August 31, 2009
Lori Drew Criminal Case Ends With a Whimper
By Eric Goldman
United States v. Drew, 2009 WL 2872855 (C.D. Cal. Aug. 28, 2009)
Almost 2 months ago, the judge presiding over the Lori Drew trial orally announced that he intended to rule in favor of Drew, but it was a little hard to decipher his statements without a written ruling. On Friday, the judge issued his written ruling, which indicates that he granted Drew's FRCP 29(c) motion for a post-verdict acquittal. I haven't seen any announcement of the prosecution's response and whether they plan to appeal. This ruling also has no direct bearing on any civil claims against Drew. Nevertheless, for now, Lori Drew has been fully acquitted of the criminal charges brought against her.
While the written opinion clears up the judge's exact disposition of Drew's status, it is hardly a clear précis on the legal issues. The judge ultimately grants the acquittal because a Computer Fraud & Abuse Act (CFAA) prosecution based on negative behavioral restrictions in an online user agreement is void-for-vagueness. I think this makes a lot of sense because the negative behavioral restrictions are effectively incorporated into the criminal statute but lack the degree of drafting precision we require from criminal prohibitions. The judge gives a good example of such an imprecise restriction by citing a MySpace user agreement prohibition against posting in “band and filmmaker profiles...sexually suggestive imagery or any other unfair...[c]ontent intended to draw traffic to the profile.” The judge rightly asks what the terms "sexually suggestive imagery" and "unfair content" mean when incorporated into a criminal CFAA prosecution. If we aren't sure, that sounds like a valid basis for a void-for-vagueness dismissal.
Having said that, given this ruling, I still can't understand why the judge let this case go to the jury in the first place. I believe the judge's ruling was independent of the jury verdict and does not rely on any of the jury findings, so why did he wait until after the jury verdict to make a ruling that he could have made pre-trial? His delay was not costless. The jury verdict against Drew remains a public rebuke of Drew even though it's been wiped away, and the judge could have saved everyone a lot of time and money by cutting to the chase earlier.
The judge's actual void-for-vagueness discussion of Drew's situation starts on page 25 of a 32 page opinion. What's going on in the previous 25 pages? The remainder of the opinion apparently explains how the government may have successfully proven the elements of its case, but I found the discussion gratuitous, meandering and confusing. Some of it could also be pernicious. For example, consider this oh-no quote from FN 22:
As a “visitor” to the MySpace website and being initially limited to the public areas of the site, one is bound by MySpace’s browsewrap agreement. If one wishes further access into the site for purposes of creating a profile and contacting MySpace members (as Drew and the co-conspirators did), one would have to affirmatively acknowledge and assent to the terms of service by checking the designated box, thereby triggering the clickwrap agreement.
Read that first sentence again. WHAT??? Did the court just say that every visitor is bound to MySpace's browsewrap just by visiting the website? Uh, I don't think so, or at least I hope not. Whoa.
Another oddity: on page 9, the opinion says "According to Sung, MySpace owns the data contained in the profiles and the other content on the website." (Sung is MySpace's VP of Customer Care). The court slyly quotes the applicable provision in the user agreement which clearly points out that MySpace only takes a non-exclusive license to user data, not ownership. So what could this reference to ownership possibly mean?
Implications of the Ruling
Although I wish the judge had been more careful and laconic in his drafting, this opinion is still a good jurisprudential development. This opinion erects a significant hurdle for future CFAA criminal prosecutions for breaches of user agreements because they will face the same void-for-vagueness challenge that was dispositive here.
I'm less clear how this opinion might affect civil CFAA lawsuits for using third party servers in excess of a user agreement. As the case recounts, a number of cases already accept those claims, and I think this judge's dicta simply adds to those cases. So, for example, if MySpace wanted to sue Drew civilly under a CFAA theory for the behavior at issue with her criminal prosecution, I don't think this opinion would stand in the way. In fact, I think MySpace would cite it favorably. Then again, I doubt MySpace will be suing Drew; MySpace has been conspicuously low-profile about a crime purportedly committed against it.
I do not expect this ruling will defuse any debates over cyberbullying and how to deter it using legal means. If anything, the fact that Lori Drew walks is more likely to pour gasoline on the fire of state legislators who think they can solve the problem through their brilliant statutory drafting. They are wrong, of course, and they can do plenty of harm by trying (see, e.g., the broad and dangerous law that Texas just passed). Unfortunately, I expect more anti-cyberbullying legislative efforts, for better or (mostly) for worse.
Even though the judge corrected a judicial system error, I continue to believe that we as cyberlawyers need to mitigate the problems we create by putting extensive and ambiguous negative behavioral restrictions into our online user agreements. As I've explained before, I think best practices now move most negative behavioral restrictions into a non-binding statement of community norms and expectations.
August 26, 2009
Yahoo Subpoenas Expedia in American Airlines Lawsuit
By Eric Goldman
Yahoo and American Airlines are still tussling over Yahoo's sale of American Airlines' trademarks as keyword triggers (see background at 1, 2, 3). According to Yahoo, American Airlines is arguing that online travel agencies such as Expedia are directly infringing American Airlines' trademarks by buying keywords from Yahoo, which would make Yahoo a secondary infringer by facilitating Expedia's direct infringement.
From my perspective, American Airlines' direct infringement argument looks questionable because Expedia and others should be fully protected by the First Sale/trademark exhaustion doctrine for advertising that it sells American Airlines' branded services--just like any other retailer is free to advertise the trademarks of the manufacturers it vends. However, perhaps American Airlines restricts Expedia's advertising by contract and is taking the position that Expedia exceeded the contract and such a contract breach constitutes trademark infringement. American Airlines is also arguing that Yahoo is tortiously interfering with the American Airlines-Expedia contract, so that seems possible. Even then, it's not clear to me that if Expedia exceeds the contract by buying trademarked keywords, the contract breach would qualify as trademark infringement. The analysis should go back to default trademark law, which should excuse Expedia's purchases under the trademark exhaustion doctrine.
ASIDE AND REQUEST FOR HELP: I have done a fair amount of digging trying to find cases that apply the trademark exhaustion doctrine to the legitimate resale of third party services. I have only been able to find the trademark exhaustion doctrine applied to the resale of physical goods/chattels, not the resale of services, but it seems like the doctrine should apply to both. The travel business is a great example. Travel agents routinely advertise to consumers that they resell travel packages that include a flight on, say, American Airlines. I have been struggling to find any cases or other supportive sources indicating that such advertisements by travel agents are protected by trademark exhaustion. Presumably, in some cases, the advertising and resale is expressly permitted by a contract with the upstream service provider (such as in a consolidation contract between the travel agent consolidator and the airline), but I'm sure there are plenty of cases where there is no contract at all. Any tips/referrals/suggestions on cases applying trademark exhaustion to the legitimate resale of services would be very much appreciated. END OF ASIDE
So, American Airlines is pointing the finger at Expedia as the direct infringer. [Even though, conspicuously, American Airlines isn't suing Expedia, for reasons I explore in my Brand Spillovers paper]. Naturally, Yahoo wants to know more about Expedia's possible exposure as a direct infringer so that Yahoo's defense can include disproving the direct infringement. Therefore, Yahoo sent a subpoena to Expedia requesting all kinds of goodies, such as the American Airlines-Expedia contract, consumer conversion rates from sponsored link ads, and other information about consumer behavior on Expedia.
