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March 31, 2005
Infomediaries--Where Are They?
I have been thinking a lot about “infomediaries.” If you’re not familiar with the term, John Hagel first described it in a 1997 Harvard Business Review article The Coming Battle for Customer Information (with Rayport) and then fleshed out his vision in the 1999 book Net Worth (with Singer).
Infomediaries interpose themselves between marketers and consumers to facilitate better marketing matches. Consumers disclose their personal preferences to an infomediary, who can then offer marketers the ability to engage in highly targeted marketing without knowing consumers' personal identities. Further, infomediaries will use their aggregated consumer demand to cut consumer-favorable deals with marketers. To make this work, consumers must completely trust that infomediaries will respect their privacy and will not become a biased shill for marketers based on which marketer pays the infomediary the most.
From an academic’s perspective, I think infomediaries would substantially improve social welfare. Consumers get what they want—relevant and trustworthy marketing without sacrificing privacy; marketers get what they want—a cost-effective source of interested consumers; and infomediaries profit by taking cuts of the deal. Society wins due to lowered transaction/search costs and fewer marketing mismatches between consumers who don’t want the marketing and marketers who cannot target granularly enough.
Compare this with our current marketing environment, where consumers lack an easy one-stop way to disclose their preferences (and many consumers refuse to do so due to privacy fears). More regulated solutions of marketing communications have high transaction costs (for marketers, and sometimes for consumers too) and a high risk of Type I and Type II errors (i.e., relevant marketing is squashed; unwanted marketing is unregulated).
Despite all of these benefits, as far as I can tell, the infomediary industry has failed to materialize. In Feb. 1999, James Glave wrote a Wired News story called The Dawn of the Infomediary listing five companies trying to enter the infomediary business: Lumeria, PrivaSeek, InterOmni, @YourCommand, and PrivacyBank. On January 24, 2005, I visited the purported websites of all five infomediaries discussed in Glave’s article. Lumeria’s site still exists but appears not to have been updated since 2000. InterOmni was acquired by Lumeria in 1999. The PrivaSeek and @yourcommand domains appear to have lapsed and been reregistered by others. InfoSpace.com bought PrivacyBank in 2000; it is unclear what happened thereafter.
In other words, it appears that all of these infomediaries are out of the business. Also gone are the group buying sites (like Mercata and Accompany) that aggregated consumer interests to negotiate better deals with merchants.
We have some more success if we broaden our definition of infomediaries further. In some industry verticals, infomediary-like businesses have emerged, like LendingTree for loans and Autobytel for cars. However, to some extent, Autobytel act like messaging services—I submit my information, a message goes to interested dealers, then the dealers spam me directly (sometimes relentlessly). Rather than protecting my privacy (whatever that means), Autobytel just ratchet up the email volume. There is still value to consumers to messaging systems, but I don’t think they rise to the infomediary level. LendingTree actually makes offers, not just referrals. However, I'm not entirely clear how these offers are ordered.
We could also try to analogize the shopbots to infomediaries. Shopbots like Shopping.com, Shopzilla and PriceGrabber have survived the dot com crash and offer some infomediary-like services, such as organizing marketing information by product and pitting merchants against each other. However, shopbots do not personalize the offers based on a consumer’s preferences or try to act as a consumer agent; instead, like some industry vertical sites, shopbots view their role as referral services (i.e., send the consumers to the merchant and get out of the way). Further, merchant listings are generally presented based on merchant willingness-to-pay, so consumers may feel like shopbots put merchant interests ahead of their own.
Why haven’t infomediaries emerged? I am struggling to answer this question. Some of the possible theories I’ve come up with:
· Infomediaries do exist but I’m not defining the term expansively enough.
· Infomediaries cannot convince consumers that they are trustworthy. In my experience, my clients would routinely start out saying that they wanted to protect their customers’ privacy, but inevitably they would, over time, look for ways to monetize their customers’ information. Further, companies usually cater to those who pay the bills; so any infomediary will inevitably be tempted to put merchants’ interests over consumers.
· Consumers’ privacy concerns are not strong enough that they need infomediaries. The empirical evidence here is sharply split. Consumers routinely say that privacy concerns inhibit their online actions, but consumer behavior routinely belies this. There are plenty of good reasons to use an infomediary beyond privacy protection, but perhaps this motivation is not as strong as Hagel predicted.
· There is no viable profitable business here (i.e., the economics simply don’t work).
· There is a market failure that prevents companies from entering the market. If we could find a market failure, would this support government intervention to sponsor the creation/operation of one or more infomediaries?
As you can see, I’m stuck. I ask for your help, and I’m opening comments on this post. (Unfortunately, to prevent comment spam, registration is required—sorry). Why do you think infomediaries have not arisen?
Posted by Eric at 10:04 AM | Adware/Spyware , E-Commerce , Internet History , Marketing , Privacy/Security | Comments (1)
March 30, 2005
Copyright Office Posts Comments Regarding Orphan Works
The Copyright Office has posted the comments it received regarding orphan works—a total of 716 comments! It will take a while for the copyright office to work through these. A number of the submissions are brief, in some cases just a story or example, but a number of the submissions are law review-esque.
The list of submissions is pretty overwhelming, so I identified some comments submitted by IP professors:
Jamie Boyle
Kenneth Crews
Tom Field
Paul Goldstein/Jane Ginsburg
Peter Jazsi
Larry Lessig
Doris Long
Larry Solum
Jennifer Urban
A few other submissions that caught my eye:
Public Knowledge (Mike Godwin)
Google
RIAA
Microsoft
An extremely cursory scan suggests that most of the comments I looked at favored doing something about the problem (as opposed to ignoring it), although the approaches did vary. Perhaps this will give the Copyright Office enough support to propose a new solution.
Posted by Eric at 11:20 AM | Copyright
March 29, 2005
Getting Paid to Drive an Ad-wrapped Car
Do you remember the dot com boom phenomenon of turning cars into mobile billboards? Some great photos here. The model was that advertisers would give drivers a new car (or pay some amount per month) to drive around in a car loudly displaying the advertiser’s branding. A few companies entered the business in 2000, including autowraps.com, buzzcar.com, freecar.com and myfreecar.com (the latter two merged).
As far as I can tell, these businesses all ended soon after they were launched. They seem one of the greatest bellweathers of the dot com madness. Competition for eyeballs was so steep that it drove prices up for all media buys. Higher prices created new marketing supply. When the boom ended and prices dropped, marketing supply shrunk accordingly, churning out marginal sources like auto wrapping.
UPDATE: See the Google Answers discussion on this topic from 2004.
Posted by Eric at 05:07 PM | Internet History , Marketing
March 28, 2005
Webloyalty.com, Inc. v. Consumer Innovations LLC
Webloyalty.com, Inc. v. Consumer Innovations LLC, 73 U.S.P.Q. 2d 1898 (D. Del. Jan. 13, 2005). The parties compete in the online club membership business, selling packages of services that combine price discounts, insurance-esque protections and other low-value services that consumers rarely use. For example, for a low monthly fee, Webloyalty offers “Reservation Rewards” containing the following services:
“An entertainment and travel protection program with benefits that include:
Up to 50% Top Attraction Discounts
Up to 50% Dining Discounts
Shopping and Service Discounts
Movie Ticket Discounts
Hotel Over-Booking Protection
Baggage Delay and Loss Protection
Travel Delay Protection
24-Hour Road & Tow Protection”
Walter Drake, a catalog/Internet retailer of widgets that you don’t need (like a brown sugar saver and cotton cooking twine), first offered its customers Webloyalty’s program but then switched to Consumer Innovations. In its offering to Walter Drake’s customers, Consumer Innovations allegedly copied the following language from Webloyalty’s “sell page”:
· “Try all the benefits for the next 30 days FREE and see how much you save! There’s no obligation to continue. If you are completely satisfied, do nothing and you’ll enjoy ongoing savings for only $_7 a month;”
· “For your convenience [service provider] will use the contact and credit or debit card information you provided to Walter Drake today for billing and benefit processing;”
· “To thank you for your purchase at Walter Drake today, click YES below to get your $10.00 Cash Back Gift ... on your next Walter Drake purchase plus sign up for all the money-saving benefits of [service provider], our ... online travel ... discounts ... program!”
