The Internet Corporation for Assigned Names and Numbers (ICANN), the organization that is responsible for the allocation of Internet domain names and IP addresses, is about to launch a new program that will  permit organizations to create and operate generic top-level domains (“gTLD”s) (e.g., .com, .net, etc.).  Last week, ICANN released a draft version of the “Draft Applicant Guidebook for new Generic Top-level Domains” (the “Guidebook”) which sets out proposed policies and processes for the new gTLD program.

There are currently 21 top level domains, including the familiar .com, .net and .org domains, and the less well-populated .info, .kids and .biz domains. Under the new gTLD program applicants can design and “self-select” a new domain that they feel is appropriate for their customers or for their target market.  By way of example, the “XYZ” company might choose to apply for and operate the “.xyz” domain on behalf of itself and its related corporate entities, or a trade organization might choose to apply for and operate a domain reflecting the nature of its membership.

You should be aware of the new gTLD program and the draft Guidelines.

CNET’s Ina Fried late yesterday posted an interview with Horacio Gutierrez, deputy general counsel and vice president of intellectual property and licensing at Microsoft, in which he declares that the “war between proprietary and open source is a thing of the past.” That statement is going to get a lot of press, and a lot of comment, as will other statements in the interview.

Gutierrez is touting Microsoft’s open source distributions as well as its licensing deals with open source companies, most significantly Novell. This is a theme that Gutierrez has been sounding for a while but not in such a headline-grabbing way, here’s a link to the Sept 16 PR interview of him on the Microsoft site. Microsoft has been taking a softer line with respect to open source software, under pressure from antitrust authorities as well as the realities of the marketplace.

The statement about everyone being mixed source, that we can relate to, except that it isn’t in the future, it’s been true for quite a while. Arguably, the “war” between proprietary and open source software was over long before Bill Gates’s infamous remark in January 2005 that was interpreted as comparing open source advocates to communists.

The practice of search engine crawling and caching of Web site content has infrequently been litigated. (The Perfect 10 case is a significant exception.) This may be because most Web site operators want their content to be indexed and available on search engines. Those Web site operators that do not want their content copied and indexed can stop crawling and caching by deploying a robots.txt file. By generally accepted convention, a robots.txt file is consulted by most search engine crawlers for instructions from a Web site operator as to whether, and to what extent, Web site content may be copied and indexed. The inclusion of the "noindex" metatag in a robots.txt file instructs a crawler that the content may not be copied and indexed.

In Parker v. Yahoo!, Inc., 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sep. 26, 2008), the district court held that a Web site operator’s failure to deploy a robots.txt file containing instructions not to copy and cache Web site content gave rise to an implied license to index that site. The court did say, however, that the implied license in the case may have, at some point, been terminated by the operator.

This past Tuesday I spoke briefly about the topic of “Cloud Computing” at our 16th Annual Seminar on New Media, Technology and the Law at the Roosevelt Hotel in New York. The main point of the discussion was that the term “cloud computing” is a rather ill-defined concept that encompasses many different kinds of “remote computing” technology (to use a somewhat archaic term for essentially the same things). The meaning of the term “cloud computing” varies depending upon the speaker, thus the term is being used refer to everything from data center services (Dell Computing) to hosted application development services (SalesForce’s Force.com) to Web-based e-mail and word processing applications (a Pew Internet and American Life Project report). And of course, it is used in advertising those services as well.

The discussion at the seminar was planned in advanced, and I felt vindicated on the day of the event when Ben Worthen’s Wall Street Journal Business Blog contained a post entitled Overuse Clouds Buzz Term’s Meaning, making precisely the same point, i.e., that the term is applied in a confusing way to many different technologies.

Well today, Ben Worthen has written of his vindication by no less than Larry Ellison, the CEO of Oracle, who admitted in a meeting with analysts that he doesn’t know what the term means either, referring to the computing industry as “fashion-driven” and the term as “gibberish.” That won’t stop him from advertising Oracle products using the term, though, he allows: “I’m not going to fight this thing. But I don’t understand what we would do differently in the light of cloud computing other than change the wording of some of our ads. That’s my view.”

So, in the midst of all these admissions of confusion, if you wish to get a good sense of the scope of the term, and of some of the specific types of technologies that it may describe, I highly recommend an InfoWorld article published last April, “What Cloud Computing Really Means,” by Galen Gruman and Eric Knorr. The article categorizes and describes that various technologies that may be included in the term, and provides helpful examples of each.