Not surprisingly, Expedia responded "no thanks" to Yahoo's request. I can think of at least three reasons why. First, Expedia would rather not spend any time and money on someone else's lawsuit. Second, some of the information Yahoo is asking for could have significant competitive advantage to Yahoo. Yahoo partially competes with Expedia via its Yahoo Travel service, plus Yahoo's knowledge of the profitability of its referred customers could affect Yahoo's management of the travel category auctions. Third, some evidence could prompt American Airlines to close the litigation circle by suing Expedia directly.
In response to Expedia's nyet, Yahoo is seeking a motion to compel Expedia's response to its subpoena. Typically, these discovery disputes result in a split-the-baby outcome (either via a settlement or ordered by a judge) where Yahoo gets less than it asked but Expedia also forks over some info. We'll see. Meanwhile, Yahoo's effort is consistent with a trend I first spotted in connection with the Rhino Sports case--advertiser behavior regarding keywords has significant value in litigation discovery and for competitive purposes, so I expect to see more subpoenas like this over time.
August 25, 2009
Why More Wikipedia Editing Restrictions Are Inevitable, and Some Comments on Flagged Revisions for Living People's Biographies
By Eric Goldman
I have posted my latest article, "Wikipedia’s Labor Squeeze and its Consequences," to SSRN. The article will be published in the Journal of Telecommunications and High Technology Law in the relatively near future. The article is still in draft form, and I gratefully welcome your comments. Please take a look.
The article traces its roots to my Dec. 2005 prediction that Wikipedia will fail in 5 years. I have continued to blog informally about Wikipedia since then, but I only decided to write a more formal academic defense of my prediction late last year. This article is that defense, but you'll notice that I don't refer to "failure" in the article. In my presentations and earlier drafts of this article, I found that predicting Wikipedia's "failure" produced very emotional responses that overwhelmed consideration of my argument's merits. I still think my 2005 predictions look pretty good (using my self-selected definition of "failure"), but I deliberately directed the article towards the "why" rather than the "when."
As a result, the article explains why evolutionary changes in Wikipedia's labor supply is forcing Wikipedia to change its basic architectural design of permissive user editability. Flagged revisions is a prime example of the ongoing architectural shift. With flagged revisions, every user has the technical capacity to edit a Wikipedia entry, but submitted revisions remain hidden from public view until a trusted editor approves them for publication. Accordingly, flagged revisions significantly changes the Wikipedia experience. It delays publication of most contributions, it buries some contributions without ever being published at all, and it creates a significant workload for editors. For example, the German Wikipedia deploys flagged revisions site-wide and publication delays are up to three weeks.
Yesterday, Wikipedia announced that it is deploying Flagged Revisions for biographies of living people. Wikipedia has been on red alert with biographies since the John Seigenthaler incident in September 2005, so it's not surprising that Wikipedia will tighten the reins there first.
However, I think this change is just one more intermediate step in Wikipedia's ongoing process of restricting user editability, and it is not the final restrictive step Wikipedia will take. For reasons I outline in the article, I expect Wikipedia eventually will deploy Flagged Revisions, or some other stringent form of editorial lock-down, across the entire site, not just for living people's biographies. I explore some other possible alternatives in the paper, but I conclude that substantial restrictions to user editability are Wikipedia's only viable long-term solution to preserve site credibility.
People who have reviewed the article have asked about the article's relationship to Benkler's Wealth of Networks and its related commentary. Those works have explored the phenomenon and implications of large-scale online volunteerism, including a convincing proof that people will contribute their labor to online collaborative enterprises without any direct financial compensation. However, I've seen less attention paid to the exact reasons why people volunteer for these projects. My article focuses on the "why" in some detail, but even then, I make some assumptions and guesses. Despite extensive academic research into the Wikipedia community, we still lack a complete and clear empirical picture of why people join the community and, perhaps just as important, why people leave. I offer up my theoretical considerations, but more empirical work remains to be done.
If you want more discussion on this topic, during the paper's development, I gave a talk at University of Colorado Boulder that sparked some online responses:
August 24, 2009
Online Retailer Isn't Liable for User Comments--Cornelius v. DeLuca
By Eric Goldman
Cornelius v. DeLuca, 2009 WL 2568044 (E.D. Mo. Aug. 18, 2009)
DeLuca runs bodybuilding.com, a fitness website and online retailer. The plaintiffs sell dietary supplements ("syntrax," whatever that is). The plaintiffs allege that their competitors posted shill reviews to bodybuilding.com designed to harm the plaintiffs' business. The plaintiffs sued both bodybuilding.com and the putative shillers. This ruling deals only with bodybuilding.com's liability.
As you know, these facts set up an easy defense win per 47 USC 230. To get around 230, the plaintiffs allege that bodybuilding.com was in a "conspiracy" relationship with the shillers. I know conspiracy has been raised as a 230 bypass before, but I'm struggling to remember another case that decisively addressed the argument. This court tackles the issue squarely and efficiently dismisses the claim (without any citations). The only thing that matters to the court is whether the defendants posted the allegedly tortious content. Because the answer is no, case dismissed.
Some other 47 USC 230 cases that have reached analogous results:
* Joyner v. Lazzareschi: conspiracy argued but not alleged
* Higher Balance v. Quantum Future Group: no "alter ego" liability
* Cisneros v. Yahoo: no "aiding and abetting" liability. Accord: Goddard v. Google
* Best Western v. Furber: no liability for co-website operator activities
A tip to plaintiffs' lawyers: STOP TRYING TO PLEAD AROUND 47 USC 230!
August 20, 2009
Sedgwick Claims Management v. Delsman Appealed to Ninth Circuit
By Eric Goldman
Put this one in the "Are you kidding me?" file. Last month I blogged about Sedgwick Claims Management v. Delsman involving a small-time griper who had the temerity to cut-and-paste some company executive headshots to create his griping material. Sedgwick went after Delsman in a big way, hiring a big national firm (Lord Locke) to take Delsman down, apparently unaware of or unconcerned about the Streisand effect. Delsman defended pro se. Despite the long odds, Delsman nevertheless got a rousing dismissal of the claims. The court held the use of the headshots was a fair use (a clearly correct ruling, IMO), and the court casually tossed all of the other claims using California's anti-SLAPP law.
That should have been the end of it. Instead, surprisingly, Sedgwick has decided to appeal the ruling to the Ninth Circuit. This sets up a potentially important Ninth Circuit showdown over how copyright fair use and anti-SLAPP doctrines apply to Internet gripers. It also gives Sedgwick extra time to bask in the glow of the Streisand effect.
