April 2007 Quick Links

By Eric Goldman

* Rebecca blogs on CollegeNET, Inc. v. XAP Corp., 2007 WL 927946 (D. Or. March 26, 2007), where a jury awarded $4.5M in damages under 43(a) because the defendant had a privacy policy saying it wouldn’t disclose personal information to third parties “without the user’s express consent and direction,” but when users affirmatively said “yes” to “Are you interested in receiving information about students loans and financial aid?,” the defendant sold the name to a third party. This is the right result because the combination of the two statements–we won’t disclose to third parties, and a lack of pronouns about who would send the information about loans/financial aid—clearly imply that the information would come only from the defendant. However, it would have been easy to avoid this result! As the court points out, the defendant could have added one more line to the privacy policy (“If you ask for more info on loans/financial aid, we may provide your name to third parties”) or pronouns to the call-to-action (“Are you interested in receiving information about students loans and financial aid from us or selected third party vendors?”). While the result is right, the damages sure seem high.

* Claria has taken its PersonalWeb tool out of beta. This tool creates a personalized navigation page for consumers by inferring their preferences rather than requiring them to proactively customize the personalization, which only 10% of users did.

* From BusinessWeek: To capture interest in a hot story, media entities buy keywords like “Virginia Tech massacre” immediately following tragedies.

* MailChannels’ technology deliberately introduces latency into its server’s handshakes, effectively creating a slow lane for spammers.

* Internet Archive v. Shell has settled. John O. may have more thoughts on this.

* Latest evidence that consumers don’t always want to have their say: less than 0.2% of visits to YouTube and Flickr are for the purpose of uploading content.

* Todd J. Hollis’ lawsuit against dontdatehimgirl.com has been dismissed for lack of jurisdiction. Unfortunately, the court deliberately sidestepped the 47 USC 230 issue, which would have been a simple way to clear the docket permanently.

* BusinessWeek article on how dictionary-makers are struggling to sort through the proliferation of new well-known words via the web.

* A historian raises some quality concerns about Google’s book scanning efforts. I think the metadata issue is particularly serious, as many people will expect Google’s metadata to be accurate and will cite it accordingly. HT Rebecca.

* Lawsuit over a botched tattoo. Whoops! Speaking of bad-idea tattoos, check out my archive post on tattoo advertising.

* New York councilman wants to ban “menu spam.”

* Thyroff v. Nationwide Mutual Insurance Co., No. 41, 2007 N.Y. LEXIS 264 (N.Y. Mar. 22, 2007), holding that electronic records are protected by a state law against “conversion.” This is certainly consistent with some precedent, such as Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003) saying that domain names can be converted, but this broad holding seems plainly wrong. With respect to copyrightable electronic records, federal copyright law should preempt state anti-conversion laws. What am I missing?

* Some items that made me laugh this month:

- Dilbert on crowded trademark namespaces

- Comedy Central has the amazing story of My-T-Boy, the cute branded character who lapsed into the public domain

- Marge Simpson googles herself and doesn’t like what she sees from the satellite image of her home. Very funny!