Commercial Law Commons^™

The Pending Determination Of The Legality Of Internet Gambling In The United States, Gregory Manter

Duke Law & Technology Review

Internet gambling has been targeted on many fronts in the United States, including Congress, the courts, the Bush Administration and credit card agencies. This iBrief details recent trends in the regulation of online gaming, and concludes that while absolute prohibitions may be ineffective, the combined resistance of these institutions will prevent the industry from expanding its customer base.

Can The Internet Kill? Holding Web Investigators Liable For Their Criminal Customers, Mark Sweet

Duke Law & Technology Review

As the wealth of online information grows, private investigation websites are becoming more powerful and popular. Their client lists include attorneys, insurance agencies, banks, neighbors, employers, and, oh yes, stalkers and identity thieves. When a stalker used information from a web investigator to track down and kill his victim, the New Hampshire Supreme Court held the investigator liable for its customer's criminal acts. This iBrief considers how far liability should extend for a web investigator, distinguishes web investigators from handgun and bullet retailers, and explains how this decision realizes a policy against privacy invasions.

The E-Government Act: Promoting E-Quality Or Exaggerating The Digital Divide?, Jaime Klima

Duke Law & Technology Review

In passing the E-Government Act of 2002, Congress has promised to improve the technological savvy of federal agencies and make more public forms and records available online. However, the question is whether doing so will alienate those Americans who do not have Internet access. Will the Act exaggerate the gap between the Internet haves and have-nots that is known as the digital divide? This iBrief identifies the e-quality issues arising from the E-Government Act and argues that implementation of the Act, however well intentioned, may exaggerate the digital divide.

The Pros And Cons Of Online Dispute Resolution: An Assessment Of Cyber-Mediation Websites, Joseph W. Goodman

Duke Law & Technology Review

Due to increasing use of the Internet worldwide, the number of disputes arising from Internet commerce is on the rise. Numerous websites have been established to help resolve these Internet disputes, as well as to facilitate the resolution of disputes that occur offline. This iBrief examines and evaluates these websites. It argues that cyber-mediation is in its early stages of development and that it will likely become an increasingly effective mechanism for resolving disputes as technology advances.

A Solution To The Yahoo! Problem? The Ec E-Commerce Directive As A Model For International Cooperation On Internet Choice Of Law, Mark F. Kightlinger

Michigan Journal of International Law

Instead of attacking or defending the French or the U.S. courts, this Article proposes to focus on the Yahoo! case from a different perspective. As is argued in Section III.D below, disputes like the Yahoo! case over which country's laws apply to a website and its operator seem likely to proliferate as Internet usage expands, demanding significant enforcement resources from countries and posing important compliance challenges for companies and other organizations operating on the Internet. Thus, it may be useful to consider developing an international agreement that would address, and in many instances resolve, such disputes about "jurisdiction to prescribe” …

Mom & Pop V. Dot-Com: A Disparity In Taxation Based On How You Shop?, Jaime Klima

Duke Law & Technology Review

With the extension of the Internet Tax Freedom Act, concern has resurfaced over whether and when shoppers will be forced to pay state sales taxes on purchases made over the Internet. In fact, consumers should be paying sales tax on all Internet purchases, though few actually do. This iBrief explores the current law on taxation of e-commerce purchases and argues that small modifications by state tax administrators will align the tax treatment of mom & pop stores and e-retailers.

Online Brokers And The Sec: Still Working Out The Glitches, Philip J. Bezanson

Duke Law & Technology Review

Common sense dictates that some customers of an on-line brokerage service are bound to have some of the same difficulties in conducting business but that does not mean all customers or even many customers had the same problems. In addition, as to customers who may have had problems executing buy and/or sell orders, there are many variables regarding the circumstances and conditions for each customer's transaction. Variables such as, but not limited to, account status, time of order, i.e., time of day and day of the week, and the customer's computer modem capabilities and internet service provider. Plaintiffs fail to …

Technology Law, J. Douglas Cuthbertson, Glen L. Gross

University of Richmond Law Review

No abstract provided.