Private High School Not Liable for Cyberbullying--DC v. Harvard-Westlake
By Eric Goldman
D.C. v. Harvard-Westlake School, 2009 WL 2500343 (Cal. App. Ct. Aug. 14, 2009)
Harvard-Westlake is a highly-regarded private school in the Los Angeles basin with an impressive alumni roster and a lot of very affluent parents. I've known a few alums and, based on their descriptions, they seemed to have a remarkable and resource-rich experience far beyond what I had in public school.
DC was a Harvard-Westlake high school student and an aspiring entertainer. He ran a self-promotional website that contained a guestbook. Unfortunately, some of DC's peers were not fans of his, and they littered his guestbook with hateful homophobic "death threats." (I put that in quotes because they were ultimately deemed not to be serious threats.) It really breaks my heart to see coordinated venomous attacks like this among high schoolers. I understand that experimentation and limits-testing is part of the teenage experience, but IMO the hostility of these comments crossed the line. The death threats were so disconcerting that DC's parents contacted the local police, who brought in the FBI. Eventually the authorities advised DC to change schools. DC and his family followed this advice, requiring his entire family to relocate. The police ultimately decided not to prosecute the attacking students; according to one news report I saw, that decision was based on a conclusion that the attackers never actually intended to physically harm DC.
DC and his parents initially sued only Harvard-Westlake for a long list of claims, largely predicated on the school's allegedly derelict response to the students' attacks on DC. Among other things, the attacking students used Harvard-Westlake's computer network as part of their attacks, and the school did not suspend or expel any of the attacking students (although news reports indicate that the students were disciplined in some unspecified manner). The plaintiffs also complained that the student newspaper (supervised by a faculty member) published numerous stories about these incidents, including disclosing DC's new residence and school and repeating claims of his alleged homosexuality.
Subsequently, DC and his family also sued the attacking students and their parents. Needless to say, this has spawned a lengthy and expensive legal battle. The initial complaint was filed in 2005 and the proceedings are still going strong.
With respect to Harvard-Westlake as a defendant, DC's parents signed an enrollment contract that contained an arbitration clause and a fee-shifting provision. In 2005, the trial court ordered the Harvard-Westlake dispute to arbitration and stayed the actions against the attacking students and their parents until the arbitration was completed.
In Fall 2006, the arbitrator issued her first substantive ruling--the one that initially triggered my alert. In that ruling, the arbitrator dismissed several claims, including a state "hate crime" civil claim (the statute expressly protects sexual orientation) against the school on 47 USC 230 grounds. The arbitrator's ruling means that even if the school's computer network was used in the attack, the school isn't liable for that. Given its age, this is old news, and it isn't precedential because the ruling was made in arbitration. Nevertheless, in light of the various ongoing concerns about cyberbullying, I think this remains an interesting data point.
Subsequently in 2007, the arbitrator dismissed the remaining claims against the school and, per the fee-shifting agreement, awarded fees and costs to the school of over a half-million dollars. Last week's ruling in this case deals with (among other things) the plaintiffs' effort to avoid this award of fees and costs. They get a little relief from this court. To avoid discouraging plaintiffs with the specter of possible liability for defense costs, California's hate crime statute has its own "one-way" fee-shifting provision only for successful plaintiffs. Accordingly, the court concludes that public policy trumps the parties' enrollment contract and prohibits the plaintiffs from having to pay arbitration costs or defense attorneys' fees related to the hate crimes claim despite the contract.
The opinion isn't entirely clear about what happens next, but I believe the trial court ought to sever out any of the arbitration costs and defense legal fees tied to the defense of the state hate crimes claim. However, because the plaintiffs raised a long list of other claims in their lawsuit, I think a lot of defense legal fees still should be awardable under the fee-shifting provision in the enrollment contract. If so, the plaintiffs eventually will have a write a check of hundreds of thousands of dollars to the school.
I've previously blogged on other lawsuits involving high schoolers being mean to each other. The Sandler v. Calcagni and Finkel cases stands out most in my mind. These lawsuits seem to have some commonalities--they can be long-lasting all-out litigation wars that cost hundreds of thousands of dollars of legal fees. Based on my limited observations, my working hypothesis is that lawsuits over bad high schooler-on-high schooler behavior have no real chance of improving the plaintiff's life, regardless of the court's final disposition. Testing this hypothesis might be an interesting area to study. I wonder if a method like restorative justice might yield more satisfying results for plaintiffs than decade-long lawsuits.
I'm also wondering if Harvard-Westlake could have and should have done more to protect DC. I don't think the school was an appropriate defendant, but at the same time, there was clearly a crisis in its community that was detrimentally affecting the ability of one of its students to enjoy life. I'd welcome your thoughts about how schools can appropriately intervene in student-on-student cyberbullying attacks when they occur.
A final note: the court opinion does not mention either DC's identity or his parents' identity, so I've made the decision that it's not important for my blog post to identify the plaintiffs by name either. However, it was trivially easy to identify the plaintiffs. For example, you can see a list of most litigants from the lower court record in Case Number: BC332406 at the LA Superior Court website.
August 19, 2009
"Sources of Uncertainty in Patent Litigation" Conference, SCU, Sept. 25
By Eric Goldman
I'm pleased to announce the upcoming conference, Sources of Uncertainty in Patent Litigation, co-sponsored by the High Tech Law Institute and the Federal Circuit Bar Association. The conference will be September 25, 1:00-6:15, on the SCU campus. This timing should allow you to get a half-day of work done while still enjoying the conference.
As you can see, the speaker list is first rate. Judges Linn and Rader will be joining us from the Federal Circuit, federal district judges Fogel and Whyte are coming (and we hope to add at least one more district court judge) and the other speakers are leaders of the patent bar and academic community. The conference theme (uncertainty in patent litigation) is probably going to reach non-obviousness, claim construction and remedies, but the speakers have a lot of latitude to take the conversation in interesting directions.
We anticipate a full house for this event, so we encourage you to register quickly. Hope to see you there.
August 14, 2009
Flowbee Latest Trademark Owner to Sue Google--Flowbee v. Google
By Eric Goldman
Flowbee International, Inc. v. Google, Inc., 2:09-cv-00199 (S.D Tex. complaint filed Aug. 13, 2009) [NB: the complaint is split into 2 PDFs totaling 8+ MB]
After the Jurin and Ascentive lawsuits against Google dissolved, the Google lawsuit tally is once again on the rise. Flowbee is the latest trademark owner to line up against Google. This brings the total number of AdWords lawsuits against Google back up to 8.
I can't do a redline comparison to see how much of this complaint is a clone-and-revise, but I definitely recognized a lot of language from American Airlines' complaints against Google and Yahoo. Most conspicuously, this complaint ripped off the stock Gibson Dunn apology (in Para. 6) that Flowbee "does not bring this lawsuit lightly." It appears that this catchphrase has become the equivalent of the American flag lapel pin for politicians--you have to wear it or else you are clearly anti-American. Similarly, it seems like the emerging trend is that if you don't declare your heavy heart for suing the beloved Google, by negative inference you clearly must be engaged in litigation frivolity. I wonder how Gibson Dunn feels that another law firm is invoking its catchphrase.
