanners as Primary Screening Tool in Airport Security privacy, Proposed legislation, whole body image scanners
5/28/09 – Anticipated Appointment of “Cyber Czar” on May 29, 2009 cybersecurity, Dept of Homeland Security, government oversight, NSA, privacy
5/12/09 – Newly Introduced Bill Proposes Chief Privacy Officer for Health Information Technology (i.e., Electronic Medical Records) electronic medical records, health information technology, privacy, Proposed legislation, Stimulus Act
5/8/09 – Newly Introduced Bill Would Require Shutter Sounds in Camera Phones camera phones, copyright, privacy, Proposed legislation
4/29/09 – Privacy Resources on the Internet privacy, social security numbers
Privacy Policies (1)
7/23/09 – Recommended Reading: Privacy Policies for Web Sites You Visit privacy, privacy policies
Proposed Legislation (5)
8/13/09 – Proposed Legislation to Address Perceived Misidentification of Geographic Source of Goods common law marks, geographically (mis)descriptive, Proposed legislation, requirement of use, trademarks
6/29/09 – Copyright Protection Proposed for Fashion Designs copyright, fashion design, Proposed legislation
6/6/09 – Proposal to Restrict Use of Whole Body Image Scanners as Primary Screening Tool in Airport Security privacy, Proposed legislation, whole body image scanners
5/12/09 – Newly Introduced Bill Proposes Chief Privacy Officer for Health Information Technology (i.e., Electronic Medical Records) electronic medical records, health information technology, privacy, Proposed legislation, Stimulus Act
5/8/09 – Newly Introduced Bill Would Require Shutter Sounds in Camera Phones camera phones, copyright, privacy, Proposed legislation
Redaction (2)
12/10/09 – NJ District Court Launches New Version of Electronic Filing System ECF System, privacy, redaction
10/23/09 – NJ Federal Court Issues Notice about Redaction of Private Information from Court Filings ECF System, privacy, redaction
Requirement of Use (1)
8/13/09 – Proposed Legislation to Address Perceived Misidentification of Geographic Source of Goods common law marks, geographically (mis)descriptive, Proposed legislation, requirement of use, trademarks
Salinger (2)
7/2/09 – Court Enters Order Banning Publication of Unauthorized Sequel to Catcher in the Rye copyright, fictional characters, Salinger
6/19/09 – When is a Fictional Character Copyrightable? Copyright, fictional characters, Salinger
Social Security Numbers (“SSN”) (2)
12/4/09 – Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required Enacted legislation, identity theft, privacy, social security numbers
4/29/09 – Privacy Resources on the Internet privacy, social security numbers
Stimulus Act (1)
5/12/09 – Newly Introduced Bill Proposes Chief Privacy Officer for Health Information Technology (i.e., Electronic Medical Records) electronic medical records, health information technology, privacy, Proposed legislation, Stimulus Act
Terms of Use Policies (1)
7/30/09 – Why You Should Read a Web Site's Terms of Service Before Posting copyright, privacy, terms of use policies
Trademarks (9)
12/15/09 – ICANN Seeks Independent Proposals relating to WHOIS Data cybersecurity, identity theft, privacy, trademarks, WHOIS Data
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
11/3/09 – Basic Questions – Differences between Copyrights and Trademarks copyright, trademarks
10/15/09 – White House appoints IP Enforcement Coordinator Cabinet Positions, copyright, counterfeiting, trademarks
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
8/13/09 – Proposed Legislation to Address Perceived Misidentification of Geographic Source of Goods common law marks, geographically (mis)descriptive, Proposed legislation, requirement of use, trademarks
7/17/09 – Fraud on PTO Refusal is not Obviated by Lack of Counsel; Amendments Cannot Expand Goods Sought to be Covered Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
TTAB (5)
11/19/09 – USPTO Trademark Public Advisory Committee Meeting Tomorrow Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
9/11/09 – Federal Circuit Clarifies Fraud Standard for Cancelling Trademark Registrations Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
7/17/09 – Fraud on PTO Refusal is not Obviated by Lack of Counsel; Amendments Cannot Expand Goods Sought to be Covered Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/20/09 – AIPLA Reports on the May 6, 2009 Federal Circuit Oral Argument on the Bose v Hexawave Case Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
5/15/09 – Fraud on the PTO Jurisprudence: Further Approval for Timely Corrective Action to Avoid Cancellation Cancellation, Fraud on the PTO, Medinol, Opposition, trademarks, TTAB
WHOIS Domain Name Registration Data (1)
12/15/09 – ICANN Seeks Independent Proposals relating to WHOIS Data cybersecurity, identity theft, privacy, trademarks, WHOIS Data
Whole Body Image Scanners (1)
6/6/09 – Proposal to Restrict Use of Whole Body Image Scanners as Primary Screening Tool in Airport Security privacy, Proposed legislation, whole body image scanners
Thursday, December 31, 2009
Tuesday, December 22, 2009
White House Names Cybersecurity Coordinator
The White House announced today that President Obama has appointed Howard Schmidt to be the new “White House Cybersecurity Coordinator.” More information about Mr. Schmidt’s background can be found within the announcement of his appointment (including in an embedded video), but also within press coverage of the development. See, e.g., Siobhan Gorman, “Cyber Chief Selected by Obama,” The Wall Street Journal, Dec. 22, 2009 at A6; AP, “White House Picks New Cyber Coordinator”, Dec. 21, 2009 (available through FoxNews).
Mr. Schmidt’s duties will apparently include: “setting computer security policy and providing budget guidance across the government. Among his top challenges will be tapping the cyberdefense capabilities at the National Security Agency while ensuring adequate privacy protections for activities in the civilian sector.” Gorman, “Cyber Chief Selected by Obama.”
Previous posts on this topic were dated in May, when President Obama first announced the position.
UPDATE: A more complete analysis of Mr. Schmidt's appointment, background and anticipated responsibilities was published in today's (12/23/09) Wall Street Journal: see Siobhan Gorman, “Cybersecurity Chief to Fill a Post Filled with Challenges,” The Wall Street Journal, Dec. 23, 2009 at A6.
Mr. Schmidt’s duties will apparently include: “setting computer security policy and providing budget guidance across the government. Among his top challenges will be tapping the cyberdefense capabilities at the National Security Agency while ensuring adequate privacy protections for activities in the civilian sector.” Gorman, “Cyber Chief Selected by Obama.”
Previous posts on this topic were dated in May, when President Obama first announced the position.
UPDATE: A more complete analysis of Mr. Schmidt's appointment, background and anticipated responsibilities was published in today's (12/23/09) Wall Street Journal: see Siobhan Gorman, “Cybersecurity Chief to Fill a Post Filled with Challenges,” The Wall Street Journal, Dec. 23, 2009 at A6.
