January 31, 2013
Another Employee Behaves Badly on Social Media. Really, You “Can’t Make This Up.” -- In re Palleschi
[Post by Venkat Balasubramani with a comment from Eric]
Palleschi v. Cassano, 2013 WL 322573 (N.Y. App. Div. Jan. 29, 2013). The trial court decision.
Someone calls 911 complaining of a “gynecological emergency.” A fire dept. employee, an emergency medical services supervisor, photographs the computer screen, including the complaint, along with the caller’s name, address, and telephone number. The employee uploads the image to his Facebook account with the following caption:
[c]an't make this up.
Not surprisingly, the ALJ and judge don't find his post very funny.
What you “can’t make up” is the human ingenuity and creativity when it comes to posting stuff that comes back to haunt you . . . and then complaining about it. I’m surprised the reaction of the ALJ was a one sentence denial of the claim that said only “you can’t make this up.”
Eric's Comment: I'm not sure how professionals in the healthcare industry interpret their confidentiality obligations, but sharing the screenshot with even one person seems like a fairly blatant violation--and sharing the screen with hundreds of folks online only magnifies the gaffe's scope. I put this incident in the same social-media-misjudgment bucket as Tatro (funeral industry), Yoder (nursing), Byrnes (nursing), CareFlite (EMT) and O'Brien (teacher). It seems like all professional schools need to be teaching their students about the proper use of social media. Apparently that's not self-evident.
[image credit: Shutterstock / Kalmatsuy Tayana -- "birthday clown holding blank board"]
Conviction Upheld for Impersonating Dead Sea Scrolls Scholars by Sending Out Emails Signed by Others – People v. Glob
[Post by Venkat Balasubramani]
People v. Golb, 2013 NY Slip Op 00436 (N.Y. App. Div. Jan. 29, 2013)
The defendant was charged with impersonation and identity theft, among other things, for using emails to impersonate others:
Defendant is the son of an expert on the Dead Sea Scrolls. Defendant set up email accounts in which he pretended to be other scholars who disagreed with defendant’s father’s opinion on the origin of the Scrolls. Among other things, defendant sent emails in which one of his father’s rivals purportedly admitted to acts of plagiarism.
He raised post-trial challenges to his conviction, but the court rejects them.
First, he argued that the emails were intended to be “satiric hoaxes or pranks.” This argument was not supported by the evidence—the court says it’s clear defendant did not intend any kind of parody.
Second, he challenged the definition of fraud allowed by the court (“intent to deceive or defraud as to the source of the speech with the intent to reap a benefit from that deceit”). The court says that harm in this context need not be limited to tangible harms such as financial harm. The court also says that the harm he intended to perpetrate—“damage to the careers and livelihoods of the scholars he impersonated”—fell within the meaning of the term “injure.”
This case of course raises the issue of what types of falsehoods are proscribable, and whether any particular type of harm or benefit is required. As discussed by Professor Volokh, the Supreme Court recently addressed this issue in US v. Alvarez (the Stolen Valor Case). Although the Court's plurality opinion did not provide much clarity, Prof. Volokh's take is that criminal liability in this scenario likely passes muster under Alvarez (at least under the test set forth by the two Justice concurrence). He also cites to the Restatement of Torts, section 652, that seems to cover things like signing on to a petition in someone else's name. The examples given in the Restatement (which of course isn't the law) are signing someone else's name to a "spurious inferior poem," and to a petition nominating someone for office.
I was less convinced that Alvarez envisions a conviction like this one. Justice Kennedy's opinion rejects the idea that false speech is unprotected by virtue of its falsity, and concludes that the Stolen Valor Act does not satisfy exacting scrutiny. The statute does not narrowly address the harm sought to be prevented by the government. Even Justice Breyer's concurring opinion says that proscribing falsity without accompanying harm "provides a weapon to a government broadly empowered to prosecute falsity without more." He says he can envision a narrower version of the statute that works -- i.e., one that requires "specific harm," materiality, or is limited to situations where such harm is most likely to occur.
This raises the interesting question of what thresholds for liability should be for alleged violations of e-personation statutes, which cover a hugely growing category of speech online. See, e.g., "H.S. Student Charged With Identity Theft For Setting Up Phony Twitter Account In Name Of Schools Boss" (the most recent example I came across, but there are countless others). Determining the defendant's own intent and whether a reasonable person would have perceived it as a harmless joke (or parody) is one way to distinguish actionable from non-actionable scenarios.
Another possibility--and what the Dead Sea Scrolls case gets at--is whether there should be some sort of damage threshold. The court there latched on to the career injury and advancement as concrete benefits or harms, but this is tougher to do when you have a situation such as a high school prankster. In this situation, the statute much more easily becomes a weapon that can target unpopular speech or viewpoints. At a minimum, there should be some objective harm threshold in order to constrain the discretion of the prosecutor and make sure that the government isn't acting as a free-floating censor.
David Kravets: Court Upholds Conviction in Dead Sea Scrolls E-Mail Impersonation Case
Prof. Volokh: No First Amendment Violation in E-Mail Impersonation Case
WSJ Law Blog: Judges Not Amused by Dead Sea Scrolls 'Prank'
[image credit: Gigra / Shutterstock -- "wooden Pinnochio doll with long nose"]
January 29, 2013
Google and Yahoo Defeat Trademark Lawsuit Over Keyword Ads--Clara Ison v. Google
By Eric Goldman
I try to track every trademark lawsuit regarding Google AdWords. Thus, I am embarrassed to admit that I just learned about a trademark lawsuit filed in 2010 that flew completely under my radar. In my (limited) defense, the lawsuit was in state court, where I can't track cases nearly as easily as I can track them in federal court.
The plaintiff is a California psychologist. She sued Google and Yahoo for selling her name as triggers for keyword advertising and, I believe, for other issues (her complaint isn't a model of clarity). She only made state law claims, which helped keep the case out of federal court. Her complaint was cloned from the American Airlines v. Google complaint (I recognize the false drama in Para. 36, the claim that the "Plaintiff does not bring this lawsuit lightly"). Somehow, she got to a fourth amended complaint, but the court rejected her request to file a fifth amended complaint.
Earlier this month, the court granted Google and Yahoo's motion for summary judgment because Ison didn't show secondary meaning in her name. Apparently, expert Hal Poret did a survey showing the lack of secondary meaning among the target consumers, and Ison didn't have enough counter-evidence to create a triable issue.
For reasons that aren't clear from the papers I saw, Ison apparently didn't allege a publicity rights violation. I don't think selling keyword advertising on a person's name should constitute a publicity rights violation, but that issue has completely vexed Wisconsin judges in the Habush v. Cannon lawsuit. At minimum, publicity rights claims don't need secondary meaning, so it would have avoided the most immediate problem that scuttled her lawsuit.
Some related posts:
* Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
* Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
* With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
* Google Defeats Trademark Challenge to Its AdWords Service
* Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown
The two other pending AdWords trademark lawsuits (that I know about!):
[Photo Credit: satellite dish antennas under sky // ShutterStock]
January 28, 2013
State Laws Restricting Social Media Use by Sex Offenders Are Failing in Court
[Post by Venkat Balasubramani with comments by Eric]
Statutory schemes in three different states intending to regulating the online activities of convicted sex offenders have meet with judicial disapproval.
Doe v. Nebraska, 09CV456 (D. Neb. Oct. 17, 2012):
Nebraska’s statute (1) required registrants to disclose their device identifiers and online profiles; (2) required registrants to consent to searches and the installation of monitoring apparatus and (3) criminalized use of sites that are accessible by minors.
Ban on internet use: Section 28.322.05 banned sex offenders from using any “social networking website, instant messaging, or chat room service” that also allows users who are less than 18 to access those services. Citing to an array of facts and figures regarding the ubiquity of social networks and utilities, the court says that the statute restricts the affected individuals from using “an enormous portion of the internet” to engage in expressive activity. The court notes that the ban is not dependent on any past use of utilities to commit crimes, or any particular online risk posed by the offenders. The ban is overly broad and violates the First Amendment.
The court also picks apart the definitions employed by the statute and says that the statutory definitions render it unconstitutionally vague. The government offered a slew of narrowing constructions to different terms in the statute, but the court says that these suggestions further illustrated the vagueness underlying the statute. For example, the statute banned “instant messaging” services—that were defined as services that enabled instantaneous text transmissions—but the State claimed that this did not include text messaging services. The court was charitable toward the legislature, but at a certain point the snark just broke through:
Without intending to be unkind, the fourth suggested construction is laughable. It states that ‘virtually instantaneous’—for purposes of ‘instant messaging’ services or ‘chat rooms’—means ‘real time.’ What in the world does ‘real time’ mean? Particularly when it comes to ‘text messages’ sent through ‘instant messaging’ services, the substitution of the words ‘real time’ for ‘virtually instantaneous’ is of no help whatever in clarifying the glaring ambiguity in the statute. The proposed construction is very much like a dog chasing its tail—the dog and the tail simply turn in a humorous circle.
The court says that, in addition to being overly broad, the ban does not leave open alternate channels of communication. While the State argued that sex offenders could still obtain information through news media, the court says that not being able to access information via Twitter and Facebook is as good as a ban—it doesn’t matter that you can access the news in the next day’s edition of the newspaper. Similarly, not being able to use Skype means not being able to videoconference with family members. According to the court, there’s no substitute.
The court rules this provision facially unconstitutional.
Disclosure of identifiers: The statute requires offenders to disclose device identifiers as well as “internet communication identifiers”. A related statutory provision also required offenders to consent to a search of his or her devices. With a cite to McIntyre and a nod to the fact that “anonymity is a shield from the tyranny of the majority,” the court says that these provisions also do not pass muster. The court finds particularly troubling the fact that an offender is required to disclose any blogs or sites maintained by the person – i.e., the disclosure provisions effectively eviscerate an offender’s right to engage in anonymous online speech. And the court is clear that even registered sex offenders have this right.
The court also rules this provision facially unconstitutional.
Ex Post Facto Challenge: The court also says that the statute violates the ex post facto clause. The key question is whether the statute has a punitive intent or merely a civil regulatory scheme. Citing to statements from the sponsoring lawmaker (and the fact that the State elected to exercise legislative privilege to block inquiry into the purpose of the bill), the court says the statute is punitive in nature and violates ex post facto with respect to people who had been convicted prior to the effective date.
The court does dismiss as unripe the Fourth Amendment challenge brought against the consent to search provisions by those who were not on probation. (In any event, the court ruled these provisions unconstitutional on other grounds.)
Doe v. Harris, C12-5713 (N.D. Cal. Jan. 11, 2013):
California voters overwhelmingly approved the “Californians Against Sexual Exploitation Act” (Proposition 35). The statute requires sex offenders who fall under California’s sex offender registration program to provide the following:
- a list of all “internet identifiers established or used” by the person
- a list of all “service providers used by the person”
Internet identifier is further defined as:
an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar communication.
The statute also required registrants to provide (in writing) any changes to the above information. The information is to be provided to the agencies that otherwise deal with the registrant, but those agencies would make the information available to the Department of Justice. The court initially entered a TRO, but subsequently issued a preliminary injunction, enjoining enforcement of the statute pending outcome of the litigation.
Level of scrutiny: First, the court says that the statute is not subject to strict scrutiny because it is content neutral, even though it affects a class of speakers.
Construing the statute: Second, the court narrows the statute in accordance with the government’s concessions: (1) the only service providers a registrant needs to report are those with whom the registrant actually has an account (e.g., if you are at the library and Time Warner is the ISP that allows you to access the internet from the library, you need not report this); (2) only identifiers that are actually used to post content or communicate are required to be reported (e.g., your Amazon account information that you use to purchase books is not required to be reported, assuming you also do not use that profile to comment or interact online).
Is the statute “narrowly tailored”?: The court says that it’s conceivable that the registration requirement generally advances the stated government interest of preventing future crimes by registrants. The court notes the hypothetical example of being able to cross-check a person who uses an online identity to recruit against the database of registrants. However, the court says that narrow tailoring in this context also requires restrictions on when law enforcement can access the information and what they can do with it. Here the law says that law enforcement can disclose identify information “when necessary to ensure public safety.” The law was similar to statutes in other states (Georgia and Utah) that have been struck down.
The court is also concerned that the statute will have a chilling effect—failure to report is a criminal violation, punishable by up to three years in prison. The statute also has the effect of depriving registrants of their online anonymity.
The court points to the fact that the state’s own assessment process classified a chunk of the offenders as having a “low to moderate” risk of re-offending. The government could not explain why these offenders should be treated the same as higher risk offenders. There was also no data of how likely offenders are to commit future offenses using the internet. Similarly, the court says that some data is available to the effect that online exploitation is much less likely to occur on sites that involve discussion of political or social issues. It's unclear there's adequate justification for requiring registration for these types of sites or services (even for those whom the data ostensibly says are likely to re-offend online).
In closing the court says:
The Case ACT provisions extend to [websites dedicated to discussion of public, political, and social issues], and registrants are likely to be chilled from engaging in legitimate public, political, and civil communications for fear of losing their anonymity. As a Nebraska district court forcefully stated, a requirement that sex offenders report to the government all communications on blogs and websites puts a stake through the heart of the First Amendment’s protection of anonymity [and] surely deters faint-hearted offenders from expressing themselves on matters of public concern.
Interestingly, the statute was sponsored by Facebook’s ex-Chief Privacy Officer.
Doe v. Indiana, 2013 WL 238735 (7th Cir. Jan. 23, 2013):
The Indiana statute in question prohibited sex offenders from:
knowingly or intentionally using a social networking web site or an instant messaging or chat room program that the offender knows allows a person who is less than eighteen (18) years of age to access of use the web site or program.
Doe sued on his own behalf and on behalf of a putative class of offenders who were required to register but were not on any form of supervised release. The district court found that the statute burdened more speech than necessary, but upheld the statute, finding that Doe didn’t “furnish the court with workable [alternatives].” The Seventh Circuit disagrees, and says the statute does not pass First Amendment muster.
According to the Seventh Circuit, the issue was that the problematic activity was only a subset of the overall expression that the statute regulated (something the Nebraska and California courts focused on also). It was aimed at improper online communications between registered offenders and minors, but this was “a minuscule subset of the universe of social network activity.” Moreover, Indiana already had statutes on the books that were targeted at the particular ills at issue – it’s already a crime in Indiana to solicit minors, or engage in inappropriate communications with children. Penalties are increased when you do so using a computer.
The court does step back and say that it should be careful to not impose too high a standard on state legislatures. Some amount of over-inclusiveness can be justified by “administrabilty concerns,” but the statute as currently crafted can't be justified on this basis.
The State also argued that existing statutes serve a different purpose than the social networking ban at issue in the case. According to the State, existing laws aim to punish those who have committed the crime of solicitation, while the ban aims to “prevent and deter.” The court is not persuaded by this distinction, saying that all laws punish those who have committed conduct that is proscribed by the laws, and this punishment is what deters. The court is also not sold on the argument that the social networking ban would be more effective because it would prevent would-be offenders from being on social networks in the first place. The court says that to the extent someone would break the law and solicit a child, they would be just as likely to break the law banning them from using a social networking site in the first place.