I can't recall if language in Para. 63 is just copied from the Gibson Dunn complaint, but this complaint says "A statistically significant number of consumers are likely to believe falsely that it was Flowbee who 'sponsored' the links that appear above or alongside the PageRank search engine results." This, of course, remains one of the most crucial unresolved empirical questions underlying all of the AdWords-related lawsuits: exactly what do consumers think is the reason they are seeing specific keyword-triggered ads? For now, I'm more interested in a procedural question: I would love to know the exact steps Flowbee and its lawyers took to satisfy themselves of this factual statement before asserting it.
If it had not sued, Flowbee would have automatically been governed by the Firepond class action lawsuit (representing all Texas trademark owners) if that case ever gets class certification. As a result, Flowbee could have just free-rode on that lawsuit. I wonder just how much Flowbee is losing from competitive keyword ads to justify the costs of bringing its own standalone action.
The current roster of pending AdWords cases:
* Ezzo v. Google
* Rescuecom v. Google
* FPX v. Google
* John Beck Amazing Profits v. Google and now Google v. John Beck Amazing Profits
* Stratton Faxon v. Google (not initially a trademark case)
* Soaring Helmet v. Bill Me
Ascentive v. Google
Jurin v. Google
* Rosetta Stone v. Google
* Flowbee v. Google
August 12, 2009
2009 Cyberspace Law Syllabus and Some Comments
By Eric Goldman
I have posted my syllabus for this semester's Cyberspace Law course. This blog post describes the changes from my 2008 course reader. For more on my pedagogical approaches to the course, see my Teaching Cyberlaw article.
* Deleted the Tiffany v. eBay case. This is a really rich and fascinating case, but it is really long and I ran out of time to cover it last year. Also, it will be mooted in the not-too-distant future by a Second Circuit opinion.
* Replaced the Playboy v. Netscape and FragranceNet keyword advertising cases with Hearts on Fire v. Blue Nile. The Hearts on Fire case isn't a perfect teaching case, but it discusses use in commerce, likelihood of consumer confusion/initial interest confusion, and a bit of the policy issues. I suspect a number of my Cyberlaw colleagues are teaching the Rescuecom case, but I chose not to. First, it is doctrinally narrow. Second, it is a confusing opinion. Third, I tried to teach it as a last-minute substitution in my IP survey course last semester and was not satisfied with the results. Finally, it involves the less common fact pattern of keyword sales rather than keyword purchases. So I decided that this year the Hearts on Fire case could cover all the necessary issues adequately.
An interesting note: this is the first time in 15 years that I am not teaching a Playboy case in Cyberlaw. Frankly, I had expected to teach at least one Playboy case in Cyberlaw forevermore!
* Added Google's trademark policy. I'm a little surprised it never occurred to me before to include this in my reader.
* Updated my all-new keyword advertising slides from my May presentation.
* Deleted the Perfect 10 v. ccBill and Perfect 10 v. Visa cases. I have been struggling with how to teach the Ninth Circuit's Perfect 10 troika of cases for the last couple of years. The troika was over 100 pages of reading that nevertheless left students befuddled after all that work. But I felt constrained because the troika is the most definitive statement of Ninth Circuit law, and it is insightful to see the cases evolve. Nevertheless, I decided that the Amazon case was the most doctrinally significant, so I kept that and ditched the other 2.
* Added Io v. Veoh. To make up for taking out the Perfect 10 cases, I've added this case, which I think is a very clear exposition of a DMCA online safe harbor case.
Trespass to Chattels
* Replaced the Computer Fraud & Abuse Act statute with the most recently amended version.
* Included a slide that synthesizes the various trespass to chattel doctrines into a summary format.
* Added the Harris v. Blockbuster case. It's a short case that efficiently makes several powerful pedagogical points--including perhaps most importantly, the perils of robo-drafting by copying language from other people's agreements.
Blogs and Social Networking Sites
* Replaced my old materials on blog law and social networking sites law with my most recent talk on both from February.
* Added my Third Wave of Internet Exceptionalism article
* Added the Moreno v. Hanford Sentinel case as an end-of-the-semester review case. As I said when I first blogged on the case, I think "this is one of the most interesting cases I've seen in a while," and I'm really excited about teaching it. I think it will be an excellent issue-spotting opportunity for students as well as a powerful reminder of the power of published words (and how those words can unintentionally affect the people we love).
Change to the Grading Options
My other big change this year is that I am giving students the option to write a wiki entry on a cyberlaw topic as part of their grade. This was inspired by my forthcoming paper on Wikipedia (which you'll hear more about soon). In connection with that paper, I was researching alternative labor sources that could power Wikipedia, and students working as part of a class assignment was one option I explore in the paper (with some reservations). As part of "eating my own dog food" (a terrible idiom that seems to be prevalent in the Silicon Valley), I figured I should give it a try myself. As you can see, the wiki-drafting is optional, not mandatory, so I'll be interested to see how many students choose the option. I'll also be interested to see what happens when the students actually try to submit their work to Wikipedia. I have a mental image of a massive buzzsaw, but perhaps I'm being too cynical.
August 10, 2009
Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
By Eric Goldman
Nina Yoder was a University of Louisville nursing student. She posted a blog post to MySpace entitled "How I Witnessed the Miracle of Life” that describes her first-hand observations from a school assignment to go watch a patient-mother giving birth. The blog post now appears to be set to private, but you can see a PDF of it, and the opinion quotes the full text for your reading pleasure. This blog post and the resulting imbroglio sparked a lot of discussion. For more background, see this page with some of the source correspondence (and over 100 comments) and this thread from a nursing students' blog with about 250 comments.
Even if Yoder’s blog post was intended to be tongue-in-cheek, I can see why the blog post was so controversial. As just one example, the blog post repeatedly refers to newborn babies as "creeps." The court does not have kind words to describe the blog post, calling it "vulgar," "distasteful," "offensive," "crass and uncouth," and an "abject failure" as an attempt at humor. My personal take is that the blog post was, at best, ill-advised. I really can't imagine when I would want to work with a nurse who calls my baby a "creep," even if in jest, and (as discussed below) the amount of detail Yoder disclosed about her patient shows a reckless disregard for the confidentiality we expect from medical professionals.
When University of Louisville nursing school administrators discovered the post, they expelled Yoder from the nursing program on the grounds that she violated two contracts: the student honor code and a confidentiality agreement. Given how damaging Yoder's post was to the University's nursing school (after reading it, I suspect few patients would agree to let student nurses observe their treatments), I understand this impulse. However, the administrators’ decision to have two uniformed police officers at the termination meeting (because Yoder had separately blogged about her support of the Second Amendment) and to frisk her for weapons seemed a little over-the-top.
