February 28, 2007
Lycos Not Liable for Objectionable Message Board Posting--Universal Communication Systems v. Lycos
By Eric Goldman
Universal Communication Systems, Inc. v. Lycos, Inc., 2007 WL 549111 (1st Cir. Feb. 23, 2007)
47 USC 230
Just last week, I said that we no longer see lawsuits where plaintiffs sue a message board provider for users' messages because everyone (except maybe pro se plaintiffs) have gotten the message that 47 USC 230 squarely preempts such lawsuits. Then, bam!--the next day, I learn that the First Circuit has just issued an opinion on precisely those facts. (In my defense, this case has bounced around the courts for a few years.)
In this case, some users of the Raging Bull website went after the plaintiff and its president. In response, the plaintiffs sued Lycos for operating Raging Bull, but the court had none of it per 47 USC 230. As the court says:
we have no trouble finding that Lycos's conduct in operating the Raging Bull web site fits comfortably within the immunity intended by Congress. In particular: (1) web site operators, such as Lycos, are “provider[s] ... of an interactive computer service”; (2) message board postings do not cease to be “information provided by another information content provider” merely because the “construct and operation” of the web site might have some influence on the content of the postings; and (3) immunity extends beyond publisher liability in defamation law to cover any claim that would treat Lycos “as the publisher.” [including, in this case, claims under Florida's securities laws and cyberstalking law]
To get around 230, the plaintiffs--analogizing to Grokster--argued that 230 doesn't cover a website's active inducement of its users to engage in illegal behavior (the plaintiff borrows the phrase "culpable assistance" from Doe v. GTE). The court didn't reject this argument outright but instead pointed out that the plaintiffs' pleadings don't allege anything more than the standard operation of a message board, so the pleaded facts don't support the assertion that Lycos made any such inducement or culpable assistance. See further discussion on this point from Thomas O'Toole. Further, the court rejected the plaintiff's request for discovery about Lycos' "construct and operation" of its website, saying that 230 protects Lycos' construction of a standard message board, and it wasn't going to sanction a fishing expedition for more concrete evidence of Lycos' encouragement of its users. (For another example of a court rejecting discovery requests in the face of a 230 defense, see Doe v. Bates).
The few blogs that have picked up on this case have not mentioned its trademark aspects, but IMO the trademark ruling may be the more interesting part. The plaintiffs also alleged that the message board discussion diluted their trademark under Florida's anti-dilution statute. The court correctly noted that 47 USC 230 doesn't preempt the trademark dilution claim. Nevertheless, the court rejected the claim because any harm to the trademark was based on critical commentary, and the First Amendment limits the scope of dilution claims to avoid chilling such criticism.
The court also rejects the plaintiffs' claim that Lycos made a commercial use of its trademark. Lycos displays ads on the message board pages, but the court said that Lycos' use is still non-commercial. Instead, the use is what I characterize as "commercial referential use" (I have a blog post coming on this very soon), saying that "Lycos is not using the 'UCSY' trade name 'on' a product (or business) at all, but is simply referring to the existing company that has adopted that trade name." Therefore, even though Lycos is a for-profit business displaying advertising on top of content that references the plaintiff's trademark, Lycos still isn't making a commercial use of the trademark.
This is an important defense win for at least two reasons. First, I believe that this is the first 1st Circuit case interpreting 47 USC 230. The First Circuit now joins such important authorities as the Third Circuit, Fourth Circuit, Ninth Circuit, Tenth Circuit, the California Supreme Court and the Florida Supreme Court in broadly construing 47 USC 230. No circuit has reached a contrary result, although the Seventh Circuit and Eleventh Circuit have expressed some discomfort with expansive interpretations of 47 USC 230.
Second, the court smartly constrained trademark law from automatically inhibiting the creation of a venue for user comments about a trademark. We need more cases like this to say that merely talking about a trademark in an ad-supported context is outside trademark law's reach.
February 27, 2007
Rescuecom v. Google Amicus Briefs
By Eric Goldman
I previously blogged about the law professor amicus brief in Rescuecom v. Google. In total, 4 amicus briefs were filed in the case. Here's the whole list:
* Law professors' brief by Stacey Dogan and me
* Electronic Frontier Foundation brief by Jason Schultz, Corynne McSherry and Fred von Lohmann
* Public Citizen brief by Paul Levy
* eBay/Yahoo/AOL brief by Celia Goldwag Barenholtz, Janet Cullum and others of Cooley Godward Kronish (warning: 1.8MB file)
Other source material in the case:
February 26, 2007
Search Engines Defeat "Must-Carry" Lawsuit--Langdon v. Google
By Eric Goldman
Langdon is a griper. He sought to buy ads on the major search engines to advance his gripes, but Google allegedly rejected his ads because they attacked people, MSN allegedly ignored his ad request, and Yahoo allegedly said it would only take ads from sites it hosts. Langdon then sued all three pro se, requesting (among other relief) that the search engines be required to carry his ads.
As expected, the judge emphatically shut down Langdon's lawsuit, calling some of his claims "specious" and "frivolous." Specifically, the judge made the following key points that surely will help search engines in future litigation:
* Search engines have a First Amendment right to reject ads as part of their protected right to speak or not (see Miami Herald v. Tornillo). This opinion is consistent with the uncited Search King ruling, although that case framed Google's Page Rank as protected opinion.
