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Court Snuffs Internet Smut Law
Attorney Blogs | 2007/03/23 16:45

Nearly nine years after Congress passed the Child Online Protection Act (COPA), a Philadelphia federal court judge ruled Thursday that COPA is unconstitutional. As a result of his findings, Philadelphia Judge Lowell Reed issued a permanent injunction against enforcing the controversial, though never enforced, law.

Reed ruled that the American Civil Liberties Union's (ACLU) arguments against COPA, "true, reliable and credible and I accept those facts" and determined COPA violated the First Amendment's right to free speech.

Reed said that Attorney General Alberto Gonzales failed to "meet his burden of showing that COPA is the "least restrictive, most effective" alternative in achieving the "compelling [public] interest."

The ACLU filed a suit for permanent injunction relief against enforcing the law a week after Congress passed the measure in 1998. The organization argued that COPA overreached lawmakers' good intentions to protect children from "sexually explicit" material available online. Under COPA, children are defined as anyone under 17-years of age.

As written by Congress and signed by then President Bill Clinton, any commercial Web site operator that made "sexually explicit" material available to minors was, under COPA, subject to criminal and civil sanctions even if the online material was otherwise acknowledged as free speech for adults but deemed "harmful to minors."

COPA provided a safe harbor for Web site owners if they required the use of a credit card or other identification method used to verify age or, significantly, "any other reasonable measures that are feasible under available technology."

The ACLU immediately contended that Internet filtering technology was more feasible than any age verification methods, mitigating, the ACLU claimed, the impact on otherwise protected free speech. By the time the Bush administration inherited the political hot potato, it steadfastly maintained that filtering technology does not work and the threat of jail time and steep fines were the most effective defenses against making sexually explicit material available to minors.

Reed wrote that the ACLU's clients "post content on their Web sites including…resources on sexual health, safer sex, and sexual education; visual art and poetry; resources for gays and lesbians; online magazines and articles; music; and books and information about books that are being offered for sale." No matter Congress' valid interests to protect children, Reed ruled, such free speech restrictions on content stifled legal online free speech.

"I may not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation's youth by upholding a flawed statute, especially when a more effective and less restrictive alternative is readily available." Reed wrote.

As the case bounced all the way up from the district court to the Supreme Court and back down again, the Bush administration insisted filtering technology is not an effective tool for parents to censor adult content for their children. The ACLU argued otherwise. As the case dragged on for almost a decade, the Department of Justice (DoJ) eventually subpoenaed Google, Yahoo, MSN and AOL for proof child protection filters were ineffective tools against sites with sexually explicit material.

While Google successfully fought the subpoenas, the other search engines turned over evidence that convinced Roberts that "filtering products block both Web pages originating from within the United States and Web pages originating from outside the United States."

That determination, Roberts ruled, sank the DoJ's defense of COPA.

Roberts said that, in addition to their content-filtering features, filters can provide parents with a report indicating which Web sites a child visited, which sites were blocked, the number of e-mails and instant messages a child sent and to whom a child sent e-mail or instant messages.

Roberts further ruled that Internet-filtering technologies offer "money-back guarantees or free trial periods, so that parents can simply download a filtering product for free over the Internet and then use it for a set time period to see if it is something that they want to continue using."

"Based upon the testimony of [ACLU witnesses], which I accept, I find that filters generally block about 95 percent of sexually explicit material," Roberts ruled. He also determined that two separate reports commissioned by Congress, "have confirmed that content filters can be effective at preventing minors from accessing harmful materials online."

The Bush administration has the right to appeal the decision, but the DoJ had not responded to Roberts' decision by press time.



2006 Tax Year Tough on IRS
Attorney Blogs | 2007/03/23 01:57

A new telephone refund, last-minute tax changes and a direct-deposit service made the 2006 tax filing season challenging for the Internal Revenue Service. So said IRS Commissioner Mark Everson, who noted during a Tuesday speech that the agency grappled with implementing the one-time telephone excise tax refund. During an address at the National Press Club in Washington, D.C., Everson added that he was surprised at the low claim rate for the refund, Government Executive magazine reported.

"We think some people may have skipped over it on the form – even with the software, in some instances – just completing the return as they did last year. We've been surprised by that," Everson said.

For this year only, most taxpayers can claim a refund of $30 to $60. The amount depends on the size of your family, for taxes the IRS mistakenly collected on long-distance phone services. So far, 30 percent of tax filers are failing to claim the refund, and half of the taxpayers paid preparers to complete their return, Forbes reported.

On the other hand, the IRS received huge telephone refund claims, allegedly fraudulent, for around $10,000 early in the filing season. "That's a lot of phone usage. Even my teenage kids can't generate that much phone usage," Everson joked. A subsequent crackdown on fraud appears to be effective, he said.

