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Defendant informed plaintiff that such activity was not permitted under the hosting agreement between the parties.
Instead of discontinuing its activities, however, plaintiff engaged a third-party to send its spam.
Finally, the Court dismissed claims advanced by plaintiff under both New Jersey's Consumer Fraud Act, N. "Although the Napster server conveys address information to establish a connection between the requesting and host users, the connection itself occurs through the Internet." The court also held that issues of fact existed as to whether Napster was entitled to any protection under the DMCA at all.
To be entitled to such protection, a service provider must meet the requirements of section 512(i) of the DMCA, which, among other things, obligates the service provider to "adopt and reasonably implement and inform subscirbers and account holders of the service provider's system or network of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers ...".
Plaintiff's refusal to comply with this new provision constituted an additional breach of the parties' agreement, and provided additional justification for the deactivation of plaintiff's website.
Federal District Court holds that the use of plaintiff's 'JR Cigars' trademark as a keyword in Go To.com's pay-for priority search engine to trigger the display of advertisements from third party competitors constitutes a "trademark use" sufficient to support trademark infringement and dilution claims under the Lanham Act. The Court held that plaintiff lacked standing to proceed under New Jersey's Consumer Fraud Act, and that the reach of the Telemarketing Act did not extend to the acts at issue in the case at bar. section 512(a) of the Digital Millennium Copyright Act ("DMCA").
Such trademark use arises out of Go To.com's acceptance of bids from JR Cigar's competitors for a linkage to plaintiff's marks, by which Go To trades on the value of those marks. The court denied Napster Inc.'s ("Napster") motion for partial summary judgment, in which motion Napster sought to limit the damages and other relief that could be awarded against it for alleged direct or contributory copyright infringement by application of the safe harbor provisions of 17 U. Section 512(a) limits a service provider's liability for copyright infringement by reason of the service provider's "transmitting, routing or providing connections for material through a system or network controlled or operated by or for the service provider ...".
Such trademark use also arises out of Go To's act of giving such advertisers priority over 'natural' search results, and thereby steering potential customers away from JR Cigar to its competitors. and the federal Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U. The court held that Napster's role in the transmission of MP3 files by and among the various users of its system was not entitled to protection under Section 512(a) because such transmission does not occur through Napster's system.
The court also held that plaintiff was unlikely to prevail on its copyright infringement claims, which arose out of the delivery of pop-up advertisements in a "window" which partially covered the 'window' in which plaintiff's site appeared on a consumer's computer screen.
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