In Perfect 10 Inc. v. CCBILL LLC, the US Ninth Circuit Court of Appeal issued an important new decision considering the (US) Digital Millennium Copyright Act (DMCA). The case involved allegations of copyright infringement by Perfect 10. While the case considered a complex range of issues, there are a few practical points to highlight: the Court was clear that that ISPs who rely on the DMCA safe harbor must maintain records on which subscribers are allegedly “repeat infringers” under the DMCA, but ISPs do not need to go so far as to “actively police” their users for evidence of infringement. Where ISPs receive “direct financial benefit” from infringing conduct, they cannot take advantage of the safe harbor provisions.

In considering the notice-and-take-down regime, the Court stipulated that copyright holders must “substantially comply” with all requirements under the DMCA in order for their notices to trigger the take-down procedures. ISPs can ignore notices which fall short of substantial compliance.

Canadian copyright holders who are considering action against copyright violations taking place through US-based ISPs should seek advice on ensuring their DMCA notices comply with the requirements.

A few more DMCA cases are making their way up to the appeal level and decisions are expected soon.

Calgary – 9:20 MST

 

On Friday a proposed Federal surveillance law (Bill C-416) was introduced in Parliament. The bill is designed to require ISPs and other telecommunications service providers to establish and maintain surveillance capabilities to permit interception of online communications. The proposed law also requires ISPs to “provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service” and provincial police services.

Calgary – 20:44 MST

A Nevada federal court has decided that the mere operation of a website accessible to Nevada users is, by itself, not enough for a Nevada court to assert jurisdiction over the operators of the site.  This case, Mullally v. Jones, Civil No. 06-14867, 2007 WL 628367, dealt with a website operator based in the UK who tried to avoid the jurisdiction of the Nevada court.  If the same analysis is applied, the reasoning should also hold true for a website operator based in Canada.  The Nevada court applied the Ninth Circuit’s analysis from the 1997 case Cybersell v. Cybersell in reviewing the nature of the site and the contacts between the site and the state in question.  In Mullally v. Jones the website operator did not have any other contacts with Nevada and did not purposefully direct business to Nevada residents.

Calgary – 10:45 MST 

 

Digital music has come a long way since the revolutionary CD was first introduced in 1983. Now a computer company – Apple Inc. – dominates the music market and the Copyright Board of Canada has just decided that 7.9 cents on every 99-cent iTunes download must make its way back to the copyright collective.

The Board issued its decision on Friday on the tariff covering online music in Canada. The Board ruled that in the case of permanent downloads, 7.9% of the price of a song must be paid back to copyright holders as a royalty. For subscription-based downloads, the tariff is 5.9% of the cost of a month’s subscription, and for on-demand streaming music, the rate is 4.6% of the monthly subscription cost. This brings to an end several years of debate on the tariff and represents a compromise between the music stores and representatives of copyright holders.

Calgary – 21:00 MST

The owner of the trade-mark CHEAP TICKETS has struck out in Canadian Federal Court in a decision handed down on March 2, 2007. This is the second blow, coming after the owner’s loss in a 2003 domain name arbitration decision.  

In Emall.ca Inc. v. Cheap Tickets and Travel Inc. (2007 FC 243), the court dealt with a challenge brought by Emall that the trade-mark CHEAP TICKETS, owned by Cheap Tickets and Travel Inc., was too descriptive or generic to function as a valid trade-mark.  Trade-mark law insists that a trade-mark must be distinctive of the products or services of the trade-mark owner.  Where the trade-mark is descriptive of the products or services themselves or is so generic that it fails to distinguish the owner’s products or services, it can’t function as a trade-mark (just like SHREDDED WHEAT can’t be used as a trade-mark for shredded wheat cereal).  The court agreed with Emall’s challenge and concluded that the trade-marks should never have been registered in the first place.  The registered trade-marks were ordered struck from the register.

In 2003, Cheap Tickets and Travel Inc. launched an unsuccessful CDRP challenge to Emall’s registration of the cheaptickets.ca domain name.  Emall’s lawyers defended, claiming that the trade-mark was generic and that the complaint constituted an attempt to hijack the domain name.  In the arbitration decision, the panel agreed with Emall and dismissed the complaint since the domain name was registered before the Complainant had any rights to the CHEAP TICKETS trade-mark. 

