September 27, 2007
Ask.com Not Liable for Search Results or Indexing Decisions--Murawski v. Pataki
By Eric Goldman
Murawski v. Pataki, 2007 WL 2781054 (S.D.N.Y. Sept. 26, 2007)
William Murawski is one of those not-going-to-win political candidates from New York (strongly reminiscent of Carl Person). Unhappy with the 2006 election process, Murawski sued a variety of parties for their role in suppressing his candidacy. For our purposes here, let's focus on Murawski's claims against Ask.com and Yahoo.
With respect to Ask.com, Murawski claims that Gunzburger, who operates the website politics1.com, defamed Murawski by putting his "name in a list directly below a member of the Communist Party." He goes on to claim that Ask.com thus "showed plaintiff to be associated with the Communist Party (as a result of the alleged statement on http://Politics1.com)." According to the court, Gunzberger published the following text on his site:
Maura DeLuca (SWP)-Garment Worker & Communist Political Organizer
& Ben O'Shaughnessy (SWP)-College Student & Communist Political Organizer
Bill Murawski (Write-In)-Journalist, Public Access TV Show Producer & Frequent Candidate
& Donald Winkfield (Write-In)-Journalist
Based on this presentation, the court says Gunzburger didn't defame Murawski even though (because Ask.com and other search engines don't show line breaks in the search results) search results may contain the words "Communist Political Organizer Bill Murawski" in that order. But per 47 UC 230, Ask.com isn't on the hook either because its search results are based on content from another information content provider (politics1.com). Murawski also asked Ask.com to stop indexing politics1.com, and Ask.com's decision not to do so is an editorial judgment protected by 47 USC 230.
This case reminds me a little of the Maughan case, where Google's automated compilation of site descriptions in the search results allegedly created new semantic meaning by remixing the indexed words. It's nice to see this court recognize that search result presentations and search engine indexing decisions are completely protected by 47 USC 230. This result reinforces the broad discretion given to search engine choices about how to gather and present third party content.
With respect to Yahoo, Murawski claimed that Yahoo prevented him from posting messages to Yahoo groups, which deprived him of his First Amendment rights. Like every other case where a plaintiff has claimed that a private website deprived them of Constitutional rights, the court rejects the claim because Yahoo is a private actor, not a state actor, and therefore not restricted by the First Amendment.
September 24, 2007
Utah Trademark Protection Act Update
By Eric Goldman
Kate Kaye at ClickZ provides an update on the Utah Trademark Protection Act. According to Kate, there have been extensive and continuous backroom negotiations to produce a new statute (too bad this can't take place with more public input/scrutiny), and progress has been made. However, the proposed deal just sounds weird--the state still intends to create an electronic registration mark registry but the "bill itself doesn’t provide for a lawsuit or penalty for infringement." Not sure what's the point/value of that. We will have to see the proposed revisions to make sense of this.
DiMeo v. Max Affirmed by Third Circuit
By Eric Goldman
DiMeo v. Max, 2007 WL 2717865 (3rd Cir. Sept. 19, 2007)
You may recall the 2006 47 USC 230 ruling in DiMeo v. Max. The opinion was an instant Cyberlaw classic. Why? Among other credentials: the case involved an angry mob that formed after the alcohol ran out early at a party; the defendant self-describes himself as a "raging dickhead;" and the district court opinion quotes user comments such as what someone might look like if he was "getting fisted by an angry gorilla." And, more substantively, the ruling cleanly stands for the proposition that message board operators (and, by inference, bloggers) aren't liable for user-posted comments.
The Third Circuit has affirmed the district court in a brief and unremarkable ruling. It isn't the first time the Third Circuit has opined on 230 (see Green v. AOL from 2003), and the opinion does not break any new ground. The opinion efficiently says the website was an ICS, the complaint alleges publication, and DiMeo didn't allege that Max wrote the postings, so this is a textbook application of 47 USC 230. The only "remarkable" aspect is that the Third Circuit--fortunately--doesn't cite to the Roommates.com opinion at all.