The court closes with a nod to the legislature that it’s not foreclosing a more carefully crafted statute, or even one that may be better supported by legislative facts or studies. To the extent a class of individuals “whose presence on social media impels them to solicit children,” the legislature could presumably enact legislation targeting these individuals.
Finally, the court says that nothing in its opinion should be read to limit the latitude of district courts in fashioning terms of supervised release.
These three cases, as well as laws aimed at Backpage from Washington and Tennessee, are more than enough to mark a trend. Legislatures are rightly concerned with online sex offenses, but are taking the blunt instrument approach to regulating the online activities of sex offenders. Courts are consistently saying that the First Amendment requires a more finely crafted approach. As Eric has highlighted before, state legislatures do not seem particularly adept when it comes to regulation online. Definitional terms are a major stumbling block. The Nebraska case in particular highlights this; the court had a field day poking holes in legislative definitions of things like "chat rooms" and "instant messaging".
Though the three statutes differed significantly in their approach, in all three cases the courts found that only a subset of sex offenders were likely to engage in problematic conduct online, and regulation of sex offenders as a whole without reference to whether they were likely to engage in problematic acts online sweeps in too much First Amendment protected expression – i.e., sex offenders use the internet for normal activity just like everyone else. To the extent legislatures try to regulate the online activities of those whose sex offenses included an online component, they would probably have a much easier time doing so. However, even as to these individuals, courts will be concerned with any over-inclusiveness of a ban. On a related note, trying to restrict registrants' access to sites that also allow access by those under 18 is not workable.
[Eric's addendum: There is actually social science on this question that could inform policy-makers if they actually did their homework. For example, I call your attention to Lee, Austin F., et al. Predicting hands-on child sexual offenses among possessors of Internet child pornography, 18 Psychol. Pub. Pol'y & L. 644-672 (2012):
CP [Child pornography] offenders appear to comprise a subgroup of sex offenders characterized by taxonomic heterogeneity. As Seto has pointed out on multiple occasions, those apprehended with CP have a sexual interest, if not a sexual preference, for children, and, given prevailing DSM criteria, are frequently diagnosable as pedophiles. Indeed, this same point was noted in U.S. v. Swarm--Dr. Mills and Dr. Saleh correctly agreed with the Bureau of Prisons' memorandum that states, quote: "Paraphilias, including pedophilia, range in severity from a condition in which the individual experiences deviant sexual fantasies and urges, but did not engage in any victim contact, to individuals who act on their urges and fantasies . .." (p. 21). Paradoxically, this group of pedophiles, as noted, is at low risk to commit hands-on sexual assaults of children. Those CP offenders that do sexually assault children are distinguished by a much higher degree of antisociality compared to those that refrain from such crimes. Moreover, those CP offenders that sexually assault children typically present as lower in educational and vocational achievement than those for refrain from such crimes. We found in the present study, e.g., that 21% of the Internet-only offenders were professionals, compared with only 8% of the "dual" offenders. Witt (2010) commented that "Studies have found that child pornography offenders are generally more educated, more intelligent, and have more stable work and relationship histories than contact sex offenders" (p. 4). Generally, these findings are consistent with the hypothesis that increased social and vocational competence inhibit the expression of antisocial behavior in IO-only offenders. By contrast, one could readily hypothesize that traits associated with Antisocial Personality Disorder (APA, 2000), such as deceitfulness, manipulativeness, impulsivity, aggressiveness, disregard for others, and impaired social emotions (remorse, guilt, and empathy), more likely found among offline offenders, are disinhibitory to committing a battery offense. Babchishin et al. (2011) concluded similarly, noting the presumptive importance of inhibitors and self-control in differentiating between online and offline offenders.]
The cases also highlighted internet anonymity and made clear that just because you are a sex offender does not mean that you lose your First Amendment right to speak anonymously online. As Eric points out below, sex offenders aren't a class of individuals who have the most political clout, so it's nice to see judges acting as a meaningful check on the legislature in this arena.
Efforts to ban sex offenders from social media sites, or require them to report their credentials, are at the intersection of three memes that have consistently undermined rational policy-making:
1) Protect the kids online. "Protect the kids" makes for great political soundbites, but let me ask a serious question: Can you point me to *any* law that was enacted under the conceit of protecting kids online that has actually had that effect? Politicians pontificate greatly on the need to protect kids online, but I'm drawing a blank on when they've succeeded with that effort.
2) Deprive sex offenders of civil liberties. As pariahs in our society, sex offenders have no one fighting for their civil liberties in legislative processes, so policy-makers can reduce their civil liberties to sub-human levels without any pushback. Fortunately, the courts are standing up to these systematic legislative efforts to functionally eliminate convicted sex offenders from our society, but only at significant cost.
3) Social media exceptionalism. When a new and important Internet medium emerges, policy-makers feel like they have to be "cutting-edge" and fix the purported problems in the emerging medium. But as these and other numerous cases have made abundantly clear, it is absolutely impossible to define social media as a subset of the Internet, so the bans on using social media become the functional equivalent of Internet bans and therefore are clearly unconstitutional. Yet, despite the resoundingly clear message from the courts, statute-drafters keep making the same damn drafting mistakes.
I am particularly disgusted with California's Proposition 35 for three reasons:
1) It was a bait-and-switch on the public. The proposition was sold as an anti-human trafficking law, but the online sex offender restrictions went well beyond that topic.
2) I am not aware of any social science linking sex offenders online with human trafficking. As far as I know, the legislation hardwired assumptions about sex offender behavior that had absolutely no grounding in fact. This wasn't even junk science; it's ascientific policy-making.
3) Even though California has a deficit of billions of dollars, we taxpayers spent our money defending this law--despite the fact it was obviously unconstitutional on its face. Yay for wasted government resources!
I believe California's voter initiative process is irreparably broken, and seeing shitty and unconstitutional initiatives like this get 80%+ voter approval provides more evidence of that.
Overall, the fact that states keep making the same systematic errors provides more evidence that states are terrible "laboratories of experimentation." Rather than replicating the best state laws after the laws empirically demonstrate their worth, states embrace and propagate bad memes quickly--and without any evidence of efficacy--when it comes to regulating the Internet, multiplying the costs to judicially remedy the legislative pandering. We desperately need a moratorium on state laws that regulate the Internet until policy-makers can figure out why they keep making the same mistakes and build processes to overcome the forces causing the systematic errors. (Of course, I'd rather just get state legislatures out of the Internet regulation business altogether, but a moratorium would be a good start).
* Sex Offender Online Registration Statute Covers New Myspace Account -- State v. White
* Banning Sex Offenders from Social Networking Sites is Unconstitutional--Doe v. Jindal
* New Jersey Authorizes Ban of Sex Offenders' Internet Access
* MySpace Sued for Facilitating Offline Sexual Assaults
January 25, 2013
17 USC 512(f) Is Dead--Lenz v. Universal Music
By Eric Goldman
Lenz v. Universal Music Corp., 2013 WL 271673 (N.D. Cal. Jan. 24, 2013).
This is the long-running case involving a YouTube video of a baby dancing to a Prince song. Universal Music overzealously took the video down for 6 weeks in 2007 via a 512(c)(3) notice. The video now has 1.2M+ views, so it's since become a cultural icon. The video has spawned 6 years of litigation over Universal's wrongful takedown notice--litigation that is going nowhere fast and unfortunately will yield nothing useful when it's done.
Judge Fogel rejected the summary judgment motions of both parties, sending this case to trial on Universal's scienter when sending the takedown notice. Judge Fogel summarizes the permissible arguments each party can make:
Lenz is free to argue that a reasonable actor in Universal’s position would have understood that fair use was “self-evident,” and that this circumstance is evidence of Universal’s alleged willful blindness. Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent required by §512(f).
Framed that way, Universal almost certainly wins in light of the Ninth Circuit's 2004 Rossi case. Universal made a boneheaded move sending the takedown notice, but even with her many sympathetic facts, Lenz is unlikely to persuade a jury that Universal had the subjective bad faith required by Rossi.
Even if Lenz persuades the jury otherwise, Judge Fogel's latest ruling makes it clear that there's no meaningful financial payday at the end of this road. Lenz will get $1,275, the value of EFF's Marcia Hoffman's pre-lawsuit legal advice, plus possibly other damages of no consequence. Judge Fogel gives the example that "Lenz must have incurred at least minimal expenses for electricity to power her computer, internet and telephone bills, and the like." In other words, those other damages are probably worth another nickel. With such a small dollar value at issue, and the cost of a jury trial so high, this case really ought to settle now. There's nothing left for anything to prove, and the transaction costs of reaching the inevitable denouement aren't worth it to either side.
The 2004 Rossi case, requiring subjective bad faith on the part of the takedown notice sender, eviscerated 512(f) as a cause of action, but this case--with its cramped definition of damages--has killed off 512(f) as a cause of action. Except in those rare cases where 512(f) supports equitable relief (and that does happen occasionally--see, e.g., Design Furnishings v. Zen Path), there are very few circumstances where it makes economic sense to bring a 512(f) lawsuit. What a shame.
512(f) is dead for another reason. The statute contemplates that copyright owners would communicate their preferences to service providers exclusively via 512(c)(3) takedown notices, but many copyright owners have developed other ways to kill user-generated content (UGC) files without sending 512(c)(3) notices. Indeed, as this case notes in FN1, Universal now has a deal with YouTube to kill files directly, no takedown notice required--and therefore, 512(f) doesn't regulate Universal's communications to YouTube. That's increasingly true of other major copyright owners.
The in-the-field move away from 512(c)(3) notices is just one example of how industry conditions have changed over the past 15 years that affect the DMCA without any legislative change. There are many others. We are holding a conference on March 15 at SCU, a "15 Year Retrospective on the DMCA," to discuss this and many other changes. It will be a terrific discussion, so please come!
Prior Blog Coverage
* Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver -- Lenz v. Universal
* Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice--Lenz v. Universal
* Fair Use - It's the Law (for what it's worth)--Lenz v. Universal
[Photo Credit: Road Closed Sign // ShutterStock]
January 24, 2013
Are Google Search Results Good Proxies for Secondary Meaning in Trademark Law?
By Eric Goldman
I want to call your attention to "The Google Shortcut to Trademark Law" by Lisa Larrimore Ouellette, a post-doc at Yale ISP. You might not be familiar with Lisa's work because to date she's mostly focused on patents.
The paper asserts that courts can assess the secondary meaning of trademarks as well or better than current techniques by evaluating Google's search results rankings. This argument is crazy. There's simply no way we could base an essential doctrine of trademark law on the proprietary black-box algorithmic decisions of a for-profit company...could we?
Yet, the paper provides persuasive empirical evidence that Google search results correlate highly with judicial determinations of secondary meaning, and she explains the deviations by arguing that Google gets it right more than the court does. And before we start feeling nostalgic for the "tried-and-true" methods of determining secondary meaning, let's be honest that those methods suck. Sometimes judges just "wing it" using their intuition, but more frequently the parties proffer hired-gun experts whose incredibly expensive surveys usually get little weight after the counter-experts attack the methodology. The parties can easily spend $100k+ each on experts to prove/disprove secondary meaning with uncertain accuracy. If instead we could achieve the same or better accuracy from a few Google searches, costing basically $0, why wouldn't we do that?
In fact, I see this paper as an example of how we might use online evidence to support or disprove secondary meaning and other trademark questions that turn on consumer perceptions. In the old world, we used unreliable "proxy" metrics like how much money the trademark owner spent promoting its brand. In the new world, we can now easily measure *actual* consumer interest in brands using a variety of data sources: eBay feedback ratings, Facebook likes, Twitter followers, Pinterest followers, Alexa ratings, YouTube pageviews, etc. I'm not sure how many of these data sources are credible, but before you discount them too heavily, consider if you prefer hired-gun experts (or judicial intuition) as the putatively "more credible" alternative.
Although I think Lisa is onto something important, I did pose some challenges to her, some of which she has responded to in the most recent draft:
1) Right now, her theory only works for word marks, not other types of marks such as logos or trade dress.
2) I also asked about personal names as marks, and she's hedged the application of her arguments there (see FN147)
3) I raised a concern that Google search results placements can change frequently. To her credit, she reran her results, and she concluded that the changes during the interim weren't significant. See page 56.
4) I noted Google-bombing/anchor-text attacks as a way that trademark owners can boost their results placements without any change in consumer perceptions. As Lisa notes, Google-bombing has become harder (page 58) but it remains a possible weakness of the measurement.
Overall, a fun paper. Check it out!
The strength of a trademark — the extent to which consumers view the mark as identifying a particular source — is difficult to evaluate in practice. Assessments of “inherent distinctiveness” are highly subjective, survey evidence is expensive and unreliable, and other “commercial strength” factors such as advertising spending are poor proxies for consumer perceptions. Courts often fall back on heuristics and intuition rather than precise logical analysis.
But there is a simpler way to determine whether, when people look for a mark, they mean to find a certain product: Google. Google dominates the web search market by correctly predicting what people think of when they type a word or phrase, and Google results thus can increase the predictability and accuracy of the subjective tests in trademark law. Courts have generally given online search results little weight in offline trademark disputes. But the key factual questions in these cases depend on the wisdom of the crowds rather than expert judgment, making Google’s “algorithmic authority” highly probative.
Through a study of federal trademark cases and contemporaneous search results, I argue that Google can generally capture both prongs of the test for trademark strength: if a mark is strong — either inherently distinctive or commercially strong—then many top search results for that mark relate to the source it identifies. The extent of results overlap between searches for two different marks can also be relevant for assessing the likelihood of confusion of those marks. In the cases where Google and the court disagree, I argue that Google more accurately reflects how consumers view a given mark.
[Photo Credit: A search engine browser window shows your website as the top result // ShutterStock]
January 23, 2013
Why You Should Consider Teaching Advertising Law (Including Comments from Felix Wu of Cardozo)
By Eric Goldman
This semester I'm teaching Advertising & Marketing Law again. My syllabus. I've written before about the course and my casebook reader with Rebecca Tushnet.
In this post, I'd like to recap some remarks I made in a talk last year to Consumer Law professors about why they should consider teaching the course. I'm also including remarks from Felix Wu of Cardozo Law, who taught the course last year.
Why Teach the Advertising Law Course?
1) Complement to the Business Law Curriculum. There are many ways to teach the Advertising Law course, but I favor teaching it as a business law course. Companies want to sell stuff, and they have to comply with a variety of rules to do so. This is similar to other business law courses, but advertising is a more accessible and familiar subject to students than some other topics (e.g., public company filings under the Securities Act of 1934?), so it's a great entry point to learning about business law.
2) Good Platform for Skills Training. Law schools are making renewed pushes for skills training, and Advertising Law is a great platform for skills-oriented exercises. My skills objective is relatively modest: I want students to be able to review ad copy and advise clients about potential problems and solutions. We'll practice that skill repeatedly in class:
a) During classtime, we'll repeatedly deconstruct ads as a group (and perhaps I'll arrange some small group deconstructions too).
b) We'll do a midterm exercise where students deconstruct claims and think about required substantiation
c) Students will critique each others' midterm exercise so they can see how different people approach the same problem
d) I'll then ask students to deconstruct another ad on the final exercise.
