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May 31, 2005
Trademark Adjacency Presentation
I'm giving a talk at Law & Society Association's annual meeting this Thursday in Las Vegas called "Trademark Adjacency." A preview of my slides.
Posted by Eric at 03:19 PM | Trademark
May 29, 2005
No Billboards in Space
I'm a little late blogging on this, but the FAA has proposed regulations to prohibit billboards in space. Comments are due by July 18.
Unfortunately, the news reports didn't accurately capture the issue. Congress already outlawed "obtrusive space advertising" in 49 USC 70109a, apparently in 2000, so now the FAA appears to be promulgating implementing regulations 5 years later. (Why so long?)
What's perplexing me is--what prompted this statute in the first place? It sure seems expensive to launch and maintain an orbiting billboard large enough to be seen. I don't really have a problem with space billboards being illegal, but I'm just trying to figure out if this is one of those overreactions to some crackpot vendor.
Any space/aeronautical lawyers reading this blog who can help me out?
Posted by Eric at 05:04 PM | Marketing
May 27, 2005
Campbell v General Dynamics (II)
By John Ottaviani
Eric pointed out that I neglected to mention in my post yesterday this case is actually one of the few reported "E-SIGN" decisions.
The district court had questioned whether or not an e-mail agreement to arbitrate satisfies the Federal Arbitration Act's "written provision" requirement in 9 U.S.C. Section 2. The First Circuit unequivocably found that an e-mail "properly couched" can be an appropriate method of forming an arbitration agreement. "By its plain terms, the E-Sign Act prohibits any interpretation of the FAA's "written provision" requirement that would preclude giving legal effect to an agreement solely on the basis that it was in electronic form."
In other words, General Dynamics lost because the content of its e-mail was not clear enough, not because it sent the notice out by e-mail.
Posted by John Ottaviani at 11:51 AM | Licensing/Contracts
May 26, 2005
Edelman on "Intermediaries' Role in the Spyware Mess"
Ben Edelman’s latest post discusses intermediary responsibility for adware. The post details how cash goes from advertisers to advertising representatives ("intermediaries") to adware vendors to distributors.
The Legal Liability Question
This implicates an essential question: if someone commits an illegal act somewhere in this chain, who is “responsible”? I’ve previously complained that anti-spyware critics have been opaque on this front, generally assuming that everyone in the chain as responsible for everyone else’s actions without acknowledging this assumption expressly. To Ben’s credit, he lays his cards on the table (sort of). He writes:
“Are ad intermediaries responsible when their ads are shown by installation installed improperly? Marquette law professor Eric Goldman thinks not. But the New York Attorney General's office has repeatedly suggested they might be. My take: Advertiser and intermediary liability is an interesting question of law, well beyond my aspirations for this brief piece. But where ad intermediaries purport to certify or stand behind the quality of the venues where their ads are shown, I'm not receptive to their claims that they can't do what they've promised. Where ad intermediaries merely count advertisement clicks without even claiming to assure traffic quality, the case for blaming intermediaries for improper use of their tracking links may be somewhat weaker (though still cognizable).”
I thought this paragraph helped frame the discussion. Ben freely acknowledges that this post does not address the legal liability question. But if not, then what is it about? We may understand the money trail better, but so what?
When Is Traffic “Legitimate”?
Ben says that some ad networks make “the mistaken assumption that if a user made a purchase, the traffic must have been legitimate.” For this position to make sense, we need to understand exactly what constitutes “legitimate” traffic. I believe Ben takes the position that traffic is illegitimate if it comes from an adware vendor who does not get adequate consent (based on his standards, which may or may not be consistent with legal standards). This definition deserves some careful scrutiny. The way I read it, a consumer who understands how adware works and deliberately clicks on an ad because the searcher finds it useful would still constitute “illegitimate” traffic under Ben’s definition.
Does Google Support Illegitimate Traffic?
Finally, I laughed out loud when Ben pointedly observed that Google pays websites (though AdSense) that, in turn, pay adware vendors for traffic. The joke, of course, is that Google pays AdSense websites for Google’s own traffic! Consider the following sequence of events:
Searcher conducts search at Google =>
Searcher clicks on organic search result =>
Searcher goes to website offering AdSense ads =>
Searcher clicks on AdSense ad =>
Searcher goes to AdWords advertiser’s website
The net effect is that Google pays its AdSense partner for a searcher who Google already had generated.
So why does Google pay for this traffic? Either Google is stupid and should just cut out the middleman, or the AdSense partner offers some value to Google/advertisers in the process, such as filtering or aggregating interested users. If it’s the latter, then adware-sourced traffic is just as legitimate as traffic that originates at Google. (Indeed, the traffic could be effectively identical—in both cases, sourced by the searcher-selected keyword and exposed to some filtering content that sets some expectations for the searcher). Therefore, I simply did not understand how Google is violating its stated policies. As far as I can tell, nothing about traffic to AdSense sites sourced by adware vendors runs contrary to Google’s stated positions.
Posted by Eric at 05:04 PM | Adware/Spyware , Search Engines
When In Doubt, Spell it Out --- The Hazards of Using E-Mail to Amend Contracts
By John Ottaviani
Although the First Circuit's May 23 opinion in Campbell v. General Dynamics Government Systems Corp. arises in the employment context, any company that engages in the practice of amending the terms of use, a privacy policy or other contractual relationships by means of e-mails or postings to Internet or intranet sites should take heed. The case provides a textbook example of how NOT to proceed.
After Campbell filed an ADA claim against his former employer, General Dynamics moved to dismiss on the grounds that the company's employment policy mandated arbitration of the claim. The policy was not part of the policies in effect when Campbell was hired, but was promulgated several years later. An e-mail announcement from the President of the company was sent out to the entire work force announcing the new policy, and explaining some terms of the policy. However, the e-mail made no mention of whether or how the new policy would affect an employee's right to litigate workplace disputes, or that the Policy contained an agreement to arbitrate that would become binding upon continued employment. These facts, and the text of the policy itself, could only be discovered by clicking on and reviewing several layers of linked documents.
Campbell claimed he had never seen the policy, had not agreed to it, and was not bound by it. The District Court, and the First Circuit, agreed and refused to enforce the policy. The decision clearly suggests that these type of announcements and contractual amendments may be effected electronically, and may be enforceable in the proper circumstances, but that General Dynamics did not provide sufficient notice of the contractual nature of the e-mail in this circumstance. Key problems: (1) the company could not identify any other instance in which it relied upon either an e-mail or intranet posting to introduce a contractual term that was to become a condition of continued employment; (2) the company could have easily required a response to the e-mail, either on paper or by requiring the employees to "click" a box on the computer screen, but it did not do so; and (3) the text of the e-mail did not provide fair warning that showing up for work the next day would result in a waiver of the right to litigate employment disputes, either by stating this fact directly, or even by containing any language to put the employees on inquiry notice that the communication had contractual significance.
The Electronic Contracting Practices Working Group of the American Bar Association's Cyberspace Law Committee has been following this case, and is working on developing guidelines to follow in order to modify electronic contracts the right way (in other words, so one can enforce the changes).