Other challenges for the IRS included extensions of tax breaks that did not become final until the end of December. The agency had to hussle to implement the changes in time for filing deadlines, and incorporate the changes into software programs.

A new direct-deposit service was also difficult: Filers can split their refund and have it sent electronically to different financial institutions. Everson said about 55,000 people took advantage of the service, that’s of 74 million returns processed so far, but he expects it to become more popular.



What is an LLM?
Attorney Blogs | 2007/03/13 21:59

The LL.M. (Master of Laws) is an internationally recognized postgraduate law degree. It is usually obtained by completing a one-year full-time program. The LL.M. is a higher academic degree, comparable to an MBA in business and management. Law students and professionals frequently pursue the LL.M. to gain expertise in a specialized field of law, for example in the area of tax law or international law. Many law firms prefer job candidates with an LL.M. degree because it indicates that a lawyer has acquired advanced, specialized legal training, and is qualified to work in a multinational legal environment.

In most countries, lawyers are not required to hold an LL.M. degree, and many do not choose to obtain one. An LL.M. degree by itself generally does not qualify graduates to practice law. In most cases, LL.M. students must first obtain a professional degree in law, e.g. the Bachelor of Laws (LL.B.) in the United Kingdom or the Juris Doctor (J.D.) in the United States, and pass a bar exam or the equivalent exam in other countries, such as the Zweites Staatsexamen in Germany. While the general curriculum of the LL.B. and J.D. is designed to give students the basic skills and knowledge to become lawyers, law students wishing to specialize in a particular area can continue their studies with an LL.M. program. Some universities also consider students for their LL.M. program who hold degrees in other related areas, or have expertise in a specific area of law.

Graduation requirements for an LL.M. program vary depending on the respective university guidelines. Some programs are research-oriented and require students to write a thesis, while others only offer a number of classes that students must take to complete the course of study. Many LL.M. programs combine both coursework and research. Part-time programs are also available for professionals wishing to complete their LL.M. while working full-time.

Prospective students should be aware that there is no universal definition for the term LL.M. It is used in different ways by institutions around the world. Particularly in the United States and Germany, LL.M. programs are often designed to teach foreign lawyers the basic legal principles of the host country. In this regard, the LL.M. can help lawyers seeking to relocate and practice in another country, or expand their area of practice to multinational issues. The completion of an LL.M. program, however, does not automatically qualify foreign students to take the bar exam in their host country. In the U.S., for example, some states allow foreign lawyers to seek admission to the bar upon completion of an LL.M., while in other states, a J.D. is required.

LL.M. is an abbreviation of the Latin Legum Magister, which means Master of Laws. In Latin, the plural form of a word is abbreviated by repeating the letter. Hence, "LL." is short for "laws." Legum is the possessive plural form of the Latin word lex, which means "specific laws", as opposed to the more general concept embodied in the word jus, from which the word juris and the modern English word "justice" are derived.



How Business Trounced the Trial Lawyers
Attorney Blogs | 2007/03/11 08:58

The media recently has been writing the obituary of the tort lawyers. "The power of the plaintiffs bar is on the wane," argued the American Lawyer; a cover story in Business Week promised to reveal "How Business Trounced the Trial Lawyers." With apologies to Mark Twain, the reports of the trial lawyers' demise are greatly exaggerated.

While asbestos and tobacco litigation bonanzas are winding down, America's most aggressive contingency-fee law firms still have in place a fee structure in search of an investment strategy. And so, faced with shrinking domestic opportunities, these firms have gone global.

Consider one class-action lawsuit, in which a plaintiffs firm sued Deutsche Bank on behalf of an African tribe which suffered atrocities committed by imperial Germany in the 19th century. Or another, consolidating 10 complaints filed around the country on behalf of all South Africans injured by the former apartheid regime from 1948 to the present.

One of the South African complaints was on behalf of a class including 32,000 plaintiffs; the class in another was estimated to encompass "millions of individuals." The defendants, almost 100 multinational corporations that did business in South Africa after 1948, were alleged to be liable for injuries on the theory that they had aided and abetted the apartheid regime. Purported damages in just one of the consolidated actions total $400 billion.

The law used to lodge these massive foreign class actions in the U.S. is the Alien Tort Statute (ATS). This obscure piece of legislation adopted in 1789 gave federal district courts jurisdiction in civil cases brought by an alien for a tort committed in violation of the law of nations, or of a U.S. treaty. The law was passed primarily to assure a hearing for cases involving offenses against foreign ambassadors, violations of safe conduct and piracy.

The ATS was virtually dormant for two centuries. Then relatives of a Paraguayan citizen who had been kidnapped and tortured to death by a Paraguayan police official—on Paraguayan soil—brought a civil suit against the police official. Plaintiffs and defendants happened to be in the U.S., the police official illegally. In 1980 a U.S. court of appeals allowed the suit to go forward under the ATS, on the grounds that the police official violated international law, including various U.N provisions. From that acorn a mighty oak has grown.

