June 26, 2008
"Duck Tours" Is Generic--Boston Duck Tours v. Super Duck Tours
By Eric Goldman
Boston Duck Tours LP v. Super Duck Tours LLC, 2008 WL 2444480 (1st Cir. June 18, 2008)
I previously blogged on this dispute in December. The case involved the defendant's purchase of keyword advertising triggered by the plaintiff's trademark. The district court held that the ad purchases qualified as a trademark use in commerce, but the purchases nevertheless didn't violate the prevailing injunction between the parties restricting the defendant's use of the terms. (To be clear, there are other aspects in dispute between the parties beyond keyword advertising).
In my previous post, I wrote "I wonder if the term "Duck Tours" has become a generic description of tours in an unattractive amphibious vehicle." Apparently my speculation wasn't merely idle, because the First Circuit has now concluded that "duck tours" in this context is, in fact, generic. Accordingly, the plaintiff can only protect the geographic appellation "Boston" as a modifier of the generic phrase "duck tours." "Super Duck Tours" doesn't infringe because "Boston" and "Super" are sufficiently distinguishable, and the injunction against the defendant is dissolved.
The First Circuit opinion doesn't mention keyword advertising, but I thought this ruling was blog-worthy nonetheless because it reinforces one of my oft-stated points that plaintiffs in keyword advertising lawsuits can end up worse off than they started. Like American Blinds in its case against Google, both plaintiffs went into their lawsuits thinking they had protectable trademarks only to have a court--in this case, the First Circuit--conclude that their trademarks aren't protectable at all. This is a good reminder to plaintiffs to do a careful cost-benefit analysis when bringing keyword advertising lawsuits and to include the risk of asset loss in the calculations.
HT: Evan Brown.
June 25, 2008
Consumer Complaint Site Defeats Lawsuit By Unhappy Vendor--Nemet v. ConsumerAffairs.com
By Eric Goldman
[Note: I'm back from my vacation. For a short recap of my experience, see my FAQs about my trip to the Hulahula River in the Arctic National Wildlife Refuge.]
ConsumerAffairs.com is a consumer review site with a twist. It describes itself as:
a private, non-govermental [sic] entity that empowers consumers by providing a forum for their complaints and a means for them to be contacted by lawyers if their complaints have legal merit. Your complaints and comments may be published, shared with the news media and reviewed by attorneys at no cost to you.
A Legal Times article written when this lawsuit was first initiated raises some questions about ConsumerAffairs.com's architecture. First, it suggests that the domain name capitalizes on consumers who might mistakenly assume that the site is affiliated with a governmental consumer affairs office. Second, the article questions the ties between the site and the Horwitz plaintiff's class action law firm, which mines the consumer-submitted complaints looking for potential class action claims and named plaintiffs. But regardless of these attributes, for my purposes ConsumerAffairs.com is a garden-variety consumer review site. Consumers submits their gripes and ConsumerAffairs.com publishes them. As a natural consequence, some vendors will be unhappy with the things consumers are saying about them.
This lawsuit's unhappy vendor is Nemet Chevrolet, a Jamaica, NY auto dealer who has been the target of several consumer-submitted complaints on ConsumerAffairs.com. See, e.g., this page. Nemet sued ConsumerAffairs.com twice but each time voluntarily dismissed the lawsuit for jurisdictional concerns. Finally, satisfied it found jurisdiction over ConsumerAffairs.com, it brought out the big guns--specifically, DC powerhouse law firm Patton Boggs. As the Legal Times article quotes Nemet, "I knew I had to do something, and I got a very, very powerful law firm." Sadly for Nemet, its very, very powerful law firm's complaint still got quickly crunched by a 12b6 motion to dismiss.
