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December 30, 2005
Keep on Suin'--Crumb v. Amazon
By Eric Goldman
Crumb v. Amazon.com, Inc., No. CV5-2113 (W.D. Wash. complaint filed Dec. 21, 2005). LA Times story on the case.
Crumb created the groovy and famous Keep on Truckin' cartoon in the late 1960s. I'm not going to show a copy here to avoid a lawsuit, but you can find the drawing as an exhibit to the complaint, or you can find many versions in color in Google Images (not entirely office-safe...and will Google be sued next?). The drawing is immediately familiar to anyone of my generation or older.
Someone at Amazon thought it would be funny to include the drawing on search pages when Amazon didn't carry the desired product, with a suggestion to keep on lookin'. Cute? I think so (but then again, I wear Birkenstocks). Legal? Probably not. If the drawing was uploaded by a user or vendor, Amazon might be able to claim the 512(c) safe harbor (see Corbis v. Amazon). Otherwise, if an employee or contractor uploaded the drawing, there would be a prima facie case of infringement. At that point, Amazon can try a weak and uncertain fair use defense, or it can open up the checkbook.
Amazon initially chose the latter route (after immediately taking down the drawing), but when 2 years of talks didn't yield a satisfactory number, Crumb pulled the trigger and sued Amazon. It will be interesting to see if this speeds up resolution or leads to a more favorable amount for Crumb.
I think this case reinforces the real risks of Internet copyright infringement. Most people worry about being sued by one of the big copyright owners (movie studios, record labels, book publishers, image archives), but I think those concerns are misdirected. Instead, I worry about the small-time independent copyright producers. As I recently wrote in a comment to Dan Solove's posting entitled "What If Copyright Law Were Strongly Enforced in the Blogosphere?":
the risk of copyright infringement lawsuits from mainstream publishers is relatively low. Instead, the real risk is from the small-time copyright owners--the Kellys or the Perfect 10s of the world. They have a lot less reputation to lose by suing, they are often meticulous about registering their copyrights, they look at lawsuits as a profit-generating strategy, they often overestimate the value of their work, and they don't settle cases easily. As a copyright infringement defendant, I'd MUCH rather face a Corbis or a Getty as the plaintiff than a freelancer plaintiff
This lawsuit may be Exhibit A in support of my argument. Best of luck, Amazon!
One more thing. A lot of people mistakenly believe that copyright infringement can be cured by immediately responding to a takedown request (let's call it the "no harm, no foul" rule). However, as this case illustrates, copyright owners can successfully shake down an infringer for cash even if the infringement is immediately remediated upon notice. Caveat bloggers!
Posted by Eric at 12:46 PM | Copyright
December 29, 2005
Web Host Wins 230 Defense--Austin v. CrystalTech Web Hosting
By Eric Goldman
Austin v. CrystalTech Web Hosting, 2005 WL 3489249 (Ariz. App. Div. Dec. 22, 2005)
I can't decide if defense wins under 230 are still worth blogging. Personally, I find them fascinating--I get a certain voyeuristic thrill watching courts trash obviously futile claims. At the same time, there's a repetitiveness and ennui to these cases. Sorry if I am boring you.
Austin and Daniels run competitive tour companies in Bali. Daniels posted a statement on his website that Bali officials were preparing a criminal case against Austin. Presumably Daniels was hoping that the statement would help potential customers pick Daniels' business over Austin's. We encountered a lot of these inter-competitor disputes at Epinions.
Austin sues Daniels and his web host, CrystalTech, for defamation. CrystalTech claims 230, the court agrees per Zeran and its progeny, case over.
Austin tries to overcome 230 using the tired argument that 230 only preempts publisher liability, not distributor liability. In support, Austin cites the intermediate appellate cases in Barrett v. Rosenthal and Grace v. eBay, but both of those cases have been depublished by the California Supreme Court and therefore aren't citable. Austin also cites to the dicta in Doe v. GTE, which the court rightly ignores. As a result, Austin doesn't have a solid argument to make. Next case...
Evan Brown's comments.
Posted by Eric at 01:09 PM | Derivative Liability
December 28, 2005
Google Sued for Trademark Infringement Based on Third Level Subdomain--Jews for Jesus v. Google
By Eric Goldman
Jews for Jesus v. Google, Inc., 05-CV-10684 (SDNY complaint filed Dec. 21, 2005)
It's no surprise that Google has been sued again for trademark infringement, but the basis of this lawsuit is surprising. Rather than another lawsuit over the sale of trademarked keywords to deliver ads (along the lines of the GEICO, American Blinds, Rescuecom and JTH Tax cases, or the dozens of international lawsuits), this lawsuit is based on a Blogspot blog URL. Because of its comparative novelty, this lawsuit raises some complex and unsettled legal issues.
Background
The basis of this lawsuit is a Blogspot-hosted blog at jewsforjesus.blogspot.com. Until the lawsuit, this blog was basically dormant--there were 3 posts between Jan. 30, 2005 and May 9, 2005, and there had been no posts for over 7 months. The first three posts suggest a tone of mild criticism against the organization, as does the username ("Whistle Blower").
Why Did the Plaintiff Sue?
I'm not exactly clear why Jews for Jesus cared about this blog enough to tangle with the mighty Google. Thinking out loud, I can hypothesize four possible reasons (none of them especially compelling).
First, maybe the organization wanted to shut down a griper. If so, a lawsuit against media darling Google is one sure-fire way to counterproductively ensure that the griper's words will be seen by all the world.
Also, using trademark law to shut down a griper never produces very good results. At best, a successful lawsuit causes the griper to find a new home under a different name; but the content can remain online, and the lawsuit gives the griper more grist for the mill (such as, in this case, reinvigorating a dormant blogger).
It does bear noting that Jews for Jesus has gone after an Internet griper before in an early and influential Internet trademark case, Jews for Jesus v. Brodsky. Ronald Coleman has some comments about that.
Second, maybe the blog was getting too good search engine placement. This doesn't seem too likely given the blog's low PageRank of 2. The blog didn't show on the first page of Google search results for "Jews for Jesus" (although it may have been pushed down by all of the well-placed articles about the lawsuit now showing up on that term). The blog did show up as the 5th search result for "jewsforjesus," but I wonder how many people search for that term. All told, I suspect the blog doesn't get much search engine traffic.
Third, maybe Jews for Jesus believes that it needs to bring a lawsuit to adequately police its trademark rights. Trademark owners do have some obligations to enforce their rights against known infringers at peril of losing some or all of their trademark rights, so there is a concern here. However, I find that this policing obligation is often way overstated (usually as a business development tool for trademark lawyers), and I'm skeptical that Jews for Jesus' failure to go after a griper using a third level subdomain would have any implications for their future trademark rights. But perhaps bright minds would disagree on this point.
My fourth and final hypothesis is that Jews for Jesus wanted some low-cost press. Suing Google is a press strategy; it's guaranteed to get your name slathered in headlines, and we've seen this Google-lawsuit-as-PR tactic used by others such as JTH Tax and Click Defense. Of course, this works only if you subscribe to the view that there is no such thing as bad press. Dubious lawsuits against well-funded defendants based on socially-protected speech often play poorly in the press...and in the courts.
The Trademark Infringement Claim
As for the merits of this lawsuit, blog names can give rise to trademark infringement. A blog can be a vehicle for social commentary, an entrepreneurial venture, or both. In the case where bloggers are building a business, the blog name can be a trademark. In that respect, a blog name is no different from the business name or a domain name that acts as the source identifier. And if a commercial-oriented blog's name is confusingly similar to someone else's trademark, the name can support a trademark infringement claim.