Wednesday, December 16, 2009
Google Book Project – Notice of Revised Settlement Agreement
On December 14, 2009, the Settlement Administrator for the Google Book Project distributed a Supplemental Notice of the revised settlement. (More information about developments in the Authors’ Guild v Google lawsuit can be found in prior posts.) The Notice identifies the following changes to the various deadlines to proceed:
On or before January 28, 2010:
* Deadline to Opt Out of the settlement agreement, by completing and submitting the Opt Out Form (if a claimant already opted out of the prior version of the settlement agreement, it is not necessary to file another Opt Out Form).
* Deadline to Opt Back In to the settlement agreement, if an Opt Out Form was previously submitted.
* File an Objection to the Amended Settlement. If a claimant previously filed an objection to the prior settlement agreement, it will be maintained – without having to file it again. This deadline is for new objections only. (Parties can withdraw prior objections up until the date of the Fairness Hearing, if necessary.)
On or before February 4, 2010:
* File a notice of intent to appear at the Final Fairness Hearing.
February 18, 2010:
* The scheduled date for the Final Settlement/Fairness Hearing.
(The dates above were also set forth in the Court’s November 19, 2009 Order granting preliminary approval to the amended settlement agreement.)
On or before March 31, 2011:
* Deadline for any claimant who wishes to receive cash payments for “Books and Inserts” (as those terms are defined by the settlement agreement) to submit their claim forms. If a claimant is unable to submit a claim online, paper forms are available.
More details about the administration of the settlement agreement can be found on the Administrator’s Site, and potential claimants should review all of the details provided directly by the Administrator, in case specific forms or requirements change over the course of the administration period.
Related News
The Congressional Research Service released a report on November 27, 2009, analyzing Google’s argument that it did not infringe the copyrights at issue because its use (in digitizing, indexing and re-publishing to some extent the underlying works) qualified for the “fair use” defense to act as a complete bar to liability. The report, “The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law,” was prepared by Kate M. Manuel, Esquire, a legislative attorney with CRS, and is available through various subscription-only sites. If you have a subscription to BNA’s Patent, Trademark & Copyright Journal, you can find a copy of the Report as a reference at the end of the article entitled “Google Books Settlement Could Be Back Before Court, Foreign Litigation a Possibility,” 79 PTCJ 154 (Dec. 11, 2009).
On or before January 28, 2010:
* Deadline to Opt Out of the settlement agreement, by completing and submitting the Opt Out Form (if a claimant already opted out of the prior version of the settlement agreement, it is not necessary to file another Opt Out Form).
* Deadline to Opt Back In to the settlement agreement, if an Opt Out Form was previously submitted.
* File an Objection to the Amended Settlement. If a claimant previously filed an objection to the prior settlement agreement, it will be maintained – without having to file it again. This deadline is for new objections only. (Parties can withdraw prior objections up until the date of the Fairness Hearing, if necessary.)
On or before February 4, 2010:
* File a notice of intent to appear at the Final Fairness Hearing.
February 18, 2010:
* The scheduled date for the Final Settlement/Fairness Hearing.
(The dates above were also set forth in the Court’s November 19, 2009 Order granting preliminary approval to the amended settlement agreement.)
On or before March 31, 2011:
* Deadline for any claimant who wishes to receive cash payments for “Books and Inserts” (as those terms are defined by the settlement agreement) to submit their claim forms. If a claimant is unable to submit a claim online, paper forms are available.
More details about the administration of the settlement agreement can be found on the Administrator’s Site, and potential claimants should review all of the details provided directly by the Administrator, in case specific forms or requirements change over the course of the administration period.
Related News
The Congressional Research Service released a report on November 27, 2009, analyzing Google’s argument that it did not infringe the copyrights at issue because its use (in digitizing, indexing and re-publishing to some extent the underlying works) qualified for the “fair use” defense to act as a complete bar to liability. The report, “The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law,” was prepared by Kate M. Manuel, Esquire, a legislative attorney with CRS, and is available through various subscription-only sites. If you have a subscription to BNA’s Patent, Trademark & Copyright Journal, you can find a copy of the Report as a reference at the end of the article entitled “Google Books Settlement Could Be Back Before Court, Foreign Litigation a Possibility,” 79 PTCJ 154 (Dec. 11, 2009).
Tuesday, December 15, 2009
ICANN Seeks Independent Proposals relating to WHOIS Data
The Internet Corporation for Assigned Names and Numbers (ICANN) has issued public requests for proposals for the following studies relating to WHOIS data:
* WHOIS Misuse studies (deadline to respond – November 27, 2009 – has closed).
* WHOIS Registrant Identification studies (deadline to respond – December 22, 2009).
In both instances, the susbtantive study would begin in early 2010, with a completion goal of June 2010 or December 2010, to coincide with regularly-scheduled ICANN meetings.
There are apparently two other studies that ICANN will pursue, but requests for proposals have not yet been issued. See Generic Names Supporting Organization. These two are Proxy and Privacy Services and Implications of non-ASCII Registration Data in WHOIS records. See ICANN Policy Update ¶ 11 (Nov. 2009) (summary description of the first three study areas and related links).
The ICANN Staff is currently managing a fifth study area, which seeks to determine the feasibility of addressing public concerns of deficiencies in the WHOIS service, including with regard to “data accuracy and reliability, as well as in other technical areas noted in recent SSAC reports, such as accessibility and readability of WHOIS contact information in an IDN environment.” See Generic Names Supporting Organization.
Background of Concerns about WHOIS Data
WHOIS data can generally be defined as the full contact information for domain name registrants, including contacts for administrative and technical purposes. A WHOIS record relating to an individual domain name can also include the IP address of the associated web site, date of creation, renewal and expiration of the domain name, and the name of the registrar used to register and maintain the domain name.
Legitimate Uses of WHOIS Data
There are several legitimate uses of WHOIS data, among them the enforcement of intellectual property rights and criminal law enforcement. Accurate WHOIS information is necessary, for instance, to determine whom a trademark owner should contact if there are concerns about unfair competition or that the domain name may be infringing upon the holder’s existing rights. This information may also be used by law enforcement agencies to police instances of fraud, identity theft and other crimes. See e.g., Federal Trade Commission Press Release, FTC Calls for Openness, Accessibility in WHOIS Database System, Continues to Recommend Enactment of the US SAFE WEB ACT, Sept. 20, 2006 (prepared statement also available); Federal Trade Commission Press Release, Accuracy of "WHOIS" Internet Database Essential to Law Enforcement, FTC Tells Congress, May 22, 2002 (prepared statement also available). There may be other legitimate business reasons to use the WHOIS registration data to contact the owner of a particular domain.