* Search engine decisions to reject ads is protected by 47 USC 230(c)(2) as a legitimate decision to filter "otherwise objectionable" content. The court concludes that "Section 230 provides Google, Yahoo, and Microsoft immunity for their editorial decisions regarding screening and deletion from their network." I'm expecting the KinderStart judge to protect Google's ranking choices under 230(c)(2) as well. (In case you're wondering, we're still waiting for the KinderStart ruling that was promised by the end of 2006.)
* Search engines aren't state actors and are not bound by the First Amendment, so they do not deprive advertisers (such as Langdon) of First Amendment rights by rejecting their advertising. This opinion is consistent with at least a dozen other cases holding that private IAPs and websites aren't state actors.
In the end, the court dismissed all of Langdon's claims against Google, Yahoo and MSN except one. Unfortunately for Google, the court didn't dismiss Langdon's breach of contract claim at this early stage in the lawsuit. Fortunately, I am 100% confident that the court will grant Google's summary judgment motion to dismiss the contract claim, so it's just a matter of time before Langdon's futile effort is fully extinguished.
While Langdon's pro se status probably will limit the future precedential influence of this case, it's still an emphatic and helpful win for the search engines. Indeed, I suspect Google's lawyers have already pointed out the case to the KinderStart judge to give him further ammunition to reject that lawsuit.
February 24, 2007
Domain Name Regulation Talk and McGeorge ICANN Conference Recap
By Eric Goldman
Yesterday, I went to the McGeorge conference on ICANN and domain names. My slides from my talk entitled Keyword Regulation and Domain Name Exceptionalism. I made the point (first outlined in my Deregulating Relevancy article) that domain names are just a subset of navigational keywords, yet we've developed a pretty extensive list of domain name-specific regulations. I argued that we should harmonize the regulatory treatment of keywords by deregulating domain names.
A couple of other noteworthy talks from the event:
* Dr. Filomena Chirico from Tilburg University spoke about "Restrictions on Competition in Internet Governance"--basically, an antitrust analysis of the domain name market. The analysis was nicely presented but, I think, misses a critical point--she focuses on domain names as a standalone market, while I think there's significant cross-elasticity of demand between domain names and other types of marketing/keyword purchases.
* Dr. Todd Davies of Stanford gave an excellent talk entitled "Communication Infrastructure and Information as Forms of Private Property: A Behavioral Perspective on Technology Evolution." Effectively, this was a behavioral economics analysis of developing IP regulations. He then applied these principles to ICANN, showing that establishing ICANN creates a number of predictable problems from a behavioral economics approach, so we would be better off without ICANN trying to regulate domain names. He brought a number of interesting and valuable social science tools to the process of developing IP regulations. For example, he pointed to the psychology principle of "loss avoidance" and showed that endowing a person with IP rights creates the prospect of loss avoidance if that person feels like they are being deprived of their property. I've seen a lot of discussions about the problems of creating IP rights, but I'm not sure if I can recall seeing the loss avoidance principle raised as part of the reasons why IP owners fight so hard to protect their rights and howl whenever there is a proposed scale-back of rights. This looks worth exploring.
* Clark Kelso, California's Chief Information Officer (and a professor at McGeorge), gave the lunchtime keynote talk. He started the talk by listing a parade of horribles about Internet content/behavior (porn, spam, security threats, etc.) which led him to characterize the Internet as a "sewer" that needed substantive regulation to clean it up. In Q&A, I asked him if the Internet was more of a sewer than any other communication medium (his response indicated that he probably didn't understand my point). I shudder to think that he might be advancing the "Internet-as-sewer" meme throughout the corridors of power in Sacramento. Clark also came out swinging against net neutrality regulation. It will be interesting to see if the Schwarzenegger administration takes a more aggressive stance in that debate.
February 22, 2007
Rescuecom v. Google Law Professors' Amicus Brief
By Eric Goldman
Rescuecom v. Google, 06-4881-CV (2nd Cir., law professors' amicus brief filed February 22, 2007)
Eighteen law professors submitted an amicus brief in the Rescuecom v. Google case, urging the Second Circuit Court of Appeals to affirm the lower court's ruling that Google's sale of trademarked keywords does not constitute a trademark "use in commerce" under the Lanham Act.
The brief makes two main points. First, keyword ads enable the marketing of goods/services that are complementary to the trademark owner's offering or otherwise relevant to the consumer's interests, which in turn reduces consumer search costs. Second, direct trademark infringement occurs only when a party is marketing its own goods and services under the trademark owner's brand; other players (such as search engines) are liable for that behavior only if they meet the standards of contributory trademark infringement.
Stacey Dogan and I were the principal authors of the brief. I will post some of my outtakes from the brief soon.
