Trademark and Copyright Law and the Internet

By:  Rob Hassett and Suellen Bergman


I. Trademark Law and the Internet

The increase in Internet activity has spawned interest in using trademarks on websites, as well as registering trademarks as domain names. With the push for branding on the Internet, legal issues – a step behind technology – arise out of disputed trademark uses on the Internet.

A. Infringement Issues

1. Consumer Confusion

a. Courts will usually prohibit trademark uses where consumers are likely to be confused because two marks are similar and used in the same channels of trade. See Playboy Enter. v. Calvin Designer Label, 985 F. Supp. 1218 (N.D. Cal. 1997).

b. Even when marks are not used in the same channel of trade, courts may restrict the use of similar marks in the Internet arena because “with respect to Internet service, even services that are not identical [but which do use similar trademarks] are capable of confusing the public.”, Inc. v. Walt Disney Co., 202 F.3d 1199 (9th Cir. 2000) (finding that Disney’s “Go Nework” logo infringed the plaintiff’s “GoTo” Web site logo). Disney agreed to pay $21.5 million to settle this lawsuit.(1)

2. Criticism

In Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp.2d 1161, 50 U.S.P.Q. 2d (BNA) 1840 (C.D. Cal. 1998), the defendant used Bally’s trademark in a website entitled “Bally sucks,” which criticized the service at Bally’s fitness centers. The District Court dismissed Bally’s suit because the defendant’s use of Bally’s mark did not create a likelihood of confusion or otherwise constitute trademark infringement or dilution. See

3. Linking (Linking, Deep Linking, and Multiple Linking)

One of the Internet’s most useful features is the ability to directly connect from one website to another. A user makes this connection by clicking on an icon or words, called a “hyperlink” or “link.” Linking is not only an essential aspect of the Internet, but it is beneficial to users because it enables them to quickly find information on topics of interest. Likewise, it benefits website owners by increasing visits or traffic to their website, and therefore, website operators sometimes encourage links to their site. For example, some websites encourage linking if the link is not confusing or misleading, and have policies which permit linking in certain circumstances: and

There are some instances, however, where the link is constructed in a manner that confuses or misleads the user by implying that the linked websites have an affiliation, such as endorsement or sponsorship. Those instances give rise to legal disputes. a. Ticketmaster Corp. v., Inc., 2000 U.S. Dist. LEXIS 4553, 54 U.S.P.Q.2d (BNA) 1344, (C.D. Ca. 2000). operates a website which provides information about sporting and entertainment events.’s website linked a user directly to the Ticketmaster Web page where a user can order tickets to the posted events. This kind of connection, where the link directs the user to an interior page of another website and bypasses the linked-to website’s home page is known as “deep linking.” In Ticketmaster, the Court held that linking to another Web site does not in itself constitute a violation of the Copyright Act. The Court reasoned that the linking function does not actually involve copying material from the copyright owner’s website because the user is “automatically transferred to the particular genuine Web page of the original author.” Ticketmaster, 2000 U.S. Dist. LEXIS 4553 at *6. Therefore, the Court dismissed Ticketmaster’s copyright infringement claim. Id. at *4.

However, the Court denied defendant’s motion to dismiss Ticketmaster’s claims of unfair competition and trademark infringement because of plaintiff’s allegations that falsely implied an association with Ticketmaster through deep linking. Thus, this decision suggests that where linking causes a likelihood of confusion as to the source or sponsorship of a website or of goods or services offered on a website, the linking can constitute unfair competition. Deep linking can cause problems for the linked to website if its advertisers pay on the “basis of the number of ‘hits’ on the home page, [because the advertiser] will not pay for deep-linked reference to the interior home page. Further, the allegation is made that bypassing the home page enables the customer to avoid the terms and conditions, which are not available to him on the events page.”(2)

b. Ticketmaster v. Microsoft, CV 97-3055 RAP (C.D. Cal. Filed April 28, 1997). Ticketmaster filed a similar lawsuit against the Microsoft Corporation, claiming that Seattle Sidewalk, Microsoft’s online entertainment guide, illegally linked to its website.(3) The parties settled this case in March, 2000.

c. Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 52 U.S.P.Q.2d (BNA) 1453, (C.D. Ca. 2000), discussed infra, implies that linking is an acceptable alternative to copying news stories.

d. See also MP3Board’s lawsuit seeking a court ruling to protect search engines from linking liability, discussed infra.

e. Multiple linking: Bernstein v. J.C. Penny, Inc., 1998 U.S. Dist. LEXIS 19048; 50 U.S.P.Q.2D (BNA) 1063 (C.D. Cal. 1998). In Bernstein, the defendant linked J. C. Penny’s site to the website of a third party, which in turn contained links to numerous other sites. One such website contained infringing copies of Elizabeth Taylor, the spokesperson for the plaintiff’s perfume. The Court granted the defendant’s motion to dismiss, stating, inter alia, that linking is not copyright infringement because there is no copying, linking is capable of substantial non-infringing uses, it was not clear that the defendant knew of the infringing photographs, and defendant’s “multiple linking does not constitute substantial participation in infringement where its website does not mention the fact that Internet users could, by following the links, find infringing material on another website.” 1998 U.S. Dist. LEXIS 19048 at *3.

f. On the other hand, linking can be illegal. In a case in Japan, a website owner developed software, which removed a “photomask,” a device commonly employed in Japan to censor the most explicit parts of pornographic pictures. His website sold this photomask-removing software and offered a link to websites containing pornographic pictures, thus enabling visitors to his website to link and view the pornographic images without censorship.(4) On March 30, 2000, Judge Masayuki Kawai, Osaka District Court, determined that the defendant increased the number of ways in which people access pornographic websites, setting precedent that creating a link to a site that violates the law constitutes aiding and abetting a crime.(5)

B. Dilution

Where a mark has become “famous” it is entitled to protection not only from “confusion” but also from tarnishment and blurring. For example, it is not likely that customers using the adult site “Adults ‘R’ US” thought that the site was being operated by “Toys ‘R’ US.” As discussed below, the use of that domain name was nevertheless illegal.

1. Toys “R” US, Inc. v. Adults “R” US, 1996 U.S. Dist. LEXIS 17090, 40 U.S.P.Q.2d (BNA) 1836 (N.D. Cal. 1996). The Court awarded a preliminary injunction to Toys “R” Us, finding that its marks are famous and distinctive and, thus, eligible for protection from dilution under 15 U.S.C. § 1125. The Court also enjoined the defendants from using “Adults ‘R’ Us” because it tarnishes the “‘R’ Us” family of marks by “associating them with a line of sexual products that are inconsistent with the image Toys ‘R’ Us has striven to maintain for itself.” 1996 U.S. Dist. LEXIS 17090 at *7.

2. Ringling Bros.-Barnum & Bailey Combined Shows v. Utah Div. of Travel Dev., 170 F.3d 449 50 U.S.P.Q.2d (BNA) 1065 (4th Cir. 1999), held that Ringling Brothers could not prevent the State of Utah from using “The Greatest Snow on Earth” as a slogan for Utah’s winter sports attractions. The Court determined that the Federal Anti-Dilution required a showing of “actual economic harm” to the famous marks’ economic value by lessening its selling power as an advertising agent for its goods or services. Proof of this harm should be demonstrated by surveys and by showing actual loss.

3. The First Circuit, in I.P. Lund Trading A.P.S. v. Kohler Co., 163 F.3d 27, 49 U.S.P.Q.2d (BNA) 1225 (1st Cir. 1998), specifically rejected the “lessening of demand for the product” test that had been applied by the Fourth Circuit in the Ringling Brothers case.

C. Cybersquatting

1. Panavision, Int., L.P. v. Toeppen, 945 F. Supp. 1296, 40 U.S.P.Q.2d (BNA) 1908 (C.D. Cal. 1996). The Court found that defendant’s registration of the plaintiff’s trademarks as the defendant’s domain name for purposes of resale constituted trademark dilution. Accord Intermatic, Inc. v. Toeppen, 947 F. Supp. 1227, 41 U.S.P.Q.2d (BNA) 1223 (N.D. Ill. 1996). The plan to resell the domain name was determined to be “commercial use” which is required to constitute dilution.