Border Disputes: Trespass To Chattels On The Internet, Richard Warner

Villanova Law Review (1956 - )

No abstract provided.

Social Networks And Electronic Commerce In China, Jane K. Winn

Articles

Communication technologies that make up the emerging global information infrastructure have the power to regulate online behavior. Social networks in Chinese society have survived the growth of formal legal institutions and liberalization of China's economy, but it is not clear whether they can survive the regulatory pressures created by global information technology networks.

The spread of electronic commerce technologies in China may strengthen legal institutions and open local markets to international competition, but is likely to be resisted by all the same interests that resist those changes in other contexts. The Chinese response to the spread of electronic commerce might …

Emerging Issues In Electronic Contracting, Technical Standards And Law Reform, Jane K. Winn

Articles

The explosive growth of electronic commerce transactions in recent years has added fuel to efforts to harmonize international commercial law. Organizations such as the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL) and the Hague Conference on Private International Law are all participating in an emerging global debate concerning the changes that should be made to the form or substance of international commercial law to accommodate innovation in the technology of international trade.

Many of the important legal issues raised by cross-border electronic commerce in the 1970s and 1980s have …

The Internet Opens Its Doors For .Biz-Ness, Corey Ciocchetti

Duke Law & Technology Review

Starting on October 1, 2001, .BIZ will become active as the Internet's newest top-level domain; its space reserved solely for businesses engaging in "bona fide" commercial activities. This space has the potential to reinvigorate, at least partly, the immense economic potential of the Internet by stimulating a multitude of e-commerce transactions so common only a few years ago. This iBreif explores the history of how and why this new top-level domain came into being. Following this history lies a discussion of the current .BIZ registration process as well as an analysis of the corresponding Intellectual Property Claims system.

Are Domain Names Property? The Sex.Com Controversy, Christine Soares

Duke Law & Technology Review

Do domain names constitute tangible property? Since domain names may be purchased or transferred, the answer at first glance would appear to be "yes". Congress has also dictated that domain names corresponding closely to existing trademarks may be considered tangible property under certain circumstances. However, a recent case involving the lurid and lucrative domain name "sex.com" has determined otherwise. This iBrief examines the impact of characterizing domain names as tangible or intangible property on the causes of action available for domain name litigation.

Monitoring Employee E-Mail: Efficient Workplaces Vs. Employee Privacy, Corey A. Ciocchetti

Duke Law & Technology Review

Employer monitoring of electronic mail constitutes an emerging area of the law that is clearly unsettled at this point in time. This iBrief demonstrates that the privacy rights of non public-sector employees are relatively unprotected by the federal and state constitutions, broad judicial interpretations of enacted privacy legislation favor legitimate employer-monitoring practices, and many of the elements of common law claims are difficult for employees to prove.

The Complexities Of On-Line Mutual Fund Advertising: A Summary Of The Relevant Regulations, Corey Ciocchetti

Duke Law & Technology Review

As the investment marketplace advances with current technology, paper-based advertising has quickly been supplemented by on-line advertising. Interestingly, both the Securities Exchange Commission and the National Association of Securities Dealers are treating this new medium similarly to the old-fashioned paper-based medium. This iBrief discusses and summarizes the current regulations surrounding one emerging form of on-line advertising - that of mutual funds. This discussion is intended to form a solid foundation from which an interested party may delve further into this emerging area of e-commerce.

Internet Business Model Patents: Obvious By Analogy, Margo A. Bagley

Michigan Telecommunications & Technology Law Review

This Article contends that part of the problem of Internet business model patents is the narrow view of analogous art employed by judges and USPTO examiners which largely excludes relevant "real-world" prior art in the determination of non-obviousness under § 103 of the Patent Act. Consequently, part of the solution lies in helping courts and the USPTO properly to define analogous art for a particular invention. To do so, judges and examiners must recognize the interchangeability of computer programming (i.e. "e-world" activities) to perform a function, with human or mechanical performance of the same function (i.e. "real world" activities). Such …

E-Commerce And Equivalence: Defining The Proper Scope Of Internet Patents--Foreword, Sanjay Prasad, James T. Carmichael

Michigan Telecommunications & Technology Law Review

The diverse expression of views provided in the following papers provides a rich foundation for consideration of the issues surrounding the scope of Internet-type patents. On behalf of the Symposium writers and sponsors we invite you to continue consideration of the legal rules and policy implications surrounding this interesting and important subject.