Even by American standards the size of recent ATS class actions is extraordinary. Cases involving wholly foreign events routinely consist of tens or hundreds of thousands of "John Doe" plaintiffs who reside in remote locations as distant as Sudan and Pakistan. The size of the class of defendants has also grown to 500 or more deep-pocketed individuals or companies.

The fact that these lawsuits appear in U.S. courts at all defies common sense. Imagine our justifiable indignation if courts in Japan, France or Russia determined they had jurisdiction over alleged wrongdoing by Americans, in America, against other Americans. It takes a thoroughly arrogant view of the world—call it legal imperialism—to presume that our courts should be the arbiter of problems everywhere, whether or not the problem had anything whatsoever to do with the U.S.

Nevertheless, our tort lawyers presume just that, demanding that our court system sit in judgment over alleged conduct occurring completely within the borders of other sovereign nations, regardless of the effect this may have on U.S. foreign relations. Huge ATS cases have been filed against classes of unnamed defendants in Saudi Arabia, the United Arab Emirates, Qatar and other countries in the Middle East where vital, and delicate, U.S. national security interests are at stake.

Of course, it ultimately will be impractical for U.S. courts to police these monster ATS class actions if they are allowed to proliferate; they dwarf in size the asbestos cases that currently plague the U.S. courts. Congress could have amended the ATS to limit the damage, and in 2005, Democratic Sen. Dianne Feinstein proposed to do so, without success.

Fortunately, the Supreme Court weighed in. In Sosa v. Alvarez-Machain, a Mexican doctor suspected to have participated in the torture and murder of a U.S. DEA agent was apprehended in Mexico by Jose Sosa, a Mexican national hired by U.S. law enforcement. Mr. Sosa brought the Mexican doctor to the U.S., where he was arrested. The doctor sued Mr. Sosa for unlawful detention. In 2004, the Supreme Court dismissed the action and imposed a "high bar" against innovative ATS lawsuits. As a result of Sosa, several ATS suits have been rejected because of the potential for interference with U.S. foreign policy.

In one case, the D.C. circuit dismissed an ATS case seeking reparations from Japan for crimes committed during World War II because the suit interfered with state-to-state negotiations and threatened to "disrupt Japan's delicate relations with China and Korea, thereby creating serious implications for stability in the region."

In another, a federal court dismissed a case brought after the Israeli Defense Forces used heavy equipment to demolish buildings in the Palestinian territory. Plaintiffs sought damages from the manufacturer, Caterpillar, along with an order to stop supplying products to the Israeli armed forces. The court noted that the plaintiffs improperly sought to challenge the acts of an existing government in a region "where diplomacy is delicate and U.S. interests are great."

Trial lawyers nevertheless continue to test the outer limits of ATS liability, "high bar" or not, by filing an array of increasingly ambitious ATS class actions. In one pending case, Wal-Mart has been sued on behalf of residents of China, Bangladesh, Indonesia, Swaziland and Nicaragua. Plaintiffs seek to hold the company vicariously liable for the labor policies of its overseas suppliers. The improvement of labor policies in other countries is certainly a worthy goal. But it is the province of the executive branch and Congress under the foreign affairs and treaty-making powers, not that of attorneys looking for contingency fees.

The corporations named in the South African case—including IBM, General Motors, Ford, Xerox, Coca-Cola and Citigroup—were legally doing business in South Africa pursuant to the official U.S. policy of "constructive engagement" that sought to encourage positive changes in South Africa through economic investment. Recognizing this, the federal court in the Southern District of New York dismissed all 10 of the cases.

That dismissal, along with the dismissals of several other ATS cases, is now pending on appeal before the Second and Ninth Circuits. As these and other ATS cases ripen for appellate review, the era of post-Sosa ATS jurisprudence is entering a critical phase.

The executive branch has promoted strict conformance with Sosa: Both the Clinton and Bush administrations have filed progressively stronger "Statement of Interest" briefs urging that federal courts dismiss ATS cases that could interfere with U.S. foreign policy.

Still, leading class-action law firms such as Motley Rice, Milberg Weiss and Cohen Milstein have launched exploratory ATS cases to test the waters, trying to maneuver around sovereign immunity, which prevents lawsuits against foreign governments. Instead, the plaintiffs lawyers claim that U.S. corporations doing business abroad are vicariously liable for the purely overseas acts of foreign governments, or other actors, in jurisdictions where the U.S. companies do business. And pressured by the massive exposure involved in ATS class actions, defendants in some early cases have opted to settle rather than undertake the risks of litigation.