Other source material in this case:
The Most Effective Anti-Terrorism Law EVER
By Eric Goldman
I really don't understand the way legislators think. The latest example of proposed laws that make me wonder "is that really necessary?": NY A5026/S631 (search here; apparently this law was also introduced in 2006 but died in committee). The bill's main operative provision proposes:
A person is guilty of criminal sale of an internet domain name to a terrorist group when he or she knowingly sells or provides without charge an internet domain name to any organization included on the list of organizations engaged in terrorist activities or who pose a terrorist threat compiled, maintained and updated by the state office of homeland security pursuant to paragraph (t) of subdivision two of section seven hundred nine of the executive law. Criminal sale of an internet domain name to a terrorist group is a class A misdemeanor.
Are they serious? Do the sponsoring NY legislators actually think they will single-handedly stop terrorism by criminalizing domain name sales? The law doesn't distinguish between individual sellers and retail registrars, so I wonder if registrars have the requisite scienter through automated processing of orders. If the law doesn't restrict registrar sales, then what exactly does it do? (presumably, govern the random one-off resale?) But even if it restricts registrars, I wonder if terrorist groups will think to register the domain name under a different name...
February 21, 2007
Cyberspace Law Readers--Free to Good Home
By Eric Goldman
[UPDATE: Sorry, they are all gone!]
I have six leftover casebooks from my Cyberspace Law class last semester. These are lightly edited compilations of cases and statutes that I teach in class. (See my syllabus for the table of contents). Email me if you want a free copy--first come, first serve, and only to US mailing addresses.
MSN Wins 47 USC 230 Case (Easily)--Eckert v. Microsoft
By Eric Goldman
Eckert v. Microsoft Corp., 2007 WL 496692 (E.D. Mich. Feb. 13, 2007)
We don't see these cases any more. Man gets defamed on online message board and receives harassing messages through an online messaging tool, so he sues the message board/messaging tool provider (in this case, Microsoft). Microsoft files a 12(b)(6) motion to dismiss per 47 USC 230, and case is over--just like that. It's worth noting that the plaintiff sued pro se, which I think provides a significant explanation why the case was even brought.
February 19, 2007
Buying for the Home v. Humble Abode Settles
By Eric Goldman
Buying for the Home, LLC v. Humble Abode, LLC, No. 03-CV-2783 (JAP) (D. N.J. Stipulation and Order of Settlement filed Feb. 16, 2006)
You may recall the Buying for the Home v. Humble Abode decision from last Fall, part of the topsy-turvy jurisprudence from 2006 on whether buying/selling trademarked keywords constitutes a trademark use in commerce. In the prior opinion, the defendant Humble Abode failed to win summary judgment to dismiss Buying for the Home's infringement claim. Further, Humble Abode brought a counterclaim based on Buying for the Home's purchase of keywords containing Humble Abode's trademarks, and the court also denied Humble Abode's SJ motion for its counterclaim.
Cooler heads have prevailed, and the parties settled the case. Both agreed not to use the other's trademarks on their websites. However, as far as I can tell, the parties did not agree to stop buying each other's trademarks as keywords--a pretty big omission if that's what started the lawsuit in the first place. Further, the settlement deal includes the initial aggressor, Buying for the Home, paying the defendant, Humble Abode, $10,000. So Buying for the Home initiates the lawsuit and beats Humble Abode's motions for SJ, but nevertheless settles the case without stopping Humble Abode from buying its trademarked keywords, AND ends up writing a check to Humble Abode to boot? What gives?
I asked Ronald Coleman, Humble Abode's lawyer (and a fellow blogger on trademark law), about the payment, and he explained: "our counterclaims had more merit than their complaint, the summary judgment decision notwithstanding. The judge saw it this way too and made this settlement happen."
Perhaps there's a little advocacy bravado in Ronald's explanation, but no doubt Coleman and his client have reason to be happy with this outcome. Just another reminder that it's rarely a good choice to bring a lawsuit over keyword purchases, ESPECIALLY if you also buy keywords containing the defendant's trademarks. In this case, for its troubles, Buying for the Home spent lots of money on its own attorneys' fees, settled the case without making any real progress, and wrote the defendant a $10,000 check! Buying for the Home would have been much better off just investing its time and money in building its business.
UPDATE: Although last year's judicial opinion focused on keyword advertising, Ronald Coleman clarifies his view of the case and the role of the keyword purchases in it:
There were never any purchases by my client of key words involving the plaintiff, which there would be no reason for my client to do, considering that no one had ever heard of “Buying for the Home.” The record was clear on this, though the judge (despite ample authority to the contrary) refused to consider the authenticated email from Google to this effect on summary judgment. By and large our counterclaim was about his use of common-law trademarks on his website as product identifiers. As a mechanical matter they acted much like search terms (i.e., within plaintiff’s own product database on Yahoo! Stores) and this could have been an interesting aspect of the case: “Internal” or private use of a competitor’s common-law product names within one’s own online store, for the purchase of products that must objectively be acknowledged to be materially identical to those provided by the competitor. It’s clear, though, that if I sell a COLEMAN WIDGET that’s objectively identical to a widget Goldman sells, and we both buy them from the same widget factory, that does not permit Goldman to say “we sell COLEMAN WIDGETS.” But in this fact context the Court could and should have clarified that this rule applies (1) even in terms of internal use of a trademark on a website or in a catalog and (2) even when the marks used are, as is typical, not registered, but are “model names” utilized by the senior user’s “catalog,” online or otherwise. There is ample authority for these individual propositions as well, and that is why we were confident, ultimately, about pressing forward, if necessary.