Several years ago, the results of searches of the WHOIS database for domain name owners provided robust contact information. Recently, however, the amount of information that appears in WHOIS search results has been significantly limited, most likely due to public concern about the protection of private information and conformance with other jurisdictions’ privacy laws, including foreign privacy laws such as the EU Directive 95/46/EC (officially, the “Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data,” available in multiple languages and formats through the European Commission Justice and Home Affairs page).
The method of performing WHOIS searches also has changed recently, particularly to block automated search engines (i.e., crawlers and bots) from harvesting the data contained in the records. Specifically, each time you perform a search, you are prompted to manually enter the characters that appear within a graphic image – something the automated search tools apparently cannot do.
Related Legislation
In 2004, Congress enacted the Fraudulent Online Identity Sanctions Act, Pub. L. No. 108-482 (Dec. 23, 2004) (codified in scattered sections of Titles 15 and 18). The Act did not create an independent right of action, but it provided certain enhancements to existing civil and criminal causes of action: specifically, 1) it provided a rebuttable presumption of "willfulness" if a trademark infringement action is brought against a registrant who has supplied false registration information in connection with the domain name in question (15 U.S.C. § 1117); and 2) if the registrant had been convicted of a felony ("other than offense of which an element is the false registration of a domain name") in which the domain name at issue was registered and used in the course of committing the crime, the maximum penalty for the offense shall either be doubled or increased by 7 years, whichever is less. 18 U.S.C. § 3559. While this Act has apparently not had any wide-reaching impact, the mere fact that it was enacted demonstrates the value placed on the accuracy of this database.
Dispute Resolution
In addition, under certain circumstances, a plaintiff filing a complaint against a domain name in U.S. federal court (an “in rem civil action”) may serve the complaint by: “sending a notice of the alleged violation and intent to proceed under [15 U.S.C. § 1125(d)(2)(A)] to the registrant at the postal and e-mail address provided by the registrant to the registrar” and by “publishing notice of the action as the court may direct promptly after filing the action.” 15 U.S.C. § 1125(d)(2)(A)(ii). In this instance, the “registrant” is the person or entity who registered the domain name.
A problem arises, however, when a plaintiff attempts to contact directly the domain name owner through the “postal and e-mail address provided by the registrant to the registrar” if no such valid addresses are displayed in the WHOIS results. Specifically, if plaintiffs or their counsel attempt to reach out to the domain name owner – short of instituting litigation – to investigate whether infringement or unfair competition claims would be legitimate, the lack of valid contact information can be a significant barrier to resolution. If domain name owners invoke the private WHOIS or proxy services to shield their contact information, then it may not be possible to resolve valid claims about the legitimacy and/or non-infringement of the domain name without the investment of substantial extra time and cost. See Ian J. Black, “Hidden Whois and Infringing Domain Names: Making the Case for Registrar Liability,” 2008 U Chi. Legal F. 431, 432 (2008); see also Network Solution’s explanation of its private registration services (which provides alternate contact information to prevent the delivery of spam e-mails and telemarketing phone calls to the registrant, but distinguishes itself from proxy services in that it allows the registrant to remain the domain name owner and be listed in the public WHOIS database).
Similar service problems occur when a plaintiff relies on the Uniform Dispute Resolution Policy adopted by ICANN to arbitrate a domain name dispute. The Rules for UDRP Proceedings provide for service of a domain name dispute complaint through the e-mail addresses for the administrative, technical and billing contacts, to the postmaster of the domain name, and any other e-mail address the defendant identifies in response. Although the domain name dispute resolution provider (and not the plaintiff) is responsible for this service (see Rules ¶ 2(a)), the absence of valid or readily-discernable e-mail addresses for the domain name holder can create problems in reaching a resolution of a dispute short of filing an arbitration complaint.
In both instances, pre-complaint discussions between the parties – or between counsel for the parties – is much more difficult when the contact information for the domain name holders is hidden. Certainly, parties can appeal to the registrars for permission to see the underlying contact information, but whether the registrar must disclose this information, and the timing of their disclosure, is not clear.
In some cases, proof of a valid dispute (e.g., service of a subpoena on the registrar) may be required before such information is released. See, e.g., Domains By Proxy’s explanation of legal issues associated with a private registration and its Proxy Agreement, ¶ 4 (providing that Domains by Proxy “has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to . . . [among other remedies]: . . . ii. Reveal Your name and personal information that You provided to DBP when: A. Required by law, in the good faith belief that such action is necessary in order to conform to the edicts of the law; B. To comply with a legal process served upon DBP; or C. In order to comply with ICANN rules, policies or procedures.”) (emphasis added).
Invasive/Objectionable Uses of WHOIS Information
In its request for proposal, ICANN identified several inappropriate uses of WHOIS data that have spurred the investigation into the extent of Misuse: for example, “generation of spam, abuse of personal data, intellectual property theft, loss of reputation or identity theft, loss of data, phishing and other cybercrime related exploits, harassment, stalking or other activity with negative personal or economic consequences.” Terms of Reference for WHOIS Misuse Studies, Sept. 25, 2009, at 1; see also id. at 5 (providing definitions of e-mail spam, postal and telephone spam, phishing, abuse of personal data and identity theft).
Other Organizations Concerned about CyberCrimes and Consumer Protection
(as identified in ICANN’s Terms of Reference for WHOIS Misuse Studies RFP)
Cybercrime Researchers:
* Anti Phishing Working Group
* Privacy Rights Clearing House
* Online Trust Alliance (AOTA)
Consumer Protection, Regulatory, and Law Enforcement Organizations:
* U.S. Federal Trade Commission
* FBI/NWCC Internet Crime Complaint Center (IC3)
* Identity Theft Assistance Center (ITAC)
Resources for Conducting WHOIS Searches
Most domain name registrars offer a WHOIS search tool that they use in connection with determining whether a domain name you wish to register is actually available. Sometimes, the link to the WHOIS tool is hidden on a particular page, so you may need to hunt to find it. A few examples of the over 500 domain name registrars currently authorized to register new US domain names are: GoDaddy.com, Network Solutions, Inc., PrivateDomains and Register.com. Registration fees vary wildly between registrars, so if you are conducting a WHOIS search with the expectation of registering a domain name, shop around for the best deal that provides you with all of the tools that you need (such as web site hosting, development of web pages, e-mail management, etc.) before making a decision about which registrar to search for availability and registration of a domain name.
If you conduct a WHOIS search and find that a particular domain was registered through a particular registrar, you may wish to view the registrar’s specific WHOIS report because they sometimes contain more information about the domain name owner than the report that you find from another WHOIS tool.