Nemet's claims for defamation and tortious interference were preempted by 47 USC 230. This is really a textbook application of 230--the complaint even specifies that the posts were written by third party consumers. Thus, the only issue on the court's mind is whether 230 supports a 12b6 (it correctly determines that it does). Nemet tries to get around 230 by alleging in its briefs and supporting documents that ConsumerAffairs.com created the content at issue and wrote headlines and other supporting materials, but the court refuses to consider these allegations because they weren't in the complaint. Some courts might have entertained a leave to amend the complaint to let these allegations in, but this court clearly wasn't interested.
The court also dismisses the Lanham Act unfair competition and false advertising claims for lack of standing because Nemet and ConsumerAffairs.com aren't competitors. Alternatively, even if there was standing, the court would dismiss both claims:
* the unfair competition claim [this is ambiguous but I think it actually is treating it as a trademark infringement claim, even though the complaint didn't allege infringement] because an auto dealer and a consumer complaint site are so dissimilar that there is no possibility of likelihood of consumer confusion. The court's discussion is rather garbled here, so I'm not exactly sure what the court was doing or saying. However, if the court was thinking of this as a trademark infingement claim, then its ruling is clearly out of sync with other uncited cases (such as the SMJ case), and trademark infringement claims are not really susceptible to dismissal on a 12b6.
* the false advertising claim because consumer complaints aren't advertising as contemplated by the statute.
I have some questions about the rigor of this court's legal analysis, but I also think the court's message is clear and unmistakable: if a vendor has a problem with a consumer review or complaint online, TAKE IT UP WITH THE CONSUMER AND LEAVE THE INTERMEDIARY OUT OF IT.
UPDATE: Rebecca does a better job sorting out the Lanham Act analysis than I did. WRT to the false advertising claim possibly being preempted by 230, this is one of the big blind spots of 230 that will be explored in future cases. See, e.g., the Mazur case.
June 14, 2008
When breaking news breaks copyright
Community blog Drudge Retort receives DMCA notices from the Associated Press for links, quotes.
by Ethan Ackerman
Rogers Cadenhead is a blogger. A prolific one in fact, with a personal blog and the role of editorial director at the commenter-driven political commentary blog Drudge Retort. The latter blog has recently drawn the ire (read: multiple take-down notices) of the Associated Press' legal department for linking and quoting AP content.
Multiple DMCA notices happen daily, and many make questionable legal assertions, but these, well, they're interesting....
The New York Times covers the Associate Press' 'partial apology but still take-down request' in more detail here, as does Scott Rosenberg. Kudos to the NYT for acknowledging it is an owner of the AP. For follow-up reporting, Mr. Rosenberg's blog definitely aggregates coverage better than the NYT. In short, the AP still considers the Drudge Retort's posts to be infringing and demands they be removed, but was sorry it came across badly in saying so and won't issue any more blog DMCA notices (other than this one) until it has released guidelines on acceptable quoting and linking.
Guidelines, we don't need no stinkin' guidelines.
The notion of quotation guidelines seems to be a non-starter for many bloggers. As (former attorney) Michael Arrington points out, the real guidelines in this situation are the fair use provisions of the Copyright Act, and guidelines can't shrink or expand those. Absent some type of contractual agreement with the AP, no one would be constrained by the guidelines in any way.
That said, the notion of guidelines are at least legally interesting, and puzzling. Regardless of any fair use considerations, to the extent any AP 'guidelines' purported to allow some linking and quoting of AP stories, they would function as an express license to bloggers. Express licenses are an entirely different legal beast than a fair use defense - and they aren't exclusive. For one thing, any sued blogger could probably get a judicial resolution of a suit a lot quicker - whether an alleged use is within the scope of a license can be determined as a matter of law, possibly on the pleadings or at least in a motion for summary judgement. A fair use defense often requires further discovery and motions proceedings.
Unless I'm missing something, it would seem like AP offering guidelines effectively gives some bloggers a 'safe harbor' but doesn't touch those who exercise the full scope of their fair use rights.
The fallout - The Internet sees censorship as damage and routes around it.