I'm sure more can be done to add a skills component to the course. Still, adding the exercises to my course wasn't particularly hard for me to do, and it fits organically with the doctrinal material.
3) Getting Students "Practice-Ready." Another buzzword in legal academia is that employers want law graduates who are "practice-ready." Advertising law questions are meat-and-potatoes questions for junior lawyers working in a business context (whether transactional or litigation). Every business client wants to advertise or thwart someone else's advertising, and given clients' cost-sensitivity, those questions frequently flow down to junior attorneys. Even without the skills component, after taking this course, students will be prepared for the kinds of legal questions that will actually hit their desk in their first year or two of practice.
4) High Student Demand. Students love this course. Felix's experience below is extreme, but not unprecedented. I had over 90 students try to enroll in Spring 2011 and I had over 60 students try to enroll this year (I think the number was low due to scheduling conflicts; but it's still quite high for a specialty boutique course).
As always, if you're interested in teaching an Advertising Law course, contact Rebecca or me. We can provide you with an evaluation copy of our casebook and many more resources, including a nascent teaching manual, our PowerPoint slide decks and more.
Now, as promised, here's Felix Wu's recap of his experiences teaching the course last year:
Teaching Advertising Law at Cardozo Law School
By Felix Wu
[In Spring 2012] I taught an Advertising Law course at Cardozo Law School, as far as I know, the first time such a class has been offered here. Overall, it was an excellent experience for all involved.
Student interest in the course turned out to be quite high. When I first proposed the class, I had pictured an enrollment of around 60 students, on par with my Internet Law class, but in the end, I graded 102 final exams. The course seems to have appealed both to those particularly interested in the advertising industry, and to those primarily interested in broader issues. (One student commented, “I’ve always been interested in IP and advertising law, but Professor Wu’s class made me sure that this is a field I want to go into after graduation,” while another said, “The lessons I learned in this class were practical and touched on subjects that I believe affect me every day (privacy, the Internet, advertising).”)
From my own perspective, I’ll admit that I came to advertising law more from particular doctrinal interests than a deep background in advertising per se. None of my work in private practice was about advertising. For that matter, I barely watch any television, except on an airplane. But I am interested in commercial speech regulation, false advertising law, and publicity rights, all areas related to other courses I teach (Trademark Law, Internet Law, Privacy Law), but which I never have an opportunity to cover there.
In putting my syllabus together, while I initially thought of each of the doctrinal areas separately, some interesting threads emerged, which I tried to highlight throughout the semester. Foremost among them is the love-hate relationship that the law seems to have with advertising, and a corresponding uncertainty about how much legal leeway to give to advertisements that push various boundaries. Consider on the one hand modern commercial speech doctrine, and the increasing First Amendment value given to advertisements and marketing speech. (Sorrell v. IMS Health, particularly in dicta, is perhaps an example of this.) On the other hand, advertisements seem to get no slack whatsoever when it comes to intellectual property rights, with courts seemingly adopting the mantra, “When in doubt, leave it out.” (Consider the recent district court opinion in the Louis Vuitton v. Hyundai case.)
I used Rebecca and Eric’s then-latest draft casebook, which framed the course nicely, supplementing it with a few additional cases based on my own take on the course. In particular, I added even more materials on the line between commercial and noncommercial speech, as well as on the corresponding treatment of noncommercial speech under various doctrines, in order to further emphasize the relative place of advertising in the legal universe.
In all, I highly recommend others to consider offering an advertising law course. It is no substitute for core courses on IP or the First Amendment, but among subject-specific courses, I think it is both especially relevant and interesting to students, and doctrinally rich to teach. I certainly intend to continue teaching the course in the future.
[Photo Credit: judges gavel on a business law book // ShutterStock]
January 22, 2013
My Talk to High Schoolers About Accountability for Online Content
By Eric Goldman
Earlier this month, I spoke at Los Altos High School as part of their "History Week" (check out that speaker roster!). The topic title is "Internet and Social Media Usage Rights," which I turned into a talk about ways teenagers can get themselves into trouble on social media. I used three case studies: Finkel v. Dauber, D.C. v. R.R., and Moreno v. Hanford Sentinel.
This was my first talk ever to high school students, and they are a challenging audience (especially when it's mandatory attendance). Still, only a few of them fell asleep on me, and I even coaxed few audible chuckles from the audience, so I'll chalk it up as more successful than not.
January 20, 2013
47 USC 230 Protects Online White Pages for Publishing Incorrect Phone Number--Nasser v. WhitePages
By Eric Goldman
[Note: Venkat represented WhitePages, but he had no role in preparing this blog post.]
Among other alleged mistakes, WhitePages allegedly published Nasser's phone number incorrectly as its listing for Comcast Phone of Virginia, resulting in a deluge of unwanted phone calls. WhitePages obtained the data from Verizon and further syndicated the data downstream. This case is quite similar to the 230 defense victory in Prickett v. infoUSA from 2006.
As the court notes, "an interactive service provider who solicits, pays for, edits, and generally maintains active control over the content of its website may continue to assert immunity from liability," though the court follows it up (citing the 2009 Nemet ruling) with the ambiguous statement that encouraging inaccurate or defamatory posts could negate Section 230. The magistrate concludes that WhitePages easily fit within the immunity. Nasser's attempt at a Barnes-style promissory estoppel workaround fails because Virginia law doesn't recognize the promissory estoppel doctrine.
See my recent recap of other pro se plaintiffs drummed out of court by 47 USC 230.
[Photo credit: Hand pointing an advertisement in a phone book // ShutterStock]
January 19, 2013
Is Recusal Required When a Judge is Facebook "Friends" With a Prosecutor? Question Certified to Florida Supreme Court -- Domville v. State
[Post by @VBalasubramani]
Domville v. State, No. 4D12 556 (Fla. Dist. Ct. App. Jan. 16, 2013) [pdf]
We blogged about a decision where a Florida court ruled that a judge who was hearing a criminal case and was Facebook friends with the prosecutor should have been disqualified: Florida Judge Disqualified Over Facebook Friendship With Prosecutor. The appeals court denied the state’s request for a rehearing but certified the following question to the Florida Supreme Court:
Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook "friend," would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant's motion for disqualification should be granted?
One concurring judge had the following to say:
Judges do not have the unfettered social freedom of teenagers. Central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge's Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.
Another judge partially dissents, saying that the case was correctly decided, and this isn’t really a question of “great public importance” after all, and thus should not be certified for further appellate review. The judge also notes that requiring disqualification isn't a comment on the ethical propriety of the trial judge’s original decision.
These Facebook friending discussions always bring to mind the court’s comment in Quigley Corp. v. Karkus:
[T]he Court assigns no significance to the Facebook "friends" reference. Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. . . . Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.
No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009). This is certainly a path a court could take in dealing with these types of issues. On the other hand, a member of the public who does not have familiarity with the legal system may ascribe some significance to the relationship and this may affect the perception of impartiality. Off-line friendships are not “on display” or memorialized in the same way that online friendships are. (Facebook exceptionalism alert!)
Perhaps disclosure and education at the outset would adequately address this issue?
[image credit: Shutterstock/virinaflora: "best friends"]
January 18, 2013
Social Media Evidence Roundup – January 2013 Edition
Social media discovery disputes continue to pop up in the courts, and courts haven't settled on a set of uniform rules to deal with these disputes. Here is a roundup of the latest set of cases dealing with the issue of social media discovery.
Coates v. Mystic Blue Cruises, Inc., 11 C 1986 (Aug 9, 2012 N.D. Ill.): this is a harassment lawsuit where the defendant-employer sought discovery of communications between plaintiff and other employees. The communications (2 Facebook posts and a tweet) were intimate conversations that plaintiff had with other employees that would allegedly undercut her claim for emotional damages or otherwise support the employer’s defenses. The court analyzes the evidence under Rule 412, an evidentiary rule limiting the admissibility of prior sexual history. The court rejects the employer’s argument that the posts could undermine plaintiff’s hostile workplace theory, but nevertheless requires production of the materials in redacted form so that the employer can use the materials for impeachment purposes. (A strange bit from this ruling: “[p]laintiff shall reveal the words ‘its time for make up sex’ in the June 8, 2010 tweet.”)
Winchell v. Lopiccolo, 954 N.Y.S.2d 421 (N.Y. Sup. Ct. Oct. 19, 2012): this is a personal injury case. Among other things, defendants sought full access to plaintiff’s Facebook page (to see “what it reveals about Plaintiff’s ‘ability to portray cognitive function’” and to rebut plaintiff’s allegations of being cognitively impaired as a result of an accident). The court says that defendants' request lacks a factual predicate and is overly broad. The court rejects the request without prejudice to defendants’ formulation of a narrower demand.
Reid v. Ingerman Smith LLP et al., CV 2012-0307 (ILG) (MDG) (E.D.N.Y. Dec. 27, 2012): this is another harassment case where defendants requested information and documents relating to plaintiff’s social media accounts. Defendants pointed to public portions of plaintiff’s Facebook account and argued that some of these materials contradicted plaintiff’s claims for mental anguish. The court agrees. Plaintiff raised privacy concerns, but the court says that even if she only allowed her “friends” to view her Facebook profile, there is no guarantee that those friends would keep secret the contents of her post. The court declines to order disclosure of everything, but orders plaintiff to disclose any communications or photographs “that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling or mental state." [Huh? Isn't this like every single social media post?] The court does set a few limitations (nothing pre-2008; photographs are relevant to the extent they relate to “plaintiff herself or her activities”).
Keller v. Nat’l Farmers Union Property & Casualty, CV 12 72 M DLC JCL (D. Montana Jan. 2, 2013): this is another personal injury case. The defendant made a request for a “full printout” of all of plaintiff’s “social media website pages.” Plaintiff understandably objected. The court says that social networking evidence is not off-limits and is not protected from discovery merely because it is designated as “private". However, there must be a threshold showing that the material is relevant. The court says that the insurance company failed to make this showing, and therefore may not delve “carte blanche” into plaintiff’s social media accounts.
Fawcett v. Altieri, 2013 N.Y. Misc. Lexis 82 (N.Y. Sup. Ct. Jan 11, 2013): this was the most interesting and wacky of all of the cases. The lawsuit is over an altercation at a tennis match, and the resulting personal injuries. Defendants sought access to plaintiff’s social media accounts. Interestingly, the court notes that they had “been made private” and it’s unclear when this occurred. Surveying the cases, the court distills a two prong analysis before compelling production: (1) has the party seeking discovery demonstrated that the sought after information is “material and necessary”; and (2) would production result in a violation of the account holder’s privacy rights? The court also takes a quick detour and discusses Facebook’s ever changing privacy settings, as well as the Twitter/OWS subpoena case (Harris v. New York). Finally, the court says it’s not excited about in camera review because this is too costly, and courts have better things to do. The court directs the parties to conduct depositions before it can properly determine whether the plaintiff should be compelled to produce the account information.
It’s tough to distill a trend. Courts rightly seem uncomfortable with the idea of giving a party unrestricted access to a party or witness’ social media account information. “Carte blanche” access was the phrase two courts used. It did not help that the requests were fairly broad in some of the cases.
None of these cases really talk about the Stored Communications Act/waiver issue.
I remain unimpressed by the categorical description of material that "relates to" an expression of emotion that the court said was discoverable in Reid v. Ingermann Smith. I'm sure this language will find its way into many form discovery documents, but I'm really not sure what it refers to. I'm guessing many lawyers and litigants don't either.
"Court Orders Password Turnover and In Camera Review of Social Media Accounts – EEOC v. Original Honeybaked Ham Co."
"Social Media Discovery Case Update and Tips for Those Seeking Discovery"
"Social Media Discovery Roundup"
"Court Orders Production of Five Years' Worth of Facebook and MySpace Posts – Thompson v. Autoliv"
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"
"Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc."
[image credit: malchev/Shuttersock : "Set of 20 Square Avatars"]
Some Concerns About Facebook's "Graph Search"
Facebook's Graph Search announcement has produced reactions ranging from rapturous enthusiasm to apathy. In this post, I'll explore a few reasons why I'm concerned about Graph Search.
It's Not Search. The name "Graph Search" is horrendous. Most people have never heard the term "social graph," and even fewer understand what it means. The "graph" part of "Graph Search" is nonsensical.
More importantly, Graph Search is not "search," at least not the way consumers currently conceptualize it. That semantic ambiguity creates problems for both branding and consumer behavior.
For most consumers, "search" means a white box where you type a few keywords and get the most relevant search results. Graph Search isn't that, nor does it aspire to be that. Instead, Graph Search currently aspires to be a discovery tool informed by our friends. Discovery tools are important and useful options in an information ecosystem, and it's possible people will value Facebook's solution as much or more than "search" as it's implemented today. As the proverb goes, "the proof of the pudding is in the eating."
However, to achieve that consumer appreciation, Facebook will have to teach consumers how to properly navigate Graph Search--which means to approach search queries differently than they approach Google's white search box. I was dumbstruck when I saw that Facebook thinks it needs to "diseducate" users" about how to "search." As Stephen Levy wrote:
Good web search results can be had with very few, relatively vague keywords. But Graph Search works better the more specific and complex the request.
After more than a decade of searching thousands of times, most consumers still aren't very good at expressing their search intent at Google's search box. Teaching those consumers to write "more specific and complex" search queries??? That sounds like a pretty sizable challenge. Good luck with that!
Facebook Doesn't Play Nicely With the Rest of the Internet. We've had concerns over the years about Facebook's status as a walled garden. Graph Search reinforces that Facebook won't play nicely with the rest of the Internet.
First, native Graph Search results will be links within Facebook (as opposed to the Bing supplementary results when Facebook has no results). So many Google critics have beaten up Google for linking to itself too often, but Facebook's so-called search will ONLY provide internal linking. That's not the way the seamlessly hyperlinked Internet is supposed to work. It represents a radical departure from Google's approach. Google claims it tries to deliver the best results available on the Internet. At most, Facebook hopes to help users find the most interesting discoveries on Facebook.
Second, and more importantly, Graph Search will mine a rich dataset that it won't share with anyone else. This stands in contrast to Google, which creates its database of indexed content mostly from publicly available sources that any other search engine can also index. Graph Search will also stand in contrast to LinkedIn or Yelp, which index their own "proprietary" content but also let third party search engines like Google put the content into their search indexes. Given that Graph Search works because it indexes content that no one else has, Facebook isn't likely to share this data with competitors or anyone else.
Facebook Overinterprets Users' Interactions. Facebook violates a basic rule of user design by assigning multiple implications to a single action by a user. This is especially true with the "like" button. As I've noted before, Facebook already assigns all of the following meanings to a user John Doe's "like":
1) When other people visit that content item/page, John Doe publicly appears as someone who "likes" it.
2) In addition, some folks are privately notified that John Doe "likes" the item/page, such as the person who posted the item/page as well as other people who are referenced on the page.
3) Depending on John Doe's privacy settings, John Doe's "like" may be communicated to his friends via his newsfeed.