These plaintiffs firms are flush with cash, experts in the business of creating cases, and undeterred by setbacks. In fact, contingency-fee lawyers take each rejection as a lesson in which tactics work and which do not. They know that if they can weather dismissal motions in a single case, they can proliferate a succession of copycat ATS class actions.

Once they do, you can be sure that a torrent of global ATS class actions will follow—to the detriment of the U.S. court system, foreign policy and U.S. standing around the world.

The media recently has been writing the obituary of the tort lawyers. "The power of the plaintiffs bar is on the wane," argued the American Lawyer; a cover story in Business Week promised to reveal "How Business Trounced the Trial Lawyers." With apologies to Mark Twain, the reports of the trial lawyers' demise are greatly exaggerated.

While asbestos and tobacco litigation bonanzas are winding down, America's most aggressive contingency-fee law firms still have in place a fee structure in search of an investment strategy. And so, faced with shrinking domestic opportunities, these firms have gone global.

Consider one class-action lawsuit, in which a plaintiffs firm sued Deutsche Bank on behalf of an African tribe which suffered atrocities committed by imperial Germany in the 19th century. Or another, consolidating 10 complaints filed around the country on behalf of all South Africans injured by the former apartheid regime from 1948 to the present.

One of the South African complaints was on behalf of a class including 32,000 plaintiffs; the class in another was estimated to encompass "millions of individuals." The defendants, almost 100 multinational corporations that did business in South Africa after 1948, were alleged to be liable for injuries on the theory that they had aided and abetted the apartheid regime. Purported damages in just one of the consolidated actions total $400 billion.

The law used to lodge these massive foreign class actions in the U.S. is the Alien Tort Statute (ATS). This obscure piece of legislation adopted in 1789 gave federal district courts jurisdiction in civil cases brought by an alien for a tort committed in violation of the law of nations, or of a U.S. treaty. The law was passed primarily to assure a hearing for cases involving offenses against foreign ambassadors, violations of safe conduct and piracy.

The ATS was virtually dormant for two centuries. Then relatives of a Paraguayan citizen who had been kidnapped and tortured to death by a Paraguayan police official—on Paraguayan soil—brought a civil suit against the police official. Plaintiffs and defendants happened to be in the U.S., the police official illegally. In 1980 a U.S. court of appeals allowed the suit to go forward under the ATS, on the grounds that the police official violated international law, including various U.N provisions. From that acorn a mighty oak has grown.

Even by American standards the size of recent ATS class actions is extraordinary. Cases involving wholly foreign events routinely consist of tens or hundreds of thousands of "John Doe" plaintiffs who reside in remote locations as distant as Sudan and Pakistan. The size of the class of defendants has also grown to 500 or more deep-pocketed individuals or companies.

The fact that these lawsuits appear in U.S. courts at all defies common sense. Imagine our justifiable indignation if courts in Japan, France or Russia determined they had jurisdiction over alleged wrongdoing by Americans, in America, against other Americans. It takes a thoroughly arrogant view of the world—call it legal imperialism—to presume that our courts should be the arbiter of problems everywhere, whether or not the problem had anything whatsoever to do with the U.S.

Nevertheless, our tort lawyers presume just that, demanding that our court system sit in judgment over alleged conduct occurring completely within the borders of other sovereign nations, regardless of the effect this may have on U.S. foreign relations. Huge ATS cases have been filed against classes of unnamed defendants in Saudi Arabia, the United Arab Emirates, Qatar and other countries in the Middle East where vital, and delicate, U.S. national security interests are at stake.

Of course, it ultimately will be impractical for U.S. courts to police these monster ATS class actions if they are allowed to proliferate; they dwarf in size the asbestos cases that currently plague the U.S. courts. Congress could have amended the ATS to limit the damage, and in 2005, Democratic Sen. Dianne Feinstein proposed to do so, without success.

Fortunately, the Supreme Court weighed in. In Sosa v. Alvarez-Machain, a Mexican doctor suspected to have participated in the torture and murder of a U.S. DEA agent was apprehended in Mexico by Jose Sosa, a Mexican national hired by U.S. law enforcement. Mr. Sosa brought the Mexican doctor to the U.S., where he was arrested. The doctor sued Mr. Sosa for unlawful detention. In 2004, the Supreme Court dismissed the action and imposed a "high bar" against innovative ATS lawsuits. As a result of Sosa, several ATS suits have been rejected because of the potential for interference with U.S. foreign policy.

In one case, the D.C. circuit dismissed an ATS case seeking reparations from Japan for crimes committed during World War II because the suit interfered with state-to-state negotiations and threatened to "disrupt Japan's delicate relations with China and Korea, thereby creating serious implications for stability in the region."

