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THE INDUSTRY STANDARD'S
N E T L A W
A Weekly Report on the Law Shaping the Wild, Wild Web

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| http://www.thestandard.com |

Tuesday, January 23, 2001

NEWS BRIEFS:

* Another Microsoft Victory ... ICANN's Legal Bill ... Public Privacy

Perils

TOP STORY:

* Should Tech Workers Unite?

SAID IN CHAMBERS:

* Loyola University law professor Laurie Levenson evaluates an attorney's "Internet addiction" defense.

FILE YOUR OPINION:

* Will unions be able to penetrate the new economy?

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NEWS BRIEFS

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ANOTHER MICROSOFT VICTORY: The latest twist in the seemingly never-ending stream of private legal actions against Microsoft: A Baltimore federal judge threw out 38 of 61 private antitrust lawsuits against the software giant earlier this month. The reason? They were filed in states that bar legal action by plaintiffs who do not purchase products directly from the defendant. While that counts as yet another legal victory for Microsoft, there are plenty of other suits remaining, including a massive class action in California that, if successful, could result in triple the monetary damages against Microsoft because of a state antitrust law that allows indirect purchasers to sue. But it'll be a while before any decisions are made:

The suits in California aren't scheduled for trial until next year.

http://www.zdnet.com/zdnn/stories/news/0,4586,2674912,00.html

ICANN'S LEGAL BILL: Talk about a controversial legal bill. In the process of representing the Internet Corporation for Assigned Names and Numbers at last fall's hearings over global top-level domains, three attorneys from the law firm Jones Day Reavis & Pogue ran up $465,553.57 in legal fees. The law firm's continuing role with ICANN has been openly criticized by ICANN's newly elected at-large board members, who were not present when ICANN's six-member executive committee approved the large payment at a recent meeting. One of the firm's most outspoken critics is newly elected board member Karl Auerbach, who says the firm has no special credentials to offer ICANN and believes that expensive lawyers alienate the public.

http://www.theregister.co.uk/content/6/16084.html

PUBLIC PRIVACY PERILS: When does a public document become too public?  It could be when a document filed in court is available for viewing over the Web. Although traditional paper documents filed in federal court cases are technically public but "practically obscure," according to a phrase taken from a 1989 U.S. Supreme Court opinion, that may change when electronic filing becomes a reality and anyone with a Web browser can mine personal information from court files.

"There is so much possibility for abuse by those who do not have a legitimate interest in the information," says Internet privacy specialist Christopher Wolf of New York's Proskauer Rose. Want to voice your opinion on the issue of open access to e-filings? Visit www.privacy.uscourts.gov, a project by the federal Judicial Conference.

http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZSKZ08SHC&live=true&cst=1&pc=0&pa=0&s=News&ExpIgnore=true&showsummary=0

REVERSE HIJACKING: A World Intellectual Property Organization arbitration panel recently issued a rare finding of "bad faith" when it ruled that German broadcast company Deutsche Welle, which operates under the registered trademark acronym "DW," brought a false claim in September against U.S. software developer DiamondWare over the domain name "dw.com." Since DiamondWare registered the domain name in 1994 and has used it ever since, the panel said, Deutsche Welle's claim is "a bold and will misrepresentation" filed to harm its opponent's business and reputation.

http://arbiter.wipo.int/domains/decisions/html/d2000-1202.html

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TOP STORY

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Should Tech Workers Unite?

By John Roemer

Labor unions trying to organize tech workers have largely struck stony ground. But in October, the spirit of turn-of-the-century labor leader Joe Hill flickered back to life at a San Diego-based Web business, OTVnet, where a five-member collective bargaining unit of production and development technicians joined the International Brotherhood of Electrical Workers. The IBEW's success in organizing workers at a tech startup is unusual, considering the number of unions that have so far been unable to organize in the face of strong opposition by company management. At Etown, a San Francisco-based consumer electronics site, a guild of the Communications Workers of America gained federal sanction to hold a union vote on Jan. 12, only to put the effort on hold and file a complaint, saying the company's management illegally interfered with workers' right to organize by threatening the company would close if unionization succeeded. Other union attempts to win converts at Amazon.com and IBM have sputtered in a similar manner. "We just don't think it's going to be in the best interest of our company or our employees," an Amazon spokeswoman says. Technology companies' negativity toward unions appears to be part of larger downward trend reported by the Bureau of Labor Statistics. According to the study, the number of union members in the U.S. declined by 200,000 last year to 13.5 percent of the workforce, down from 20 percent in 1980.

The sentiment toward unions is decidedly different at OTVnet, which develops Web communication tools and benefit systems for labor unions. For one thing, it was initially the union organizers - not the company management - who were cautious about unionization, according to OTVnet CEO Seth D. Heyman. "They're well aware that some companies will try to court unions for business development reasons, companies that want to service the union space," he says. Though OTVnet ultimately gave up its right to terminate its union workers at will, the advantage, Heyman says, is that the union offers its members a comprehensive set of health, welfare, job training and 401(k) retirement benefits. "Now we can't terminate without good cause," he says. "It's another protection for our workers, but good companies shouldn't have a problem with it."