2. Hijacking

Until recently, registration of a competitor’s mark as a domain name (hijacking) was legal: see, Juno Online Servs., L.P. v. Juno Lighting, Inc., 979 F. Supp. 684 (N.D. Ill. 1997), 44 U.S.P.Q.2D (BNA) 1913. See also HQM Ltd. and Hatfield Inc. v. William B. Hatfield, 71 F. Supp. 2d 500 (D. Md. 1999) (holding that the registering and activating of a website with the “.com” designation does not, by itself, constitute commercial use). Hijacking with “bad faith intent to profit” is now illegal under the recently enacted Anticybersquatting Act, discussed below.(6)

3. Anticybersquatting Consumer Protection Act

a. Legislation

On November 29, 1999, President Clinton signed the Omnibus Appropriations Act (H.R. 3194). This Act includes the Intellectual Property and Communications Omnibus Reform Act of 1999 (S. 1948), which incorporates, inter alia, the Anticybersquatting Consumer Protection Act, 15 U.S. C. § 1125(d), attached hereto as Exhibit A. The Act amends Section 43 of the Lanham Act to add a subsection (d), and focuses on domain name registrants who acquire a domain name containing a trademark “with a bad-faith intent to profit” from the use of such mark. In particular, the amendment authorizes a private cause of action by the owner of a mark against anyone who, with a bad-faith intent to profit, registers, traffics in, or uses a domain name that: is identical or confusingly similar to a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to or dilutive of a famous mark that is famous at the time of registration of the domain name, or is a trademark, word, or name protected by reason of section 18 U.S.C. § 706,(7) , or 36 U.S.C. § 220506.(8)

The statute, at 15 U.S.C. §1125(d)(I)(B), provides a non-exhaustive list of nine factors the court may consider in determining “bad faith.”(9) These factors are suggestive of the factual circumstances the courts should consider in determining whether the alleged infringing domain name, and the acts of the holder of the allegedly infringing domain name, encroach upon the range of rights granted to a trademark holder. Thus, the court is to consider evidence of whether the domain name holder has property rights in the mark; whether the site is commercial or non-commercial in nature; whether there is evidence that the domain name harms the good will of the registered mark; whether the domain name holder (who has not used or intended to use the domain name) has offered to sell the domain name to the holder of the mark; and whether the domain name holder has a pattern of registering multiple domains which the holder knew were the marks of others.

In addition, the Anticybersquatting Consumer Protection Act:(10)

i. Allows parties to bring an in rem action(11) against any owner of a domain name that has been registered in violation of the Act and,

ii. Permits obtaining injunctive relief and damages from those who, “with bad faith intent to profit,”(12) register domain name identifiers which are identical or similar to a trademark; in lieu of actual damages, the trademark holder can recover damages of at least $1,000.00, but not more than $100,000 per domain name identifier. The court can order that the defendant transfer the domain name to a successful plaintiff. See, e.g., Lozano Enter. v. La Opinion Publ’g Co., 1997 U.S. Dist. LEXIS 20372, 44 U.S.P.Q.2d (BNA) 1764 (C.D. Cal. 1997).

b. Recent Cases

Victims of cybersquatting are already taking advantage of this new Act, which has been upheld on appeal. Sporty’s Farm LLC v. Sportsman’s Market Inc., 202 F.3d 489 (2d Cir. 2000) (the Court held that the defendant’s use of was indistinguishable from the “Sport’s” trademark, that Sporty’s Farm acted with a bad faith intent to profit because it had not made use of the “sporty’s” mark before registering it as a domain name, and it planned to use the website to directly compete with Sportsman).(13) Moreover, courts are enforcing the Anticybersquatting Act: see, e.g., Bargain Bid v. Ubid, 2000 U.S. Dist. LEXIS 3021 (E.D.N.Y. 2000) (the District Court, Eastern District of New York, enjoined defendants (1) from using the Bargain Bid and Barginbid marks and (2) from indicating that the defendants’ services were sponsored, affiliated, or approved by Bargain Bid, where the defendants registered the domain name “” to allegedly divert consumers from the Bargain Bid’s Website by using the common misspelling of “bargain.”)(14) Nevertheless, the Bargain Bid case did not deter an alleged cybersquatter from registering, which is similar to Philip Morris, Inc.’s corporate name, but spelled with an additional “l.” Currently, the website is registered to the “Phillip Morris Club” and states that it is “dedicated to linking all of the guys named Phillip Morris together” and that it is not affiliated with the Philip Morris tobacco company.(15) However, the page contains a link to an anti-tobacco site,,(16) and previously, automatically redirected visitors to Philip Morris, Inc. is not adopting a wait-and-see attitude; in mid-June, 2000, Philip Morris filed a trademark lawsuit in the U. S. District Court of the Eastern District of Virginia.(17)

4. Registering

Registering a domain name with “intent to profit” would now be illegal under the Anticybersquatting Act (which created a new §43(d) of the Lanham Act, 15 U.S.C. §1125(d)). Previously, registering a domain name without more would not constitute either “use in commerce” or “commercial use” as was previously required under the Lanham Act to establish a violation.

5. ICANN (Internet Corporation for Assigned Names and Numbers)

ICANN is the non-profit body responsible for domain name system management, IP address allocation, and related functions. ICANN was established last year to (a) phase out the government’s involvement in the domain name system and (b) to end the monopoly held by Network Solutions Inc. (Nasdaq: NSOL), by opening up the registration of such popular domains as “.com,” “.org,” and “.net” to additional companies. Although the database for the generic Top Level Domains (gTLD) is still managed (a “registry” function) by Network Solutions, Inc. (NSI), the domains may be “registered” by many different entities including and ICANN is now considering additional generic TLDs to .com, .net and .org for commercial uses. For example, ICANN is considering suggestions to add “.travel,” “.banc,” “.museum,” “.union, and “.xxx” or “.sex.”(18) At its July 16, 2000, meeting in Yokohama, Japan, the ICANN Board will consider the Names Council’s 18/19 April 2000 recommendation that the Board adopt “a policy for the introduction of new gTLDs in a measured and responsible manner . . . ,” as well as the Names Council’s 19 May 2000 recommendations concerning protection for intellectual property during the start up phase of new top-level domains.(19)

ICANN plans to solicit name proposals in August, 2000.(20) Applicants should submit proposals by October 1, 2000, and ICANN will make a decision in November, 2000.(21)

On October 24, 1999, ICANN adopted a uniform domain name dispute resolution policy, attached at Exhibit B, which is binding on all accredited registrars; this policy incorporates by reference the Rules for Uniform Domain Name Dispute Resolution Policy.(22) The policy and the rules provide a method to contest the propriety of existing domain name registrations. In order to be entitled to obtain transfer of a domain name from a prior registrant, a complainant must establish that: (1) the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (2) the domain name holder has no rights or legitimate interests with respect to the domain name(s) that is/are the subject of the complaint; and (3) the domain name(s) has/have been registered and is/are being used in bad faith.(23) The Dispute Resolution policy is popular due to its relatively low cost and the speed with which parties obtain results (within 45 days).(24) Seventy-four percent of cases favor existing trademark holders.(25) However, courts are not bound by the administrative proceedings of an ICANN panel. See Weber-Stephen Prods. v. Armitage Hardware and Bldg. Supply, 2000 U.S. Dist LEXIS 6335, 54 U.S.P.Q.2d (BNA) 1766, (N.D. Ill. 2000). This ruling is significant because of the volume of proceedings before the dispute resolution panel: as of May 9, 2000, there were 518 pending cases.(26)

D. Communicative Use

Playboy Enters., Inc. v. Welles, 7 F. Supp. 2d 1098, 47 U.S.P.Q. 2d (BNA) 1186, (S.D. Ca. 1998), aff’d, 1998 U.S. App. LEXIS 27739 (9th Cir. 1998). A former playmate was permitted to state her association with Playboy Enterprises, Inc. (PEI)(27) on her own website. The heading of the defendant’s website is “Terri Terri Welles – Playmate of the Year 1981,” and the title of the link page is “Terri Welles – Playboy Playmate of the Year 1981.” Each of the pages uses “PMOY ‘81” as a repeating watermark in the background. According to defendant, eleven of the fifteen free Web pages include a disclaimer at the bottom of the pages which indicates that Playboy does not endorse the website. Id. at 1100. Playboy moved for a preliminary injunction which would enjoin the defendant (1) from using the trademarked term “Playmate of the Year” in the title of the home page and the link page; (2) from using the watermark “PMOY ‘81” in the background; and (3) from using the trademarked terms “Playboy” and “Playmate” in the metatagging(28) of defendant’s site. The Court denied a preliminary injunction because the trademarks that defendant uses, and the manner in which she uses them, describe and identify her. Therefore, the Court held that the defendant has made a “fair use” of these marks(29) and her site was not confusingly similar to Playboy’s site.

Later, the Court granted the defendant’s motion for summary judgment, holding that the use of the words “playboy” and “playmate” in the text portion of her website were a fair use of Playboy’s trademarks because they fairly described and identified the defendant.(30) The Court noted that Playboy failed to introduce compelling evidence of actual consumer confusion.(31) Compare N.V.E. v. Hoffmann-La Roche, CA No. 99-5858 (D.N.J. 1999) (WHW) (the District Court enjoined metatagging where the metatag misdirected searchers to a competing website).(32)

II. Copyright Law and the Internet

A. Limits of Copyright Protection after Lotus v. Borland; Non-Literal Elements of Computer Software

The non-literal elements of computer software are elements of the software other than the source code and object code such as the overall layouts, menus, structure and look and feel. At one point, there appeared to be a significant amount of protection for the non-literal elements of computer software. The courts even went so far as to apply the notion that taking the “total concept and feel” of a computer program (which had been found to be illegal with respect to television characters)(33) constitutes a copyright infringement.(34)

In the 1990’s, the courts began restricting protection of non-literal elements in computer programs under copyright law. The two leading cases in this regard are Computer Assocs., Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) and Lotus Dev. Corp. v. Borland Int’l, Inc., 489 F.3rd 807 (1st Cir. 1995).(35) 1. Computer Assocs., Inc. v. Altai, Inc.

