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April 29, 2006
Bloggership Conference Recap
By Eric Goldman
I spent yesterday at the Bloggership: How Blogs are Transforming Legal Scholarship conference at Harvard Law School. As one might expect, the day was filled with self-referential navel-gazing of the first order, kicked off by Paul Caron's introduction that provided a battery of statistics proving that we thought we were an important group. Here's my notes from the conference:
Doug Berman provided some evidence that law review articles have grown in length over the decades, in part because it has become technologically feasible to write long articles. The articles have also grown less practitioner-oriented. Blogging can fill those gaps by providing shorter commentary that helps practitioners. As a result, blogging fills all three of the main duties of law professors: teaching, scholarship and service.
Larry Solum said that scholars want their works read. To get readers, scholars have to reduce the costs of reading. These costs will be lowered by shortening articles and removing copyright limitations. Thus, he predicted that the future of legal scholarship is "short form" (as opposed to lengthy) open access articles.
Kate Litvak was supposed to be the token naysayer by explaining why bloggers need to get over themselves. Instead, she disappointed the bloodthirsty with a surprisingly mild critique of blogging--she argued that blogging is just one of many changes currently taking in legal scholarship, and perhaps not an especially important one.
Paul Bulter commented on the first three panelists. He was the most rah-rah blogger of the day, declaring blogs "amazingly cool." He also had the best soundbites. He said that bloggers are walking up to legal scholarship and slapping it in the face. In support of this, he drew an analogy that blogs +> legal scholarship is like music videos => movies--in other words, the short and quick nature of blogs will reshape legal scholarship just like music videos have changed the editing and scripting of movies. He concluded that "blogs are about power to the people." (My link, not his)
In response to the question "Is Blogging Scholarship?," Jim Lindgren had a very Jewish response of answering the question with his own question: "Why did you want to know?"
Ellen Podgor said that she may be the first person to affirmatively ding someone in their P&T letter for failing to keep up with the blogosphere. (Note to Ellen: even though I think your remarks were designed to lift the spirits of bloggers, the mere suggestion that some P&T reference letters might contain negative feedback sent most of us untenured folk into a tailspin!).
Gail Heriot said that she found blogging fun, and this created an internal conflict for her: does she want blogging to be recognized as scholarship for legitimate reasons, or because she just wants an excuse to keep having fun?
Orin Kerr talked about the "tyranny of reverse chronological order"--how the presentation of posts by date obscures the most valuable posts.
(Note: I think Orin has a good point. Because of this phenomenon, I rarely make "non-substantive" posts on my blog so that the top post is invariably a significant post. I have also noticed that when one of my blog posts gets a lot of traffic, the immediately following blog post gets overflow traffic (it gets a prominent link in the upper right corner that really catches people's attention). Because of this phenomenon, I don't want to have a blah post following a major hit, and I often don't know which post will be a major hit. So I cut down on the non-substantive posts to minimize that. And if I think a post will be a hit, I try to follow it up with a topically-relevant post so that I can enhance the spillover effect.)
(Having said all that, I don't think the tyrannical effect Orin fears is all that significant. There are lots of ways to merchandise and display blog posts, so there will be evolving solutions. Plus, a lot of blog traffic comes from deep links and search engines).
Gordon Smith gave examples of how he used his blog to engage in a scholarly discourse about the Disney opinion.
Randy Barnett followed up on Gail's talk by warning about the "flight from scholarship." He said that blogging is a temptation to avoid doing scholarship because scholarship is hard. He amused the crowd by observing that many professors don't like to do scholarship because it's hard, but then again many professors don't like to teach and almost no professors like to do university service--making all of the law professors in the room question whether we really have a great job. (We do).
Michael Froomkin talked about how he has different writing voices--he runs different blogs with different voices for each. He also announced the "Journal of Things We Like (Lots)" (or Jotwell.com), a place where people can provide short critiques of law review scholarship as a way of calling attention to the good scholarship that others should read.
Glenn Reynolds spoke by videoconference. (Always a tough thing to do, although he did it well). He explained why bloggers don't get sued for defamation very often and why they should be excused from liability in many cases.