That Internet truism looks to be applicable to AP's takedown actions, with fairly widespread negative blogging responses and boycott promises from quite a few prominent blogs.
[Author's comment. Normally I'd be sceptical of anything with the word 'web-based' and 'boycott,' but in this case, authors are choosing not to cite to AP - an almost effortless choice. It's not like someone foregoing gasoline. This may be a classic example of the Colbert response to IP over-enforcement.]
It's just a discontinuity in the path of money.
As Mike Markson points out, at the end of the day, this conflict boils down to a weakness in the business plan and structure of the Associated Press. Its business structure makes it adverse to its customers' customers. AP's licensees see the traffic and get the linking and page-viewing, exactly what they want, but AP gets nothing in this. Perhaps AP could restructure its business model to better benefit AP with one central content site, or this could be one of many examples of a shift in relative power between parties.
The law in all of this.
As a starter, the degree to which headlines and factual news is even protected by copyright is, well, thin to nothing. Unfortunately, most of the blog coverage misses that point, running to the more nebulous (but still important and applicable) fair use defense. David Aradia at Harvard's Citizen Media Law Project does an excellent job at laying out the fair use aspects. He also details the legally fuzzy issue of "hot news misappropriation," a pseudo-copyright issue that may or may not have a place in state law or copyright law. Read his excellent coverage there of why, if it even exists and isn't preempted, 'misappropriation' doesn't matter.
Is there copyright here? Is there relevant law here? News events (and the facts that make them up) aren't protected under copyright law. Neither are any other factual compilations that don't have the requisite minimum creative writing to separate the creativity from the underlying facts. That almost certainly means news headlines aren't protected - they're too intertwined with the facts they convey. I say almost certainly because there's nothing but hints to that effect in copyright cases - no recent rulings squarely address the issue. The holy grail for many copyright scholars on this exact issue could have been Agence France-Presse v. Google. Unfortunately for copyright law clarity, but probably fortunately for all parties involved, that case settled in 2007. So, while counsel for Google may have served their client well, they deprived copyright scholars from having something to write about.
June 09, 2008
Rights in Copies vs. Copyright
Prince's entanglement with Radiohead, YouTube, and a video bootlegger leads to much debate over just what's in copyright law and a YouTube nightmare scenario.
By Ethan Ackerman
Copyright bloggers were privileged to a few laughs recently when Prince's music label, NRG, requested a DMCA take-down of a bootleg YouTube video of his live performance of Radiohead's hit song, Creep. NRG was asserting rights over a song it didn't write, and a video it didn't make. At first blush, unless he had secured a performance license, Prince may have been the only person infringing copyright laws. Bloggers snickered at the irony, and the EFF even helpfully highlighted the lack of checks in the DMCA process that allowed this to happen.
The snickers quickly turned to head-scratching the more bloggers thought about it. A post by Sam Bayard, at the excellent Harvard-based Citizen's Media Law Project blog, exemplified these difficulties and second thoughts. Sam Baynard pointed out that another provision of Title 17, the anti-bootlegging statutes, might apply. Eric Goldman pointed out on the same post that maybe NRG could have made a recording itself that was being copied - and so the Copyright Act would apply.
The anti-bootlegging statute in Title 17, 17 USC 1101, squarely addresses unauthorized recordings of live musical performances. This provision was included in the 1990s to comply with trade treaty obligations (Article 14 of TRIPS.) As Sam points out however, it's not immediately clear that a DMCA take-down notice is appropriate for an alleged sec. 1101 violation. After all, the DMCA is for "for infringement of copyright."
What exactly is "infringement of copyright" for DMCA purposes? While it's clearly not appropriate to use the DMCA notice-and-take-down provisions for things like "infringement of trademark" or "infringement of publicity rights," is a section 1101 anti-bootlegging violation an "infringement of copyright?"
