Special Issue for IT Law

Editors:
Haworth & Lexon is a law partnership approved by Shanghai Justice Bureau. Our firm¡¯s practice and services cover the following fields: corporation, investment, international trade, e-commerce, banking, real estate, etc. We try every effort to meet our clients¡¯ needs and concerns so that we can provide timely, efficient, high-quality services and innovative, practical legal advices. We keep a close watch on the latest news and legal reforms occurred to the relevant fields so as to ensure our clients more competitive. ¡°Haworth & Lexon Law Newsletter¡± is one of our means to serve our clients as well. If you wish to receive our newsletter in future, please don't hesitate to contact us, or log onto our website to get the electronic version. Any relevant suggestions, opinions and advices are welcomed. This issue is specially edited for IT law, we hope this issue can be the bridge between IT Enterprises and our law firm in order to serve IT Enterprises well.

Guidelines:

• The Judicial Interpretation on Applicable Laws to the Settlement of Computer Domain Names Disputes by the Supreme People¡¯s Court
  
• The Regulation on Domestic Running-Telecommunication Joint Ventures
  
• Overseas Case: MARK WILLIAMS and Another vs. AMERICA ONLINE, INC (Check Details Below)

   

Briefs:

• A University of Ottawa study of 3094 ICANN dispute resolution cases has concluded that the domain name arbitration process favors trademark owners. Research indicates: the complainants stand much higher chances to win under one panelist than under 3 panelists in the form of tribunal on job. Meanwhile, the study has found: the more case-loaded panelist on job, the more in favor of complainants.
• ICANN noted that with the development of Internet, plans to add new features and languages to web site addresses may push the domain name system beyond its capabilities.
• Global Name Registry has entered into a contract with ICANN to develop, administer and market the new name domain names. This will allow everyone to create a ¡°.name¡± digital identity with their own name. People around the world will be able to use their own name as a website address and e-mail identifier. The registry service will be operational later this year.
• Disputes on domestic domain name emerge again. ¡°3721¡± has been the pioneer for years in the field of ¡°Browsing Website Using Own Language Mode¡±. Recently CNNIC has started the similar registry service though named differently, and planed to draft standard as well. 3721 opposed strongly over CNNIC¡¯s deed, and argued that is illegitimate competition.
  
• British offshore tax havens Alderney and The Isle of Man will allow online casinos to operate on the islands. Alderney has already issued 6 new licenses since August 23rd. A commonly cited report by U.S. gambling consultancy The River City Group says the e-gaming industry will grow to a $5 billion market by 2003.
  
• China Vista sued Tom.com for copyright infringement in the Beijing No.2 Intermediate Court, claiming RMB 600,000 for compensation.
  
• SONY has dropped its lawsuit against the operator of Sydney's Paddy's Markets for the alleged sale of pirated PlayStation and the two companies have pledged to tackle PlayStation piracy together. Sony would bear the burden of identifying the pirated games and notifying Sydney Markets. The market operator would then contact the stallholder, who faced expulsion from the markets if the activity continued.
  
• The Regional Court of Muenster ruled that the general rules of contract law and standard terms also apply to online declarations, finding that an online auctioneer does not make a legally binding offer just by presenting the car on sale on his website. From the point of view of a purchaser, the description constituted no more than a mere invitation to make an offer to protect the seller from being obliged vis-¨¤-vis a great number of acceptors.

Notes:

Analyzing on The Judicial Interpretation on Applicable Laws to the Settlement of Computer Domain Names Disputes

Recently the Supreme People¡¯s Court has promulgated ¡°The Judicial Interpretation on Applicable Laws to the Settlement of Computer Domain Names Disputes¡± (¡°Interpretation¡± for short in the following texts), which becomes the latest judicial guidelines in the field of applicable law for domain names disputes settlement.

¡°Interpretation¡± provides the legal basis of hearing domain name disputes. It also regulates the registration, jurisdiction and cause of cases. ¡°Interpretation¡± also provides the detailed definition of infringement, illegitimate competition, and ill intentions.
¡­

Limitation or Unlimitation On Telecommunication Running?

China Information Industry Ministry released a notification currently. According to the notification, the telecommunication running license can be directly issued to the domestic Joint Ventures after only put on file, on condition that the telecommunication runner has at least direct control 50% of the total capital shares. If not, the Joint Venture should re-apply for the telecommunication running license as it is considered to be a new body.

MARK WILLIAMS and Another vs. AMERICA ONLINE, INC.

Mark Williams and another, who use ¡°AOL 5.0¡± Software sued world-known AOL Co. Ltd, is heard by Massachusetts Court.

In the complaint, plaintiffs allege that installation of AOL Version 5.0 (¡°AOL 5.0") caused unauthorized changes to the configuration of their computers so they could no longer access non- AOL Internet service providers, were unable to run non-AOL e-mail programs and were unable to access personal information and files. Plaintiffs¡¯ primary legal claim is that defendant¡¯s conduct constitutes unfair or deceptive acts or practices in violation of Chapter 93A.

Defendant contends plaintiffs filed this action in Massachusetts in breach of a forum selection clause in a Terms of Service agreement (the ¡°TOS¡±) and argues that Virginia is the exclusive forum for all AOL consumer suits. So the defendant put forward a motion. For the following reasons, after a hearing, AOL¡¯s motion to dismiss is DENIED:

1. Plaintiffs argue that the forum selection clause should not be enforced because their computers or the computers of others in the putative class were altered before they were offered an opportunity to agree to the TOS. Thus, plaintiffs contend, their computers would have been damaged whether or not they agreed to the forum selection clause.

2.Plaintiffs contend that the forum selection clause is unfair and unreasonable because they did not receive adequate notice of the provision and because the expense and inconvenience of litigating in Virginia would effectively prevent them from seeking redress for their relatively small damages.

3.The Judicial Panel on Multi-District Litigation (¡°the MDL Panel¡±) transferred some related cases to Florida other than Virginia. Since the case could be heard in Florida, it brings no harm if heard in Massachusetts.

4. In a forum no-convenience determination, the court should not disturb a plaintiff¡¯s choice of forum unless the balance of public and private concerns clearly weighs in defendant¡¯s favor.

Comment: The case is useful to companies in China although it was happened in the USA. When the software is being installed, the user/consumer will meet terms like ¡°service agreement¡±, ¡°terms of license¡±, such agreement will regulate jurisdiction, disclaimer, etc, however, such terms might not supported by the court. So it is very important to draft such terms and give enough notice to the user.