Eugene Volokh gave various examples of how legislators have protected speech beyond the constitutional imperatives of the First Amendment. He raised an interesting question that I hadn't really considered before and can't recall seeing discussed in the literature--could someone raise a constitutional challenge to 47 USC 230 because it provides different levels of protections to different types of media? My instinct is no, but I could see this question being more complicated. If this hasn't been covered in the literature, it seems like an excellent law review article. I wonder if plaintiff will bring this constitutional challenge.
I spoke a little about the liability facing bloggers who work together, such as group blogging and guest blogging arrangements. See my talk notes here. My principal point is that group/guest bloggers are in for some surprises. For example, 47 USC 230 might be defeated if a plaintiff can show that the bloggers were in a partnership or employment relationship, and a blogger might lose the ability to stop republication of his/her posts upon departure from a blog if the arrangement is characterized as a partnership, or the blogger is an employee, or if the blog posts are considered to be contributions to collective works under 17 USC 201(c). I didn't mean to scare bloggers about these issues, but I think a lot of bloggers--including law professors--aren't paying adequate attention to these issues, so I wanted to raise the profile of these issues. Read my entire paper here.
Betsy Malloy talked a little about the importance of anonymous blogging.
Dan Solove said that we are celebrating the blogger as "Davids" against the Goliaths (such as the thesis of Glenn Reynolds' book). However, he explained how the Davids are romanticized as responsible parties who are trying to build personal reputations, but the reality is that most bloggers are teenagers who may not fit our romantic ideal.
Larry Ribstein talked about "publicly engaged academic posts" or "PEAPs." Some of us thought he might be talking about marshmallow peeps.
Ann Althouse described her very laissez-faire attitude towards blogging--it's fun, and it's liberating to press "publish" and then be presented with a new blank window to be populated with new thoughts.
Chrstine Hurt talked about blogging while untenured. She said the two big risks of blogging were that it takes time and risks unfavorable exposure. But then she explained that blogging saves her time by forcing her to keep up with and self-organize the literature (which allows her to get a faster start on her scholarship come summer) and disciplining her to keep her reading/blogging within a fixed time block of her day. Exposure depends on the type of blog the professor maintains. (Or, as she asked in reference to Gordon Smith's cheese obsession: "What will your cheese ratio be?"). A blog that is non-law related can have lower risk of negative exposure, but doesn't do much to build the professor's reputation in the law professor community. Meanwhile, the exposure provided by blogs can open up doors--Christine explained how it allowed her to meet a lot of people who would have never known about her otherwise. (Certainly, both Christine and I felt very fortunate that our blogs opened the door to participate in such a terrific event).
Howard Bashman described how his blog had generated new clients for him. He also said that journalists seek out links from his blog (not vice versa!).
Peter Lattman described how his reporting is affected by reading blogs. From his perspective, journalists view blogs as useful resources, not competitors.
An interesting aspect of the conference. The event was scheduled during reunion weekend at Harvard Law School, and I believe it was billed as a way for alumni to get free CLE. As a result, there was a steady stream of alumni coming and going, many of whom had badges with little labels saying that they were attending their 25th, 35th, 40th or even 50th reunion. I don't want to overstereotype this group, but many of them were elderly men who, I suspect, had never read a blog in their lives. This created an interesting cultural dynamic in the few situations when the blogger crowd interacted with the alumni crowd. The most visible is when one alumnus asked if the bloggers wanted him as a reader. TWO different panelists said (only partially in jest) "no, I don't want you as a reader" right to his face! Ouch!
Many thanks to Paul Caron for organizing a great event and to the Berkman Center for hosting the event.
Other recaps:
* Tim Armstrong (a thorough and insightful recap with links to comments on all of the panels)
* Doug Berman
* Ann Althouse
* Dan Solove (a caricature post)
* Opinio Juris/Roger Alford (a collection of quotes from the event)
* Larry Solum (see April 28)
* Eric Muller
* Jim Lindgren
* Larry Ribstein
Ian Best provides the most thorough meta-post.