In this ruling, the court reverses the school's expulsion, holding that the school incorrectly interpreted the contracts. The main ruling relates to the contracts' requirement that Yoder not disclose patient confidential information. The defendants allege that the blog post disclosed "the following identifying information about the birth mother: the number of her children; the date that she was in labor; her behaviors; the treatment that she underwent (an epidural); her reaction to labor (vomiting); and the reactions of her family." The court says that none of this information was personally identifiable to the patient or her family because the post "does not disclose the birth mother's name, address, social security number, or the like. It does not disclose her age, race, or ethnicity. The Blog Post does not contain ‘financial’ or ‘employment related information’ about the birth mother. It does not disclose where she was in labor."
Well, the court is correct about the non-identifiable nature of the disclosures if you only consider the four corners of the blog post. No one could use the blog post to identify the mother or her family without relying on additional information. Nevertheless, the court's rationale is completely off-base. I’m confident that any savvy investigator could combine the blog post with other data sources and quickly identify the mom with a high degree of certainty, even if the investigator would rely only on easily obtainable published information. Just knowing the baby’s exact birthdate and limiting the inquiry to the Louisville area immediately limits the pool of possible women to a few hundred. Knowing that the child was the mom's third baby should narrow that restricted pool further. Thus, the court was clearly wrong when it said, categorically, "the Blog Post does not contain information that could possibly lead to the discovery of the birth mother's identity" (italics added). The first person who emails me the correct identity of the patient in question can, as their reward, choose a slinky from my special slinky stash.
As a result, this court's ruling illustrates the false distinction between personally identifiable and non-personally identifiable information. (The same issue arose in the recent Johnson v. Microsoft case declaring that IP addresses are not personally identifiable.) Paul Ohm has an important paper coming out on de-identification that should end this distinction permanently. The ability to combine multiple data sources makes it possible to uniquely identify data subjects even if each individual data source does not enable identification on its own. Especially in light of the healthcare context, this judge was way too charitable to Yoder on this point.
The court also says that Yoder did not violate a "professionalism" requirement in the school’s honor code because the blog post "was not created or used in any professional context." This is analogous to the K-12 school discipline cases (all uncited) where the principal disciplines a student for a blog post made off-campus. Clearly school administrators can reach too far into private conduct when meting out discipline, but again I think the judge is being very charitable here. Yoder was blogging her personal observations about a professional experience she had in a hospital, under confidentiality agreements, while doing her schoolwork. By this reasoning, any post that Yoder wrote in her personal time would not trigger the professionalism code, but given the subject matter of this post, this issue probably warranted more careful treatment.
Having said that, I totally agree with the judge's ultimate conclusion to reinstate Yoder. Although her post raised all kinds of yellow and even red flags about her judgment, the school had a wonderful teaching opportunity to explain/reinforce all kinds of lessons about the professional responsibility of a nurse (like, don't call patients' babies "creeps," even in jest). I think they didn’t capitalize on that opportunity by applying a one-strike rule to Yoder.
An update on Yoder's saga from the Chronicle of Higher Education.
August 07, 2009
An End to Spam Litigation Factories?--Gordon v. Virtumundo
By Eric Goldman
Gordon v. Virtumundo, Inc., No. 07-35487 (9th Cir. Aug. 6, 2009)
When CAN-SPAM was passed in 2003, it was fairly clear that Congress wasn’t trying to enable broad private enforcement. Everyone knew that rabid anti-spammers would seize any new statutory right for a litigation frenzy. As this court says, "lawmakers were wary of the possibility, if not the likelihood, that the siren song of substantial statutory damages would entice opportunistic plaintiffs to join the fray, which would lead to undesirable results." Although I personally think Congress would better served all of us by omitting all private enforcement rights in CAN-SPAM, unquestionably the private rights in CAN-SPAM are drafted narrowly to prevent their abuses.
That hasn't stopped some zealous anti-spammers from testing the limits of CAN-SPAM's private enforcement remedies anyway. James Gordon has been one of the most active. He is a "professional plaintiff" who has operated a spam "litigation factory" by configuring his technology to try to trap spammers. In effect, he goes out of his way to look for spam. As the court says, “the burdens Gordon complains of are almost exclusively self-imposed and purposefully undertaken."
As it turns out, this business model does not fare well in court. He lost this case in the district court and subsequently was ordered to pay over $100k in legal fees to the defendant under CAN-SPAM's fee-switching provision. On appeal, the Ninth Circuit has even less kind words for him, saying that CAN-SPAM “was enacted to protect individuals and legitimate businesses—not to support a litigation mill for entrepreneurs like Gordon." As a result, the court issues a broad but muddy opinion that shuts down Gordon’s litigation factory and presumably others like his, but has a less clear effect on other CAN-SPAM defendants.
"Internet Access Service"
CAN-SPAM's private enforcement rights only accrue to "Internet access services." This phrase is troublesome in part because it differs from other possible statutory synonyms for online actors like "interactive computer service" (47 USC 230), "online service provider" (DMCA), "electronic communication service" and "remote computer service" (ECPA), etc. This verbiage proliferation raises questions about the scope of governed entities (who’s covered and who isn’t) and why different online actors are being treated differently (if they are). I hope future legislative drafters will recognize the costs of using different terms for online actors.
In CAN-SPAM, Congress defined an “Internet access service” as "a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services." Check out Ethan’s lengthy but irresolute deconstruction of this definition from last year.
Read literally, this definition seemingly covers all Internet services because they allow users to access their "other" services. However, the Ninth Circuit doesn’t think that's what Congress meant, although it’s not sure about the boundaries either. Instead, the Ninth Circuit "decline[s] this opportunity to set forth a general test or define the outer bounds of what it means to be a provider of ‘Internet access service.’" Gee, thanks.
Nevertheless, the Ninth Circuit had no problem saying that Gordon wasn't an Internet access service. I can’t pin down a specific reason why Gordon wasn’t covered while, according to the court, his service providers (Verizon and GoDaddy) might be. Ultimately, I think the court rejects Gordon's transparent efforts to manufacture a claim.
A CAN-SPAM private litigant also needs to show that it was “adversely affected” by the spam. The court doesn’t offer a single definition of adverse effect, but it does try to draw some boundaries that leave Gordon out.
In general, the court tries to narrow the scope of cognizable harms in two ways. First, the court segregates consumer-related harms from service provider-related harms. I was heartened to see this because better harm delineation was a central point of my (uncited) 2004 article "Where's the Beef? Dissecting Spam's Purported Harms." Back in the earlier part of this decade, anti-spam advocates would routinely lump together a laundry list of gripes about spam in ways that would degrade policy-makers’ ability to target policy responses to the harm. For example, CAN-SPAM suffers heavily from this schizophrenia about the targeted harm. This court makes it clear that consumer-related harms aren’t part of the CAN-SPAM private litigation calculus.