In the Computer Associates case, Computer Associates had developed a scheduling program and, separately, an “ADAPTER” to allow the scheduling program to be operate on a number of different operating systems. Altai, a competitor of Computer Associates, desired to develop an “adapter type” program to allow its scheduling program to be used on an additional operating system. Altai hired an employee of Computer Associates who, without Altai’s knowledge, brought over code from the ADAPTER program. After Computer Associates filed suit, Altai realized what had happened, admitted liability for the direct copying and reconstructed the program without any literal copying. The court had to determine whether the non-literal copying constituted an infringement. The Court of Appeals approved the District Court’s statements that “references to structure, sequence, and organization” are no longer necessarily relevant to how computer programming is done. With object oriented programming, such as JAVA, and with Windows based result oriented programming, such as Visual Basic, it is difficult to point to any particular sequence of a computer program. The Court went on to describe its three-step test for determining what, if any, of the non-literal elements of a computer program are protectable under copyright law.

a. The first step of the analysis is “abstraction.” The court determines what are the various levels of abstraction of the program. The lowest level consists of the actual instructions organized into a hierarchy of modules. At a higher level are the functions of each module. (Note that a selection and organization of modules could involve creativity that is protectable if at that level the program survives Step 2 “filtration” (discussed below), as compilations may be protectable under Section 103 of the Copyright Act.)

b. The second step of the analysis is “filtration” of each level of abstraction. Here the court filters out the following (at each level):

i. Elements that constitute ideas or are dictated by efficiency;

ii. Elements dictated by external factors such as standard techniques rather than creative originality on the part of the programmer; and

iii. Elements taken from the public domain.

c. The third step of the analysis is the comparison test. During the filtration step, the court has determines what portion of the plaintiff’s program is protectable expression. Next, the court ascertains whether or not the “defendant copied any aspect of this protected expression, as well as an assessment of the copied portion’s relative importance with respect to the plaintiff’s program.” Computer Associates, 982 F.2d 693, 710. The Court of Appeals held that the District Court’s appointment of its own expert witness was appropriate.

Following these tests, the Court held that there was no infringement. The Court did hold that there was a possibility of misappropriation of trade secrets. According to the Court, state trade secret law is not pre-empted under Section 301 of the Copyright Act.

2. Lotus v. Borland

In Lotus v. Borland, supra, Borland had developed a competitive spreadsheet program that included an option which provided “a virtually identical copy of the 1-2-3 menu tree” contained in the Lotus spreadsheet program. There was no contention that the underlying code or protected elements of computer screen displays had been copied. Lotus’ only contention was that Borland had unlawfully copied its menu command hierarchy. The trial court concluded that Lotus’ menu hierarchy was protectable expression for several reasons, one of which was that many different words could be used for the same commands. The Court of Appeals reversed. Referring to 17 U.S.C. §102(b), the Court of Appeals said:

We hold that the Lotus menu hierarchy is an uncopyrightable method of operation. We do not consider whether it could also be a system, process, or procedure. The Supreme Court granted certiorari to Lotus on an appeal from the First Circuit decision. However, the Justices were equally divided on the issue and the Supreme Court affirmed the decision by default.(36)

3. As courts became reluctant to protect non-literal elements of computer programs under copyright law, they became more comfortable granting patent protection to computer programs. Shifting much of the protection for non-literal elements of computer programs from copyright to patent law created a situation that makes it much more difficult for start up companies to protect their software because of the much higher expense of filing for patent protection. Patent protection for software could allow for monopoly protection of some matters that would not have been protected by copyright law and that are too easy to create in the software context to fairly be the subject of patent protection. A plethora of programming code is created daily, therefore patent applicants are being granted protection for software commonly used by others in the industry who just have not pursued the patent application process. Therefore, the legislature should develop a modified hybrid of trade secret, patent and copyright law to protect computer software.

B. Liability of website owners, Internet Service Providers and commercial online services after the enactment of the Digital Millennium Copyright Act

1. Legislation

The Digital Millennium Copyright Act of 1998 (105 P.L. 304; 112 Stat. 2860) (DMCA):

a. Exempts Internet Service Providers from liability for copyright infringement under certain circumstances;(37)

b. Makes it illegal to circumvent technology used to prevent copyright infringement(38) (this provision is to take effect two (2) years from October 28, 1998);

c. Makes it illegal to manufacture or traffic in any technology that is designed or produced for the purpose of circumventing a technological measure that controls access to a work protected under the DMCA (this provision is effective as of the date of the enactment of the DMCA);(39) and, inter alia,

d. Expands the rights of owners of sound recordings to restrict performance of (or in some cases receive set royalties for) their sound recordings from what was covered by the Digital Sound Recording Act of 1995(40) to any sound recordings provided over the Internet whether or not it is via subscription or interactive (this provision is effective as of the date of enactment).

2. Tasini v. The New York Times Co., 192 F.3d 356, 52 U.S.P.Q.2d (BNA) 1186 (2d Cir. 1999). A Federal District Court in New York held that making publication information accessible on Lexis-Nexis and other similar databases “constitutes reproduction and distribution of freelance contributions as part of that particular collective work.” Tasini v. The New York Times Co., 972 F.Supp. 804, 43 U.S.P.Q.2D (BNA) 1801 (S.D.N.Y. 1997). The District Court held that the publishers were protected by a privilege afforded to publishers of “collective works” under Section 201(c) of the Copyright Act, but the Second Circuit reversed this decision in Tasini v. The New York Times Co., 206 F.3d 161, 54 U.S.P.Q.2d (BNA) 1032 (2d Cir. 1999). The Second Circuit concluded that “the Publishers’ licensing of Authors’ works to UMI(41) for inclusion in these databases is not within the Section 201(c) revision privilege.” Tasini, 206 F.3d 161, 169. The Court continued: The relevant inquiry under Section 201(c), is . . . whether the republication or redistribution of the copyrighted piece is as part of a collective work that constitutes a ‘revision’ of the previous collective work, or even a “later collective work in the same series.” If the republication is a “new anthology” or a different collective work, it is not within the privilege. H.R. Rep. No. 94-1476, at 122-23 (1976), reprinted in 1976 U.S.C.A.A.N. 5659, 5738. Because NYTO(42) is for present purposes at best a new anthology of innumerable editions of the Times, and at worst a new anthology of innumerable articles from these editions, it cannot be said to be a “revision” of any (or all) particular editions or to be a “later collective work in the same series.” Id. Accord Ryan v. Carl Corp., 23 F. Supp. 2d 1146, 1150, 48 U.S.P.Q.2D (BNA) 1626 (N.D. Cal. 1998) (commenting that “calling the reproduction of a single article a ‘revision’ of a collected work, however, is more strained than even a flexible interpretation can withstand” and construing Section 201(c) of the Copyright Act in the authors’ favor).

The impact of Tasini on electronic media could take two paths. First, according to Patricia Felch, an attorney who represented four of the Tasini plaintiffs in the appeal of the trial court’s ruling, print and electronic publishers could claim that print publishers must refrain from reselling free-lancers’ works to electronic publishers and that electronic publishers must remove free-lancers’ works from the electronic databases.(43) Felch notes that this reaction would ruin the value of databases as a comprehensive and long term research tool she therefore proposes an alternate solution which lead plaintiff Jonathan Tasini encouraged: electronic database producers and print publishers can join the Publishing Rights Clearinghouse (PRC).(44) In a similar manner to what ASCAP and BMI do with royalties earned from public performances of music, the PRC accepts applications for additional uses of individual works and (a) sets a cost for such uses, (b) finds the authors, and (c) administers payments to the original authors.(45)

A lawsuit filed June 12, 2000, by freelance writers against the Boston Globe also questions who owns online content. This suit “challenges a licensing agreement which seeks their consent to allow the Globe to reproduce their past and future freelance work in other forms, including online, without additional compensation.” See Mark Jurkowitz, Freelancers’ Issue Tests Online Rights, digitalMass, June 15, 2000.

