Another challenged practice that arises by reason of Internet functionality involves the use of "meta-tags," essentially comment lines in the coding for a Web site. The meta-tags do not show up on users' screens but can be observed and "read" by Web browsers or search engines. The infringement problem arises when developers or Web site operators include the legitimate trademarks of others as meta-tags in their own sites. This surreptitious use in the Web site code means that a search for a particular company or its products will list the rogue site as a match.
This practice was found to be unlawful in Playboy Enterprises vs. Calvin, 1997 U.S. Dist. Lexis 14346 (N.D. Cal. Aug. 29, 1997) injunction granted 1997 U.S. Dist. Lexis 14345 (Sept. 8, 1997). The federal judge in California enjoined the use of the words "Playboy" and "Playmate" in meta-tags on a Web site that was not operated by Playboy Enterprises.
Whether other courts will enjoin such activities remains to be seen, but it is distinctly possible. The counter-argument allowing the use of such tags is simply that the user does not see the meta-tags and can ignore the irrelevant Web site that the allegedly infringing meta-tag brings to light.
Several bar associations were called on to render opinions on such issues as whether attorneys could have privileged communications with clients through the use of e-mail and whether attorneys' Web pages constitute unlawful "solicitation." In general, the opinions approved the use of online technology and concluded that it was acceptable for attorneys to communicate with clients through the use of e-mail. It also was generally held that the use of a Web page did not constitute unlawful solicitation because the use was not directed to any particular group of people in specific need of attorneys' services. See, for example, ISBA Advisory Opinion on Professional Conduct. (Opinion 96-10 dated May 16, 1997).
The technology field generated a flurry of legislative activity on both the state and federal levels. Significant efforts were made to deal with the many new legal issues posed by the Internet. Some of the legislation was regulatory in purpose, such as a section in the California Business and Professions Code requiring online merchants doing business with buyers located in California to disclose their legal name and address as well as provide notice of their refund and return policy. Other legislation is criminal in nature, such as in Illinois law making it punishable by up to five years in prison to solicit minors, by computer, into having sex -- an activity that is already a crime in Illinois without regard to the use of a computer.
Legislation was introduced in Maryland making it illegal to send "annoying" or "embarrassing" e-mail. Similar bills are pending in other states. Nevada prohibited unsolicited e-mail relating to the purchase of real property, goods or services unless the recipient had a pre-existing business relationship with the sender.
Texas passed a law that penalizes anyone who "prepares, sells, offers or advertises for sale, or delivers to another person an academic product when the person knows, or should reasonably have known, that a person intends to submit or use the academic product to satisfy an academic requirement." In short: Don't sell term papers!
These are but a few examples of the proliferation of state legislation involving the Internet. Regulating the Internet became "trendy" and a way for legislators to look "hip" and "with it." Unfortunately, it also showed that many of these legislators have a narrow grasp on constitutional principles and often a non-existent grasp of the relevant technology.
On the federal level, the House took up the Consumer Internet Privacy Protection Act of 1997. The bill would prohibit an