However, there may be a difference between a second-level domain name (blogspot.com) and a third-level subdomain (jewsforjesus.blogspot.com). It's not entirely clear that consumers attach equal importance to third-level subdomains when seeing the domain name unattached to the content. And certainly, by the time anyone arrived at the blog, it was clear that the blog wasn't run by the organization. (The "About" box now reads "This blog is not authorized by, affiliated, connected, or otherwise associated with the California non-profit religious organization Jews for Jesus," although I don't know if this was always the case--there's no entries in archive.org for the blog).
To overcome the relative unimportance that many consumers may place on third-level subdomains, the plaintiff makes a pretty laughable assertion that people guess third-level domain names (para. 41). It says: "someone searching for a blog about a particular subject or company is likely to try to find such a blog by guessing at a URL at a popular blog-hosting domain such as blogspot.com." Are they kidding? Second-level domain name guessing has been on the wane for over a half-decade, and I find it incredible to believe that people go around guessing third-level subdomains. I'll go one step further--I'm 99% confident that NO ONE has EVER guessed the domain jewsforjesus.blogspot.com (other than perhaps people affiliated with the organization prepping the lawsuit). I'd sure like to see some empirical evidence from the plaintiff supporting this assertion!
The main trademark infringement claim has other challenges as well. There has been a smattering of trademark infringement lawsuits involving parts of a URL other than the second-level domain. Two immediately come to mind: Patmont Motors v. Gateway Marine, 1997 WL 811770 (N.D. Cal. 1997) and Interactive Products Corp. v. a2z Mobile Office Solutions, Inc., 326 F.3d 687 (6th Cir. 2003). I suspect there are a few others. Both cases were defense wins, so the plaintiff in this case will have to do some work to distinguish them.
Depending on how the plaintiff tries to distinguish the precedent, the plaintiff may run headlong into 15 USC 1114(2)(D)(iii), which reads:
A domain name registrar, a domain name registry, or other domain name registration authority shall not be liable for damages under this section for the registration or maintenance of a domain name for another absent a showing of bad faith intent to profit from such registration or maintenance of the domain name.
Per 15 USC 1127, a "“domain name” means any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet" (emphasis added).
Read literally, a domain name registrar isn't liable for trademark damages for registering someone else's domain name (absent bad faith intent to profit). But is Google a domain name registrar in this context? Normally I would say no, but the definition of domain name covers more than second-level domains. Further, the complaint makes a point of referencing the URL as a domain name.
Therefore, if the plaintiff tries to get around the Interactive Products and Patmont cases by saying that this case involves domain names while those cases involved post-domain URL paths, I think the plaintiff runs squarely into the 1114 exculpation clause. If so, the plaintiff has to show that Google had a bad faith intent to profit, and I don't think the alleged facts support that.
(I recognize that the registrar exculpation language in 1114 probably wasn't intended to cover third-level subdomains, but I don't see any reason why it can't apply based on the statute's plain language).
Finally, the complaint can't decide if Google is the direct infringer or a contributory infringer. This is a pretty significant legal issue, but at least the plaintiff isn't alone in waffling on this point (see the Ninth Circuit's punt on this precise question in the Playboy v. Netscape case). I think the plaintiff will have significant difficulty proving that the blogger was a direct infringer--there isn't any evidence of commercial activity by the blogger, so there may not be any trademark use in commerce. Even if there is a TM use in commerce, I think the court will have difficulty finding likelihood of consumer confusion (see the Lamparello case for almost identical facts). So I think the plaintiff's only hope is to treat Google as a direct infringer. However, given that the blog currently doesn't have any ads, I'm not sure how Google has made a trademark use in commerce itself.
Other Claims
The complaint makes a host of other claims, some of which would be laugh-out-loud funny if they didn't border on Rule 11 violations. The complaint alleges contributory dilution (a theory that has been soundly rejected by the courts that have expressly considered it) and vicarious dilution (I believe this is a wholly novel cause of action), contributory and vicarious unfair competition (huh???) and other junk claims that will get a guffaw (and perhaps even a sanction or two) from the judge when granting the motion to dismiss.
Even if Google doesn't get any sanctions, I expect Google will countersue the plaintiff. Google's past litigation behavior has been pretty aggressive, and they like to go on the offensive. Fortunately for Google, this complaint may have enough junky claims to give them some grounds to do so.
Conclusion
This lawsuit shares one strong commonality with the Google keyword lawsuits--the plaintiff is suing the wrong party. If Jews for Jesus really believes that the blog is infringing its trademark, sue the blogger, but leave the blog service provider out of it.
This isn't to say that Google doesn't have some involvement in the matter. In this regard, I find it disconcerting how Google tries to play the innocent (a point I'll address in more detail when I blog on search engine bias). For example, in its terse response to the plaintiff's cease and desist letters, Google says "Blogger is a provider of content creation tools, not a mediator of that content." This is true as far as it goes, but Blogger does far more than that--Blogger hosts the content and provides various marketing resources. Google isn't nearly as passive as it would like to think it is.
However, even if Google isn't a passive receptacle for blogger content, blog service providers are in a lousy position to police third party trademarks. Blogs change their content all the time, so it's impossible to know a priori if the blog name accurately describes the contents. Plus, the service provider has no idea how the blogger is marketing the blog (or its name).
In this respect, consider the analogy to an email service provider. Someone may register an email address that contains a third party trademark--the email address isn't inherently infringing, but an email user could commit trademark infringement based on how it uses the email address (e.g., to send spam for knockoff goods). Email service providers shouldn't be liable for these infringements based on user-selected user names, just like blog service providers shouldn't be liable for blogger-selected blog names.
UPDATE: Cédric Manara pointed out that Exhibit C of the comnplaint (page 39) shows that the blog did not always have its extensive disclaimer. I don't think the disclaimer's absence means much legally. I still think there was a trivial risk of consumer confusion without the disclaimer, and there's still no evidence of TM use in commerce. However, the disclaimer makes it even less likely that consumers will be confused. Read Cédric's other remarks about the case and analogous French case law. Cédric also finds other possible problematic blogs at Blogspot.
Posted by Eric at 05:02 PM | Derivative Liability , Domain Names , Search Engines , Trademark | Comments (1)
December 25, 2005
Is the Florida Attorney General a Spammer?
By Eric Goldman
This is hardly the first time that politicians have been caught spamming (in Florida or otherwise), but the irony is palpable. According to Reuters:
"Charlie Crist was a staunch defender of a tough anti-spam law passed by the state legislature last year [but] Crist, a Republican gubernatorial candidate, had annoyed some residents of the state by sending them unwanted e-mails promoting his candidacy and soliciting campaign donations."
Crist's spokesperson stated: "This is not spam. This is truthful, it's straight forward. We're honest. To be spam it has to be, under Florida law, defined as being deceptive."
I love this legal double-speak textualist response. Deceptive email is spam, but unsolicited email to constituents is good politics. It's good that Crist is savvy enough about his constituents' attitudes towards spam to know the difference.
Posted by Eric at 11:37 PM | Spam | Comments (2)
December 17, 2005
Spam-Free-or-Die Video
By Eric Goldman
I recommend joke videos pretty rarely, but this one made me laugh out loud! (and the music wasn't too bad either). With its vigilante sentiments, it captures the prevailing anti-spam attitudes perfectly. Check out the "Spam-Free-or-Die" video, associated website and lyrics.
Thanks to Matt Holemon for calling my attention to it.