Webloyalty believes this language maximizes prospective customer conversion-to-sale. Therefore, a second comer would prefer to use this language because it may be more effective at its goal (close deals) than alternative language.
On that basis alone, this seems like a difficult case for copyright. We could argue that the language is uncopyrightable, either because it lacks sufficient originality or because it is not covered per 102(b). Alternatively, this seems like a perfect case for the merger doctrine or scenes a faire, especially in light of cases like Morrisey v. Procter & Gamble Co. 379 F.2d 675 (1st Cir. 1967) (which held that sweepstakes rules could be subject to merger).
Yet, the court rebuffed Consumer Innovations’ motions for summary judgment on originality (giving deference to Webloyalty’s copyright registration) and the merger doctrine (because there are multiple ways to express promotions like this). Consumer Innovation could still win at trial or based on other doctrines like fair use, but I would have thought they could knock out the case on summary judgment.
From a policy standpoint, this case is troubling. The court has effectively allowed Webloyalty to protect its sales optimization techniques under the cloak of copyright. This shows the weakness of the court’s merger doctrine analysis. There may be multiple inferior ways to sell memberships; but by denying the merger doctrine, the court says that Webloyalty and not Consumer Innovations can use the optimized way. Should this opinion have any precedential value, this case might offer a new route for search engine optimizers to protect their HTML tricks. [tip to SEOs: the copyright registration certainly helped Webloyalty; if you want to protect your HTML code, you should get the registration before you need it]
UPDATE: In a September 26, 2005 order, CI's infringement was deemed to be willful, and CI was hit with a total dollar award (including damages, attorneys' fees and costs) of about $320,000.
Posted by Eric at 11:59 AM | Copyright , Search Engines
March 27, 2005
Boalt Conference on Spyware April 1
If you’re in the Bay Area and interested in adware/spyware, you should consider the Boalt conference on spyware on April 1 (this coming Friday). Boalt has a history of putting together superior events on emerging intersections between law and technology, and this conference looks like it will continue that tradition.
Posted by Eric at 06:59 PM | Adware/Spyware
Targeting of Television Advertising
NYT article on new technologies allowing more precise targeting of television advertising. I think this sentence captures the evolving environment: “The television commercial - a blunt instrument that often reaches as many disinterested people as desired ones - is beginning to behave like a smarter version of direct mail.”
Posted by Eric at 06:06 PM | Marketing
The Portalization of Google
What’s left to complete the portalization of Google? It seems like in the past couple of months, they have significantly expanded the number of times I see Google-sourced content at the top of the search results list. Search for “Milwaukee weather” and get the current temperature and a four day forecast. Search for “Million Dollar Baby” and get showtimes, movie reviews and even a star rating (they even remember my zip code in a cookie). Search for an address and get Google maps. Combine this with Gmail and Froogle, and is there any reason to use either Yahoo or the shopbots? For me, Google is striking at the heart of those services' value propositions.
Posted by Eric at 12:17 PM | Search Engines
Liability for Labeling Software as Spyware
Ben Edelman’s latest research describes various efforts by software vendors to curtail characterizations of their software as spyware (or a synonym). These bigfoot letters often attempt to distort the information marketplace by forcing the removal of unflattering but potentially accurate and useful information. Unfortunately, there are very few meaningful consequences (other than bad publicity) to software vendors due to sending nasty but bogus letters. For recipients of such letters, I have been able to think of only a few causes of action that could be brought against the sender:
· If the sender actually brings a lawsuit, the defendant could have rights under anti-SLAPP laws
· If the sender sends an unsupported copyright takedown notice, there could be a claim under 17 USC 512(f). [this was used in the Diebold case]
However, should a lawsuit ever be brought, recipients might have some effective defenses:
· Characterizations of software could be an opinion protected under the First Amendment (or simply not actionable under defamation law). See the Search King v. Google, 2003 WL 21464568 (W.D. Okla. May 27, 2003) (and previous unreported decision). I think this defense has particular merit because there is no standard definition of spyware (or any of the synonyms), so merely characterizing software as spyware may not be a factual statement.
· 47 USC 230 should immunize a website for any third party characterization. This safe harbor has been used to protect against liability for third party characterizations that someone is a spammer. See OptInRealBig.com v. Ironport Systems, 2004 WL 1459337 (N.D. Cal. June 25, 2004).
I’ve opened up comments (unfortunately, to avoid comment spam, registration is required) if you have any other suggested causes of action or defenses.
My previous posts on this subject:
Comments on iDownload letter (initial and follow-up)
Microsoft's characterization of a Dutch search engine as spyware (initial and follow-up)
Posted by Eric at 11:53 AM | Adware/Spyware , Derivative Liability
March 24, 2005
DoNotCall.gov
Tonight I looked through donotcall.gov, the FTC-operated website where people can register telephone numbers for the Federal do-not-call list. Two observations:
1) There is zero authentication that the person registering a phone number actually is the subscriber for that number. An email authentication process merely confirms that the registrant has a working email address (not sure what purpose this serves). Otherwise, I can freely register telephone numbers of third parties, and the telephone subscriber would not even know that I've made that choice for them. Not exactly industrial-grade authentication.
2) I could not find any discussion anywhere on the site about how to deregister a telephone number. I know that’s because no one asks to do so, but still, the FTC seems to treat registration as a one-way election--easy to get on the registry; hard to get off it. The FTC could easily provide deregistration instructions on the website, and they should do so.
Posted by Eric at 06:53 PM | Marketing
Dot EU Approved
ICANN finally approved the .eu domain. When I joined Epinions in February 2000, a board member suggested that one of my top priorities as general counsel should be to secure the epinions.eu domain. Over five years later, does anyone even care about this TLD any more?
Posted by Eric at 12:19 PM | Domain Names , Internet History
An AFP Licensee Tells His Story of Being Kicked Out of Google News
I mentioned before that content licensors in practice cannot prevent licensees from indexing the content in search engines. There are two reasons why this is true. First, content licensees may depend on search engine traffic to pay the bills, and good content is the best marketing. Second, licensees may have multiple data sources, and if only one data source blocks indexing, then the licensee must forego search engine traffic across all of the sources—in other words, the tail (one licensee) is wagging the dog (the entire website’s business).
Bob Hoffman provides a first hand account of these dynamics—explaining how he was a content licensee from AFP, got kicked out of Google News because of it, and lost his traffic. In response, Hoffman is frantically stripping out AFP from his website in a desperate attempt to get back into Google News; but even if he succeeds, he’s left paying for an AFP license that he can’t use because doing so kills his business. Not exactly the best way for AFP to earn repeat business.