3. Hacking DVD Two courts have recently granted preliminary injunctions against website operators from “posting [hacking information] on any Internet Website, or in any other way [assisting users to circumvent the protections from copying afforded by DVD technology].” These courts held that such activities constituted circumvention of technological measures, which control access to a work protected under the Copyright Act as prohibited under the DMCA. The defense argued that the circumvention procedures were obtained as a by-product of developing a system to allow the playing of DVD on Unix computers (an arguably allowable activity). In both these cases the complainants charge that offenders violated copyright laws by publishing DVD descrambling program, DeCSS. See Universal Cities, Inc. v. Reimerdes, 82 F. Supp. 2d 211, 53 U.S.P.Q.2d (BNA) 1780 (S.D.N.Y. 2000); Control Assoc., Inc. v. McLaughlin, No. CV 786-804, Sup. Court Calif., (Jan. 21, 2000). In the California state court case, the Judge caused a stir by denying a temporary restraining order; apparently the Judge initially believed that the use and information was focused properly on just allowing the playing of DVDs on Unix systems.(46) The Judge postponed the case to allow the DVD Copy Control Association additional time to identify some of the numerous John Does in the case.(47) On the other hand, courts question restrictions on data-scrambling encryption software.(48)

4. Internet Service Provider (ISP) liability The Internet cannot, as a practical matter, function efficiently if service providers are responsible for copyright infringements that may occur as a result of their customers’ actions. For example, the Internet service providers and those hosting chat lines generally are not in a position to take responsibility for preventing copyright infringements by their customers. Courts have found that an online service provider can be liable if it knows one of its subscribers was using its facilities to infringe. See Religious Tech. Ctr. v. Netcom Online Communication Servs., Inc., 907 F. Supp. 1361, 37 U.S.P.Q.2d (BNA) 1545, (N.D.Ca 1995).

On the other hand, an ISP is not responsible for defamatory messages posted on its system. See Lunney v. Prodigy Servs. Co., 94 N.Y. 2d 242, 723 N.E.2d 539 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1832, 146 L. Ed. 2d 776 (2000). In that case, an imposter, using accounts under plaintiff’s name, sent threatening and profane e-mail messages to a local scoutmaster using defendant’s Internet service. Plaintiff sued defendant claiming that it was negligent in allowing the imposter to open accounts in his name and was responsible for the imposter stigmatizing and defaming plaintiff. The Court found that the plaintiff was not defamed because the messages were not “of and concerning” him and that the defendant ISP was not a publisher, and even if it were, defendant had a qualified privilege which sheltered it from liability. Accord Jane Doe One et al. v. Oliver et al., 46 Conn. Supp. 406 (Sup. Ct. Conn. 2000). In addition, the Communications Decency Act of 1996 (CDA) provides federal immunity for an ISP which distributes defamatory statements originating from third-party users of the service. See Zeran v. America Online, 129 F. 3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937, 118 S.Ct. 2341, 141 L.Ed.2d 712 (1998) (holding that the CDA immunizes ISPs from lawsuits holding them liable for defamatory material they fail to screen). In contrast, British ISP Demon Internet recently agreed to pay $25,000 and court costs estimated at several hundred thousand dollars to an individual for remarks posted in a news group carried on Demon’s news servers which contained allegedly defamatory statements.(49) Courts are also reluctant to hold registrars liable for fraudulent transfers of domain names.(50)

C. New Technologies (e.g., webcasting,, and MP3)

1. Webcasting

The DMCA outlines the rights any Webcaster must acquire:

a. Webcasting Webcasting refers to the streaming of audio (or sometimes video) on the Internet (i.e. “Internet radio”). Webcasters sometimes transmit many different channels of uninterrupted music divided into genres. Webcasters must obtain a license for each of the two copyrighted works embodied in a musical recording: (1) the underlying musical composition or “musical work,” which is comprised of written notes and lyrics, and (2) the sound recording, which is the sound of the music, including the recording artist’s interpretation of the musical composition. The DMCA enables Webcasters (and other subscription or nonsubscription digital audio services) to obtain a statutory license(51) to perform sound recordings on the Internet. Webcasters are usually eligible for a statutory license because their primary purpose is to provide audio or other entertainment programming, not to promote or sell particular products or services. Interactive services (i.e. services which permit a listener to choose a particular song or create a personalized program for the listener) and Webcasters who do not qualify for a statutory license must obtain licenses from the copyright owners of the sound recordings they wish to transmit.

i. Current license agreements (BMI, ASCAP, SESAC), a Webcaster which provides original programming,(52) currently has licensing agreements with BMI, ASCAP, and SESAC (for performance of compositions on Web sites). BMI and ASCAP have licensing agreements which are approximately 3% of the Webcaster’s gross revenue. ASCAP uses a formula which takes from the greater of revenue or expenses. BMI’s license agreement deals strictly with revenue, and is a little lower than ASCAP. SESAC’s license caps out at $3,000-$4,000 per year, so pays the cap every year.

ii. Future license agreements While BMI, ASCAP, and SESAC have agreements with many Websites (Webcasters), RIAA (Record Industry Association of America) has agreements with only a few for performances of sound recordings by Webcasters.(53) Supposedly, RIAA’s license is similar to ASCAP’s license, but RIAA seeks a much higher royalty percentage. RIAA negotiates these performance royalties with Webcasters on behalf of record companies. Consequently, and other Webcasters are negotiating with RIAA for a performance royalty license for the sound recordings. “Royalty percentages being asked by the [recording] labels range as high as fifteen percent of a [Web] site’s gross revenues. Representatives for the Web sites say they are arguing for as low as one to two percent.”(54) These negotiations will probably be resolved through the copyright arbitration royalty proceeding (CARP),(55) as was done previously under the Digital Sound Recording Act of 1995 with respect to non-interactive digital subscription services (see “c” below). Although there is no license now, some Webcasters are holding money in reserve because the license will apply retroactively to October 28, 1998.(56)

iii. Failure to obtain a license RIAA has sued a Web site operator (Napster), which allegedly offers downloads of unlicensed music, for copyright infringement. See A&M Records, Inc. v. Napster, Inc., infra. However, downloading is very different from performance because downloading allows the user to replay the recording at will.

b. Ephemeral Recordings

Ephemeral recordings are copies of sound recordings which a Webcaster (or radio broadcaster) makes for programming purposes. A Webcaster does not need to pay separately for these recordings if it is licensed to transmit them (i.e., it has a statutory license to transmit the recordings), and it meets, inter alia, the following conditions: (1) Only the Webcaster may use the copy of the recording; (2) The copy must be destroyed within six months, unless preserved exclusively for archival purposes; and (3) Only one ephemeral copy of the recording may be made, and no further copies of the recording can be made from that ephemeral copy.

c. Previous Royalty Determination

Recording Indus. Ass’n of Am. v. Librarian of Congress, 176 F.3d 528, 50 U.S.P.Q.2D (BNA) 1768 (D.C. Cir. 1999). Under Section 114(f) of the Copyright Act, 17 U.S.C. §§ 101-1332, the Librarian of Congress is charged with establishing the rates and terms for compulsory licenses for certain subscription transmissions of digital audio music. In the first proceeding under § 114, the Librarian determined that three music services subject to the terms of the license must pay the Recording Industry Association of America (“RIAA”) 6.5 percent of their gross domestic residential revenues in exchange for the right to transmit digital audio music. The RIAA claimed that the 6.5 percent royalty for subscription digital musical services set by the Librarian was too low, but the Court upheld this rate as an acceptable interpretation of 17 U.S.C. §801(b)(1).

d. Currently, Congress is hearing debates about compulsory licenses for Internet companies. On June 15, 2000, the director of the federal copyright office and major content providers argued to Congress that Internet companies should not be eligible for the special licenses that satellite and cable companies have to carry broadcast programming, but web businesses countered that this puts them on an uneven playing field.(57)

2. RIAA v. Diamond Multimedia Sys., Inc., 29 F. Supp. 2d 624 (C.D. Cal. 1998) aff’d, 180 F.3d 1072 (9th Cir. 1999), 51 U.S.P.Q.2d (BNA) 1115. The Court of Appeals for the Ninth Circuit affirmed the denial of a preliminary injunction finding that Diamond Multimedia, the maker of Rio,(58) did not violate the Audio Home Recording Act of 1992(59) with the Rio because the Rio could not make copies except from a hard drive. The Court found that such copying was not covered by the Act. However, on August 4, 1999, Diamond Multimedia and the RIAA announced that they entered into a settlement agreement. RIAA’s general counsel and senior executive vice president, Cary Sherman, stated that this “announcement makes clear that the future of the digital music marketplace will be created in the marketplace itself, enabled by initiatives like SDMI [Secure Digital Music Initiative].”(60) While the authors have not been able to obtain details of the settlement reached between RIAA and Diamond Multimedia, one can infer from what has been published that the terms probably include a requirement that Diamond incorporate technology which prevents serial copying.