Posted by Eric at 05:22 PM | Spam
December 16, 2005
Man Bites Dog--Music Publisher Apologizes for Overreaching C&D
By Mark Schultz
In a truly newsworthy item, Billboard reports that music publisher Warner/Chappell "privately and publicly" apologized to Walter Ritter. Ritter is the creator of PearLyrics, an software app for iPod users that downloads song lyrics from lyrics sites (which post lyrics without permission). Earlier this month, Warner/Chappell threatened Ritter with litigation for distributing his tool, and he pulled it from distribution.
Ritter posted the apology on his site:
Joint Statement of Walter Ritter, pearworks and Richard Blackstone, Warner/Chappell Music:
"Based upon our common goal of helping consumers enjoy the song lyrics they want - and our common belief that technology can help to transform the music industry to the benefit of consumers and artists alike - we are committed to working together to provide consumers a convenient, legal way to find accurate song lyrics.
The goal of Warner/Chappell's prior letter to pearworks was to gain assurance that pearLyrics operated according to those principles. However, in both tone and substance, that letter was an inappropriate manner in which to convey that inquiry. Warner/Chappell apologizes to Walter Ritter and pearworks.
Our solution will adhere to our shared belief that songwriters must be fairly compensated for their work and that legitimate web sites with accurate lyrics must not be undermined by unlicensed web sites.
We look forward to working together, and to helping to advance the evolution of the music industry cooperatively for the benefit of consumers and artists alike."
Did this apology come about because I blogged a couple of days ago that it would be good business for the music industry to behave more reasonably? Of course not. I'm an academic. Nobody listens to me. Ritter credits EFF super-litigator Fred von Lohmann and his open letter to Warner/Chappell for persuading them to behave more reasonably. Nice work, Fred!
Of course, the music industry has not changed its ways overnight. In the article linked above, Billboard also talked to Lauren Keiser, President of the Music Publisher's Association. He has not changed his tone much from my report the other day, where he called for jail time for operators of infringing lyrics sites. When asked if he would consider working with lyrics sites, he replied:
he is not inclined to approach these sites first as potential partners. “If someone was robbing your bank,” he asks, “would you go to them and say, ‘Hey, let’s split the cut?'”
On the other hand, Keiser shows some signs of coming around. Since he announced the litigation campaign, he has received many e-mails suggesting ways that MPA members might cooperate with lyrics sites for mutual benefit. He concedes that some
came up with some good ideas. “I’ve printed out a number of them, which I’ll show the board next month,” he says. “I think our members would be happy to support sites that want to help them exploit writers.”
I'm delighted to see that somebody from the music industry realizes that the best thing for all concerned is less litigation and more exploitation.
Posted by Mark Schultz at 04:00 PM | Copyright
When Does a Privacy Policy Breach Support a Breach of Contract Claim? In re JetBlue
By Eric Goldman
In re JetBlue Airways Corp. Privacy Litigation, 79 F. Supp. 2d 299 (E.D.N.Y. August 1, 2005)
I’m late blogging this case, but the case is remarkable enough to warrant some comments even at this late date.
As part of the post-9/11 anti-terrorism efforts, the TSA requested that JetBlue turn over its passenger name records (PNRs) to the Department of Defense for various data mining/analysis. Based on the request, JetBlue gave over 5,000,000 PNRs to a DoD contractor (Torch). This data handoff unambiguously violated JetBlue’s declared privacy policy, which said that JetBlue would not share personal information with any third parties. This privacy policy might be mooted by a law mandating disclosure, but my understanding is that JetBlue turned over the data voluntarily (i.e., it was not legally compelled to give Torch the data, although it may have felt strongly encouraged).
A quick drafting digression: It was a significant drafting error for JetBlue’s privacy policy not to contemplate disclosing PNRs to the government. For years, privacy policies have included exclusions that permitted voluntary disclosure of data to the government. If JetBlue’s privacy policy had contained such a statement, I believe this lawsuit would have been trivially easy to resolve.
In any case, the plaintiffs sued JetBlue for ECPA, breach of contract, trespass to property and unjust enrichment.
ECPA
The ECPA claim failed because JetBlue was not a provider of an electronic communications service or remote computing service; instead, it was a customer of those providers. The court’s reasoning would extend to anyone operating a website; simply collecting information from a website doesn't make the website per se an ECS or RCS.
Trespass to Property
The court converted the trespass to property claim into a trespass to chattels claim. Conceived this way, the data in a PNR isn’t a chattel, so this claim is dubious. However, the court disposes of it for lack of damages. The plaintiffs claimed loss of privacy as the damage, but the court says that this allegation doesn’t diminish the quality or value of the information, nor are the customers deprived of an ability to use their personal information.
Unjust Enrichment
This claim failed because JetBlue didn’t derive any benefit from giving the data to Torch. Further, there was no injustice to the customers, as the effort was tied to preventing terrorism.
Breach of Contract
I’m not surprised that the prior three claims failed, as they seemed pretty weak. However, the breach of contract claim seemed much more powerful. JetBlue promised that it wouldn’t disclose personal information to third parties. It broke the promise. What’s to discuss?
The court first assumes that the website privacy policy was a validly formed contract, even though (a) it was presented as a non-mandatory hyperlink from the home page, and (b) the plaintiffs did not allege that any of them actually read the policy. This assumption runs directly contrary to two other related cases (In re Northwest Airlines Corps., 2004 U.S. Dist. LEXIS 10580, 2004 WL 1278459 and Dyer v. Northwest Airlines Corps., 334 F. Supp. 2d 1196).
I think the court is correct that the failure to allege that the plaintiffs read the contract is immaterial. I'm working on the assumption that JetBlue's failure to present the privacy policy as a mandatory non-leaky clickthrough prevents JetBlue from enforcing the contract terms against its customers. However, the court sidestepped the more complex question of whether the customers could treat the privacy policy as a one-way binding commitment against JetBlue. I think, like any marketing collateral, is binding on the marketer as a marketing representation, but it would have been nice if the court had acknowledged these nuances.
In any case, after assuming the existence of the contract, the court dismisses the contract claim for lack of alleged damages. Non-economic losses typically aren’t recoverable in most types of breach of contract actions, so the plaintiffs had to plead some economic losses. Ultimately, the plaintiffs couldn’t do so (at least, not to the court’s satisfaction). The court notes that the customers had no expectation of being compensated for the value of their personal information, either from JetBlue or from Torch. Therefore, the plaintiffs can’t establish the damage element of a breach of contract action, and the claim fails.
The court’s legal analysis is right, so far as it goes, but the result is clearly unsettling and (I think) discordant with other privacy lawsuits. Read most literally, this holding would mean that plaintiffs rarely can establish a breach of contract claim for a privacy policy violation, because those privacy breaches rarely create economic losses to plaintiffs. Of course, other legal doctrines might apply to privacy breaches—such as the FTC Act or other consumer protection laws—but I find it hard to believe that a privacy policy breach is (effectively) categorically immune from a privately-enforced breach of contract action.
Maybe plaintiffs can avoid this result with different pleadings—such as promissory estoppel (which the plaintiffs could have alleged, because they claimed they made reservations with JetBlue "in reliance on express promises made by JetBlue in the company's privacy policy") or a fraudulent inducement claim. However, promissory estoppel may not result in meaningful damages, and JetBlue may not have had the requisite scienter to commit fraud.
Therefore, read literally, this case could stand for the proposition that there may be no effective customer legal recourse against companies that breach their privacy policies. But I'm uncomfortable with the vitality of this conclusion in other cases, so perhaps this result is best explained by its context. A lot of decision-makers made a lot of poor decisions in the wake of 9/11 in the name of “anti-terrorism,” and perhaps we are willing to excuse those excesses accordingly. In contrast, I can imagine that future courts, presented with more venal breaches of privacy policies, will be less charitable.