Posted by Eric at 10:22 AM | Licensing/Contracts , Search Engines
Who Gets Indexed in Google News?
I still have no idea how Google decides which news sources are among the 4,500 indexed in Google News. Google News’ FAQ has the following:
“What if I don't see my favorite news source in Google News?
We're as shocked as you are! If we're missing a publisher that we should be covering, please send us your ideas. While we can't guarantee that we'll heed your recommendation, but we do promise to review all the suggestions we receive without regard to political viewpoint or ideology.” [emphasis added]
Interesting—and a little ironic, given that Google is removing the National Vanguard from Google News because, according to spokesperson Steve Landgon, "Google News does not allow hate content…If we are made aware of articles that contain hate content, we will remove them.” Exactly what are the standards for Google News' content? And how does Google's decisions to exercise editorial control over what content stays in or gets kicked out of Google News affect its potential liability in the AFP case?
At minimum, I think it’s time for Google to come clean about how it selects sources for Google News. A little transparency, please. And I continue to think that Google should open up Google News for bloggers to submit feeds, or Technorati may zip right by it.
Posted by Eric at 09:57 AM | Derivative Liability , Search Engines
Q Pasa?
Who owns the letter “Q” in connection with autos? Nissan claims it does and Audi doesn’t.
Update: Detroit Free Press story (quoting Schwimmer) [but I'm pretty sure that Apple does not own the prefix "i", so I'll chalk that up to a reporter error]
Posted by Eric at 09:28 AM | Trademark
March 23, 2005
Guilty Plea for Spimmer
Anthony Greco, allegedly the first person arrested for spim/instant message spam (but it was really just email), pleaded guilty for his deeds. Not clear exactly what crimes he was charged with—there were a number of good contenders.
Posted by Eric at 01:39 PM | Spam
"Spammers are criminals, plain and simple"
Ridiculous article in BBC lamenting that 1/3 of email users have responded to spam and 10% have bought products from spam. The article portrays this as “bad e-mail behaviour” because, as every anti-spam scaremonger is quick to assert, responding to spam guarantees that the user will be redirected to porn sites, infested with spyware, have their personal information expropriated, get zits and cause inter-galactic cataclysm.
Therefore, the article cites one analyst as saying: “People must resist their basic instincts to buy from spam mails. Spammers are criminals, plain and simple. If no-one responded to junk e-mail and didn't buy products sold in this way, then spam would be as extinct as the dinosaurs.” Most anti-spam zealots simply cannot imagine that some spam offers products and services that recipients find useful. Instead, these zealots are prepared to label recipients as idiots if they respond to spam, even if it’s relevant to their interests…which explains why the zealots would prefer to censor spam rather than letting people choose for themselves.
Posted by Eric at 12:28 PM | Spam
AFP v. Google News Update
AP story recapping AFP v. Google, quoting Zittrain and von Lohmann (among others). Contrary to some popular press reports, it appears that AFP is pressing on with the lawsuit despite Google’s redoubled efforts to kick them out of Google News.
I’ve posted my thoughts previously about the lawsuit, but after reading the complaint, some points that caught my eye:
· The complaint claims a copyright in the story “lead” in addition to headlines and photos.
· The complaint raises a copyright management information claim. Thus far, courts have been pretty unkind to those claims, so I’m not expecting this to get much traction. AFP makes an interesting argument that it includes watermarks in its photos and Google’s reduction of the photos makes the watermark illegible. While I think this argument is unprecedented, I also think it’s not going to succeed.
· The complaint does not raise a hot news claim, which is pretty surprising. Appears to be an oversight from my perspective. Perhaps AFP will amend their complaint.
While I’m a big fan of Google News and use it often, I'm not entirely clear how Google decides who is indexed at the site. Ultimately, Google may need to tighten up its standards for inclusion in Google News so that it includes only clean and trusted sites. (If it would like to include my blog, I would not object!). Meanwhile, given that Google News includes blogs haphazardly, increasingly I’m using Technorati for truly time-sensitive searches.
Finally, consider Schwimmer’s questions about how RSS changes the way we think about news headlines and distribution. (See further discussion of his perspectives here). In that regard, the Associated Press has issued a statement in favor of AFP even though AP makes its stories freely available via RSS.
Posted by Eric at 11:52 AM | Copyright , Search Engines
SPY BLOCK Act Reintroduced
Burns and Wyden have reintroduced the SPY BLOCK Act in the Senate (S 687). Initial text here. This is the Senate complement to the SPY Act in the House (HR 29).
Posted by Eric at 09:39 AM | Adware/Spyware
March 22, 2005
Utah Amends Spyware Control Act
Last week, the Utah governor signed HB 104, the amendment to Utah’s Spyware Control Act. The amendment is, in fact, a nearly complete rewrite of the prior law. I blogged on the proposed law last month, and since then further changes were made. Here’s an initial critique of the law.
Definition of Spyware
The act defines “spyware” as adware that displays trademark-triggered pop-up ads. There is no user consent exception to the definition. Software is regulated even if the user enthusiastically consents to its installation after comprehensive disclosure. As I complained last time, this law is not about protecting consumers, it’s about limiting competition.
Prohibited Acts
The law prohibits using adware to display a pop-up ad (1) contemporaneously in response to a specific trademark or URL, (2) that infringes a registered state or federal trademark, and (3) for an advertiser who is not one of six classes of permitted purchasers (including users engaged in trademark fair use).
Requirement #2 was added since my last critique, and it changes the law significantly. It removes my concern that the law creates trademark-like protection for domain names that are not registered trademarks (which, though included in the definition of a “Mark,” receive no protection under Requirement #2).
In fact, because the law requires that the plaintiff must prove trademark infringement, I'm not entirely clear what this law adds to existing trademark law. As far as I can tell, there are really only two new consequences. First, this law may create some new remedies against the infringing advertiser, such as statutory damages. Second, it codifies a cause of action against the adware vendor rather than relying on an unproven contributory trademark claim. (I should note that, like trademark law generally, the law does not create a private cause of action for affected consumers).
Nevertheless, the law still leaves open the most basic question—does triggering a pop-up ad in response to a registered trademark constitute trademark infringement in the first place? If the answer is no, then by definition this law is moot. I’m pretty surprised if the legislative patrons missed this point—they could have simply defined triggering as a per se trademark infringement. Without that definition, a court could deem triggering a trademark non-use, non-infringing, or fair use—any of which cause the plaintiff to lose both the trademark infringement and spyware control act claims.
Anti-Spyware Software
The act gives software vendors and websites a safe harbor if they clean a user’s computer of spyware if (a) they have a relationship with the user, and (b) they gives notice to the user. There has been some litigation over this very question, so Utah appears to be the first state to offer a safe haven for attack software. Given the legislative patrons for this act, it wouldn’t surprise me if Overstock.com and 1-800 Contacts start offering hard disk cleansing services for their customers (that conveniently look for certain adware from, say, Claria or WhenU).
Open Issues
· What does this law do to the pending lawsuit to enjoin the prior version of the law? WhenU won a preliminary injunction against the previous version of the act. I assume the existing lawsuit is now moot, though perhaps we will see a new challenge to this version.
· Does this law survive the dormant commerce clause? As I discussed earlier, the law contemplates that adware vendors will ask users to reveal their geography—creating the specter that users will be bombarded with pop-ups requesting geographic information as they use the web. I’m not entirely sure this structure avoids the DCC claim, however. The law puts the burden on adware vendors not otherwise doing business in Utah to ask geography, even if the adware vendor has no users in Utah. This seems to be a pretty clear extraterritorial reach by Utah, so I could see that raising a serious DCC claim.