Posted by Eric at 02:58 PM | General | Comments (2)
April 26, 2006
Employee Blogging Risks
By Eric Goldman
A couple of weeks ago, I spoke at the North Carolina Journal of Law & Technology's symposium called "Attack of the Blog: Legal Horrors in the Workplace." (I definitely did not pick the name!) In the morning, I spoke about the risks that companies face when their employees blog. I see blogging as a subset of Internet communications generally, so I'm not sure these risks are limited to blogging. Nevertheless, the following risks are possible:
Non-Legal Risks
* Employee relations risk. A personal dispute between employees could be taken online, triggering a flame war or exposing the personal dispute to a broad audience within and outside the company.
* Customer relations risk. Employees could make disclosures that undermine customer confidence in the company's products by revealing too much about the company's inner workings or by disparaging the company's products. Employees could also oversell customers by making overstated claims about the products.
* Reputational risk. Employees might make personal disclosures about other employees/stakeholders that degrade the overall public perception of the company.
Legal Risks
* Admissions. Blog posts could be party admissions. Even if not, they could be adverse evidence introduced in litigation.
* Trade Libel. Employees could actionably disparage competitors' products.
* Disclosure of Non-Public Information. There are several ways that employees could convert non-public information into public information in ways that have legal significance.
- If the company is publicly traded, these disclosures may manipulate the stock price or constitute securities fraud
- Employees could undermine the company's position by tipping off competitors about plans in the works. If the employee publishes company trade secrets to the blog, in most cases that information will be irretrievably lost as a trade secret.
- Employees might disclose third party trade secrets, which could lead those third parties to bring a trade secret misappropriation claim.
- Employees might disclose patentable information that jeopardizes the company's ability to obtain a patent using that information. For example, a blog post should start the 1 year clock ticking under 102(b). Similarly, if the foreign patent applications have not yet been filed, the blog post should negate the company's ability to seek foreign patents on the published information. This is a real gotcha that may catch some unsuspecting companies.
Conclusion
Just to be clear, I'm not convinced these risks are all that serious. The emergence of blogs might lower the guard or caution of employees, but all of these risks would exist even without blogs, and most employees will make good choices. Even so, some employees will make poor choices, and thus companies who are concerned about employee blogging might choose to address blogging as part of an overall policy on Internet usage or disclosure of company information. At the same time, employee blogging can be a significant asset to the company, so companies might look at employee blogging as an resource to nurture rather than risky behavior to squelch.
Posted by Eric at 08:05 PM | General , Patents , Trade Secrets
April 25, 2006
Warez Trading Presentation at Fordham
By Eric Goldman
I gave a talk last week at the Fourteenth Annual Conference on International Intellectual Property Law & Policy at Fordham Law School. I was on a panel about criminal copyright infringement. Here's a rough transcription of my remarks:
Criminal copyright infringers can be divided into two types:* commercial infringers
* non-commercial infringersTypically, commercial infringers are in it for the money--they are running businesses for profit using someone else's intellectual property. Counterfeiters are a classic example. Commercial infringers have the potential to respond to criminal sanctions. If criminal sanctions not only deprive them of their profits and then cost them something more (cash or, more significantly, their personal liberty), commercial infringers may make rational calculations and may be deterred by the negative payoffs.
I'm more interested in the non-commercial infringer. What type of person willfully infringes copyright for no commercial gain?
The principal class of non-commercial infringer is called a "warez trader." Warez traders aggregate and distribute copyrighted works as a way to build their own personal reputation within the subcommunity. Their goal is to publicly distribute hard-to-find copyrighted works faster than other traders; doing so brings them adulation within the community.
Because warez traders are driven by ego, they do not respond to typical deterrence incentives. If anything, enhanced sanctions only increase the perceived impressiveness of their actions by making the digital assets that much scarcer.
So criminal copyright infringement has a low capacity to deter warez traders. As a result, the official government response has been to bust and lock up warez traders one-by-one. Basically, the government is fighting a war of attrition. The consequence is that about 120 United States warez traders have been convicted or pleaded guilty, with a few more internationally.