No, it's not. While the definitions section has no entry, and no other portion of the Copyright Act says exactly what is "an infringement of copyright," 17 USC 501 provides a helpful starting point in noting who is an infringer - "anyone who violates any of the exclusive rights of the copyright owner as provided by section 106..."
But the anti-bootlegging rights aren't in Section 106 of the Copyright Act - they're not even in the Copyright Act at all. At best, section 1101's anti-bootlegging rights are in the same title (Title 17) as the Copyright Act. They weren't added to the Copyright Act, but were listed after it, much like the semiconductor chip mask works and boat hull protection acts. This distinction between "Acts" and "Titles" of US Code is often missed by attorneys (and judges) who haven't worked extensively with legislation, but it matters. To see just how much this distinction matters, read a post by former professor (and former Legislative Counsel) William Patry, to whom it matters a lot.
As Professor Patry detailed, the anti-bootlegging statute was enacted outside the Copyright Act, without limitations that the Copyrights Clause would require, and covering some subject matter that wouldn't be subject to the Copyright Act at all. While some might argue over whether the anti-bootlegging statutes are themselves unconstitutional, they clearly aren't part of the Copyright Act, and clearly aren't addressed by the DMCA.
If there's clearly an applicable law (17 USC 1101), and a clearly unauthorized recording, who cares where definitions are, which Title's in which Act and vice versa?
While everyone should care about laws being used correctly, in this case YouTube likely cares - a lot. Remedies for a Section 1101 violation are literally identical to those for a copyright violation - injunctions, damages, impoundment, fees, etc. Additionally, the scope of any secondary liability for a section 1101 violation is unclear - there are no mounds of case law on secondary liability like there are in copyright infringement cases. Piling things on even more for YouTube, while the DMCA notice-and-take-down process doesn't apply, neither does its handy, litigation-preventing safe-harbor.
June 07, 2008
Vacation and Guest Bloggers
By Eric Goldman
For the next two weeks, I will be enjoying a celebratory river-rafting trip on the Hulahula River in the Arctic National Wildlife Refuge. This is a supremely remote destination--it takes 4 airplanes to get there from the Bay Area (the last one being a bush plane that will land on a gravel bar of the river), and needless to say, it won't be possible to blog from there even if I wanted to.
While I won't be blogging for the next couple of weeks, long-time guest bloggers John Ottaviani and Ethan Ackerman will be around to keep the conversation going. I hope you enjoy their posts, and I'll see you the week of June 23.
June 05, 2008
Keyword Metatags and Keyword-Triggered Ads Don't Create Initial Interest Confusion--Designer Skin v. S&L Vitamins
By Eric Goldman
Designer Skin, LLC v. S & L Vitamins, Inc., 2008 WL 2116646 (D. Ariz. May 20, 2008)
An Arizona district court has ruled that the surreptitious use of trademarks doesn't create a likelihood of initial interest confusion, granting summary judgment on the trademark claims to the defendant.
This case is another enforcement action brought by a manufacturer trying to keep its goods from leaking out of its restricted channel and being sold on the Internet. For other lawsuits along this line, see Australian Gold v. Hatfield, S&L Vitamins v. Australian Gold (yes, the same S&L...and the same lawyer) and Standard Process v. Banks. The plaintiff tries the typical arsenal of claims to control the independent online retailer, including trademark infringement and dilution, copyright infringement for displaying product shots, interference with contract and other related claims.
With respect to trademark infringement, the plaintiff only complained about the surreptitious trademark uses in the keyword metatags and in keyword advertising, not any uses visible to consumers. The plaintiffs argued that these surreptitious uses created initial interest confusion (the discussion skips over the trademark use in commerce question). As I've said repeatedly, no one really knows what initial interest confusion means or how to develop a doctrinally rigorous test for measuring it, so every court makes up its own definition. This court's manufactured definition anchors initial interest confusion in "deception." This is consistent with the general Seventh Circuit articulation of initial interest confusion (although the 7th Circuit doesn't understand initial interest confusion any better than the other circuits), and the court cites to the 7th Circuit Dorr-Oliver case. However, the court partially breaks with some of the controlling Ninth Circuit jurisprudence, which in Brookfield rooted the doctrine in attention diversion, not deception.