Beyond that almost all of the trouble was the result of searches generated from contextual use of key words, including product names and the HUMBLE ABODE registered mark, on the plaintiff’s own website. The purchase of key words from search engines by plaintiff was a fairly insignificant part of the case. In fact the offending behavior had long since ceased – which certainly made it easier to settle.
February 18, 2007
Steinbuch's Second Battlefront Against Cutler Shut Down
By Eric Goldman
Steinbuch v. Cutler, 2007 WL 486626 (E.D. Ark. Feb. 7, 2007)
Everyone's favorite blog law case, Steinbuch v. Cutler, spilled over to a second front. While the lawsuit over Cutler's blog posts continues in DC, Steinbuch initiated a lawsuit against Cutler and her publishers over the publication of her book, The Washingtonienne. Steinbuch has moved to Arkansas to take a law faculty position, so to make everyone else's life difficult, he sued for privacy violations in a federal court in Arkansas.
In this ruling, the court has little difficulty dismissing the claims for lack of jurisdiction. No one other than Steinbuch is located in Arkansas, and Steinbuch moved there after the publication date (thus, under the single publication rule, the continuing publication in Arkansas doesn't count for specific jurisdiction). Hyperion, the book's publisher, didn't make a marketing push in Arkansas, and sales--both by Hyperion and by Cutler from her website--have been anemic (see below), i.e., consistent with Asahi stream of commerce. HBO has optioned the book for a possible TV series, but they haven't committed any privacy violations yet. Plus, in all cases, the book is fictionalized, so it's not entirely clear that any Arkansan would recognize the book as a privacy violation. Finally, the corporate parents of Hyperion and HBO are too attenuated from this lawsuit simply by owning another defendant.
As a result, the court says what everyone knew all along--that the proper venue for this lawsuit is DC, where the blog-related litigation is ongoing and where all of the witnesses are located.
While this is yet another embarrassing judicial development for Steinbuch (this time, the embarrassment is seeing a law professor's motion being so soundly thumped), it's also embarrassing for Cutler and Hyperion that very few people are buying Cutler's book. As part of showing that they are not doing business in Arkansas, Cutler and Hyperion sheepishly admit that there haven't been a whole lot of sales. According to the opinion, "at least four copies of the book have been purchased here, forty-six copies were sold to retail or wholesale accounts, and two books were purchased from the internet....Arkansas has not proved to be a lucrative market for Cutler's book, and the evidence shows that the book's minimal distribution is diminishing." Let's see, 52 copies at an MSRP of $24 = less than $1,250 of gross revenue from the entire state of Arkansas. Ouch!
I'm also intrigued that HBO is thinking about developing the book into a TV series. Maybe they will call it "Sex in DCity"?
February 16, 2007
MySpace Suit for Liability for Sexual Assault Dismissed
By John Ottaviani
Doe v. MySpace, Inc., No. A-06-CA983-SS (W.D. Tex. 2/13/2007).
“If anyone had a duty to protect Julie Doe, it was her parents, not MySpace.” (Sparks, J.)
This is a HUGE win for MySpace! Plaintiff’s negligence and gross negligence claims were thrown out on two separate theories.
Eric and I have been debating for months whether Section 230 of the Communications Decency Act applies to real world physical injury relating to, but not directly resulting from, the publication of material on the Internet (here, the plaintiffs allege that a 14-year-old was sexually assaulted after giving her cell phone number to a 19-year-old she first met on MySpace.com, and that MySpace.com was negligent for failing to implement basic safety measures to prevent sexual predators from communicating with minors on MySpace). While the contest is not over, we finally have our first decision, and the score is now Eric – 1/John - 0.
At the outset, Judge Sam Sparks of the United States District Court for the Western District of Texas reviewed the legislative history of the Communications Decency Act of 1996 and several of the cases upholding immunity of an interactive service provider under Section 230 for claims other than defamation. In particular, the court relied on Zeran v American Online, Inc., a 1997 case where the victim of a vicious prank sued America Online, Inc. for failing to remove a false advertisement offering T-shirts featuring tasteless slogans related to the 1995 Oklahoma City bombing and instructed interested buyers to call the plaintiff to place an order. In that case, the Fourth Circuit affirmed the dismissal of the claims, because “Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”. In the MySpace case, the Court analogized the girl’s allegations that MySpace knew sexual predators were using the service to communicate with minors and failed to react appropriately, to Zeran’s claims that AOL failed to act quickly enough to remove the ads and to prevent the posting of additional ads after AOL was on notice that the content was false.
In my view, this analogy does not hold up. (Eric will disagree). In Zeran, the plaintiff argued that he was harmed because AOL failed to pull a defamatory posting quickly enough. In this case, the plaintiff’s claim was decidedly different: she claimed that she was harmed because of MySpace’s negligence in failing to take appropriate security measures, not because of any posting on the website. The Court, however, found this to be “artful pleading”, and dismissed the argument. “No matter how artfully plaintiffs seek to plead their claims, the Court views plaintiffs’ claims as directed toward MySpace in its publishing, editorial and/or screening capacities”. The Court concluded that MySpace was entitled to immunity under Section 230 and dismissed the plaintiff’s negligence and gross negligence claims with prejudice.