· Will the adware vendor’s liability be preempted by 47 USC 230? 230 does not preempt IP laws, and this law may or may not be considered a trademark law. Certainly its title—attempts to control spyware—suggests that this is not an IP law, although the prima facie requirement of a trademark infringement supports a contrary conclusion. If this is not an IP law, then I think adware vendors may be able to claim that this law is preempted by 230 because it attempts to treat them as the publisher/speaker of its advertisers’ content. In fact, 230 has specifically protected a website from being liable for its advertiser’s content in Ramey v. Darkside Productions, although that case involved claims for emotional distress (and others).
Posted by Eric at 11:00 AM | Adware/Spyware , Derivative Liability , Trademark
March 21, 2005
Utah Governor Signs HB 260
Not a surprise, but today the Utah governor signed HB 260, the ridiculous Internet service provider-as-filterer law. See my earlier critique (I think there are other objectionable aspects of the bill; I tried to control myself). Anyone want to make predictions: (1) is this law unconstitutional, either under the First Amendment or the dormant commerce clause? (2) will ISPs be protected under 47 USC 230? My vote: yes to both Qs.
UPDATE: Declan's CNET News.com story.
Posted by Eric at 06:13 PM | Content Regulation , Derivative Liability
ZoomInfo and Egosurfing
Just-launched ZoomInfo aggregates web information about individuals into a single profile.
The business model is a little opaque. The website offers a subscription service for “recruiting, sales intelligence and other markets”, and the article says that "the free "people search" option aims to draw new visitors to the site and build the company's reputation, thereby boosting subscription sales."
Whatever the motivation, the consumer interface provides a convenient way to egosurf (or stalk someone else, depending on your inclinations). You can see my profile here. The site appears to have done a pretty good job distinguishing among several Eric Goldmans, although the snippets it displays are of varying quality and interest.
AP article on the tool.
Article on a defamation case brought by Mark Maughan because Google’s search result snippets were allegedly misleading.
Posted by Eric at 03:26 PM | Privacy/Security
ACLU Mini-Movie on Privacy
The ACLU has put together a humorous (?) look at the possible consequences of a National ID number and widespread data sharing. But the satire partially backfires; I actually wish that vendors offered some of the depicted services! And if it was on the menu, I would voluntarily order a sprouts submarine pizza with a side order of tofu sticks… (no joke!).
Posted by Eric at 02:23 PM | Privacy/Security
Initial Assessment of AFP v. Google
Lots of buzz about AFP's lawsuit against Google for displaying AFP's headlines and photos in Google News. Personally, I think Google News is great, and I use it often. However, we can’t let our love for Google blind us to the risks of this lawsuit. I haven’t yet seen the complaint (if anyone has a copy, please advise), but based on the news reports, here’s my top reasons why Google could lose this case:
1. Copyright is a strict liability tort. If Google commits the infringing acts, it is presumptively liable regardless of its knowledge or intent.
2. Google cannot easily avoid future infringements. The Googlebot indiscriminately collects content from the Internet. It doesn't matter if Google blocks the AFP website—it could pick up the content from one of AFP's licensees, and that would be just as infringing. We saw this in the Kelly v. Arriba case over the Ditto search engine. Ditto blocked the plaintiff's website but was unable to avoid picking up the content from plaintiff's licensees. A judge may be sympathetic to Google’s robotic collection scheme (like the judges were in the Kelly case), or a judge may be angered by the fact that AFP cannot prevent Google from continuously and repeatedly violating AFP’s rights.
An aside: Finfacts suggests that AFP could require its licensees to block the Googlebot as well. This is a logical argument, but completely impractical. I've tried to insert these clauses in contracts before, and they go over like a lead balloon. The licensee wants to get traffic to their website, and losing search traffic as a precondition of getting one (of many) data feeds is simply not smart business for most licensees.
3. Individual headlines generally are not copyrightable, but photos are. The Kelly v. Arriba case found that thumbnail versions of photos could be fair use, but I wouldn’t categorize that opinion as rock-solid. Meanwhile, headlines can be protected under a “hot news misappropriation” doctrine, and collections of headlines can be protected under copyright law.
4. Google is freely acquiring content that AFP makes available via a licensing scheme. This existing licensing scheme may undermine a fair use defense.
I’m not predicting a Google loss, but I can predict that we will see a complex and high-stakes case.
Reuters story about the case. More discussion about the case from Marty Schwimmer, Stefanie Olsen and John Battelle.
UPDATE: Thanks to Marty Schwimmer, the complaint is here.
UPDATE 2: I've added more thoughts here.
Posted by Eric at 11:38 AM | Copyright , Search Engines
March 18, 2005
Batzel v. Smith Dismissal
Politech reports that Batzel v. Smith has been dismissed for procedural reasons. See multi-page TIFF here (I had problems viewing this with my browser--if anyone has a cleaner version, please advise).
UPDATE:
Evan Brown of InternetCases.com converted the TIFF to PDF, which I have uploaded here. (Thanks Evan!)
Posted by Eric at 03:09 PM | Derivative Liability
EFF Against Trademark Dilution Act
The EFF has come out against the Trademark Dilution Revision Act.
UPDATE: The law has passed. My comments on the Trademark Dilution Revision Act of 2006 as passed.
Posted by Eric at 11:58 AM | Trademark
March 17, 2005
Eye-Tracking Studies and Mandatory Disclosures
In writing about the Eyetools eye-tracking technology, Chris Sherman says:
“In one study, for example, Eyetools inserted gibberish into E*Trade's homepage to illustrate that content in a "visual dead zone" doesn't get read and might as well not exist. Some of the "gibberish" was astonishing—phrases like "FDIC distrusts us," "No Bank Quality," and "Will Lose Value"—statements that should have caused even semi-conscious users racing to abandon the page were noticed by only 1 in 25 people!”
This seems especially problematic for any mandatory disclosure regulatory scheme. Effective disclosures require several integrated components:
· disclosures of information that consumers actually care about, as opposed to information that regulators THINK that consumers SHOULD find important
· a presentation of the disclosures in a way that it will actually register with the target audience. As this quote indicates, placement of mandatory disclosures in a user interface “dead zone” is effectively invisible to the target audience. This certainly is consistent with the overwhelming statistics that consumers don’t read EULAs or privacy policies.
So what’s the solution? I don’t think the appropriate answer is to force every possible relevant information into the consumer’s attention sphere. Doing so would only contribute to information overload and may significantly increase search costs/transaction costs. Instead, any mandatory disclosures need to be guided by UI considerations, and that means consulting UI experts (not relying on legislative intuition). It also means that we have to be selective about what information should be disclosed to everyone as opposed to made available only to those who care or left solely to market forces because it doesn’t affect anyone’s decision.
Posted by Eric at 12:49 PM | Licensing/Contracts , Marketing , Privacy/Security
March 16, 2005
Google/Viaticum, Luteciel
New ruling from the Versailles Court of Appeals in the Google/Viaticum, Luteciel case over Google France’s sale of the keywords "bourse de voyages", "bourse de vols" and "bdv" to competitors. Once again, Google France loses. The French courts continue to hammer Google for its keyword suggestion tool and for differences in its trademark policies compared to Overture and Espotting.