 

Calgary – 14:35 MST

It is hard to guage how proposed ISP tracking legislation will impact Canadian ISPs if the new bill is passed in the US. Certainly, Canadians who use US-based ISPs would be impacted.

The bill was introduced in the US Congress last week, and if passed, it would compel internet service providers (ISPs) to track their customers’ online activities to aid police in possible future investigations. ISPs who fail to retain the data could face fines and their employees could even face prison terms. There doesn’t seem to be any time limit on the data retention obligations, nor does there seem to be constrains on the scope of the data covered: CNET speculates that data which records details of web browsing, instant messages, or e-mail exchanges might all be fair game under the proposed law.

Calgary – 15:43 MST

As I’ve noted in past posts, privacy and internet law often overlap. In a very interesting Federal Court decision on Monday, the Privacy Commissioner of Canada has been ordered to re-open its investigation into the privacy practices of an American company. A Canadian complainant asked the Privacy Commissioner to investigate Accusearch Inc. for possible violations of the Personal Information Protection and Electronic Documents Act (PIPEDA). In 2005, the Privacy Commissioner’s office closed its file after concluding that it lacked the jurisdiction to investigate a foreign company. In coming to this decision, the Commissioner stated that “Canadian legislation will only apply to the persons, property, juridical acts and events that occur within the territorial boundaries of the enacting body’s jurisdiction.” That decision was appealed to the Federal Court, resulting in Monday’s judgement.

The Federal Court disagreed with the Commissioner and clearly stated that “PIPEDA gives the Privacy Commissioner jurisdiction to investigate complaints relating to the transborder flow of personal information.” The court also noted that absent an investigation and a corresponding report, the complainant’s avenue to an award of damages would be closed. Citing Pro Swing v. Elta, the court noted that “A money judgment may be enforced in another jurisdiction.” This is a curious observation, since Pro Swing is a Canadian decision about enforcement of a foreign judgement in Canada, and any possible order against Accusearch would involve the enforcement of a Canadian judgment in the US, a matter for a U.S. court to decide. This decision will open the door to investigations of foreign companies and will result in some interesting enforcement challenges.

Calgary – 21:28 MST

In what is the first jury conviction of a “phisher” under the US CAN-SPAM Act of 2003, Jeffrey Goodin faces significant jail time when the case goes to sentencing in June, 2007.  Goodin used an elaborate phishing scheme to defraud AOL users out of sensitive credit card and personal information.  Aside from the obvious financial harm done to victims whose credit card information is harvested and misused, this kind of scheme invariably includes trade-mark infringement and other intellectual property rights violations.  In this case, Goodin sent authentic-looking email (displaying the AOL trade-mark) to AOL customers posing as AOL’s billing department.  Victims were directed to a fraudulent web page (also displaying AOL trade-marks), where their credit card information was collected.

While there is no anti-spam legislation in Canada, the problem is just as pervasive here as it is south of the border.  A few weeks ago, the Federal Department of Finance issued a news release warning of an email fraud scheme in which a phisher tried to lure victims to disclose personal financial information through a “tax refund request” form.  This is just one example among many of the overlap of privacy rights, internet law and intellectual property law in the world of phishing.

Calgary – 22:28 MST

If you go through Google’s AdWords program and buy a competitor’s trademark as a keyword, are you infringing on that competitor’s trademarks rights?

US courts are still struggling to sort out the law on this issue and while there have been a few Canadian skirmishes over the use of meta-tags, Canadian courts have yet to tackle the adwords issue directly.  The US decision in J.G. Wentworth SSC Ltd v. Settlement Funding LLC d.b.a. Peachtree Settlement Funding No. 06-0597 (E.D. Pa. Jan. 4, 2007) scores a point for advertisers.  In this case the defendant Peachtree bought its competitor’s name “J.G. Wentworth” as an adword and included the same name in its metatags.   J.G. Wentworth sued for trademark infringement.  

Although past cases have gone both ways on this issue, this decision shows that the courts will examine what is ultimately displayed to the consumer.  Here, the use of the competitor’s trademarks was entirely behind the scenes.  J.G. Wentworth’s trademarks were never displayed in search results or ad copy.  Therefore, the court reasoned, consumers never have a chance to confuse the defendant’s services or links for those of the plaintiff.   The case was dismissed. 

Calgary – 14:30 MST

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Every once and while a story comes along that seems to capture an essential quality of the times. This is one of those stories: In December, CNET News.com interviewed Second Life entrepreneur Anshe Chung, the virtual identity of real-life entrepreneur Aillin Graef.

