RMIUG Meeting Minutes - Legal Issues on
Dan Murray called the meeting to order
at 7:00 pm and introduced the other RMIUG
Executive Committee members present at the
meeting (Alek Komarnitsky, Art Smoot, Tom
Bresnahan). He commented that RMIUG was
back in the NCAR auditorium after a stint
at the NIST auditorium. Dan also conveyed
thanks to NDA for sponsoring refreshments,
and to XOR for their sponsorship of the
RMIUG Web site and mailing lists.
This month's topic was Legal Issues on
the Internet. Each lawyer presented a short
talk, followed by questions from the audience
directed to the panel. Minutes are sent
to the rmiug-announce list, which has 1494
subscribers. To get information about subscribing
to any of the RMIUG lists, send e-mail to
Dan then opened the floor to announcements
from the audience. Michael Rabb email@example.com
of the Colorado ISDN Interest Group (CIIG)
announced that the next meeting would cover
ISDN and the NT Remote Access Server. The
meeting will be held January 21 from 7:00
to 9:00 pm at In-Touch Internet Education
& Services, 2930 W 80th, Westminster. See
Next, Dan conducted an audience survey.
- Most of the audience were from Boulder,
most of the rest from Denver.
- Most people use Netscape as their default
browser, and a few use Microsoft Internet
Explorer. A couple still use Lynx.
- Everyone admitted to having gotten spam
(unsolicted e-mail) in the past week,
with most also getting some during the
past 24 hours.
- No one first heard the outcome of the
Broncos - Steelers game from the Internet.
- About 10% had consulted a lawyer about
- A couple of people had found their lawyer
through the Internet.
- More than half the audience maintained
Next Dan introduced the first speaker.
1. Shirley Sostre (firstname.lastname@example.org,
of The Sostre Law Office in Boulder began
the presentations with a discussion of the
legal implications of unsolicited e-mail,
or "spam". She noted that the current law
defines unsolicited fax to include email,
but this hasn't gone to court to test the
definition yet. Some states are contemplating
banning or regulating unsolicited email,
but none have gone through with passing
a law. Colorado was going to, then took
it out at the last minute. Is it really
as intrusive as an unsolicited fax? Senders
use someone else's email address as their
reply-to address, so they won't have to
deal with complaints. At first they used
invalid domain names, but that was too easy
to filter out, so they switched to a valid
domain name, but not their own address.
One example used flowers.com as their reply-to
address, and the anti-spam complaints tied
up the flowers.com server for 2-3 hours.
Flowers.com got a judgment of $18,000.
Q. Unsolicited faxes aren't stopped even
if they are illegal. They get around it
with text like, "Here's the information
that you requested".
Shirley: You're right, a law doesn't
stop the act. Murder has been illegal since
Moses and there are still murder's being
committed. The technological barriers haven't
stopped the spammers either.
Q. What if someone uses your SMTP as a
relay? Is that a crime?
Shirley: I haven't seen any cases
that judge whether that is trespass, but
I think it would be. Unauthorized access
is a criminal statute in Colorado, but you
would have to convince the district attorney
Q. Is the law clear on the murder of spammers?
:) ha ha.
Q. Anti-spam is most visible on AOL. Will
they set a precedent?
Shirley: I think so. They've started
the process of bringing the law to cyberspace.
They set the groundwork by establishing
the constitutional issues surrounding cyberspace
and ISP's. It's not a free-for-all with
equal rights to speak. There was even a
terrorist threat to publish AOL email addresses.
AOL says, "It's my house, so I set the rules."
I have the right to have ads and spam, like
the "No Thanks" ads you have to click on
to get to the main service, but not others.
Q. ISP's can cut you off for spamming
because it's not a free speech issue.
Shirley: AOL and CompuServe both
have done that. Mostly they settle out of
court, but AOL did go all the way to get
a judgment. Every ISP needs an acceptable
use policy and has to enforce it, but not
in a discriminatory manner. If they don't
enforce it, they could lose market share
as customers leave to escape spam.
Q. What about the poor college student
getting reverse spammed?
Shirley: It's very expensive both
financially and emotionally to pursue the
problem in court. Unless you have criminal
action, then you have to convince the district
attorney to pursue it.
Q. I think the "Make $50,000" type spam
will be taken care of, but what about the
other unsolicited email, like registering
for a product and giving your email address,
and you start receiving ads and announcements?
Who's working out the definition of spam?