Posted by Eric at 02:18 PM | Search Engines , Trademark
New 47 USC 230 case--Roskowski v. Corvallis Police Officers’ Association
Roskowski v. Corvallis Police Officers’ Association, 2005 WL 555398 (D. Ore. Mar. 9, 2005). Messy disputes between the former Corvallis Chief of Police and the police officer’s association. The Association set up a website to disseminate its gripes with the chief and allowed anyone to post messages there. Unsurprisingly, some of the messages were unflattering.
The chief sued the association (and others) for the negative posts to the website under a false light/invasion of privacy claim. The association claimed 47 USC 230. The court dispatches this part of the claim fairly efficiently. The court cites Stoner and Schneider as precedent that websites are interactive computer services, and the chief used the word “publication” in her complaint, so the court applies the law to false light/invasion of privacy claims (in some sloppiness, the court references defamation here).
However, were the postings provided by “another information content provider”? This should have been an easy inquiry (there’s plenty of precedent on this point). However, the court confirms that the association wasn’t responsible for the postings because it “had no control over who posted or what was posted over the website.” Implicitly using this standard suggests that the court would have been receptive to the arguments made by the Barrett and Grace plaintiffs. Of course, some of us would take the position that the association wouldn’t be liable even if they did have “control” over the posts. See, e.g., Blumenthal v. Drudge, Ramey v. Darkside Productions.
Thanks to InternetCases.com for pointing this case out.
Posted by Eric at 01:49 PM | Derivative Liability , Publicity/Privacy Rights
March 14, 2005
NY Times on Video News Releases from the US Government
If you want another good reason not to watch TV news, read this lengthy damning indictment by the New York Times. The article describes how TV news shows often broadcast video news releases prepared by the US government without clarifying the news release’s source. The fact that TV news shows use video news releases generally doesn’t inherently bother me, but the sloppiness in how these releases are handled does bother me a lot. In the end, the only logical conclusion after reading the article (assuming we’re not being manipulated by the NY Times itself, which shouldn't be discounted) is that we can’t trust anything presented to us through TV news shows given their economic incentives and suspect editorial decisions.
Posted by Eric at 07:01 PM | Marketing
EPIC Report on Privacy Self-Regulation
Chris Hoofnagle of EPIC has written an interesting report entitled “Privacy Self Regulation: A Decade of Disappointment.” Not surprisingly, given EPIC’s general stance (and the title of the report), Hoofnagle concludes that industry self-regulation of online privacy has failed. Therefore, Hoofnagle calls for greater online privacy regulation by the FTC.
However, comments like this one from page 5 catch my attention: “Ten years later, online collection of information is more pervasive, more invasive, and just as unaccountable as ever—and increasingly, the public is anesthetized to it.”
Privacy advocates must acknowledge consumers’ general malaise in protecting their privacy (as Hoofnagle does in the report). But what explains this lackadaisical attitude? Is it because protecting privacy is too hard? Because consumers cannot accurately calculate the cost/benefit of their choices? Because consumers lack meaningful alternatives in the marketplace?
There’s another possible explanation of consumer “anesthetization” about online privacy issues. Perhaps consumers do not care about privacy as much as privacy advocates do. Many consumers have complex and possibly inconsistent attitudes towards “privacy,” often simultaneously saying they want privacy but responding to benefits available only through disclosures and other technologies or techniques that EPIC would label intrusive. How can we balance consumers’ duality?
I am becoming increasingly skeptical of the Fair Information Practices, which privacy advocates have lauded for decades. While survey evidence often shows that consumers say they like the practices, there is also some compelling social science—including, most importantly, behavioral studies—suggesting that the practices do not necessarily reflect what consumers value or care about. At minimum, I think we should be careful assuming that privacy regulations built on the Fair Information Practices truly improve social welfare. I hope to get to this topic in a future paper.
Posted by Eric at 10:51 AM | Privacy/Security
March 13, 2005
Complaint in Jewish Rock and Roll Hall of Fame TM Case
I’ve uploaded the complaint in Rock and Roll Hall of Fame and Museum Inc. v. Jewish Rock and Roll Hall of Fame Inc., Civ. No. 1:05CV0527 (N.D. Ohio filed Feb. 7, 2005). See my earlier post on this.
Posted by Eric at 01:57 PM | Trademark
Trademark Dilution Revision Act of 2005 Passes House Judiciary Committee
The Trademark Dilution Revision Act of 2005 (HR 683) has passed the House Judiciary Committee on March 9. A number of amendments were made to the bill, but the bill still remains very favorable to trademark owners. The bill still would overturn the Victoria Secret case and establish likelihood of dilution as the standard. The bill also still offers new definitions of dilution and blurring that I think are substantially more favorable to trademark plaintiffs than the current case law.
Recent amendments tinkered with the defenses, adding a proposed new defense for “Fair use of a famous mark by another person, other than as a designation of source for the person's goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.” (This would replace the current non-commercial use defense). The new defense would be a lot more helpful if we clearly understood the boundaries of trademark fair use, but I sure don’t. I am going to be speaking about TM fair use at a conference in April, and my general tenor will be that TM fair use really doesn’t exist, at least online. The cases decided on TM fair use generally should have turned on the lack of a TM use in the first instance, and plaintiffs still win plenty of cases that seem to fit the standards for TM fair use.
See my earlier post on the matter.
UPDATE: The law has passed. My comments on the Trademark Dilution Revision Act of 2006 as passed.
Posted by Eric at 12:30 PM | Trademark
Microsoft v. Zamos (and Zamos v. Microsoft)
Amusing story in the Register about David Zamos, a Kent State chemistry student, who bought a discounted educational version of Microsoft Windows XP Pro and Office XP Pro at the school bookstore. He decided he didn’t want it, tried to return it but couldn’t, so he put his copies on eBay. We all know Microsoft monitors eBay vigilantly, so it wasn’t long before Zamos heard from Microsoft asking if the disks contained the label “not for retail or OEM distribution.” It did, but Zamos argued that he wasn’t doing either.
Microsoft sued, but Zamos got the upper hand when he countersued (acting as his own attorney), alleging “Microsoft purposely established and maintained a sales and distribution system whereby rightful rejection and return of merchandise that is substantially non-conforming is either impossible or practically impossible due to the ineptness of its employees, unconscionable policies malicious intent and deceptive practices.” Ouch (and not bad drafting for a non-lawyer!). Microsoft decided it wanted to drop the case, but Zamos refused, saying he wanted to push his countersuit. He demanded an apology and a few bucks to cover his Kinko copying/printing cost. We don't know if he got that (the case settled under cloak of confidentiality), but I’m betting Zamos was happy with the outcome.
I wonder about the wisdom of Microsoft bringing a lawsuit over Zamos’ eBay sales. Perhaps Microsoft doesn’t want to set a precedent by ignoring such sales, and I’m sure they thought Zamos would cave when he got sued, but nevertheless I’m still having a tough time justifying their action on a cost/benefit basis.
This case also illustrates the challenges of software vendors like Microsoft engaging in price discrimination (cheaper software for students) in an era where resale is easy. I'm not complaining (I benefit from the discounts) but ultimately these practices may not be supportable in the eBay era. Alternatively, the more likely scenario is that software vendors will tighten up their license restrictions even further.
More details from the Akron Beacon Journal: story 1 and story 2.
(Thanks to Steve Middlebrook for calling my attention to this).
Posted by Eric at 11:39 AM | Copyright , Licensing/Contracts
March 12, 2005
What Ever Happened to DotComGuy?
