IT Law Case Study

Author: Jiang Yichun
Publisher:
Publication Date: 2004-07-01
Features: This book presents and analyzes case studies on the following topics. First is the issue of intellectual property infringement. The events related to this topic are divided into seven aspects. First, if a company or others load or input descriptions or other methods of introduction onto their own web pages through the Internet or other IT channels, the responsibility for copyright infringement cannot be exempted. If the network company is merely a pipeline transmission agency in such cases, under specific circumstances of the U.S. DMCA (Digital Millennium Copyright Act), it may also be exempted from liability. In 2000, some companies in the U.S. launched a service project called "Napster," which quickly became a hot topic in the legal community. "Napster" refers to a service mechanism that not only stores data on its own servers but also allows users to exchange data stored on their computers. The legal community views "Napster" as a breeding ground for illegal data replication. Currently, infringement lawsuits against this service are ongoing, and final judgments have not yet been rendered, but the tendency of this service to constitute infringement has been recognized by the majority of scholars. Second is the issue of domain names. Domains represented on the Internet have a legal feature of independence, meaning that the same domain name can only exist once in the world—the first to register owns the domain right. The problem is that domain rights may conflict with trademark rights. Some companies register others' famous trademarks as domain names and then sell these registered domain names at high prices to trademark holders, or use the names of famous trademarks to attract numerous visitors for advertising revenue, a practice known as "cybersquatting" in the U.S. In the past, such actions could only be sued under trademark law. In 1999, the U.S. enacted the Anticybersquatting Consumer Protection Act (ACPA), which allows for the presumption of damages based on the defendant's infringing conduct. Third, if a trademark is used on the Internet to represent someone else's property, causing confusion, it should be considered trademark infringement. However, if the source of the trademark is clearly indicated, or if the trademark is used for purposes such as research, criticism, or reference, it should not be considered trademark infringement. Fourth is trade secrets. Most companies' internal information systems are processed and stored in electronic form. When a company interacts with the outside world through a network structure, the risk of trade secret leaks increases. To address this, the U.S. enacted the Economic Espionage Act. Fifth is the issue of hyperlinking (Unk) and system access (frame). Hyperlinks typically introduce other websites on the Internet, and generally, this is not considered infringement. However, if the linked website involves a company or individual that is intentionally presented as having a special relationship with the hyperlinker, causing confusion, it should be considered trademark infringement. Additionally, embedding another website within one's own webpage, known as "frame-in," can also lead to confusion and potential infringement if it results in misrepresentation. Sixth is the issue of taglines. When keywords or tags on a webpage are related to someone else's trademark, disputes may arise. However, if a trademark is used on a webpage as a label with a certain relevance and necessity, it should not be considered trademark infringement. Seventh is the issue of online exclusive rights. Online sales once sparked debate in U.S. legal circles in the late 1990s. Later, online sales were approved as a patented technology due to its novelty, utility, and non-obviousness. However, if the scope of this patent is too broad, others may also use this technology for online sales on the Internet. Second is the issue of online contract disputes. Online contracts are not formed through actual contact between parties and are typically used by sellers to engage with a large number of buyers. Currently, many companies offering online sales or services include usage agreements on their websites, which users must agree to before accessing the site. These agreements are known as "clickwrap agreements." In such agreements, users do not sign but click an "agree" box, leading to debates over their validity. Generally, they are considered valid, but if the agreement contains inappropriate terms, its validity may be challenged. Additionally, "clickwrap agreements" originate from "shrinkwrap agreements," which are used in software sales, where opening a sealed package is deemed acceptance. The U.S. Computer Information Transaction Act specifically outlines the requirements for the validity of such agreements. Another scenario is that even if usage agreements are set on a webpage, if a user accesses the site without clicking the "agree" box, it should not be considered acceptance, and its validity is highly questionable. However, it is often cumbersome to require every online visitor to click the "agree" box. In cases where only commercial information is provided or online services are offered without requiring such agreements, known as "referenced use agreements," even without clicking the "agree" box, acceptance should be deemed valid, and the agreement's validity should not be denied. Third is the issue of jurisdiction. Under the U.S. judicial system, each state has both federal and state courts. The question of which state or court has jurisdiction often arises in litigation. For Court A to exercise jurisdiction over a defendant, the defendant must generally have "minimum contacts" with Court A's jurisdiction. If the defendant resides in Court A's jurisdiction, they are considered to have "minimum contacts." Additionally, if the "cause of action" occurs within Court A's jurisdiction, even if the defendant does not reside there, it is also considered to have "minimum contacts." Due to the widespread use of the Internet, determining the location of the "cause of action" has become extremely difficult. For example, if an Illinois resident holds a server in New York and purchases goods from a Texas company through the Internet, where should the contract be considered formed? Similarly, when defamation occurs online, determining the jurisdiction of the is challenging. Generally, it is analyzed based on the content of the defendant's activities on the website. ① Activities that merely involve the display of information changes; ② Interactive activities that allow users to conduct electronic transactions; ③ Intermediate activities between the above two. For ①, jurisdiction over the defendant's location is generally denied; for ②, jurisdiction is generally affirmed; for ③, jurisdiction is determined based on the defendant's economic activities and the degree of connection with the jurisdiction. Additionally, even without jurisdictional clauses or provisions, if someone can legally determine which state's law should apply, the applicable law can be determined based on the law of the jurisdiction.