Shirley: That's one of the most problematic
areas. It needs to meet a strict standard,
not an overly broad definition. So that
means laws aren't passed at all. Nevada
and Colorado had bills that did not pass.
Having a pre-existing business relation
would not be defined as spam. They should
list their real business name and a way
to get off the mailing list. The responsibility
may shift to the user, who will have to
ask to be taken off the mailing list. The
fax statute is strict, awarding $500 or
actual damages, which ever is more, to the
Q. What about the issue of identifying
who truly sent the spam? Individuals don't
always have the resources to track, so should
the ISP be required to track?
Shirley: That's an interesting concept.
Should the ISP be the gatekeeper? Regulation
of ISP's could be really bad, so ISP's will
jump on any available technology to filter
out spam to avoid regulation.
Q. With junk faxes you can use Caller
ID to track the caller?
Shirley: You will still need to prove
that the person you accuse is the one who
sent it. You have to find them, serve papers,
find the right jurisdiction, then win, then
Q. If we can identify them, then we won't
need to go to court, just reverse spam them.
Shirley: You probably won't be able
to identify them.
Q. If they move offshore, then it doesn't
matter what the US law is.
Q. Most ISP's won't want to filter everyone's
2. Dan then introduced Carl Oppedahl (email@example.com,
a Summit County lawyer of Oppedahl & Larson
who was written up in a recent Internet
World magazine. Carl's topic was Internet
intellectual property issues, including
domain name/trademark issues and meta-tag
He announced that an administrative law
judge recently denied US West's request
to quit offering LADS (Local Area Data Service)
in Colorado. LADS can be used for data transfer
like a T1 line, only it costs much less.
Moving on to his main topic, domain names,
he feels that they are incredibly important
to a company, and could a ruin a business
if it lost its domain name. One example
is roadrunner.com in New Mexico. They are
an Internet service provider (ISP) that
has customers with email addresses like,
firstname.lastname@example.org. Network Solutions
Inc. (NSI) wrote them a letter to say they
were taking away the roadrunner.com domain
and no longer making it available. The ISP
sued NSI two and a half years ago and got
to keep their name.
Another example is clue.com, being handled
by Phil Dubois, who also handled the Pretty
Good Privacy (PGP) case. Hasbro has a game
called Clue, and they want to take the clue.com
domain name away from the current holder.
Q. What's the difference between the two
cases (clue.com and roadrunner.com)?
Carl: Warner Brothers chose to settle
privately, but Hasbro won't negotiate in
a meaningful way. One way to settle the
loss-of-business issue is to provide cross-links
on the web site to point people who are
looking for the Clue game to the Hasbro
Q. Where do you draw the line to prevent
using other forms of a name?
Carl: The Internet is set up so there
can only be one patents.com. There's nothing
to prevent the use of patents2.com by another
Q. So I can buy all those other domain
names and sell them and get rich?
Carl: There are a lot of other extensions,
like .ca and .au, but some countries only
let you register a name if it's part of
your company name. Plus there are a lot
more top level domains on the way, like
.store and .firm.
The other end of the spectrum involves
a case of a person registering the domain
panavision.com. The word panavision is a
coined unique name, so the judge ruled that
he did not have the rights to that name,
especially when he announced that it was
his intent to sell the name back to the
Regarding meta-tags, these tags are normally
text used to help search engines index a
site. Carl found that by doing a search
on his firm's name, some other sites were
putting his firm's name in meta-tags, titles,
comments, and other non-printing areas of
a Web page. He found a total of three sites
using this practice, and sued eight defendents
at the three sites. Six settled, and two
others never answered and are in default.
Some people wonder why he didn't just
write them a letter first asking them to
remove the references, but this was their
fourth intellectual property case and they
were tired of writing nice letters that
were not answered.
Q. What did you sue them for?
Carl: Unfair competition for one.
Be sure to add a copyright notice to every
Web site that you administer. See also http://www.patents.com/ac
3. The next speaker was Richard Macklin
(email@example.com), a Denver
attorney. His topic was encryption, sales
tax, pornography, copyright, and legislative
initiatives such as making ISP's responsible
for hosted sites.
Richard reported that there is currently
federal legislation in the House and Senate
regarding encryption. The administration's
version will require mandatory key recovery.
Who knows what will happen in Congress.
HR 695 will probably not have mandatory
key recovery, but the Senate version will,
so it probably will not pass.
Q. How would that stand up to the first
Richard: Congress can regulate interstate
communication and exports, so it's not a
first amendment issue.
Q. With mandatory key recovery, does that
mean they can get anyone's private key?