Just like we saw in the early "clickwrap" cases, the courts are not going to be forgiving of those who take shortcuts when it is relatively simple to do it the right way. In this case, the decision is clear that the policy might have been enforceable if the company had provided more adequate notice that the e-mail had contractual implications.
Posted by John Ottaviani at 03:40 PM | Licensing/Contracts
BitTorrent Bust and the ART Act
A few days ago the Feds busted the Elite Torrents, who were warez traders using BitTorrent. The target: sites trading the Revenge of the Sith. The timing of this makes me wonder--is the passage of the ART Act, reinforcing criminal standards for making available pre-release works, and the release of the new Star Wars movie a mere coincidence? Just like some think of the Sonny Bono Copyright Term Extension Act as the "Save Mickey" Act, maybe we'll look back at the ART Act and think of it as the "Save the Sith" Act.
Posted by Eric at 02:44 PM | Copyright
Lostclicks.com and Click Fraud
Three lawyers have launched a website called Lostclicks.com to drum up business for their click fraud legal campaigns. While these lawyers appear to be involved in the Lane's Gift and Collectibles lawsuit, the site doesn't contain the complaint--so it's a little hard to judge their legal theories. I'm anxious to see the complaint because I remain skeptical that there is a legal problem called click "fraud." Instead, despite the term "fraud" in the nomenclature, there may simply be ill-conceived ad contracts where the advertisers choose a poor metric to measure the amount that they owe. If this is the problem, then advertisers should simply negotiate a different metric or pick a price that accounts for the behavior they think is "fraudulent." But I trust the lawyers at Lostclicks.com have some good arguments to overcome the obvious contract issue--let's see them!
Posted by Eric at 01:20 PM | Search Engines
May 25, 2005
Madison on Creative Commons
Mike Madison provides a thoughtful post on why some copyright owners might resist Creative Commons.
UPDATE: John Dvorak writes a powerful critique of Creative Commons. Some of John's arguments are wrong as a matter of law, but his points are meritorious nevertheless.
Posted by Eric at 11:25 PM | Copyright , Licensing/Contracts
May 24, 2005
Compartmentalization v. Immersion in Virtual Worlds
Over the weekend, I heard an interesting presentation by Helene Michel, a business school professor from France. She described the experience with Vacheland.com, a simulation where visitors can manage a virtual farm. The project was initiated by a public agency to increase awareness of farm issues and to help address negative perceptions due to mad cow disease. The thinking was the participants' attitudes would be positively affected by their experiences managing the virtual farm.
On one level, the project is a success, with 320,000 people tending a virtual farm and an active community developing to discuss the game and figure out how to optimize participation.
However, on the more important level, the simulation failed to accomplish its goals. Many participants compartmentalized the experience, distinguishing between their virtual cow/farm and their attitudes towards real cows and farms. The paper has some great quotes explaining that participants clearly segregated the experience in their minds.
This, of course, strikes at the heart of any arguments that virtual worlds are unique/special/different because they are "immersive." In Vacheland, despite the richness of the simulation, there was no blurring of reality and fantasy. Instead, Vacheland occupied a distinct place in the participant's life. If this conclusion holds true in other simulated environments, then we will have to carefully scrutinize any arguments that virtual worlds warrant unique legal treatment because of their immersive quality.
Posted by Eric at 01:05 PM | Virtual Worlds | Comments (3)
May 21, 2005
Gates on Information Overload
Bill Gates says that future releases of Microsoft products will help address information overload.
Posted by Eric at 03:04 PM | Marketing
Stanford Online Deliberation Presentation
My notes from my talk entitled "Media Regulation and Deliberative Democracy." I'm still trying to figure out exactly what "deliberative democracy" is, but the presentation notes recap some of my thinking about the matching problem of marketing.
Posted by Eric at 02:45 PM | Marketing
May 20, 2005
Revenge of the MPAA --- First Test for the Family Entertainment and Copyright Act?
(Eric Goldman is travelling and lecturing until June 13, and will be able to post only occasionally during this time. In his absence, John Ottaviani will continue to guest-blog from time to time.)
The media has been reporting the availability of at least two copies of unauthorized Stars Wars III - Revenge of the Sith download files since at least as early as Wednesday. (I'm not going to say where, in order to keep Eric out of legal hot water). Estimates already have the number of downloads approaching 20,000. Illegal copies have also surfaced on the streets of New York and other major cities. Acording to some reports, the file quality is so good that there is speculation that the leak is from "inside" the movie industry.
Is anyone surprised? No. Assuming we are dealing with a pre-release version of the movie, this is exactly the scenario that the Family Entertainment and Copyright Act was enacted to address. I agree with Eric that the new law probably is not necessary, but we will now get a chance to see whether or not Hollywood's new tool will be effective to slow down this type of theft.
Posted by John Ottaviani at 11:39 AM | Copyright
May 19, 2005
Travel Plans and Presentations
I'll be on the West Coast for the next three weeks. During that time, I’ll be making three presentations:
Conference: Second Conference on Online Deliberation: Design, Research, and Practice / DIAC 2005 at Stanford University
Topic: Media Regulation and Deliberative Democracy (raw paper draft)
Conference: Law & Society Association Annual Meeting in Las Vegas
Topic: Trademark Adjacency (I haven’t prepared my notes yet)
Conference: International IT Law Conference at Southwestern University School of Law in Los Angeles
Topic: 47 USC 230 (I’ll post a detailed handout on 47 USC 230 cases when I get back)
During my travels, I will have spotty access to the Internet, so I won’t be blogging at the normal level (I’ll blog when I can). In my absence, John Ottaviani will continue to guest-blog, so look forward to more good posts from him.
I’ll be back in Milwaukee June 13, so my blogging should return to normal then.
Posted by Eric at 11:26 AM | General
New Gripe Site Case--Faegre & Benson v. Purdy
Faegre & Benson v. Purdy, Civil File No. 03-6472 (D. Minn. Apr. 27, 2005).
Another ruling in the long-running story of William Purdy, an anti-abortionist who uses extreme forms of gripe sites against his targets. This particular ruling was a motion to hold Purdy in contempt for violating previous orders against him. Normally, contempt rulings aren’t that substantive, but this particular ruling had a number of noteworthy aspects.
Purdy used the law firm’s name in the keyword metatags of a gripe site. He also used the firm’s description metatag as the gripe site’s description metatag (called “pagejacking,” though the term wasn't used by the court). The court says:
“Purdy cannot be entirely barred from using Faegre’s trademarks in his metatags….he may legitimately use Faegre’s trademarks in his metatags in order to refer to Faegre and to describe the contents of his website.”
So far, so good. Now, the opinion gets weird. It says:
“Purdy can legally use Faegre’s marks in his metatags in the descriptive sense, particularly if he employs a disclaimer on his web pages; however, he is not permitted to use Faegre’s marks in his metatags in order to divert Internet users from Faegre’s web site.”
OK, what’s the difference? Purdy can advertise his site as having some topical relationship to Faegre & Benson, and he can even do so “surreptitiously” in the metatags. However, Purdy can’t divert Internet users from the Faegre site? When is a searcher diverted vs. just pursuing a topic of interest?
