E-Commerce Law

SCOTUS Grants Certiorari in Case Which Acknowledged Confusion Over Timeliness Requirement for Filing a Copyright Infringement Claim.

Scholars estimate that SCOTUS grants certiorari in less than .04% of its received petitions for certiorari¹ so why did the Court recently grant certiorari to a case from the United States Court of Appeals for the Ninth Circuit (the “Ninth Circuit”) which dismissed a copyright infringement claim as time barred when the facts showed that the plaintiff knew of the claim more than 10 years before filing it?  The Ninth Circuit’s analysis appears straight forward but the interest may be generated from the Ninth Circuit’s concurring opinion which requested a change in the law.  As outlined below, there is a split in authority on whether a statute of limitations defense (a bright-line 3 year limit from when the claim accrues) or the doctrine of laches (an equitable defense where the Court considers delay, reasonableness, and prejudice) applies.  Without a clear answer on which analysis is applied, Plaintiffs face dangerous consequences in determining when they must file a copyright infringement claim.

BitTorrent Participants Improperly Joined in Same Suit

In Breaking Glass Pictures v. Does 1-99, the United States District Court for the Northern District of Ohio held that individual participants in "peer-to-peer" file sharing protocol could not be joined as defendants in the same suit for copyright infringement.  No. 1:13 CV 0083, 2013 WL 5720139 (N.D. Ohio Oct. 4, 2013).  The plaintiff brought a series of eight other nearly identical suits in the Northern District of Ohio, alleging copyright infringement of a motion picture entitled "6 Degrees of Hell."

Illinois Supreme Court Ruling Invalidates "Amazon" Sales Tax Law

In Performance Marketing Association, Inc. v. Hamer, Docket No. 114496 (Oct. 18, 2013), the Illinois Supreme Court invalidated a state law that was designed to impose taxes on Internet retailers, such as Amazon and Overstock, that otherwise were not subject to state sales tax.  These laws are commonly referred to as "Amazon" laws after the online retail giant.  This Illinois ruling is notable in that it conflicts with prior case law regarding whether or not Internet retailers are subject to state sales and use taxes. 

Enforceability of Teaming Agreements in Government Contracting After Cyberlock

Recently, I spoke to the Dulles Chamber of Commerce about the enforceability of government contracting teaming agreements after the decision in Cyberlock Consulting, Inc. v. Information Experts, Inc.  A number of people were interested in receiving a recording of my remarks, but a technical problem prevents the speech from being properly recorded.  

So, a couple of weeks ago, I dedicated an episode of Power of Attorney to recreating that speech.  You can listen to it here.

FTC Guidelines for Online Advertising

Federal law prohibits "unfair or deceptive acts or practices" and broadly covers advertising claims and marketing and promotional activities, whatever medium in which they appear. Accordingly, the Federal Trade Commission ("FTC") exercises a role in protecting consumers from unfair or deceptive trade practices in online advertising, marketing, and sales.  Earlier this year, the FTC published guidelines for making clear and conspicuous online disclosures in an effort to avoid deceptive trade practices that may result in FTC scrutiny.