Note that if you conduct a WHOIS search for a domain name through certain registrars, they may put the domain on “hold” for a short period if the domain name is available. Network Solutions describes this as a customer service benefit, allowing a customer to come back up to four days later to register a domain name that they searched. See Network Solutions Adds Customer Protection Measure. During the four-day hold period, the domain name can only be registered through Network Solutions. Id. This “hold” service may not be what you intended when you performed the WHOIS search, so be aware that the possibility exists before you conduct your search.
In addition, here are some other available tools for WHOIS searching:
* Domain Tools – offers basic WHOIS searching, as well as some other custom tools that are available for a fee.
* DomainIt – also provides a WHOIS Privacy registration. Explanation of the service (which masks your contact information and randomizes your e-mail address) can be found here. Among the reasons identified for registering the domain using this privacy service is the prevention of spam and identity theft, as ICANN raised in its own reports, above.
* InterNic’s WHOIS tool can search for domain names with the following gTLDs: .aero, .arpa, .asia, .biz, .cat, .com, .coop, .edu, .info, .int, .jobs, .mobi, .museum, .name, .net, .org, .pro, and .travel. The most commonly used in the US for general purposes are .com, .org and .net. (Note that the .edu extension generally is restricted to educational institutions.)
* Ripe NCC – WHOIS database that covers European domains, as well as those in the Middle East, Central Asia and northern Africa.
* Universal Whois Searches – also provides links to country code TLDs registrars for purposes of country-specific WHOIS searches.
* WIPO’s summary of procedures for resolving domain name disputes re ccTLDs (country code Top Level Domains). Click on the relevant country code link and you will be brought to the appropriate site for registry, WHOIS and dispute resolution. You can also access various international trademark databases through WIPO to search for potentially competing applications/registrations before filing for registration of your own mark.
* WHOIS Misuse studies (deadline to respond – November 27, 2009 – has closed).
* WHOIS Registrant Identification studies (deadline to respond – December 22, 2009).
In both instances, the susbtantive study would begin in early 2010, with a completion goal of June 2010 or December 2010, to coincide with regularly-scheduled ICANN meetings.
There are apparently two other studies that ICANN will pursue, but requests for proposals have not yet been issued. See Generic Names Supporting Organization. These two are Proxy and Privacy Services and Implications of non-ASCII Registration Data in WHOIS records. See ICANN Policy Update ¶ 11 (Nov. 2009) (summary description of the first three study areas and related links).
The ICANN Staff is currently managing a fifth study area, which seeks to determine the feasibility of addressing public concerns of deficiencies in the WHOIS service, including with regard to “data accuracy and reliability, as well as in other technical areas noted in recent SSAC reports, such as accessibility and readability of WHOIS contact information in an IDN environment.” See Generic Names Supporting Organization.
Background of Concerns about WHOIS Data
WHOIS data can generally be defined as the full contact information for domain name registrants, including contacts for administrative and technical purposes. A WHOIS record relating to an individual domain name can also include the IP address of the associated web site, date of creation, renewal and expiration of the domain name, and the name of the registrar used to register and maintain the domain name.
Legitimate Uses of WHOIS Data
There are several legitimate uses of WHOIS data, among them the enforcement of intellectual property rights and criminal law enforcement. Accurate WHOIS information is necessary, for instance, to determine whom a trademark owner should contact if there are concerns about unfair competition or that the domain name may be infringing upon the holder’s existing rights. This information may also be used by law enforcement agencies to police instances of fraud, identity theft and other crimes. See e.g., Federal Trade Commission Press Release, FTC Calls for Openness, Accessibility in WHOIS Database System, Continues to Recommend Enactment of the US SAFE WEB ACT, Sept. 20, 2006 (prepared statement also available); Federal Trade Commission Press Release, Accuracy of "WHOIS" Internet Database Essential to Law Enforcement, FTC Tells Congress, May 22, 2002 (prepared statement also available). There may be other legitimate business reasons to use the WHOIS registration data to contact the owner of a particular domain.
Several years ago, the results of searches of the WHOIS database for domain name owners provided robust contact information. Recently, however, the amount of information that appears in WHOIS search results has been significantly limited, most likely due to public concern about the protection of private information and conformance with other jurisdictions’ privacy laws, including foreign privacy laws such as the EU Directive 95/46/EC (officially, the “Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data,” available in multiple languages and formats through the European Commission Justice and Home Affairs page).
The method of performing WHOIS searches also has changed recently, particularly to block automated search engines (i.e., crawlers and bots) from harvesting the data contained in the records. Specifically, each time you perform a search, you are prompted to manually enter the characters that appear within a graphic image – something the automated search tools apparently cannot do.
Related Legislation
In 2004, Congress enacted the Fraudulent Online Identity Sanctions Act, Pub. L. No. 108-482 (Dec. 23, 2004) (codified in scattered sections of Titles 15 and 18). The Act did not create an independent right of action, but it provided certain enhancements to existing civil and criminal causes of action: specifically, 1) it provided a rebuttable presumption of "willfulness" if a trademark infringement action is brought against a registrant who has supplied false registration information in connection with the domain name in question (15 U.S.C. § 1117); and 2) if the registrant had been convicted of a felony ("other than offense of which an element is the false registration of a domain name") in which the domain name at issue was registered and used in the course of committing the crime, the maximum penalty for the offense shall either be doubled or increased by 7 years, whichever is less. 18 U.S.C. § 3559. While this Act has apparently not had any wide-reaching impact, the mere fact that it was enacted demonstrates the value placed on the accuracy of this database.
Dispute Resolution
In addition, under certain circumstances, a plaintiff filing a complaint against a domain name in U.S. federal court (an “in rem civil action”) may serve the complaint by: “sending a notice of the alleged violation and intent to proceed under [15 U.S.C. § 1125(d)(2)(A)] to the registrant at the postal and e-mail address provided by the registrant to the registrar” and by “publishing notice of the action as the court may direct promptly after filing the action.” 15 U.S.C. § 1125(d)(2)(A)(ii). In this instance, the “registrant” is the person or entity who registered the domain name.
A problem arises, however, when a plaintiff attempts to contact directly the domain name owner through the “postal and e-mail address provided by the registrant to the registrar” if no such valid addresses are displayed in the WHOIS results. Specifically, if plaintiffs or their counsel attempt to reach out to the domain name owner – short of instituting litigation – to investigate whether infringement or unfair competition claims would be legitimate, the lack of valid contact information can be a significant barrier to resolution. If domain name owners invoke the private WHOIS or proxy services to shield their contact information, then it may not be possible to resolve valid claims about the legitimacy and/or non-infringement of the domain name without the investment of substantial extra time and cost. See Ian J. Black, “Hidden Whois and Infringing Domain Names: Making the Case for Registrar Liability,” 2008 U Chi. Legal F. 431, 432 (2008); see also Network Solution’s explanation of its private registration services (which provides alternate contact information to prevent the delivery of spam e-mails and telemarketing phone calls to the registrant, but distinguishes itself from proxy services in that it allows the registrant to remain the domain name owner and be listed in the public WHOIS database).