3. Transformative Fair Use of Copyrighted Works

a. In Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 53 U.S.P.Q.2d (BNA) 1361 (1999), the Federal District Court for the Central District of California granted partial summary judgment to the creators of the “visual search engine,”, which searches a database of digital images. These digital images were copied without authorization from third-party Web sites. The Court found that such actions constitute a “fair use.”(61) The Court determined that the defendant’s visual search engine was designed to catalog and improve access to images on the Internet, not for an artistic or illustrative purpose. Therefore, it was a “transformative” use and did not harm the market for the copied works.

b. Compare eBay, Inc. v. Bidders Edge, Inc., 2000 U.S. Dist LEXIS 7287 (N.D. Ca. 2000). Plaintiff operates a person-to-person Internet trading Web site and sued the defendant for using a “spider”(62) to extract auction information, which the defendant aggregated on its site along with data from other sites. Plaintiff posted “robot exclusion headers,” which are akin to an electronic “no trespassing” sign, to advise other computers that it did not permit unauthorized robotic activity. Defendant ignored these headers, and even circumvented plaintiff’s attempts to trace its violations. eBay argued that it was entitled to an injunction because the defendant’s actions were equivalent to sending an army of robots each day to check the prices in a competitor’s brick and mortar store; thus defendant’s activities constituted a trespass. The Court granted the injunction, noting that defendant’s activities consumed a portion of plaintiff’s server capacity and bandwidth.

c. Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 52 U.S.P.Q.2d (BNA) 1453, (C.D. Ca. 2000). Plaintiffs The Washington Post and Los Angeles Times publish newspapers online and in print. The defendant, Free Republic, operates a Web site on which members post news articles (frequently, the site posts the entire text of an article) and add their commentary. Visitors to defendant’s site read the articles and can add comments. The Court denied the defendant’s motion for summary judgment on the grounds of fair use and the First Amendment. The Court found that the site members copied entire articles or large portions of the articles onto the site, and this verbatim copying was not a transformative use. The defendant contended that it was necessary for them to post an entire article to permit their users to criticize the manner in which media covered current events. However, the Court found that the commentary focused more on the content of the news than on the manner in which the media reported that news.

4. Liability for Piracy

The software and entertainment industries contend daily with the problem of pirating and copying by consumers. Recently the piracy problem has become much more serious for the entertainment industry. Digital recording technology exacerbates this problem because it allows people to create “perfect” copies. Software available from the Napster Web site ( and similar sites (such as those operated by Scour(63) and Gnutella) makes it easy to obtain MP3(64) formatted music both of songs that the owners intend to make freely available and from popular songs owned by record companies.

a. Suits by the recording industry against and Napster Several companies operate websites where users share MP3 files. These MP3 files contain proprietary information (i.e. popular music), and therefore copyright laws apply to these transactions. The owners of copyrighted music have taken legal action against operators of MP3 sharing Web sites: and Napster.(65) i. UMG Recording Inc. v. Inc., 92 F. Supp. 2d 349, 2000 U.S. Dist. LEXIS 5761 (S.D.N.Y. May 4, 2000). launched its service in January, 2000. Their service allows users to maintain an online MP3 catalog of the music in their CD collection. Thus any of the users can enjoy music in their personal collection through any computer connected to the Internet. Also, users can “listen to existing digital music from bands, songs from existing CDs, and instantly listen to new CDs purchased from online retail partners.”(66)

The RIAA sued, claiming that its business enabled users to infringe sound recordings on some 45,000 audio CDs.(67) RIAA demanded injunctive relief and statutory damages for willful infringement. claimed that their service,, permitted only the person who buys a CD to listen to that music through its service.(68) This argument attempts to make an analogy to the time-shifting argument in the Sony case(69) where the Court found that VCRs were legal devices. The RIAA opposes this argument: Hillary Rosen (CEO and president of RIAA) stated that “it is not legal to compile a vast database of our members’ sound recordings with no permission and no license.”(70) RIAA also complained that did nothing to prevent music piracy. contended that it does have security measures in place: it protects all user accounts with passwords so that no two users can listen to the same account at the same time, it permits users to listen to the digital music only on a computer (i.e. users cannot download the music to a portable MP3 player), and it requires that users either purchase a new CD or have an actual physical copy of music (not merely a computer file) in order to add the music to the user’s account.(71) However, cannot prevent individuals from passing one CD to all their friends and each of those people using that CD to access a digital copy on those accounts. The Court found that defendant “is replaying the subscribers’ converted versions of the recording it copied, without authorization, from plaintiff’s copyrighted CDs.” 2000 U.S. Dist. LEXIS 5761 at *3-4. Therefore, the Court determined that the defendant engaged in copying, and it then examined whether the defendant had a fair use defense.

Although the defendant did not charge a fee to subscribers, its use was commercial, because it sought to attract “a sufficiently large subscription base to draw advertising and otherwise make a profit.” 2000 U.S. Dist. LEXIS 5761 at *7. The defendant argued that its innovative service permitted record buyers to “space shift” by playing back their recordings in a location which was removed from the physical location of their CDs. The Court found that this service was not transformative because it merely repackaged recordings to facilitate their transmission through another medium. The second and third fair use factors favored the plaintiff because the plaintiff’s music was creative and the defendant copied all of it. In evaluating the fourth factor, the Court found that, regardless of whether the record companies planned to license their works for Internet transmission, the Copyright Act allowed an author to prohibit development of derivative works by refusing to license his works. Consequently, even though the defendant argued that its service had a positive effect on CD sales,(72) the defendant may not “usurp a further market that directly derives from reproduction of the plaintiff’s copyrighted works.” The Court likewise dismissed defendant’s argument that it was performing a public service: copyright law is “not designed to afford consumer protection or convenience but rather to protect the copyright holder’s property interest . . . ” and found liable. settled this copyright dispute with two of the plaintiffs: Warner and BMG on June 9, 2000.(73) While the parties did not disclose the settlement terms, reports indicate that the “licensing terms per label could total about $11 million a year based on fees that record companies would charge on a per-play basis” and “the industry would split a total $75 million to $100 million in payments.”(74) One report indicated that MP3 will pay Warner Music Group and BMG approximately $20 million each.(75) News of the April 30, 2000, Court decision finding liable for copyright infringement caused’s stock, which at one time had traded at $105, to drop 40% (to $7) in a single trading session.(76) However, news of the settlement caused’s shares to rise over 11% (from $17.25 to $19.19) in trading that morning.(77) is still negotiating with Sony, Universal, and EMI, other plaintiffs in the suit.(78) Commentators continue to debate whether the settlement favors the labels or ii. A&M Records, Inc. v. Napster, Inc., 2000 U.S. Dist LEXIS 6243 (N.D. Ca. May 5, 2000). While maintains an unauthorized database, Napster’s service facilitates communications between users seeking certain sound recordings and “host” computers which contain MP3 format copies (both authorized and unauthorized) of those sound recordings. First, a user logs onto Napster’s service, and Napster compiles a list of MP3 songs on that user’s computer (and likewise for all users logged on at that time). Then, the Napster user selects a sound recording from a song index. Next, Napster provides the address of a host computer, which stores the desired song. Finally, the user transmits the music from the host computer to the user’s computer. The Court found that the MP3 file is “actually transmitted over the Internet, but the steps necessary to make that connection could not take place without the Napster server.” 2000 U.S. Dist. LEXIS 6243 at *5-6.(80) The plaintiff, recording companies, claim that the defendant had knowledge of and participated in the infringing acts of its users and thus engaged in contributory infringement. The plaintiffs also claim that the defendant’s ability to control or supervise the transmissions and financial interest in the infringing activities of its users constituted vicarious infringement. Defendant Napster moved for summary judgment on the grounds that it was entitled to the “safe harbor” from monetary damages in DMCA §512(a),(81) even if its users committed infringing acts. The plaintiffs responded to the summary judgment motion by arguing that Napster’s essential function was as a “information location tool,” and, consequently, that if Napster were eligible for protection at all, it would be under the more rigorous (because it covers active assistance to users) Section 512(d).(82) Naspter contended that its searchable directory and index is an “information location tool,” but that, after initial input from users, its service is more automatic than other “information location tools,” like Yahoo!, which depend on “human judgment and editorial discretion” of the service provider staff. 2000 U.S. Dist. LEXIS 6243, at *16-17. The Court found that Napster’s essential functions, including the index and search engine, should be analyzed under subsection 512(d) because those functions are paramount to Napster’s marketability, i.e. the index and ability for users to locate “millions of songs” online without “wading through page after page of unknown artists.” 2000 U.S. Dist. LEXIS 6243 at *18. The Court also found that §512(a) and §512(d) were not mutually exclusive, and thus analyzed Napster’s service under §512(a). Id. at *16-17. The Court concluded that, under §512(a), the service provider must facilitate or engage in the routing or transmission of copyrighted material “through a system or network controlled or operated by or for the service provider,” and Napster users actually transmitted MP3 files via the Internet, not Napster. Id. at *21. Because Napster does not serve as a conduit for the connection itself, but rather provides the address information which makes the connection possible, id. at *23-24, Napster does not qualify for the §512(a) safe harbor. Recently, Hank Barry, CEO of Napster, made a new argument to support Napster’s position against the RIAA – it is legal for consumers to share music files, even copyrighted ones, over the Internet – but commentators find this dramatic argument legally unfounded because, as one law professor stated, “[c]opyright laws work in a digital world, too.”(83) What may actually help Napster’s position against the RIAA is Napster’s new beta 6 version, which “lets users download their favorite tunes in the Windows Media Audio (WMA) format, which has copyright protection built in.”(84) Napster also launched a New Artists Program on June 2, 2000, to “enable new artists to self-publish and self-distribute on a level that hasn’t happened before,” according to Napster marketing director Liz Brooks.(85) The tremendous response – more than 10,000 artists have submitted profiles for the program – will provide venues for MP3s of independent bands.(86) Perhaps this plan to help unknown bands find audiences will help Napster gain supporters in the music industry.(87)

iii. Tee Vee Toons, an independent label, has also sued the MP3 file sharing services.