But wars of attrition are costly. The government incurs significant enforcement costs, the traders prosecuted incur significant personal costs (possibly beyond the culpability of their behavior), and other people may be chilled from socially-beneficial non-infringing copying by the fear of being busted next.
Worse, I think the war of attrition is ultimately unwinnable. I think that, so long as digital assets are scarce and risky, there will continue to be people who will be attracted to the trading of such assets--even if we successfully busted every single warez trader currently in the scene.
Unfortunately, I don't have any brilliant solutions. If our goal is to stop warez trading, individual busts are the only way that has any meaningful effect. But I continue to wonder if this is the best policy approach, or if we may be overstating the harm caused by warez traders and undercounting the cost of busting them.
I expect to have more to say about criminal copyright infringement and warez trading soon. Meanwhile, if you want more on this topic, see my earlier articles about warez trading:
Warez Trading and Criminal Copyright Infringement
The Challenges of Regulating Warez Trading
Critique of the No Electronic Theft Act
Posted by Eric at 06:43 PM | Copyright | Comments (2)
April 24, 2006
Bloggership Conference and Co-Blogging Law Paper
By Eric Goldman
On Friday, I'm participating in the "Bloggership: How Blogs Are Transforming Legal Scholarship" symposium at the Berkman Center for Internet & Society at Harvard Law School. This event is shaping up as a world class blogger-fest. If you're in the Boston area on Friday and want to experience "oral blogging" first-hand, you should definitely come! Or, at least come to the after-party from 9-11 pm where we'll all be hanging out and socializing. If you introduce yourself to me as a loyal reader, I might even buy you a libation. (If you don't know what I look like, see here--then add 4 years, subtract some hair, and add a few pounds).
If you can't make it in person, you can listen in via the webcast. Or, you can just wait for the inevitable torrent of post-symposium blog posts. Given the panel composition, I'm fairly confident that this event will be one of the most heavily-blogged-about events in the short history of blogs.
Whether you participate, listen in, or just sit silently bemused by all of the navel gazing, you should check out the symposium papers. I think this is a remarkable collection of papers about blog law and the role of blogs in advancing social knowledge.
My contribution to this collection is comparatively pragmatic. The paper is called "Co-Blogging Law" and takes a practical look at the legal consequences of joint/group blogging and guest blogging. It's still in draft form, so I'd very much welcome any comments. The abstract:
Bloggers frequently combine their efforts through joint blogging and guest blogging arrangements. These combinations may be informal from a social networks perspective, but they can have significant and unexpected legal consequences. This Essay looks at some of the ownership and liability consequences of co-blogging and guest blogging. To do so, the Essay will consider different possible legal characterizations of co-blogging, such as partnership, employment and joint ownership. The Essay concludes with some recommendations to minimize the implications of unexpected legal characterizations, including encouraging bloggers to make private agreements, educating bloggers about their choices, and exercising judicial restraint
I hope to see you in Boston!
UPDATE: The Friday after-party will be at Zephyr Lounge in the Hyatt Regency Cambridge, 575 Memorial Drive.
UPDATE 2: I must have been confused--the after-party was a pre-party on THURSDAY niight--sorry if I steered you in the wrong direction. But please come to the conference!
Posted by Eric at 07:19 AM | General
April 19, 2006
Junk Fax Doesn't Create Conversion Claim--Edwards v. Emperor's Garden
By Eric Goldman
Edwards v. Emperor's Garden Restaurant, 130 P.3d 1280 (Nev. Mar. 30, 2006)
Defendants sent a single junk fax to the (pro se) plaintiff. The plaintiff sued for a variety of causes of action, including conversion and private nuisance.
The court rejected the conversion claim on two grounds. First, the junk fax's consumption of toner and paper did not constitute sufficient destruction/material alteration to the property to constitute conversion. Second, even if it did, the court believes that a single fax is de minimis curat lex--basically, the damage is so trivial that the court is wasting its time dealing with the lawsuit.
The court also rejects the private nuisance claim, saying that it applies only to real property incursions.