The interview took place in CNET’s virtual Second Life studio in front of dozens of virtual audience members. Video taken during the interview was sabotaged by digital hecklers who harrassed both Anshe Chung and her real-life owner, Ailin Graef. Afterward (like any other video taken in the real world), a video of the harrassment was posted on YouTube.  Real-life company Anshe Chung Studios filed a complaint against YouTube, claiming that real-life Graef’s copyright in the virtual character Anshe Chung had been infringed because the images had been used in the video without her permission. YouTube removed the offending video. (Link to story)

A news report in the (real-life) Syndey Morning Herald was also the subject of a complaint by Graef, since the news story reproduced a screen shot of the offending video image. However, in the real world, fair-use or fair-dealing exceptions allow reproduction of copyright-protected content for the purpose of news reporting.

It seems that the more distortion we see in layers of reality (the digital alter-ego of a real person is digitally harrassed in a digital world and a digital video of the harassment is digitally posted in the real world, prompting the real person to complain to the real-life company that hosts the digital video), the more fascinating the intellectual property issues become. At its most basic level, the (virtual) Anshe Chung character is merely a string of code protected by (real-world) copyright.  In the Second Life, however, was it copyright that was infringed, or were the personality rights of Anshe Chung infringed? If Ms. Chung can’t bring an action for defamation of character in the virtual world, I’m sure those days aren’t far in the future.

Calgary – 09:13 MST

 

A recent decision out of a federal court in Texas (Live Nation Motor Sports Inc. f/k/a SFX Motor Sports Inc. v. Davis d/b/a TripleClamps) has ruled that a webcast of a live sporting event is protectable by copyright.  This in itself is not particularly ground-breaking.  Original content such as a webcast is expected to be the subject of copyright protection, much like a television broadcast would be.    

However, the decision has attracted attention because the court ordered the defendant to take down its link to the protected webcast.  This means that, in this case, an unauthorized hyperlink amounted to copyright infringement.  There has been much legal debate about when links should be considered copyright infringement, since links go to the heart of the functioning of the internet.  

Unfortunately, the court did not provide much guidance on the difference between merely displaying a link to the page on which the audio webcast was posted (much like the “deep linking” cases such as Ticketmaster vs. Tickets.com), as opposed to providing direct unauthorized streaming of the protected webcast.  The defendant in this case appears to have been engaged in unauthorized streaming, but the court order only dealt with the defendant’s link to the webcast. 

If you read the decision, two lessons will emerge:

1.  The plaintiff prepared its case well, made strong economic arguments to support its claim for protection, and ensured that it had adequately warned the defendant to cease and desist;

2.  By contrast, the defendant appeared disorganized, contradictory and made a baseless counterclaim for trade-mark infringement.  At one point, the defendant compared the plaintiff to Ghengis Khan.  All of which helped the plaintiff win.

Calgary - 09:46 MST

Internet Trends

User-generated content (not only from blogs and YouTube, but also from Reuters and the BBC) is on the rise. 

As users continue to mash-up their own content with content borrowed from elsewhere, the intellectual property fur will continue to fly.  Expect copyright battles, trade-mark skirmishes and technological protection measures to make headlines as ordinary citizens test the boundaries of  “user-rights” vs. copyright.

Trade-marks 

There are not too many areas of the economy where branding and corporate identity are not a critical issue.  The Supreme Court of Canada weighed in on two significant trade-mark cases in 2006: the court reviewed “famous marks” in the Barbie case (Mattel Inc. v. 3894207 Canada Inc), and in the case of Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltee.  Trade-marks will continue to overlap with internet law and inter-jurisdictional issues, as we have seen in cross-border disputes such as the Pro-Swing vs. Elta case.

Domain Names 

Trade-mark owners can’t rest as domain name battles become a full-time occupation.  Some developments are helpful: WIPO issued its Overview of Panel Views which serves as a useful guide for those engaged in UDRP disputes.  Other developments are less encouraging: consider how the click-through ad-revenue system favours cybersquatters who can turn a quick profit from domain names which capitalize on the reputation of brand owners.  Microsoft’s battle with these cybersquatters will be interesting to watch as the law continues to play catch-up with technology.

 

Thanks to all of our readers in 2006.  We will continue posting in 2007.

Calgary - 09:25 MST

Lawyers are known for looking back, but we prefer to look ahead.  Here are some themes and developments in the rapidly evolving world of intellectual property and internet law. 