Many thanks to Matt Goeden for his help preparing this blog post.
Posted by Eric at 12:01 PM | Licensing/Contracts , Privacy/Security | Comments (1)
December 15, 2005
Report Challenges Value of Notifying Consumers of Data Security Breaches
By Eric Goldman
ID Analytics has released a report trying to quantify the harms caused by data security breaches. The report sensibly distinguishes between different types of breaches--misappropriation of name and social security numbers are different, and in some ways more serious, than disclosures of account numbers. The press release claims:
"ID Analytics’ research makes it clear that identity-level breaches pose the greatest potential for harm to businesses and consumers due to fraudsters’ sophisticated methods for profiting from identity information, as compared to account-level breaches. Even so, the calculated fraudulent misuse rate for consumer victims of the analyzed breach with the highest rate of misuse was 0.098 percent—less than one in 1,000 identities."
There are plenty of reasons to carefully scrutinize the report's methodology and findings. However, the findings should not be quickly dismissed. Without good data, it would be easy to overestimate the harm caused by the mere disclosure of data. In these situations, there is an almost-irresistible temptation to overreact to the fear of the unknown.
On this front, the report questions the value of mandatory consumer notifications after security breaches. As the press release says, "It’s not helpful for consumers to receive a generic letter in the mail telling them that they may or may not be at risk. We need to help victims of breaches understand when they need to be more vigilant and prevent them from being unnecessarily alarmed."
This quote is probably unintentionally inflammatory. Its sentiments are 100% right, but it is a lightening rod for criticism because it challenges the bedrock consumer protection view that more information is better. In particular, it shouldn't be surprising that consumers think they want to know about data security breaches, given the overdriven press hype about the scariness of ID theft.
However, in an era of consumer information overload, we need to be circumspect about the value of throwing more information at consumers--especially if they lack any meaningful ability to act on the information or redress the problem. For example, there's a non-trivial risk that consumers who receive notification letters get scared, toss the letter, and otherwise do not change their behavior. If so, from my perspective, government-mandated information that doesn't change consumer behavior is worse than no information at all--it consumes attention, and in this case it causes unnecessary psychological distress, for no tangible benefit. Too bad that, in the mania to pass mandatory breach notification laws, regulators are not exploring these possible consequences more carefully.
Posted by Eric at 12:24 PM | Privacy/Security
December 14, 2005
City of Heroes Lawsuits Settled
By Eric Goldman
A complex but interesting legal fight between Marvel and NCSoft, about City of Heroes players generating characters that look like Marvel-owned characters, has come to an end. The press release announcing the settlement.
Settlement terms were not disclosed, except that no money changed hands and NCSoft isn't changing its character creation engine. Based on the tone of the press release, I suspect that NCSoft will make stronger warnings to players about respecting IP; NCSoft may have also agreed to be a little quicker on the trigger taking down potentially infringing characters (all of this is speculation--I have no inside knowledge).
In any case, this looks like a terrific victory for NCSoft. Maybe NCSoft got some helpful leverage in the settlement negotiations when it went on the offensive and won a key motion in August.
From a policy standpoint, I'm glad to see this lawsuit settled without a definitive legal conclusion. Although the rulings to date largely went NCSoft's way, the risk of getting an adverse or confused judicial ruling was high enough that it's best to leave this issue open for another day.
Thanks to Greg Lastowka for calling my attention to this.
UPDATE: News.com article with some good quotes.
UPDATE 2: News.com now reports that NCSoft had a little "swagger" when refusing to describe the settlement.
Posted by Eric at 04:53 PM | Copyright , Derivative Liability , Trademark , Virtual Worlds
4th Circuit Upholds Internet Flame War Lawsuit Dismissal on 230 Grounds--Winter v. Bassett
Winter v. Bassett, No. 03-2176 (4th Cir. Dec. 12, 2005)
This lawsuit involves one of those oh-so-messy Internet flame wars/personal disputes that prompted the creation of an anti-Steve Winter website. Winter then sued a variety of people, including the web host and various IAPs, for defamation and related business torts. In August 2003, the District Court granted several defendants' motion to dismiss based on 230. Then, earlier this week, the 4th circuit upheld that dismissal in an unpublished per curiam opinion. This result is hardly surprising, especially given that Zeran is 4th circuit precedent. For more background on this lawsuit, see this page.
Posted by Eric at 09:39 AM | Derivative Liability
December 13, 2005
We Hate You, Buy Our Stuff
By Mark Schultz
Treating your customers well is always a good idea. Treating your customers well is a very good idea if they don't really need your product. Finally, treating them well is absolutely essential if they don't need your product, but can choose to get it anyway without paying you. The music industry is in the latter position, but just doesn't seem to care.
A case in point is the burgeoning crusade of music publishers against lyrics web sites. For a long time, lyrics sites have provided a nice little service for music fans and musicians looking for lyrics. They are incomplete, often inaccurate, and plagued by popups. Nevertheless, they serve a demand that the music industry has failed to meet. I easily can imagine that a music industry lyrics site could provide consumers with a superior experience while providing ad revenue to publishers and songwriters. Unfortunately, rather than providing a superior alternative, the music industry is starting its fight with lawsuits. It's the filesharing story all over again.
As if this weren't deja vu enough, the legal campaign is accompanied by obnoxious, overblown rhetoric. It must be a badge of honor for entertainment industry trade association executives to become known for extreme statements. Lauren Keiser is president of the Music Publisher's Association. Apparently, he hopes to make "Lauren Keiser" and "MPA" terms of obloquy and horror among bloggers and Free Culture types just like "Hillary Rosen," "RIAA," "Jack Valenti," and "MPAA." Well, why not? Rosen and Valenti have both retired, so the position of Public Domain Enemy Number One is vacant. As the BBC reports, Keiser makes his case as follows:
MPA president Lauren Keiser said he wanted site owners to be jailed.
He said unlicensed guitar tabs and song scores were widely available on the internet but were "completely illegal".
Mr. Keiser said he did not just want to shut websites and impose fines, saying if authorities can "throw in some jail time I think we'll be a little more effective."
Jail? Does he know something we don't? Are lyrics sites fronts for terrorist activities? Sarcasm aside, I'm sure Keiser as an industry insider knows some things we don't about lyrics sites and certainly has stronger feelings than most. He should keep those differences in perspective in mind. Most people don't get where he's coming from. He sounds a little unhinged, which is a bad thing for one of the public faces of the music industry. Unhinged is a fine thing for a political talk radio show host, but should it be part of the job description of a trade industry executive? Unfortunately, it probably kind of is part of his job. The industry pays his salary, they're worried, so he needs to show them he is fighting for them.
The music industry would do well to consider whether such actions and rhetoric really serve its interests. In a forthcoming article to be published in the Berkeley Technology Law Journal, Fear and Norms and Rock & Roll: What Jambands Can Teach Us about Persuading People to Obey Copyright Law, I contend that the music industry could partly alleviate its infringement problem by treating music fans better. While this conclusion may sound a bit pie in the sky, it is based on social science research: When people are treated well, they reciprocate by cooperating and playing by the rules. When people are treated poorly, they reciprocate by punishing those who treat them badly. Now that compliance with copyright is largely voluntary, the music industry needs to treat its fans well. Build good relationships, and people are less likely to infringe. Anger fans, and people will shrug off the illegality of unauthorized filesharing.