None of this should be particularly surprising. The TCPA normally should be available for these types of claims. (It wasn't available here for other reasons). So it's not surprising that the efforts to plead around the TCPA fail. Nevertheless, I'm still wondering--if the harm doesn't rise to the level of conversion, could it meet the standards for trespass to chattels? There is a use of a chattels (the fax machine) and a tangible harm from the use (consumption of paper and toner). Under the Sotelo court's reasoning, maybe this would be enough...?
Posted by Eric at 09:45 PM | Marketing | Comments (1)
April 17, 2006
Winn on Adware Contracts
By Eric Goldman
The Berkeley Technology Law Journal has published Jane K. Winn, Contracting Spyware by Contract, 20 Berkeley Tech. L.J. 1345 (2005), a follow-up to her presentation at the Boalt Spyware Conference in April 2005.
Jane details the phenomenon that I’ve described as the “crisis of contract” online. People may manifest assent to adware from a legal formalities perspective, but we don’t really believe that they manifested assent. She thinks it would be a mistake to develop a one-off “solution” to the crisis of adware contracts (she analogizes such responses to the “dismal failure” of ad hoc solutions in the privacy context). Instead, she favors an across-the-board change in American contract law to incorporate the principles of the EU’s Unfair Contract Terms Directive.
Unlike many other adware commentators, Jane carefully distinguishes between existing law (adware contracts usually enforceable) and her preferred policy result (adware contracts should usually be invalid as “unfair marketing”). Thus, although she doesn’t like the existing contracting practices, she acknowledges that “in the absence of a conflict between contract terms and fundamental public policy of the forum, or evidence of misconduct so egregious that it might rise to the level of unconscionable, courts are likely to find that adware EULAs are enforceable contracts.”
The abstract:
The question of what constitutes "spyware" is controversial because many programs that are adware in the eyes of their distributors may be perceived as spyware in the eyes of the end user. Many of these programs are loaded on the computers of end users after the end user has agreed to the terms of a license presented in a click-through interface. This paper analyzes whether it might be possible to reduce the volume of unwanted software loaded on end users' computers by applying contract law doctrine more strictly. Unwanted programs are often bundled with programs that the end user wants, but the disclosure that additional programs will be downloaded is usually buried deeply within dense form contracts. Even though this makes it difficult for end users to recognize that they are agreeing to have multiple programs installed at once and that some of those programs may be objectionable, US courts are unlikely to invalidate those disclosures. This is because in business to consumer online contracting cases in the US, courts have tended to be very deferential to the intentions of the merchants in designing the contract interfaces. In the EU, by contrast, such conduct by software distributors would not be binding on consumers. Under unfair contract terms laws in place in EU member states, consumer objections to bundled software could not be overridden by terms hidden in standard form contracts.
Posted by Eric at 02:44 PM | Adware/Spyware , Licensing/Contracts | Comments (2)
Movable Type Upgrade and Liberalized Comments Policy
By Eric Goldman
I've upgraded the blog to the new version of Movable Type with the comment spam filter that everyone is praising. So I'll experiment again with allowing comments without a Typekey account. I hope the lower barrier to entry will encourage you to comment more freely. Meanwhile, we'll see if the comment spammers nail the blog again....
Posted by Eric at 02:36 PM | General
April 15, 2006
Parental Liability for Kids' Copyright Infringement
By Eric Goldman
Somehow I missed this excellent memo by EFF on parental liability for kids' infringement, particularly in the context of RIAA music file-sharing lawsuits. The memo discusses the boundaries of parents' liability for contributory and vicarious infringement. The memo also discusses parental liability statutes and the possible copyright preemption analysis. Unfortunately, the memo doesn't reach any definitive conclusions, but this omission is understandable given the fact-specific nature of the inquiries.
Posted by Eric at 03:09 PM | Copyright , Derivative Liability
April 13, 2006
Advertiser Not Liable for Spam--Hypertouch v. Kennedy-Western University
By Eric Goldman
Hypertouch, Inc. v. Kennedy-Western University, No. 3:04-cv-05203-SI (N.D. Cal. Mar. 8, 2006)
This is another in a series of CAN-SPAM lawsuits filed by Hypertouch, which apparently has entered the CAN-SPAM plaintiff business. I blogged on one of Hypertouch's other lawsuits here.