(a) Tee Vee Toons v., filed May 25, 2000, (S.D.N.Y).  Tee Vee Toons (TVT) is the first independent label to file a lawsuit against TVT is home to acts such “as rapper Snoop Dogg and the first label of alt-rock act Nine Inch Nails.”(89) TVT alleges that distributes unauthorized copies of its recordings to customers of its online service and wants the Court to order to remove TVT’s songs from’s service.(90)

(b) Tee Vee Toons v. Napster, filed June 7, 2000 (S.D.N.Y.).  TVT sued Napster and unnamed universities which, TVT alleges, have contributed to Napster’s alleged unlawful actions.(91) b. Artists’ suits against operators of MP3 file sharing Web sites i. Rock group Metallica sued Napster in April, 2000, claiming that Napster’s MP3 sharing software contributes to copyright infringement.(92) In May, the band delivered the names of alleged individual infringers to the company and requested that they be blocked from Napster’s service; Napster complied with this request, blocking access to 317,377 people who Metallica claims are illegally offering its music for trade.(93) Over 30,000 Metallica fans are appealing this ban.(94) ii. Rap musician Dr. Dre also sued Napster. On May 17, 2000, he gave Napster 239,612 user names of individuals he contends have illegally made his songs available online, and requested that Napster block those users.(95) Again, Napster fulfilled this request, banning 230,142 Napster members.(96) However, some individuals have found technological means around the ban, and have even posted methods to circumvent the ban on message boards.(97) Of course, none of the litigation has slowed venture capital funding for Napster,(98) which recently received $15 million from Hummer Winblad(99) in its second round of funding.(100) Nor has the litigation slowed the proliferation of MP3-related Web sites, some of which offer free downloads as well as songs for approximately one dollar each.

See, e.g.,,,, and

c. Lawsuit by music search engine against the recording industry: MP3Board Inc. v. Recording Industry Ass’n of Am., Inc., 00-20606 (filed June 2, 2000, San Jose, Ca.).(101) Inc., a small company that operates a music search engine, filed a declaratory lawsuit against the Recording Industry Association of America.(102) MP3Board’s suit asks Judge Ronald M. Whyte to declare that it would not be liable for copyright infringement if it provided results of an automated search, which included pirated copyrighted works.(103) The result of this suit may depend on whether the Court finds that MP3Board plays an active role in directing consumers to pirated materials, i.e. do the links aid and abet something improper.(104)

d. Legislative Response

On May 24, 2000, the House Committee on Small Business held a hearing aimed at determining whether small businesses (not the RIAA) can survive in the quickly changing online music world.(105) In addition, two legislators, Representative Bob Goodlatte (R-Va) and Representative Dave Dreier (R-California) met with digital music executives in San Francisco to learn about the online music business and how the industry is trying to adapt to the proliferation of file-sharing programs.(106) On May 19, 2000, a “centrist Democratic think tank” said that it would suggest measures to Congress to reduce music piracy associated with Napster and similar controversial song-swapping services.(107)

e. The Future

The Internet as a media delivery system Music is not the only form of streaming media that is popular. Some Web sites focus on delivering films via the Internet; for example, see:,,,,,,,,,,, and As compression technology improves, information transfer speed increases, and computer storage becomes cheaper,(109) the Internet will become a common delivery system for all content and media. Due to advances in hacking and other methods of circumventing copyright protection,(110) computer piracy will continue to create legal challenges to protecting intellectual property rights on the Internet.


1 Disney’s Settlement Ends Suit Asserting Trademark Violation, Wall Street Journal Interactive Edition, May 26, 2000.

2 Copyright Not Infringed by Hyperlink to Interior Pages, The Internet Newsletter, Mar. 2000.

3 Brenda Sandburg, Copyright Not Violated by Hypertext Link, The Recorder, Mar. 31, 2000.

4 Web Links Can Be Considered Illegal, Osaka Court Judgment Says, Asia Biz Tech, April 7, 2000.

5 Id.

6 Note that the Hatfield case, which held that there was no liability, occurred prior to the enactment of the Anticybersquatting Act.

7 18 U.S.C. § 706 provides for criminal for fraudulent or unauthorized use or display of the Red Cross of the American National Red Cross.

8 36 U.S.C. § 220506 provides for civil penalties for unauthorized use of the names, marks or symbols of United States Olympic Committee, the International Olympic Committee, the International Paralympic Committee, the Pan-American Sports Organization.

9 These factors are as follows: (I) the trademark or other intellectual property rights of the person, if any, in the domain name; (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; (III) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services; (IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name; (V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site; (VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct; (VII) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct; (VIII) the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and (IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection (c)(1) of section 43. See also Jeffrey K. Riffer, Anticybersquatting Consumer Protection Act Targets “Bad Faith” Domain Name Holders, Nat’l L.J., Jan 7, 2000.

10 See Jeff Riffer, New Federal Law on Cybersquatting Signed, The Internet Newsletter, Dec. 1999, pp. 1-2.

11 The Act also authorizes an in rem action against the domain name; the remedies in such an in rem action are limited to the forfeiture or cancellation of the domain name, or transfer of the domain name to the mark’s owner. The in rem action is available if the holder of the domain name is not subject to personal jurisdiction in a federal civil action, or cannot be found. The venue for the in rem action is the district in which the domain name registrar, domain name registry, or other authority that registered or assigned the domain name is located. See Porsche Cars North America, Inc. v., 51 F. Supp. 2d 707 (E. D. Va. 1999). See also Caesars World, Inc. v., 2000 U.S. Dist. LEXIS 2671 (E.D. Va. 2000); Lucent Technologies, Inc., v., 2000 U.S. Dist. LEXIS 6159 (E.D. Va. 2000).

12 See list of non-exhaustive factors, supra.

13 See, e.g., Morrison & Foerster LLP v. Wick, 2000 U.S. Dist LEXIS 5161 (D. Co. 2000); Shields v. Zuccarini, 89 F. Supp. 2d 634 (E.D. Pa. 2000) (holding that Zuccarini, an admitted Internet domain name “wholesaler,” violated the Act by registering five variations of plaintiff’s mark); Spear, Leeds & Kellogg v. Rosado, 2000 U.S. Dist LEXIS 3732 (S.D. N.Y. 2000); Virtual Works, Inc. v. Network Solutions, Inc., 2000 U.S. Dist. LEXIS 2670 (E.D. Va. 2000). But see Cello Holding v. Lawrence-Dahl Companies, 89 F. Supp. 2d 464 (S.D.N.Y. 2000) (denying summary judgment to Cello Holdings Company, whose uses their trademark “Cello” to sell audio equipment because “cello” is a common noun and a jury would need to determine whether defendant acted in bad faith by registering and attempting to sell it to several companies which use the word “cello” in connection with their business).

14 See Leigh Jones, Federal Cybersquatter Law Survives Test, N.Y.L.J., Jan 18, 2000. See, also, President and Fellows of Harvard College v. Rhys, D. Mass., No. 99CV12489RCL, (filed 12/6/99, Judge Reginald Lindsey), (Harvard sued domain name owners, and seeks to prevent Web Productions, a company which has registered sixty-five domain names relating to Harvard and Radcliffe, from using Harvard’s trademarks). Brad Pitt has also filed suit against the owners of “,” who initially tried to sell the domain name to Pitt for as much as $50,000.00, and the owners of “,” a commercial cite and fan club outlet which sells merchandise featuring Brad Pitt. Ritchenya A. Shepherd, Cyberpirates Now May Have to Walk the Plank, Nat’l L.J., Dec. 16, 1999.

15 See

16 Id.

17 Steven Bonistell, Marlboro Man takes Aim at “,” Newsbytes, June 16, 2000.

18 Ronna Abramson, ICANN’s Plan for Name-Calling, The Industry Standard, June 15, 2000.

19 See (as updated June 17, 2000).

20 Jim Hu, Group Posts Plan to Add Domains Beyond “.com,” “.org,” CNET News, June 15, 2000.

21 Id.

22 Information about this policy is available at

23 The policy sets forth several factors to consider as evidence of registration and use in bad faith, including facts which indicate that the registrant (1) had registered the domain “primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name;” (2) has “registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name,” provided that the registrant has “engaged in a pattern of such conduct;” (3) has registered the domain name “primarily for the purpose of disrupting the business of a competitor;” or (4) by using the domain name, intentionally attempted to attract, for commercial gain, Internet users to its site or other online location, “by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s site or location of a product or service on its site or location.