4) If John Doe likes a business/interest, it may appear on John Doe's info/profile page.
5) If John Doe likes a business or ad, the business or advertiser may be able to buy an ad that redisplays John Doe's "like" to John Doe's friends.
6) John Doe may be subscribed to further content regarding the thing he likes.
7) Under the hood, Facebook treats the "like" as an affinity that modifies Facebook's perception of the relationship between liker and likee (i.e., it changes the social graph).
Now, Graph Search adds another implication: a user's "like" will lead to indexing in Graph Search, potentially enabling more granular user stalking. From my perspective, adding yet another significant implication to the "like" button further trains users to stop using the button. The possibility that "liking" something will be overinterpreted or misinterpreted drives a further wedge in users' trust relationships with Facebook, and anything that discourages the button's use would reduce the richness of Graph Search's indexed data, making Graph Search less useful.
Legal Concerns. I don't think Graph Search's legal concerns are huge, but two are worth mentioning. First, I've taken the position that Facebook generally doesn't trigger much antitrust concern, but Facebook's tapping into an exclusive dataset may add more fuel to the antitrust fires smoldering against Facebook.
Second, in 2007, the Ninth Circuit issued a ruling indicating that using "structured search" potentially put websites on the hook for user content, something that wasn't otherwise the case per 47 USC 230. In 2008, the Ninth Circuit replaced that ruling with a new and better opinion, but it still left open some ambiguity about 47 USC 230 defenses for user content made available via structured searching. I don't think Facebook will--or should--lose its 47 USC 230 protection due to Graph Search, but I expect plaintiffs will test that legal issue soon enough.
Possibly related: My blog post on Google Search Plus Your World.
January 17, 2013
"Social Media and Trademarks" Presentation at AALS
By Eric Goldman
Earlier this month, I spoke at the AALS IP Section meeting in New Orleans on the topic of "trademarks and social media." My slides. Though I've written in this area (see, e.g., my Online Word of Mouth paper from 2007), I didn't have any new academic research to report. As a result, I decided to take an anthropological approach to the subject material by recounting some of the interesting things I see in social media from a trademark perspective:
* Instabrands. Brands that, like the mayfly, are born, live and die within a matter of days. I gave the example of the @FiredBigBird Twitter account. Trademark law isn't well-equipped to deal with such evanescent brands.
* Large-scale non-commercial activity. Trademark law tries to distingtuish between commercial and non-commercial activity (like many other areas of law), but it doesn't really contemplate that non-commercial defendants can be using third-party brands at a commercial scale. I gave the example of @BPGlobalPR Twitter account as an example of massive non-commercial activity where the investment and distribution costs are zero and the labor is provided on a purely voluntary basis--although this isn't an ideal example as the BPGlobalPR operators does sell T-shirts, and trademark law does know how to deal with that.
* Brand Self-Sabotage. Brand managers are so used to having their conversation filtered through third party editors and gatekeepers that they can make embarrassing gaffes when they actually talk directly to their consumers. I gave the infamous Kenneth Cole/Arab Spring tweet as an example, but there are many in this genre.
* Bashtags. Brands also aren't used to having their consumers able to talk to each other directly. Brands are even less prepared for the fact that they can't steer those conversations. Bashtags are an example, where malcontents and vandals can coopt a conversation between brands and their loyal customers. I gave the #McDStories hashtag as the example.
* Followers as "Goodwill." Trademark law protects goodwill, which is defined as customers' propensity to keep transacting with a satisfactory vendor. But traditionally goodwill is just a probability that customers will return. In contrast, social media followers are a much "purer" form of goodwill--these are people who voluntarily sign up to communicate with the brand because they voluntarily want to know more about the brand. Trademark law is not well-prepared to deal with legal fights over social media followers because it doesn't know how to conceptualize those individuals' interest as goodwill. I gave the example of Dr. Linda Eagle, but there are numerous other examples, though many of them don't involve trademark claims.
* Para-trademark laws. Trademark-style laws are proliferating, such as California's e-personation law and California's political cyberfraud law.
* Private ordering. With the proliferation of private namespaces online, we're also seeing the proliferation of private adjudications over disputes in those namespaces. As a result, trademark law--as codified in the statutes and interpreted by common law--is being usurped by the private adjudication rules established by private namespace operators. The UDRP is the premier example of online-related private law usurping public trademark law. Similarly, in the social media context, Facebook's and Twitter's trademark policies may be more important to trademark owners than actual trademark law.
There prompts a couple of key points: (1) Facebook's and Twitter's rules partially reflect, and are certainly influenced by, the statute and common law, but they diverge in noticeable respects, meaning that their interpretations of trademark law may better reflect trademark law "on the ground" than actual trademark law; and (2) these private trademarkish disputes are being resolved by employees of the namespace operator, and these employees probably have no training in trademark law, may have little training in the law at all, and often have no training in adjudication theory.
I don't have any broad takeaways from these anthropological observations, but I'm game for further discussion if you think we can distill some wisdom from these data points.
[Photo Credit: Mayfly // ShutterStock]
January 16, 2013
Court Definitively Rejects AFP's Argument That Posting a Photo to Twitter Grants AFP a License to Freely Use It -- AFP v. Morel
[Post by Venkat Balasubramani]
AFP v. Morel, 10 Civ. 02730 (S.D.N.Y. Jan. 14, 2013)
The facts are interesting and highly relevant to the fast-paced world we operate in. I recommend reading them, if for no other reason than as a cautionary tale. In a nutshell, Morel took photos of the Haiti earthquake, uploaded them to Twitpic and posted to Twitter. Someone else took Morel's photos and uploaded the same photos to their own account. An AFP staffer found the photos on the second individual's Twitter account, communicated with him, and thought AFP obtained a license. AFP then distributed the photos to Getty and other downstream third parties. Morel was understandably unhappy and started firing off takedown letters and requests. This prompted a preemptive lawsuit by AFP. (Joe Mullin has an excellent recap at Ars and he delves into the messy factual backdrop: "News flash for the media: you can't sell photos grabbed from Twitter.")
Highlights from the court’s ruling:
AFP can’t claim the benefit of any license in the Twitter or Twitpic terms: although this may not be the most consequential aspect of this case, this is one that people will focus on, particularly in light of the Instagram TOS controversy. AFP tried to argue that the Twitter terms of service allowed it to freely use content posted to Twitter (& Twitpic). The court previously said nein, and the court again (different judge) definitively closes the door on this argument. There are lots of quotable bits of the discussion, but this one is pretty cut and dry:
These statements [that you “retain your rights to any Content”] would have no meaning if the Twitter TOS allowed third parties to remove the content from Twitter and license it to others without the consent of the copyright holder.
The court also notes that Twitter's Guidelines:
further underscore that Twitter TOS were not intended to confer a benefit on the world-at-large to remove content from Twitter and commercially distribute it: the Guidelines are replete with suggestions that content should not be disassociated from the Tweets in which they occur.
[emphasis added] AFP raised a related argument that a broad license was necessary; otherwise, Twitter users would be infringing en masse. The court doesn't buy this argument either, and this was a pretty wacky argument from AFP. I’m surprised they pressed on with this. They didn't raise any other defenses to liability, so they (along with the Post) are out of luck.
Other defenses to liability: Getty, one of AFP’s co-defendants, raised two other defenses to liability: (1) it was entitled to a DMCA safe harbor, and (2) it did not act volitionally. I have to admit I was a lot more skeptical of these arguments at the outset, but reading the opinion made me change my mind. At minimum, they are “in the ballpark.”
On the DMCA issue, the court asks this strange question of whether the service provider seeking DMCA protection is “doing something useful for a person or company” or providing “a commodity . . . in the form of human effort.” The court raises the related query of whether "an entity that is directly licensing copyrighted material online is . . . a 'service provider' [under the DMCA]." The court intimates that an entity claiming DMCA protection must do something other than merely making content available to third parties. I’m not sure where the court distilled all of this from, but ultimately the court says that there’s a factual dispute as to whether Getty was “actively involved” in the licensing (i.e., was the process totally automated) and whether Getty received a financial benefit directly attributable to the allegedly infringing activity.
Getty loses summary judgment on its no-volitional conduct defense for a related reason. The court says that under Second Circuit law, the volitional conduct defense only extends to the right of reproduction, and here Getty allegedly engaged in distribution. The court also says that there’s a factual dispute as to the extent of involvement by Getty employees in the licensing process.
Neither of these defenses are totally foreclosed to Getty, although I'm skeptical that they will carry the day.
Secondary liability: The court says that there’s enough evidence in the record to create a dispute as to whether AFP and Getty can be held liable for contributory infringement. AFP and Getty both tried to say that they were passive participants at best, and merely passed on the photos, but the court says the available evidence indicates a factual dispute about the extent of their involvement. The court also says that they can possibly be held liable merely for making available Morel's photos to third parties.
Morel can also assert a claim for vicarious liability against Getty (for some reason he didn't bring this claim until too late against AFP). The court says that there’s a factual dispute as to whether Getty benefits directly from the allegedly infringing materials and also whether it acted quickly enough to remove the photos from its system (its failure to do so may give rise to vicarious liability). Defendants argued that the DMCA codifies vicarious liability standards, and Morel's path to derivative liability should be through the DMCA, but the court rejects this argument in a footnote (citing the Second Circuit's ruling in Viacom).
DMCA CMI Claims: Morel made an argument that AFP’s distribution of the photos with incorrect attribution equaled a claim for removal or alteration of copyright management information or the knowing distribution of material with incorrect information. There were predictable factual disputes around how AFP obtained the photos and whether it knew that the photos were Morel’s when it distributed the photos with incorrect attribution. The DMCA claim requires proof of state of mind, and the court says this can't be resolved at the summary judgment stage. AFP also tried to argue that the credit information was not “copyright management” information because this information is not intended to provide information about ownership, but the court rejects this argument, taking a broad view of what can constitute "copyright management" information (e.g., adding 'AFP' or 'Getty' in the caption may form the basis of a CMI claim). Ultimately, factual issues preclude judgment in favor of Getty and AFP on Morel’s DMCA CMI claims.
Statutory Damages: Finally, the parties dispute the scope of statutory damages. Morel says he is entitled to a separate award per work/per downstream subscriber. If Getty or AFP are held derivatively liable for the acts of downstream subscribers, Morel says each such subscriber should result in a separate damage award. This would get really ugly for Getty and AFP. In contrast, they argued that Morel is only entitled to one work per defendant (and jointly liable defendants are only hit with a single award). The court sides with Getty and AFP, saying that they’re only liable once per work and the award against them is not multiplied based on their subscribers. The parties have the same dispute about the scope of DMCA CMI damages, and the court again sides with AFP and Getty. Just one award for each instances of removal of CMI.
Yowza. This is an action-packed ruling that covers a ton of different issues. Tough to do justice in a single blog post. Good fun for copyright geeks, people who like issue spotting, and law profs who can repurpose this for a law school exam question!
It’s nice to see confirmation that AFP’s license argument is silly. We've always known this, but it’s good to get further judicial affirmation, particularly in light of the Instagram terms of service dust-up. Service providers may include broad license grants in their terms of service, but it takes a lot to say that the service provider can exploit content or IP outside the ecosystem. It takes even more to say that a third party who is a stranger to the relationship can do so. The court's interpretation of Twitter's guidelines and terms is sure to give users some comfort that, when a service such as Twitter says "you own your content," this at least means that third parties cannot come along and exploit it freely.
Getty’s DMCA safe harbor argument is an interesting one. A purely automated system that takes in photos (or content) and licenses it out theoretically should be entitled to DMCA protection (or at least should be considered a service provider). The court cites to other examples of service providers (YouTube; Photobucket) but distinguishes them by saying they are doing something in addition to merely acting as a licensing engine. I wasn't terribly persuaded--YouTube is making available user generated videos to the public; it just happens to make them available for free. The court seemed uncomfortable with the notion that a turnkey online service could take in content and license it out and yet fall under the DMCA's definition of service provider. The court could have just focused on the question of whether the material was stored at the direction of a user; if this answer is yes, moved on to other aspects of the DMCA test (that amply allow Morel to argue that Getty is not entitled to DMCA protection). For some reason, the court went off the rails on to a discussion about the precise type of service that must be provided as a threshold matter. I also suspect the facts in this case will make the DMCA safe harbor argument ultimately difficult. The court's discussion about what is or is not a "service provider" under the DMCA may have been superfluous in light of factual disputes around Getty's involvement.
[It’s also worth noting that this isn't a case against the typical online service provider. Much of Getty and AFP’s operations may be conducted online, but there are still humans ultimately pushing the levers. (At least this is my impression from the facts.) This makes me think we shouldn't read too much into this as a DMCA safe harbor case or a case that deals with derivative liability for purely online service providers (e.g., YouTube).]
The CMI ruling is interesting. This isn't the first case to adopt a broad definition of "copyright management information," but courts seem fairly willing to take this approach. (Tip to photographers and content creators: watermarks are your friends.)
The damages ruling is a breath of fresh air for the defendants. I think the law is somewhat mixed and the court could have gone either way (and have treated individual Getty subscribers as supporting additional awards), but it’s the one saving grace to the ruling from Getty's and AFP’s standpoint. From a doctrinal standpoint, it's fairly interesting as well. The court was swayed by what it described as the "absurd" outcome under Morel's suggested damages framework. I don't know that the court's ruling leaves Morel totally out in the cold. He still could claim actual damages and ask the jury to sock AFP and the other defendants, pointing to the revenues they generated. AFP and Getty aren't the most sympathetic defendants in a copyright case, among other things due to their own zealous and sometimes overly aggressive enforcement efforts. Statute of limitations issues notwithstanding, he could also go after other Getty customers. This would get thorny for Getty.
End result: AFP should have looped in the co-defendants and written a check from day one. After furiously litigating the case for almost two years, it's definitely going to be writing a check to Morel. Maybe the real argument was around the extent of damages available to Morel, and the court's ruling on this issue will clear up some grey areas around what he can obtain. Either way, there are a ton of interesting issues addressed in the order, but the simple takeaway is something we already knew: stuff that's posted online is not necessarily fair game for recycling, especially not photos (and particularly if you're a corporate defendant who argues for aggressive enforcement when your own rights are allegedly infringed). A service provider's broad terms of service with its users is unlikely to be of much help to any recyclers.
Twitpic Modifies Terms and Claims Exclusive Rights to Distribute Photos Uploaded to Twitpic
TweetPhoto (now Plixi) To Start Charging For Twitter Celeb's Pics
Court Rejects Agence France-Presse's Attempt to Claim License to Haiti Earthquake Photos Through Twitter/Twitpic Terms of Service -- AFP v. Morel
Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to "Twitter/TwitPic
Facebook "Sponsored Stories" Publicity Rights Lawsuit Survives Motion to Dismiss--Fraley v. Facebook
Lawsuit Against Instagram Over Terms of Service Changes Looks Flimsy -- Funes v. Instagram
January 14, 2013
Tenured Teacher Properly Fired for Facebook Quips About Her Students–In re Tenure Hearing of Jennifer O’Brien
[Post by Venkat Balasubramani with comments by Eric]
In the Matter of the Tenure Hearing of Jennifer O’Brien, State Operated School District of the City of Patterson, Passaic County, 2013 WL 132508 (Jan. 11, 2013) [pdf]
O’Brien taught in New Jersey since 1998. She was initially assigned to teach fifth grade at School No. 29, but was ultimately assigned to teach the first grade. School 29 has a student body that was “almost entirely composed" of minorities. The 23 students in her class were either Latino or African American. She previously taught at a different school and apparently had a tough time adjusting to School No. 29.
