Seems like recent weeks have produced a blizzard of cyberlaw output from federal circuit courts. Van Alstyne and iParadigms from the Fourth Circuit, In re Sony BMG Music Entertainment and Noonan v. Staples from the First Circuit, and then the big one, Rescuecom v. Google, from the Second Circuit.
Of course, there should be more cases, as online communications become pervasive in our business dealings and personal affairs. Looking back through this year's BNA Electronic Commerce & Law Report, I counted 22 federal circuit-level decisions with cyberspace relevance decided so far this year. That's quite a few relative to prior years. For example, in 1999 we published accounts of just 38 federal circuit-level court opinions (I had a "big tent" view of cyberlaw back then, so the number is likely a little inflated.).
If the current pace keeps up, the circuits should put in their busiest year ever in cyberlaw, surpassing 2003, when I found 91 circuit-level decisions to write about. The data for the past 10 years is set out in the table below:
| Year | Decisions |
|---|---|
| 1999 | 38 |
| 2000 | 49 |
| 2001 | 57 |
| 2002 | 70 |
| 2003 | 91 |
| 2004 | 62 |
| 2005 | 77 |
| 2006 | 56 |
| 2007 | 75 |
| 2008 | 84 |
| 2009 | 23 |
| TOTAL: 682 | |
For whatever reason, a lot of cyberlaw cases were decided in 2003. The year started out with the Ninth Circuit's Kremen v. Cohen on Jan. 3 and ended 90 federal circuit decisions later, on the other side of the country, with the D.C. Circuit's Recording Industry Association of America v. Verizon Internet Services on Dec. 13. Five years later, we are finally creeping back to 2003's high-water mark. The federal circuit court decisions with cyberlaw significance so far in 2009, by my reckoning, are listed below. I've included a link and a summary for the most important decisions.
Friskit Inc. v. RealNetworks Inc. (Fed. Cir. Jan. 12, 2009)
Pitt County NC v. Hotels.com (4th Cir. Jan. 14, 2009)
Doe v. AOL LLC (9th Cir. Jan. 16, 2009)(Forum selection clause designating Virginia as the forum to adjudicate disputes between America Online and its members violates California public policy because it diminishes California residents' right to bring class actions)
Quon v. Arch Wireless Operating Co. (9th Cir. Jan. 27, 2009)(Text messaging service provider may not, consistent with the Stored Communications Act, surrender transcripts of messages sent without the consent of either the sender or the recipient)
United States v. Lewis (1st Cir. Feb. 2, 2009)
Internet Solutions Corp. v. Marshall (11th Cir. Feb. 10, 2009)
Verizon Calif. v. FCC (D.C. Cir. Feb. 10, 2009)
Oldfield v. Pueblo de Bahia Lora SA (11th Cir. Feb. 12, 2009)
Noonan v. Staples Inc. (1st Cir. Feb. 13, 2009)(Company could face defamation liability for publishing a mass e-mail containing true statements about a former employee if it acted with “ill will”)
National Cable & Telecommunications Assoc. v. Federal Communications Commission (D.C. Cir. Feb. 13, 2009)
Video Software Dealers Assoc. v. Schwarzenegger (9th Cir. Feb. 20, 2009)(California law prohibiting the sale of violent video games to minors does not survive strict scrutiny under the First Amendment)
United States v. Siegelman (11th Cir. March 6, 2009)
In re Yahoo! Inc. (5th Cir. March 11, 2009)(Forum-selection clause in an agreement between Yahoo! Inc. and American Airlines, through which American Airlines purchased sponsored advertising, did not control in trademark lawsuit not arising from advertising agreement)
Internet Specialties West Inc. v. Milon-DiGiorgio Enterprises Inc. (9th *Cir. March 17, 2009)
Van Alstyne v. Elec. Scriptorium Ltd. (4th Cir. March 18, 2009)(Former marketing executive who discovered that her boss accessed her personal e-mail account during and after her employment must show she suffered actual damages in order to obtain statutory damages under the Stored Communications Act)
Levesque v. Doocy (1st Cir. March 19, 2009)
Consulting Engineers Corp. v. Geometric Ltd. (4th Cir. March 23, 2009)
Chalk v. T-Mobile USA Inc. (9th Cir. March 27, 2009)
Rescuecom Corp. v. Google (2d Cir. April 3, 2009)(Google's sale of trademarks as sponsored links is an actionable use in commerce for purposes of the Lanham Act)
Beltronics USA Inc. v. Midwest Inventory Distribution LLC (10th Cir. April 9, 2009)(In trademark infringement action, the first sale defense is not available to infringers when they resell trademarked goods with a warranty different from the manufacturer's and do not sufficiently disclose the difference to consumers)
Southern Co. v. Dauben Inc. (5th Cir. April 15, 2009) (Trial court court abused its discretion by issuing a preliminary injunction under the Anticybersquatting Consumer Protection Act without considering domain name registrant's fair use defense)
A.V. v. iParadigms (4th Cir. April 16, 2009)(Web site's act of copying student papers for purpose of detecting plagiarism was non-infringing fair use, despite commercial motivation and fact that entirety of papers were copied)
In re Sony BMG Music Entertainment (1st Cir. April 16, 2009)(Federal district court exceeded its discretion in allowing streaming Internet coverage of a hearing in a recording industry case against a university student alleged to have illegally downloaded and shared copyrighted music files over the Web)
If you think I've left off a case, please send me an e-mail.
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