•     The United States Court of Appeals for the First Circuit held that sellers of a digital cable filter were liable under the Cable Communications Policy Act and the Digital Millennium Copyright Act (DMCA).  The Court held that cable subscribers who used the filter to view pay-per-view programming without charge received unauthorized programming and the sellers had specific knowledge of the planned illegal use of the filter.  The Court held that the cable company had constitutional standing to bring a case against the sellers. The Court noted that the sellers sold filters in the cable service’s area that they knew would be used to bypass the cable service’s pay-per-view billing mechanism; in addition the cable service was or would be injured from loss of remuneration attributable to subscribers viewing pay-per-view programming without paying for it.  The Court concluded that the cable service was entitled to a permanent injunction against sellers of the digital cable filter.

•     The United States Court of Appeals for the First Circuit upheld the decision of a district court finding that the use of plaintiff’s trademarks in metatags and white lettering on the defendant’s website constituted trademark infringement.  The Court found that the defendant used the trademark for the express purpose of attracting customers to its website and that he chose the trademark becauseof its strong reputation in the stained glass industry.  Finding the infringement to be willful, the Circuit Court upheld the lower court’s award of defendant’s profits as damages.

•     The United States Court of Appeals for the Second Circuit concluded that Cablevision would not directly infringe the copyrights of owners of television programs and movies under the Copyright Act by offering its Remote Storage Digital Video Recorder (RS-DVR) system to consumers. According to the Court, Cablevision’s embodiments of copyrighted programs were not “fixed,” as required to qualify as a “copy” under Copyright Act; the copies were “made” by Cablevision’s customers, and therefore Cablevision was not directly liable under the Copyright Act.  Moreover, playback transmissions of copies were not performances “to the public,” and therefore did not infringe any exclusive right of performance under the Copyright Act.

•     The United States Court of Appeals for the Ninth Circuit held that an at-will independent contractor for a field marketing organization had granted an unlimited, non-exclusive, implied license to the organization to use, modify, and retain the source code of the programs created by the independent contractor for the organization, even through the independent contractor had included a copyright notice, “copyright Mister Computer,” in the splash screens for each program. The programs were designed to work with the company’s databases and included detailed information concerning the company’s network of sales persons, including information related to the company’s agent lists, their territories, and the criteria used by the company to qualify an agent or create a territory. The source code for these programs was installed on several of the company’s development computers, which were located at the company’s facilities. The employees were not instructed by the contractor to maintain the source code at any location other than at the company, and the contractor made no attempt to hide the source code from the company’s employees. The independent contractor’s claims of copyright infringement were defeated.

•     The United States Court of Appeals for the Eleventh Circuit held that the district court did not have subject matter jurisdiction over a declaratory judgment action by a fashion designer who claimed that it owned software developed by a software consultant who claimed a copyright on the software.  Because the software consultant had failed to even file an application of copyright in the software, the Court reasoned that the consultant would not have been able to bring a copyright infringement case in federal court; thus the fashion designer could not seek a declaratory judgment in federal court due to lack of subject matter jurisdiction.  This was true even for a possible state law claim by the software developer for which the fashion designer could attempt to claim federal copyright preemption. According to the Court, only those copyright holders that at least apply to register their copyrights may invoke the subject matter jurisdiction of the federal courts in a federal copyright infringement suit.

•     The United States District Court for the Northern District of California held that an online coupon company had impermissibly blurred claims under the Digital Millennium Copyright Act (DMCA) against an alleged infringer by making both allegations of unauthorized access and unauthorized copying under § 1201(a) and § 1201(b) of the DMCA.  The court also held that a state law claim of conversion was preempted by the federal Copyright Act.  The court, however, refused to dismiss a trespass claim, noting that it was not preempted by the Copyright Act.

•     The United States District Court for the District of Arizona held that creators and operators of a website, freewrites.net, were entitled to immunity under the Communication Decency Act (CDA) for allegedly defamatory messages posted by others on the website. The court held that even if one of the defendants had encouraged others to post defamatory message, the CDA provided him immunity.

•     The United States Court of Appeals for the District of Columbia held that private causes of action may be brought in state court (Superior Court of the District of Columbia in this case) under the Telephone Consumer Protection Act of 1991 (TCPA) without the need for enabling legislation in the District of Columbia (the state for purposes of this case). The Court held that the trial judge’s dismissal of the complaint for failure to state a claim was legal error. The Court also reversed as premature the trial court’s dismissal on the alternative ground that some of the defendants acted only as “service providers,” and therefore were not liable under the TCPA. The complaint alleged otherwise and, in the absence of discovery, the trial court did not have the information necessary for a full appraisal of their roles and activities in the development and distribution of the unsolicited faxes. Accordingly, the Court reversed and remanded the case for further proceedings.

•            The Supreme Court of Virginia held that a Virginia criminal statute prohibiting unsolicited bulk email was unconstitutionally overbroad on its face because it prohibited the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.  The Court noted that the statute was not limited to instances of commercial or fraudulent transmission of e-mail, nor was it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech. Therefore, viewed under the strict scrutiny standard, the statute was not narrowly tailored to protect the compelling interests advanced by the Commonwealth.  The Court also held that the North Carolina spammer charged under the statute could properly be charged in Virginia, the home of AOL, because of the spammer’s affirmative act of selecting AOL subscribers as recipients of his e-mails thereby insuring the use of AOL’s computer network to deliver the e-mails.  According to the Court, such use was the “immediate result” of the defendant spammer’s action, regardless of any intermediate routes taken by the e-mails.