Copyright 

The courts were busy in 2006 in the copyright arena.  We can expect a few more important decisions (such as the appeal of the Toblerone copyright case) to go to the Supreme Court of Canada in early 2007.  One important theme in copyright is the attempt to use copyright to protect areas which aren’t the traditional domain of copyright: in the Toblerone case, the copyright holder succeeded. In the case of Plews v. Pausch 2006 ABQB 607, an Alberta graduate student attempted to use copyright to protect mere ideas and theories, and lost.

Privacy

Privacy is not within the realm of intellectual property but it almost always overlaps with technology issues.  Besides the regular reports of missing laptops and hacked data, consider two cases: One, the infamous Sony Rootkit case, in which Sony CDs embedded hidden software on the hard-drives of customers as part of the company’s copyright protection strategy.  The strategy landed Sony in a hornet’s nest of privacy issues.  Class action settlements were finalized in 2006. 

Second, consider the Alberta case of Doctor Dave Computer Remedies.  In that case, the Alberta Information and Privacy Commissioner found that Doctor Dave Computer Remedies used and disclosed the Complainants’ personal information (including names, email addresses, mailing addresses and phone numbers) contrary to the Alberta Personal Information Protection Act by posting that information on websites. 

Privacy issues will continue to be front and centre in 2007 as Parliament continues its review of PIPEDA, while other technologies, such as RFID tags, continue to raise privacy concerns.

IP Litigation

In 2006, the courts helped clarify enforcement issues for IP litigators.   In decisions such as Celanese Canada Inc. v. Murray Demolition Corp., an industrial espionage case, the courts helped clarify the boundaries for the use of Anton Piller orders in civil cases where evidence is being seized.  The cases of Pro Swing Inc. v. Elta Golf Inc. and Disney Enterprises Inc. v. Click Enterprises Inc, dealt with the enforcement of foreign judgements in Canada.

Calgary – 13:17 MST

In August 2006, Microsoft launched a series of lawsuits in the U.S. against alleged cybersquatters.  This in itself is not necessarily newsworthy, considering the number of battles Microsoft and other famous trade-mark owners have to fight on an ongoing basis to protect their trade-marks online.  In this case however, the sheer volume of registrations was noteworthy. The cybersquatters had registered hundreds of domain names which were variations and common misspellings of Microsoft’s trade-marks, such as microsoftnewssource.com, msninfoonline.com, freewindowslive.com and msnblog.com. 

This brand of cybersquatting might be called “next generation” since it doesn’t rely on the traditional method for profiteering.  Instead of making money by selling the infringing domain name back to the rightful owner, or to a competitor, the domains have value because of their ability to generate per-click ad revenue.  The infrining domains are parked at a generic page which lists ads, all of which will generate revenue when misdirected visitors click through in the search for the legitimate site or page they were looking for.  Multiply this by hundreds of domain names and bingo, you’ve got yourself a profitable side-line, all based on ad-revenue. 

The ad-driven frenzy is reflected in “domain kiting“.  Domain kiting or domain tasting is the practice of registering a domain name speculatively and testing the ability of that domain name to generate traffic (and ad revenue) during an initial registration period.  Most registrars offer a refund if a domain registration is cancelled during this initial period.  Cybersquatters are using this period to register thousands of domain names, test drive them, and return them if the profitability potential doesn’t justify the registration cost. 

Microsoft, like other trade-mark owners, is using all legal means available in the battle against online trade-mark infringement, including UDRP complaints, and lawsuits based on trade-mark infringement and the US Anti-Cybersquatting Consumer Protection Act .  In Canada, there is no corresponding statute, so trade-mark owners must decide between the Trade-marks Act and the CDRP .  Microsoft lost one battle under the CDRP involving a .CA domain name. The domain name msnsearch.ca was registered by Canadian company Microscience Corp.  Microsoft alleged the domain name was confusingly similar to its MSN family of trade-marks.  Microscience fought back.  In the decision the panel agreed that there was confusing similarity, Microsoft lost on the grounds that there was no “bad faith” on the part of Microscience since it was not a competitor of Microsoft and the registration did not prevent Microsoft from registering its own trade-marks as a domain name.

The lessons?  Cybersquatters move fast and trade-mark owners have to educate themselves on the legal tools available to play hardball in these domain name games.  The tools include arbitration under the applicable dispute resolution policy, and litigation using trade-mark laws in the country having jursidiction over the infringer. 