O’Brien posted two statements to Facebook:
I’m not a teacher – I’m a warden for future criminals!
They had a scared straight program in school – why couldn’t [I] bring [first] graders.
The principal of O’Brien’s former school apparently forwarded a copy of the message to the principal of School 29, asking if “there is anything we can do about this.” O'Brien's current principal confronted her about the posts and she was suspended without pay, pending a full investigation. Meanwhile, news of the posts “spread quickly . . . .” The media got wind of the posts. Parents also complained about the posts. O’Brien was charged with “conduct unbecoming a teacher.”
An ALJ heard the matter, rejected her First Amendment arguments, and ordered O’Brien removed from her tenured position:
An internet-social networking site such as Facebook is a questionable place to begin an earnest conversation about an important school issue such as classroom discipline. More to the point, a description of first-grade children as criminals with their teacher as their warden is intemperate and vituperative. It becomes impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate educational concerns on the internet.
Interestingly, the ALJ was on the fence about whether removal was the appropriate sanction, but was ultimately swayed by O'Brien's apparent lack of contrition. The Commissioner adopted the ALJ’s decision in its entirety.
The court affirms the Commissioner’s decision. Applying the Pickering test for when public employees can be terminated for speech, the court says that O'Brien's statements were not a matter of public concern. Even assuming the speech was on a matter of “public concern,” the court says that the district’s interest in the efficient operation of its schools outweighed O'Brien's right to express those comments. The court also agrees that the posts evince a “disturbing lack of self-restraint [and were] inimical to her role as a professional educator.”
Oof. This is a rough result for O'Brien, who at best experienced a momentary lapse of reason in choosing her particular mode of expression. Ten or fifteen years ago, O'Brien's statement would have taken place in the context of a conversation among peers in a coffee shop or over a beer and would have been instantly forgotten. Today, of course, things are different. Because the comments were posted on Facebook, her former boss was aware of them and was able to forward them to her current boss. News media picked up on them. Parents became agitated. None of this would have happened 15 years ago.
The legal rules are not terribly favorable to public employees, and it's tough to fault the ALJ and the court for their application of the doctrinal rules. My own view is that it's an overreaction to fire someone over something like this, especially someone who had a clean track record. You have to wonder whether generational divides and/or attitudes about internet use influence the outcome in these types of cases. The ALJ's comments and her views about O'Brien's lack of contrition make me think they do. [As a side note, you also have to wonder how O'Brien would have fared against a private employer, given the absurdly expansive aggressive stance taken by the NLRB against employers who take action based on social media posts.] Also, I can see O'Brien appealing this one. She would face better than usual chances on an appeal.
I hate to end this post with a cautionary note to employees who also happened to be users of social media (which seems like a big chunk of the world's population), but careful about what you post! As we've detailed in innumerable posts here, it can and will come back to haunt you. And when it does, the legal rules are not particularly favorable and unlikely to be of much help.
It's human nature for employees to joke about common challenges they face in their industry. The teaching profession is no different. Even the most dedicated and passionate teachers will joke about the never-ending and frequent difficulties they face helping students reach their potential. In some cases, this humor will take a dark and edgy turn. I love my job and I care deeply about helping my students, but I'm sure I've made remarks--both online and off--that, if subjected to cold, harsh scrutiny by outsiders, could be misunderstood out-of-context.
This case reminds us that many jobs/industries have taboo humor. In addition to this example in the teaching industry, we've seen special sensitivity to job-related "jokes" in the funeral industry (Tatro), nursing industry (Yoder and Byrnes) and EMT industry (CareFlite).
[Update: for another example of the intolerance of bad jokes in the funeral industry, see Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), where a university funeral services director was fired for posting to Facebook: "Toby Sutton hopes this teaching gig works out. Guess I shouldn't have cheated through mortuary school and faked people out. Crap!"]
I'm sure other industries have taboos where jokes are not OK. Employees in those industries must recognize those taboos--even if they are unstated and the acceptability line is invisible--especially when posting in social media. Otherwise, they face significant social condemnation if the spotlight shines on their attempts at humor. One of the hazards of the job, I guess.
I'm especially interested that Ms. O'Brien didn't show any contrition for her posts, presumably because she didn't feel any remorse. I respect her conviction and intellectual honesty, but my reading of this opinion suggests she'd still have her job today if she had showed contrition.
* Mortuary Student Can Be Disciplined for Facebook Posts--Tatro v. University of Minnesota
* Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
* Mortuary Sciences College Student Disciplined for Threatening Facebook Posts--Tatro v. University of Minnesota
* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff
* Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC
* Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction -- State v. Drahota
* Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Private High School Not Liable for Cyberbullying--DC v. Harvard-Westlake
* Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
* Court Upholds Student Suspension For YouTube Video of Teacher
* Teenager Busted for Creating Fake "News" Story
* Facebook "Likes" Aren't Speech Protected By the First Amendment–Bland v. Roberts
[photo credit: Javier Brosch/Shutterstock -- "dog listening with big ear"]
January 11, 2013
Virginia Supreme Court: Litigant Who “Cleans up” His Facebook Page May Be Sanctioned
[Post by Venkat Balasubramani]
Allied Concrete v. Lester, 2013 Va. LEXIS 8 (Jan. 10, 2013)
This case generated some attention at the trial court phase, but for whatever reason I didn’t have a chance to blog it.
Lester and his wife were driving on the highway and were struck by a loaded concrete truck operated by Sprouse, an employee of Allied Concrete. Lester’s wife ultimately died from the injuries she suffered, and Lester sued on his own behalf and on behalf of her estate. After a three day trial, the jury awarded approximately $11 million dollars ($6.2mm on the wrongful death action; $2.3mm on his own personal injury claims; and $1mm to Jessica’s parents).
During trial, Lester sent a Facebook message to an attorney for Allied Concrete [???]. As a result, Allied was able to access Lester’s Facebook page, including a photo depicting Lester holding a can of beer and wearing a t-shirt emblazoned with “I [#x2764] hot moms”. Allied promptly sent out discovery requests seeking the contents of Lester's Facebook page. What happened next was almost comical. Murray, Lester’s lawyer, instructed his paralegal to tell Lester to “clean up” his Facebook page:
[he didn’t] want any blow-ups of this stuff at trial.
Smith followed her boss’s instructions, and told Lester in an email to “please clean up [his] facebook and myspace!”
Lester complied, and informed his lawyer that he had deleted his Facebook page. Accordingly, Lester and his lawyer got cute and responded to Allied’s discovery requests, saying that Lester did not have a Facebook page 'at the time he signed the discovery responses'. Of course, Allied had already seen a copy of Lester’s Facebook page, so it filed a motion to compel, which prompted Lester to reactivate his Facebook page and produce much of the information sought by Allied. Lester nevertheless deleted a bunch of photos from the page.
To make matters worse, in deposition, Lester denied that he ever deleted (or deactivated) his Facebook page. Allied ended up subpoenaing Facebook for this information and hiring an expert to determine that Lester had deleted photos. The photos were eventually provided to Allied.
The trial court sanctioned Lester’s lawyer in the amount of $542,000 and hit Lester with $180,000 to cover Allied’s attorney’s fees and costs in addressing the Facebook deletion issue. In addition, the court accepted an adverse inference jury instruction which was read twice to the jury (i.e., Lester deleted photographs from his FB account; one of these could not be recovered and it should be presumed to be harmful).
On appeal, Allied said it was entitled to a new trial because the trial was tainted by Lester’s dishonesty and by his lawyer’s conduct. The appeals court disagreed, saying that the trial court detailed the many instances of misconduct committed by either Lester or his lawyer as well as the steps the court took to address each instance of misconduct. Additionally, the trial court allowed an adverse inference instruction. Finally, and probably most importantly, the misconduct only resulted in the initial unavailability of evidence that Allied was ultimately allowed to present at the trial. Allied was not prejudiced in the sense that it had all the relevant evidence available even if it had to jump through a bunch of extra hoops to get it.
The trial court ended up reducing a big chunk of the wrongful death award, but for reasons that aren't relevant to the discovery issues. The Virginia Supreme Court found that this was an abuse of discretion and reinstated the full amount of the award. Separately, Allied also complained that one of the jurors was not totally forthcoming about her contacts with Lester’s counsel, but the court concluded that the contact which occurred prior to the case was incidental and did not undermine the juror’s response about not knowing any of the lawyers in the case.
It’s tempting for litigants and their lawyers to want to “clean up” their social media accounts, or even change the settings to an account, but as this case shows, this course of action is fraught with danger at best. I don’t know the answer to whether a change of setting would be considered a material alteration of an account. I assume the answer is no. Either way, the entire endeavor was handled rather casually in this case.
Here, the lawyer (through a paralegal) directed a party to “clean up” their account. The party complied, but then was not forthcoming about it in deposition. The cover-up is worse than the crime, as they say. The email exchanges between Lester and his legal team (that were obtained by Allied and cited by the court) were cringe-worthy. (Again, entirely understandable, but cringe-worthy nonetheless.)
Although the Facebook spoliation issue didn’t upset Lester’s case, it ended up costing him and his lawyer a pretty penny.
This case is a good reminder of something we’ve flagged before: when you delete your Facebook account, you’re not really deleting it. The underlying material is still available for an opposing party to try to obtain.
"A Dark Side of Data Portability: Litigators Love It"
"Court Orders Password Turnover and In Camera Review of Social Media Accounts – EEOC v. Original Honeybaked Ham Co."
"Social Media Discovery Case Update and Tips for Those Seeking Discovery"
"Social Media Discovery Roundup"
"Court Orders Production of Five Years' Worth of Facebook and MySpace Posts – Thompson v. Autoliv"
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"
"Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc."
[image credit: Kzenon/Shutterstock ("Young people in club or bar drinking cocktails and having fun")]
Top Ten Internet Law Developments of 2012 (Forbes Cross-Post)
By Eric Goldman
#10: The Push Towards Anti-Class Action Arbitration Clauses. In 2011, the U.S. Supreme Court ruled in AT&T Mobility v. Concepcion that businesses may be able to adopt mandatory arbitration clauses that ban customer class-action lawsuits. The ruling was hardly crystal-clear, but in its wake, many websites adopted such clauses. Nevertheless, as the Zappos decision points out, these clauses must be adopted according to the laws governing contract formation and amendment, or they will fail in court.
#9: General Patraeus/Paula Broadwell Imbroglio. On the surface, it's just your typical Washington DC sex scandal. However, it had several interesting cyberlaw angles, including the attempts to hide digital conversations and Ms. Broadwell's alleged cyberharassment of Jill Kelley. My biggest takeaway: If the CIA Director can't keep the FBI from reading his email, what chance do you or I have?
#8: Do-Not-Track Meltdown. Everyone hoped that industry would come up with a do-not-track (DNT) standard rather than kicking the issue to Congress or the FTC. Then, it all went to heck. Microsoft announced it would turn on DNT by default in its browser, which prompted Internet publishers to threaten to ignore Microsoft's DNT signal. Meanwhile, Internet publishers and others adopted a narrow definition of "do-not-track," arguing it meant no-tracking for advertising purposes, but tracking for other purposes was still OK. The effort then devolved into acrimonious recriminations and left open the possibility that government regulators will fill the gap--to everyone's detriment. (For what it's worth, I take a very dim view of technological do-not-track efforts for reasons I explain here).
#7: Social Media Exceptionalism. In 2012, regulators eagerly sought to "fix" social media through regulation, but their efforts will fail because no one can precisely define social media as a subset of Internet activity. For example, California's recent attempt to curb employers' attempts to obtain employees' social media passwords led to the astounding definition that "social media" means all digital data, whether online or off.
#6: Megaupload. The US government proudly touted its takedown of Megaupload as a victory for Internet copyright enforcement. Unfortunately, it appears that takedown involved an enforcement action where it appears the US government repeatedly ignored or broke the law.
#5: Software Patents/Smartphone Wars. The smartphone industry has ushered in a glorious era of innovation, but it's also highlighted how patents can hinder, not spur, innovation. Smartphone players have spent (wasted?) billions of dollars on patents with the hope that they can operate without restriction from other players' patents, and many tens of millions of dollars have been spent (wasted?) on legal fees as the players sue each other for patent infringement and defend against interlopers with weak/bogus patents hoping for a little taste of the action. See my essay on software patents:
#4: Europe Hates Silicon Valley. I'm surprised whenever I read about a new European ruling that's adverse to a Silicon Valley company, because at this point I assume that everything Silicon Valley companies do in Europe is already illegal. Google, Facebook and other Silicon Valley players are under constant legal attack in Europe on countless fronts. Everyone might be happier if the Silicon Valley players just got out of Europe altogether.
#3: Google and Antitrust. The FTC largely dropped its antitrust investigation against Google, and dropped it completely with respect to Google's search engine practices. (Technically the denouement rolled out on January 3, 2013, but I'm still counting it as a 2012 development). This is an important development for several reasons. First, the FTC--which makes its living by bringing enforcement actions--admitted it had no reason to complain about Google's search engine practices. Second, the scuttlebutt all throughout the investigated suggested that the FTC was committed to busting Google, and Google turned that situation around 180 degrees. Third, not intervening into the operation of Google's search algorithm is a logical decision, but one still worth celebrating. This was a great resolution for Google, a complete rejection of the concerns raised by Microsoft and other Google-haters, and due to the FTC's non-involvement, ultimately a big win for Google's users.
#2: ITU/WCIT's Attempted Internet Takeover. I really didn't understand what happened in Dubai at the ITU/WCIT meeting. All I know is that nothing good could have happened there, so preserving the status quo is a win, as ironic as that sounds.
However, there has been some teeth-gnashing that the meeting exposed looming fault lines between pro-censorship and anti-censorship governments. I don't understand that angst for at least two reasons. First, all governments are pro-censorship, and that certainly includes the United States. Indeed, the US has exhibited some awkward duality as it rails against foreign attempts to censor the Internet even as both Congress and the Obama Administration exhibit a never-ending pursuit of controlling the Internet themselves.
Second, the Internet has already fractured into multiple "Internets." The Internet in the United States increasingly bears little resemblance to the Internet in foreign countries, both because local regulators simply block certain websites and because websites localize their services to accommodate local regulation. Plus, it's been proven that countries can simply "unplug" from the Internet. Thus, we don't have a single unified Internet; we have many partially-overlapping Internets. I will say more about this in a future post.
