From E-commerce Law Week

- Gator Sheds Crocodile Tears for U-Haul's Defeat
In the annals of Truly Annoying Internet Business Models, nothing can displace spam's claim to the Number 1 spot. But adware has a solid claim to second place, aggravating not only Internet users, whose machines are clogged by extra popups, but also Internet content providers, whose content is hijacked to support advertisers who haven't paid a penny to the content providers. The two market leaders in adware are Gator and WhenU. Gator is by far the better known, but it looks as though WhenU may have better lawyers. WhenU has defeated U-Haul in litigation over the legality of the adware business model. The Eastern District Court of Virginia dismissed claims of trademark infringement, unfair competition, and copyright infringement filed by U-Haul against WhenU.com, although the full opinion will not be available for several weeks. The order muddies the waters for future litigation against WhenU's more infamous cousin, Gator. Because the two share a similar business model, the reasoning behind Judge Gerald Bruce Lee's rejection of U-Haul's legal arguments is likely to carry weight in Gator's disputes.

- Decision of the U.S. District Court for the Eastern District of Virginia in U-Haul, International, Inc. v. WhenU.com, Inc., et al., Civil Action No. 02-1469-A, June 24, 2003

- Is the DMCA Constitutional?
Public domain defenders are suggesting that the constitutionality of the Digital Millennium Copyright Act ("DMCA") may be in question as a result of their worst Supreme Court loss ever -- the January 15 opinion in Eldred v. Ashcroft. Remarkably, they may be right. Commentators have latched on to a seeming side-comment in Justice Ginsburg's majority opinion: "When ... Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." In context, they say, the Court's opinion implies that fair use is constitutionally protected -- or at least that Congressional meddling with traditional fair use doctrines could run afoul of the First Amendment. Yale Law Professor Jack M. Balkin, a specialist in Constitutional and First Amendment law, is now arguing that the DMCA represents just such meddling.

- Decision of the Supreme Court of the United States in Eldred et al. v. Ashcroft, Attorney General, No. 01-618, January 15, 2003


[E-Commerce Law Week summarizes legal and other developments affecting electronic commerce and security -- with special emphasis on Encryption, Digital Signatures, Computer Security, Privacy, and related issues.

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