September 18, 2007
Keyword Metatags Revisited
By Eric Goldman
For years, I've been saying that keyword metatags are technologically irrelevant and therefore should be legally irrelevant. My conclusion was heavily based on the research of Danny Sullivan, a guru on this topic. Recently, Danny updated his research about how search engines treat keyword metatags. According to Danny:
* Google and Microsoft ignore keyword metatags completely for purpose of displaying search results
* Yahoo and Ask use keyword metatags for retrieval. This means that these engines index the words in the keyword metatags and will show the page as a search result if there is a keyword match.
As far as I can tell, this is the same as 2002, when both Google and MSN ignored keyword metatags and Inktomi (part of Yahoo) and Teoma (part of Ask) publicly acknowledged that they indexed keyword metatags.
Even though Yahoo and Ask display search results based on keyword metatags, there is no evidence that the terms in keyword metatags get any special weight in the ranking algorithms. Thus, "metatag stuffing" should have no meaningful effect on the site's ranking for the stuffed term. In other words, put in "Britney Spears" as many times as you want in the keyword metatags, and you're probably still going to get no more credit than if you put the term into the keyword metatags once. Further, putting a term into the keyword metatags should have no greater effect on Yahoo/Ask search results than if the term is visibly displayed on the page.
So why put a term into the keyword metatags at all? According to Danny, keyword metatags are an appropriate place to put synonyms or common typographical errors of search terms that would be appropriate for the page--that way, the synonym or misspelling isn't displayed on the page, but it will still be indexed in Yahoo and Ask. But Danny concludes that these benefits aren't worth much. He says: "it's not worth the time fretting about it."
So, from a legal standpoint, do keyword metatags matter? Given that they are ignored by Google and Microsoft, which collectively comprise the vast majority of searches, I think the answer should be clearly no. But even if we focus on their indexing at the minority of searches taking place at Yahoo and Ask, I still think the legal consequences should be zero. The keyword metatags only have a technological effect if they contain trademarked terms that aren't shown on the rest of the page (otherwise, the page will be indexed on the term anyway), but if these terms are contained only in the keyword metatag, the chance of good search results placement on the trademark is very, very low. So as a practical matter, terms in the keyword metatags are still effectively irrelevant as a way to draw consumers searching for the trademark. Accordingly, I think they should be legally irrelevant as well.
At minimum, I think it's irresponsible (in an ethical sense, if not from an RPC sense) for a plaintiff's lawyer to go into court claiming that keyword metatags support trademark infringement without informing the judge of the likely technological irrelevance of the keyword metatag. As far as I can recall, no judge has yet opined on the legal consequence of irrelevant metatags, but I remain unclear how many judges are being educated about how keyword metatags work (or don't work). I am reasonably confident that if judges were informed about the technological consequences of keyword metatags, the many ridiculous keyword metatag precedents would get reversed.
September 12, 2007
Fall 2007 Tour Schedule
By Eric Goldman
L'Shanah Tovah! Here are some events I'll be attending this semester. It would be a delight to see you at one or more of these:
Sept. 17: Blogging, Scholarship and the Bench and Bar, Santa Clara University
Sept. 17: IT Security World, SF (topic: Blog Law)
Sept. 28-29: Works in Progress Intellectual Property, Washington DC
Sept. 29: TPRC, Arlington, VA (topic: Brand Spillovers)
Oct. 1: New Media Law Conference, SF (topic: Keyword Advertising)
Oct. 2: Trust Online, Santa Clara University
Oct. 5: Trademark Dilution: Theoretical and Empirical Inquiries, Santa Clara University
Oct. 18: Association of Internet Researchers, Vancouver (topic: investment decisions in virtual worlds)
Nov. 1: Jonathan Zittrain lecture, Santa Clara University
Nov. 5: Bay Area Blawgers, SF
September 10, 2007
Fall 2007 High Tech Law Institute Events
By Eric Goldman
I realize this is a self-serving assessment, but I think we have an absolutely terrific roster of events lined up this Fall! Check out some highlights:
Sept. 17, 10:30am-12pm. Blogging, Scholarship, and the Bench and Bar, sponsored by the American Association of Law Schools (AALS) & the National Law Journal. This panel will discuss the effect of blogs on legal scholarship, judges and practicing lawyers. To discuss these issues, we have some top-notch bloggers (Larry Solum and Paul Butler, and I'll be there too), Judge Berzon from the Ninth Circuit, and Cindy Cohn from the EFF. If you attend in person, you get the free CLE; alternatively, you can watch it live from your desktop via our real-time webcast. See the details here.