#1: SOPA's Failure. The failure of SOPA/PIPA is not the watershed event for our republican democracy that we wished it would be. Citizen-driven rejection of special-interest Internet legislation will not happen very often. But as a David-and-Goliath story--the uncoordinated and oft-ignored Internet user community rising up against a well-oiled and undefeated copyright lobby--it doesn't get any bigger than SOPA. Also, we learned something really important: American voters will acquiesce to a lot of bad and self-interested decisions by their elected officials, but voters will grab the torches and pitchforks if they think the Internet is threatened.
Some other developments of note:
* despite the Fourth Circuit's rekindling of the Rosetta Stone case before it settled, the decade-long keyword advertising litigation battles against Google are basically over with a big win for Google and other keyword advertising vendors. I also think we'll see trademark owner-vs-advertiser lawsuits tapering off too.
* Oracle v. Google gave us one of the cleanest rulings to date that software APIs are not copyrightable. The case was also interesting for the judge's investigation into the paid advocacy efforts of both Oracle and Google.
* the IB v. Facebook ruling could be a watershed decision in spurring class action lawyers to make a buck in the name of "protecting the kids" in court.
* Web publishers can improve their defamation defenses by hyperlinking to original sources.
Most Interesting Cases
I read a lot of cases in 2012, and some of the most interesting cases I saw this year:
* Erickson v. Blake. Music composers can create copyrightable compositions by equating the digits of the number "pi" (π) to musical notes, but they can't stop others from creating their own musical compositions based on pi's digits.
* Bland v. Roberts. Two government employees "liked" their boss' opponent in an upcoming election; after the boss won reelection, the employees allegedly got fired for their divided loyalties. The court (mistakenly, in my opinion) said that "liking" an item on Facebook isn't constitutionally protected speech.
* Scott v. WorldStarHipHop. A classmate posted a video of Scott fighting with an ex-girlfriend. Scott obtained the copyright to the video from his classmate and, as the new copyright owner, sent copyright takedown notices in an effort to scrub the video from the Internet. This copyright acquisition scheme basically converts copyright law into a "right to forget." In 2013, expect to see even more plaintiffs acquire copyright ownership as a way to suppress/control unflattering content about them.
* In re Heartland Payment Systems. This is a settlement of a data security breach class action lawsuit with 130M class members. The parties spent $1.5M to encourage class members to tender damage claims and another $270k to process the tendered claims. A total of 290 claims were tendered, of which 11 were valid, with a maximum payout per valid claim of $175. So the parties incurred $1.75M in transaction costs to award about $2k in damages. Interesting.
* Augstein v. Leslie. If you post a YouTube video promising $1M for the return of your laptop, you could actually owe $1M if someone returns your laptop.
* Olson v. LaBrie. Facebook should bring families closer together, but in one family, photo tagging plus a snarky comment prompted a lawsuit for a restraining order.
Lists from Previous Years
[Photo Credit: Top Ten Key // ShutterStock]
Posted by Eric at 07:25 AM | Content Regulation , Copyright , Derivative Liability , E-Commerce , Internet History , Licensing/Contracts , Marketing , Patents , Privacy/Security , Publicity/Privacy Rights , Search Engines , Trademark , Trespass to Chattels | TrackBack
January 10, 2013
Q4 2012 Quick Links, Part 3 (47 USC 230 and more)
By Eric Goldman
47 USC 230/Review Websites
* Sulla v. Horowitz, 2012 WL 4758163 (D. Hawai'i Oct. 4, 2012): "§ 230 does not provide this court with exclusive jurisdiction over defamation claims arising from statements made via the internet....While a plaintiff cannot avoid removal by failing to plead necessary federal questions, id., § 230 is clearly in the nature of a defense. Section 230 therefore does not provide this court with federal question jurisdiction."
* What does the Internet look like without 47 USC 230? BBC: Google liable for defamatory search results in Australia.
* Shrader v. Beann, 2012 WL 5951617 (10th Cir. November 29, 2012). Summarily affirming the District Court's 47 USC 230 ruling. Prior blog post.
* RedOrbit: “Online Physician Reviews Skewed By Too Few Posts Says Study.” The long-term detrimental consequences of Medical Justice’s efforts to suppress patients’ reviews of doctors. Fortunately, this will be fixed over time.
* Politico: Yelp pushes for federal anti-SLAPP laws
* British ASA Skytrax ruling: "to justify the claims of authenticity made in the ad, Skytrax needed to demonstrate that they took all reasonable steps to ensure that reviews were checked, trusted and made by "real" people with "real" opinions"
* Yelp is flagging businesses that it suspects of trying to buy reviews. NY Times coverage. I wonder if any competitors will try to game this by falsely trying to buy reviews in their competition's name?
* Company Doe v Tenenbaum. Restricting CPSC from publishing a report to SaferProducts.gov.
* Wired: Google Throws Open Doors to Its Top-Secret Data Center
* WSJ on online price discrimination. Surprisingly, the article doesn't address whether Staples was trying to harmonize prices between its offline and online stores and what opportunities Staples' pricing scheme presents to Staples' online competitors.
* Wired: Noncompetes Are Lame — Let’s Set the Creators Free
* NY Times: Did a Facebook post by Reed Hastings violate Regulation FD?
* AdWeek: People have a love/hate relationship with Facebook.
* Pew: How Teens Do Research in the Digital World:
Three-quarters of AP and NWP teachers say that the internet and digital search tools have had a “mostly positive” impact on their students’ research habits, but 87% say these technologies are creating an “easily distracted generation with short attention spans” and 64% say today’s digital technologies “do more to distract students than to help them academically.”///a significant portion of the teachers surveyed here report spending class time discussing with students how search engines work, how to assess the reliability of the information they find online, and how to improve their search skills. They also spend time constructing assignments that point students toward the best online resources and encourage the use of sources other than search engines
* Bay Citizen: PACER federal court record fees exceed system costs.
* Ewert v. eBay appealed to 9th Circuit.
* Are record labels playing games with YouTube viewer counts?
January 09, 2013
Q4 2012 Quick Links, Part 2 (Privacy, Advertising, Content)
By Eric Goldman
* Knowing how the FTC is cracking down on privacy violations and deceptive persuasion techniques, it's a little jarring to see how aggressive Obama's campaign was on both fronts. NY Times (1, 2), WSJ and Time. Even if the tactics were completely legal, is it the kind of ethical behavior that the Obama administration expects to see from businesses? Kate Kaye nails it at AdAge: Obama's Approach to Big Data: Do As I Say, Not As I Do.
* Google's privacy audit disclosure mandated by its settlement of the FTC Google Buzz case. Does this look like it's a helpful document to anyone? To me, the document looks very...expensive.
* U.S. v. Google Inc., 2012 WL 5833994 (N.D. Cal. November 16, 2012). Court approves the FTC-Google settlement over Safari cookie tracking.
* Using sophistry, Microsoft navigates FERPA to provide cloud services to universities.
* Google Video executives' Italian privacy conviction overturned
* In HR 6671, Congress gives Netflix the right to get users to provide advance consent to frictionless sharing. Forget the fiscal cliff; this is maximally important work for Congress to prioritize. Of course, the ECPA update—part of a quid pro quo with NetFlix’s request—somehow got lost along the way.
* Murdock v. L.A. Fitness Intern., LLC, 2012 WL 5331224 (D. Minn. Oct. 29, 2012). A Facebook posting about an employee's termination isn't a privacy invasion.
* In re Platt, 2012 WL 5337197 (Bkrtcy. W.D. Tex. Oct. 29, 2012). After a physical altercation, the court made negative inferences against one of the participants for that person making their Facebook page private shortly thereafter.
* KISSMetrics settles supercookies lawsuit.
* Twitter's t.co shortened link--which Twitter automatically overlays on other shortened links--got briefly suspended, possibly because it was misclassified as a phishing threat.
* Facebook's pay-to-promote and Sponsored Stories advertising units may create a conflict of interest with its algorithmic filtering of friends' posts: Ars Technica and George Takei. Facebook's sorta response.
* NY Times reports that advertisers are increasingly moving away from buying ads at publishers with attractive audiences and instead delivering ads via ad networks that find the targeted audiences wherever they are on the web. The result is that publishers can't charge a premium for aggregating high-value audiences because, through targeting, advertisers can reach that audience at cheaper venues. More NYT coverage of this issue.
* Wired: Facebook Is Quietly Making a Killing With Ads That Pursue You
* AdWeek interviews Google's "ad cop," David Baker.
* Internet Retailer: How Zappos balances privacy and targeted ads
* If most brands in movies are paid product placement, the logical inverse is that brands want to veto free placement they don't like.
* False advertising lawsuit against New York Law School rejected.
* 90% of Brazilian newspapers opt out of Google News. Meanwhile, Google threatens to cut off French publishers if France passes a law taxing Google for including them in Google News. NY Times recap of the issue.
* Blodget digs into the economics of the New York Times' newsroom.
* How cable bundling is leading to inflated cable subscription prices, mostly because sports broadcasters are overpaying sports leagues for broadcasting rights. Another reason why we don’t have cable at home.
January 08, 2013
Q4 2012 Quick Links, Part 1 (IP Edition)
By Eric Goldman
* Hillicon Valley: ‘Shell-shocked’ lawmakers shy away from online piracy in new Congress
* Ars Technica: Voters boot three SOPA-sponsoring Hollywood allies from Congress
* Righthaven, LLC v. DiBiase, 2012 WL 5868154 (D. Nev. November 16, 2012). Shawn Mangano is substituted out as counsel in this case, replaced by Michael Mushkin. Bold move by Mushkin to walk into this shitstorm.
* Ricchio v. Amazon.com Inc., No. 12-332 (E.D. Wis. Oct. 12, 2012): "I find plaintiff has failed to state a claim for copyright infringement. He alleges defendant is again allowing third-parties to sell copies of his book without plaintiff’s authorization, but he does not claim that any of the books being sold on defendant’s website are counterfeit copies. Plaintiff claims only that defendant is allowing third parties to re-sell copies of his book without compensating him. However, under the “first sale” doctrine, plaintiff is not entitled to profit from the resale of his book."
* TorrentFreak: Google Removed 50 Million “Pirate” Search Results This Year
* PeerMusic, III, Ltd. v LiveUniverse, Inc., 2:09-cv-06160-GW -PLA (C.D. Cal Oct. 9, 2012). Awarding $12,500 per song in a default judgment against lyrics website, for a total of $6.6M.
* Time: How Microsoft’s Copyright Claim Went Awry
* John Crane Production Solutions, Inc. v. R2R and D, LLC, 861 F.Supp.2d 792 (N.D. Tex. March 21, 2012):
JCPS is essentially concerned about initial interest confusion. A claim for trademark infringement can be based not only on whether purchasers are confused as to the source of the product at the time of the sale, but also based on “confusion that creates initial consumer interest, even though no actual sale is finally completed as a result of the confusion.” Elvis Presley Enters., 141 F.3d at 204 (internal quotation marks and citations omitted). Some courts have concluded that the fact that purchasers are sophisticated does not foreclose a finding of initial interest confusion if products and marks are sufficiently similar. Others have held that the character of a given market, including the sophistication of potential purchasers, is enough to overcome a likelihood of initial interest confusion. Compare Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 260 (2d Cir.1987) (holding there was likelihood of initial interest confusion “even though defendant's business is transacted in large quantities only with sophisticated oil traders”) with Checkpoint Sys., 269 F.3d at 285 (holding no likelihood of initial interest confusion, in part because purchasers were sophisticated and exercised high degree of care) and Rust Env't & Infrastructure, 131 F.3d at 1217 (holding no likelihood of initial interest confusion, in part because purchasers were sophisticated and market was small). Because even a sophisticated purchaser can be subject to initial interest confusion, the court will weigh this digit and the potential for initial interest confusion along with the other digits in determining whether a likelihood of confusion exists.
Yet, the plaintiff still lost the case. Why not just give up the "initial interest confusion" charade?
* Paramount Farms Intern. LLC v. Keenan Farms Inc., 2012 WL 5974169 (C.D. Cal. November 28, 2012): "Ms. Hodari testified that the Wonderful Pistachios brand has a Facebook page with almost 300,000 “likes.” While the Facebook recognition of the brand does not conclusively demonstrate actual recognition of the associated trade dress, it lends credence to the other evidence that the trade dress has become famous. Accordingly, the Court finds there remains a triable issue whether the Claimed Trade Dress is famous."
* Google's algorithmic changes are curtailing demand for domain names.
* Robert G. Bone, Taking The Confusion Out Of “Likelihood Of Confusion”: Toward A More Sensible Approach To Trademark Infringement, 106 Nw. U. L. Rev. 1307 (2012).
* Latest round in Nextdoor.com and Raj Abhyanker.
* Stipulated contempt finding in the North Face v. South Butt case.
* Project DisCo: One In Six Active U.S. Patents Pertain To The Smartphone
* NDSL, Inc. v. Patnoude, 2012 WL 6096584 (W.D. Mich. December 7, 2012): "Patnoude's November 12, 2012, generic LinkedIn invitation is not sufficient to establish that Patnoude has solicited NDSL Customers in violation of subparagraph 9.a(2). NDSL has not established that Patnoude has solicited any NDSL Customer."
* Skyhook Wireless, Inc. v. Google Inc., 2012 WL 5309755 (Mass. Superior Ct. Sept. 28, 2012). Granting summary judgment to Google.
Let's Stop Using the Term “Soft IP”
By Eric Goldman
You may have heard--or even used--the phrase “soft IP.” I'm not a fan of it, and I think we should retire the term.
The term "soft IP" is inherently ambiguous. Sometimes, people use "soft IP" to refer to “copyrights and trademarks;” other times, the term is intended to cover all IP other than patents--presumably publicity rights, trade secrets, etc. I especially cringe when I hear students tell me they are looking for a "soft IP" job. Typically, that's a reliable tipoff that the students don't know what kind of IP job they want; they just know they don't want to be (or aren't eligible to become) a patent prosecutor. That lack of clarity in the student's mind is rarely an asset to their job search.
I've had difficulty tracing the term's etymology. I searched several online databases looking for early uses and I found published references as far back as 1998, but my vague recollection (corroborated by others) is that the term goes back well before then.
As a term establishing a classification of IP, “soft IP” implies an antonym--presumably, “hard IP.” I don’t hear people use the term "hard IP," but given that soft IP always excludes patents, presumably patents are part of the antonym.
I can think of a few explanations for a hard/soft distinction among intellectual properties. First, patents often cover physical devices, so they often have a physical tangibility, while copyrights, trademarks and other IPs may be more intangible by comparison (even though patents protect "ideas," which is as intangible as they come).
Second, the hard/soft distinction might imply some difference in the degree of the practice's difficulty, i.e., the perception that patent law, and any associated technology, are complicated and “hard,” while other IPs are relatively easy and "soft" by comparison. People rarely articulate this relative value judgment explicitly, but I'm sure some patent practitioners believe that what they do is more challenging than the work of other IP practitioners; and I'm even more confident (because I've seen it repeatedly) that some patent practitioners feel comfortable "dabbling" in other IPs on the grounds that if they can do patents, they are well-qualified to handle other IPs.