In another, a federal court dismissed a case brought after the Israeli Defense Forces used heavy equipment to demolish buildings in the Palestinian territory. Plaintiffs sought damages from the manufacturer, Caterpillar, along with an order to stop supplying products to the Israeli armed forces. The court noted that the plaintiffs improperly sought to challenge the acts of an existing government in a region "where diplomacy is delicate and U.S. interests are great."

Trial lawyers nevertheless continue to test the outer limits of ATS liability, "high bar" or not, by filing an array of increasingly ambitious ATS class actions. In one pending case, Wal-Mart has been sued on behalf of residents of China, Bangladesh, Indonesia, Swaziland and Nicaragua. Plaintiffs seek to hold the company vicariously liable for the labor policies of its overseas suppliers. The improvement of labor policies in other countries is certainly a worthy goal. But it is the province of the executive branch and Congress under the foreign affairs and treaty-making powers, not that of attorneys looking for contingency fees.

The corporations named in the South African case—including IBM, General Motors, Ford, Xerox, Coca-Cola and Citigroup—were legally doing business in South Africa pursuant to the official U.S. policy of "constructive engagement" that sought to encourage positive changes in South Africa through economic investment. Recognizing this, the federal court in the Southern District of New York dismissed all 10 of the cases.

That dismissal, along with the dismissals of several other ATS cases, is now pending on appeal before the Second and Ninth Circuits. As these and other ATS cases ripen for appellate review, the era of post-Sosa ATS jurisprudence is entering a critical phase.

The executive branch has promoted strict conformance with Sosa: Both the Clinton and Bush administrations have filed progressively stronger "Statement of Interest" briefs urging that federal courts dismiss ATS cases that could interfere with U.S. foreign policy.

Still, leading class-action law firms such as Motley Rice, Milberg Weiss and Cohen Milstein have launched exploratory ATS cases to test the waters, trying to maneuver around sovereign immunity, which prevents lawsuits against foreign governments. Instead, the plaintiffs lawyers claim that U.S. corporations doing business abroad are vicariously liable for the purely overseas acts of foreign governments, or other actors, in jurisdictions where the U.S. companies do business. And pressured by the massive exposure involved in ATS class actions, defendants in some early cases have opted to settle rather than undertake the risks of litigation.

These plaintiffs firms are flush with cash, experts in the business of creating cases, and undeterred by setbacks. In fact, contingency-fee lawyers take each rejection as a lesson in which tactics work and which do not. They know that if they can weather dismissal motions in a single case, they can proliferate a succession of copycat ATS class actions.

Once they do, you can be sure that a torrent of global ATS class actions will follow -to the detriment of the U.S. court system, foreign policy and U.S. standing around the world.



The LL.M. in Intellectual Property Law
Attorney Blogs | 2007/01/23 23:04

As it has done for generations, intellectual property (IP) law determines how we use patents, copyrights, and trademarks. But over the last few decades, IP law has assumed an increasingly vital role in the dizzying expansion of the Internet and rapid pace of technological, scientific and medical innovation that we are witnessing today. It has therefore grown into one of the world’s biggest and fastest-growing fields of law.

Responding to the enormous demand for lawyers with a sound knowledge of intellectual property issues, dozens of law schools worldwide now offer specialized IP law programs and courses as a part of their LL.M. programs.

John N. Riccardi directs one of these programs – the Intellectual Property Law LL.M. program at the Boston University School of Law. Riccardi says his students get a “solid grounding in the theory behind the key doctrines of intellectual property law – in copyright, patents and trademark/unfair competition law – while also gaining exposure to some of the cutting-edge issues that individuals and enterprises face as a result of the rapid technological advances taking place throughout the world, whether in digital and information technology or the biological sciences.”

According to the US News & World Report 2006 law school survey, the top-ranked IP programs in the United States are Stanford, UC Berkeley (Boalt Hall), and George Washington University (GW Law).

Robert Brauneis, who co-directs the IP LL.M. program at GW Law, suggests one of the keys to a successful program is catering to the needs of both US- and foreign-trained lawyers, who often have different reasons for pursuing an LL.M. US-trained lawyers, for example, often come to GW to make the switch to IP law from another field of law, or to get a degree from a higher-ranking school than where they received their J.D. Foreign-trained lawyers, however, may already have lots of experience practising IP law in their home country, but want to learn more about US law or prepare for a US bar exam.

“Because we offer a large number of both US and international and comparative courses, students can choose to focus more on domestic or more on international issues”, says Brauneis. “These days, the two are also often intertwined – to understand a provision in US law, you need to understand that it was required by an international treaty, and learn something about the background of that treaty.”

“Many of our graduates who stay in the U.S. go to law firms,” says Brauneis. “You will find GW LL.M.s in most major firms with substantial IP practices, such as Finnegan Henderson, Wilson Sonsini, Foley and Lardner, Fish & Richardson, Howrey, Banner & Witcoff, Kenyon & Kenyon, and many, many others.”