Similar service problems occur when a plaintiff relies on the Uniform Dispute Resolution Policy adopted by ICANN to arbitrate a domain name dispute. The Rules for UDRP Proceedings provide for service of a domain name dispute complaint through the e-mail addresses for the administrative, technical and billing contacts, to the postmaster of the domain name, and any other e-mail address the defendant identifies in response. Although the domain name dispute resolution provider (and not the plaintiff) is responsible for this service (see Rules ¶ 2(a)), the absence of valid or readily-discernable e-mail addresses for the domain name holder can create problems in reaching a resolution of a dispute short of filing an arbitration complaint.
In both instances, pre-complaint discussions between the parties – or between counsel for the parties – is much more difficult when the contact information for the domain name holders is hidden. Certainly, parties can appeal to the registrars for permission to see the underlying contact information, but whether the registrar must disclose this information, and the timing of their disclosure, is not clear.
In some cases, proof of a valid dispute (e.g., service of a subpoena on the registrar) may be required before such information is released. See, e.g., Domains By Proxy’s explanation of legal issues associated with a private registration and its Proxy Agreement, ¶ 4 (providing that Domains by Proxy “has the absolute right and power, in its sole discretion and without any liability to You whatsoever, to . . . [among other remedies]: . . . ii. Reveal Your name and personal information that You provided to DBP when: A. Required by law, in the good faith belief that such action is necessary in order to conform to the edicts of the law; B. To comply with a legal process served upon DBP; or C. In order to comply with ICANN rules, policies or procedures.”) (emphasis added).
Invasive/Objectionable Uses of WHOIS Information
In its request for proposal, ICANN identified several inappropriate uses of WHOIS data that have spurred the investigation into the extent of Misuse: for example, “generation of spam, abuse of personal data, intellectual property theft, loss of reputation or identity theft, loss of data, phishing and other cybercrime related exploits, harassment, stalking or other activity with negative personal or economic consequences.” Terms of Reference for WHOIS Misuse Studies, Sept. 25, 2009, at 1; see also id. at 5 (providing definitions of e-mail spam, postal and telephone spam, phishing, abuse of personal data and identity theft).
Other Organizations Concerned about CyberCrimes and Consumer Protection
(as identified in ICANN’s Terms of Reference for WHOIS Misuse Studies RFP)
Cybercrime Researchers:
* Anti Phishing Working Group
* Privacy Rights Clearing House
* Online Trust Alliance (AOTA)
Consumer Protection, Regulatory, and Law Enforcement Organizations:
* U.S. Federal Trade Commission
* FBI/NWCC Internet Crime Complaint Center (IC3)
* Identity Theft Assistance Center (ITAC)
Resources for Conducting WHOIS Searches
Most domain name registrars offer a WHOIS search tool that they use in connection with determining whether a domain name you wish to register is actually available. Sometimes, the link to the WHOIS tool is hidden on a particular page, so you may need to hunt to find it. A few examples of the over 500 domain name registrars currently authorized to register new US domain names are: GoDaddy.com, Network Solutions, Inc., PrivateDomains and Register.com. Registration fees vary wildly between registrars, so if you are conducting a WHOIS search with the expectation of registering a domain name, shop around for the best deal that provides you with all of the tools that you need (such as web site hosting, development of web pages, e-mail management, etc.) before making a decision about which registrar to search for availability and registration of a domain name.
If you conduct a WHOIS search and find that a particular domain was registered through a particular registrar, you may wish to view the registrar’s specific WHOIS report because they sometimes contain more information about the domain name owner than the report that you find from another WHOIS tool.
Note that if you conduct a WHOIS search for a domain name through certain registrars, they may put the domain on “hold” for a short period if the domain name is available. Network Solutions describes this as a customer service benefit, allowing a customer to come back up to four days later to register a domain name that they searched. See Network Solutions Adds Customer Protection Measure. During the four-day hold period, the domain name can only be registered through Network Solutions. Id. This “hold” service may not be what you intended when you performed the WHOIS search, so be aware that the possibility exists before you conduct your search.
In addition, here are some other available tools for WHOIS searching:
* Domain Tools – offers basic WHOIS searching, as well as some other custom tools that are available for a fee.
* DomainIt – also provides a WHOIS Privacy registration. Explanation of the service (which masks your contact information and randomizes your e-mail address) can be found here. Among the reasons identified for registering the domain using this privacy service is the prevention of spam and identity theft, as ICANN raised in its own reports, above.
* InterNic’s WHOIS tool can search for domain names with the following gTLDs: .aero, .arpa, .asia, .biz, .cat, .com, .coop, .edu, .info, .int, .jobs, .mobi, .museum, .name, .net, .org, .pro, and .travel. The most commonly used in the US for general purposes are .com, .org and .net. (Note that the .edu extension generally is restricted to educational institutions.)
* Ripe NCC – WHOIS database that covers European domains, as well as those in the Middle East, Central Asia and northern Africa.
* Universal Whois Searches – also provides links to country code TLDs registrars for purposes of country-specific WHOIS searches.
* WIPO’s summary of procedures for resolving domain name disputes re ccTLDs (country code Top Level Domains). Click on the relevant country code link and you will be brought to the appropriate site for registry, WHOIS and dispute resolution. You can also access various international trademark databases through WIPO to search for potentially competing applications/registrations before filing for registration of your own mark.
Thursday, December 10, 2009
NJ District Court Launches New Version of Electronic Filing System
Effective November 15, 2009, the United States District Court for the District of New Jersey implemented a revised version of its Electronic Court Filing (“ECF”) system. See CM/ECF Version 4.0 Public Release Notes, October 6, 2009.
According to the Notice, the following changes are now in effect:
* Added a checkbox for attorneys to confirm whether they have made any redactions in the document to be filed. The login screen also now contains hyperlinks to the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure regarding redaction requirements. (For more on the redaction requirements, see my prior post about the Court’s notice to the bar providing guidelines for redacting documents before filing them in the public system. See also Robert McMillan, HSBC Exposed Sensitive Bankruptcy Data, The New York Times, December 4, 2009, which discusses the redaction problem more broadly. )
* Implemented the changes imposed by the amended Federal Rules of Civil Procedure with regard to the calculation of various deadlines.
* Streamlined document and attachment uploading to appear on a single screen.
* Renumbered documents and their attachments.