Second, the court tries to distinguish between the fixed and variable costs of spam fighting and implies that the fixed costs should be ignored when calculating adverse effect. The court’s handling of this distinction is hardly deft. It says repeatedly that we have to assume that IAS providers are absorbing some spam costs as part of their normal costs of operation. For example, the court says:
the harm must be of significance to a bona fide IAS provider—something beyond the mere annoyance of spam and greater than the negligible burdens typically borne by an IAS provider in the ordinary course of business. In most cases, evidence of some combination of operational or technical impairments and related financial costs attributable to unwanted commercial e-mail would suffice
And the court says:
We expect a legitimate service provider to secure adequate bandwidth and storage capacity and take reasonable precautions, such as implementing spam filters, as part of its normal operations….network slowdowns, server crashes, increased bandwidth usage, and hardware and software upgrades bear no inherent relationship to spam or spamming practices. On the contrary, we expect these issues to arise as a matter of course and for legitimate reasons as technology, online media, and Internet services continue to advance and develop. Therefore, evidence of what could be routine business concerns and operating costs is not alone sufficient to unlock the treasure trove of the CAN-SPAM Act’s statutory damages.
Reading these quotes, it seems like the court is trying to zero out the fixed costs borne by anyone connected to the Internet, which would then focus the analysis on only those marginal/variable consequences attributable to a specific spam campaign. However, the court does not want to raise the bar that high, at least not for “legitimate” service providers (which the court thinks clearly excludes Gordon). As the court says:
the threshold of standing should not pose a high bar for the legitimate service operations contemplated by Congress. In some civil actions—where, for example, well-recognized ISPs or plainly legitimate Internet access service providers file suit—adequate harm might be presumed because any reasonable person would agree that such entities dedicate considerable resources to and incur significant financial costs in dealing with spam.
So I’m not quite sure what to make of this language. On the one hand, the court’s acknowledgement that complex societies impose some unwanted but unavoidable costs seems to raise the harm bar pretty high for CAN-SPAM plaintiffs. On the other hand, the court is willing to presume harm for “good” plaintiffs. So why won’t the court make such presumptions for Gordon? Mostly because he “came to the nuisance” (my words, not the court). As the court says:
Gordon purposefully refuses to implement spam filters in a typical manner or otherwise make any attempt to block allegedly unwanted spam or exclude such messages from users’ email inboxes...Gordon made no real effort to avoid, block, or delete commercial e-mail, but instead has voluntarily assumed the role of a spam sleuth. He expends time and resources seeking out and capturing massive volumes of spam, which he collects and then organizes for use in his prolific lawsuits. He admits setting up domains as “spam traps” with the sole purpose of snagging as many e-mail marketing messages as possible.
So my reading of this discussion is that the court sets up a bifurcated “adverse effect” analysis. If you’re a commercial email service provider, you presumptively get access to CAN-SPAM’s “treasure trove.” If you’re a spam troll, nuts to you.
Preemption of State Laws
One of CAN-SPAM's main raisons d'etre was to preempt the rapid proliferation of state anti-spam laws in the early part of this decade (especially California's opt-in anti-spam law). I naively assumed that CAN-SPAM's preemption clause would drive states out of the anti-spam regulation business altogether (a separate rant, but I'm not a fan of any state attempts to regulate Internet activity). No such luck. Following CAN-SPAM’s enactment, nearly every state enacted NEW anti-spam laws designed to fit within the preemption exceptions. This renewed activity at the state level has contributed to the anti-spam litigation frenzy, because the plaintiffs can use both state and federal claims to extract settlements and concessions from defendants.
In 2006, in Omega Travel v. Mummagraphics, the Fourth Circuit took a lot of the wind out of plaintiffs' sails by holding that state anti-spam laws survived CAN-SPAM preemption only as applied to fraud or material misrepresentations, not garden-variety errors or immaterial deception. Here, the Ninth Circuit adopts the Mummagraphics standard, which presumably eviscerates several state laws in Ninth Circuit-governed jurisdictions.
Applying the Mummagraphics’ standard to Gordon’s case wipes out his Washington state anti-spam claim. Gordon argued that, although he was not misled or deceived, Virtumundo’s “from line” violated Washington law because it does not clearly identify Virtumundo as the sender. He also argued that to avoid being deceptive, Virtumundo’s email subject lines must have either Virtumundo’s or its client’s name. The court rejects these arguments because "Gordon offers no proof that any headers have been altered to impair a recipient’s ability to identify, locate, or respond to the person who initiated the email. Nor does he present evidence that Virtumundo’s practice is aimed at misleading recipients as to the identity of the sender."
Expect to see more state laws bite the dust in the face of this preemption analysis.
This case is exceedingly interesting and important because it destroys the arguments of anti-spam plaintiffs trying to manufacture technical violations of CAN-SPAM for their profit. Not only does the opinion send an unmistakable message to the lower courts to toss these plaintiffs out on their keister, but it sends the harsh message that these plaintiffs ought to rethink their legal hubris. As the court says, “As should be apparent here, ‘the law’ that Gordon purportedly enforces relates more to his subjective view of what the law ought to be, and differs substantially from the law itself.” Ouch. The court has apparently just invalidated the fantastic laws that some anti-spam plaintiffs dream up in their heads.
This case is also important because it puts state anti-spam laws even more clearly on the ropes. It has been an impressive but pathetic display of futility watching the states trip over themselves trying to show that they are tough on spam when their efforts are all irrelevant in light of the Fourth Circuit's and now Ninth Circuit's interpretations of CAN-SPAM. Fortunately (?), most of the states have moved on to being tough on cyberbullying instead of beating up on spammers.
It is less clear to me if the court’s discussion about “Internet access services” and “adverse effect” will have broader import on private CAN-SPAM litigation. The court deliberately sidestepped definitive interpretations of both terms, so I expect the interpretive slate is mostly clean outside of the spam litigation factories.
One final point. Spam remains actively litigated in the courts and the subject of some policy discussion, but do you still fret about the spam you receive personally? I get the sense that this panel was not that impressed with Gordon’s efforts in part because spam isn’t as big a deal for the judges as it used to be. Certainly that’s true in my case. I get about 100 spams a day, 90+% of which Gmail appropriately filters into my spam folder (with very few misclassifications of legit email as spam). As a result, it takes me just a minute or two a day to burn through the spam accruals. Not surprisingly, at least for me, good spam filters have solved the problem much better than any legislative intervention.
I understand that spam is a bigger issue for email service providers, especially now that more than 100% of all emails are spam (according to the ridiculously overhyped stats put out by vendors of anti-spam solutions). CAN-SPAM partially offers a solution to these individuals, along with other doctrines like the Computer Fraud & Abuse Act and possibly the common law trespass to chattels doctrine. However, at this point, so much of the anti-spam battle has to be fought technologically, not in the courts, due to the sheer volume and dispersed nature of the putative defendants. As a result, it doesn’t really seem to matter to the overall quantum of spam in our society if courts read CAN-SPAM broadly or narrowly.
UPDATE: Ken Magill reports on how Gordon has lost his house belongings due to his persistence.