By grounding initial interest confusion in deception, it makes the doctrine easy to apply in this case. S&L Vitamins didn't deceive consumers--it was selling legitimate goods and accurately describing this fact. The case has some odd discussion about the possible inherent deception if S&L Vitamins ranked well in the organic search results, but the court rejects this line of thinking, saying anyone confused by good search engine placement on a competitor's trademark will be the "naive few" because S&L operated under a distinguishable domain name. This is the right result but the wrong reasoning--for the right reasoning, see here.
Instead of thinking that keyword metatags and ads creates deception, the court sees them as information-enhancing, thus getting the point that the goal is to match interested consumers with willing vendors:
In contrast to the deceptive conduct that forms the basis of a finding of initial interest confusion, S & L Vitamins uses Designer Skin’s marks to truthfully inform internet searchers where they can find Designer Skin’s products. Rather than deceive customers into visiting their websites, this use truthfully informs customers of the contents of those sites. Indeed, in practical effect S & L Vitamins invites Designer Skin’s customers to purchase Designer Skin’s products. The fact that these customers will have the opportunity to purchase competing products when they arrive at S & L Vitamins’ sites is irrelevant. The customers searching for Designer Skin’s products find exactly what they are looking for when they arrive at these sites. S & L Vitamins is not deceiving consumers in any way.
Bingo! Summary judgment for S&L Vitamins.
Even though this IIC-qua-deception meme is generally consistent with 7th Circuit law, this result appears to be directly contrary to the uncited 7th Circuit Promatek v. Equitrac case, where the court waffled on whether keyword metatags were inherently deceptive, even when used by a legitimate provider of services for the trademarked good.
More importantly, this result also runs directly contrary to the 2006 10th Circuit Australian Gold case, which found that keyword metatags in a virtually identical situation (unauthorized seller of leaked legitimate goods) constituted initial interest confusion. The court acknowledges this conflict but dismisses the 10th Circuit case as "unpersuasive" because the mark usage is designed to attract consumers to the trademark owner's actual goods. From my perspective, this is more evidence that courts are not following the Australian Gold v. Hatfield precedent--the most obvious example being the 10th Circuit's own Ski Vail case, which took a big chunk out of the Hatfield precedent. I know plaintiffs love citing the Hatfield precedent, but it's becoming increasingly less credible to do so.
Given the more rigorous requirements for fame post-TDRA, it seems like many manufacturers who tightly control their channel and restrict Internet sales may inherently have a problem establishing fame. Perhaps I'm not part of the target audience, but I had never heard of Designer Skin products before.
The court doesn't get into the fame issue, instead granting summary judgment to S&L based on the nominative use defense because all of S&L's trademark uses refer to the plaintiff's trademark. I'd have to do some research to confirm this, but I believe this is one of the first (if not the first) post-TDRA cases dismissing a dilution claim on nominative use grounds. Personally, I think S&L's usage neatly fits my characterization as a "commercial referential trademark use," but it's great to see a court get the point, whatever terms it uses to describe the behavior. The court also (correctly, IMO) says that a commercial referential trademark use effectively can't cause a likelihood of dilution because it's neither blurring (there's no new definition) nor tarnishing (it's an accurate reference).
Designer Skin complained that S&L copied the photos posted to its website. S&L claims that it simply recreated the product shots independently. This factual dispute is enough to prevent SJ. Patry believes that 17 USC 113(c) should have protected S&L here, but as Rebecca explains very well, 113(c) may not be germane--Designer Skin admitted that S&L could recreate its own shots if it wants to (see FN9 of the opinion), so the only question is whether the photos actually displayed on S&L's site were independently created.