Calgary – 13:02 MST

The Canadian trade-mark RIDENT for golf clubs is confusingly similar to the US trade-mark TRIDENT for golf clubs.  That’s the easy part.  Now, how do you confine a Canadian company from selling its RIDENT brand golf clubs over the internet to US consumers who may be familiar with the rival TRIDENT brand?  We’ve got e-commerce, intellectual property rights and court orders.  Just the thing to take to the Supreme Court of Canada.

In Pro Swing Inc. v. Elta Golf Inc. 2006 SCC 52, the Supreme Court of Canada (SCC) tackled this problem on a number of levels.  Pro Swing, owner of the TRIDENT trade-mark in the US, initially obtained an order from a US court, stipulating that the Canadian company, Elta Golf, should cease sales of RIDENT brand golf clubs into the US.  But in practical terms, the court order was only enforceable in the US and Elta Golf was an Ontario-based company.  Pro Swing commenced a lawsuit in Canada to enforce its US judgement. 

Traditionally, foreign judgements can be enforced in Canada where they are a final order to pay a defined sum of money.  Or put another way, where compliance is relatively easy to enforce and monitor: either the money has been paid, or it hasn’t.  In the Pro Swing case, the US order was a “foreign non-monetary judgment”.  In other words, it carried with it a number of non-monetary orders and stipulations.  The SCC has now clarified that these types of orders can be enforced in Canada. Unfortunately, the court was split on when they should be enforced. Here are some of the factors the Canadian court will take into consideration:

●       are the terms of the foreign order clear enough?

●       is the foreign order sufficiently limited in scope?

●       is it a final order?

●       is enforcement of the order a justifiable use of Canadian judicial resources? 

In the end Pro Swing’s US judgement was not enforced by the court. The lessons for business?  First, foreign litigants seeking to enforce their foreign judgements in Canada now have a greater range of options available to them; they are not confined to monetary orders alone.  Secondly, because of the thicket of issues which a Canadian court will consider, it is wise for US counsel to seek advice from Canadian counsel prior to drawing up the terms of the US order to ensure it stands the greatest chance of enforcement in Canada.  Third, in practical terms, the world of e-commerce just got a little cozier: cross-border business and internet sales mean that Canadian and US companies will continue to come into conflict and this decision effectively shrinks the gap between foreign and Canadian courts.

Calgary - 09:59 MST

In the ongoing copyright wars, some of the most memorable battles were fought by Sony BMG and Universal against upstarts like Napster and Grokster.   Napster and Grokster were ahead of their time.  Alas, like many pioneers, they were effectively litigated out of existence.  Today, dozens of industry-sanctioned sites like iTunes and Puretracks are flourishing. 

With the upsurge in video file-sharing sites, are we going to see a new round of battles, this time over copyright in video and movie content?  The answer to this question will lie in the degree to which the industry becomes successfully enmeshed in the success of video-sharing.  Yes, we are already seeing copyright lawsuits against YouTube and MySpace.  However, the difference is that these popular video-sharing sites aren’t operated by rogue individualists.  They are part of well-established corporate empires: Google bought YouTube; MySpace is owned by News Corp., the parent company of Fox Interactive.  YouTube has already negotiated deals with CBS, Universal, Sony BMG, Warner Music and NBC.  The content industry is enmeshed.  If industry can generate profit through these distribution models, the battles will be between competing empires over who has the most successful distribution model and the most effective copyright protection measures. 

For Canadian video content producers, the questions remain the same as always: can content be distributed profitably or will profits leak out through copyright infringement?  If copyright infringement is occurring, can it be stopped and at what cost?  We’ll continue watching the latest YouTube and MySpace lawsuits to find some of the answers.

Calgary – 12:16 MST

The world of trade-marks is regulated by several underlying concepts. One such concept is that two similar or even identical marks can coexist as long as they are in different channels of trade.  This permits the trade-mark DELTA to be used by an airline, a water faucet manufacturer and a hotel chain without any confusion.  

In the recent decision in Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 2006 WL 3182468 (E.D. Va. 2006), this concept was put to the test in the internet context.  Are online sales a “channel of trade” for the purpose of determining whether two similar marks can coexist?  The famous hand-bag company sued a manufacturer of pet accessories (such as dog beds and chew toys) for trade-mark infringement.  Louis Vuitton alleged that the use of the mark CHEWY VUITON  infringed its LOUIS VUITTON mark.  Essentially, the court disagreed.  The fact that the sales of both the plaintiff’s and defendant’s products were made online was not, by itself, determinative of the issue.  The court looked at a number of other factors to determine whether the two marks were used in the same channel of trade.  

