January 1, 2005 Newsletter

Newsletter

January 1, 2005

Technology Law and Policy Section

The newsletter will be published by e-mail at least monthly, and available for viewing at any time on the CBA website.  We are seeking contributions from CBA members for articles, news updates, practice tips, legal analyses and other comments. If you have something that you believe may be valuable or interesting to the section members, please call Brad Hamilton at (720) 635-5655 or send an e-mail message to bhamilton@bhamiltonlaw.com.

RECENT DEVELOPMENTS

Spam Under Attack

In the last two years the Unites States government[1], and the states of xml:namespace prefix = st1 />Virginia[2], Ohio[3] and Maryland, among others, have enacted anti-SPAM legislation.  For the most part, the state statutes have imposed stiffer criminal penalties on violators than is imposed by the Federal CAN-SPAM Act.  In 2002 Maryland enacted the Maryland Commercial Email Act[4], and in October 2004 Maryland enacted the Maryland Spam Deterrence Act[5], a separate criminal statute that added criminal penalties of up to $25,000 and 10 years in prison for violations of the Maryland Commercial Email Act.  On December 9, 2004 a Maryland state judge ruled in an unpublished opinion that the Maryland Commercial Email Act was unconstitutional because it sought to regulate commerce outside the boarders of the state of Maryland.  It was widely reported by the media that the ruling overturned the statute.  However, the ruling was limited to the facts of the case before the court, which was brought by a George Washington University law student against a New York advertiser for SPAM received in Washington, via an ISP located in Virginia.  There was no connection to Maryland among any of the parties.  The Maryland law applies to e-mail sent to or from Maryland residents.  It is anticipated that the ruling is limited to the Maryland law "as applied" to the case, and will not affect cases brought respecting e-mail sent to or from Maryland residents.  We will watch this law as it develops.

Software Piracy

The Business Software Alliance (www.bsa.org), which includes Microsoft, Intuit and Symantec, recently published a white paper setting forth its plan for legislative changes in 2005 to combat growth in P2P file swapping of pirated software.  The Alliance believes that file sharing users will begin swapping software in the future just as they now swap music and, more recently, movies.  The groups plans to seek amendments to the Copyright Act that will make it easier to identify file swapping software pirates, and legislatively overturn recent case decisions under the Digital Millennium Copyright Act making it more difficult to force ISP's to identify users.

The White Paper is available here: 

http://bsa.org/ceoinitiative/loader.cfm?url=/commonspot/security/getfile.cfm&pageid=21193&hitboxdone=yes

The BBC reported on Friday January 7, 2005 that a new file sharing software program named "Exeem" was being prepared for launch.  The sole purpose for Exeem is to enable illegal file swapping through a decentralized system that will circumvent the ability to enforce copyright laws.  Unlike the BitTorrent system that has been successfully challenged by the Motion Picture Producers Association, Exeem will not have a centralized database of "tracker" files that can be identified in a subpoena for copyright violations.  Rather, Exeem will ensure that "tracker" information is held by the file swappers themselves, with no central file.  The full story is available here: 

 http://news.bbc.co.uk/2/hi/technology/4149647.stm