Most tuned-in Webmasters are painfully aware of the patent claims by Acacia Research, which contends that it owns patents to what is commonly known as “streaming media.” Acacia has sued several adult Websites, and made over 700 claims against companies in the adult entertainment industry because of their perceived profitability.THE INTERNET PATENT MESS

[Part One]

Most tuned-in Webmasters are painfully aware of the patent claims by Acacia Research, which contends that it owns patents to what is commonly known as “streaming media.” Acacia has sued several adult Websites, and made over 700 claims against companies in the adult entertainment industry because of their perceived profitability. That conclusion may itself be a miscalculation on Acacia’s part, since experts have recently opined that Internet erotica is not the moneymaker it’s often believed to be outside the professional adult industry.1 Notably, there have also been some misinterpretations as to the volume of adult material on the Internet. Recent estimates indicate that total erotic content is still less than five percent of all material available online.2 In any event, Acacia has filed suit against a number of adult companies (along with many non-adult ones) under the theory that they are violating Acacia’s patent claims. Several such companies have organized and retained the national intellectual property law firm of Fish & Richardson to defend their interests, in the attempt to defeat the patent claims.3

Although there’s been no resolution to the merits of Acacia’s claims, a jury recently struck down four patent infringement claims against two Internet security companies in a Delaware trial, where the Plaintiff claimed to have invented a popular method for processing secure transactions over the Internet.4 The Plaintiff had been granted seven patents between November 1993, and October 1999, to cover Secure Sockets Layer (SSL) which is commonly used to scramble data during Internet transactions between Websites and their customers.5 A second trial on these issues is looming, and nobody is counting their chickens on that case yet. However, this may be a positive indicator of which way the wind is blowing on Internet patents.

MARRIOTT CONTINUES TO BUCKLE

Another Marriott Hotel in Cincinnati has succumbed to the pressure of the Citizens for Community Values (“CCV”), a censorship group focused on eliminating adult fare from area hotels. The Cincinnati Marriott North in Westchester, Ohio, is the second local hotel to bow to pressure from the censorship group and law enforcement officials.6 The Butler County Prosecutor’s Office warned that owners might face obscenity charges unless they cut off pay per view adult entertainment. After receiving complaints about a couple of movies, local prosecutors indicated that Marriott officials “were very cooperative.”7 Chilling effect in action!

FEDS SEIZE WEBSITES

In a move that has concerned some civil libertarians, federal agents from the Justice Department are starting to seize and take over Websites owned by businesses that distribute bongs, roach clips, rolling papers and other alleged drug paraphernalia. Civil liberties groups and legal scholars fear that the government could use the new seizure policies to spy on Web surfers who visit the confiscated sites.8 David Sobel, General Counsel for the Electronic Privacy Information Center, recently said, “The government is suddenly in a position of being able to monitor the Web-surfing activities on unwitting individuals who believe they are going to a Website… but possibly implicating themselves into some law enforcement investigation.”9 Thus far, 15 to 20 sites have either been taken over or redirected by the Justice Department, according to Attorney General John Ashcroft. In the meantime, those looking to consume tobacco products via exotic smoking devices are encouraged to avoid online shopping and to visit their local headshop instead.

ANTI-SPAM LEGISLATION

Anti-spam crusaders have been emboldened by the recent Eighth Circuit Court of Appeals decision upholding the federal junk fax law.10 In this case, American Blast Fax, Inc. and Fax.com challenged provisions of the Telephone Consumer Protection Act of 1991, prohibiting unsolicited fax advertising on First Amendment grounds. Although the trial court struck down the restrictions as a violation of Free Speech, the Eighth Circuit Court of Appeals reversed and found the legislation constitutional. In light of this court decision, anti-spam advocates began pushing harder for a federal law against unsolicited email.

Ray Everett-Church, Counsel to the Coalition Against Unsolicited Commercial Email, claims that the same arguments used to justify the unsolicited fax regulation can be made about spam.11 Comparing spam to fax, Everett said, “The junk email problem cries out even louder for a solution.”12 However, the Electronic Frontier Foundation argues that regulating email spam may not be as easy as regulating junk faxes. The Appeals Court decision focused on the costs associated with tying up fax machines and using up paper and ink to receive faxes, which largely differentiates unsolicited email.13 Nonetheless, Senator Conrad Burns (R-Montana) introduced federal anti-spam legislation called “Controlling the Assault of Non-Solicited Pornography and Marketing Act,” but it was not called to the Senate floor for a vote.14

More recently, a Bill was introduced in Arkansas, requiring spam to contain an identifying URL, the phrase; “ADV: Adult,” a valid functioning email address to allow removal, and a toll-free telephone number for recipients to call to be removed from the list.15 Although approximately sixteen states have passed anti-spam legislation, attempts at regulating unsolicited email at the federal level have thus far been unsuccessful.

ONLINE GAMBLING UPDATE

Online casino gambling has been dealt another potential setback this month as the House Financial Services Committee approved a Bill that would require credit card companies and payment services such as PayPal to block money transfers to Internet gambling sites.16 “No one is immune to the potential ruin that Internet gambling can bring,” said Committee Chairman, Michael Oxley (R-Ohio).17 However, Massachusetts Democrat Bonnie Frank opposed the measure, likening it to a new form of prohibition.18 A similar bill is pending in the Senate. The online gambling industry has been dogged by conflicting court decisions regarding the applicability of federal gambling law to online gaming, along with competing legislation alternatively proposing both criminalization and potential legalization of Internet gaming.