The music industry would have been better off if it had led with something like iTunes and then followed with suits against illegitimate competitors. At first, it may have seemed to be suicidal to compete with free, albeit illegal services. The industry's attitude was understandable: We need to lock up our content and eliminate the illegal competitors. Only then can we really succeed online. Luckily for them, Steve Jobs saw things differently. He explained the iTunes strategy in a 2003 Rolling Stone interview:
Our position, from the beginning, was that 80% of the people stealing music online don't really want to be thieves. But that it is such a compelling way to get music: It's instant gratification. You don't have to go to the record store; the music's already digitized, so you don't have to rip the CD. It's so compelling that people are willing to become thieves to do it. And to tell them that they should stop being thieves -- without a legal alternative, that offers those same benefits -- rings hollow. We said: We don't see how you convince people to stop being thieves, unless you can offer them a carrot -- not just a stick. And the carrot is: We're gonna offer you a better experience ... and it's only gonna cost you a dollar a song.
Since then, iTunes has produced over a billion legal downloads. While iTunes has not eliminated illegal filesharing, it has certainly proven that a lot of people are willing to pay for a legal service even when free illegal alternatives exist. People are willing to cooperate, but gaining that cooperation requires decent treatment. Give people a legal alternative that is convenient and reasonable. Put aside the inflamed rhetoric and technological lockdowns, and focus on the positive.
As the cliché goes, hindsight is 20-20. The success of iTunes was not necessarily obvious. But now that it has occurred, it would be foolish not to draw some lessons. Before the music industry launches its new battle against lyrics sites by following the old script from its filesharing battle, it ought to consider a more reasonable approach. Start by providing a legal alternative--give people a nice, comprehensive, accurate site that shows up at the top of the search engines. If they do that, they likely will have solved a lot of their problem before they even start to worry about enforcement (sans the apocalyptic rhetoric and calls for jail time).
Posted by Mark Schultz at 06:18 AM | Copyright
December 12, 2005
Click Defense Lawsuit Update
By Eric Goldman
Click Defense v. Google, No. 5:05-cv-02579-RMW (N.D. Cal.).
The Click Defense lawsuit is one of three pending click fraud actions (the other two being the Lane's Gifts and CLRB Hanson Industries LLC cases). After launching the lawsuit with some fanfare in June, Click Defense got "cold feet" and now claims that it wants to concentrate on its core business. This only reinforces the initial suspicion that the lawsuit was principally a publicity stunt. In Click Defense's place, AIT has substituted in as lead plaintiff.
Substantively, on September 14 Click Defense "voluntarily" dismissed its negligence and unjust enrichment claims--an unsurprising outcome given the weakness of those claims. Now, the only standalone claim is breach of contract. Meanwhile, according to Reuters, a hearing on class certification is scheduled for May 2006.
Posted by Eric at 11:06 AM | Licensing/Contracts , Search Engines | Comments (3)
December 11, 2005
The FTC, Adware Advertising and Badges of Shame
By Eric Goldman
New FTC Commissioner Jon Leibowitz has embraced one of the favorite causes of the anti-adware grumblers: dry up adware funding by making adware advertisers feel some pain. According to AdAge, he recently said that the FTC might publicly announce the companies who ran advertisements on adware that the FTC tries to bust, saying "The FTC could consider that when it brings adware cases, listing all the advertisers whose content was delivered without notice of consent." The idea is (I think)--if the FTC can't legally bust the advertisers, maybe it can pin a badge of shame on them.
There are some obvious flaws with Leibowitz's thinking. First, and foremost, the money trail is already well-documented by Ben Edelman and his compadres. What does the FTC bring to the party? Maybe better PR muscle than Ben? (I wouldn't bet on it!)
Second, because advertising money often flows through multiple layers of agencies and affiliates, an advertiser's decision to spend money can be fairly attenuated from the selection of a venue to run the ad. Therefore, characterizing the advertiser's role precisely will require the FTC to pick its words carefully. It's one thing for the FTC to say that X's ad was displayed by someone via a pop-up ad; it's another thing to say that X displayed the ad if the decision was made by ad agencies or affiliates downstream from X. Maybe the FTC will need a grammar lesson before it engages in its shaming campaign.
To be clear, I have no problem with the accurate flow of information. Advertisers should be accountable for the choices they make. But these corrective mechanisms will fail if tainted by grammatical sloppiness.
Third, from my perspective, it's a potentially serious abuse of governmental power for the government to get into the business of shaming people for activity that is legal. If the activity is illegal, the FTC should enforce the law (and explain why advertising via adware is illegal--something that Spitzer has conveniently avoided). If the activity is legal but the FTC thinks it should be illegal, the FTC should petition Congress to make it illegal or promulgate a rule under its delegated powers. But a government actor's use of shaming as a law-substitute is, in my opinion, way out of bounds.
Though Leibowitz may not have thought out his ideas very thoroughly, I do think he is part of a general movement towards regulating advertiser decisions about where to run advertising. CAN-SPAM was the first modern iteration in this process, but I doubt it's the last. I expect that, over time, every advertising placement decision will be fraught with legal peril. Personally, I think this regulatory regime will significantly distort social information flows, in many cases for the worse, but it may be unavoidable nonetheless.
Ironically, Claria and DirectRevenue have recently announced that they are migrating away from pop-up ads. So, as usual in the technology arena, the marketplace is already making progress at correcting some of its worst abuses before the government can even fire up its propaganda machine.
(Thanks to Chris Hoofnagle for calling my attention to the AdAge article).
Posted by Eric at 03:04 PM | Adware/Spyware , Derivative Liability , Marketing
December 10, 2005
Downloading Music Isn't Fair Use--BMG v. Gonzalez
By Eric Goldman
BMG Music v. Gonzalez, No. 05-1314 (7th Cir. Dec. 9, 2005)
This case deals with a central topic in P2P file-sharing lawsuits--was the downloading excused by fair use? This issue has come up in oblique ways in the past. For example, when the P2P file-sharing services were sued, they unsuccessfully claimed that their users' activities were fair use (e.g., Napster, Aimster). And warez traders (who engaged in large-scale uploading and downloading of copyrighted files) unsuccessfully claimed fair use (US v. Slater). However, we've had very few cases where the downloading defendant litigated his/her own fair use defense.
In BMG v Gonzalez, Judge Easterbrook of the Seventh Circuit weighs in on this topic, and the news isn't good. In typical Easterbrook bluntness, he efficiently rejects the fair use defense. In the case, Gonzalez allegedly downloaded 1,370 files, but only 30 were at issue in the case. For those 30, Gonzalez did not otherwise purchase a copy of the music, and she retained her downloaded copies indefinitely.
With these facts, the court does not find any merit to a fair use claim. Looking at the four-factor test, Easterbrook says that she was not engaged in a nonprofit use [I've never been clear why a personal use isn't a nonprofit use--see the horrible bastardization of this standard in Napster] and she took 100% of the copyrighted work. Most importantly, Easterbrook thinks the downloading costs the copyright owners money: "Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals." This is a point that's received mixed support in the academic literature, but Easterbrook sidesteps all of this debate.
Based on the variety of alternative ways of getting or sampling electronic copies of music, Easterbrook concludes with a broad standard: "With all of these means available to consumers who want to choose where to spend their money, downloading full copies of copyrighted material without compensation to authors cannot be deemed “fair use.”"
Interpreted literally, this case should eliminate the fair use defense for the dozens of defendants fighting the RIAA in file-sharing lawsuits. However, an optimist could argue that Easterbrook left open the possibility that certain downloading activities might qualify as fair use--for example, the particular fact pattern didn't involve a situation where the downloader had purchased a copy of the music elsewhere, or where the downloader deleted the file after some sampling period, or where the defendant downloaded only a small number of files.