“We also have graduates in government, not only at the Patent and Trademark Office but also as judicial clerks and legislative aides,” adds Brauneis. “Many are also in-house counsel in corporations, although they often start out at firms. There is a similar mix among foreign students who go back to their home countries, though the mix differs somewhat from country to country.”

The list of high-quality IP programs in the United States is perhaps too long to reproduce here, but along with the aforementioned schools, a short list would certainly also include Cardozo-Yeshiva, Duke, Santa Clara, Columbia, Houston, Franklin Pierce, John Marshall, Case Western Reserve University, Chicago-Kent, DePaul, University of Washington (Seattle), Michigan State, and Fordham.

There are also excellent IP programs to be found in the United Kingdom, including those at Glasgow, Aberdeen, Edinburgh and the University of London schools (Queen Mary, King’s, UCL). Perhaps the leading specialized program on the European continent is the Munich Intellectual Property Law Center (MIPLC) in Germany, which is a cooperative project of the Max Planck Institute, the universities of Munich and Augsburg, and GW Law.

Some LL.M. programs – including those at Berkeley, Stanford, Glasgow, Edinburgh, and Ottawa – give students the opportunity to focus squarely on information technology or “law and technology".

Whichever of these programs you might choose, professors in the field agree that the demand for IP lawyers and IP LL.M. graduates shows no signs of abating in the coming years.

“I believe that the future career prospects for LL.M. graduates in IP will remain strong,” says Jeffrey M. Samuels of the University of Akron, the home of another specialized IP LL.M. program in the United States.

“The level of activity in the areas of patent, trademark, and copyright law, and the importance of IP to the national and global economy, will require an increasing number of attorneys well versed in this area of the law,” adds Samuels. “I would anticipate that the demand for IP attorneys will increase over the years, given the expanding scope of patentable subject matter, the advent of new technologies, and increased globalization.”

John Riccardi from Boston University agrees: “I have every reason to believe that the demand for US intellectual property law studies among foreign-trained lawyers will stay strong – and even increase – particularly among the rapidly growing Asian economies of China and India,” says Riccardi.

“As US businesses expand into these markets, they will need competent local counsel that understands local laws, as well as the US perspective. This is not just in Asia – it's around the world – but the surge in interest among Asian economies within the past five years has been dramatic.”



Web Hosting and Emerging Internet Law
Attorney Blogs | 2007/01/06 15:18

Providers of web site hosting and other Internet-related services offer customers the means to acquire and disseminate a plethora of public, private, commercial, and non-commercial information. While the Internet provides a forum for free and open discussion and dissemination of information, there are competing interests at issue, in terms of a web hosting company's Terms of Service (''TOS'') and the various laws that govern such services.

With Internet-based intellectual property lawsuits on the rise, the question has become: how will Internet law keep up with the freedom of speech issues - and, to what degree will these laws affect the web hosting industry as a whole? The ramifications of some recent Internet litigation, and its impact on the web hosting industry are presented and examined below.


Patent Litigation

Recently, a Canadian firm has claimed infringement upon a patent it owns, with regard to Resource Description Framework (RDF), a software based upon Extensible Markup Language (XML). Using this technology, programmers can write software to access web resources, such as web page content, music files and digital photos. Vancouver-based UFIL Unified Data Technologies, holds U.S. patent 5,684,985, a '''method and apparatus utilizing bond identifiers executed upon accessing of an endo-dynamic information node,'' awarded in November 1997. According to the Patent Enforcement and Royalties Ltd. (PEARL)'s web site, as many as 45 companies may be infringing upon the patents. It is believed that the patent may also infringe on the RDF Site Summary standard (web content that's written in something other than HTML). For example, RSS (originally developed by Netscape Communications, now owned by AOL Time Warner), allows web sites to exchange information and content.

The World Wide Web Consortium (W3C), which evaluates and recommends standards for web technologies, has endorsed the RDF standard. PEARL has been engaged to work with UFIL, to enforce the claims, since 1999. According to information released by the W3C, Daniel Weitzner, Technology and Society Domain Leader, indicated that the Consortium had not been approached directly regarding the patent issue. Mr. Weitzner stated, ''We consider it to be quite important that fundamental technology specifications such as RDF should be able to be implemented on a royalty-free basis. If anything comes to our attention that suggests that's not possible, we'll pay attention to legitimate property rights out there, but at the same time, RDF was developed in the open by a very broad range of the web community.''


Freedom of Speech Issues

An amicus brief was recently filed by Yahoo!, Inc., in its lawsuit against LaLigue contre le Racisme et l' Antisemitisme, Case No. 01-17424 (9th Cir.). Later this year, a federal appellate court will decide whether or not French anti-discrimination law can restrict freedom of speech on U.S.-based web sites that are accessible in France.