In this case, Hypertouch claims that emails promoting an online educational institution, Kennedy-Western University, violated a long list of CAN-SPAM provisions. The two principal issues in this case are: (1) does Hypertouch qualify as an "Internet access service" for purposes of having standing to privately enforce CAN-SPAM?, and (2) if Kennedy-Western didn't initiate the emails, did Kennedy-Western have the requisite scienter to be liable for procuring the illegal email services?
Definition of Internet Access Service
The statute defines "Internet access service" as a service that enables users to access content or services over the Internet. There's no question that Hypertouch runs email servers, but there is a factual dispute about exactly what Hypertouch does. Kennedy-Western alleges that Hypertouch has no customers; Hypertouch claims to have 120 email accounts, many of which is provides at no charge.
Still, Hypertouch's allegation seems to leave open a key question: are any of these accounts used by third parties/non-employees? The distinction is critical because if all of Hypertouch's email services are used by employees, then Hypertouch is similarly situated to every company that gives employees email accounts. Under that reading, then, virtually every employer can be a private plaintiff under CAN-SPAM.
The other reading--the one I think Congress meant--is that an IAS provides email or connectivity to third party non-employees. Thus, if a company is in the business of providing email services to the public (even if the number of customers is small, and even if the company provides email accounts for free), then it should have a private right of action under CAN-SPAM. If the company merely provides email accounts to employees, then I think Congress did not intend to create a private right of action under CAN-SPAM. Note that these employers may still have recourse under the CFAA, common law trespass to chattels, any surviving state anti-spam laws, and various state computer crime laws.
The court sidesteps this entire distinction, merely saying that CAN-SPAM's private cause of action exists even if the IAS provides free email accounts and even if the IAS does not provide services other than email. All of this is true but, I think, misses the fundamental question.
Did Kennedy-Western "Procure" the Illegal Emails?
The spams at issue were sent by a variety of email marketers. Kennedy-Western claims that it didn't know these third parties were spamming. Instead, Kennedy-Western presented evidence that it had policies restricting spam and had monitored its marketing agents. On this basis, the court says that Kennedy-Western had sufficiently produced evidence that it lacked the requisite scienter.
Hypertouch could have adduced evidence to defeat the summary judgment motion, but the court says that Hypertouch didn't introduce any concrete evidence of Kennedy-Western's scienter. Instead, Hypertouch only made a conclusory allegation of knowledge, and this was further undercut by Hypertouch's admission in a deposition that Hypertouch had no evidence of Kennedy-Western's knowledge that spam was being sent on its behalf. Accordingly, Kennedy-Western wins summary judgment on knowledge, defeating the CAN-SPAM claim.
Conclusion
This case reaches an outcome consistent with Fenn v. Redmond Venture, a 2004 Utah state court case (under Utah's state anti-spam law) where the defendant defeated the claim simply by showing that it had an anti-spam policy. In that case, the anti-spam policy was dispositive, while in this case the plaintiff might have been able to overcome the policy with sufficient evidence of knowledge from other sources. However, once again this shows the benefit to advertisers of having an anti-spam/anti-illegal-adware provision in their advertising contracts.
Also, this case is another datapoint in the running dialogue about when advertisers are liable for the acts of their media partners. In this respect, anti-spam laws generally (and CAN-SPAM in particular) are a little unusual because they statutorily enact advertiser liability provisions. In contrast, I've yet to find another medium where advertisers are clearly liable for the acts of their media vendors. Yet, with rulings like this and the Fenn case, defendants might be encouraged that courts will carefully evaluate advertiser liability even when there's a statute creating such liability. From a defense standpoint, this is good news.
Brian McWilliams' comments on the Hypertouch case.