However, I really don't think the outcome would be different with different facts. The courts have shown, repeatedly, very little tolerance for garden-variety P2P music downloading. Therefore, I don't see much reason for optimism that P2P music downloading will be considered fair use in future cases.
That isn't to say that the RIAA will win its lawsuits when contested. There are still several key issues that could be legitimately disputed--like whether the plaintiffs own the copyrights they purport to enforce, and whether the defendants actually did the downloading (as opposed to someone else in their household or who was using their computer). But as evidenced by this opinion, I don't see fair use as a useful defense in those lawsuits.
One other minor point of interest. Gonzalez claimed she was entitled to a jury on the computation of damages, but the court rejected this. BMG sought the lowest applicable amount of statutory damages, so no judicial discretion was exercised in setting the amount. In other words, even if the case went to a jury, she could not do any better on damages than the amount the judge actually awarded.
Posted by Eric at 09:12 AM | Copyright | Comments (2)
December 09, 2005
Another 47 USC 230 Case, Another Defense Win--Fair Housing Council v. Roommate.com
By Eric Goldman
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 2005 WL 3299077 (C.D. Cal. Sept. 30, 2005) [actually 2004--see below]
I'm not sure why this case took so long to hit Westlaw [see below for explanation]. Whatever the reason for the delay, this is another run-of-the-mill 47 USC 230 case with entirely-predictable results. When are plaintiffs going to get the message???
In this case, defendants run a roommate-matching service called Roommates.com. Roommates.com allows users to build a profile using a questionnaire, an open narrative and a photo. The website operators screen the photos but otherwise do not pre-review content.
The plaintiffs sued Roommates.com under the Fair Housing Act, which restricts housing advertisements that indicate a preference for or discrimination based on race, color, religion, sex, handicap, familial status or national origin. There were three principal ways that users allegedly manifested such preferences or discriminatory intent:
* user-selected user names, some of which communicate demographic information (e.g., "Whiteboy," "Asianpride")
* some user narratives expressed potentially discriminatory preferences
* the service's questionnaire elicited (and then published) demographic information that could facilitate discriminatory treatment (e.g., age, gender, sexual orientation, occupation and familial status).
But all of this information is user-supplied content, and Roommates.com replied "47 USC 230." The court concluded:
"The Ninth Circuit's decision in Carafano compels the conclusion that Roommate cannot be liable for violating the FHA arising out of the nicknames chosen by its users, the free-form comments provided by the users, or the users' responses to the multiple choice questionnaire. Plaintiffs' federal claims against Roommate are therefore barred by the CDA. This result does not, however, leave Plaintiffs without a remedy under the fair housing laws. Any individual user of Roommate's service who posts discriminatory preferences is not shielded from liability by the CDA. The users who posted the descriptions and preferences of which Plaintiffs complain are responsible for the content they have provided."
The plaintiffs contended that this outcome eviscerates the FHA. The court accurately responds that 47 USC 230 may, at most, give favorable treatment to websites over print publishers. For example, a newspaper is liable for running a defamatory letter-to-the-editor in its print edition. However, the newspaper is not liable if it posts that exact same letter only to its website. As usual, the medium is the message. I've never been able to come up with a policy rationale to explain that difference in outcomes, but this court understood the statutory language perfectly.
Once the FHA claim was dismissed, the only remaining claims were based on state (not federal) law. Because state claims are squarely preempted by 230, the court could have and should have dismissed the claims outright. Instead, the court dismisses them for lack of jurisdiction, leaving the door open for further proceedings (however futile they will end up being).
UPDATE: Ugh, I'm a victim of bad reporting by Westlaw. The correct date of this case is Sept. 30, 2004, not 2005. I mistakenly thought this was a new ruling in the case, but it's the same one. My understanding is that the case is on appeal. Sorry for the confusion.
UPDATE 2: I have blogged on the similar Chicago Lawyers Committee v. Craiglist lawsuit.
Posted by Eric at 11:49 AM | Derivative Liability | Comments (1)
December 07, 2005
Keeping C&D Letters Confidential
By Eric Goldman
An all-too-familiar story. A famous celebrity takes her clothes off in a private outdoor space (in this case, Jennifer Aniston goes topless in her backyard). The paparazzi captures the event for posterity and profit. Celebrity finds out and unleashes a bulldog lawyer on the case. Lawyer writes a cease and desist letter to potential publisher with stern warnings about republishing the photos. The cease-and-desist letter hits the Internet. (In all likelihood, the photos will hit the Internet too, but to my knowledge we haven't gotten that far yet).
Here's the twist that triggers this blog post. The lawyer's letter says no less than 3 times that the C&D recipient may not publish the cease-and-desist letter:
* the letter is titled at the top "confidential legal notice/not for publication"
* the second sentence says "This is a confidential legal notice...and may not be published or disseminated in any way."
* the last paragraph reads: "This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of the Copyright Act, and You are not authorized to publish this letter in whole or in part absent our express written authorization."
These brouhahas never seem to end up well for anyone. Let's deconstruct the situation.
Jennifer Aniston
Jennifer Aniston should have known better. I recognize this may sound a little heartless; after all, she was in her own home and her lawyer alleges that the photographer was a mile away using an incredibly high-powered telephoto lens. If true, no question she should have had a reasonable expectation of privacy.
However, I believe that in practice, the rules are simply different for the top 1,000 most famous people in the world. For these celebrities, certain activities (nakedness, friskiness, ingesting) in a potentially observable place are never consequence-free, regardless of what the law says or the celebrity wants.
In this case, an afternoon of topless sunbathing at home has the consequence of a multi-month multi-continent pitched legal battle that, in all likelihood, will be futile (i.e., the pictures will almost certainly irrevocably hit the Internet). I'm not saying this is a good outcome, but it's an inevitable result in this era. This has to be on the minds of the world's most famous celebrities at this point.
The Paparazzi
If the photographer really did use a telescopic lens to take pictures of someone's backyard from a mile away and then tried to resell the photos, I'm fairly comfortable that there will be legal redress.
The Lawyer and the Smoking Gun
Some people complain that lawyers can't communicate very well, but good news here--we have no problem understanding what this lawyer wanted. He did not want to see this letter posted to the Internet. Yet, there it is, on the Smoking Gun in all its glory.
There are some problems with the lawyer's desire. How can a lawyer claim that a cease-and-desist letter is a confidential communication? In general, sending the letter to a third party without any confidentiality assurances should blow any legal confidentiality protections. The lawyer's redundant declarations doesn't change the analysis one iota (if anything, repeating these statements to bloggers will invariably lead to the opposite outcome). So, on its face, I don't see how the confidentiality demands/instructions are anything more than hyperbolic and low-efficacy scare tactics.
The copyright issue is more complex. The letter should qualify as an original work of authorship, and posting the letter online should violate at least 2 of the 106 rights (reproduction and distribution).
But is there some legal defense that nevertheless permits the reposting of C&D letters? The most obvious one is fair use, but fair use analyses are always tricky. For a good example in a relevant context, consider how Google deals with C&D letters it receives. At the Yale Regulating Search conference, a Google representative explained that Google turns over all 512(c)(3) demand letters to ChillingEffects.org because (a) Google wants the letters to see the light of day, (b) Google feared that publishing the letters would be an unexcused infringement, and (c) Google thinks that ChillingEffects.org's republication of the letters would be protected by fair use.
Can this be right? Google can't republish the letter but a third party can? ChillingEffects.org changes the fair use analysis in two ways: first, it's a non-profit actor, and second, it does add some commentary to the letter. But this seems like a silly formalistic solution. (I'll note that the Aniston C&D letter recipient apparently took the same approach, handing the letter off to the Smoking Gun, who added some light commentary).