ONLINE POLITICKING

The Internet has provided an ideal venue for grassroots political campaigns, and several new Websites are popping up to assist in the endeavor. For example, MeetUp.com, is a new free service that gathers people together to discuss various subjects that has found a niche in campaigning for candidates.19 Since its inception, MeetUp.com has held dozens of events around the country for voters to support their presidential candidates. As this author has preached for years, Webmasters may hold the key to the next presidential election should they use their power to effect political change.

BLUE BALLING THE BOYS OVERSEAS

Last month, Update reported that at least one company was sending adult fare care packages to troops stationed abroad. It was not long before censorship groups like Focus on the Family and Concerned Women for America have objected to the offer of erotic assistance. Detractors cited degradation of women and concerns about the Muslim reaction to adult entertainment as reasons to halt the shipments.20 Focus on the Family also integrated the concept of obscenity; “The interstate distribution of obscene material is a criminal violation, and United States attorneys and even the FBI should investigate…”21 The Middle East might as well be initiated with American culture sooner, rather than later.

BIZZARO WORLD

The winner of the bizarre story of the month is a tie: Tennessee has proposed to ban X-rated videos from cars, and a man was arrested after refusing to remove an anti-war shirt in the mall. The State Senate of Tennessee has voted unanimously to ban X-rated videos from cars and other vehicles if the TV screens can be seen from the street.22 Erotica fans can still view the tapes if their car windows are tinted or covered by shades, so long as they keep their eyes on the road!

The final oddity this month is the well-publicized arrest of the individual who failed to remove a shirt proclaiming “Peace on Earth, Give Peace a Chance.”23 Mall officials quickly distanced themselves from the security officer’s actions, and the guard was fired. Perhaps these absurd actions are necessary to give the American public a refresher course in First Amendment rights.

1 C. Farrar, “Web Saturated with Porn? Not Quite: Ohio Professor,” AVN.com (March 17, 2003).

2 Id.

3 J. Edwards, “Acacia Targets Adult Websites with Lawsuits, Claims Patent on Streaming Media,” (April 7, 2003).

4 G. Gross, “Jury Turns Down Internet Patent Claims,” ITWorld.com (March 11, 2003).

5 Id.

6 M. Clark, “Second Marriott Turns off Adult Movies,” The Cincinnati Enquirer (March 5, 2003).

7 Id.

8 “Feds Grab Internet Domains,” CNN.com (March 5, 2003).

9 Id.

10 State of Missouri ex. rel. Jeremiah W. Nixon v. America Blast Fax, Inc., Case No. 02-2705/2707 (8th Cir. 2003).

11 G. Gross, “Anti-Spam Crusaders Call for New Laws,” PCWorld.com (March 25, 2003).

12 Id.

13 Id.

14 Id.

15 D. Thompson, “Bill Targets Porn Spam,” TimesRecord (March 4, 2003).

16 “Net Gambling Ban Wins Key Support,” MSNBCNews.com (March 18, 2003).

17 Id.

18 R. Fitzpatrick, “House Panel Approves Bill Aimed at Online Gambling,” Global Institute for Gaming Innnovation (March 13, 2003).

19 L. Poteus, “Political Hopefuls Turn to Web Networking,” FoxNewsChannel.com (March 10, 2003).

20 C. Farrar, “Porn For The Troops? Not So Fast – Family Groups,” AVN.com (April 1, 2003).

21 Id.

22 “Tenn. May Restrict X-Rated In-Car Videos,” WESH.com (March 18, 2003).

23 “Man Arrested After Refusing to Remove Anti-War Shirt in Mall,” FoxNewsChannel .com (March 5, 2003).

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, http://www.FirstAmendment.com or AOL Screen Name: “Webattorney”.

Most tuned-in Webmasters are painfully aware of the patent claims by Acacia Research, which contends that it owns patents to what is commonly known as “streaming media.” Acacia has sued several adult Websites, and made over 700 claims against companies in the adult entertainment industry because of their perceived profitability.THE INTERNET PATENT MESS

[Part One]

Most tuned-in Webmasters are painfully aware of the patent claims by Acacia Research, which contends that it owns patents to what is commonly known as “streaming media.” Acacia has sued several adult Websites, and made over 700 claims against companies in the adult entertainment industry because of their perceived profitability. That conclusion may itself be a miscalculation on Acacia’s part, since experts have recently opined that Internet erotica is not the moneymaker it’s often believed to be outside the professional adult industry.1 Notably, there have also been some misinterpretations as to the volume of adult material on the Internet. Recent estimates indicate that total erotic content is still less than five percent of all material available online.2 In any event, Acacia has filed suit against a number of adult companies (along with many non-adult ones) under the theory that they are violating Acacia’s patent claims. Several such companies have organized and retained the national intellectual property law firm of Fish & Richardson to defend their interests, in the attempt to defeat the patent claims.3

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