However, it is not clear whether this was a holding or is dicta, and here is where my theory of the case takes over. The Court then went on to also dismiss the negligence and gross negligence claims by refusing to impose a legal duty on MySpace to institute reasonable safety measures to protect minors from sexual predators. The Court refused to impose such a duty on MySpace, “when a minor is harmed after wrongfully stating her age, communicating with an adult, and publishing her personal information.” The Court also rejected an attempt by the plaintiffs to extend premises liability cases to the Internet context, particularly here, where MySpace provides its service to users for free. The Court analogized to the 2003 Doe v. GTE Corp. case, where the Seventh Circuit affirmed the dismissal of claims against the Internet services and web-hosting services provider for hosting images of athletes who were unknowingly recorded unclothed in a locker room, because web-hosting services have no duty to investigate their clients’ activities or prevent potential injury that results in therefrom.
The Court also dismissed the fraud and misrepresentation claims because they did not meet the heightened pleading standard of Federal Rules Of Civil Procedure 9(b). Rule 9(b) requires allegations of fraud to be stated with particularity. The court found that the plaintiff had not plead her fraud and misrepresentation claims with sufficient particularity and dismissed these claims without prejudice. According to the opinion, plaintiffs’ counsel also admitted in open court that the plaintiffs no longer wished to pursue the fraud and misrepresentation claims because the real basis of their cases was negligence.
It is not clear which of the Court’s Section 230 analysis or its negligence analysis is dicta, as it clearly did not need to go down both paths to dismiss the negligence and gross negligence claims. On the other hand, because the court did reject these claims on both grounds, MySpace is in a great position to fend off similar claims in other pending and future lawsuits. As a result, Eric and I will continue to differ on this issue until we receive more guidance.
In the end, while I have a great deal of sympathy for the girl and her family, as I have said previously, I have a hard time seeing that MySpace.com has any legal duty to protect its members (under age or of age), how it can protect its 14-year-old members better than their parents, or that there is sufficient causation to impose liability on MySpace for actions that occur in the physical world. Judge Sparks apparently agrees with me, with what is a candidate for the best legal quote of the first quarter of 2007, if not for the entire year: “If anyone had a duty to protect Julie Doe, it was her parents, not MySpace.”
A copy of the decision can be found here.
[Eric's addendum: I just wanted to make 2 brief additional points to John's excellent post. First, as he predicted, I disagree with him about the merits of this case. As this case and others have repeatedly shown, 230 is even broader than people initially assume. It was obviously applicable here to the negligence claim, and when the plaintiffs gave up their misrepresentation claim, they doomed themselves to being squarely governed by the Zeran precedent. Second, I think this case is a huge win for MySpace and an interesting read generally (especially the discussion about virtual premises), so I'm planning to add this case to my Cyberspace Law syllabus next year. Whether you agree with the outcome or not, the opinion is worth reading. Eric.]
February 15, 2007
Google, Click to Call, and Prank Calls
By Eric Goldman
Google has [re]launched [see below] a crazy feature called "Click to Call" in Google Maps that allows users to initiate a telephone call from their search results. When you search on a business in Google Maps, the left hand nav bar will display the business' name, address and phone number. Next to that is the word "call." Click on that, and it asks for your phone number. Provide your phone number, and Google will immediately call you. Pick up the phone, and the system will say "connecting," and then it will ring the business you've searched for. Pretty slick.
But...as usual, there's a dark side. In this case, Google doesn't authenticate that you entered your phone number. Want to play a joke on a friend? Search for a funky business, click call, enter your "friend's" phone number, and your "friend's" phone will ring. When your "friend" picks up the phone, they will be automatically connected with the funky business, wondering why they are now speaking to Frederick's of Hollywood, or the local police office, or the Federal Trade Commission. Ha ha ha.
Or, want to surprise a "friend"? Pick any business and put in your "friend's" number at 2 am in the morning. Do it twice for good measure. And if you really want to win adulation among your friends, put in their cell phone number repeatedly and burn up their minutes. I'm sure there's yet other mischief possible (but I'm not deviant enough to think it all through). Best feature of all--the caller ID displays the target business' number, so there's no way for recipients to block the incoming calls or even trace who's pranking them.
Obviously, it's stupid for Google to allow a person to initiate a telephone calls without doing any authentication. Google weakly acknowledges the mischief risk in their help information:
Google takes fraud and spamming very seriously. We use technical methods to prevent future prank calls from the same user within a reasonable period of time. You won't be charged for any such calls. Please contact email@example.com if you believe someone is entering your phone number without your permission or knowledge.
Gee, thanks, that will help me fall back asleep when I get the 2 am call. Even better would be authenticating people before allowing them to initiate a phone call. I have to believe that Google will fix this oversight soon. Until then, party on!
UPDATE: It appears that the prank risk was spotted back in November and Google pulled the feature at the time. It looks like Google relaunched it without any new controls.
February 14, 2007
Rescuecom v. Google Appellee's Brief
By Eric Goldman
Rescuecom v. Google, 06-4881-CV (2nd Circuit appellee brief filed February 12, 2007)
Google filed its brief in the Rescuecom v. Google appeal to the Second Circuit. Admittedly, my view may be biased, but I thought this was a very strong brief.