I had reason to investigate what happened to DotComGuy. You may remember him as the guy who lived in his apartment during all of 2000, ordering all of his needs from the Internet and webcasting his life. In 2004, he failed to auction his trademark and domain name because the bid didn’t clear his reservation price, but claimed that he would work out some deal. I couldn’t easily find any further press reports, and I recently checked the website www.dotcomguy.com and got a 403 error. A rather fitting end to a mildly interesting publicity stunt from the dot com glory days.
Posted by Eric at 05:32 PM | Internet History
Seattle Times series on InfoSpace
The Seattle Times did a remarkable multi-part expose of InfoSpace. The series is particularly unflattering to Naveen Jain, InfoSpace’s founder and chief huckster. There’s a thin line among entrepreneurs between visionary and crook, and the Seattle Times marshals plenty of evidence to deem Jain the latter if you want.
The series also describes several common but deceptive practices of the dot com boom, especially the “lazy Susan” deals (also known as “roundtripping” deals). In a roundtrip deal, party A invests in party B but, at the same time, party B buys products/services from party A. The net effect is that money starts with party A, goes to party B, and goes right back to party A (hence, “roundtripping”). A variation of these deals would involve the parties each buying the other’s products (instead of an equity investment starting the cash moving).
Roundtripping deals are not inherently wrong, but treating them as revenue-producing absolutely can be. The first article in the series describes the great lengths that InfoSpace went through to manufacture revenues from roundtrip deals.
Reading the series, it’s impossible not to feel that the star companies of the dot com boom exhibited a certain duality. Some of the most celebrated entrepreneurs showboated for the press claiming to be a new, smarter breed of entrepreneurs ushering in a new era of business; while at the same time, they worked behind the scenes to prop up their exorbitant claims using all-too-traditional artifices.
Posted by Eric at 04:18 PM | Internet History
Copy of Marvel v. NCSoft Ruling
CE Petit has posted a copy of the court’s March 9 opinion in Marvel Enterprises v. NCSoft Corporation (CV 04-9253-RGK). The opinion is rather unremarkable—mostly it deals with motions to dismiss, so the standard for upholding the pleadings is pretty generous. The court does dismiss the contributory and vicarious trademark infringement claims on the basis that Marvel did not allege that the game users were using the character names in connection with goods and services in interstate commerce. I’m surprised Marvel couldn’t find some facts to support this pleading. Given the extensive trading of virtual world characters and items on eBay and elsewhere, I would think Marvel could find something.
Posted by Eric at 03:29 PM | Copyright , Derivative Liability , Trademark , Virtual Worlds
March 11, 2005
Ruling in Marvel v. NCSoft
NCSoft has won some favorable rulings in its lawsuit with Marvel. Marvel sued NCSoft because users could use NCSoft’s software in its City of Heroes MMORPG to generate characters that looked like Marvel characters. From the news/press reports, it appears that the judge struck the direct and contributory trademark claims but left open the direct and contributory copyright claims. I couldn’t find a copy of the ruling either in Westlaw or on the Central District of CA site. If anyone has a copy, I’d be grateful to get it.
UPDATE: See my follow up post.
Posted by Eric at 03:39 PM | Copyright , Derivative Liability , Trademark , Virtual Worlds
My Experiences with AdSense
USA Today article discussing AdSense. I’ve been using AdSense on my blog and website for the past couple of weeks. In general, I’m pretty happy with it—the AdSense ads are usually fairly relevant to my audience. In some cases, where AdSense pulls out some narrow and high-value keywords from my site, the CPCs have been incredible (over $10 per click).
However, AdSense’s keyword selection can also be a little dumb, like when it picks the keyword “blog” to characterize my sites. “Blog” as a keyword does not have especially high CPCs, it’s not a particular good term for my site, and I’d like to think that Google is smart enough to know that its keyword filter is going to pick “blog” for many blogs even if there would be better/more descriptive turns. I have not yet figured out how to get AdSense to pick other higher-value keywords to describe my site. I’m hoping Google makes an adjustment for this.
AdSense also is a little opaque about the revenue splits. I have no idea what percent of their revenues I’m getting from them. This isn’t a big issue so long as I think the compensation is fair in aggregate, but it does make me wonder.
Posted by Eric at 10:39 AM | Search Engines
FTC v. CartManager
The FTC obtained a settlement from CartManager. CartManager operates shopping cart functionality as a service for third party website customers. CartManager used personal information from the shopping carts in conflict with customers’ privacy policies presented to users.
We have seen this conundrum before (the Pharmatrak litigation comes most immediately to mind), where websites publish privacy policies that appear to bind third party service providers. This can put service providers like CartManager in a bind. First, each customer may have an individualized privacy policy, forcing the service provider to build its technology so that it can develop custom rules for each customer. Second, customers often change their privacy policies without notifying their service providers, leaving service providers exposed to any unannounced privacy policy changes. Third, service providers often want to evolve their business model, and usually that evolution takes them towards monetizing personal information they have obtained.
To deal with these problems, service providers can require customers to include specific service provider-favorable language in the customers’ privacy policies. DoubleClick has historically done this (not sure if they still do); DART customers have been required to include language in their privacy policy giving DoubleClick the right to collect information necessary to make DART work.
Website customers often resist customizing their privacy policies in response to vendor requests. This can be an administrative hassle (especially where there are several/dozens of vendors who want to include language in the privacy policy), and there’s a risk that a privacy policy modification in the future will delete or modify the required language, a problematic breach of the vendor’s contract.
An unexpected change like that appears to leave the service provider at risk of an FTC enforcement action. While I’m sure some service providers engage in egregious behavior, I also hope the FTC will be tolerant if a service provider gets screwed by customers whose privacy policies were outside of the provider’s control.
Posted by Eric at 10:21 AM | Licensing/Contracts , Marketing , Privacy/Security
March 10, 2005
Google Punishes Itself for Cloaking
See eWeek article.
My previous post.
Thanks to Slashdot for the followup.
Posted by Eric at 04:08 PM | Search Engines
Regulating Data Brokers
The recent hacks into ChoicePoint’s and Lexis’ personal information databases has led to calls for further regulation of data brokers. While I don’t want to minimize the consequences of these hacks, including the severe consequences of identity theft, limiting data sales is not the way to solve the problem. I made this point in an essay involving data mining, where I take the position that the problem occurs with bad data uses, not the underlying sales. Therefore, regulating sales limits some socially-beneficial activities that can derive from information dissemination, and merely attacks a proxy for the harm, rather than the harm itself.
I also wonder if some of the angst can be attributed to the new laws mandating consumer notices in the event of hacks into personal databases (such as California's). While I understand the spirit of the law, I also question if the notifications are helpful or harmful. I’ve never received one of those notices, but if I did, I’m not sure what I’d do with it. Should I cancel my credit cards? Should I order a credit-watching service? Should I just live in fear of some potential ominous outcome? I think we would all be tempted to react emotionally to a letter of this sort given our difficulties quantifying uncertain risk.
Posted by Eric at 02:06 PM | Privacy/Security
March 09, 2005
SPY Act Passes House Committee
The House Energy and Commerce Committee passed the SPY Act, sending it to the House floor. The article illustrates continuing definitional problems with the bill.
Posted by Eric at 04:04 PM | Adware/Spyware
iDownload's Latest Letters
iDownload backs off of its legal threats to bloggers who characterized its software as spyware. If they were going to backpedal like this, why bare their fangs in the first place?