The court refers to Purdy's pagejacking as the diversion. This is fine, but is this appropriately treated as a trademark infringement issue? A number of commentators (including me) have argued that pagejacking, if actionable at all, should be considered under false advertising, not trademark infringement. The court here lazily deals with it under trademark law, which weakens our ability to understand the court’s reasoning.
Purdy also registered hindrocket.com as part of an attack on John Hinderaker, who blogs under the pseudonym “hindrocket.” The court does not like this (in light of the previous orders), even though Purdy used various disclaimers. The court says:
“Although Purdy’s disclaimers may alleviate confusion once an Internet user has reached the content of the web site, by employing “hindrocket.com” as his domain name, Purdy appropriated Hinderaker’s name for his own purposes and benefit—to mislead Internet users into visiting Purdy’s web site when they are actually seeking Hinderaker’s web site. Even if an Internet user eventually realizes that Purdy’s site is not sponsored by Hinderaker, Purdy will have already gained the benefit of luring the user to his web site by exploiting Hinderaker’s name.”
This is a confusing paragraph for a number of reasons. First, the court is protecting Hinderaker's pseudonym under an “appropriation” tort, defined as when someone “appropriates to his own use or benefit the name or likeness of another…for the purpose of taking advantage of that individual’s name, or reputation.” This is an odd doctrine—it’s not a classic right of publicity (which, normally, would require some commercial use of the name) nor a classic right of privacy. Thus, the court is able to find that Purdy engaged in “appropriation” despite the lack of any commercial activity.
Second, the court is treating the appropriation as having occurred through a form of “initial interest confusion” (though the court doesn’t use the words). We’ve seen this in other cases, such as PETA v. Doughney. However, I can’t recall seeing the doctrine applied in a right of publicity case (and certainly never in an “appropriation” case).
But why didn’t the court refer to the Ninth Circuit Bosley case, where the Ninth Circuit reached a different result in the case of a gripe site registering a domain name? The Bosley case was under the Lanham Act, not this funky appropriation doctrine, so that may have made a difference. Further, the court doesn’t care if the gripe site is non-commercial because the appropriation tort doesn’t require commerciality.
Nevertheless, the initial interest confusion doctrine (whether applied in the context of the Lanham Act or in some other tort doctrine) is a mess, and this case shows why. (1) How do we know what someone is looking for when they enter the term “hindrocket.com”? (2) The material at hindrocket.com was topical to John Hinderaker, so why can’t Purdy register that domain to present topical content? (3) Anyone who didn’t want to be there would have immediately recognized the errors of their ways and could leave instantly, so what harm was done?
(Note that there are some laws protecting the use of third party personal names as domain names, such as 15 USC 1129 and California Business & Professions Code 17525. None of these laws were invoked.)
Finally, the plaintiffs claimed that Purdy was responsible for anti-Hinderaker comments posted on a message board attached to his website. The court shuts down these claims under 47 USC 230, saying Purdy isn't liable for either defamation or “appropriation” based on third party message boards. Although I think this is the right result, the appropriation claim being shut down by 47 USC 230 is particularly interesting because 230 does not apply to “IP claims.” Compare the Perfect 10 v. CCBill case, where the court held that a “right of publicity” claim was not covered by 47 USC 230 because it was an IP claim.
It's hard to be sympathetic to Purdy's situation because he engages in such extreme tactics to make his point. On that front, I think the judge did an admirable job balancing competing policy norms and not just trashing Purdy. On the other hand, this ruling could have some important implications for both gripe sites and search behavior generally, and a little more rigor would have been nice.
Posted by Eric at 10:39 AM | Derivative Liability , Domain Names , Search Engines , Trademark
May 18, 2005
New Lawsuit Over Blogging--Steinbuch v. Cutler
Steinbuch v. Cutler (D.C. D.C. complaint filed May 18, 2005). Interesting and risqué lawsuit for invasion of privacy and intentional infliction of emotional distress (warning: the complaint is not 100% office-safe). Jessica Cutler ran a blog under the name “Washingtonienne.” In the blog, she provided very specific details about her simultaneous sexual relationships with six different men. In particular, she identified the plaintiff by his initials “RS,” although one time she also referred to “Rob.” She also provided lots of specific details about each person and made a number of disclosures of very personal facts about RS.
Some observations about the lawsuit:
* This is not the first blog-related lawsuit, but as an early case, it has the potential to reinforce that blogs are just another publication medium that can create legal liability.
* The fact that she attempted to blog using pseudonyms may not save her from legal liability. This has direct implications for anyone who thinks it’s a good idea to blog about work situations by revealing details selectively (hint to summer associates tempted to blog about their firms—this means you!).
* This case has all the marks of a messy and titillating lawsuit, so I’m sure we’ll hear a lot more about it because it combines new technological issues with age-old voyeuristic interests in sex.
(Thanks to Daniel Solove at Prawfsblawg for the tip)
Posted by Eric at 11:02 AM | Publicity/Privacy Rights
May 17, 2005
FTC Commissioner: "Somebody has got to pay"
FTC Commissioner Orson Swindle goes off about corporate data security practices. Internet News quotes him as saying “industry has, to a great extent, been irresponsible, and somebody has got to pay.” The article also quotes him as saying the lax data security practices are “being driven in part by those general counsels who sit around and say, 'Be careful about what you promise in privacy and information security because you might get sued for it.'”
This is complete BS. In-house lawyers are paranoid about being sued for lax data security practices, a fear exacerbated by outside counsel using scare tactics to drum up business. So the (lack of) promises in corporate agreements reflects the fear of being sued, but I would be shocked if in-house counsel kick up their heels on their desks and think “I’ve drafted a tight agreement, my work is done.”
Entrust’s CEO offers a solution: a safe harbor from liability if a company complies with good housekeeping practices. Of course, Entrust’s self-interested solution is that companies should use encryption to get the safe harbor. However, I don’t know how legislators can mandate the minimum standards for data security; security practices are fluid and context-specific.
Admittedly, without any liability, there is the theoretical risk of corporate sandbagging, but my guess is that this is not anywhere close to the problem. The problem is that good security is HARD—it’s an ongoing effort, with weak links both in the technological interactions between different vendors’ products and in the humans in charge of maintaining security. If we accept that security is hard, doesn’t that seem like a more likely explanation for “lax” security practices than GC indifference?
Posted by Eric at 05:33 PM | Privacy/Security
New Ruling From Judge Patel in Napster Investor Suit
By John Ottaviani
There's been some discussion and misconceptions about Judge Patel's latest ruling in the long-running Napster saga. Although her May 11 order has been described as holding that the Section 106(3) distribution right does not extend to maintaining an index of downloadable files, a reading of the order reveals that it is far less noteworthy.
By way of background, it appears that the Napster investors (I'll refer to all of the defendants simply as Napster) have filed a motion for summary judgment on a number of grounds. One of these is that it is not an infringement of the Section 106(3) distribution right to merely maintain an index of downloadable files. The plaintiffs (I'll refer to all of them simply as the Record Companies) filed a memorandum/brief arguing why Napster is not entitled to summary judgment. One of the arguments in that brief is that Section 106(3) does prohibit maintaining an index of downloadable files.