C&D letter recipients shouldn't have to go to such extremes. Senders of C&D letters should be accountable for their actions. They seek legal redress and the letters themselves are legally significant (i.e., they could create the basis for willfulness determinations; they may be the basis for the recipient seeking a declaratory judgment). To fully understand what is taking place in the field, information about these C&Ds has to enter the public discourse. And simply reporting the receipt of a C&D isn't enough--to understand the letter and its potential impacts, external observers have to read the precise words used.
Therefore, I would strongly favor a statute that exculpates C&D letter recipients from republishing the letter. Because such a statute is unlikely, I am hoping the courts will create a defacto per se fair use exclusion for republishing C&D letters. Meanwhile, kudos to the Smoking Gun for not letting the repeated exhortations keep the letter off the Internet.
Finally, I suspect some readers of this post got here on the mistaken hope of seeing the pictures in question (or others of a similar nature). If you made it this far with that expectation, I'm sorry to disappoint.
Posted by Eric at 11:28 AM | Copyright , Trade Secrets | Comments (8)
December 06, 2005
Yale Regulating Search? Conference Recap
By Eric Goldman
I attended the Regulating Search? conference at Yale Law School this weekend. This post contains the notes I took at the conference.
A couple of meta-observations:
* almost everyone on the various panels spoke against government regulation. This was clearly a stacked deck. There are plenty of people who would love to get their regulatory hands on search engines, but their views were not widely represented. The closest pro-regulation advocate was Barbara van Schewick, but her particular axe to grind (search engines self-promote their own subsidiary offerings too favorably) was comparatively tame.
* the words "click fraud" were not uttered once. The words "adware" and "spyware" were used extremely rarely.
* Google's representatives repeatedly tried to position Google as "neutral" and "objective." In my search engine bias paper (and my Deregulating Relevancy paper), I debunk any effort by Google to characterize itself as passive. Perhaps this may have been true at some point in Google's history with respect to core search, but Google has become too multi-faceted and too involved in its databases for it to continue playing the passivity card.
Introduction
James Grimmelmann noted that it's hard to define search engines because of technological convergence and doctrinal convergence (overlapping bodies of law). He said there are three things we need:
* a definition of "search" that anticipates future developments
* clarity on the "public interest" role of search
* to know which governments or agencies can regulate search
Panel 1: The Search Space
Robin Sloan talked about his experiences producing Epic 2014, a dystopian view of Google remixing NYT content in the future. He wondered what would happen if Google were to become an agent to automate FOIA requests for its customers.
Stefan Bechtold talked about how search engines both compete with each other but also try to interpose themselves between firms and their customers. He also noted that the law assumes a search engine has a single targetable database, so he wondered how the law would cope with decentralized search databases (much like Grokster's distributed file lists).
Andrei Broder said that search was moving away from "syntactic search" (where results match user queries) to "semantic search" (where search tries to satisfy the underlying user needs). Search is also moving away from information retrieval to information supply, where information magically flows to users instead of users initiating a query in a search box.
Andrei described four generations of search:
* 1st generation: engines index on-page text data
* 2nd generation: engines expand to include off-page data [this is the stage we're at now based on search engines indexing third party links and anchor text]
* 3rd generation: using past behavior, search engines will answer users' needs behind the query. The 3rd generation assumes searchers can't state their questions very well.
* 4th generation: information supply--information will be delivered to users based on user activity and context
In Q&A, Andrei added that any algorithm factor that search engines consider will be polluted by spammers. He also notes that it's difficult for search engines to know what consumers will find acceptable from a privacy standpoint--for example, a consumer might not mind a search engine remembering data from within the same search session but might object to a search engine remembering data from 3 weeks ago.
David Caul said that search is in its infancy. Therefore, it is hard to predict the future of search.
Stephen Arnold argued that search is an application platform.
Ed Felten offered a model of search:
Search engines observe => which leads to an observations database
Search engines analyze and learn => which leads to digested observations
Search engines then serve users
Ed said the key step in the process is the analyze/learn stage, but most of the legal fights have focused on the observations stage [or, in my words, the data collection stage], such as Bidder's Edge and Google Book Search.
Ed's solution is to decentralize the observations/data collection process, such as through P2P data collection.
Panel 2: Search Engines and Public Regulation
Doug Lichtman gave an unscheduled introduction consisting of three principal points:
* be skeptical of government regulation
* but don't be blind to differences that warrant differential legal treatment
* principally, the hard legal problems arise from innocent mistakes, not from the bad actors. For example, the problems with 512(c)(3) notices are attributable to people who submit 512(c)(3) notices but don't know what's covered by copyright law.
Barbara van Schewick asked whether we need neutrality rules for search engines. She then rephrased the question as: do search engines have incentives to treat listings in discriminatory ways. She offered three principal reasons why search engines might discriminate against search results:
1) manipulation penalty (i.e., search engines acting to protect the integrity of results). She thinks this is protected by 1st amendment law (e.g., the Search King case).
2) paid placement (i.e., when search engines try to deceive consumers). She thinks this is covered by the FTC Act.
3) "Leveraging" (i.e., when search engines promote their private offerings in preference to other editorially generated results). She had a real problem with this, seeing it as a type of tying/cross-subsidization that can unfairly increase market share. She doesn't think the existing laws are adequate to redress leveraging.
[My comment: I was surprising that she thought leveraging was the worst aspect of search engine bias--this definitely struck me as a minority view. I also think these 3 situations are an incomplete universe of the consequences of search engine bias]
Urs Gasser made 4 points:
* we've done a bad job precisely describing the harms caused by search engines
* there's a risk of too-early regulation
* if intervention is required, we should think beyond legislation/government regulation to consider self-regulation). He described how the European view is that users govern search because there is a contractual relationship between search engines and their users which creates legal rights if violated.
* we need normative criteria to evaluate any regulatory proposal. He offered three values: diversity, information autonomy and quality
Renata Hesse said that her view of the FTC's goal is to let markets work for themselves.
I spoke about search engine bias. I argued that search engine algorithms inherently lead to biased search results, but (a) these biases are necessary to combat the search engine gamers, (b) if the biases interfere with searchers getting relevant results, searchers won't tolerate them, and (c) as search engine algorithms move from one-size-fits-all algorithms to personalized algorithms, the bias problem will abate substantially. I will have a separate post on this later.
Panel 3: Search Engines and Intellectual Property
While the first two panels were good, it was pretty clear that the audience really wanted to talk about Google Book Search, so there was a lot of anticipation for this panel.
Before we got to Google Book Search, two speakers addressed search engines, keywords and trademarks.
Marty Schwimmer gave examples of the ubiquity of "diversion of traffic." He asked "who owns traffic?" He talked about how we've moved from the early "cybersquatting years" to the current "keyword years."
Jon Zieger talked about developing MSN Search's keyword advertising policy. He said he faced two key uncertainties: what constitutes a "use in commerce," and when courts will apply initial interest confusion instead of the multi-factor likelihood of consumer confusion test.
Jon said Microsoft's policy was guided by 4 values:
* respect IP
* give users what they need
* scalability
* stability (i.e., don't change the policy often)
He then described the implemented policy, which he characterized as a "conservative policy compared to others" [specifically Google]. The policy is that competitors can't use third party TMs, but comparisons, reviews and other informational uses are OK. The policy applies to the ad copy and description, but it also affects the keyword (meaning that a competitor can block another competitor from buying certain keywords in almost all circumstances). I am planning to blog more about MSN Search's keyword policy in a separate post.
