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The law has been struggling to keep up with technology. This column explores where we stand so far in certain areas at the intersection of law and technology. ANTITRUST Microsoft has been trying for a while to dig itself out of a serious antitrust legal hole. In a case brought by the Department of Justice, a federal trial judge in Washington, D.C., ruled that Microsoft violated antitrust laws by leveraging its monopoly position in operating systems to capture the market for Web browsers. The judge ordered that Microsoft be split into two separate companies. That decision was just reversed in part by a federal appellate court and the trial judge has been removed for further proceedings directed by the appellate court. With the new Bush administration at the helm, and with the recent appellate decision, it is possible that the Department of Justice will be interested in settling this litigation on terms that are not terribly onerous for Microsoft. Meanwhile, literally dozens of private parties sued Microsoft for antitrust violations around the country and were seeking significant monetary recoveries. Most of these cases were consolidated in a federal trial court in Baltimore. Not too long ago, the federal trial court dismissed many of these cases on the premise that the plaintiffs were not direct purchasers of Microsoft products, and thus lacked “standing” to sue Microsoft for antitrust injuries. Microsoft plainly is in better legal shape than it has been in quite a while. BUSINESS METHOD PATENTS Commencing with a case in 1998 that held that business methods constitute patentable subject matter, more and more companies have sought to patent how they conduct their Internet operations. And naturally, lawsuits over such patents have come to the fore. Amazon.com was one of the first companies awarded a patent for a business method. The company patented its method of allowing purchasers to buy an item on its Web site with a single mouse click. Amazon.com later sued Barnes & Noble.com for infringing on the patent. The doubt about the validity of Amazon’s patent has been cast by an appellate ruling in the litigation. Likewise, Priceline.com sued Microsoft’s travel site Expedia for allegedly infringing on Priceline.com’s name-your-own-price business method patent. Active litigation in this area likely will not abate any time soon. CYBERCRIME Beginning with last year’s frequent denial-of-service attacks and viruses such as the “Love Bug,” cybercrime has been at center stage. The Computer Fraud and Abuse Act provides a basis for criminal prosecution. However, it has been very difficult to track down online criminals, especially when they are located in other countries. The Love Bug, for example, was created in the Philippines. However, at the time of the virus attack, the Philippines did not have in place an effective law tailored to specifically prosecute this type of cybercrime. Since then, the Philippines has enacted such laws, though they are not retroactive. Countries are starting to work together to make sure their cybercrime laws are somewhatconsistent, to aid the apprehension of those guilty of criminal conduct on the Internet. These efforts hopefully will continue. DOMAIN NAMES Litigation over domain names has been more frequent, especially since the Anticybersquatting Consumer Protection Act was passed at the end of 1999. It is likely that this will remain an active area for attorneys for the near future. Some of the cases that have been filed have been quite interesting, and indeed, surprising. For example, the fight for Madonna.com was taken to court, and the pop star won the rights to the name, despite the fact that many people have gone by the name Madonna for centuries. CYBER INSURANCE Insurance battles relating to Internet liabilities are starting to come to the fore. Traditional insurance policies generally respond to claims relating to damage to tangible, physical property. For that reason, new Internet-specific policies have been created recently to respond to online risks. An isolated federal case from Arizona created a wrinkle in this analysis. The court held that a traditional business interruption policy could respond to data loss (not what many would consider to be tangible, physical property). Undoubtedly, as claims are made on traditional and Internet policies based on online losses, there will be coverage disputes, litigation and a body of law developed by the courts. INTERNET JURISDICTION Jurisdictional rules of the Internet still need to be ironed out. As more cases are resolved, hopefully there will be a consistent trend defining under what circumstances a court can exercise jurisdiction over particular Internet conduct. In the old days, to sue someone in a particular court and to force that person to defend herself there, she had to have had some physical “nexus” to that jurisdiction. The Internet, which knows no geographic boundaries, confounds traditional notions of jurisdictions. It is not surprising, then, that the cases are not entirely consistent in terms of the level of online conduct that is sufficient to confer jurisdiction. In one case, a Virginia lawyer believed he had reserved the domain name “triallawyer.com,” but quickly learned that that name directed viewers to a pornographic Web site in Florida. The lawyer sued the Florida defendant in Virginia. The Virginia court held that it did not have jurisdiction over the Florida defendant, even though the defendant’s Web site was alleged to have engaged in e-mail and credit card solicitations beyond Florida’s borders. Yet, other cases with fairly similar facts have gone the other way and have found in favor of jurisdiction. METATAGS Not too long ago, hardly anyone had ever heard of metatags — words in a Web site’s source code that can draw Internet traffic to that site. Today, court decisions decide how they should be used. For example, Terri Welles was the Playboy 1981 Playmate of the Year. After leaving the employment of Playboy, Welles created her own adult-oriented Web site. That Web site included the words “Playboy” and “Playmate” in its metatags. Playboy sued Welles for trademark infringement. Welles defeated Playboy’s lawsuit. The court found that her metatags were a “fair use” because she was accurately describing herself; she in fact had been a Playboy Playmate. ONLINE MUSIC The ability to download music from the Internet has created a legal war. So far, legal rulings have favored the established music industry; thus, for example, Napster has been barred from facilitating the free downloading of copyrighted works of music. Still, new business models are emerging, as some companies have started charging monthly fees to users who want to download copyrighted works of music. These new business models very well may overtake legal developments in this realm. PRIVACY More than cybercrime, privacy, perhaps, has been the dominant Internet legal issue. Other than legislation in particular spheres (such as the Children’s Online Privacy Protection Act and the Financial Services Modernization Act), Congress still has not enacted overarching federal law to govern Internet privacy rights. This probably will change. Bills already are being presented in Congress, and legislation very well could be passed before 2002 as a growing consensus believes that industry privacy self-regulation has failed. TRESPASS The ancient legal doctrine of trespass that applies to physical property has been extended by some courts in cyberspace. Not too long ago, eBay obtained an injunction against fellow auction site Bidder’s Edge based on a trespass theory. EBay established that Bidder’s Edge repeatedly searched eBay’s site and copied information for Bidder’s Edge’s auction aggregation site. EBay demonstrated that this practice was not authorized and that it was burdening eBay’s servers. Another court, however, held that “deep linking” by Tickets.com into the Ticketmaster Web site to provide access for users to tickets did not constitute trespass. It will be interesting to see how this and other traditional legal doctrines evolve in cyberspace. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected].

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