After Congress passed the Artists' Rights and Theft Prevention Act of 2005 in April, the Record Companies filed another motion, requesting permission to file a supplemental brief. In this supplemental brief, the Record Companies argue that the ART Act language supports their argument that maintaining the index of downloadable files does infringe the distribution right under Section 106(3).
I read Judge Patel's 5/11 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner's distribution right.
The issue is far from settled. In its 1997 Hotaling decision, the U.S. Court of Appeals for the Fourth Circuit found that the Church of Jesus Christ of Latter-Day Saints had infringed a geneology book by placing an unauthorized copy in its collection, including the copy in its catalog, and making the copy available to the public. While I may agree that the conduct should violate something, the decision has never convinced me that the conduct violates the Section 106(3) distribution right, based simply on a plain reading of the statute. Judge Patel's decision on the merits, when it is issued, hopefully will provide us with more learning on the subject.
Eric's previous commentary on the ART Act.
Posted by John Ottaviani at 02:54 PM | Copyright
Keeping Vermont Safe from Dangerous Billboards
This one made me laugh. It’s illegal to drive without a seat belt in Vermont. Billboards are also illegal in Vermont. So when the Vermont Highway Safety Program wanted to remind people to buckle up, they bought billboards in Massachusetts and New Hampshire (one 70 miles from the state border). Talk about targeting your audience!
Posted by Eric at 11:29 AM | Marketing
May 16, 2005
BNA on Mandatory Disclosure Laws
BNA (registration required) runs an article recapping state-level activity on mandatory security breach notification laws. Seven states (Arkansas, California, Georgia, Indiana, Montana, North Dakota, and Washington) have adopted laws, and Florida is expected to join this list soon. The laws are not intrinsically inconsistent but each has their own nuances, increasing the regulatory costs for any affected organization. It seems likely to me that the state laws will continue to proliferate until Congress preempts the field with its own mandatory disclosure law.
However, I remain curious whether these mandatory disclosure laws are good social policy. We now have some data on the California experience (plus the follow-on disclosures made voluntarily by companies). Have these disclosures made consumers better off? I’ve argued before that these laws may actually hurt consumers by increasing their level of distress without giving the consumers any ability to address the situation. Meanwhile, due to the press attention given to each notification, the mandatory disclosure laws have led to increased calls for new substantive data protection/security laws--for better or worse.
Posted by Eric at 01:17 PM | Privacy/Security
Supreme Court on Interstate Shipment of Wine--Granholm v. Heald
Granholm v. Heald, 544 U.S. __ (May 16, 2005). The US Supreme Court, in a 5-4 vote, has declared that states cannot discriminate between out-of-state wineries and in-state wineries in allowing direct-to-consumer sales. Such discrimination violates the dormant commerce clause. As the court says:
“The current patchwork of laws—with some States banning direct shipments altogether, others doing so only for out-of-state wines, and still others requiring reciprocity—is essentially the product of an ongoing, low-level trade war.”
Meanwhile, after an extensive historical and precedent review, the majority concluded that the discriminatory treatment is not saved by the general authorization of powers in the 21st amendment.
As a result, statutory schemes that required out-of-state wineries to sell through a three-tier distribution scheme (winery -> distributor -> retailer) but permitted in-state wineries to sell direct-to-consumer are unconstitutional. This appears to affect about half of the states.
While this is an entirely sensible result, the net effect is less clear. The court gives states the following options:
“A State which chooses to ban the sale and consumption of alcohol altogether could bar its importation; and, as our history shows, it would have to do so to make its laws effective. States may also assume direct control of liquor distribution through state-run outlets or funnel sales through the three-tier system.”
In addition, the court says that states can require permits as a condition of direct shipping, which can act as a way for the state to get taxing authority over out-of-state wineries.
So, the question is, which way will states go? Though they can no longer offer protectionist measures for their in-state wineries, will they go in the direction of erecting other barriers, such as requiring the use of three-tier distribution for everyone, or imposing onerous taxes on everyone? Or will this case finally cause the elimination of the regulatory barriers to the free interstate movement of alcohol, allowing unrestricted sale of alcohol over the Internet? Only time will tell, but I’m hoping we can move in the direction of improving consumer welfare rather than expanding an unnecessary and industry-protectionist bureaucracy.
Meanwhile, because of the differential treatment of in-state and out-of-state wineries and the funky language of the 21st amendment, unfortunately this case does not offer us deeper insights into the dormant commerce clause's application to the Internet. That will have to wait for another case.
UPDATE: Declan's story.
Posted by Eric at 12:14 PM | Content Regulation , E-Commerce
Racine Man Plans to Fight RIAA
The Milwaukee Journal-Sentinel reports on Dave Bink, a Racine dad who was sued by the RIAA because of KaZaA downloads made by his 13 year old daughter. He has decided to fight the lawsuit in court because (a) his daughter did the downloading, and (b) KaZaA advertised itself as “100% legal.”
He makes the following prediction about his lawsuit: “I'll probably get chewed up and spit out.” Yes, sadly, he will. Copyright infringement is strict liability, and he is vicariously liable for his daughter’s actions.
For a demonstration of what happens when a file-sharing case gets in front of a judge, see BMG Music v. Gonzalez, 2005 WL 106592 (N.D. Ill. Jan 7, 2005). It’s not pretty. It only takes the judge one page to shred the defendant’s arguments about fair use and innocent infringement. There’s really not much to discuss.
As painful as it might be, Bink would be better off working out a deal with the RIAA than taking his arguments to court where, as the article indicates, the minimum statutory damages for 600 acts of infringement would be $450,000 (unless the judge is willing to entertain an innocent infringement defense, which would bump the statutory minimum down to “only” $120,000).
We are increasingly hearing stories of significant personal harm from people caught in the RIAA dragnet. This is not to excuse their infringing behavior, but we should not ignore these collateral consequences either.
UPDATE: John Ottaviani pointed out to me that Bink might have legal recourse (such as false advertising or misrepresentation) against KaZaA for making the "100% legal" claim. I'm not sure if this situation will meet the specific elements of such a claim, but John and I both agree that we would never advise a client to use the tagline "100% legal"!
Posted by Eric at 10:51 AM | Copyright | Comments (3)
May 13, 2005
Orphan Works Comments, Round 2
After the first 716 comments on orphan works, you’d think the Copyright Office would have had enough. Instead, they allowed the filing of “responses” to the initial 716 comment salvo and got another 145 comments. Whew! That’s a lot of reading. I wonder if the sheer volume alone, plus some of the sniping in the responses, is enough to destroy any sense of consensus that would grease the way for the Copyright Office to take a firm stand.
Posted by Eric at 03:33 PM | Copyright
Yahoo Sued for Allowing Child Porn Operators to Use Site Tools
Yahoo has been sued for allowing child pornographers to communicate with each other using hosting and messaging services from Yahoo Groups.
Prediction: Yahoo will win this case on a motion to dismiss based on 47 USC 230. Why? There is simply no way for the plaintiffs to state facts here that avoid the 230 preemption. We have already seen 230 preempt a civil claim related to child pornography. See Doe v. AOL. Attempts to plead the cause of action as negligence to get around 230 have routinely failed. See, e.g., Doe, Zeran.