* Modified the user interface for reference during docketing.
* Added an option to subscribe to an RSS Feed for notifications, with links to docket sheets and documents. (Does not include restricted or sealed information.)
* Updated user interface for e-mail information.
The Court’s notice provides more detail, and I encourage you to review it in its entirety. For more information about the amendments to the Federal Rules, see Notice To The Bar - Notice of Federal Rules Amendments, December 3, 2009, which also provides a link to the text of the new rules.
The Court also announced that effective December 1, 2009, attorneys wishing to register for the ECF system can no longer merely certify that they completed the online tutorial on the Court’s web site. Instead, they must attend “hands on” training held at the courthouse or in-house at a law firm. See Notice to The Bar - New CM/ECF Registration Requirements.
According to the Notice, the following changes are now in effect:
* Added a checkbox for attorneys to confirm whether they have made any redactions in the document to be filed. The login screen also now contains hyperlinks to the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure regarding redaction requirements. (For more on the redaction requirements, see my prior post about the Court’s notice to the bar providing guidelines for redacting documents before filing them in the public system. See also Robert McMillan, HSBC Exposed Sensitive Bankruptcy Data, The New York Times, December 4, 2009, which discusses the redaction problem more broadly. )
* Implemented the changes imposed by the amended Federal Rules of Civil Procedure with regard to the calculation of various deadlines.
* Streamlined document and attachment uploading to appear on a single screen.
* Renumbered documents and their attachments.
* Modified the user interface for reference during docketing.
* Added an option to subscribe to an RSS Feed for notifications, with links to docket sheets and documents. (Does not include restricted or sealed information.)
* Updated user interface for e-mail information.
The Court’s notice provides more detail, and I encourage you to review it in its entirety. For more information about the amendments to the Federal Rules, see Notice To The Bar - Notice of Federal Rules Amendments, December 3, 2009, which also provides a link to the text of the new rules.
The Court also announced that effective December 1, 2009, attorneys wishing to register for the ECF system can no longer merely certify that they completed the online tutorial on the Court’s web site. Instead, they must attend “hands on” training held at the courthouse or in-house at a law firm. See Notice to The Bar - New CM/ECF Registration Requirements.
Friday, December 4, 2009
Mandatory Restitution to Victims of Identity Theft in Pennsylvania Required
The Pennsylvania General Assembly recently amended its sentencing requirements to be imposed upon convicted identity thieves. On September 18, 2009, House Bill 222 was approved by Governor Rendell and became effective on November 17, 2009.
House Bill 222 amended the PA Crimes Code to mandate restitution by a convicted identity thief to “for all reasonable expenses incurred by the victim or on the victim’s behalf” to investigate the theft, bring civil and/or criminal actions in response, or to correct the victim’s credit record or negative credit reports. 18 Pa. Cons. Stat. Ann. § 1107.1(a). These expenses include: 1) attorneys’ and accountant’s fees for professional services; 2) fees or costs imposed by the credit bureaus to correct the credit reports, to undertake private investigations, or to contest “unwarranted debt collections;” and 3) court costs and filing fees. Id. § 1107.1(b).
This restitution sentence would be imposed in addition to any other restitution sentence or other order. See id. § 1107.1(a).
(Note that you can find the statutory sections cited above through West's Unofficial Purdon’s Pennsylvania Statutes – I tried linking each separate section, but the individual links would not work. You will have to navigate through West’s table of contents and expand the listings under Title 18 to find the relevant sections discussed here.)
Prior Version of Restitution Requirement
The prior version of this restitution requirement had been codified in 42 Pa. Cons. Stat. Ann. § 9720.1 and took effect July 21, 2000. Section 9720.1 has been repealed, now that the provisions have been moved to the Crimes Code.
Amendments Recently Enacted
Section 1107.1 provides several important amendments beyond the provisions previously codified in 42 Pa. Cons. Stat. Ann. § 9720.1. Specifically, the current provision permits an identity theft victim to recover professional fees charged by an accountant as well as any costs that they incurred in connection with disputing debt collections that were undertaken without justification.
Identity Theft in PA (Generally)
Identity theft is considered an “offense against property” in Pennsylvania. A person commits identity theft if “he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.” 18 Pa. Cons. Stat. Ann. § 4120(a).
Identifying information includes “documents [separately defined], photographic, pictorial or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver’s license number, nondriver governmental identification number, telephone number, checking account number, savings account number, student identification number, employee or payroll number or electronic signature.” Id. § 4120(f).
The term “document” is defined to include broadly “any writing,” with certain non-exclusive examples provided: “birth certificate, Social Security card, driver’s license, nondriver government-issued identification card, baptismal certificate, access device card, employee identification card, school identification card or other identifying information recorded by any other method, including, but not limited to, information stored on any computer, computer disc, computer printout, computer system, or part thereof, or by any other mechanical or electronic means.” Id.
The determination of the severity of the offense will vary, depending on the total dollar value involved, the number of times the offender has committed this offense in the past and the age of the victim. Specifically, the offense is deemed to be a misdemeanor of the first degree if the total value involved is less than $2,000. Id. § 4120(c)(1)(i). The offense will be upgraded to a felony (of the third degree) when the amount exceeds $2,000 or when the offense is committed “in furtherance of a criminal conspiracy.” Id. § 4120(c)(1)(ii) and (iii). The degree is further upgraded for recidivists – for third or subsequent offenses, the offense is deemed to be a felony of the second degree. Id. § 4120(c)(1)(iv).
Finally, if the offense is committed against a person “60 years of age or older” or against a person who is “care-dependent” under 18 Pa. Cons. Stat. Ann. § 2713, the severity of the offense will be upgraded a degree. Id. § 4120(c)(2).
As a result, the severity of the offense can range from misdemeanor of the first degree through a felony in the first degree. 204 Pa. Code § 303.15. Under Pennsylvania law, the actual penalties imposed for these offenses will be established by reference to the Sentencing Code (42 Pa. Cons. Stat. Ann. § 9701 et seq.) and Sentencing Guidelines (204 Pa. Code §§ 303.1 – 303.18), but can include imprisonment of varying terms in addition to the restitution required by 18 Pa. Cons. Stat. Ann. § 1107.1 and 42 Pa. Cons. Stat. Ann. § 9721(c).
Resources to Combat Identity Theft
If you need further information about identity theft, there are numerous resources you can use. For instance:
Government & Consumer Advocate Links
* Better Business Bureau’s Information for Consumers about Identity Theft
* Credit Reporting Companies: Equifax, Experian, and Transunion.