August 06, 2009
State of the Net West Recap
By Eric Goldman
Yesterday, the High Tech Law Institute and the Advisory Committee to the Congressional Internet Caucus co-sponsored the Third Annual State of the Net West event at Santa Clara University. The featured participants were 3 members of Congress (Boucher, Goodlatte and Lofgren) and the White House CTO Aneesh Chopra, supplemented by 8 distinguished discussants. In a jam-packed morning, we covered a lot of interesting and important ground on broadband, privacy, antitrust, immigration and open government. This blog post recaps some highlights from the discussion.
Boucher on Broadband
Rep. Boucher emphasized the importance of broadband availability to economic activity and expressed concern that the US wasn't keeping up with broadband deployment (he said, "we can do better"). He offered three policy proposals for ways the federal government could help:
* revise the Universal Service Fund to allow dollars to be spent on broadband deployment; and require USF fund recipients 5 years from now to be offering broadband or be cut off from USF
* federally preempt state laws prohibiting municipal broadband offerings (which about 25 states have)
* get the FCC to develop a broadband deployment plan
He expressed disappointment with the guidelines that NTIA and the Department of Agriculture have adopted to give away the $7.2B broadband fund that was part of the stimulus package. It appears he will be encouraging both entities to rethink their guidelines.
My colleague Al Hammond was the broadband discussant. Al made a number of good points, including noting that broadband deployment is both a rural and low-income issue (Boucher appeared to be focusing more on the former) and raising concerns about municipalities not playing fair and the FCC overcounting actual broadband availability.
Boucher on Privacy
Rep. Boucher also gave a preview of the privacy bill he is planning to introduce next month. He started off by saying he likes ad targeting, especially first party targeting (he said he buys items based on customized recommendations). So he wants to encourage "appropriate" ad targeting, not eliminate it. His bill is expected to contain the following elements:
* users can opt-out of first party targeted ads. This also includes data sharing necessary to enable first party ads
* websites that want to share data with unaffiliated third parties will need opt-in. However, behavioral ad networks can proceed on an opt-out basis if they allow users to see and edit their behavioral profile, except for sensitive information categories that would always be opt-in
* both the FTC and state AGs would have enforcement authority
I was especially intrigued by the proposal that behavioral networks can flip from opt-in to opt-out by letting users access a user profile. I need to see more details about Boucher's thinking, but doesn't this superficially sound crazy? The most obvious problem is authentication of the user before seeing his or her profile. How would this be done? The networks usually don't know the identity of the specific individuals they are profiling, so they can't authenticate identity. And just tying profile access privileges to a cookie or machine sounds like a recipe for disaster for all shared computers. Plus, a web interface seems to increase the security risks that the bad guys can see profiles they shouldn't be able to see. On first blush, it sounds like this part of Boucher's proposal may need a complete rewrite, with unknown consequences for the entire structure of his proposal.
Mike Hintze of Microsoft was the privacy discussant. He espoused Microsoft's standard line that there should be a comprehensive privacy law.
In the Q&A, Boucher appeared willing to consider concurrent privacy enforcement authority by self-regulatory organizations, so long as they enforced the law's minimum requirements. But any self-regulatory effort wasn't a substitute for other aspects of his bill.
Lofgren on Antitrust
Rep. Lofgren said that if the Bush administration did too little on antitrust enforcement, the Judiciary committee is now concerned that Obama and Varney will do too much. Lofgren is particularly focused on the chilling effects of the mere threat of antitrust scrutiny, not just the actual successful prosecution in court of cases. Thus, an "informal" DOJ expression of interest can deter innovative activity by high tech companies.
She also expressed skepticism that antitrust laws remain effective at protecting technology markets, which are marked by fast innovation and low barriers to entry. (I believe her exact words were "traditional antitrust measures of marketplace behavior might no longer work.") At minimum, any technology-related antitrust enforcement actions should be focused on improving innovation rather than trying to manage current marketplace prices.
Finally, she said that copyright restrictions should be considered in antitrust inquiries. Mike Masnick has more to say on this.
Michael Katz of UC Berkeley was the most colorful respondent. He shared Lofgren's concern that antitrust law may be counterproductively squelching innovation, especially when companies try to capture antitrust enforcers to hassle competitors. He had especially harsh words for the FCC, calling it much less disciplined than the DOJ and observing how the FCC can blackmail companies using its leverage. He also complained that the FCC's review of mergers takes too long, and as an example of their lack of discipline, the FCC will impose merger conditions that have nothing to do with the merger.
At the end of her talk, Lofgren praised the Google Book Search settlement, saying that in some ways it lowers barriers to entry. She also said she was grateful that Google appears to have found a back-door way to liberate orphan works given that she wasn't able to pass an orphan works bill. I'm all in favor of orphan works reform, but a class action settlement seems like a weird way to get there.
Chopra on Open Government
Aneesh Chopra is the new White House CTO, a role that never existed before, which puts Chopra at Obama's elbow on all technology issues. This was Chopra's first Silicon Valley trip since he undertook his new role. His first talk was on Tuesday night at a Churchill Club event; we were his second. Lots of people were very interested in learning more about him. He was the big draw for the press, and we got an unprecedented number of walks-in based in part (we think) on his talk. He was also mobbed before and after his talk--everyone seemed to want a piece of his attention (then again, I'd love to have a chance to kick some stuff around with him one-on-one myself!).
It's easy to see why Chopra sparks such curiosity. My impressions were that he was genuinely affable, smooth without being slick, substantive without being bookish, a big fan of crowdsourcing and an even bigger fan of assessment and measurement of outcomes.
He started off by discussing the importance of technology and how the US's rate of technological performance is lagging against other countries. He then identified three ways to "turn the ship around":
1. invest in innovation building blocks, such as a smart/secure infrastructure, more R&D and improved workforce expertise
2. healthcare reform, especially improvements to the information technology side of healthcare delivery
3. an improved education system, including distance learning and more emphasis on lifelong learning
He then discussed open government issues and gave examples of ways technology can facilitate participatory governance.
Goodlatte and Discussants on Immigration
Rep. Goodlatte laid out the Republican's high tech agenda, which includes:
* skilled workforce, including immigration reform
* patent reform
* trade issues
* taxation, including efforts to define when activity in a state triggers tax obligations
* net neutrality (don't regulate but improve antitrust enforcement)
* privacy (opt-out except for sensitive information)
The panel then drilled down on immigration reform. I was really excited to have this panel because workforce issues are so central to the Silicon Valley's "secret sauce" and yet I couldn't recall a time that the HTLI had sponsored a discussion about them. Obviously immigration issues are age-old and are well-trodden, but I nevertheless found the discussion helpful--with the one caveat that everyone on the panel agreed with everyone else, so there was a lot of preaching to the choir. I learned an interesting factoid that both Reps. Goodlatte and Lofgren were formerly immigration attorneys, so they have some front-line domain expertise in this area.
First discussant was AnnaLee Saxenian of UC Berkeley. She talked about how skilled immigrants have fueled innovation in this country. She gave a number of stats in support of this, including that a majority of Silicon Valley engineers are foreign-born, and a high percentage of technology entrepreneurs and patent applicants are foreign-born individuals. She also noted that foreign-born skilled works create net new jobs and also help build better ties to their home country.