Other relevant documents:
The law professors' amicus brief is on track to be filed next week. Obviously, I'll post it here when it's done. As a bonus, I'm planning to post some outtakes from the brief as well.
February 13, 2007
Google Loses Belgium Copyright Case--Google v. Copiepresse
By Eric Goldman
Google has lost (again) the Copiepresse copyright case in Belgium over Google News. In September 2006, the court initially ruled against Google, but Google didn't make an appearance in the case. So Google asked for and got a rehearing, but even after Google had a full opportunity to advocate its position, the result was the same: a loss for Google.
I don't know Belgian copyright law, so it's hard for me to judge the legitimacy of this ruling under that law. Plus, Google has said it will appeal the case, so it's possible this court got it wrong. However, I can make 2 general observations about this situation:
1) As I've said before, I think Google treads a lot closer to copyright's boundaries than it publicly admits. Naturally, in public, it takes the advocacy position that its offerings are clearly within copyright law, but this is hard to distinguish from cheap rhetoric. Instead, I think it's fair to say that Google pushes the edge with a lot of its services. Therefore, it should not be surprising that, given enough data points, some judges will conclude that Google has gone too far. Thus, we can string together this case and the Perfect 10 decision from a year ago and show that at least 2 judges have voted that Google crossed the line. Even if both cases are reversed on appeal, I don't think that would change my point: the fact that 2 trial courts have ruled against Google shows that they tread much closer to copyright's border than they portray.
2) It may be that Google News is illegitimate in all countries. I'm not sure it's infringing in the US, but this hasn't been resolved (AFP v. Google is still pending). However, assuming that Europe's IP laws are different than US laws in ways that matter, Google will likely have to (a) revamp Google News worldwide to satisfy the lowest common denominator, or (b) customize Google News on a country-by-country basis to reflect local rules. This isn't a new phenomenon--we ran into this issue in the Yahoo Nazi memorabilia case--but this case does remind us that product localization remains important even on the "borderless" Internet.
UPDATE: Mike Madison argues that, based on this case, he's more concerned about the future of journalists than about Google's future.
February 12, 2007
City Law Requiring Taxi Co to Refer Competitors Isn't TM Infringement--MCQ's v. Philadelphia Parking
By Eric Goldman
MCQ's Enterprises, Inc. v. Philadelphia Parking Authority, No. 07-0067 (E.D. Pa. Jan. 11, 2007)
As part of making the cab system more consumer-friendly, Philadelphia created a "coordinated dispatch system" for taxicabs. Each taxicab would install GPS. Then, when a taxicab company gets a call requesting a cab, it is required to check to see where its nearest cabs were located as well as the location of competitor cabs. If the company's nearest cab is too far away (an undetermined time, but about 15-20 minutes) and a competitor's cab is closer, the rule requires the company to ask the caller if they would prefer the competitor's cab.
The Yellow Cab Co. sought a TRO against this law based on several legal doctrines, including takings, trade secrets, tortious interference, and (importantly for our purposes here) the Lanham Act. The argument is that the regulation is forcing Yellow Cab to redirect consumers even though the consumer had requested Yellow Cab by calling its trademarked phone number.
The court has little difficulty rejecting this argument, saying that "Plaintiff cites no legal authority for the proposition that offering an alternative service to Plaintiff’s customers violates Plaintiff’s trademark in the Yellow Cab name, color, or phone number." Instead, the regulation simply increases consumer choices by giving them the option of getting quicker service from a competitive cab or waiting for the trademark owner's cab.
In theory, this case has some bearing on the keyword advertising cases. Clearly, from this court's perspective, advertising competitive alternatives--even when triggered by a trademark owner's trademark (in this case, the phone number)--doesn't support a TRO. The court specifically references the lack of confusion because of the clear delineation between the two offerings, although I wonder if this court could have also rejected the claim for a lack of trademark use.
Unfortunately, I'm not sure if this case has too much precedential power. It's a TRO ruling, and a rather efficient one at that. Second, the case has already settled. Nevertheless, the case is an interesting example of how keyword-triggered adjacent comparative advertising, if clearly delineated, might drop out of the Lanham Act.
While I think the court got the Lanham Act right, I have mixed emotions towards the law generally. As a taxicab consumer, I think this law has some merit assuming that taxicab companies actually implemented it properly (I can imagine some dispatchers being less than enthusiastic or forthcoming when referring competitors). However, I'm bothered by the takings issue (which the court called "colorable") and the compelled speech issue, even though the plaintiff didn't raise the First Amendment issue. Then again, I don't normally deal with heavily regulated industries like taxicabs--I'm sure glad we don't need medallions to become bloggers! (Of course, if Cass Sunstein had his way as described in Republic.com, even we as bloggers would be forced to promote the "competition.")