24 See, generally, John Caher, New Domain Arbitration Rules Get Results, N.Y.L.J., Mar. 14, 2000.

25 Jeri Clausing, In New Forum for Domain Name Disputes, Trademark Holders Dominate, New York Times, May 19, 2000.

26 Victoria Slind-Flor, Court Curbs Power of ICANN, Nat’l L. J., May 18, 2000.

27 As found by the Court, Playboy Enterprises (PEI):

owns federally registered trademarks for the terms Playboy, Playmate, Playmate of the Month, and Playmate of the Year. The term Playmate of the Year is sometimes abbreviated “PMOY.” PEI does not have a federally registered trademark in the abbreviation “PMOY,” although PEI argues that “PMOY” is worthy of trademark protection because it is a well-known abbreviation for the trademark Playmate of the Year. Playboy Enters., 7 F.Supp.2d at 1100.

28 A “metatag” is a hidden word or label in a Web page that often includes keywords to draw the attention of Internet search engines to that Web page. See Carl S. Kaplan, Former Playboy Model Wins Rights to Use Keywords, Cyber Law Journal, Dec. 17, 1999.

29 The Court also found that, with respect to the metatags, there is no trademark infringement where defendant has used Playboy’s trademarks in good faith to index the content of her Website.

30 See Former Playboy Model Wins Right to Use Keywords, Cyber Law Journal, Dec. 17, 1999, (wysiwyg://66//; Playboy Enters., Inc. v. Welles, 78 F. Supp. 2d 1066 (S.D. Cal. 1999).

31 Id.

32 See Victoria Slind-Flor, False Signs on the I-Highway, Nat’l L.J., Jan 5, 2000.

33 See Sid and Marty Krofft Television Prods. v. McDonald’s Corp., 562 F.2d 1152 (9th Cir. 1977).

34 See, generally, Scott on Computer Law, Second Edition, § 3.47(C)(1).

35 See also, Softel, Inc. v. Dragon Medical & Scientific Communications, Inc., 118 F.3rd 955 (2nd Cir. 1997).

36 116 S.Ct. 804 (1996).

37 Jonathan Band of Morrison & Foerster outlines steps that should be taken to benefit from the DMCA’s safe harbor provision for online service providers: online service providers should (1) adopt a written policy providing for termination of subscribers and account holders who are repeat offenders and post the policy on the Web site; (2) designate an agent to receive notification of claimed infringement from the copyright owner and post the agent’s contact information in a publicly accessible place on the Web site; and (3) register the designated agent with the Copyright Office according to interim regulations at 60 Fed. Reg. 59233, along with a filing fee. See

38 See Digital Millennium Copyright Act, Sec. 1201. Circumvention of copyright protection systems.

39 See Digital Millennium Copyright Act, § 1201(a)(2)(A).

40 Digital Performance Right in Sound Recordings Act of 1995 (Public Law 104-39). See also, Regulations amended by the Copyright Office at 37 C.F.R. Part 201. The Digital Performance Right in Sound Recordings Act of 1995 gave record companies a limited performance right in sound recordings (i.e. the right to bar and/or receive statutory royalties for digital audio transmissions of recordings for which they hold a copyright, namely, interactive transmissions, and those for which a subscription fee was paid). The DMCA applied this right to audio streaming over the Internet, or Webcasting, discussed infra.

41 UMI is University Microfilms International.

42 NYTO is NY Times OnDisc.

43 Patricia A. Felch, Free-Lancers Victorious in Tasini, but Impact on Electronic Media Still Unclear, e-Commerce Law & Strategy, Nov. 1999, Vol. 16, No. 7, p. 4.

44 Id.

45 Id.

46 See, also, Mike Godwin, Courts Enjoin Sites That Publish DVD Decryption Software, E-Commerce L. Weekly, Jan. 28, 2000.

47 Evan Hansen, Free Speech Touted in DVD Cracking Case, CNET News, May 4, 2000.

48 See Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) (suggesting the President Clinton’s restrictions on distributing encryption products might be unconstitutional); Declan McCullagh, Crypto Regs Challenged Again, Wired News, April 4, 2000.

49 Cameron Stracher, Dot-Libel: The Internet’s Threatened Revolution in Media Law Might be Better Addressed by Traditional Legal Principles,, May 10, 2000.

50 Craig Bicknell, NSI’s Webjacking Epidemic, Wired News, June 8, 2000; Craig Bicknell, Saga Still Sizzling, Wired News, May 11, 2000; Cohen v. Carren, 94 F. Supp. 2d 1112 (D.C. Or. 2000). See also Steven Bonisteel, Registrar Examines Domain Hijacking Defenses,, June 6, 2000.

51 A Webcaster must meet the following conditions to qualify for the statutory license: A. Pay royalties (discussed infra). B. Sound recording performance complement: A Webcaster may not play in any three-hour period (1) more than three songs from a particular album, including no more than two consecutively, or (2) four songs by a particular artist or from a boxed set, including no more than three consecutively. This limit is called the “sound recording performance complement.” Retransmitters of over-the-air radio broadcasts are required, upon notice, to cease retransmissions of digital broadcasts that regularly exceed the sound recording performance complement. For analog broadcasts, retransmissions must cease, upon notice, if a substantial portion of the broadcast transmissions exceed the complement. C. Prior announcements not permitted. Advance song or artist playlists generally may not be published. However, a Webcaster may name one or two artists to illustrate the type of music on a particular channel. DJ “teaser” announcements using artists’ names are permitted, but only those that do not specify the time a song will be played. D. Archived programming. Archived programs – those that are posted on a Web site for listeners to hear repeatedly on-demand – may not be less than five hours in duration. Those that are five hours or more may reside on a Web site for no more than a total of two weeks. Merely changing one or two songs does not meet this condition. E. Looped programming. Looped or continuous programs – those that are performed continuously, automatically starting over when finished – may not be less than three hours in duration. Again, merely changing one or two songs does not meet this condition. F. Repeat of other programs limited. Programs under one hour in duration that are performed at scheduled times may be performed only three times in a two-week period, four times if one hour or more in duration. G. Obligation to identify song, artist and album. When performing a sound recording, a Webcaster must identify the sound recording, the album and the featured artist, if receivers of the service are capable of displaying this information. This requirement took effect October 28, 1999. H. Prohibition on falsely suggesting a link between recordings or artists and advertisements. A Webcaster may not perform a sound recording in a way that falsely suggests a connection between the copyright owner or recording artist and a particular product or service. I. Obligation to take steps to defeat copying by recipient. A Webcaster must disable copying by a transmission recipient if in possession of the technology to do so, and must also take care not to induce or encourage copying by transmission recipients. J. Requirement to accommodate technical protection measures. A Webcaster must accommodate the transmission of measures widely used by sound recording copyright owners to identify or protect copyrighted works, if it is technically feasible to transmit them without imposing substantial burdens on the transmitting entity. K. Obligation to cooperate to defeat scanning. A Webcaster must cooperate with copyright owners to prevent recipients from using devices that scan transmissions for particular recordings or artists. L. Transmission of bootlegs not covered. The statutory license is limited to transmissions made from lawful copies of sound recordings. It does not cover transmissions made from bootlegs or pre-released recordings (unless the performance of a pre-released recording is otherwise authorized by the copyright owner). M. Automatic switching of channels. The Webcaster must not automatically and intentionally cause a device receiving the transmission to switch from one program channel to another. N. Transmission of copyright management information. If technically feasible, transmissions by the Webcaster must be accompanied by the information encoded in the sound recording by the copyright owner that identifies the title of the song, the featured artist and other related information (if any). See

52 Other Internet sites (a) serve as a secondary transmission sites for analog radio, (b) operate as facilitators for commercial radio stations (e.g., or (c) operate as a blended entertainment site and offer a mix of audio streaming and entertainment news. See Dov H. Scherzer, Statutory Fee Issues for Online Recordings, Ent. L. and Fin., Dec. 1999, Vol. 15, No. 9, pp. 1, 4-5.

53 The RIAA has reached an agreement with Musicmusicmusic Inc., which operates a service called RadioMoi. Richtel, Matt, Web Sites and Recording Labels at Impasse on Fees, N.Y. Times, Nov. 29, 1999.

54 Id.

55 The RIAA submitted a Petition to Convene the Copyright Arbitration Royalty Panel (CARP) to the Copyright Office in July, 1999. “When the arbitration panel convenes, it will have six months to issue a recommendation. The Library of Congress will have an additional four months to approve the recommendation.” Dov. H. Scherzer, Statutory Fee Issues for Online Recordings, Ent. L. & Fin, Dec. 1999, Vol. 15, No. 9, pp. 1, 4-5. “Separate from the its petition, the RIAA is continuing to negotiate voluntary license agreements with individual Webcasters in the hopes of setting a favorable precedent.” Id.

56 Dov H. Scherzer, Statutory Fee Issues for Online Recordings, Ent. L. & Fin., Dec. 1999, Vol. 15, No. 9, pp. 1, 4-5.

57 Kalpana Srinivasan, Intellectual Property in Cyberspace Debated, Nando Times, June 15, 2000.

58 The Rio portable music player is a digital audio recording device. The Rio is a small device (roughly the size of an audiocassette) with headphones that allows a user to download MP3 audio files from a computer and to listen to them elsewhere.