We benefit from the best and the brightest from around the world, who come to the US because of our higher education system and historically have chosen to stay. However, she is concerned about this retention because of bureaucratic barriers. She is also concerned that companies, frustrated by their lack of access to development talent, will offshore their R&D.
Finally, she pointed out that immigration discussions kludge together the issues of skilled and low-skilled workers, even though their issues are very different.
Keith Wolfe of Google reinforced many of AnnaLee's points from Google's specific experiences.
My colleague Deep Gulasekaram was the last discussant. He pointed out that free marketplaces may require free movement of labor, which isn't consistent with our current immigration policy. He raised concerns about state and local anti-immigration policies and the negative consequences of tying foreign workers to specific jobs (by linking their visa to the job).
Rep. Lofgren added a few remarks:
* Obama told her that it's time for comprehensive immigration reform. [This led to a polite back-and-forth between Lofgren, who favors comprehensive reform, and Goodlatte, who would settle for piecemeal immigration reform]
* Immigration reform is not a substitute for educating the US workforce
* We should give permanence to people we want to keep (i.e., not keep them on some treadmill with the possibility of a forced exit, which prevents their long-term life planning)
* We need to address the family of skilled immigrants, not just the immigrants themselves
More Coverage of the Event
* ABC 7 News
* KCBS radio
* Zusha Ellison of the Recorder
* Joyce Cutler of BNA (BNA subscription required)
* Mike Masnick
* Joel West
* Colette Vogele
* Warren's Washington Internet Daily also ran a story (not web-linkable) "Boucher Promises Online Privacy Bill Draft Soon"
* The extensive Twitter discussion at hashtag #sotnw. Twitterers included @ipolicy, @caminick, @persistance, @miss_eli, @techpolicygirl, @cathygellis, @mmasnick, @nextgenweb, @marianmerritt, @larrymagid, @christinela, @mblatkin, @seangarrettnow, @vogelelaw (who didn't always use the hashtag--we will try to publish a standardized hashtag at future events). Whew! Apologies if I missed anyone. I can't recall seeing more Twitterers in an audience--everyone seemed to have their Twitter page up constantly. As usual, I didn't turn on my computer at the conference (I take notes by hand and blog them later), so my comments seem woefully out-of-date already!
We plan to post the event audio soon so you can listen for yourself. I'll announce the audio posting at my Twitter account when it's live.
August 04, 2009
Wikipedia and Rules Proliferation
By Eric Goldman
I have previously mentioned how rule sets tend to expand over time. We've seen this with legislation; for example, consider how the Copyright Act has grown over time. Personally, I've seen code expansion over and over again in the context of negative behavioral restrictions in user-to-user communities. A 2008 article by Brian Butler, Elisabeth Joyce and Jacqueline Pike entitled "Don’t Look Now, But We’ve Created a Bureaucracy: The Nature and Roles of Policies and Rules in Wikipedia" provided yet another dramatic example of this phenomenon in the Wikipedia context. They write:
One useful measure of increased complexity is the change in lengths in terms of word count alone of the policies from the first version to most current. All policies studied grew enormously.
• Copyrights: 341 words => 3200 words: 938%
• What Wikipedia is not: 541 words => 5031 words: 929%
• Civility: 1741 words => 2131 words: 124%
• Consensus: 132 words => 2054 words: 1557%
• Deletion: 405 words => 2349 words: 580%
• Ignore all rules: exceptional case
The first version of the Ignore all rules policy is only 23 words long, stating, “If rules make you nervous and depressed, and not desirous of participating in the Wiki, then ignore them and go about your business” . The current version is actually shorter, only 16 words, and says, “If a rule prevents you from working with others to improve or maintain Wikipedia, ignore it” . However, as suggested earlier in this paper, while the actual wording of this policy declined 69% and it appears on the surface to be the least bureaucratic of the policies, the supplemental page directly linked to this policy contains 579 words, indicating that the policy swelled over 3600% .
There are some obvious detrimental consequences of this expansion. First, it facilitates wikilawyering. As the rules get more complicated, there are more ambiguities to debate and potentially more contradictory rules. Second, it becomes a bigger barrier to entry for newcomers or casual users; either they must try to master a greater and more complex rule set, or they are more likely to transgress and have their contributions reversed.
August 03, 2009
Google Goes on Offensive in AdWords Trademark Lawsuit--Google v. John Beck Amazing Profits
By Eric Goldman
A couple of interesting developments in John Beck Amazing Profits v. Google, the putative nationwide trademark owner class action lawsuit against Google over AdWords.
First, as of last week, the plaintiff had not served the complaint on Google even though it's been on file for over 2 months. I'm not sure what's the hold-up, but in my limited experience, delays in serving an already-filed complaint are often a leading indicator of a troubled lawsuit.
Second, last week Google sued the individual named plaintiff in that case, John Beck Amazing Profits, for both a declaratory judgment that AdWords doesn't infringe plus a breach of contract claim that the lawsuit filing breached the AdWords contract provision requiring any AdWords-related lawsuit to be brought in California. Going on the offensive against a plaintiff is characteristic of Google's litigation strategy; Google often tries to turn the tables on its litigation opponents. In this case, a major goal for Google surely is to get the case out of the Eastern District of Texas, which has been a dangerous venue for patent defendants.
Although the declaratory judgment and counterclaim is consistent with Google’s standard practices, in this case Google is ripping a page out of Yahoo's playbook in its litigation with American Airlines. American Airlines sued Yahoo over selling trademarked keywords in a Texas federal court; Yahoo shot back with a in a California federal court to try to get the case in a more favorable venue. The “dueling lawsuits” have led to an ongoing jurisdictional tussle that has slowed down progress on the substantive merits of American Airlines' claim.
As I wrote in connection with Yahoo's efforts, it was not clear to me that a defendant can wrest jurisdictional control of a case through the declaratory judgment process. In Google's situation, it's even more complicated because John Beck Amazing Profits is just the named plaintiff in a class action lawsuit. The plaintiffs could easily replace John Beck Amazing Profits with another named plaintiff who isn't an AdWords advertiser and isn't subject to California jurisdiction. At that point, I'm not sure what happens to the class action. (And, even if Google succeeds in moving the nationwide case, it should have no bearing on the Firepond putative class action lawsuit, which only covers a class of Texas trademark owners). Moreover, even if Google wins the declaratory judgment, it would have no binding effect on other class members.
So other than a not-certain-to-work ploy to pull the nationwide class action out of a bad venue, the only other benefit I see from the litigation is to send a warning shot to any named plaintiff who might succeed John Beck Amazing Profits that Google will be coming after them too. Let's see how that message is received.
The current roster of pending AdWords cases:
* Ezzo v. Google
* Rescuecom v. Google
* FPX v. Google
* John Beck Amazing Profits v. Google and now Google v. John Beck Amazing Profits
* Stratton Faxon v. Google (not initially a trademark case)
* Soaring Helmet v. Bill Me
Ascentive v. Google
Jurin v. Google
* Rosetta Stone v. Google