February 09, 2007
Humane Society Barks at the Wrong Defendant--Humane Society v. Amazon
By Eric Goldman
The Humane Society of the United States v. Amazon.com (DC Superior Ct complaint filed February 8, 2007)
I'm going to start this post with two (relatively uncharacteristic for me) moralistic assertions that I think are largely beyond serious debate:
Proposition #1: dogfighting and cockfighting (and other types of animal fighting) are sadistic and disgusting "sports" that have no place in our society. I support laws prohibiting these activities to protect the unwilling animal victims of this sadism, and I further enthusiastically support the efforts of organizations like the Humane Society that attempt to shut down the purveyors of dogfighting and cockfighting.
Proposition #2: I think it's disgusting that Amazon carries magazines and videos supporting the dogfighting and cockfighting "industry." If I owned Amazon, I would drop those media products as a matter of principle, no matter how profitable (in fact, I doubt it's very profitable). I don't think a faux "free speech" justification for adding this to the magazine line really works here. Amazon exercises its right to speak by deciding what to carry; it has no compulsion to carry these media products, and it can and should choose not to do so.
But I am also very, very frustrated by plaintiffs who just don't "get" 47 USC 230, so let's reiterate (yet again) Cyberlaw 101. It's not that complicated. Because of 47 USC 230, Amazon isn't liable for third party content, PERIOD, unless it involves IP, the ECPA or federal criminal law. It's really that simple. Yet, it seems like plaintiff after plaintiff must personally experience the ritual first-hand--plaintiff files complaint against Internet company for third party content, defendant files motion to dismiss, judge hands out emphatic loss. Why must plaintiffs go through this doomed dance? Why, why, WHY?
It's particularly heartbreaking to see the Humane Society tee itself up for a resounding failure because it detracts mightily from its otherwise important and sad story. The Humane Society has launched an ambitious campaign against various providers of media catering to dogfighting and cockfighting clientele. Good for the Humane Society! I hope they succeed wildly. But, in a baffling display of legal ignorance, they also sued Amazon for selling the media, both for selling magazine subscriptions and for enabling merchants to advertise videos in its marketplace. WRONG, WRONG, WRONG. Amazon's behavior here is fully covered by 47 USC 230, just like eBay is fully protected for auctions on its site. See, e.g., Gentry v. eBay (sale of fake sports memorabilia); Stoner v. eBay (sale of bootleg recordings).
Specifically, the Humane Society claimed violations of DC's consumer protection law based on violations of various federal laws. These claims are preempted as a "state" law. The Humane Society can't salvage the claims by asserting they are derived from federal criminal law; a civil claim based on a federal criminal law is still preempted by 47 USC 230. See Doe v. Bates.
It appears that the Humane Society is trying to get around this in part by claiming that Amazon is the merchant of record, so Amazon can't claim that the media products are really third party content. I might be more sympathetic to this argument if Amazon took possession of the media products and sold them from its inventory for its own account. However, it appears that Amazon is just an ordering front for the magazine, which is fulfilled directly by the publisher, and with respect to the videos, these appear to be merchant listings delivered directly from the merchant to the buyer. It appears that Amazon is just the cheese in the sandwich, much like eBay. Therefore, I think it would be disingenuous to characterize Amazon as the seller.
The Humane Society also claimed violations of DC's consumer protection laws based on misrepresentations (basically, saying the magazine/video content is legal, when it isn't). I'm not sure the facts even support this claim; but if they do, I think these claims are also generally preempted by 47 USC 230 when based on third party content (although I don't think John O. agrees).
News reports have also indicated that the Humane Society is trying to get state prosecutors to bring a civil enforcement action against Amazon. These, too, are preempted by 47 USC 230. Therefore, despite the multi-pronged legal attack against Amazon, all of the prongs look destined for failure.
While I'm sad that the Humane Society didn't do its legal homework, I want to reiterate my Proposition #2. Amazon should voluntarily drop the magazines and wipe the videos off its site--not to minimize its own legal liability, but because the content of those media products is probably illegal and because it's the right thing to do. Until Amazon makes this choice, I will think less (a LOT less) of its brand.
February 06, 2007
Ezor on Email Blocklists
By Eric Goldman
Jonthan Ezor has posted a short paper (10 pages + endnotes), Busting Blocks: Appropriate Legal Remedies For Wrongful Inclusion In Spam Filters Under U.S. Law, to SSRN. This article deals with thorny issues created by email blocklist services, although he focuses specifically on volunteer organizations. The article discusses an email marketer's recourse for incorrectly being listed as a spammer on a spam blocklist, including defamation and intentional interference with prospective business relationship claims, as well as the limits of those claims under 230(c)(1) and 230(c)(2). He concludes that blocklist vendors should use objective criteria, should have an appeals process to correct mistaken listings, and should be surgical in blocklisting IP addresses. He also concludes that vendors should be:
held to professional standards of conduct, including objectivity, reasonable care, and (to the extent their activities cause harm) accountability. The alternative, relying on their good faith and internal procedures, is no longer acceptable, given how critical e-mail has become.
The issues raised by blocklist services are complex, and they span a variety of rating services online, including spyware filters, Google's PageRank and eBay's feedback forum. On the one hand, filters are simply in the opinion "industry," and they add significant value by centralizing behavior monitoring because it's too expensive for each of us to independently form our own opinions.