59 See 17 U.S.C. §1001 et seq. (P.L. 102-563, at 4, 106 Stat. 4248).

60 Discord Surrounding Diamond Multimedia’s Rio Player is Ended Through Settlement Agreement, The Intellectual Property Strategist, Sept. 1999, Volume 1, Number 12, at 4. See generally, Randolph B. Houston, Jr., Let’s Get Digital, Texas Lawyer, Dec. 17, 1999.

61 See Robert W. Clarida, Fair Use on the Web – a New Ballgame, Intellectual Property Strategist, Jan. 2000, Vol. 6, No. 4, p. 7; Victoria Slind-Flor, Thumbnail Not Even Tiny Infringement, Nat’l L.J., Nov. 30, 1999. See also Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 52 U.S.P.Q.2d (BNA) 1453, (C.D. Ca. 2000), discussed infra, (holding that “adding commentary to a verbatim copy of a copyrighted work or portions thereof does not transform the work [to a fair use], especially where the first posting of this article . . . often contains little or no commentary.”); Ritchenya A. Shepherd, Web Site Can’t Post News Stories, Nat’l L.J., Nov. 17, 1999.

62 A “spider,” sometimes called a “crawler” or a “bot” (short for “software robot”), is a program that visits Websites to read either the entire site or only specific pages. The spider takes information from the Websites pages and creates entries for a search engine index. Usually, a Website owner will submit new or recently updated pages for a spider to visit. These software robots are called spiders because they frequently visit many sites at the same time, their “legs” cover a large area of the “web.” Programmers can instruct spiders to crawl through a site’s pages in many ways; one way is to follow all the hypertext links in each page until the spider has read all the pages. The rules of politeness for Web spiders (like netiquette) are set forth in the Standard for Robot Exclusion (SRE). These rules include asking each server which files it should exclude from indexing, not going through firewalls, and waiting between successive server requests so that other Web site visitors do not experience a decreased response time when visiting a Website at the same time a spider is collecting information.

63 Scour is “trying to steer clear of digital pirates and does offer a large array of legally licensed downloadable music, music videos, movie trailers and photos.” Benny Evangelista, Scour Expands Napster’s Concept Beyond Swapping Music, San Francisco Chronicle, May 18, 2000.

64  MP3 stands for MPEG-1 Audio Layer-3; a standard technology and format for compressing a sound sequence into a very small file (about one-twelfth the size of the original file) while preserving close to the original level of sound quality when the music is replayed.

65 Napster is arguably the most active digital music collector. This tremendous activity hogs bandwidth, which measures the capacity of data that can be moved between two points in a given period of time. Consequently, some universities have blocked students’ access to Napster, although savvy students have found ways to get around the blocks and regain access to Napster’s popular Web site and server. For example, “Oregon State shut off the pipeline to Napster in November [1999] after it was discovered that Napster use was sucking up 5 percent of the university’s precious bandwidth.” Courtney Macavinta, Blocked Students Find Backdoor to Napster, CNET, February 2, 2000.

66 Chris Oakes, Fights Fire with Fire, Wired News, Jan. 27, 2000. Also, users can purchase CDs from online music vendors and will instantly place a virtual copy in that user’s account at so that that user can listen to the song immediately, even though he will not receive the physical CD he purchased for several days. Patti Hartigan,’s New Service Threatens Music Industry, Boston Daily Globe, Jan. 28, 2000.

67 Stefania R. Geraci, RIAA sues for Copyright Infringement, e-Commerce Law & Strategy, Docket Sheet, February, 2000, p. 9.

68 See, generally, John T. Aquino,’s Copying Recordings Infringed Companies’ Copyrights, E-Commerce L. Weekly, May 15, 2000.

69 Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984). For an in-depth discussion of fair use, see the article on fair use at the authors’ Web site at

70 Stefania R. Geraci, RIAA sues for Copyright Infringement, e-Commerce Law & Strategy, Docket Sheet, February, 2000, pp. 9-10.

71 Patti Hartigan,’s New Service Threatens Music Industry, Boston Daily Globe, Jan. 28, 2000.

72 Many articles debate whether MP3 sharing services increase or decrease retail music sales. See, e.g. John Borland and Rachel Konrad, Study Finds Napster Use May Cut Into Record Sales, CNET News, May 25, 2000; Michael Learmonth, Finally, Some Numbers on Napster, The Industry Standard, May 2, 2000.

73 Matt Richtel, Two Record Labels Settle Copyright Suit With, New York Times, June 10, 2000, p. C1.

74 Jim Hu, Settles Copyright Dispute with Warner, BMG, CNET News, June 9, 2000. Initial reports indicated that would pay Warner Music between $15 million and $20 million. Martin Peers and Don Clark, Time Warner Unit, Are Close to Settling Copyright Infringement Suit, Wall Street Journal, June 7, 2000.

75 Michael Learmonth, Settles With Two Record Labels, The Industry Standard, June 12, 2000.

76 Id.

77 Jim Hu, Settles Copyright Dispute with Warner, BMG, CNET News, June 9, 2000.

78 Who Wins in the Settlement, The Industry Standard, June 12, 2000.

79 Id.

80 See also Napster Does Not Qualify for DMCA Infringement Exemption, E-Commerce L. Weekly, May 15, 2000.

81 17 USCS § 512, Limitations on liability relating to material online, provides: (a) Transitory digital network communications. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if – (1) the transmission of the material was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material except as an automatic response to the request of another person; (4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and (5) the material is transmitted through the system or network without modification of its content.

82 17 USCS § 512 (d), Information location tools, provides: A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link, if the service provider— (1) (A) does not have actual knowledge that the material or activity is infringing; (B) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (C) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity, except that, for purposes of this paragraph, the information described in subsection (c)(3)(A)(iii) shall be identification of the reference or link, to material or activity claimed to be infringing, that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate that reference or link.

83 Lee Gomes, Napster Says it’s OK to Share MP3 Files, Wall Street Journal, June 14, 2000, p. B10.

84 Marilynn Wheelter, Newest Napster Keeps Users Honest, ZDNet News, June 1, 2000.

85 Michael Learmonth, Napster Tried to Make Nice, The Industry Standard, June 9, 2000.

86 Id.

87 Id.

88 Independent Label Sues Over Copyright, Bloomberg News, May 25, 2000.

89 Reuters, TVT Joins Anti-Napster Brigade, Wired News, June 7, 2000.

90 Marilyn A. Gillen, TVT Sues Over Storage Service, Billboard, May 25, 2000.

91 Marilyn A. Gillen, TVT Files Copyright Suit vs. Napster, Billboard, June 8, 2000.

92 Chris Nelson, Digital Nation, Musicians Offer Their Two Cents on Napster,, June 8, 2000.

93 Brad King, Napster Backlash Has Begun, Wired News, May 15, 2000.

94 John Borland, Napster says 30,000 Metallica Fans Appeal Ban, CNET News, May 16, 2000.

95 John Borland, Dr. Dre Chimes in with Names to Ban from Napster, CNET News, May 17, 2000.

96 John Borland, Napster Boots Dr. Dre Fans From Service, CNET News, May 26, 2000.

97 Id. See also, John Borland, Napster-like Technology Takes Web Search to New Level, CNET News, May 31, 2000.

98 Napster Gets New CEO, $15 Million Infusion, Bloomberg News, May 21, 2000.

99 Lessley Anderson, Hummer Winblad Funds Napster, The Industry Standard, May 19, 2000.

10 Napster’s prior funding was two million dollars. Dealflow, Red Herring, May 24, 2000.

101 Brenda Sandburg, Missing Links, The Recorder, June 14, 2000.

102 Matt Richtel, Warned by the Music Industry, Web Site Files Suit, New York Times, June 6, 2000.

103 Howard Mintz, MP3Board Sues to Protect Links to Files, San Jose Mercury News, June 3, 2000.

104 Warren Cohen, Sue Us? Sue You! MP3Board Gets to the RIAA First,, June 6, 2000.

105 John Borland, U.S. House to Hold Hearing on Napster, MP3s, CNET News, May 10, 2000. 106 Id.

107 Group to Take up Napster, Copyright with Congress, Reuters (special to CNET, May 19, 2000.

108 Bob Longino, Surfing the Netplexes, Atlanta J. & Const., June 18, 2000, L8.

109 For example, a British company sells DVD players which “output pure digital signals.” Leander Kahney, When DVD is too Good to be Legal, Wired News, June 19, 2000.

110 On the other hand, Stephen King will sell installments of a new novel, “The Plant” for one dollar per episode through a scheme that does not rely on technological copyright management systems, but rather on the honor system. See King To Follow E-Book Success With Honor-System Experiment, E-Commerce L. Weekly, June 19, 2000.

The information above is provided for general educational purposes and not as legal advice. Laws in areas in which we practice change continually and also vary from jurisdiction to jurisdiction. Therefore no visitor to our site should rely on any of the articles provided for legal advice, but should always consult their own attorney regarding legal matters.

© 1998, Rob Hassett, Atlanta, Georgia. All Right Reserved.

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