If S&L snatched the photos from Designer Skin's website, then the court says republishing those would not be a fair use. I think this is probably right, although it's rather silly from a social welfare perspective to make people recreate product shots when invariably they will look effectively the same, and certainly the manufacturer isn't going to stop producing product shots simply because legitimate downstream retailers "free ride" on that investment. Rebecca has more to say about the fair use discussion.
The court dismisses the interference with contract claim and S&L's unfair competition claim, but it preserved Designer Skin's unfair competition claim (which, as Rebecca rightly points out, should be preempted by copyright's preemption clause).
As I've said before, I don't understand why plaintiffs try to control their channel so tightly to preclude Internet sales. I mean, I get the fact that they are trying to increase profits by reducing retailer competition, but those efforts will pay off only in the short run at best. Time to develop a new business model! Meanwhile, courts are realizing that they are being asked to facilitate anti-competitive practices, and wisely they are balking. Thus, a case like this illustrates that a judge will find limits to the initial interest confusion doctrine (a doctrine that otherwise has no natural doctrinal limits) and interpose pro-competitive defenses to trademark dilution.
June 04, 2008
Google Sued for Running Ads for "Fraudulent Mobile Subscription Services"--Goddard v. Google
By Eric Goldman
Goddard v. Google, Inc., Case No. 108CV111658 (Cal. Super. Ct. complaint dated April 30, 2008). Google's notice of removal to federal court C08 02738 (N.D. Cal. removal notice dated May 30, 2008). [warning: 1.5MB file. Google's notice contains a copy of the original complaint.]
Cyberlaw is filled with examples of plaintiffs suing the wrong defendant for perceived transgressions committed by someone else. Today's misdirected lawsuit involves "fraudulent mobile subscription services," which are optional third party services for cellphones (such as ringtones) that are charged on a periodic basis. The plaintiffs in this putative class action lawsuit feel like they got fleeced by providers of these subscription services. If they did, I hope they get appropriate redress from the wrongdoing vendors. But instead of suing the allegedly fraudulent vendors, the plaintiffs think Google should cover the losses for the sole reason that Google ran ads for the services. The argument goes as follows:
* Google has an express policy requiring mobile service providers to disclose certain info to consumers about their practices
* Google deliberately does not enforce this policy (or inadequately enforces it) to enjoy undeserved cash
* As a result, Google should stand behind all of the losses committed by its advertisers
There are some obvious problems with this argument. First, it's a gross example of cyberspace exceptionalism. An analogy might be that dead-trees newspapers should stand behind any losses suffered by readers who transact with newspaper advertisers. Sounds ridiculous? It does to me, whether the publisher is online or off.
Second, this argument ought to be clearly, squarely and soundly trumped by 47 USC 230. eBay has won on this exact point when plaintiffs have tried to hold it liable for accepting advertising (in the form of listings) for fraudulent products (at minimum, the Gentry case involving fake sports memorabilia seems apropos). The recent Doe v. MySpace case is also analogous, because the plaintiffs were trying to hold MySpace liable under a "premises liability" theory for tortious activity that took place outside of its premises. Either way, if Google's sole role in the process was publishing third party ads, it's not liable per 230.
It's not clear if the plaintiffs know about 230 or think it applies to this case, but they made two arguments that could be used to argue around 230. First, they allege that Google helped write the ad copy. I'm still not sure if this allegation actually is enough to hold Google liable for downstream fraud, but unless Google actually wrote the copy itself, it's not liable for third party ads even if it helped edit them or prescreened them (see Ramey v. Darkside Productions).
