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June 25, 2012
Wisconsin Appeals Court Punts on the Legality of Buying People's Names for Keyword Advertising--Habush v. Cannon
By Eric Goldman
You may recall this case. Habush Habush & Rottier and Cannon & Dunphy are both leading personal injury law firms in Wisconsin. The Cannon firm bought the names "Habush" and "Rottier" as keywords for its competitive keyword ads. Habush and Rottier then sued the Cannon firm and its principals for violations of Wisconsin's publicity rights statute. To my knowledge, this is the only pending lawsuit over keyword advertising triggered by a person's name, and there's no direct precedent on point. Furthermore, the publicity rights doctrine is so under-theorized that no one really knows how to define its boundaries. Because of the doctrinal morass and the technological underpinnings, this case is giving judges fits. The lower court judge ruled for the defense but wrote an odd opinion, and basically expressed resignation knowing that he was going to be appealed no matter what he ruled.
The appeals court didn't want this case any more than the lower court judge did. This led the appeals court to do something highly unusual: instead of trying to resolve the case or even make any progress sorting through the issues, the appeals court simply punted the case to the Wisconsin Supreme Court. The procedural move is that the appeals court "certified" the issues to the Supreme Court, but let's be honest--the appeals court was so obviously flummoxed by this case that it simply kicked the case upstairs without even trying.
I've seen this procedural move before, but usually it's a federal district or appellate court certifying a question of state law to the state Supreme Court. I can't recall the last time I saw a state appellate court simply deem a case a "hot potato." On the other hand, the appellate court knew (like the lower court judge) that these litigants (being litigators, after all) were going to appeal its ruling no matter what it ruled, so this case is destined for the Wisconsin Supreme Court eventually. The appellate court's punt just speeded that denouement up.
The Supreme Court doesn't have to accept the certification; for example, the Supreme Court could tell the appeals court to try again. But assuming the Supreme Court accepts the certification, it will set up a major publicity rights showdown at the Wisconsin Supreme Court. I'd expect numerous amici would offer up some guidance to the Wisconsin Supreme Court; I probably would participate in some brief in support of the defense.
The appeals court offered four weak explanations why it thought it was better to punt the case than try to resolve it:
* "the Wisconsin Supreme Court has not yet interpreted WIS. STAT. § 995.50 in any context even generally resembling this one, much less addressed specific features of § 995.50(2)(b) in the context of now pervasive Internet search engines"
* "until recently, the following activity did not exist: keyword-triggered advertising that uses “sponsored” web page links to draw the potential attention of millions of Internet users who navigate from search-engine results to web pages"
* "“Developing” a “common law of privacy” is not the primary function of the court of appeals." [Seriously???]
* "any decision on these issues may have widespread and significant ramifications for many individuals and businesses in Wisconsin and beyond its borders"
Frankly, I thought the appellate court made good arguments why it should have ruled on the case on its docket, not punted it.
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