On the other hand, by ceding control to filter vendors, we have to trust that these vendors will make good choices. There have been plenty of examples where filter vendors have made questionable choices--the RBL was notorious for being arbitrary and unresponsive, but I've heard plenty of complaints from software vendors upset by their characterizations as adware/spyware and even more complaints from websites unhappy about the operation of Google's PageRank filter. So the centralization of opinion formation can have significant private (and perhaps social) costs if done poorly, and I'm not entirely clear that the market for centralized opinions is particularly efficient.
Thus, opinion vendors can have a lot of power but may not be fully accountable for wielding that power unwisely. Despite this, I favor the production of such opinions, so from a legal standpoint, I think filters should be broadly protected for their choices. On the other hand, we as consumers of filters need to be vigilant about the filters we trust.
February 02, 2007
January 2007 Quick Links
By Eric Goldman
* Also on the topic of Wikipedia and marketers, Wikipedia has tagged all of their pages NOFOLLOW so that there's no way a marketer or website can get PageRank credit from inserting a link in Wikipedia. A reporter emailed me to ask "Do you think this move staves off the potential demise you have predicted?" My response: "No. This was actually raised in the comments to my initial post on the topic in Dec. 2005. Two points: (1) People who recycle Wikipedia content on their own site (such as Answers.com) may not use the nofollow attribute, so there still may be a PageRank payoff by inserting links on Wikipedia pages. (2) More importantly, marketers may want Wikipedia traffic directly (rather than the indirect boost in search engines). Wikipedia is already highly placed in the search engines, so it is a big traffic source in its own right."
* Speaking of my prediction of Wikipedia’s future, NPR picked up on it.
* Now that MyBlogLog is owned by Yahoo and thus increasing its traffic, Greg Linden reports that it's getting spammed.
* I previously reported that ICANN was thinking about retiring some TLDs. The first casualty? .um (for US Minor Outlying Islands, such as the Midway and Johnston Atolls), which got chucked because the registry operator didn't want to continue operating it and there were no registrations in the TLD.
* "The Search Tax: Are Search Engines Leeches?" This article discusses the role of search engines as intermediaries between consumers and marketers, able to charge marketers for access to consumers (hence, the "tax" reference). The article also discusses the value of buying trademarked keywords:
What's difficult for marketers to swallow, however, is the clear evidence the search engines (and affiliate marketers with good organic rank on brand terms) have the power to insert themselves between the consumer and the brand, even when consumers clearly have an interest in the brand (as indicated by their search query containing the brand or trademark).
Marketers' temptation may be to refuse to pay for brand keywords, sticking instead to the generic keywords that are also clearly aimed at any given target audience. In every case we've tested (and I have tested many and will likely test many more), that would be a mistake, even when the marketer has high organic rank on his brand. The results of every test we've executed indicate the incremental gain received when paying for traffic on a brand term has a very high net ROI (define) because:  Significant additional screen real estate on the SERP is gained.  The total control over title and description allows for greater offer control.  Top positions on one's brand usually aren't very expensive due to the engines' relevance algorithms.  The ability to control and tune the landing page results in a conversion rate percentage in many cases is higher for the combined pages than for one alone.
* We might consider the contrast between the prior post and this one: "Should Google Pay Off Brand Owners With Cut Of Keyword Sales?"
* Brand advertisers resist using Google because Google doesn't allow third party ad serving technology. But compare a BusinessWeek article reporting that big brands are buying up CPC inventory and pricing out small- and medium-sized advertisers.
* Google revised its algorithm to eliminate most of the famous Googlebombs (like "miserable failure"). Danny's recap. Google hasn't specified details, but I'm assuming that Google has somehow reduced the weight given to anchor text.
* eBay is blocking the auction of virtual assets due to the "legal complexities" of such sales. Because of its differentiated EULA, Second Life virtual assets can still be auctioned. The News.com article suggests that these transactions will move from eBay to other trading fora. Even so, this might inhibit the liquidity of these secondary market transactions, which could reduce the return of virtual asset speculators.
* According to Jakob Nielsen, about 1/2 of online giftcard recipients either junked their email notification or didn't trust it (i.e., thought it was phishing).
* HER, Inc. v. Re/Max First Choice, LLC, 2007 WL 43747 (SD Ohio Jan. 5, 2007). Competitor 1 registers domain names containing Competitor 2's trademarks, Competitor 2's principals' names and the principals' home address and phone number. The domains roll over to Competitor 1's website. Competitor 1 then sends a couple of gripe spam to Competitor 2's employees from some of the registered domain names bashing Competitor 2's business practices. The court isn't sympathetic, granting a PI based on ACPA and trademark infringement. While this type of competitor-bashing isn't permissible (and, frankly, registering domain names with the target people's home address and phone number is bizarre), Competitor 1 should have been able to find ways to deliver the same content without running afoul of the law.
* Google has lost an appeal at the OHIM in Europe over the rights to use the trademark "Gmail" for its email services.
* Does a "lactivist's" t-shirt saying "the other white milk" infringe the Pork Board's trademark in "the other white meat"? No, and what a dumb question!
* The RipOffReport.com has appeared on this blog several times (see here and here, among others). The Phoenix New Times (the local Phoenix alternative weekly) runs a lengthy and interesting story about the Ripoff Report and its principal, Ed Magedson. Worth reading.