And PS, if you would like to receive an invitation to next year’s New Media, Technology and the Law seminar in New York, please send me an e-mail at jneuburger[at]proskauer.com and I will add you to our mailing list.

The Uniform Electronic Transactions Act was adopted by the National Conference of Commissioners on Uniform State Laws in 1999. Both the UETA and its companion federal enactment, the Electronic Signatures in Global and National Commerce Act, Pub.L. 109-229 (June 30, 2000) were adopted during a flurry of concern about the enforceability of electronic contracts that followed on the opening of the Internet to commercial traffic in the early 1990s. The UETA was quickly adopted in a majority of states, and since then, has yielded only a handful of opinions, perhaps reflecting the fact that the Act was less a desperately needed gap-filler than a codification of largely accepted principles applicable to the electronic transactions that had been occurring every day in business.

Occasionally issues arise with respect to the UETA, however, and the application of the Act (or more accurately, the Wisconsin enactment of it) became an issue in Alliance Laundry Systems, LLC v. Thyssenkrupp Materials, NA, 2008 U.S. Dist. LEXIS 58985 (E.D. Wisc. Aug. 5, 2008). The issue posed is a fundamental one, and the opinion is therefore noteworthy.

Stephanie Lenz posted a homemade video on YouTube.com, depicting her toddler son dancing in his walker, with the song “Let’s Go Crazy” by “the artist professionally known as Prince” playing in the background. Several months later, attorneys for Universal Music, owner of the copyright in the recording, sent a takedown notice pursuant to § 512(c) of the Digital Millennium Copyright Act, which requires that the notice include among other things “a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” The video was promptly removed. Lenz responded with a DMCA counter-notification, and the video was re-posted several weeks later.
Lenz then instituted suit against Universal for damages and attorney fees under § 512(f) of the DMCA, alleging that in issuing the takedown notice, Universal lacked the statutorily required “good faith belief” that her use of the song was infringing. In the latest ruling in the action, Judge Jeremy Fogel in the Northern District of California ruled that the takedown provisions of DMCA § 512(c) require a copyright owner to “consider the fair use doctrine in formulating a good faith belief that ‘use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.'” Lenz v. Universal Music Corp., No. 07-3783 (N.D. Cal. Aug. 20, 2008) (emphasis added).
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In The Cartoon Network LP, LLP v. CSC Holdings, Inc., No. 07-1480 & 07-1511 (S.D.N.Y. Aug. 4, 2008), the Second Circuit considered several important issues on the way to concluding that Cablevision’s proposed operation of a remote digital video recorder (RS-DVR) system does not infringe the rights of reproduction and public performance of its program providers.
Perhaps the most important issue in the case for new media lawyers is the court’s treatment of the issue of RAM, or buffer, copying. The Second Circuit concluded that while a copy in RAM may a “copy” under the Copyright Act, it is not a copy as a matter of law. In so ruling, the Second Circuit took on not only the oft-cited (and oft-criticized) Ninth Circuit opinion in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), it also took on the opinion of the Copyright Office, and arguably created a split in the circuits on the issue.
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“People who live in glass houses should dress in the basement.” That’s an old kid’s joke (if you remember) which came to mind while reading the opinion in Sandler v. Calcagni, 2008 U.S. Dist. LEXIS 54374 (D. Me. July 16, 2008). Kids joke or no, it suggests the reasonable principle that people who want their private lives to remain private should not be posting private information on a publicly accessible social networking site.

Posting personal information on social networking sites has become more problematic as job recruiters, and now attorneys conducting discovery or vetting jury pools, are looking to these sites for revealing information about potential hires, adversaries, witnesses and prospective jurors.

There are so few judicial opinions dealing with open source licenses that any single one is of great interest, but the pro-open source ruling of the Court of Appeals for the Federal Circuit in Jacobsen v. Katzer, No. 2008-1001 (Fed. Cir. Aug. 13, 2008) easily goes to the top of the charts of this small category. This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses.
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Welcome to the Proskauer New Media and Technology Law blog, presented by Proskauer Rose’s Technology, Media and Communications Law practice group. This blog will cover legal developments related to technology, media and communications, including Internet and emerging technologies, new distribution platforms, electronic and online commerce, technology-based marketing, mobile issues and…