Oct. 2, 8:30am-2pm. Trust Online, co-sponsored with the Center for Science, Technology & Society, Markkula Center for Applied Ethics and Microsoft Corporation. This half-day event will gather lawyers, technologists and policy-makers to discuss how online businesses can engender trust from their users. The big name draw is Richard Clarke, but I'm equally excited to hear about some recent academic research by the always-interesting Chris Hoofnagle and Alessandro Acquisti.
Oct. 5, 8:45am-5:15pm. Trademark Dilution: Theoretical and Empirical Inquiries, a full-day academic conference on trademark dilution. Take a look at the schedule/speaker list and you'll see why I'm so excited about this conference. If an all-out trademark geekfest appeals to you, this really is a can't miss event. As a bonus, you'll get a boatload of free CLEs.
Oct. 12, noon-1pm. Prof. Mike Madison, Univ. of Pittsburgh School of Law, will give a faculty workshop on the topic of "Information Governance." This event is limited to academic faculty and staff; so please email me directly if you want to come.
Nov. 1, 6:30-8pm, Distinguished Lecture by the well-known and highly respected Cyberlaw Prof. Jonathan Zittrain, Oxford Internet institute, entitled “The Future of the Internet--And How to Stop It.” RSVP to Jasmine Pilgeram.
Nov. 5, 6-8pm. Bay Area Blawgers Roundtable at Fenwick & West's San Francisco office. This is the second gathering of local legal bloggers, following on the very popular first gathering from March. See my recap of the first event. I'll put out a more formal announcement later; for now, RSVP directly to me.
Check out our events page for the complete run-down. Hope to see you at these events!
September 07, 2007
August 2007 Quick Links, Part II
By Eric Goldman
* e360 Insight v. Spamhaus Project, 2007 U.S. App. LEXIS 20725 (7th Cir. Aug. 30, 2007). An email marketing company was listed on Spamhaus' ROSKO and sued for defamation and other torts in Illinois. Spamhaus took the position that US courts have no authority to render a judgment on a UK-based operation. The district court ultimately awarded $11.7M in damages and various equitable relief. The Seventh Circuit affirmed the default judgment but vacated the damages and equitable relief, sending those back to the district court to reevaluate the appropriate remedies. I understand that Spamhaus wanted to make a philosophical point by not fighting the lawsuit in the US, but had they overlooked their philosophical objections, they should have won a quick victory per 47 USC 230(c)(2).
* Search Engine Land had a good overview/recap article on geolocation technology. It provides a clear and easy-to-read explanation why the folks who think online businesses can just stay out of a state that enacts dumb regulations are full of crud.
* Pisciotta v. Old National Bancorp, No. 06-3817 (7th Cir. Aug. 23, 2007). Another court (this time, the Seventh Circuit) says that consumer fretting about possible future identity theft isn't enough harm to support a lawsuit. See the analogous JetBlue, Acxiom and Key cases.
* NYT: In the 1990s, a lot of people sought to build an infrastructure for micropayments. Consumers resisted them, but today those efforts seem a little silly--AdSense advertising can generate the same financial benefits for a web publisher without the overhead. Meanwhile, the credit card systems are being stretched to cover micro-transactions because merchants are aggregating a consumer's orders and processing them in bulk (rather than processing each one individually) as a way to reduce the transaction costs.
* NYT: "As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed."
* AP: Chinese animated cops will be patrolling the Information Superhighway beat.
* Tired of negative reviews on Yelp, a San Francisco restaurant put up a sign saying "no Yelpers." I wonder if a sign like that lessens or exacerbates negative publicity.
* NYT: Book authors obsessively check Amazon sales rankings and try to game them.
