March 2011 Quick Links, Part 2

By Eric Goldman

Trademark

* Apple is on the road to CrazyTown with its attempt to secure and protect trademark rights in “App Store.” Among the “highlights” this month:

- it sued Amazon. Marty’s comments. The Justia page.

- Microsoft has been scoring a lot of points in its TTAB opposition. My comments on the latest developments. This battle is so pitched, it’s devolved into a font war.

- Apple successfully “persuaded” MiKandi, an “app store” for adults, to change its description to “app market.”

* Google’s trademark win for “Android” is being appealed to the Seventh Circuit.

* Advocate General’s opinion in the EU keyword advertising case of Interflora v. Marks & Spencer. Let me know if you have the patience to read the whole thing. I don’t.

* Jim Jansen: “it probably doesn’t pay, on average, to bid on competitors branded phrase.”

* At SSRN: Counterfeiters: Friend or Foe? The article tries to evaluate when knockoffs create demand for the original or act as substitutes: “The advertising effect dominates substitution effect for high-end authentic product sales, and the substitution effect outweighs advertising effect for low-end product sales.”

* BoingBoing: NYT shuts down the @freeNYTimes auto-retweeting account on trademark grounds because the re-tweet service blows apart NYT’s paywall. BTW, given its holes, I don’t think it should be called a “paywall.” Maybe more like a “pay-chain-link-fence”?

* GoDaddy takes down a website that tried to emulate Reed College’s website.

* Washington Post caves in response to demand from Washington Redskins’ team and changes a blog name from “Redskin Insider” to “Football Insider.”

Retailing and Manufacturing

* WSJ: Manufacturers and retailers are beginning to push back on the paradox of choice. AdAge on Walmart using its market share to promulgate private regulations on its suppliers.

* Fast Company: How to sell more carrots? Market them like junk food.

* Illinois is the latest state to enact an “Amazon tax,” so Amazon and Overstock tossed their Illinois affiliates overboard. When are states going to learn that the Amazon tax doesn’t actually improve their financial situation? They don’t get the increased sales tax revenue, and they lose the income tax from state-based affiliates. This is the opposite of a Pareto optimal move–no one gets made better off, but some get made worse off. This is also a good example of how state tax policy can degrade our national economy.

* SaferProducts.gov is now live.

* NYT: Car manufacturers are asserting copyright to prevent the National Highway Transportation Safety Administration from republishing their “technical service bulletins” describing warranty extensions and other unusual problems with their cars.

Privacy

* From the FTC: “in the last 15 years, the FTC has brought more than 300 privacy-related actions, including: 32 data security cases, 64 cases against companies for improperly calling consumers on the Do Not Call registry, 86 cases against companies for violating the Fair Credit Reporting Act (FCRA), 97 spam cases, 15 spyware (or nuisance adware) cases, and 15 cases against companies for violating the Children’s Online Privacy Protection Act (COPPA).”

* FTC busts Chitika for having opt-out cookies expire in 10 days. According to ClickZ, Chitika claims it was a bug; the cookie was supposed to expire in 10 years.

* ClickZ: “Device Fingerprinting Could Be Cookie Killer.” A follow-up story on privacy concerns.

* Time Magazine: Data Mining: How Companies Now Know Everything About You

* The FTC gave final approval to its settlement with Twitter. Prior blog post.

* Jane Yakowitz, Tragedy of the Data Commons. Brooklyn VAP Jane Yakowitz takes on Paul Ohm’s reidentification paper. The abstract:

Accurate data is vital to enlightened research and policymaking, particularly publicly available data that are redacted to protect the identity of individuals. Legal academics, however, are campaigning against data anonymization as a means to protect privacy, contending that wealth of information available on the Internet enables malfeasors to reverse-engineer the data and identify individuals within them. Privacy scholars advocate for new legal restrictions on the collection and dissemination of research data. This Article challenges the dominant wisdom, arguing that properly de-identified data is not only safe, but of extraordinary social utility. It makes three core claims. First, legal scholars have misinterpreted the relevant literature from computer science and statistics, and thus have significantly overstated the futility of anonymizing data. Second, the available evidence demonstrates that the risks from anonymized data are theoretical – they rarely, if ever, materialize. Finally, anonymized data is crucial to beneficial social research, and constitutes a public resource – a commons – under threat of depletion. The Article concludes with a radical proposal: since current privacy policies overtax valuable research without reducing any realistic risks, law should provide a safe harbor for the dissemination of research data.

* Woodrow Hartzog, Promises and Privacy: Promissory Estoppel and Confidential Disclosure in Online Communities, 82 Temp. L. Rev. 891 (2009). The abstract:

Online communities often provide significant support for those who seek it. Yet in order to take advantage of that support, users must frequently disclose sensitive information such as dating profiles, candid thoughts, or even past substance abuse. What happens when other community members fail to keep this potentially harmful information confidential? Traditional remedies will likely fail to protect people when members of an online community violate the confidentiality of other members. In this Article, I contend that promissory estoppel, an equitable doctrine designed to protect those who detrimentally rely on promises, can ensure confidentiality for members of online communities. The application of promissory estoppel via a website’s terms of use agreement as a method for protecting disclosure has substantial advantages over tort-based, technological, or contractual remedies. Under the third-party beneficiary doctrine or the concept of dual agency, these agreements could create a safe place to disclose information due to mutual ability to enforce promises of confidentiality.