Posted by Eric at 02:23 PM | Adware/Spyware
March 08, 2005
Google AutoLink and Copyright Law--A Fuller Explanation
There’s been a lot of discussion about Google’s AutoLink tool, including some questions about why I think it might violate copyright law. I can understand why this is confusing, particularly because the AutoLink tool raises two discrete questions. First, what is the best policy result? Second, what does the law say today? We need to answer these questions separately.
On #1, I'm in favor of technology that improves people's lives, such as by saving them search time. Therefore, I want to find a way for tools like AutoLink to exist.
On #2, I think AutoLink may create a derivative work. Google modifies the screen display by layering its own content on top of publisher content. The fact that users may ask Google to modify the screen display doesn't change the analysis.
To understand why Google is a legally significant actor, we should distinguish the following three situations: (a) Google acts on its own, (b) Google acts as an agent for the user, and (c) a user acts on his/her own. Consider the latter: if Google gave the user clip art and the user pasted the clip art on top of a work in a way that created a derivative work, then Google isn't responsible for the derivative work. In contrast, if a user asks Google to create a derivative work and Google does so, then at minimum Google created a derivative work (and maybe the user is liable as well). In my mind, this describes AutoLink.
For a precedent, consider UMG v. MP3.com, when MP3.com launched the my.mp3.com service. The service let users listen to music they already owned. But to let users do so, MP3.com committed infringing acts, and MP3.com couldn't simply claim to be the user’s agent.
My legal observations are positive, not normative. I'd be delighted to be wrong on the legal question. But we have to answer the positive question based on the law today, not as we wish it were.
UPDATE:
Steven Larson called my attention to this attempt to explain the legal issues raised by AutoLink. I can't say that the answer is the best imaginable, but it eventually raises most of the right issues.
Posted by Eric at 06:26 PM | Copyright , Search Engines
Does Google Cloak?
Threadwatch has a story alleging that Google uses cloaking. If true, this would be ironic because Google bans cloaking. However, I’d like to hear Google’s side to this story before assuming it’s true. Also, I think it’s easy to overreact to cloaking as a bad thing (but I’d urge Google to be consistent either way).
Thanks to Slashdot for the lead.
Posted by Eric at 12:31 PM | Search Engines
Student Convicted for File Downloading
Parvin Dhaliwal convicted of a state crime for downloading movies. I believe the article is correct that this is the first state prosecution, although I was able to find a couple of federal prosecutions for merely downloading items from the Internet. See the appendix in my paper on warez trading. I'm interested in the feds' decision to defer to a state prosecution; I’m not entirely convinced by the rationales articulated in the article.
UPDATE
And the feds announce more convictions for warez trading.
Posted by Eric at 12:07 PM | Copyright
March 07, 2005
FTC Enforcement Action for Deficient Security Practices
The FTC has settled a charge against Nationwide Mortgage Group, Inc., a mortgage company, for failing to comply with the security requirements under the Gramm Leach Bliley Act. FTC enforcement actions for poor security practices are relatively rare, so this case will be recycled endlessly by those lawyers who are desperate to convince their clients that poor management of security has dire legal consequences.
Posted by Eric at 06:10 PM | Privacy/Security
FTC Report on Spyware
The FTC has released a report entitled “Monitoring Software on Your PC: Spyware, Adware, and Other Software” as a follow up to its April 2004 workshop. I need to read through it, but it looks like a typical FTC response: “there’s a technology problem, consumers are screwed, so we should fix it through a combination of technology, education and enforcement.” To wit, the introduction concludes:
“The incidence of spyware can be decreased if the private sector and the government act, separately and in concert.
• Technological solutions – firewalls, anti-spyware software, and improved browsers and operating systems – can provide significant protection to consumers from the risks related to spyware.
• Industry should: (1) develop standards for defining spyware and disclosing information about it to consumers; (2) expand efforts to educate consumers about spyware risks; and (3) assist law enforcement efforts.
• Government should: (1) increase criminal and civil prosecution under existing laws of those who distribute spyware; (2) increase efforts to educate consumers about the risks of spyware; and (3) encourage technological solutions.”
Posted by Eric at 06:05 PM | Adware/Spyware
Edelman on P2P Disclosures
Ben Edelman released a report entitled “Comparison of Unwanted Software Installed by P2P Programs.” The report evidences Ben’s typical skill and thoroughness, and it’s a worthy read.
However, the report struggles with the appropriate standards for measuring a workable disclosure system. For example, he writes: “substantive disclosures are generally detailed only in license agreements presented in scroll boxes -- often squeezing thousands of words of text into small windows requiring dozens of page-downs to view in full.”
From a legal standpoint, several cases have affirmatively upheld the use of scrollboxes (the Forrest v. Verizon case comes most immediately to mind). This does not mean that scrollboxes are a good user experience—unquestionably, it is hard to read through long scrollboxes—but then again, there is no good user experience to deliver thousands (or even tens of thousands) of words of legal mumbo-jumbo. Putting these words in an uncluttered printable page will not make them any more likely to be read.
To me, this points to the real problem. The problem isn’t poor presentation of lengthy contracts, it’s a legal system that encourages or mandates lots of disclosures that consumers don’t care about. This trend towards mandating more disclosures can be seen in the regulatory efforts towards spyware, yet it’s generally predicated on assumptions about consumer interests that are not validated by social science. In other words, the more disclosures made by software manufacturers, the less likely consumers can understand and appreciate them—yet the legislators and class action lawyers are forcing manufacturers to make more disclosures.
Therefore, while Ben’s report is another great contribution by him, it would have been even better if we could have a common understanding of a disclosure process that actually facilitates consumer interests as documented by the social sciences. Without that understanding, Ben’s observations don’t point us in a helpful direction.
(FWIW, I do plan to write a lengthier article on the topic of mandatory disclosures over the summer, so I will offer more concrete suggestions then).
Posted by Eric at 12:12 PM | Adware/Spyware , Licensing/Contracts
March 06, 2005
Rivlin on eBay Fee Increases
Gary Rivlin writes a good in-depth article on the seller community’s response to eBay’s fee increases. The article articulates eBay’s rationales—eBay wanted to restore some balance in the use of certain tools, so price increases were the ways to drive sellers to use different tools. This rationale is very logical, but it was buried deep in the article and, perhaps, not well-communicated by eBay. However, this also points to perhaps eBay’s biggest challenge of all. It has to keep its seller community happy and invested, and this seller community responds viscerally and emotionally at every eBay change because those changes either eat into the sellers’ profits or make them work harder. Seller community relations is one of the trickiest but most essential pieces to eBay’s growth, and despite the noisy responses to any particular eBay initiative, eBay has a great track record on this front.
Posted by Eric at 12:01 PM | E-Commerce
March 04, 2005
Another Dumb Utah Law
The Utah Legislature is at it again. (See my critique of their efforts to regulate spyware/provide some extra bucks for a few local companies at the expense of free competition). The Utah legislature has passed another sloppy and ill-conceived law (HB 260), this time attacking the dissemination of “harmful to minors” materials. (The law is pending with the governor for signature).
The basic structure of the bill is that the Attorney General is responsible for preparing a database of sites that do not restrict minor access to material that is harmful to minors. It’s unclear if the AG is supposed to go on a witchhunt or just wait for people to call the AG’s attention to a site. Then, IAP subscribers can ask their IAPs to block their access to harmful to minor materials and any websites in the AG’s database. The IAP can comply with this request by using network-level filtering software or by giving filtering software to the consumer (the IAP can’t charge requesting consumers more for the service/software, though they can raise prices generally). I use the term “IAP,” but the law also refers to “Internet service providers,” and this could be interpreted to include websites, email service providers, etc.
