Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
CAN-SPAM Enforcement SPAM Definitions Patent Updates What is it? Who enforces it? First Spam Ever? Commercial Email? Licensing What does it do? How mean are they? Commercial Spam? T or R Messages? Software Exports What does it require? What are their tactics? Non-Email Spam? Header Information? Challenging Patents What are the penalties? How to avoid? What about porn? Sender? Patent Trolls California 1 differences? What about non-email? Do not email registry? Initiate? Patent Reform The CAN-SPAM Act Controlling the Assualt of NonSolicited Pornography And Marketing Act (requirements for commercial emailers) 2 Who Enforces? • • • 3 Federal Trade Commission States Internet Service Providers First Spam Ever When was it sent? 4 Commercial Email • (A) IN GENERAL- The term `commercial electronic mail message' means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose). • (B) TRANSACTIONAL OR RELATIONSHIP MESSAGES- The term `commercial electronic mail message' does not include a transactional or relationship message. 5 Supreme Court: •Licensees under patents now have standing to sue the patent owner for noninfringement or invalidity. MedImmune v. Genentech Federal Circuit: •Invitation to license letters, formally the standard opening volley of a license negotiation now give rise to the ability for the recipient to file a DJ action . Teva Pharmaceutical v. Novartis 6 The CAN-SPAM Act (1) Establishes requirements for commercial emailers (2) Spells out penalties for spammers and companies who advertise in spam if they violate the law (3) Gives consumers the right to ask emailers to stop spamming them 7 Criminal Convictions •In January, 2006 a California man was convicted by a jury in United States District Court in Los Angeles in United States v. Goodin, U.S. District Court, Central District of California, 06-110, under the CAN-SPAM Act (the first conviction under the Act) •Concluding the first prosecution of its kind in the United States, a California man was sentenced to nearly five years in prison for profiting from his use of "botnets" == armies of compromised computers == that he used to launch destructive attacks, to send huge quantities of spam across the Internet and to receive surreptitious installations of adware. 8 First Commercial Spam Sent by what type of business? 9 T or R Messages (A)IN GENERAL- The term `transactional or relationship message' means an electronic mail message the primary purpose of which is— (i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender; (ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient; (iii) to provide-(I) notification concerning a change in the terms or features of; (II) notification of a change in the recipient's standing or status with respect to; or (III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender; 10 (iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or (v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender. Supreme Court: •Software components are not considered a material component of a patented device under the export prohibition of 35 USC Section 271(f) Microsoft v. AT&T 11 What the Law Requires It bans false or misleading header information. Your email's "From," "To," and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email. It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message. It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to opt-out, and you must honor the requests. It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address. 12 FTC Tactics •The FTC typically starts investigating after it receives a number of complaints from consumers •The FTC may spend months working in secret on a file •When ready, the FTC will file a complaint and an application for TRO, under seal. The TRO will usually order an asset freeze. •The target does not know until it gets served, which is too late. •The FTC will then fight tooth and nail with their endless resources. It's not pleasant. 13 Commercial Emails Only •Under the Act, only commercial emails are prohibited. •Other types of intrusive commercial communications (e.g., text messages on cell phones) might be subject to Section 5 enforcement. 14 Header Information (8) HEADER INFORMATION- The term `header information' means the source, destination, and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message. 15 Supreme Court: •The well established standard for demonstrating that a patent is obvious has now been watered down KSR v. Teleflex •Good for reexaminations and patent defense •Bad for patent enforcement •With the lower obviousness standard, patent reexaminations will be on the rise. •The NTP patents (Blackberry case) were ultimately invalidated after the case was settled 16 What are the Penalties? Penalties •Each violation is subject to fines of up to $11,000. •Each email is a separate violation. •Deceptive commercial email also is subject to laws banning false or misleading advertising. •Watch out for Section 5 enforcement! 17 Avoiding Prosecution •Honor requests for removal –Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email –When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor's email address –Do not sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law •Use descriptive subject lines –“SEXUALLY EXPLICIT” 18 •Use correct email headers •Be fair (Section 5) Requirements for Sexual Content WARNING LABELS ARE REQUIRED ON COMMERCIAL ELECTRONIC MAIL CONTAINING SEXUALLY ORIENTED MATERIAL 19 Sender (16) SENDER(A) IN GENERAL- Except as provided in subparagraph (B), the term `sender', when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message. (B) SEPARATE LINES OF BUSINESS OR DIVISIONS- If an entity operates through separate lines of business or divisions and holds itself out to the recipient throughout the message as that particular line of business or division rather than as the entity of which such line of business or division is a part, then the line of business or the division shall be treated as the sender of such message for purposes of this Act. 20 Supreme Court: •Injunctive relief may not be available for patent owners that are not competing in the market •Compulsory licenses may be the new standard (needs clarification from the Court) E-Bay v. MerkExchange 21 Why not California? The most significant difference between the superseded California law and the CAN SPAM Act is the opt-out versus opt-in requirements. California required recipients to opt-in while the CAN SPAM Act requires the recipient to opt-out 22 Section 5 of the FTC Act •This section gives the FTC the very broad authority to sue individuals and companies for unfair business practices. •They sued the provider of the pop-up blocker under section 5 23 What about the National do-not email registry? 24 Tuesday, June 15, 2004 1:00 PM PDT WASHINGTON -- The Federal Trade Commission will not immediately start a national Do Not E-Mail list, despite a law passed last year that calls for the agency to develop a plan for such a list. A Do Not E-Mail list would likely be used by spammers to send consumers more unwanted commercial e-mail, FTC Chairman Timothy Muris says. The FTC, in a report to Congress on Tuesday, instead advocates Internet service providers continue to work on domain-level e-mail sender authentication, technologies that would require email to come from the domain it says it's from. Initiate (9) INITIATE- The term `initiate', when used with respect to a commercial electronic mail message, means to originate or transmit such message or to procure the origination or transmission of such message, but shall not include actions that constitute routine conveyance of such message. For purposes of this paragraph, more than one person may be considered to have initiated a message. 25 Patent Reform Legislation •Harmonization of laws (first to file) •Caps on damages •2007 is a very big year for patent law 26 ACCA-SD Privacy and Anti Spam presented by: Pattric J. Rawlins 27 ACCA-SD: Privacy & Anti Spam In an effort to control unsolicited commercial email, Congress passed the CAN SPAM Act of 2003. Now, over three years later spam is on the rise and the anti-spam industry is struggling to keep up with the surge of unsolicited mail with an estimated 9 out of every 10 e-mail messages being identified as unsolicited junk mail. So, how are the anti-spam laws holding up and what steps are being taken for enforcement? This presentation will outline the differences between the earlier California SPAM Act and the federal CAN SPAM Act that superseded it. The presentation will also cover recent law enforcement actions by the Federal Trade Commission (the agency responsible for policing the Act) and the requirements for legitimate commercial emailers to avoid an enforcement action by the FTC. 28