Richard: Key escrow entities would
probably be set up to handle it. The FBI
wants to be able to get a key at one court
as long as there is an ongoing criminal
investigation. This is much less restrictive
than getting a phone tap, which requires
probable cause. The NSA doesn't require
There is currently a plan for a six-year
moratorium on new Internet and electronic
commerce taxation to stimulate. The plan
was going well until mayors and governors
complained Fort Collins and Broomfield wanted
to tax e-commerce. Some states want to tax
Internet access fees. Colorado's Governor
Romer is against the moratorium. This does
not absolve companies in Colorado from paying
tax on sales by their company. The sales
tax goes by the shipping address of hard
Q. Doesn't the Secretary of State maintain
a list of business addresses?
Richard: Only if the business has
registered, as legally required.
Trade Secrets - The issue is getting enjoined
or sued for quitting a company and selling
your information. The US Attorney can stop
you from use of knowledge developed in your
previous job. You should understand what
is a trade secret. Know what is yours and
what belongs to your company.
Regulation of Content - pornography, obscenity.
This is an election year, so politicians
are excited about this. Cable TV provides
a commercial activity basis for regulation.
They can't regulate access, except for minors.
They can regulate pornography and obscenity
based on community standards, but for which
Willful Violation of Copyright - Fines
have been increased or added, mostly for
distribution of audio through the Internet.
Panel Q&A --------- Q. How does the legal
profession keep up with the fast rate of
change on the Internet?
Carl: Mostly they don't. Some still
insist on using dictation machines when
typing is faster for the computer-savvy.
Q. What about the judicial decision to
announce the au-pair case via the Internet,
and it didn't make it due to a "power failure"?
Carl: Judges have law clerks that
are new grads and are up on the technology.
For example, the judge that countered Microsoft's
claim that the Internet Explorer browser
was an integral part of Windows. When he
said he removed IE in 90 seconds, that was
probably thanks to his clerk.
Shirley: It's true in many fields
that it's hard to keep up. People specialize
in one area, like real estate, then get
up to speed in other areas.
Q. How are trademark disputes handled,
e.g. "Sun Orange Juice" and Sun Microsystems?
Carl: NSI is the one who decides,
but other domain name registrars will probably
use the courts to decide. NSI says that
the one with more money gets to keep the
Q. What about trademarks vs. prior use,
e.g. Clue Consulting and clue.com?
Carl: First one to use it wins in
Q. What's the proper way to register a
A. Federal Trademark Office in DC. You should
get every domain name registered.
Q. What about your own given name as a
Carl: May be able to register it,
if someone hasn't got it first, e.g. McDonald's.
Q. What is the jurisdiction in cyberspace?
A. Any act conducted within the US makes
it a US jurisdiction. And you have to be
able to serve them to connect them with
Q. Can they extradite a spammer to trial
in the US?
Richard: It has to be serious like
terrorism to get extradited.
Carl: Long distance Internet and
CompuServe has drastically increased the
number of jurisdiction cases. It would be
difficult to sue someone outside the US.
However, your web site content could annoy
someone in Canada or Massachusetts, and
you could be forced to defend yourself in
Q. What if someone tells their horror
story on the Internet about their experiences
with a company. What is the liability?
Richard: They could be sued without
any penalty for frivolous suit.
Carl: If you can prove the horror
story is true, that's different. But if
they sue you, you can tell that story too.
Richard: McDonAld's won a nominal
suit in England. It was bad publicity, but
it was a hassle for the plaintiffs to go
Q. Can you prevent someone from calling
their site patents2.com and copying your
Carl: Copying text from a web site
is big trouble, especially if you register
the content with the Federal Copyright Office
for $20. The domain name patents2.com can't
Q. If you change content, do you re-register?
Carl: Yes, if there are major changes.
You also have to disclose in the registration
if there is a mix of new and old content.
Dan thanked the panel, and the meeting
was adjourned at 9:00 pm.
RMIUG appreciates the ongoing support
from XOR Network Engineering (http://www.xor.com)
for administration of RMIUG's electronic
discussion lists & WWW site. Thanks also
to NDA (http://www.nda.com)
for sponsoring refreshments for our group.
Tentative schedule of the next RMIUG meeting:
Mar 10: Mapping on the Internet, a panel
discussion of mapping issues as related
to the Internet. Local offices of MapQuest,
ESRI, InfoNow and possibly others will be
presenting their ideas.
(To suggest a topic, send your idea to
Respectfully submitted by Tom Bresnahan