Second, they try to argue that Google's contract with its advertisers describing minimum standards for mobile service vendors running Google ads is an express marketing representation that binds Google for any breaches by the advertiser. By anchoring the claim in false advertising, the allegation might be designed to take advantage of the Mazur v. eBay exclusion to 230. However, treating contractual restrictions with a third party as affirmative representations to consumers is the exact same analytical error made by the New Jersey Attorney General's office in the JuicyCampus investigation, and the error is no less baffling here. I remain surprised that bright lawyers so fundamentally misunderstand the interaction between contract and false advertising law.
There's one more twist to this lawsuit that merits discussion. As a predicate harm for some of its claims, the plaintiffs argue that their cellphones are computers under the Computer Fraud & Abuse Act (CFAA) and the vendor's confirmatory text messages (required to authorize the service) are unauthorized accesses of a protected computer under the CFAA. I'm not really sure what to make of this theory, but I'm pretty sure it's novel (not necessarily in a good way). I'm OK with treating at least some cellphones as computers under the statutory definition, although this would expand the CFAA's reach quite a bit, but I think it would be highly problematic to treat text messages to a cellphone as an unauthorized access. And even if we did that, I still don't see how Google is responsible for the violation.
(For kicks, there is an analogous claim that Google aided and abetted the vendors' trespass to chattel of the cellphones).
One more thing: this interpretation of the CFAA follows the DOJ's recent attempt to treat breaches of a website's user agreement as a criminal CFAA violation in the Lori Drew prosecution. Given these crazy expansive CFAA claims, it may be time to rethink that statute.
June 03, 2008
May 2008 Quick Links, Part 2
By Eric Goldman
* Google says it isn't settling the Viacom lawsuit (I don't believe it).
* Interesting juxtaposition: (1) Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates and (2) BusinessWeek ran a lengthy retrospective on Tanya Andersen's battle against the RIAA, including her beefs against the RIAA’s investigation and enforcement tactics.
* A music warez trader was convicted by a jury of criminal copyright infringement.
* Juanda Lowder Daniel. Virtually mature: examining the policy of minors' incapacity to contract through the cyberscope. 43 Gonz. L. Rev. 239-269 (2007/08). This article addresses the very important issue of contracting capacity of minors. See my most recent post on that topic.
* Adelman v. Sparks Network (Cal. App. Ct. May 20, 2008). The Jdate online dating service allegedly failed to include required language (such as notice of a mandatory cooling-off period) in its user agreement. The court dismisses the plaintiff's lawsuit nonetheless because he was a happy customer who didn't suffer any damage.
* Tom O'Toole surveys some recent online contract cases. He offers the following conclusions: (1) Contract Terms Should Be Available for Review, (2) Clickable Buttons/Links Should Clearly Signal Assent, and (3) Humans Are Not Helpful.
* I realize this point would be better explored in a full blog post, and I suspect this point has been made in the academic literature (if so, I'd appreciate some cites so I can pass them along). The issue: how might the endowment effect explain consumer antipathy towards EULAs? Wikipedia says the endowment effect means that "people value a good or service more once their property right to it has been established." This observation occurred to me when I attended a ridiculously stacked panel at the ION Game Conference on "user rights" in virtual worlds. Many of the gripes/grumbles related to very common EULA provisions that simply overrode default law. It occurred to me that maybe part of the problem was that consumers assume the defaults are appropriate rights allocations granting them the "property" right, in which case they suffer a greater psychological loss when those defaults are varied than if different defaults were set. One obvious policy consequence: as part of the considerations when setting defaults, policy makers should include the psychological costs of varying the defaults. If the interaction between EULAs and the endowment effect hasn't been written about, it would make an excellent paper topic.
* A military court has said that distributing a hyperlink to child porn does not constitute criminal distribution of child porn. Tom O'Toole explains the situation.
* A.B. v. State, 2008 WL 2031388 (Ind. May 13, 2008). It seems like the digital age recipe for guaranteed trouble: 8th grader + hatred towards a school principal + MySpace. How many judicial cases are we going to see with this combination? This one involves some mean-spirited and profanity-laced comments about her principal made by a 14 year old girl on a private MySpace page accessible only by 26 students. The principal saw it only because one of the students gave a printout to the principal. The court concludes that posting to a private MySpace page doesn't satisfy the criminal standards of "intent to harass, annoy, or alarm" via the Internet.