Unfortunately for Marty and Jon, they were buried on the same panel as the parties discussing Google Book Search. So the rest of this panel focused on that topic.
Jon Baumgarten spoke against Google Book Search. He made the following points:
* "not every good use is a fair/legal use"
* fair use does not cover every intermediate use. He thinks the precedent (e.g., Sega v. Accolade, Sony v. Connectix, Ticketmaster v. Tickets.com) only excuses extraction of unprotected data.
* intermediaries cannot stand in the shoes of their users (cite to Kinko's)
* we should not overemphasize the 106 distribution right and ignore the 106 reproduction right [arguing that the infringement occurs by the copying into the databases, not the results presentation]
Paul Aiken offers two concerns about Google Book Search: (1) all digitization moves copyrighted works from a secure environment (books) to an insecure environment (the Internet), and (2) the authors want their share of additional revenue. [I found both of these points especially unpersuasive]
Jason Schultz thinks we should be talking about the overarching problem of treating IP as property. He described 4 types of incentives that support copyrights:
* incentives to create/disseminate works
* incentives for broad public access to works
* add-on creativity
* technological innovation
With respect to the incentives to create/disseminate works, he said that there's no evidence Google Book Search harms this incentive.
Jonathan Band noted that the 512(d) safe harbor is worthless because it codified search engine concerns at the time (concerns about directory-style links to infringing content, rather than hosting infringing content in the search engine databases itself). He doesn't favor leaving the Google Book Search issue to Congress, because Congress isn't time-responsive and does a poor job drafting legislation.
Daphne Keller made the following points:
* search engines create incentives for authors
* in other contexts, governments subsidize efforts to push content out
* there are problems with notice-based liability (see Zeran)
She also claimed: "Google's goal is provide neutral results--neutrality is central."
Panel 4: Search Engines and Individual Rights
Brian Marcus talked about the ADL perspective. He said the ADL offers a downloadable search results filtering program for those who want it. The ADL has also asked Google to offer its searchers personal filters that searchers could voluntarily use to filter search results.
Aden Fine asked if the Internet truly can be an open marketplace of ideas. He is torn by conflicting views:
* private censorship is significant
* but private content providers have the right to pick 'n' choose the content they want to make available (citing to Tornillo and Hurley).
From his perspective, the government shouldn't be in the role of deciding what we hear; instead, the better course is to permit more speech to correct problematic content.
He is also concerned about the right to anonymously search the Internet. He thinks searchers should have the right to challenge government subpoenas before search engines disclose personal info.
Mike Godwin had the best line of the day: "USENET is like a national park for weird free speech people."
Chris Hoofnagle expressed concern about increased availability of public records and personal data contained therein. He noted that some government actors now are removing personal data before releasing public records. From his perspective, we can protect privacy by limiting personal data from getting into the search engine databases. Like Aden, Chris also expressed concern about government actors subpoenaing search engine histories.
Alan Davidson also was concerned about privacy/government access to information. The best privacy policy in the world doesn't restrict government demands. He favors scalable solutions.
Alan talked about the free flow of information, and said that Google was committed to objectivity. The old model of content regulation focused on publishers and readers; now, regulators focus on regulating intermediaries. He thinks this is a bad direction because it leads to:
* overbreadth--Google will block legitimate content
* lack of due process--Google will honor third party demands even if Google doesn't understand the content it is blocking
* effectiveness--kicking content out of Google doesn't eliminate the content from the Internet
He thinks the free flow of information is the greatest threat to tyranny.
Tal Zarsky was the last speaker. He thinks search engines are just like any other media companies. He is not convinced the richness of Internet content moots diversity concerns. He also thinks the Internet is just as concentrated as other media, and that increased transparency by search engines increases their concentration [I didn't understand this].
Whew! It was a long day (24 speakers!) but the talks were all interesting. Many thanks to the conference organizers for their hard work and for putting together a great group of panelists and audience members.
UPDATE: Other recaps of the conference: Robin Sloan, LawMeme, Urs Gasser I, II, III and IV, Michael Zimmer. Photos: LawMeme I and II, LawGeek
Posted by Eric at 09:40 AM | Search Engines | Comments (1)
December 05, 2005
Wikipedia Will Fail Within 5 Years
By Eric Goldman
Over the weekend I had dinner with Mike Godwin, one of the most significant influencers of the development of Cyberlaw and a longtime friend. Mike and I were discussing Wikipedia, the community-edited and -maintained encyclopedia. I like Wikipedia a lot and use it pretty frequently. However, as recent events have indicated, Wikipedia is far from perfect.
In particular, I remarked to Mike that Wikipedia inevitably will be overtaken by the gamers and the marketers to the point where it will lose all credibility. There are so many examples of community-driven communication tools that ultimately were taken over—-USENET and the Open Directory Project are two that come top-of mind-—that I didn’t imagine that my statement would be controversial or debatable. Instead, I was surprised when Mike disagreed with my assertion. Mike’s view is that Wikipedia has shown remarkable resilience to attacks to date, and this is evidence that the system is more stable than I think it is.
Here’s my thinking. As Wikipedia grows in traffic, outlinks from Wikipedia become more valuable—-because of direct referrals and, perhaps more importantly, the PageRank that will flow from the link. Therefore, marketers will inevitably try to stuff links into Wikipedia. Because there are no barriers to editing Wikipedia, this is trivially easy for marketers to do. Eventually, marketers will build scripts to edit Wikipedia pages to insert links and conduct automated attacks on Wikipedia.
So long as the marketers' scripted/repeated activity is trivial in quantity, the self-policing community of Wikipedia will patiently delete those attacks-—just like we delete spam from our in-boxes today. But over time, as the attacks become more determined and more automated, the Wikipedia community will become less enthusiastic about undoing the marketers' changes. At this point, one of two things will happen:
1) Wikipedia will have to change its open access nature. Instead, Wikipedia will have to lock down lots of pages from being edited at all. Or Wikipedia will have to install some reputational management system to limit who has the right to post or edit content.
2) Alternatively, Wikipedia community members progressively will do less spam clean-up. This will lead to a gradual but ultimately irreversible downward spiral as more pages are taken over by marketers, decreasing the database’s credibility, while as database credibility decreases, community members will feel less incentive to clean up the pages.
Mike and I made a (wagerless) bet that on December 2, 2010, we will see where Wikipedia stands and decide the winner. If you have your own prediction on the fate of Wikipedia, please leave a comment.
UPDATE: So just about the same time I posted this initially, Jimmy Wales of Wikipedia announced that registration will be required before a person can create a new entry. Needless to say, I'm hardly surprised by this move, but it's far too little to solve the real problem, and I'm confident that soon it will be followed by more limits on posting and editing. Marketers can still game the site by (1) creating fake accounts, and (2) editing existing postings (which is what I'd do if I were gaming the system); and both of these steps can be automated. Wikipedia is a fantastic idea with a finite life built into its architecture--it can be open access or spam-free, but not both. We've already seen the first significant step towards restricting access.
UPDATE 2: Mike Godwin offers a response.
UPDATE 3: Wikipedia has offered a "semi-protection" option for "vandalized" pages, which restricts the ability of some people to edit pages. This is yet another step towards shutting down open access, but it's a very small response to a very small subset of the problems Wikipedia faces. Look for continued expansions of limits on open access as the full scope of the problem becomes clear.
UPDATE 4: In Dec. 2006, I renewed my prediction that Wikipedia will fail in 4 years.
Posted by Eric at 01:22 PM | Marketing | Comments (8)