March 2008 Quick Links, Part I

By Eric Goldman

It’s a sign of my busy March/April that I am just now posting these…

Reputation/47 USC 230

* I have a lot to say about the JuicyCampus story (AP, MSNBC, Chronicle of Higher Education). Unfortunately, I ran out of time to write a full blog post on the subject. For now, some quick thoughts about this interesting and complex situation:

- Taken to its logical conclusion, 47 USC 230 naturally enables sites to do absolutely nothing to restrict harmful speech. (I’m not saying that accurately describes JuicyCampus–I don’t have enough facts to make that claim). However, that’s not an unexpected failure of the statute–it’s the natural consequence of the statute’s design. Any concerns about the costs of unrestricted speech fora need to compared with the costs of more regulated systems. It’s not clear that one result is automatically better than the other, and certainly there are costs implicit in all solutions. Sam Bayard explores this issue more.

- Sites that lack credible information will face marketplace responses regardless of any legal rules. In JuicyCampus’ case, the marketplace responses include consumers deeming the site not credible, plus intermediaries (in this case, universities) may simply block access by its core users.

- Any possible legal action by the New Jersey Attorney General over JuicyCampus’ facilitation of harmful speech should be unambiguously preempted by 47 USC 230–even after Roommates.com.

- The attempted legal bypass to 47 USC 230–trying to convert a negative covenant from the users in the user agreement into an actionable affirmative marketing representation by JuicyCampus–is analytically corrupt. It’s also not the law, and it’s been rejected in several 230 cases (Noah v. AOL comes immediately to mind). Rebecca has more to say on this issue.

- If negative behavioral covenants by users in a user agreement are actionable affirmative marketing representations that such behavior isn’t occurring, then the Internet is a target-rich ecosystem because I imagine that just about every Internet company is eligible for enforcement actions.

- Isn’t it typical of an enforcement action to go after the target’s vendors (in this case, JuicyCampus’ ad networks) and watch them instantly fold?

- This issue reminds us that a website can’t promise its users anonymity if it allows anyone else (such as an ad server) to serve up portions of its page and thereby have the ability to collect the same server log data.

* Ciolli v. Iravani: The AutoAdmit lawsuits spill over into a new battleground. As I said when I first blogged on the case, this is a “very messy situation” that has only gotten messier.

* Nemet v. ConsumerAffairs.com. Another lawsuit against an online consumer review site for publishing allegedly defamatory negative critiques.

* Steinbuch v. Cutler, 2008 WL 596747 (8th Cir. Mar. 6, 2008). Steinbuch’s lawsuit against Hyperion, the publisher of the Washingtonienne book, can continue in Arkansas. His other claims must proceed in Washington DC if at all.

* Washington Post: Due to the speed at which gossip moves over the Internet, “compared with the pre-Internet era, politicians are less likely than ever to survive a sex scandal with their careers intact.”

* H. Brian Holland, In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism, 56 U. Kan. L. Rev. 369 (2008). Prof. Holland wrote a paper I had been meaning to write! He explains how 47 USC 230 enables online communities to use a variety of self-governance structures, while a different liability regime would give communities fewer choices and thereby inhibit community formation and management.

Search Engines

* A Canadian web network called Geosign received $160M of VC money but the company was rendered worthless overnight when Google changed its policies and cut off traffic. Domainers beware!

* New book worth checking out: WEB SEARCH: MULTIDISCIPLINARY PERSPECTIVES (Amanda Spink & Michael Zimmer, eds.) (Springer 2008). A nice cross-section of essays on search engine issues from multiple disciplines.

* Need some original content to improve your SEO? You can automatically generate it through splogging, or you can pay actual humans a small amount of money to write short articles. If the cost is low enough and the SEO credit for truly original content is high enough, the latter may end up being a better economic deal.

Spam

* The FTC has lost a jury trial against Impulse Media on its theory that Impulse Media is liable for the spam sent by its affiliates. This is a pretty important decision because (1) the FTC/DOJ rarely lose at trial, (2) their expansive theories about liability for affiliate behavior may be legally incorrect, and (3) the FTC has strong-armed numerous defendants into settlements based on its theory, and future defendants now be willing to fight back.

* On that topic, Cyberheat won an early round in litigation with the FTC over its affiliate practices but has now settled up with the FTC. The settlement gives some guidance about the FTC’s thoughts of how marketers should police affiliates, but the Impulse Media jury loss may undermine the teaching of this settlement.