On that front, John Morris of CDT is quoted as saying “Unless the plaintiff has very concrete proof that Yahoo knew that this group contained child pornography, it's very likely that Yahoo will not be liable.” This is simply incorrect. 230 should apply regardless of Yahoo’s scienter because knowledge would only reinforce that Yahoo made a protected editorial decision; see, e.g., Zeran. The very limited number of contrary cases (such as the Barrett case) would apply a negligence standard, so even then “concrete proof” of knowledge would not be required.
UPDATE: In a related development, AP reports that Yahoo is shutting down some chat rooms and putatively limiting kids' access to others.
Posted by Eric at 12:55 PM | Derivative Liability
May 12, 2005
Internet Explorer Market Share Dips Below 90%
Microsoft’s share of the browser market has dipped below 90%. On my blogs, the numbers are even less favorable for Microsoft. Consider my blog stats in the month of May (so far):
“Unknown” 50.9 % (I believe this includes RSS readers and robots)
Internet Explorer 26.3 %
Firefox 10.9 %
Mozilla 6 %
Konqueror 2.2 %
Opera 0.8 %
Safari 0.8 %
Netscape 0.8 %
NetNewsWire 0.7 %
Lynx 0.1 %
In other words, excluding the unknown traffic, IE accounts for only 53.6% of my hits. Admittedly I skew towards a tech audience, but these stats certainly suggest that IE’s lock on the browser marketplace is experiencing significant pressure.
Posted by Eric at 03:06 PM | General , Internet History
Sen. Allen Introduces New Anti-Spyware Legislation
Sen. Allen promised to introduce an anti-spyware law about a month ago, but Internet News is reporting that he introduced a bill yesterday. A copy is not yet on Thomas or on Sen. Allen’s website. The article suggests that Allen is focusing on funding enforcement efforts and increasing the civil and criminal penalties for fraudulent spyware. Other than the fact that increased sanctions will likely have no effect on behavior, this approach seems more promising than the Spy Act (HR 29).
Posted by Eric at 11:45 AM | Adware/Spyware
Patent Act of 2005 Proposed Draft
The "Committee print" version of the proposal is available here. Prior comments here.
Posted by Eric at 10:53 AM | Patents
Copyright Office RSS Feeds
The Copyright Office has launched four RSS feeds. I’ve been an email subscriber of NewsNet for a while, but I think the other feeds provide us with new ways to monitor the Copyright Office's activities. Kudos to the Copyright Office for making this resource available; ultimately, I hope every government agency does the same.
(Thanks to Steve Nelson for the pointer).
Posted by Eric at 10:42 AM | Copyright
Schwartz on Adware Advertisers
Ari Schwartz comes out swinging against adware advertisers, saying “Advertisers, too, should be pushed to take greater responsibility for the companies they advertise with.” His remarks raise a number of questions, including:
1) Is there something unique about the adware industry, or should we make advertisers liable across-the-board for the actions of ad-sponsored media? i.e., Newspaper runs a defamatory article?--hold the advertisers liable.
2) If we want to follow the money, why limit liability to advertisers? Shouldn’t we hold investors liable for investing in adware companies? For that matter, shouldn't we nail all of the service providers to adware vendors too? If the power company shut down the electricity to adware vendors, they would go out of business!
3) Is it possible that some social value is created through the chain of adware relationships?
The witchhunt continues….
Posted by Eric at 10:06 AM | Adware/Spyware , Derivative Liability
May 11, 2005
New Initial Interest Confusion Case in Sixth Circuit
Stilson & Associates v. Stilson Consulting Group, 2005 Fed. App. 0363N (6th Cir. May 6, 2005). Alden Stilson founded a civil engineering firm in the 1940s called “Alden Stilson & Associates.” By the 1980s, the name devolved to "Stilson & Associates." In the 1980s, that firm is acquired by DLZ but remains a subsidiary; in 1995, DLZ merges the subsidiary into a new entity called “Dodson-Stilson.” Finally, in 2000, another merger results in the name “DLZ Ohio.”
In 2000, Alden’s grandson William launches “Stilson Consulting Group” and directly competes with DLZ Ohio. A lawsuit follows.
On the abandonment question, the judge finds for the plaintiffs because the defense did not carry its burden. The Sixth Circuit says the factual resolution by the district court was not clearly erroneous.
Moving on to the likelihood of confusion analysis, the district court relied heavily on a finding of “likelihood of initial interest confusion.” I always find this standard interesting because:
(a) we don’t understand the initial interest confusion doctrine generally
(b) I am not aware of a single court case explaining the doctrinal difference between “likelihood of” initial interest confusion vs. garden-variety “initial interest confusion”
(c) a surprisingly small number of courts have used the likelihood of initial interest confusion standard, and almost never do those courts acknowledge any possible differences between initial interest confusion and the “likelihood of” or that the “likelihood of” standard is neither well-accepted nor extensively used, and
(d) defendants can almost never win when the standard is likelihood of initial interest confusion, because that standard takes an amorphous doctrine and extends it even earlier into the search process.
Here, the similarity of the names and the direct competition between the parties predominated the district court's multi-factor test, and not surprisingly, the defense lost. Again, the Sixth Circuit does not disturb the district court's factual findings because they were not clearly erroneous.
This cases leaves open some pretty obvious questions, such as:
* under what circumstances could this defendant offer engineering services under his own name?
* what result if the defendant had waited a few years with the name?
* what evidence can a defendant marshal against a “likelihood of initial interest confusion” test?
* has the Sixth Circuit officially adopted the "likelihood of initial interest confusion" standard? (or will it flip-flop on this point, like the Ninth Circuit has repeatedly done?)
Posted by Eric at 10:40 AM | Trademark
MacMillan on RSS
Robert MacMillan at the Washington Post wrote a very good column on the joys and limitations of RSS, harping on the fact that it’s not as simple as it should be (I agree). RSS is one of those technologies where you don’t realize how much you need it until you try it. I now have over 40 blogs and websites in my RSS reader, and I can check all of those sites instantly with a single click of a button. There’s simply no way I would be able to keep up with these sites otherwise. And for sites that don’t have an RSS reader, well, either I’m not reading you at all or you are at a high risk of being dropped from my daily routine.
I use SharpReader as my RSS reader. SharpReader is pretty good—I haven’t had any bugs, and the user interface is acceptable (not great, not bad). The big downside is that it doesn’t check my RSSed sites when I’m out of the office, and that usually means that I will miss some postings from some websites (especially high-volume sites like News.com and Slashdot). Hey, News.com and Slashdot—your RSS feeds should not drop articles so quickly! An RSS website like Bloglines would solve my travel problem as well, but I haven’t made that switch.
For any of my readers not using RSS, you should really get onto the RSS system. [Alternatively, if you're not ready to make the leap, I can add you to an email list to be notified when I post new items (unlike RSS, this is not self-service; I have to add you manually).] You will love RSS because it will save you the time of having to check each website manually. However, on balance, it will probably cost you time as you significantly increase the scope of material you monitor!
Posted by Eric at 09:21 AM | General
May 09, 2005
Economist on the Long Tail
Good article from the Economist explaining the Long Tail in a basic and understandable way. The article even addresses the thorny organizational/marketing problem implicit in the Long Tail.