In 2000, a Paris court ruled that the Yahoo! web site violated French law, due to the fact that its users offered certain Nazi artifacts for sale. In order to force compliance with the order, French plaintiffs must seek enforcement from a U.S. court. In response, Yahoo! sought a declaratory ruling and a federal district court held that enforcing the French order would violate the First Amendment. The matter is now on appeal. The Yahoo! case presents the question of whether the Internet should be governed by myriad local censorship laws from around the world. U.S. courts have held uniformly that the Internet should receive the highest degree of First Amendment protection.


Web.com's Patent and Intellectual Property with Web Hosting Company, Hostopia

In July, 2006, Atlanta-based web hosting, managed email, ecommerce, and online business applications giant, Web.com, entered into a non-exclusive license agreement with web hosting firm, Hostopia.com Inc., granting Hostopia the rights to two of Web.com's patents over five years, on a non-transferable basis. Web.com's portfolio of 19 registered, and numerous pending, U.S. patents relates to several core technologies that are vital to the web hosting industry.

The licensed patents broadly cover methods for website building and web hosting control panels. According to the agreement, Hostopia will pay Web.com a royalty equal to 10% of their gross U.S. retail revenues for five years. In addition, the companies have entered a cross-license agreement in which Web.com was granted rights to thousands of HTML and FLASH website templates and a license to additional intellectual property in the future at no additional cost. The companies have also agreed to a mutual covenant not to sue for patent infringement.

Spokespersons for Web.com had this to say, concerning the licensing agreement with Hostopia:

''Web.com has a portfolio of 19 registered patents with several additional pending patents. Web.com's patents touch on a number of key technologies that are vital to the web hosting and Software-as-a-Services industries. Web.com's first patent license transaction was a milestone for the Company as it validated Web.com's belief in the value of its patents. Hostopia paid Web.com an amount that was roughly equal to 10% of Hostopia's U.S. retail revenues over five years. Web.com intends to use its patent rights as a means of extending its brand and its technology so as to create value for its shareholders and to protect its innovations.''

With regard to the legalities of Internet content, Web.com's representative stated: ''Copyright Website owners and other authors (like bloggers, for example) own the content they create under general principles of copyright law. Copyright law grants the author of any "work" the exclusive right to copy and reproduce that work. Copyright law extends not only to the written word, but also to music, dramatic works (like plays and moves), art, sculpture any other forms of creative expression that are fixed in a tangible medium of expression. Conflicts easily arise on the web because web technology makes it so easy for web users to copy and download content, including music, video, pictures and text. While the author of an article may not object to a web user who links to a copy written article, the author will object if someone copies his article and re-publishes it as if it were a new article. Generally, web hosts are not responsible if one of their clients violates a copyright holder's rights by illegally copying content onto the client's website. The Digital Millennium Copyright Act creates a "safe harbor" from liability for web hosts that follow a specific process in responding to notices from copyright holders alleging copyright infringement from content on a client's website. Among other requirements, the web host must suspend a client's website after the host receives a formal notice that meets the statutory requirement. The host may resurrect the client's site, however, if the client responds with a sworn statement denying any infringement so long as the client's denial also satisfies the statute. So long as the host follows the specific requirements of the statute, the host is not liable even if a court ultimately determines that its client was violating another party's copyright.''

As to content - trademark conflicts, Web.com's spokesperson went on to reiterate: ''Involvement trademark disputes are more difficult for hosts to manage, however. Unlike copyright law — which protects the author of an original work — trademark law protects the brand name of a seller of goods or services. A potential copyright infringement is often easy to see if the infringing site blatantly copies words or images that are protected by copyright. Trademark infringement is trickier to spot, however, as a trademark right in most cases will only extend to the ;scope of use" covered by the holder's goods or services. For example if Company A sells "BrandName" widgets, it may have trademark rights to "BrandName". But, Company A's rights, in most cases, will not prevent Company B from using BrandName to sell goods or services that are different from those sold by Company A. The challenge for web hosts arises when a client website advertises BrandName goods or services but a third party claims trademark rights to "BrandName". How can the host know if the third party's rights are superior? How can the host tell if the client's products are within the third party's "scope of use."

To avoid liability for participating in a client's possible trademark infringement, savvy web hosts will develop processes to follow to respond to allegations of trademark infringement and to ensure that clients resolve those claims. Among other things, a savvy web host will make sure that its client agreement obligates the client to resolve those claims and indemnify the web host for any liability it might have for the client's failure to do so.''