Posted by Eric at 10:51 AM | Derivative Liability , Marketing , Spam | Comments (1)
April 12, 2006
WSJ Debate on Advertiser Liability for Adware
By Eric Goldman
Today, the Wall Street Journal published an email debate between me and Ari Schwartz of the Center for Democracy and Technology about advertiser responsibility for adware.
Regular blog readers know that this has been a hot button issue of mine for some time because I think it's vitally important. The contours of liability will determine the future viability of the adware business. And depending on the precedents set in the adware context, advertisers could face liability for the acts of media vendors in other media. These have tremendous consequences for the flow of both advertising information and for ad-supported editorial content.
Ari is a great sparring partner and someone I respect a lot, but unfortunately the word "responsibility" is inherently ambiguous. As a result, in our debate Ari focused a lot on branding consequences to advertisers from running ads delivered by adware, while I focused mostly on existing legal precedents. The fact that we emphasize different aspects of this issue shows how easy it is for people to talk past each other on this topic. Nevertheless, I believe the WSJ debate is one of the more extensive and detailed discussions on the topic of advertiser liability for adware, so I highly commend it to you.
Posted by Eric at 09:19 AM | Adware/Spyware , Derivative Liability , Marketing
April 10, 2006
AIT Click Fraud Lawsuit Stayed
By Eric Goldman
Advanced Internet Technologies v. Google, 2006 WL 889477 (N.D. Cal. Apr. 5, 2006)
AIT is the lead plaintiff who replaced Click Defense in a click fraud class action lawsuit. Last month, Google announced a tentative settlement of the very similar Lane's Gifts and Collectibles lawsuit. Presumptively, the Lane's Gifts settlement will cover the substance of the AIT lawsuit, thereby mooting it. So Google requested the judge to stay the AIT lawsuit while the Lane's Gifts settlement is pending.
In this April 5 ruling, the judge granted Google's motion to stay the AIT lawsuit. This ruling isn't really a win for Google yet, but should it close the Lane's Gifts settlement, and should that settlement moot this AIT lawsuit, then it will only reinforce that Google negotiated a very good deal to settle its past click fraud liability.
Posted by Eric at 06:00 PM | Licensing/Contracts , Search Engines
April 09, 2006
Database Publisher Gets 230 Defense--Prickett v. infoUSA
By Eric Goldman
Prickett v. infoUSA, Inc., 2006 WL 887431 (E.D. Tex. Mar. 30, 2006)
infoUSA publishes a variety of factual databases, including a directory of businesses. Among other data collection techniques, infoUSA permits anyone to submit directory listings through a web form. The form asks submitters to fill in certain fields and gives a drop-down menu for purposes of characterizing the business' industry. infoUSA claims to take various steps to confirm the data's accuracy. infoUSA then syndicates its business directory data to third party websites (such as Yahoo and SBC, both defendants in this case) for a fee.
In a fact pattern reminiscent of Zeran, an anonymous actor uses infoUSA's form to submit false information about Prickett and his wife. The information indicates that Prickett is in the adult entertainment business and his wife is in the lingerie business.
For reasons that are unclear to me, but may be better understood by Texans, the publication of this information causes members of the general public to engage in a campaign of harassment against Prickett and his wife. They are subjected to obscene, harassing and threatening phone calls. They have strange visitors to their house (including a visitor who takes care of some personal business on their property). And, they are reported anonymously to Child Protective Services--an extremely cruel "prank" if unwarranted because the resulting investigation is terrifying to any parent.
(Given the relatively tame data submitted to infoUSA, especially in comparison with the horrendous postings in Zeran, my instincts tell me that not all of these attacks against Prickett and his wife were prompted solely by the web publication of data in infoUSA's database. However, the court apparently stipulates causality for purposes of this case).
So, to be clear, the data flow goes as follows:
Anonymous submitter => infoUSA => Yahoo and SBC => criminal/tortious actors => Prickett and his family
Prickett and his wife sue infoUSA, Yahoo and SBC for defamation, invasion of privacy, trespass/nuisance, negligence and intentional infliction of emotional distress. infoUSA and SBC defend on 47 USC 230 (Yahoo was dismissed last year).