(Thanks to the Long Tail blog for the pointer).
Posted by Eric at 07:00 PM | E-Commerce
LA Times on Adware Advertisers--Including 1800 Contacts?
The LA Times reports on brand name advertisers found advertising on adware, including Mercedes-Benz and Travelocity.com. As is typical in these situations, the brand names disavow any connection with the adware advertsing as soon as the press contacts them. This may be true--as discussed in detail in the article, third parties may be fully responsible for the behavior--but it's hard not to speculate that some of these advertisers actually meant to advertise on adware because it works.
The article also demonstrates just how hard it is for brand owners to manage affiliate marketing. In an ironic twist, 1800 Contacts, one of the most cutthroat users of the legislative and litigation process to stifle legitimate competition by preventing adware-spawned ads from appearing in connection with its site, apparently has paid an affiliate marketer for activity generated from adware/spyware distributed through a drive-by-download. The LA Times reports the following:
"Schmidt [a rep for 1800 Contacts] recently bought tools to check into his company's biggest online referral claims and threw out a third of the commissions as improperly earned. The worst offender, he said, was a "drive-by download" that installed spyware without asking and then claimed credit when infected users went to the 1-800 Contacts website on their own."
If a company as brand-sensitive as 1800 Contacts can't run a clean affiliate program, who can?
Posted by Eric at 06:31 PM | Adware/Spyware
Nielsen on Searcher Mental Models
Jakob Nielsen ran a column describing user expectations about “search”—it should have a box, a search button, and a separate search results page where results are linear and prioritized. He says that user mental associations have become so strong that “the label search equals keyword searching, not other types of search.” His arguments suggest that new innovative ways of presenting search results, like clustered results, have a long uphill battle to retrain searchers.
Posted by Eric at 12:59 PM | Search Engines
May 06, 2005
Will Spitzer Go After the Adware Industry?
In the wake of Spitzer’s action against Intermix, I’ve been seeing lots of speculation that Spitzer’s office will go after other companies as well, given Spitzer’s reputation for pursuing an entire industry. See CBS Marketwatch (registration required); Riva Richmond of Dow Jones Newswire also ran an article yesterday. In Richmond's article, she says “Among the companies that experts say could come under scrutiny for distributing similar programs are Ask Jeeves Inc. (ASKJ), FindWhat.com Inc. (FWHT) and CNET Networks Inc. (CNET). Fallout could also extend to search-ad providers like Yahoo Inc. (YHOO), which have benefited indirectly from some of these programs.”
On the one hand, this speculation could be helpful if it helps clarify when an vendor is liable for the actions of its distributors—a point that is an untested and generally novel point of law. The anti-spyware zealots have successfully obfuscated this issue by castigating distributors and vendors equally, without even acknowledging that the law may treat them separately. Perhaps through sheer repetition, this meme is gaining traction. We could use some additional authority to enlighten, and perhaps eliminate, this meme.
On the other hand, I have an uncomfortable feeling that this is turning into a witchhunt, where otherwise-rational people make poor “guilty until proven innocent” assumptions that result in a wake of dead bodies. The zealots may get some schadenfraude, but a lot of people get hurt and society ends up worse off. There’s a certain tyranny implicit in every witchhunt; we need to vigilantly resist them accordingly.
UPDATE: AP quotes Spitzer's office threatening the entire industry.
Posted by Eric at 01:44 PM | Adware/Spyware | Comments (1)
May 05, 2005
Does AskJeeves Have a Spyware/Adware Problem? Diller Says No. I Say...
Ben Edelman leveled two charges at AskJeeves on Monday. First, Ben asserts that AskJeeves targets kids for toolbar downloads. Second, Ben asserts that an AskJeeves distributor exploits security holes to install the toolbar without consent. This follows on the heels of Spitzer’s action against Intermix.
Yesterday in the InterActiveCorp Earnings Conference Call, an analyst asked the following question: “I was curious about whether the Spitzer or how you saw the Spitzer probe on spyware affecting generally search or maybe profitability in search.” Diller responded:
“As far as the issues on spyware and ad ware that have recently been raised, to the attorney general has dove into, we are confident that askjeeves doesn't have an issue with either spyware or adware, full stop. It is an issue, obviously, but it is not our issue. And that's that. Next question, please?”
Certainly nothing equivocal about that! But is Diller right or wrong? Let me explain both perspectives.
Why Diller is Right
AskJeeves has a toolbar that provides some minor benefits to users. I have not seen an assertion, by Ben or otherwise, that the toolbar constitutes either spyware or adware. So on that basis alone, Diller is technically correct.
However, the toolbar is distributed using the “bundling” method, where it is combined with some other application that acts as the “carrot” to get the user to download the bundle. Again, there is nothing inherently wrong or illegal about bundling. For example, when a person buys a computer, the pricing often includes a bunch of software that will be pre-installed before the user takes possession of the computer. Bundling? Yes. Harmful? No; in fact, usually, just the opposite.
Let’s assume that Ben is correct that some distributors distribute the AskJeeves toolbar in a bundle using security exploits that bypass user consent. Let’s further assume that loading software onto a computer using those exploits violates the law. (Probably a fair assumption, but this is not necessarily a simple analysis).
At the moment, there is no legal doctrine that automatically makes AskJeeves liable for its distributors’ actions. Assuming the distributor is a separate legal entity, the basic (and venerable) legal rule is that one corporation is not liable for another corporation’s actions.
There are, of course, many exceptions to this rule. For example, if the distributor is the legal “agent” of AskJeeves, then AskJeeves will be automatically (“vicariously”) liable for the distributor’s actions. But legal agency requires a significant legal interrelationship between the companies. I would be extremely surprised if AskJeeves has an “agency” relationship with its distributors (this is far from the norm). There are other theories beyond agency where AskJeeves would have the liability, but my point remains—such liability is the exception, not the rule; we would need to find the requisite facts to establish that liability; and those facts would normally contemplate a relationship far more involved than a standard manufacturer/distributor relationship.
Thus, if Diller was trying to say that AskJeeves is not legally responsible for its distributors’ actions, he is probably correct.
Why Diller is Wrong
Anti-spyware zealots have a rather unsophisticated but nevertheless understandable view of the world: software vendors are guilty by their association with shady distributors. Thus, the zealots hold the vendors “responsible” for the distributors’ actions—regardless of what the law says, the level of control the vendor actually had over the vendor, or any other facts that would be germane.
We do see this type of “guilt by association” in some contexts. For example, with franchises, our view of the franchise’s brand is affected by the behavior of any individual franchisee. Have a lousy Big Mac? You might think less of the entire McDonalds’ franchise in a way that reduces your future desire for visiting other McDonalds—even if the lousy experience was attributable to idiosyncratic problems with one individual franchisee. So as a matter of “business reality,” software vendors may very well take the branding hit for what their distributors do.