It's true that patent prosecution requires passage of a separate bar exam, which in turn requires a technical background, so in that sense becoming a patent practitioner is "harder" than becoming an IP practitioner generally. Still, there is a certain implicit arrogance in this line of thinking.
Although I concede that patent law has plenty of arcane and baffling rules, I think patent practice is demonstrably not “harder” than other IP practices. I invite any patent practitioner--or, for that matter, any lawyer--who thinks that non-patent IP is "easy" to: walk me through 17 USC 114 (the music streaming provisions); calculate a pre-1976 copyright term duration; tell me what the term "use in commerce" means in trademark law; or walk me through the multitudinous ICANN procedures for objecting to or challenging gTLDs. And while historically the biggest bucks were in patent litigation, we're seeing big bucks across the IP spectrum, such as Oracle's $1.3B copyright damages award in the SAP case and Google's $100M+ defense costs in Viacom v. YouTube. (As I explain to my Internet Law class, $100M of legal fees is like the cost of *twenty* typical patent lawsuits!) And patent cases don't have a monopoly on hard technological questions; think about the technological sophistication to resolve Oracle v. Google, the Cablevision case or the Goforit case (just to pick three examples off the top of my head). Not only would it be condescending to say or imply that non-patent IP is "easy" or fluffy, I don't think it's remotely supportable factually.
A third hard/soft distinction is in the phrase “hard sciences,” although we rarely hear the antonym "soft sciences" (presumably social sciences). Because a technical background is required for patent prosecution, perhaps “hard IP” implicitly cross-references “hard sciences.” The thing is, there are several paths to qualify for the patent bar that don't require a “hard” science background, so that linkage would be odd.
In conclusion, I see at least three problems with the term “soft IP”:
1) It has at least two different definitions, making the term ambiguous.
2) It establishes an implicit hierarchy between different IP practices, which is potentially condescending and factually unsupportable.
3) It might imply an linkage with “hard sciences” that isn't necessarily true.
OK, so what should we use instead of the term "soft IP"? I don't have a great answer. The reality is that the IPs being lumped together under the "soft IP" appellation don't have enough commonalities to support the linkages--other than that they aren't patents. So we could use the term "non-patent IP" as the antonym to a patent practice. You probably like the term "non-patent IP" as much as I do (i.e., not much). My only other suggestion is to skip any effort to combine IPs in a single term and instead specify which IPs you are referring to. For example, if you're using "soft IP" to copyrights and trademarks, just say "copyrights and trademarks."
[I'm deliberately sidestepping the broader debate about the legitimacy of the term "IP"/"intellectual property," although I think that topic deserves additional discussion given some people's intrinsic absolutism towards "property" rights.]
Precise nomenclature is especially crucial for students in their job searches. If you aren't interested in a patent career, that's fine; but it's not a strong sales pitch to tell employers what you're *not* interested in, and the requirements and expectations of a trademark practice are quite different than a copyright practice (and different still from other IP niche practices). In reality, the best thing to students can do is to match their search criteria with the way employers structure the jobs. Few employers recruit for a "copyright" lawyer; typically, they are looking for a software licensing attorney or an entertainment attorney or an IP litigator knowledgeable in copyright law. My recommendation to students: figure out what employers are looking for, assess how the requirements of the job match against your skills and interests, and proceed accordingly. If you haven't gotten to the point where you can avoid the term "soft IP," your job search process probably still needs more cultivation, no matter how much effort you've invested in it to date.
[Photo credit: illustration depicting a sign post with directional arrows containing a choices concept // ShutterStock]
January 07, 2013
The FTC Smartly Ends Its Imprudent Google Search Antitrust Investigation (Forbes Cross-Post)
By Eric Goldman
The U.S. Federal Trade Commission (FTC) has ended its nearly two-year-old antitrust investigation of Google's ($GOOG) search engine practices with minimal consequences to Google. You can see the details from the FTC's announcement.
With any company as large, complicated and fast-moving as Google, antitrust regulators inevitably will find some problems if they look hard enough. If this is the worst they found, it's the virtual equivalent of a clean antitrust bill-of-health.
Ending the investigation into Google's search behavior is a smart decision by the FTC, but the FTC's initial decision to investigate Google's search practices was terrible. We've known since the beginning that regulating search results makes no sense. Still, all along, we've been waiting to see if nevertheless the FTC had enough "smoking gun" evidence of Google's impermissible search behavior to justify its initial decision to investigate, or if the FTC would find smoking gun evidence through its investigation. It now turns out the FTC never had compelling evidence against Google, and its lengthy and expensive investigation came up essentially dry--despite the determined (and costly) efforts of both the FTC and legions of free-spending and very whiny Google enemies. Looking back at the FTC's initial decision to investigate, it seems that the FTC got gamed by Google's enemies.
Google's antitrust problems are hardly over. Its enemies have gotten zero traction in court, but they have been shopping their gripes to other regulatory bodies, including the U.S. Department of Justice, multiple states' attorneys' general and international antitrust regulators, most obviously the E.U. Fortunately, the FTC's investigation strikeout offers numerous useful lessons for these regulators and any other regulators considering going after Google for its search engine operations--or, for that matter, any Internet company:
Haters Gonna Hate. Google's enemies lobbied the FTC to launch the investigation, but the FTC should have been more skeptical of their evidence. Microsoft ($MSFT) self-admitted it wanted to hobble its competitor after getting badly beat in the marketplace. Most of the other kvetchers just wanted more customers for less money (the typical expectations of advertisers)...or better yet, free favorable indexing in Google's search engine. Instead of dismissing their self-serving gripes, the FTC entertained them because Google's power and sheer size scares the FTC and because the FTC has been on a half-decade-long trajectory to crack down on Silicon Valley. But regulators need to watch out for any initial impulses that tremendous marketplace success is bad, and they need to remember that every successful company has accumulated haters on the way to the top.
A further cautionary tale for regulators: the FTC called out the gripers for their hypocrisy. For example, Microsoft attacked Google's pay-for-play shopping search engine, even though Microsoft does the same thing; and Expedia ($EXPE), a member of the anti-Google organization FairSearch, non-transparently marginalized American Airlines' listings from its search results in apparent violation of FairSearch principles. If the people complaining to regulators are engaging in duplicitous behavior, regulators probably got gamed (and the gripers' gambit may backfire on them).
Another irony: Microsoft seemed to think it was pretty clever to put Google through the antitrust wringer after Microsoft experienced its own antitrust hell from the 1990s. However, perhaps Microsoft didn't learn how to play the antitrust game as well as it thought it did.
Antitrust Investigations Take Too Long for Technology Cycles. It took the FTC 20 months to determine its investigation was largely fruitless. 20 months is nearly a full generation of technology development in the Internet industry. A few major developments during the past 20 months that (individually and collectively) undermine the investigation's rationale:
* Siri. Search is increasingly moving from the web to mobile, and Siri is picking up searches from mobile devices that used to go to Google.
* Pinterest. Pinterest is the fastest growing website of all time, and about 2 years ago it emerged from nowhere to become a major source of referral links. Pinterest reminds us that major Internet competitors can develop really quickly--in ways that no one, and certainly not regulators, can anticipate.
* Social Networking. Increasingly, consumers are using social networking site links (like recommendations from Facebook friends) as substitutes for keyword searches.
* Home-grown Apps. Websites are getting increasing traffic from their existing users who have installed the website's propriety mobile app. For example, Yelp ($YELP), a vocal Google critic, recently reported that "45 percent of searches on Yelp come from its apps."
In general, Internet innovation necessarily will outpace antitrust regulatory procedures, such that the marketplace's structure will change meaningful during the investigation's pendency. We had already learned that lesson from the Microsoft case; the Google case shows that even a 20-month antitrust investigation period is longer than prevailing innovation cycles.
If There Are No Good Remedies, Enforcement Actions Might Not Be Prudent. The FTC never had a clear path to remedying problems with search results even if it found Google had impermissibly manipulated them. The FTC can't really tell search engines how to manage search results; they lack the expertise to do so, plus such editorial discretion has constitutional protection. The best thing the FTC can do is to foster competition between search providers and get them to spur each other to new innovative heights, but it's not clear what the FTC itself can do to enhance competition in the search industry.
As a result, the FTC got itself stuck in this investigation. The FTC never had a feasible way to achieve any good outcome. When a satisfactory remedy to any antitrust problem isn't clear at the investigation's outset, the entire journey might be for naught--and probably isn't worth taking.
Antitrust Investigations Are Costly To Everyone. Almost every little fact matters to an antitrust investigation, meaning that antitrust cases typically involve heavy, and very expensive, fact discovery. Antitrust law also involves the subjective weighing of the facts (all too often based on intuition, not science), and it's common for players at an antitrust fiesta to spend lots of money trying to spin-doctor the facts.
Putting aside Google's costs to comply with various regulators' disclosure demands (and ignoring any degradation of Google's product development due to the regulators' heightened scrutiny), Google spent millions of dollars trying to sway the FTC. Google's economic stimulus package included a dozen DC lobbying firms (a DOZEN!), big brand-name paid influencers such as Robert Bork (recently deceased), Eugene Volokh, Marvin Ammori and many others, and multiple conferences designed to educate DC insiders (see, e.g., the 2011 and 2012 George Mason Law School conferences). Not directly tied to this investigation, Google also has invested substantially in its policy and advocacy work in other ways, as we discovered in Oracle v. Google and we've seen from its work in Germany.
Fortunately for Google, throwing money at the problem seemed to work really well (some of the FTC's announcement sounded like Google's PR flacks wrote it). But is that really how the system's supposed to work?
Google wasn't the only player spending like a drunken sailor. The FTC hired an expensive outside lawyer and invested countless staff hours. And Google's enemies spent plenty of money themselves, both directly and through advocacy groups like FairSearch. For example, Microsoft has put on its own event (both in DC and in Europe), and see this San Jose Mercury News list of Microsoft-supported influencers (the article also tries to enumerate Google beneficiaries). With the FTC investigation over, we might project a recession in the legal industry when all of this money stops sloshing around.
In the end, though the FTC reached the right result from its investigation, the money avalanche left me with a queasy stomach. As the cynical maxim goes, "he who has the gold makes the rules." When titans clash over antitrust matters, it's a fine line between justice being served and justice being bought.
More Reading. I've written two academic articles on search engine bias. The first, from 2006, was part of the first wave of academic discourse about search engine bias. It explains why search engine bias is both inevitable and desirable. The second, from 2011, recounts some changes over the prior 5 years and discusses how academic discourse about the subject degrades once the spin doctors take over.
Disclosure Notes. I have never been a lawyer, expert or consultant for Google or any of the other major players in this fracas. I am a Google AdSense publisher, but my earnings are meager (typically $30-$40 a month). I own a small number of Expedia shares.
[Photo Credit: Handgun // ShutterStock]
Privacy Plaintiffs in Deep Packet Inspection Case Get No Love From the Tenth Circuit -- Kirch v. Embarq Managmenet
[Post by Venkat Balasubramani]
Kirch v. Embarq Management, No. 11-3275 (10th Cir. Dec. 28, 2012)
This is an appeal from one of the many lawsuits against IAPs for implementing the ill-fated NebuAd “deep packet inspection” system. Here’s my post on the district court grant of summary judgment in favor of Embarq: Deep Packet Inspection Lawsuits: NebuAd Partner ISP Wins Summary Judgment. Plaintiffs do not fare any better in their appeal.
On the factual side, plaintiffs were not able to develop any evidence that (1) Embarq obtained or utilized any of the data extracted by NebuAd, or (2) the flow of data through Embarq’s system differed in any way from how data typically flowed through Embarq's system (the big exception being that the data was routed in a way that allowed NebuAd to extract data regarding plaintiffs).
Canvassing the ECPA's legislative history and context, and the fact that there’s no general federal statutory liability for aiding and abetting (absent a clear Congressional directive), the court says that Embarq cannot be held liable for any alleged ECPA violations of NebuAd. Thus, the court looks to see if Embarq violated the ECPA directly.
With respect to whether Embarq itself “intercepted” plaintiffs’ communications, the court notes the clunky application of the term "intercept" to the facts. "Interception" is defined as the "acquisition" of a communication's “contents,” but the line between "access" and "acquisition" is murky at best. The court instead relies on the portion of the definition of “device” that excludes any equipment “used by a provider of wire or electronic communication services in the ordinary course of its business.” Noting there was no dispute that Embarq only acquired the same access to the data that it had as an IAP, the court concludes that Embarq falls under this exception and can't be held liable for intercepting plaintiffs' communications.
Ouch. There were some mildly favorable facts to Embarq (the fact that it was paid an absurdly small amount of money for participating in the DPI test), but I still find the emphatic defense win somewhat remarkable. Privacy plaintiffs just cannot seem to catch a break.
The lack of a derivative liability concept under the ECPA is significant, and a majority of courts have said there is no derivative liability under either the ECPA or the Computer Fraud and Abuse Act. (See also Valentine v. WideOpen West Finance (another NebuAd case) and the somewhat factually bizarre CAIR v. Gaubatz which recently came to the same conclusion on the ECPA issue; the CAIR case fell through the cracks of the blogging queue.)
Interestingly, in Valentine, the district court granted summary judgment on the basis that plaintiffs failed to adequately allege any interception but left things open as to whether plaintiffs could state a claim for "disclosure" or "use" of communications under 2511. The court directed the parties to file additional briefs on this issue.
Courthouse News: ISPs Duck Class Claims of Targeted Ad Spyware
Wendy Davis: Appeals Court Sides With Embarq in Privacy Lawsuit
InsidePrivacy: Two New Decisions on the Wiretap Act and Secondary Liability
Bloomberg/BNA: ISP Falls Beyond Reach of ECPA for Role In Transmitting User Traffic to NebuAd
NebuAd Deep Packet Inspection Lawsuits Sputter -- Deering v. CenturyTel & Green v. Cable One
Deep Packet Inspection (NebuAd) Litigation: Court Dismisses ECPA Claim but CFAA Claim Continues
Deep Packet Inspection Lawsuits: NebuAd Partner ISP Wins Summary Judgment
[image credit: Shutterstock/lightspring - Internet privacy and spying on line with a computer laptop and the web by hacking or cyber virus that steals your technology data and follows your social media history]
January 06, 2013
In Its Rush to Fix Patent Reform, Congress Didn't Fix Its Biggest Error (Forbes Cross-Post)
By Colleen Chien and Eric Goldman
Congress passed the Leahy-Smith America Invents Act (AIA) (S.23), commonly referred to as "patent reform," in September 2011. The AIA is widely acknowledged as the most important change to U.S. patent law since 1952. The AIA took years of legislative wrangling to pass, and it went through many, many iterations. The resulting law is a voluminous 59 PDF pages with 37 sections.
As it turns out, not only was this bill quite important, but for its length, it was quite buggy. With so many words and moving parts in the enacted law, it's not surprising that some errors crept into the final version.
More than a year after its passage, Congress has just begun fixing the bugs. H.R. 6621, styled as a bill of "technical corrections," was introduced in the House on Nov. 30 and was approved on December 18 on a super-fast-track (on a motion to suspend the rules). As introduced, the bill had fourteen separate sections of legislative fixes, ranging from corrections of clear typographical errors to provisions that were quite substantive and potentially contentious. Amidst the frantic end-of-year efforts to avoid the fiscal cliff, the Senate approved the House bill with one change (involving pending patent applications filed before 1995). Late last night, the House concurred to the Senate's modified version, sending the bill to the White House, where it undoubtedly will be signed.