What is the point of this law? Consumers can buy filtering software themselves. If Utah felt the need to go further, it could theoretically (but maybe not constitutionally) spend money to prepare a list of sites that its consumers shouldn’t deal with; and consumers could find ways to use this as a block list as well if they wanted. So why drag IAPs into the middle of this? It makes no sense for Utah to put responsibility on IAPs if each subscriber must still make an individual election with their IAP. But, from my vantage point, the law seems likely to force IAPs to implement network-wide filtering mechanisms so that IAPs block content that the state doesn’t like. (It would be too costly to do custom solutions for each subscriber). In other words, this law appears to be intended to compel IAP to block “harmful to minors” content from subscribers who would not themselves choose to block it through their own efforts.
I am having a hard time seeing how this law will survive a constitutional challenge, given the track record of state anti-Internet porn laws (which are routinely struck down as violating the First Amendment and the dormant commerce clause) and, specifically, the unconstitutional Pennsylvania law that put a filtering role on IAPs.
So the net effect of this law (if signed by the governor) seems relatively simple. A lot of time and money in constitutional litigation will be spent to restore the status quo. The Utah legislature seems completely unconcerned about that. What I don’t understand is why voters tolerate such indefensible behavior by their elected “representatives.”
See Declan’s CNET story on the law.
UPDATE: I have blogged on the Governor's signing.
Posted by Eric at 02:21 PM | Content Regulation , Derivative Liability
March 03, 2005
Google a "One-Trick Pony?"
BusinessWeek calls out Google for its “tunnel vision” obsession with search to the exclusion of other revenue-generating activities.
Posted by Eric at 05:44 PM | Search Engines
More on Anti-Phishing Act of 2005
Leahy’s Anti-Phishing Act of 2005 (S. 472) is finally online. See my earlier post. I’m still slightly troubled by the inchoate nature of the crime, but its scienter requirement (“intent to carry on any activity which would be a Federal or State crime of fraud or identity theft”) makes the law less objectionable.
Posted by Eric at 12:36 PM | E-Commerce , Spam
Cleveland State v. Oracle
Chronicle of Higher Education reports on the settlment of an interesting lawsuit by Cleveland State over a bad PeopleSoft implementation. Oracle is paying $4.25M to settle the lawsuit, while Cleveland State is still suing the systems integrator.
Posted by Eric at 12:25 PM | Licensing/Contracts
Leslie Walker on AutoLink
Good article by Leslie Walker in support of Google’s AutoLink feature as a time-saver and matter of consumer empowerment. Her lead paragraph says it all:
“Bring it on, Google. Bring us more shortcuts, one-click look-ups and Googlespeak, that strange language your engineers cook up to make it easy for us to pose queries. Do whatever it takes to save us time and tedious typing.”
See my earlier post on this topic.
UPDATE:
Marty Schwimmer has a helpful post on the topic.
Posted by Eric at 12:18 PM | Search Engines
March 02, 2005
Article on Google Technology Architecture
Good technical article on how Google handles its massive data infrastructure. The article reinforces the redundancy built into Google’s system. Imagine how hard it must be to build a system that can store the entire known web—then build a system that can store it many times over. Amazing.
Posted by Eric at 04:28 PM | Search Engines
More Amicus Briefs in MGM v. Grokster
Yesterday was the deadline for respondents’ briefs in MGM v. Grokster. So far, EFF’s website shows 18 amicus briefs filed in the case on respondents’ side, making for a total of 46 amicus briefs. I joined the brief drafted by the Samuelson Law, Technology and Public Policy Clinic at Boalt, and I came close to joining a second brief. I remain relatively confident that the sheer weight of 46 amicus briefs almost ensures that none of them will get significant consideration in the process.
Posted by Eric at 01:12 PM | Copyright , Derivative Liability
My Reactions to Seeing My Credit Report
Yesterday I got my three free credit reports from annualcreditreport.com. At my other blog, I wrote about my experiences downloading the reports. I spent last night poring through them, reliving old memories of credit cards I’ve used and abused over the years.
For the most part, the reports looked accurate. However, there were some major jaw-dropping errors. For example, my Equifax report lists my current employer as a part-time job I had as an undergraduate 17 years ago. My Experian report includes my last home phone number in California (now 3 years out of date). It makes me wonder—does anyone use this “ancillary” information? It appeared that the credit agencies aren't really trying to keep this information accurate. (It also explains why I submitted the “wrong” answers to some of their authentication questions online).
Because of these major errors and my question of how they affect a user of the credit report, I was also really interested in learning my FICO score (but I’m not willing to pay for it). I think we should be able to get our FICO score free along with the free credit reports. Getting one without the other felt a little incomplete.
Posted by Eric at 12:51 PM | Privacy/Security
March 01, 2005
Anti-Phishing Act of 2005
Sen. Leahy introduced the Anti-Phishing Act of 2005 on Feb. 28. The text is not on Thomas yet, nor is it on Leahy’s website. If you have the text, please let me know. Leahy released a statement about the bill that includes the following summary:
“The Anti-Phishing Act of 2005 would enter two new crimes into the U.S. Code. The first prohibits the creation or procurement of a website that represents itself to be that of a legitimate business, and that attempts to induce the victim to divulge personal information, with the intent to commit a crime of fraud or identity theft. The second prohibits the creation or procurement of an email that represents itself to be that of a legitimate business, and that attempts to induce the victim to divulge personal information, with the intent to commit a crime of fraud or identity theft.”
I have to see the wording of the statute, but at this level of generality, the law doesn’t sound too bad. It does criminalize inchoate activity, but the scienter requirement (“intent to commit a crime of fraud or identity theft”) limits the law’s application. I’ll blog more when I see a copy.
Washington Post story on the topic.
Posted by Eric at 05:50 PM | E-Commerce , Spam
Bill Gates, KBE
News item: Queen Elizabeth will tap Bill Gates on the shoulder with a sword. My reaction: he’ll probably enjoy that more than being hit in the face with a pie.
Posted by Eric at 01:04 PM | Internet History
Google v. Yahoo
Wired article on Yahoo’s 10 year anniversary. The article sharply points out that Yahoo seems to get lost in all of the hype about Google, and it shouldn’t. I confess that Google pervades my life: I search Google dozens of times a day (including basic search, images and the news), I use Gmail as a principal email account, I just installed the Google toolbar, my blogs are signed up to Google AdSense. I surely interact with a Google property several times per hour. So it’s easy for me to obsess about Google.
On the other hand, I still use Yahoo frequently too, including for weather, sports, Yellow Pages, maps (sometimes), etc. In other words, Yahoo remains one of my top choices for traditional media services, and usually beats Google on those fronts. The bottom line is that Yahoo is still a potent force in the Internet world, and it would be a mistake to allow ourselves to forget that.
Posted by Eric at 10:20 AM | Search Engines
Old TV Shows, Music Licensing and DVD Releases
Katie Dean writes a nice article about how the need for music licenses is inhibiting the release of classic TV shows on DVD, both because of the license fees and the sheer transaction costs of obtaining proper licenses. She also describes how DVD producers are simply replacing critical music pieces from the TV shows because it’s cheaper to replace than to license.