* Facebook accidentally posted some of its source code to a public website. Surely an interesting development for ConnectU's discovery team!
* Another Internet company hires its own in-house economist--this time, virtual world Eve Online.
* A nice retrospective on the Cleveland Free-net, which at one point was a prominent component of the Cyberspace community.
* I have one free guest pass to the CLE International New Media Law conference in SF on Oct. 1-2. Free to the first person who sends me an email request. [SORRY--TAKEN!]
September 06, 2007
August 2007 Quick Links, Part I
By Eric Goldman
* Google extended its ad serving technology to consider a user's past search phrases in addition to their current search term.
* Greg Linden: "Google is teasing too many lions."
* BusinessWeek: Some VCs are cranky that Google is competing with them by actively investing in start-up deals.
* From Answers.com's press release in August: "Answers Corporation (NASDAQ: ANSW) announced today that, due to a search engine algorithmic adjustment by Google, Answers.com has seen a drop in search engine traffic starting last week. As a result, overall traffic is currently down approximately 28% from levels immediately prior to the change...This change only demonstrates the sound business rationale behind our agreement to purchase Dictionary.com, because it underscores a primary motivation for the deal: to secure a steady source of direct traffic and mitigate our current dependence on search engine algorithms."
* Question: Any theories why the Copyright Office hasn't yet issued "final" regulations for the DMCA 512 registration of an agent for notice...9 years after the DMCA passed?
* From the EFF: RIAA v. the People: Four Years Later. A terrific overview/recap of the RIAA's campaign against online dissemination of music. I'm planning to assign this report to my Cyberlaw students when we discuss file-sharing.
* New York Mercantile Exchange v. Intercontinental Exchange, No. 05-5585-cv (2d Cir. Aug. 1, 2007). Second Circuit says that mercantile exchange settlement prices are not protectable due to the copyright merger doctrine. It would have been better if the court had said that prices aren’t copyrightable, but perhaps we should take our victories where we can find them. HT Patry.
* Bensbargains.net, LLC v. XPBargains.com, 2007 WL 2385092 (S.D. Cal. August 16, 2007). Plaintiff aggregated various "deals" into a website and claimed a copyright in the aggregation. Defendant took the deals and integrated them into its website. Copyright infringement? The judge sets an arbitrary cutoff: "there is insufficient similarity to survive summary judgment where either the percentage of Plaintiff's deals that were copied or the percentage of Defendants' deals that were derived from Plaintiff's website is less than 70%." Evan has more.
* Lennar Pacific Properties Management, Inc. v. Dauben, Inc., 2007 WL 2340487 (N.D. Tex. August 16, 2007). Trademark owner gets an ex parte TRO against a domainer. More from Evan.
* WSJ: The KSR case has noticeably improved prospects for patent defendants.
* The EFF is challenging UMG's practice of stamping a "promotional use only, not for resale" label on promotional CDs.
* NYT on car ad-wrapping. See my previous post where I proclaimed ad wrapping as a relic of the dot com boom. It looks like the practice still lives! Open invitation: anyone who would like to pay me $800/mo to wrap my car, please call me! For that amount of cash, I'll drive the ugliest ad imaginable.
* Apparently, in Florida, a lot of senior citizens dining out at restaurants will ask for some lemon wedges and a glass of water, then add a few Sweet-and-Low packets to create their own tableside-brewed lemonade for free instead of ordering a drink off the menu. One restaurant owner got fed up and charged a diner $1.29 for the unadvertised menu item of self-brewed lemonade. Now, the sparks are flying!
* More unfortunately placed ads.
* Cohn v. TrueBeginnings LLC, No.B190423 (Cal. Ct. App. July 31, 2007). Another court upholds a mandatory clickthrough even when the actual terms are hyperlinked. Tom O'Toole comments and provides screenshots.
* Ken Adams demonstrates, step-by-step, how he edits a contract.
* New word alert: "bacn" = transactional email from websites you have a relationship with. Personally, I think we need to get off the meat metaphors.
* William Gibson says the prefix "cyber" is passe.