June 2007 Quick Links
By Eric Goldman
* Spam cases are coming at a regular clip, and it’s tricky divining the latest state of the law. Two recent cases that caught my attention:
– US v. Impulse Media Group, 2007 WL 1725560 (W.D. Wash. June 8, 2007). This case involved a porn site that used affiliate marketers who didn’t comply with the porn spam labeling requirements. The government argued that the advertiser should be strictly liable for this breach, but the court fairly emphatically rejected that (same as Cyberheat). But the news isn’t all good for the defense, as the court also rejected its SJ motion, showing that the question of scienter about affiliate behavior remains a tough one for courts. Venkat’s writeup.
– Kleffman v. Vonage Holdings Corp., No. 07-2406 (C.D. Cal. May 22, 2007). A nice complement to the Facebook v. ConnectU case, each holding that aspects of California’s anti-spam laws are preempted by CAN-SPAM. In this case, the targeted behavior was the fact that the emailer may have used multiple email addresses to bypass electronic spam filters, but there wasn’t anything false/deceptive about each email itself. See the BNA write-up and Venkat’s writeup. I’ve lost track of the preemption cases, but it seems like state anti-spam laws are really getting munched after the Mummagraphics case.
* NYT on the pros/cons of captchas.
* Goodmail has expanded its pay-to-email system to Comcast, Cox, Roadrunner and Verizon.
Intellectual Property
* In Explorologist v. Sapient, involving the posting of a video deconstructing Uri Geller’s act, the defendant is arguing (per CCBill) that 47 USC 230 preempts British copyright law.
* A rushed high school yearbook editor downloads lots of Facebook photos and adds them to the yearbook to fill space. Not a good idea!
* Techdirt: Who owns the right to license the design of military weapons to toy manufacturers?
* Marty on intellectual property protection for sexual activity.
Contracts
* A California man claims he bought a Gateway computer that never displayed text properly. Is he bound to the clickthrough agreement displayed on bootup? If this is the only way Gateway presented its contract, the answer should be no.
* At a conference at Southwestern Law School, I heard Prof. Lon Sobel talk about “idea submission” law. He illustrated the phenomenon that “where there’s a hit, there’s a writ”: he suggested that hit TV shows produce an average of 6 “you stole my idea” demand letters. The great 1980s movie Coming to America produced 12 such letters, which resulted in 7 actual lawsuits. Interestingly, Prof. Sobel made the case (implicitly, not explicitly) that there is no separate law of “idea submissions,” but rather any such doctrines are subsumed within standard contract law.
eBay
* eBay has changed its stance towards fighting counterfeiters, and it now does more policing itself.
* eBay shill bidder pays $400k to settle with NY AG.
Social Networking/Blogs
* The NCAA kicked a reporter out of the stadium for live-blogging the event. Tip to NCAA: It’s neither possible nor wise to control the flow of real-time information. Get over it. HT: Techdirt.
* Just came across this article: Stacey Schesser, MySpace on the record: The admissibility of social website content under the Federal Rules of Evidence, First Monday, volume 11, number 12 (December 2006).
* Wired: 7 MySpace sex offenders busted.
Marketing/Advertising
* AMCO Ins. Co. v. Lauren-Spencer, Inc., 2007 WL 1795970 (S.D. Ohio June 20, 2007). Insured offers jewelry from a website. Third party claims that the insured’s jewelry constituted copyright infringement. Insured tenders the lawsuit to her insurance company under the advertising injury policy. Insurance company seeks a DJ of no coverage. The court says that the website constitutes advertising for the products, and so the policy applies to photos of the allegedly infringing jewelry items, even if the photos themselves were created by the insured. Observation #1: The advertising injury policy is very helpful to web businesses. Observation #2: Due to cases like this, I suspect insurance companies are reducing their willingness to offer advertising injury coverage to web businesses.
* Taylor v. XRG, Inc., 2007 WL 1816142 (Ohio App. Ct. June 21, 2007). The defendant was a vendor retained by bulk fax senders that handled consumer responses, including opt-outs from future faxes. Court held that the vendor wasn’t liable for any TCPA/state anti-junk fax laws allegedly broken by the fax sender.
* Newish ad format: ads running 2 seconds in duration.
Search
* It’s taken me a while to digest some of Google’s new efforts. First, Google released two tools (a new toolbar button and a new personalized tab) to anticipate searchers’ needs based on their past searches. Second, Google expanded its search history to incorporate all aspects of a user’s searching through its services (what it calls “web history“). Meanwhile, Google has reduced its storage of personalized search data from 18-24 months to 18 months before that data gets anonymized. FWIW, I’ve been using Google personalized search since November 2005 (presumably, some of my data will be flushed any time now). Google has now captured almost 12,000 searches (with a high so far of 255 searches in a single day). Despite this, Google still doesn’t do a good job making predictions for me.
* Another great study from Jim Jansen (see the last one I blogged about). This one presented identical search results branded from different search engines and found that consumer ratings of relevancy varied based on the brand (Yahoo and Google came out on top). The logical inference–branding does matter to perceptions of relevancy. HT: SEL.
* Matt Cutts on the various ways humans affect Google search.
Domain Names
* Denmark’s .dk TLD registry has enacted rules targeted at wiping out domainers. See here (Sec. 8.3.6).
* What’s hotter than iPhones? iPhone-related domain names.
Adware/Spyware
* Declan on the latest legislative rally against spyware, the Senate’s Counter SPY Act.
* The FTC issued final approval for the DirectRevenue settlement of $1.5M. Commissioner Leibowitz dissented, saying the cash payment was too light.
Online Reputations
* Avvo has filed a motion to dismiss the lawsuit over its ratings of attorneys. The motion is very heavy on the 1st amendment and very light on 230. HT: WSJ Law Blog.
* The Washington Post gushes about Reputation Defender and its competitors, without really acknowledging the value of reputational accountability or the potential for takedown/pushdown abuse.
* Entrepreneurs figured out a way to game FICO scores. Fair Isaac will try to close the loophole.
* Ed Magedson of Rip-Off Report was the victim of a vicious harassment campaign demanding that he remove complaints from the site.
* Lengthy NYT article on Wikpedia. Not much new there, but it does hint at the young age of Wikipedians, and it talks about how “pride of ownership” motivates Wikipedians.
Other
* June 26 was the 10 year anniversary of the classic Reno v. ACLU Supreme Court opinion.
* The NYT has launched a new technology blog called BITS.