Web.com's representative concluded, commenting on the issue of publication liability, stating that ''Another type of potential content problem for web hosts involves liability for defamation. Defamation is a cause of action (or potential lawsuit) that arises when a party publishes a false statement, knowing that it is false, and that publication injures another person. For example, if a client posted on its website the statement: ''Company X's products cause cancer; and if the client knew that statement were false, the client could be liable for defamation to Company X. If the client honestly believed the statement to be true, however, the client would generally not be liable. Defamation liability would make the web hosting industry impossible if it weren't for the Communications Decency Act passed by Congress in the late 1990s. Under the Communications Decency Act (or ''CDA''), web hosts and other Internet service providers are not liable for the publications (or statements) of their clients so long as they are not contributors to those statements.''


IBM v. Amazon.com

Amazon.com is involved in patent litigation with IBM, in two separate lawsuits. Five patents are alleged to have been violated, as far back as the 1980s, all regarding cataloging and data referencing, including alteration of online content. It has been reported in press releases issued by IBM, that ongoing negotiations since 2002 have failed, that hundreds of other companies have licensed the same patents, and that IBM has attempted to negotiate licensing deals with Amazon. Since Amazon.com is largely based upon web technologies and the ability to quickly process transactions over the Internet, it would seem that if it were a mere matter of licensing, they wouldn't have any problem. It may be that they feel IBM's patents are too broad, and cover technologies they developed themselves in-house.


Net Neutrality

One of the most important freedom of speech aspect of the Internet, is that no one party owns or controls it. However, as telephone and digital companies continue to grow through mergers and acquisitions, Internet and related laws, and the concepts and issues that govern it, have come to the forefront, as a new and legitimate concern for all netizens.

Issues such as network (''net'') neutrality, have become contested areas of law in the United States. Internet giants, such as Google, eBay, and Amazon, fear that network owners will create a biased, two-tier Internet system, unfairly placing telco services first, in addition to the concern that network owners may seek to entirely censor or block content at their own discretion, creating partiality. The terms of the debate place neutralists (such as the Internet's largest content providers), against free-marketeers (including Telcos) who argue against such regulation, deeming it to be counter-productive and even unconstitutional.

The fact remains, that exercising the rights associated with free speech and the Internet, places a high premium on the judgment and responsibility of those who use the it, both in the information they acquire and in the information they disseminate. In order for web hosting companies to survive, it is essential that consumers realize and understand, that when they obtain information through the Internet, web hosting companies cannot monitor, verify, warrant, or vouch for the accuracy and quality of the information that is available.

Therefore, some material posted to the Internet may be subject to patent and/or copyright infringement, deemed inappropriate for certain ages, or otherwise offensive. Because web hosting companies are not in a position to monitor or censor the Internet, they cannot accept any responsibility for the consequences that may result from potentially infringing, inaccurate, offensive, inappropriate, or otherwise illegal Internet communications.

While each user is expected to exercise common sense and good judgment in connection with the services it utilizes on the Internet, web hosting companies do have terms of service rules in place, to govern such things as spamming, and maintaining open SMTP relays. It is ultimately up to the users to exercise the best judgment possible, in relying on information obtained from the Internet. When users and/or consumers disseminate information through the Internet, they also must keep in mind that web hosting companies do not review, edit, censor, or take responsibility for any information its users, clients or subscribers may create. The very same liability as other authors for copyright infringement, defamation, and other harmful speech, apply to users on the Internet.

The outcome of recent Internet patent litigation will most certainly begin to set precedents. In many of the cases, the judge and/or jury is asked to make determinations as to deep issues of technological equivalence as to fast-advancing technology at a particular point in time, which can greatly affect how we continue to do business on the Internet, and the future laws that may result of such litigation.

Many patents, have implications far beyond the alleged infringement specified. A patent found valid by a jury acquires more than the normal status of ''presumption of validity,'' in that it may be used against other parties. All future parties, whether or not they are a party to the lawsuit, are affected. Therefore, patent validity lawsuits have the power to impact much more than just the two parties involved, unlike other business litigation.

Given the fact that Internet law, as a whole, is still largely in unchartered territory, the question of what positive role government can play in a regulatory regime, remains to be seen. Coupled with the fear that new technology laws may allow governments or big business to oppress society, giving them the wherewithal to block freedom of speech rights, such as viewing published materials and other forms of censorship, the spectrum of views on Internet regulation can appear to be endless. The only thing we know for certain, is that the Internet is here to stay. As such, the core issues surrounding the essence and vastness of the Internet, such as of freedom of speech, net neutrality, patent and content infringement, will continue to be at the forefront.

How Congress rules on the bills addressing net neutrality, the Communications, Consumer's Choice, and Broadband Deployment Act in the Senate, and the Internet Freedom and Nondiscrimination Act in the House, will affect the way the public continues to utilize the Internet and ultimately, may determine the success or failure of online businesses and web hosting companies.



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