There may also be legal consequences. Although the software-vendor-liable-for-distributor-behavior syllogism is currently an unproven legal theory, it’s being tested in at least two cases right now (the Direct Revenue lawsuit and the Spitzer action against Intermix). More importantly, legislators may be tempted to create this type of liability statutorily. We’ve already seen this in the spam context; in CAN-SPAM, an advertiser is liable for the behavior of spam distributors in certain contexts. I think it’s highly likely that legislators will create some legal relationship between vendors and distributors; but even if they don’t, courts may be willing to massage the common law to create such liability regardless of the black letter law.
Finally, as AskJeeves acknwoledges in its 10-K, the adware/spyware paranoia is causing a shrinkage in the overall channels of distribution for desktop software applications generally. (See, e.g., Download.com's announcement that it will not distribute software that has adware bundled with it). This means fewer channels and more pricing competition. Although this is not a legal issue per se, there's no doubt that AskJeeves will feel the impact of the legal developments with adware/spyware.
Conclusion
Therefore, I think Diller’s brusque and unequivocal response was absolutely wrong. AskJeeves will be liable for its distributors’ actions in the court of popular opinion. And legally, when the legislators finish with their anti-spyware frenzy, I’m pretty confident that AskJeeves will have to change its business practices to comply with the law. So where AskJeeves says the adware/spyware problem is not “our issue,” I disagree—and I predict that any intransigence on this topic will ultimately be punished severely in the marketplace and perhaps in the courts.
I'm not saying this is a good outcome—if public opinion and the legal system overreact, we may lose the ability to get the software we really want, or we may have to fight through a blizzard of unwanted disclosures to get it. But putting aside my preferences, objectively the current environment is pointing in that direction, for better or worse. As the saying goes, “be careful what you wish for.”
Posted by Eric at 05:31 PM | Adware/Spyware , Derivative Liability , Licensing/Contracts
Congress Mulls Mandatory Security Breach Disclosure Law
Congress is discussing a national mandatory security breach notification law. In a minor surprise, at least one legislator, Rep. Oxley, is asking the right questions. He observes: “consumers may begin to ignore those notices as just that many more pieces of unsolicited junk mail.” That is absolutely correct! He also observed that only a small percentage of data breaches result in fraudulent activity. Also correct. He didn’t pick on the other major deficiency of the proposed laws, which is that the notifications are scary but consumers are powerless to do anything proactively to protect their interests. (Consumers can be vigilant in monitoring their financial activity, but they need to do this anyways). So the notifications stress out consumers but don't offer any solutions. Thus, the question is: what value does mandatory notification have? And what costs does it impose?
Interestingly, a number of companies are lining up in favor of a mandatory disclosure law, including ChoicePoint and Bank of America, even though they could simply pledge voluntarily to make disclosures as appropriate. I assume these companies are in favor of a national law to preempt a state-level patchwork quilt of laws, or to forestall even more draconian laws.
Posted by Eric at 02:38 PM | Privacy/Security | Comments (1)
Declan Interviews Edelman
Interview here. I have a lot of issues with Ben's positions, and I will have more to say about that later. In this interview, though, notice how Ben conflates adware and spyware. Even Declan found that confusing.
Posted by Eric at 11:36 AM | Adware/Spyware
May 04, 2005
Antitrust Attack on the GPL
By John Ottaviani
In the latest attack on open source software and the General Public License , Daniel Wallace, acting as his own attorney, has sued the Free Software Foundation in the United States District Court for the Southern District of Indiana for violations of federal antitrust law. The four page complaint claims that FSF has entered into contracts and has conspired with individual software authors and commercial software distrbutors such as Red Hat, Inc. and Novell, Inc., to artificially fix the prices charged for computer software programs through the promotion and use of the GPL. Mr. Wallace claims that this scheme threatens to diminish or destroy his ability to earn future revenues as a computer programmer. The complaint is devoid of specific details, however.
Mr, Wallace's claim is creative, but seems destined for an early dismissal. He will need to supply the court with a good deal of evidence of price fixing, little of which has been seen to date, even to survive preliminary dismissal motions. Moreover, as a non profit organization, the Free Software Foundation is likely to be exempt from the Clayton Act charges by virtue of 15 U.S.C. Section 13c . Whatever one's feelings on the enforceability of the GPL or the almost evangelical fervor with which people attack or defend those who take a position on the GPL, this case probably will not change the debate in any significant way.
Posted by John Ottaviani at 09:40 AM | Licensing/Contracts
Guest Blogger--John Ottaviani
I'm pleased to introduce John Ottaviani as a guest blogger. John is a partner at Edwards & Angell in Providence, RI. John practices technology and IP law and is co-chair (along with me) of the Intellectual Property subcommittee of the Cyberspace Law Committee of the ABA Business Law Section. John has a lot to share, so I'm looking forward to his contributions.
Posted by Eric at 09:40 AM | General
May 03, 2005
McCullagh on HR 29
Declan weighs in against HR 29. He says, “politicians write laws that treat technology as something that's as easy to define as a food product or an agricultural implement. It isn't.” Too bad Congress isn't listening to the many rational concerns about HR 29.
Posted by Eric at 08:37 PM | Adware/Spyware
Gomes on Search Engine Spam
Lee Gomes points out that self-service ad programs like AdSense fund the creation of junky low-value websites that constitute a new form of search engine spam. He hits the nail perfectly when he says:
“a kind of schizophrenia exists at search-engine companies. Half their engineering staff is busy trying to keep useless pages out of search results; the other half is busy coming up with tools that make it easier for people to create and profit from the useless pages in the first place.”
My own experience is that Google has been doing a pretty good job with the top results, but as I drill down, I find a lot of useless sites in the second half of their search results. I'm not especially bothered by this (so long as Google keeps the relevant stuff at the top, who cares what's in the bowels?), but ultimately Google may need to tighten up its algorithm to make sure the useless sites don't get into searchers' attention sphere.
Thanks to Searchblog for the reference.
Posted by Eric at 08:22 PM | Search Engines
New Search Engine Keyword Lawsuit--Panicware v. Stopzilla
Panicware v. International Software Systems Solutions (SDNY complaint filed April 27, 2005). Panicware is suing a competitor Stopzilla for purchasing ads triggered by the keyword “POP-UP STOPPER,” which purportedly diverts Panicware’s customers. As the press release says, “There is no good faith explanation for why Stopzilla could not use the generic term 'Pop-up ad blocker' instead of our registered trademark.” In fact, there are a number of good reasons why consumers may benefit from advertising delivered in response to “POP-UP STOPPER” instead of “Pop-up ad blocker,” a point I make in some detail in my Deregulating Relevancy paper.
(Thanks to Trademark Blog for the reference.)
Posted by Eric at 07:25 PM | Search Engines , Trademark
Calboli on Trademark Assignment in Gross
My colleague Irene Calboli has written a paper on trademark assignment in gross entitled Trademark Assignment With Goodwill: A Concept Whose Time Has Gone, scheduled to be published in the Florida Law Review later this year. She thoroughly recounts the history of, and policy debates about, the assignment in gross rule and offers her solutions. Trademark assignments create both practical and theoretical problems, and this paper is worth reading if you’re interested in either.