Defining The Proper Scope Of Internet Patents: If We Don't Know Where We Want To Go, We're Unlikely To Get There, Vincent Chiappetta

Michigan Telecommunications & Technology Law Review

Part I of this Article addresses the appropriateness of protecting Internet innovations under the current patent regime. It concludes that the doctrinal, historical and policy arguments require different outcomes regarding computing (patentable subject matter) and competitive arts (at best a difficult fit) innovation. Part II argues that the new electronic economy has given rise to a particular kind of competitive arts "market failure" (interference with first-to-move lead-time incentives) which must be addressed. It concludes, however, that tinkering with the existing patent or copyright regimes is not only complex, but poses significant risks, and should be avoided. Part III sketches the …

International And Comparative Law Perspectives On Internet Patents, Toshiko Takenaka

Michigan Telecommunications & Technology Law Review

The Internet and e-commerce have created a borderless market. Goods and services sold on the Internet are subject to the patent statutes and regulations of all countries in which customers have access. Because the presence or absence of patent protection--or variations in that protection--hinders the movement of goods and services throughout the Internet, it is necessary to harmonize the protection afforded by Internet patents in their early stages of development. Among the three papers, however, only Professor Chiappetta touched upon the problem of compliance with the provisions in TRIPS. None of the papers paid attention to the feasibility of harmonizing …

Software Disclosure And Liability Under The Securities Acts, Carl C. Carl

Duke Law & Technology Review

Can a software company be liable under the securities laws when it sells securities without disclosing that it will not give free updates on current software as new technology makes them obsolete? What exactly must be disclosed and how does one say it without subjecting the company's business practices to close scrutiny? The Eleventh Circuit recently applied the time-honored standard of meaningful cautionary language to software companies in finding that the disclosures of a software company were enough to avoid liability under the securities laws when the company provided meaningful cautionary language in their prospectus.

Ftc Vs. Toysmart, Daniel Bronski, Conway Chen, Matthew Rosenthal, Robert Pluscec

Duke Law & Technology Review

Last summer, Toysmart agreed to a settlement with the Federal Trade Commission concerning use of its customer information database. Under the terms of the settlement, the defunct Internet toy retailer was permitted to sell customer information without either providing its former customers notice or giving them an opportunity to block the sale or use of their personal information. This issue ignited a privacy-rights maelstrom, but ended anti-climatically for Toysmart; in January, Buena Vista Internet Group, a Disney subsidiary and 60% majority shareholder of Toysmart, agreed to compensate the company's creditors $50,000 for the privilege of destroying the database. U.S. Bankruptcy …

Are Online Business Transactions Executed By Electronic Signatures Legally Binding?, Carl Carl, Corey Ciocchetti, Wes Barton, Nathan Christensen

Duke Law & Technology Review

Most of us believe that we make contracts over the Internet all the time. We buy books and computers, arrange for hotels and planes, trade stocks, and apply for mortgages. But as recently as seven months ago that transaction was most likely not legally binding. This uncertainty led many practitioners, businesspeople, and consumers to question the efficacy of contracts executed by electronic signatures. Without a uniform standard, many jurisdictions ruled inconsistently, while other jurisdictions did not consider the issue. This disparate treatment threatened the legitimacy of online agreements and deprived both consumers and businesses of the certainty and predictability expected …

The Taxation Of E-Commerce: The Inapplicability Of Physical Presence Necessitates An Economic Presence Standard, Kathleen P. Lundy

Richmond Journal of Law & Technology

The explosive growth of electronic commerce has served as a catalyst for immense economic growth. Virtually every aspect of traditional commerce now has some presence on the Internet. As such, the way people shop for clothing, cars, airline tickets, and even groceries, has been changed forever. However, these developments may also have drawbacks. As more and more traditional brick-and-mortar stores transfer their operations to the Internet, there are many unintended consequences. The traditional infrastructure of retail stores may slowly begin to erode. Similarly, jobs in the retail industry may be eliminated in favor of more efficient, more cost-effective Internet technology.