With history as an example, quite a few labor experts believe unions have a place in the Internet Economy. Labor union authority Harley Shaiken, a professor at the University of California at Berkeley, points out that unionized telecom employees at old-line phone companies and customer service representatives at the major airlines do work that is similar to that of customer service reps at high-tech companies. Because of this, it may be simply a matter of time before unionization becomes more commonplace. "This is like 1934, when the debate was whether mass production workers at places like General Motors would ever be unionized," Shaiken says, but he adds that though the OTVnet case sets a precedent for union organization, resistance by new economy management - who believe that unions are antithetical to being fast-moving and modern - is likely to remain strong. "The flip side is that unions could be a vital force in helping the high-tech sector weather tough times."

As for the IBEW, union business representative Kris Hartnett says he plans to use the collective bargaining agreement that succeeded at OTVnet as a pattern for other tech businesses. "The union head-butting approach of the 1930s and '40s doesn't work anymore," he says. "We're finding more saleable ways to show that labor-management-worker conversations are good for everyone."

Labor Pains

http://news.cnet.com/news/0-1007-201-4385393-0.html?tag=st.ne.1002.tgif.sf

Unions Hit Lowest Point in 6 Decades

http://www.nytimes.com/auth/login?URI=http://www.nytimes.com/2001/01/21/national/21LABO.html

(Free registration required.)

OTVnet Announces Historic Union Agreement

http://www.quicken.aol.com/investments/news/story/bw/?story=/nS/a2295.htm&symbol=DGB

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SAID IN CHAMBERS

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"Most jurors will roll their eyes. But when you have very little else on the defense side you have to come up with something. It's an emerging defense in cases involving Internet communication." - Loyola University law professor Laurie Levenson on a Florida lawyer's plans to plead that his 18-year-old client was suffering from "Internet addition" and living in a "virtual world" when he allegedly threatened a Columbine High School student in a chat room in December.

http://tm0.com/thestandard/sbct.cgi?s=64846263&i=295573&d=929228

FILE YOUR OPINION

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This week's question: Will unions be able to penetrate the new economy? E-mail your opinions to johnr@thestandard.com, and we'll print a selection of the responses in next week's newsletter. Keep them short and include your name and affiliation if any. Letters may be edited for tone, clarity and length. Last week's question: Can a federal anti-spam law effectively cut down on the problem of unwanted e-mail? We don't need hundreds of countries and thousands of governmental entities making different Internet rules. My e-mail box is no different than my mailbox; it's up to me to dispose of trash mail (or through software prevent it). - Wayne Cypert Nogales, Ariz.

No. Federal law will do nothing to curtail this global problem. As with many of the problems created by technology, the spam issue is best solved by further refinement of the technology that makes spam possible in the first place, not by government intrusion into the Internet. Once the economic incentive to send spam wanes as more and more people take the time to effectively filter their e-mail and as more and better filtering programs become available, spam will go the way of the "metered" AOL dial-up service, the paid Web site impression and the 2400 baud modem! The person who invents the true antispam program will be Time magazine's "Man/Woman of the Year." - Harvey S. Jacobs, Esq. Jacobs & Associates, Internet Attorneys At Law Washington, D.C.

This is another example of losing sight of the cost in dollars and freedom because of an annoyance. Internet spam is no different than old-fashioned unsolicited mail or telephone sales except for the ease of sending geometrically greater numbers. Of course there's a cost to consumers, but consumers now have the ultimate power to throw it away (or hit the delete button). Consumers can demand that their Internet company create filters, if they're willing to pay for the filter. Some consumers would rather pay less and accept the aggravation. Different levels of comfort (or lack of aggravation) are a sign of a healthy competitive environment. Regulators would be best to focus on fraudulent practices, which is of far more importance and has far greater danger to the use of the Internet. - Paul Fisher Piper Marbury Rudnick & Wolfe Chicago, Ill.

ADDITIONAL LINKS

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Auschwitz Survivors May Sue Yahoo's Tim Koogle

http://tm0.com/thestandard/sbct.cgi?s=64846263&i=295573&d=929229

FTC Clears DoubleClick

http://tm0.com/thestandard/sbct.cgi?s=64846263&i=295573&d=929230

Supreme Court Takes Telecom, Net Child Porn Cases

http://interactive.wsj.com/articles/SB980174457905930015.htm (Paid

subscription required.)

Ford Settles Suit Over Blueovalnews.com

http://detnews.com/2001/technews/0101/20/b01-177520.htm

Patent Office Slams Congress Over Cybersquatting

http://www.newsbytes.com/news/01/160764.html

Libraries Sue to Quash Web Filtering Law

http://www.newsbytes.com/news/01/160715.html

Verizon's DSL Service Is Target of Class Action Suit

http://www.newsbytes.com/news/01/160639.html

Judge Dismisses $100M Suit Against eBay

http://news.cnet.com/news/0-1007-200-4528023.html

Do Antipiracy Measures Rob Consumers?

http://news.cnet.com/news/0-1003-201-4500456-0.html

U.S. E-Commerce Task Force Report Hails Limited Net Laws

http://www.ecommerce.gov/ecomnews/ecommerce2000annual.pdf

STAFF

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Written by John Roemer (johnr@thestandard.com).

Editor: Steven Zeitchik (szeitchik@thestandard.com).

Deputy Editor: Michele Keller (mkeller@thestandard.com).

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