Trade-mark owners should police their marks and take steps to prevent infringers from trading on their reputation.  This U.S. case provides some guidance for Canadian businesses who are trading into the U.S. particularly in the ever-expanding internet and e-commerce context.  

 

 

Internet Service Providers (ISPs) are often on the front lines of the battles taking place in internet law.  In the BMG case (BMG Canada Inc v. John Doe) (which was referred to in our October 30th post), it was the ISP community which took the brunt of the recording industry’s efforts to stop online peer-to-peer file-sharing. In that decision, the court denied the request by copyright holders to force ISPs to disclose their customers’ identities where copyright infringement was alleged.  ISPs fought to for the right to protect their client’s identities (or framed in a business context, they fought for the right to avoid expensive disclosure obligations) and won.

The Modernization of Investigative Techniques Act , a proposed federal law which was first introduced in 2005 by the Liberal government, would impose stricter obligations on ISPs to permit “lawful interception of communications by law enforcement agencies and the Canadian Security Intelligence Service.”  This bill died before being passed into law, but it is certainly cause for concern for ISPs who are navigating the line between privacy rights, legitimate concerns over illegal activity, the interests of copyright holders… and the dictates of profitability in a competitive marketplace.

In a recent case in Ontario [see story link] the quick response of an ISP led to the disclosure of the identity of a subscriber and a speedy arrest by investigators.  That case (involving sexual assault) highlights the issue but does not provide much guidance for ISPs in the more nuanced area of alleged intellectual property infringement.  We will be monitoring developments to see whether the Conservative government will introduce legislation in this thorny area.

That’s right. Jail time. Grant Stanley is the latest casualty in the file-sharing wars.  The 23-year old network administrator for peer-to-peer file sharing site Elite Torrents has been handed a 5 month prison term [story link] for copyright infringement for the part he played in operating the online file-sharing system.  Elite Torrents used the BitTorrent file-sharing application and was shut down in May 2006 by US federal investigators [link].

In Canada, the law on P2P file sharing activity has been in legal limbo since the court in the BMG case [BMG Canada Inc v. John Doe] indicated that downloading music files does not infringe copyright under the private copying exemption. As the court said: “Under [the Copyright] Act, subsection 80(1), the downloading of a song for a person’s private use does not constitute infringement.” So don’t expect anyone to be spending time in a Canadian jail for copyright infringement. Not any time soon, anyway. Mr. Stanley will have to wait for a Canadian pen pal on this issue.

It is the BMG decision which is referred to in the US government’s Special 301 Report which monitors countries whose intellectual property protection regime does not live up to the standards of the United States.  The report, which identifies trading partners who “do not provide an adequate level of IPR [intellectual property rights] protection or enforcement”, refers in a disappointed tone to the “Canadian court decision finding that making files available for copying on a peer to peer file sharing service cannot give rise to liability for infringement under existing Canadian copyright law…”

We can expect changes to the Canadian copyright regime when Parliament gets around to it. This issue will very likely be front and centre, but probably not until 2007.

Online contracts can provide fertile ground for disputes. The trick is to set-up your online click-through agreement in such a way that the court will have no choice but to uphold it.  In October 2006, in the decision in Person v. Google Inc. 2006 WL 2884444 (S.D.N.Y. Oct. 11, 2006) [See Law Professor Eric Goldman’s link], the internet behemoth successfully deflected a lawsuit brought in New York State. Google won based on the forum selection clause in its mandatory click-through AdWords contract, which forces disputes to be brought in California, Google’s home turf.  Google won the same battle in a different lawsuit in 2004 (American Blind & Wallpaper Factory Inc. v. Google, Inc., 1:04 cv 00642 LLS (S.D.N.Y. 2004)). This doesn’t mean the dispute is over. Merely that it must go forward in California.

In Canada, we’ve got the benefit of a number of cases, such as Rudder v. Microsoft, a 1999 decision which upheld the validity of Microsoft’s online MSN agreement.  In a number of provinces we also have the benefit of the Electronic Transactions Act [Alberta Version] which sets out a number of requirements for e-commerce businesses.