e-commerce LAW & STRATEGY - Heymann & Partner, Rechtsanwälte

FCC ORDER PREEMPTING
STATE REGULATION
OF VOIP IS UPHELD
The determination of the Federal
Communications Commission (“FCC”)
determination that state regulation of
VoIP services is preempted under federal
law because it is currently impossible
to separate the interstate and
intrastate aspects of VoIP service was
not arbitrary or capricious. Minnesota
Public Utilities Commission v. Federal
Communication Commission, 2007
U.S. App. LEXIS 6448 (8th Cir. Mar. 21,
2007). In upholding the agency’s
order and denying various state regulatory
agency petitions for review, the
court ruled that the FCC could preempt
state regulation of VoIP after
determining it would be impractical to
separate the intrastate portions of
VoIP service from the interstate portions,
particularly given the practical
difficulties with determining the geographic
location of “nomadic” VoIP
phone calls (i.e., VoIP service via any
available broadband connection) versus
“fixed” VoIP service (i.e., service
from a fixed location, such as home
cable-TV equipment). Referencing the
FCC’s previous E911 Order, which
required VoIP providers to ensure that
customers using VoIP have 911 emergency
service, the court commented
that the current preemption order had
a potentially limited temporal scope,
because it could be lifted if technology
is developed to identify the geographic
location of nomadic VoIP
communications.
USE OF PREVIOUSLY LICENSED
PICTURES FOR ONLINE
SELF-PROMOTION DISPLAY
IS NOT FAIR USE
A marketing agency’s inclusion of
a brochure containing a previously
licensed photograph in an online
portfolio that promoted past advertising
campaigns is not protected by
the copyright fair-use doctrine.
Straus v. DVC Worldwide, Inc., 2007
U.S. Dist. LEXIS 20907 (S.D. Tex. Mar.
23, 2007). In denying the agency’s
motion for partial summary judg-
10
e-Commerce DOCKET SHEET
ment, the court rejected the argument
that posting past advertising
materials containing copyrighted
images for promotional purposes satisfies
the criteria for fair use. The
court found, among other things, that
the defendant’s “transformative” use
of the photo as commentary on its
own advertising practice was “slight
to non-existent” given that the use of
the entire photograph was wholly for
private commercial gain and outside
the terms of the original license
agreement. The court also declined
to grant summary judgment in the
agency’s favor on the theory that use
of the photograph was subject to an
implied license based on advertisingindustry
custom, finding that the
copyright owner’s expressed disapproval
of the use of the photograph
prior to the filing of the lawsuit created
an issue of fact that could not be
resolved on summary judgment.
COMMERCIAL E-MAIL CONFORMS
TO STATE SPAM LAW, EVEN
THOUGH RECIPIENT CAN’T REPLY
A commercial e-mail that otherwise
conforms to the Washington state
anti-spam law by providing accurate
transmission path information and
unsubscribe links is not in violation of
the law simply because the e-mail
recipient is unable to send a reply email
to the sender. Benson v. Oregon
Processing Service, Inc., No. 34195-6-
II, 2007 Wash. App. LEXIS 31 (Wash.
Ct. App. Jan. 9, 2007). The court
noted that the plaintiff elected not to
click on the “unsubscribe” links provided
in the e-mails, nor use the physical
address or phone number provided
in the e-mails to unsubscribe. The
appellate court affirmed the lower
court’s dismissal of the plaintiff’s
claim, finding that the defendant’s failure
to provide “reply” functionality to
the commercial e-mail did not “misrepresent”
or “obscure” the point of
origin or transmission path of the
message. The appellate court concluded
that the statute says nothing
about how useful a commercial email’s
point of origin or transmission
path must be, does not require a com-
e-Commerce Law & Strategy ❖ www.ljnonline.com/alm?ecomm
mercial e-mail sender to acknowledge
or respond to a recipient’s reply email,
and does not require that e-mail
replies be deliverable.
U.S. COURT CAN
PERMANENTLY ENJOIN
RESIDENT FROM BUSINESS
A federal district court did not
abuse its discretion in giving the
Lanham Act extraterritorial effect by
permanently enjoining a U.S. resident
from using the “Versace” name
to sell commercial goods anywhere
in the world or over the Internet.
Gianni Versace, S.P.A. v. Alfredo
Versace, 2007 U.S. App. LEXIS 705
(2d Cir. Jan. 10, 2007). In rejecting
the defendant’s argument that the
district court failed to consider that
he is a U.S. resident and not a citizen,
the appellate court pointed to the
defendant’s 40 years of residence
and business activity in the United
States, coupled with the lack of conflict
with foreign law and “the existence
of a substantial effect on commerce.”
The court also noted the
defendant’s violations of prior injunctions,
which supported the district
court’s refusal to permit the defendant
to use the “Versace” name
accompanied by a disclaimer.
SUCCESSFUL DEFENDANT
DENIED ATTORNEY’S FEES
IN CAN-SPAM CASE
A defendant in a CAN-SPAM Act
case who won a motion to dismiss
for lack of personal jurisdiction is not
entitled to an award of attorney’s
fees when there is no evidence of
bad intentions or frivolousness on
the plaintiff’s part, and when such an
award would not be consistent with
the purposes of the act. Phillips v.
Worldwide Internet Solutions, 2007
U.S. Dist. LEXIS 4974 (N.D. Cal. Jan.
22, 2007). In adopting and affirming
the magistrate judge’s recommendation,
the court denied the defendant’s
continued on page 11
The publisher of this newsletter is not engaged in rendering
legal, accounting, financial, investment advisory or other
professional services, and this publication is not meant to
constitute legal, accounting, financial, investment advisory or
other professional advice. If legal, financial, investment
advisory or other professional assistance is required, the
services of a competent professional person should be sought.
June 2007