* Doe v. Friendfinder Network, Inc., 2008 WL 2001745 (D.N.H. May 8, 2008). The court denied the plaintiff's motion for reconsideration on Friendfinder's 230 eligibility for the statement "Sorry, this member has removed his/her profile."
* Another "where are they now?" retrospective on dot com boom companies, ironically running in the Industry Standard (which wiped out in the dot com bust itself).
June 02, 2008
May 2008 Quick Links, Part 1 (Trademarks/Domain Names Edition)
By Eric Goldman
* Syncsort Inc. v. Innovative Routines Intern., Inc., 2008 WL 1925304 (D.N.J. April 30, 2008). Including a third party trademark in a keyword metatag qualified as nominative use. (Along the same lines, see the Designer Skin case that I will blog about later this week).
* Punch Clock, Inc. v. Smart Software Development, 2008 WL 936889 (S.D. Fla. April 7, 2008). In a default judgment, a judge awarded the trademark owner the right to obtain 7 years of corrective advertising (a total of over $1M), calculated by what it would take for the trademark owner to buy the top spot in Google AdWords. Tom O'Toole sorts through this mess.
* A new ruling in the V Secret v. Moseley case. Rebecca puts it in context.
* Matthew Nelson, Comment, Utah's Trademark Protection Act: Over-Reaching Unconstitutional Protectionism or Decisive Clarifying Legislation?, 2007 Utah L. Rev. 1199. A couple of months after the Utah legislature repealed the Utah Trademark Protection Act, a Utah law student says the law is unconstitutional. His conclusion:
The Utah Trademark Protection Act places an undue burden on interstate commerce and the courts should find it unconstitutional under the dormant Commerce Clause using the Pike balancing test. Apart from the constitutional problems, the Act is bad policy for Utah businesses and Utah consumers. Although the unpredictability that currently exists in the courts makes it difficult for Internet advertisers and advertising sellers to mitigate risks and set efficient policy, these risks are far outweighed by costs to consumers and business. The Act sacrifices fair use, comparative advertising, and noncommercial use to gain certainty. These trademark functions are more important than the additional protections afforded mark holders under the law, protections that go too far and encourage anticonsumer policy rather than furthering the competitive environment trademark policy seeks to create.
Uses of keywords to trigger advertising that are unfair, deceptive, and contrary to trademark policy can still be pursued under the current common law. Trademark law is effectively evolving to handle these new challenges. If there should be legislation, it should be at the federal level because this issue so profoundly affects interstate commerce. The refining process that is occurring in the courts will provide Congress, should it choose to act, with valuable insight into how to handle all the competing interests in the rapidly growing area of Internet advertising.
* Tdata Inc. v. Aircraft Technical Publishers, 2008 WL 2169353 (S.D. Ohio May 21, 2008). Initial interest confusion does not substitute for actual confusion when considering if damages are appropriate under the Lanham Act. See my prior post on this case. See also the related Gibson Guitar case.
* I'm not exactly sure what's going on in France, but a French court has asked the European Court of Justice to opine on the legitimacy of keyword advertising.
* Verisign has obtained a patent for its defunct SiteFinder tool. Domain name wildcarding was taking place for years before VeriSign tried it, so I wonder about the prior art to this patent.
* NYT: Can a Dead Brand Live Again? This article discusses the development of a secondary market for well-recognized but defunct brands. Says the market maker: "We're taking consumers' memories and starting entire businesses."
* Todd Davies, A Behavioral Perspective on Technology Evolution and Domain Name Regulation, PAC. MCGEORGE GLOBAL BUS. & DEV. L.J. 21, 1-25 (2008). See my previous blog post about this paper.