* Federal Trade Commission’s Identity Theft Site
* Pennsylvania Attorney General Tom Corbett’s Identity Theft Toolkit
* Pennsylvania State Police – Identity Theft Prevention Guidelines (PDF document)
* US Postal Service – Report ID Theft by Mail
Commercial Providers or Evaluation Tools
* IDTheft.com – has some information about police reports and dealing with governmental agencies to start correcting their records.
* Comparison of the “Top 5” Identity Theft Protection Companies on the market
* Identity Theft Labs – also provides a comparison of the most popular ID Theft Protection sites
* Identity Theft Protection and Survival – offers books and other educational materials for sale
This is a non-exhaustive list, but should get you started. In addition to these resources, you may also want to consider checking resources offered by your bank, credit union or credit card companies; many of them offer tools to assist you in avoiding or recovering from identity theft.
(Please note that I have not thoroughly researched companies providing ID theft protection services – so what appears above are suggestions only of some of the third-parties that provide these services. Their listing here should not be taken to be an endorsement or any other support for the products or services that they offer.)
House Bill 222 amended the PA Crimes Code to mandate restitution by a convicted identity thief to “for all reasonable expenses incurred by the victim or on the victim’s behalf” to investigate the theft, bring civil and/or criminal actions in response, or to correct the victim’s credit record or negative credit reports. 18 Pa. Cons. Stat. Ann. § 1107.1(a). These expenses include: 1) attorneys’ and accountant’s fees for professional services; 2) fees or costs imposed by the credit bureaus to correct the credit reports, to undertake private investigations, or to contest “unwarranted debt collections;” and 3) court costs and filing fees. Id. § 1107.1(b).
This restitution sentence would be imposed in addition to any other restitution sentence or other order. See id. § 1107.1(a).
(Note that you can find the statutory sections cited above through West's Unofficial Purdon’s Pennsylvania Statutes – I tried linking each separate section, but the individual links would not work. You will have to navigate through West’s table of contents and expand the listings under Title 18 to find the relevant sections discussed here.)
Prior Version of Restitution Requirement
The prior version of this restitution requirement had been codified in 42 Pa. Cons. Stat. Ann. § 9720.1 and took effect July 21, 2000. Section 9720.1 has been repealed, now that the provisions have been moved to the Crimes Code.
Amendments Recently Enacted
Section 1107.1 provides several important amendments beyond the provisions previously codified in 42 Pa. Cons. Stat. Ann. § 9720.1. Specifically, the current provision permits an identity theft victim to recover professional fees charged by an accountant as well as any costs that they incurred in connection with disputing debt collections that were undertaken without justification.
Identity Theft in PA (Generally)
Identity theft is considered an “offense against property” in Pennsylvania. A person commits identity theft if “he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful purpose.” 18 Pa. Cons. Stat. Ann. § 4120(a).
Identifying information includes “documents [separately defined], photographic, pictorial or computer image of another person, or any fact used to establish identity, including, but not limited to, a name, birth date, Social Security number, driver’s license number, nondriver governmental identification number, telephone number, checking account number, savings account number, student identification number, employee or payroll number or electronic signature.” Id. § 4120(f).
The term “document” is defined to include broadly “any writing,” with certain non-exclusive examples provided: “birth certificate, Social Security card, driver’s license, nondriver government-issued identification card, baptismal certificate, access device card, employee identification card, school identification card or other identifying information recorded by any other method, including, but not limited to, information stored on any computer, computer disc, computer printout, computer system, or part thereof, or by any other mechanical or electronic means.” Id.
The determination of the severity of the offense will vary, depending on the total dollar value involved, the number of times the offender has committed this offense in the past and the age of the victim. Specifically, the offense is deemed to be a misdemeanor of the first degree if the total value involved is less than $2,000. Id. § 4120(c)(1)(i). The offense will be upgraded to a felony (of the third degree) when the amount exceeds $2,000 or when the offense is committed “in furtherance of a criminal conspiracy.” Id. § 4120(c)(1)(ii) and (iii). The degree is further upgraded for recidivists – for third or subsequent offenses, the offense is deemed to be a felony of the second degree. Id. § 4120(c)(1)(iv).
Finally, if the offense is committed against a person “60 years of age or older” or against a person who is “care-dependent” under 18 Pa. Cons. Stat. Ann. § 2713, the severity of the offense will be upgraded a degree. Id. § 4120(c)(2).
As a result, the severity of the offense can range from misdemeanor of the first degree through a felony in the first degree. 204 Pa. Code § 303.15. Under Pennsylvania law, the actual penalties imposed for these offenses will be established by reference to the Sentencing Code (42 Pa. Cons. Stat. Ann. § 9701 et seq.) and Sentencing Guidelines (204 Pa. Code §§ 303.1 – 303.18), but can include imprisonment of varying terms in addition to the restitution required by 18 Pa. Cons. Stat. Ann. § 1107.1 and 42 Pa. Cons. Stat. Ann. § 9721(c).
Resources to Combat Identity Theft
If you need further information about identity theft, there are numerous resources you can use. For instance:
Government & Consumer Advocate Links
* Better Business Bureau’s Information for Consumers about Identity Theft
* Credit Reporting Companies: Equifax, Experian, and Transunion.
* Federal Trade Commission’s Identity Theft Site
* Pennsylvania Attorney General Tom Corbett’s Identity Theft Toolkit
* Pennsylvania State Police – Identity Theft Prevention Guidelines (PDF document)
* US Postal Service – Report ID Theft by Mail
Commercial Providers or Evaluation Tools
* IDTheft.com – has some information about police reports and dealing with governmental agencies to start correcting their records.
* Comparison of the “Top 5” Identity Theft Protection Companies on the market
* Identity Theft Labs – also provides a comparison of the most popular ID Theft Protection sites
* Identity Theft Protection and Survival – offers books and other educational materials for sale
This is a non-exhaustive list, but should get you started. In addition to these resources, you may also want to consider checking resources offered by your bank, credit union or credit card companies; many of them offer tools to assist you in avoiding or recovering from identity theft.
(Please note that I have not thoroughly researched companies providing ID theft protection services – so what appears above are suggestions only of some of the third-parties that provide these services. Their listing here should not be taken to be an endorsement or any other support for the products or services that they offer.)
Tuesday, December 1, 2009
Update on Google Book Settlement
On November 13, 2009, the parties to the Author’s Guild, Inc. v. Google, Inc. lawsuit submitted a revised settlement agreement, for which it sought court approval. Prior posts about the lawsuit and its implications can be found here.
The revised settlement agreement is 171 pages (the original agreement was a mere 134 pages) – so it will take some time before all of the pivotal terms and conditions are understood and vetted by the media, government agencies and the public. I have only briefly scanned the revised agreement, and may decide at a later date to enhance my own written analysis of its implications as I become more familiar with its terms.
