Special Issue for IT Law
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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.