Why Traditional Insurance Policies Are Not Enough: The Nature Of Potential E-Commerce Losses & Liabilities, Anna Lee

Vanderbilt Journal of Entertainment & Technology Law

There are two general categories of insurance policies: first-party policies and third-party/liability policies. First-party polices provide benefits directly to policyholders for losses suffered by the policyholders. For example, fire damage to the policyholder's plant or financial loss resulting from the interruption of the policyholder's business would be covered under the first-party insurance. Generally, these first-party losses are covered under policies such as "all risk," "named peril," "business interruption," or "expense to reduce loss" coverages. Among these various types of first-party policies, "all risk" insurance policies provide the broadest coverages.

Third-party or liability policies provide protection for claims against the policyholder …

The Emperor's New Clothes: The Shocking Truth About Digital Signatures And Internet Commerce, Jane K. Winn

Articles

This Article critiques a specific set of assumptions about specific application of digital signature technology: that contracts will be formed over the Internet among parties with no prior relationships through reliance on digital signature certificates issued by trusted third parties to establish the identity of the parties. This application for digital signature technology was once seen as both its most ambitious and most promising application because, for parties with no prior knowledge of each other, there is not yet a reliable system of online identities in Internet commerce.

Parties with an ongoing commercial relationship can absorb the cost of offline …

Electronic Billboards Along The Information Superhighway: Liability Under The Lanham Act For Using Trademarks To Key Internet Banner Ads, Christine Galbraith Davik

Faculty Publications

With almost one billion web pages on the Internet today, a search engine is a necessity at times. But search engines are also for-profit ventures and the financial success of these sites hinges on advertising revenue. One of the ways in which these sites generate income is by selling “keywords” to advertisers. Although there has been only one judicial decision – Playboy Enterprises, Inc. v. Netscape Communications – involving banner ads keyed to trademarks, it will undoubtedly not be the last. This article argues that despite the invisible nature of this unauthorized trademark use, the common practice of keying a …

Deconstructing The Debate Over State Taxation Of Electronic Commerce, Walter Hellerstein

Scholarly Works

Elsewhere on these pages, the distinguished economist Charles McLure begins his contribution to the debate over taxation of electronic commerce by observing that “America is focusing on the wrong issues in debating the taxation of electronic commerce ....” He proceeds to provide a fundamental critique of the states' existing sales tax regimes and he lays out a roadmap for radical reform of the system that would, in the course of curing the basic defects in the existing state sales tax structure, incidentally resolve many of the issues that currently dominate the debate over taxing electronic commerce. I do not disagree …

Www.Franchisedisclosure.Com: Assessing The Ftc's Proposed Franchise Rule Provisions Involving Electronic Disclosure, Perry C. Siatis

BYU Law Review

No abstract provided.

The History, Purpose, And Procedures Of The Advisory Commission On Electronic Commerce, Thomas Griffith

BYU Law Review

No abstract provided.

Electronic Commerce And The State And Federal Tax Bases, J. Clifton Fleming Jr.

BYU Law Review

The federal income tax does not apply to profits generated by pure mail order sales originating from outside the United States, and state and local consumption taxes are effectively inapplicable to pure mail order sales originating from outside the taxing jurisdiction. These conclusions seem fully applicable to federal taxation of income from sales that are initially solicited through Internet advertising and then transacted over the Internet between a customer in the United States and an out-of-country seller's out-of-country website. Similar conclusions are also, arguably, applicable in the case of state and local consumption taxes. Extension of the mail order tax …