In the meantime, here are some provisions of interest of the revised Agreement for your preliminary consideration:
* Google will pay “a minimum of $45 million into the Settlement Fund to pay Settlement Class members whose Books and Inserts have been Digitized prior to the May 5, 2009.” Agreement ¶ 2.1(b).
* Anyone who wishes to receive a cash payment under the revised settlement agreement must file their claim form by March 31, 2011.
* Plaintiffs’ attorneys can receive up to $30 million in fees after the effective date of the Agreement (assuming that it obtains final approval by the Court). Agreement ¶ 5.5.
* The Agreement proposes to distribute “at least $60 per Principal Work,” and less for entire copies of “inserts” ($15) or partial copies of “inserts” ($5). Agreement ¶ 5.1(a).
* Certain foreign works have been removed from coverage by the Agreement (although works published in Britain, Canada or Australia are still covered). Agreement ¶ 1.19.
* Other online book distributors may participate in the distribution of out-of-print and unclaimed works (a right that previously had been reserved for Google exclusively). Agreement ¶ 2.4.
* Rights holders can direct Google to exclude their works (with some limitations) provided that the request is received no later than March 9, 2012. Agreement ¶ 3.5(a)(iii).
* Google may still elect to exclude works from the database for any “editorial or non-editorial” reasons, although it must provide a digital copy of the excluded work (along with an explanation of why it was excluded) to the Book Rights Registry. Agreement ¶¶ 3.7(e) & (e)(i).
* Google apparently will be allowed to continue scanning works that are not subject to payment under the Agreement. Agreement ¶ 3.1(a). Thus, even this revision appears to severely limit the online distribution rights of authors and publishers.
* Books and inserts can be designated as either “Display” or “No Display” – in other words, the author/publisher can request that the book not be displayed in search results. Agreement ¶¶ 3.3, 3.4. It appears, however, that the scanned copy of a book designed “No Display” will continue to exist in the database, even if Google is not permitted to display it in the search results.
Other Analyses of the Revised Settlement Agreement
Others have opined about the impact of this revision, including the following:
* Jonathan Band’s A Guide for the Perplexed, Part III, analyzing the November 13 amendments to the settlement agreement in great detail;
* Copyright Clearance Center seminars and webinars about the impact of the settlement;
* Electronic Frontier Foundation’s Deep Links Blog covered the revised settlement agreement from the perspective of the pros and cons, access, competition, and privacy;
* Dr. James Grimmelman’s Blog, The Laboratorium;
* The Official Settlement Web Site;
* The Public Index and its annotated copy of the revised settlement agreement;
(*Note that I have not fully analyzed or reviewed each of these external links – and therefore do not endorse their opinions or recommendations. I am providing links to these sources, however, in the interest of fostering a diverse and robust discussion of the impact of this agreement on copyright law and electronic book publishing into the future.)
Court Grants Preliminary Approval and Sets Deadlines
On November 19, 2009, the Court granted preliminary approval of the Amended Settlement Agreement, and set February 18, 2010 as the new hearing date for the Final Fairness Hearing. Any opposition to the revised settlement agreement must be filed by January 28, 2010. Any class member who wishes to appear at the hearing must file a Notice of Intent to Appear no later than February 4, 2010.
The revised settlement agreement is 171 pages (the original agreement was a mere 134 pages) – so it will take some time before all of the pivotal terms and conditions are understood and vetted by the media, government agencies and the public. I have only briefly scanned the revised agreement, and may decide at a later date to enhance my own written analysis of its implications as I become more familiar with its terms.
In the meantime, here are some provisions of interest of the revised Agreement for your preliminary consideration:
* Google will pay “a minimum of $45 million into the Settlement Fund to pay Settlement Class members whose Books and Inserts have been Digitized prior to the May 5, 2009.” Agreement ¶ 2.1(b).
* Anyone who wishes to receive a cash payment under the revised settlement agreement must file their claim form by March 31, 2011.
* Plaintiffs’ attorneys can receive up to $30 million in fees after the effective date of the Agreement (assuming that it obtains final approval by the Court). Agreement ¶ 5.5.
* The Agreement proposes to distribute “at least $60 per Principal Work,” and less for entire copies of “inserts” ($15) or partial copies of “inserts” ($5). Agreement ¶ 5.1(a).
* Certain foreign works have been removed from coverage by the Agreement (although works published in Britain, Canada or Australia are still covered). Agreement ¶ 1.19.
* Other online book distributors may participate in the distribution of out-of-print and unclaimed works (a right that previously had been reserved for Google exclusively). Agreement ¶ 2.4.
* Rights holders can direct Google to exclude their works (with some limitations) provided that the request is received no later than March 9, 2012. Agreement ¶ 3.5(a)(iii).
* Google may still elect to exclude works from the database for any “editorial or non-editorial” reasons, although it must provide a digital copy of the excluded work (along with an explanation of why it was excluded) to the Book Rights Registry. Agreement ¶¶ 3.7(e) & (e)(i).
* Google apparently will be allowed to continue scanning works that are not subject to payment under the Agreement. Agreement ¶ 3.1(a). Thus, even this revision appears to severely limit the online distribution rights of authors and publishers.
* Books and inserts can be designated as either “Display” or “No Display” – in other words, the author/publisher can request that the book not be displayed in search results. Agreement ¶¶ 3.3, 3.4. It appears, however, that the scanned copy of a book designed “No Display” will continue to exist in the database, even if Google is not permitted to display it in the search results.
Other Analyses of the Revised Settlement Agreement
Others have opined about the impact of this revision, including the following:
* Jonathan Band’s A Guide for the Perplexed, Part III, analyzing the November 13 amendments to the settlement agreement in great detail;
* Copyright Clearance Center seminars and webinars about the impact of the settlement;
* Electronic Frontier Foundation’s Deep Links Blog covered the revised settlement agreement from the perspective of the pros and cons, access, competition, and privacy;
* Dr. James Grimmelman’s Blog, The Laboratorium;
* The Official Settlement Web Site;
* The Public Index and its annotated copy of the revised settlement agreement;
(*Note that I have not fully analyzed or reviewed each of these external links – and therefore do not endorse their opinions or recommendations. I am providing links to these sources, however, in the interest of fostering a diverse and robust discussion of the impact of this agreement on copyright law and electronic book publishing into the future.)
Court Grants Preliminary Approval and Sets Deadlines
On November 19, 2009, the Court granted preliminary approval of the Amended Settlement Agreement, and set February 18, 2010 as the new hearing date for the Final Fairness Hearing. Any opposition to the revised settlement agreement must be filed by January 28, 2010. Any class member who wishes to appear at the hearing must file a Notice of Intent to Appear no later than February 4, 2010.
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