Posted by Eric at 07:13 PM | Trademark
Marquette Joins BSA's DefineTheLine.com Initiative
Marquette's Announcement
Marquette sent out the following announcement yesterday:
“Marquette is participating in the launch of “Define the Line,” a national program aimed at discouraging illegal sharing and downloading of software. The program calls upon students, faculty and staff to ensure they are properly and legally sharing and downloading software and other digital copyrighted work including music and movies.
According to a study conducted by Internet Piracy on Campus, only 32 percent of students are paying for software most of the time, meaning potentially 68 percent of students who are potentially using commercial software illegally.
Marquette is the first university in the country to implement this program. “Define the Line” is designed to educate students about using commercial software legally, respecting copyrighted works online, and understanding the impact of software theft on everyone. The Business Software Alliance, the foremost organization dedicated to promoting a safe and legal digital world, is a co-sponsor of the program to raise awareness about these important issues with university students, faculty and staff. Go to http://www.definetheline.com for more information.
Marquette will implement this program through a variety of outreach efforts aimed at students, faculty and staff. Other schools considering this program are Princeton University, Cornell University, Miami University (Ohio), Tulane University, the University of Virginia and the College of William and Mary.”
Questions About the Announcement
This announcement raises a number of questions. First, universities rarely like to go in front of the pack by themselves. Why did Marquette step up to the plate when no one else has? (I also thought it was odd that Marquette listed several schools thinking about joining). I noticed that BSA announced the “Define the Line” program in October 2004. Why did it take 7 months to line up a single school to participate in the program?
Second, the press release is vague about exactly what Marquette is doing for the BSA (and vice-versa). However, assuming that Marquette does anything proactively for BSA, this program will represent an unprecedented level of cooperation between a university and the BSA. What’s in it for Marquette? Is Marquette doing this out of the goodness of its heart? Because it’s “the right thing to do?” Is BSA providing some consideration?
A Critique of the DefineTheLine.com Website
Meanwhile, the material on the definetheline.com website is a joke. The ambition is understandable—give students bright-line rules so they know what they can and can’t do. The problem is that copyright isn’t susceptible to bright-line interpretations. Consider the questions in the definetheline.com “quiz” about whether certain behavior is legal or illegal:
Q1: “Installing the latest commercial software program from a friend – just to try it out for a while.”
BSA’s answer: ILLEGAL. My answer: installing the program would be an infringement, but we then have to look at the various defenses and exclusions. For example, in some situations, this installation could/should be fair use. If a student gave me a bright-line answer to this fact pattern on an exam, he/she would get an F.
Q2: “Loading the latest version of a program on your computer when you already have an older version installed.”
BSA’s answer: LEGAL. (I got this question “wrong” per BSA). I don’t think they mean what they say. If a student has Windows 2000 and then upgrades to Windows XP, then per Q1, that should be “ILLEGAL” per BSA. I think what BSA meant to say was “loading the latest version of a program when you’ve licensed the upgrade,” but that’s not the question they asked.
Meanwhile, BSA’s explanation seems just wrong to me. It says: “Software programs are constantly being updated. When you install legal software on your computer or network you are eligible to receive the benefits of upgraded versions of the software. Using unlicensed software doesn't allow you to receive updates or the new versions of the software from the software publisher.” I think the bolded language is simply not universally true. I honestly cannot figure out what BSA is thinking here.
Top Reasons to Do What BSA Wants
BSA also makes its sales/scare pitch for why students should pay for software/not use unlicensed software with a top 10 list of reasons that I will paraphrase:
10: Software vendors price-discriminate to the student’s benefit
9: No viruses
8: If we catch you, you’ll be financially destroyed
7: Your school might kick you out
6: Fewer computer crashes/lost term papers
5: Licensed software “makes a computer run faster and smoother” [I’m not sure how this differs from points 9 and 6. Licensed software is like premium unleaded gasoline?]
4: No employer will hire you because you’re a damn thief
3: If you license software, you’ll make the economy stronger, which means that you’ll get a high-paying job when you graduate
2: If you illegally download software, you’ll be an unemployed loser and you’ll have to live with your parents the rest of your life
1: You will ascend to heaven if you license software. If you don’t, well, you know where sinners go for an eternity…
UPDATE: Chronicle of Higher Education picks up the story (also scratching its head wondering what Marquette has committed to) (subscription required).
Posted by Eric at 06:49 PM | Copyright
Happy Mother's Day from Your Loving Son (and Your Friendly FTC Bureaucrat)
Nothing tells your mom that you love her like an e-card with soft piano music, floating butterflies, pretty wildflowers…and some consumer protection tips from the FTC.
Thanks to the Washington Post for the pointer.
Posted by Eric at 02:05 PM | E-Commerce
May 01, 2005
Download.com Becomes Adware Bundle-Free Zone
Download.com has declared itself adware bundle-free—all downloads from Download.com will be certified not to be bundled with adware. Personally, I think this step goes a little far. Many of the software programs offered on Download.com are shareware or freeware, so an adware bundle may be the only realistic way for independent developers to recoup their investment. Further, Download.com could have addressed this through greater labeling of software that (in theory) would have let consumers choose between options, such as a free bundled software vs. the for-pay/shareware version that's adware-free. On the other hand, it’s Download.com servers, and they are of course free to do what they please with them.
In any case, Download.com’s step represents a noteworthy step in shrinking the range of distribution channels for adware. Should other distribution platforms take similar steps, adware vendors will either need to reform their ways…or become more pernicious.
Thanks to Spyware Warrior for the tip.
Posted by Eric at 05:00 PM | Adware/Spyware
ICANN's Domain Name Tax on .Jobs and .Travel
I missed this before—perhaps I wasn’t the only one. ICANN has repeatedly attempted to impose a “tax” on domain names. This was first proposed back in 1999 and again at the end of 2004. Now, at the end of March, we learned that ICANN is charging a tax of $2 per year on each SLD in the .travel and .jobs TLDs. The expectation is that some fee will be levied against other TLDs under ICANN's administration as the applicable agreements come up for renewal/renegotiation.
This tax, of course, raises some serious questions:
· Where’s the money going to go? More money in ICANN’s pocket means two things: (1) more flexibility for ICANN to do more ill-advised things (a propensity they've amply illustrated while operating on a shoestring budget), and (2) a greater pot of money for those interested in ICANN governance to fight over.
· What procedural limits are there on ICANN’s ability to impose new taxes or raise existing ones? Who's watching the watchman? "The power to tax involves the power to destroy." John Marshall, McCulloch v. Maryland (1819).
· As ICANN sets a minimum floor on domain name pricing (at minimum, to cover the flat ICANN tax), what will this do to the market for domain names? In general, domain name pricing has been dropping dramatically; now there may be a countervailing need to raise prices. Price increases in domain names put significant scrutiny on the value of domain names, a value that has arguably been slipping throughout this decade as more action moves to the search engines.
Posted by Eric at 04:29 PM | Domain Names , Internet History
Widmaier on Internet Trademark Law
Uli Widmaier of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP has written an important new article, Use, Liability, and the Structure of Trademark Law, 33 Hofstra L. Rev. 603 (2004). The article makes a persuasive argument why keyword triggering should not be trademark “use.” Recommended reading.
Posted by Eric at 04:06 PM | Adware/Spyware , Domain Names , Search Engines , Trademark