On its face, the plaintiffs' claims are covered by 230. infoUSA published the data submitted by the anonymous submitter, and SBC published the data submitted by infoUSA--so both are publishing data from a third party. As a result, presumptively the plaintiffs can go after the beginning and end of the data chain (the submitter and the criminal/tortious users), but everyone in between should be insulated by 230.
To get around 230, the plaintiffs try 3 arguments:
1) infoUSA populated the data in the pull-down menus. The court rejects this argument by citing to Carafano and Roommate.com.
2) infoUSA purports to confirm the data's accuracy, which the plaintiffs argue convert infoUSA into the data provider. The court, citing to Barnes, notes that confirming data accuracy is exactly what publishers do, so this only solidifies infoUSA's eligibility for 230.
3) infoUSA syndicates the data for a profit. I can't recall a plaintiff raising this syndication argument before, so I think this is a new argument. The court, however, rejects the argument flatly, saying that 230 protects infoUSA from liability for third party data, regardless of what infoUSA does to make money from the data. (cite to Carafano). The data came from a third party, so infoUSA is off the hook.
In an interesting footnote, the plaintiffs found some of infoUSA's marketing collateral where infoUSA described itself as a "content provider." The plaintiffs try to use this as an admission, but the court rightly deems this irrelevant to the statutory inquiry.
Thus, the plaintiffs' effort to get around 230 fails, and the court grants infoUSA's motion for summary judgment. The court also dismisses SBC from the case for the plaintiffs' failure to respond to the motion, so the case appears to be over. This result is not surprising, as the court correctly applied the extensive and fairly clear defense-favorable precedent. Indeed, with such weak arguments to get around 230, I do not understand why the plaintiffs wasted their time and money.
Interestingly, despite the strong factual parallels to Zeran, the court doesn't cite to Zeran once. If nothing else, this shows how much defense-favorable precedent has developed in the past 9 years; there are now plenty of cases to cite beyond Zeran.
Posted by Eric at 12:36 PM | Derivative Liability
April 06, 2006
Goldman from Marquette to Santa Clara
By Eric Goldman
Starting next academic year, I have accepted an appointment as an Assistant Professor and Director of the High Technology Law Institute at Santa Clara University School of Law. The school's news release. I have posted more details and some personal thoughts here.
Posted by Eric at 11:43 AM | General
Calboli on Geographic Indications of Origin and TRIPs
By Eric Goldman
My colleague Irene Calboli has posted "Expanding the Protection of Geographical Indications of Origin under TRIPS: Old Debate or New Opportunity?" to SSRN. This article does a good job recapping the different policy perspectives about GIs. The abstract:
"Geographical indications of origin (GIs), their definition, and rationale for protection have historically been the subjects of heated debates in the international community. Fierce defenders of GIs protection, European countries have traditionally advocated that GIs should not be used by unrelated parties because GIs identify the unique qualities, characteristics, and reputation of the products to which they are affixed. To this claim, the United States and other "new world" countries have generally responded by pointing out that many GIs are generic terms on their soil, and, thus, consumers could not be confused as to the origin of the products identified by these terms. The adoption of the Agreement on Trade Related Aspects on Intellectual Property Rights (TRIPS) in 1994 marked an important victory for the European approach by establishing general minimum standards for GI protection for all of its signatories. Distinguishing it from any previous international agreement, TRIPS required all signatories to establish minimal protections for GIs through their national laws and to provide extra protection for GIs that identify wines and spirits. Member countries also had to agree to TRIPS' "build-in agenda" to take part in future negotiations that would expand this enhanced protection. This essay analyzes the issue of GI protection pre- and post-TRIPs and considers whether extension of the protection set forth by TRIPs is desirable for the international community. The recent developments on the debate on GI are explored, particularly for wine and spirits, with an eye to whether the advantages of extending the current protection could outweigh the disadvantages of such an extension. Finding that enhanced GI protection in all areas could be more beneficial than detrimental for economic and agricultural development in most TRIPs countries, this essay suggests that there should be a "reasonable" expansion of the current GI protection among member countries of TRIPs."