What’s most noticeable about H.R. 6621, however, isn't what it does, but what it didn’t do. As one of the AIA’s main architects recently said: “There are a few minor errors in the bill and one major error in the bill." Yet the technical corrections bill, which made 14 fixes to the AIA, didn't tackle this major error.
The error relates to the scope of estoppel in a procedure called post-grant review (PGR). By way of background, one of the AIA’s goals was to drive more fights over patent validity into administrative proceedings run by the U.S. Patent & Trademark Office (PTO), rather than have those battles take place in federal court.
One of the centerpieces of this effort is PGR, which allows third parties to challenge patents within the first 9 months of their life. PGR was meant to improve upon pre-AIA proceedings by allowing administrative patent challenges on more grounds and decreasing the challenger’s risk of being estopped from raising any issues later, in litigation, that “could have been raised” in the PGR. The same "could have been raised" estoppel standard had discouraged patent challengers from bringing administrative challenges under prior PTO rules (see former legislative counsel Joe Matal’s authoritative guide to the AIA, which describes how the earlier procedure was lightly used).
By all accounts, in the AIA, Congress intended to remove the “could have been raised” language and provide a narrower estoppel for PGR proceedings. As the Congressional committee report explains, the PGR was designed to “remove current disincentives to current administrative processes.” But something funny happened on the way to the Congressional floor, and the problematic “could have been raised” language was inadvertently inserted into the bill.
We’re not the only ones to recognize the error. House Judiciary Chairman Lamar Smith referred to the AIA's PGR estoppel standard as “an inadvertent scrivener’s error.” Senate Judiciary Chairman Patrick Leahy, in advocating that the Senate adopt the technical corrections bill, said the PGR estoppel standard in AIA was "unintentional," and it was "regrettable" the technical corrections bill doesn't address the issue. Sen. Leahy expressed "hope we will soon address this issue so that the law accurately reflects Congress's intent." The PTO also thinks Congress made a mistake, saying “Clarity is needed to ensure that the [PGR] provision functions as Congress intended.”
Yet, even with such apparent consensus, the technical corrections bill—which found 14 other errors to fix—perplexingly bypassed the issue. The next time Congress revisits the AIA to fix the remaining bugs, we hope it will finally get its PGR estoppel standard right.
[Colleen Chien and Eric Goldman are professors at Santa Clara University School of Law. We thank Paul Steadman, a litigation partner in Kirkland & Ellis' Chicago and Washington, DC offices, for his help explaining post-issuance PTO procedures.]
January 03, 2013
The Problem of “International Orphan Works” (Guest Blog Post)
By Guest Blogger Marketa Trimble
The U.S. Copyright Office recently extended the deadline by which the public may submit comments on issues related to orphan works until February 4, 2013. The Office is gathering suggestions for shaping future U.S. legislation and taking other actions to address the issues of works whose copyright has not expired, yet the owner of the copyright cannot be identified or located. However, legislating on orphan works at the national level cannot solve an important problem: the problem of establishing the status of an orphan work internationally. The solution to this problem is crucially important for anyone hoping to use orphan works on the internet – particularly entities that are among the most active lobbyists for orphan works legislation.
The key component of orphan works legislation is a definition of what qualifies as an “orphan work.” The definition relies on a standard for the diligent search that a prospective user of a work must conduct in searching for the copyright owner of the work. If, even after performing a diligent search, the prospective user cannot identify or locate the copyright owner, the work will be considered an “orphan work.” The legislation also must address whether, if the work is an orphan work, the user must pay royalties, and if so, when, in what amount, and to whom.
An important accelerator in the search for a solution to the orphan works problem has been the various projects that were developed to digitize library collections and make digital copies available online. Although the orphan works problem did not first arise because of digital technology or the internet, the problem certainly attracted significantly more attention when it was pointed out by entities that wished to make large quantities of materials available to the general public online.
Given the link between the internet and the interest in orphan works, it would appear to be an imperative that a legislative solution to the orphan works problem pay particular attention to the use of orphan works online. However, a legislative solution that is merely national in scope will not solve the orphan works problem for prospective users of the works if that use will be online – it will only set a national standard for diligent search for one country, exposing a prospective user to the risk that his diligent search will not meet the standards of other countries, where the work will also be accessible online. While a user might have searched for the copyright owner in a manner that met the standard prescribed by the legislation of country A and thereby be free of liability for infringement under the law of A, the same search might be insufficient according to legislation in country B, thereby making the user liable for infringement in country B.
The European Union, which leapfrogged the United States in legislating on orphan works when it adopted its directive on certain permitted uses of orphan works in October 2012, had to solve the problem for all 27 EU member states. The directive offers a hybrid solution: it sets common minimum standards for a prospective user’s diligent search and combines the minimum standards with an obligation for mutual recognition of additional national rules for the prospective user’s diligent search. While the directive dictates what constitutes a minimum diligent search for a prospective user of a work (the Annex of the directive and Article 3.4), it also gives EU member states an opportunity to set in their implementing national legislation additional requirements for diligent searches (Article 3.2). Once a prospective user meets the standard of one of the EU member states and determines that the work is an orphan work, other EU member states must respect that status based on the national standard (Article 4). The European Union thus creates the status of an EU-wide orphan work – undeniably an important step for the EU single market.
How will EU-wide orphan works fare beyond EU borders? If a German library identifies a work first published in Germany as an orphan work under future German EU-compliant legislation (see Article 3.3 of the directive for the applicable law) and makes a digital copy of the work available online, the library will not face infringement liability in any EU member state. But suppose the copyright owner suddenly emerges and sues for copyright infringement in a country outside the European Union where the diligent search standard is different – or where no legislation on orphan works exists at all. One possible way for the library to limit its exposure to potential copyright infringement liability outside the European Union will be to allow access to the work online only to those users who connect to the internet from EU member states – a solution that could generate a greater need for effective geolocation tools and raise questions about how the law should treat acts of evasion of geolocation (see my article on the topic here).
Can an orphan work solution serve prospective users of a work who intend to use the work on the internet, although the solution does not provide for an “international orphan work” status? Such a status could only be established by an international treaty, which could adopt the EU hybrid model or set a single diligent search standard. Without an “international orphan work” status the problem could still be solved by the operation of the rules for jurisdiction and choice of law, which would effectively limit the number of countries whose national laws would apply to the acts of the prospective user. Such rules could either be left to develop naturally with no international coordination (as has been the case so far with the exception of the European Union and the European Free Trade Association), or could be shaped by collective action – if countries could eventually agree on a treaty on jurisdiction, choice of law, and the recognition and enforcement of judgments (the restarted activities of the Hague Conference on Private International Law in this area provide a possible forum for such an effort). Four completed and one ongoing academic projects attempt to provide guidelines for courts and legislators on which rules to adopt (for the ongoing project see here).
There might be one other possibility: the EU directive, once implemented in EU member states’ national legislation (which should occur by October 29, 2014), might prove that the standard set by the directive is high enough to identify orphan works reliably at the international level. If the EU standard is sufficiently high, the instances in which works will not be legitimate “international orphan works” – instances in which their copyright owners will in fact exist and emerge to claim infringement – will be very few, if any.
However, even if copyright owners are truly unidentifiable or non-locatable under any standard, the question will remain as to what law should govern the royalties due, if any, for the use of the work if the work is accessible online from multiple countries. But maybe the question of the law applicable to the royalties arrangement will not necessitate an international agreement: it might transpire (as it does with other infringement issues on the internet) that in most cases various natural barriers will provide sufficient limits on the territorial scope of potential liability. The limited financial resources of copyright owners – who are the potential plaintiffs – or a limited willingness of courts to adjudicate infringements under multiple national copyright laws might delineate the territorial scope of potential liability in the majority of cases. Furthermore, if the copyright owner is truly unidentifiable or non-locatable, there might be no one with standing to sue for copyright infringement anyway.
[Photo credit: Puzzle World Globe // ShutterStock]
January 02, 2013
Section 230 Still Keeping the Pro Se Plaintiffs at Bay--Klayman v. Facebook, and More
By Eric Goldman
I'm personally committed to blogging every Section 230 case I see, but I fell off the wagon in the second half of 2012. So what better way to usher out 2012 and ring in the new year than to recap some Section 230 wins from the past 6 months? The following four cases all involve pro se litigants whose unmeritorous cases got unceremoniously swept out of court, just like Baby New Year walks Father Time out the door. In 2013, I resolve to give continued thanks to Section 230 for keeping the court system relatively free of junk lawsuits like these:
Klayman v. Zuckerberg, 2012 WL 6725588 (D.D.C. December 28, 2012). Klayman is a lawyer-plaintiff. For reasons that are unclear to me, pro se lawyer-plaintiffs fail in court at about the same rate (or worse) as the typical pro se. I find this hard to comprehend; after all, shouldn't lawyers have a better sense which legal claims are worth pursuing than the average individual litigant? Presumably, the only more knowledgeable litigants are judge-plaintiffs; I don't see many of those cases, but these usually also fail in a pretty embarrassing way. This sounds like a good area for further research.
Larry Klayman is notorious enough to have his own Wikipedia page. I'm not sure how to gauge his accomplishments because the Wikipedia page only highlights his failed lawsuits--the word "unsuccessful" shows up four times on the page, not including this lawsuit.
The case involves a user-created Facebook page titled 'Third Palestinian Intifada.'" It's not clear from the opinion how this page harmed Klayman, but I guess it doesn't take much to provoke a lawyer to sue. While typing the complaint, Klayman's finger apparently got stuck on the "zero" key. He demanded $1,000,000,000.00--that's right, $1 billion--because Facebook didn't take down the page fast enough.
The court runs through the typical three-factor Section 230 analysis:
1) ICS? Facebook provides an interactive computer service because it maintains "a website that gives its users the ability to create, upload, and share various types of information, potentially with hundreds of millions of other users."
2) Publisher/Speaker Claim? Klaynan sued Facebook for assault (!) and negligence. The court says:
the defendants' alleged conduct ascribed to them the status of publishers of information, whether by "using" the website to post certain content (i.e., publishing), id. ¶ 17, "allow[ing]" certain content to be posted to the website (i.e., deciding whether to publish), id. ¶¶ 17, 19, or by "refus[ing] . . . to remove these postings," id. ¶ 19. The defendants' potential liability is thus "derive[d] from [their] status or conduct as a publisher or speaker."
Klayman belatedly attempted the Barnes promise-based workaround to Section 230 and gets mocked:
It begs credulity that the plaintiff, a "highly visible and well known lawyer," Compl. ¶ 11, would not have included a claim for breach of contract if he contemplated such a claim as a viable possibility.
3) Were the defendants the ICPs? [note: normally this is phrased as whether the content came from third party content providers, but I think this restyling is OK in this case.] The court says:
Nowhere in his complaint or in his opposition brief does the plaintiff allege that the defendants contributed to the content of the Facebook page at issue. Rather, as described above, the plaintiff focuses on the role that the defendants played in publishing the Facebook page. [FN3] The plaintiff's own allegations are inconsistent with a finding that the defendants acted as information content providers with respect to the offensive material at issue.
FN3 is interesting. Klayman argued that Facebook collects data about its users and then personalizes their site views based on this data. The court says that even if that's true, it would just represent another form of editorial control immunized by Section 230.
Having satisfied the three elements of a successful Section 230 immunity, the court grants Facebook's motion to dismiss. This is a good outcome for Facebook, but I'm not clear why Facebook didn't make an anti-SLAPP motion under D.C.'s anti-SLAPP law. That way, Klayman would have to write Facebook a tuition check for his Section 230 schooling. Even without anti-SLAPP protection, I hope Facebook seeks Rule 11 sanctions against Klayman. We haven't seen too many courts grant Rule 11 motions in Section 230 cases (I wish they did) but Klayman's lawsuit broke absolutely no new legal ground and was doomed from inception.
A Facebook spokesperson told me: "We are pleased with the court's ruling dismissing all claims with prejudice."
Merritt v. Lexis Nexis, 2012 WL 6725882 (E.D. Mich. October 23, 2012). Merritt claimed Lexis-Nexis published false information about him. The court never explicitly says the information comes from third parties, but that's the logical inference given Lexis-Nexis' business model. The court says that Lexis-Nexis qualifies for Section 230's immunity (citing the memorable Gaston case). The court then says Merritt's claims fall "squarely" in Section 230's immunity.
Nieman v. Versuslaw, Inc., 2012 WL 3201931 (C.D.Ill. August 3, 2012). See also the magistrate's report, 2012 WL 3201935 (C.D.Ill. June 13, 2012). I've held off blogging this case because the University and I have received threats from Nieman (lucky us!). So just the facts on this one.
The court summarizes Nieman's arguments:
Between January 2009 and the date of filing this action, Plaintiff applied for one or more positions of employment. Plaintiff believes that the potential employers have performed Internet browser searches by way of Google.com, Yahoo.com, or Bing.com, and found documents related to litigation against his former employer Nationwide. Plaintiff also believes that the potential employers have used this information to disqualify him from candidacy for the applied position or have shared this information with others who have done so. In other words, Plaintiff alleges he “has been effectively ‘blacklisted’ as to employment opportunities due to the ease at which these references appear pursuant to a simple name search, and due to the unlawful acts of third parties who then use such information to unlawfully disqualify” his candidacy.
He sued Microsoft, Versuslaw, Yahoo!, Google, and Joseph W. Acton for, among other claims:
* violations of Illinois' human rights law. The court rejects the claim, saying the complaint only alleged "Defendants provided access to public information that potential employers used to deny Plaintiff employment," and that doesn't suffice.
* publicity rights. The court says:
First, the exemption from liability for using a person's identity for a non-commercial purpose, including in a news or public affairs account is applicable here. Plaintiff's prior litigation is a matter of public record and public interest. Moreover, Plaintiff's identity is not being used for a “commercial purpose” as defined by the Right of Publicity Act because his name is used only to find documents related to his case, which are part of the public record. His name is not being held out or used to entice anyone to buy a product. Under Plaintiff's theory, every person who is involved in litigation who has public court documents that can be accessed for a fee on the Internet by doing a browser search or found by using Westlaw, Lexis, Versuslaw, or any other legal research site can state a claim under the Right of Publicity Act. This cannot be the case.
* 42 USC 1981. The court says he didn't allege any discrimination on improper bases.
* Lanham Act. Nieman alleged "Defendants Versuslaw and Acton are attempting to associate Plaintiff with their for-profit website. Plaintiff accuses Defendants Google, Yahoo, and Microsoft of actively participating in “these unlawful acts ... by way of their paid search ranking and/or AdWords mechanisms.”"
Citing Stayart v. Yahoo, the court says Nieman doesn't have standing because he lacks the requisite commercial interest in his name.
* Unjust enrichment. "Defendants are not “retaining a benefit” to Plaintiff's detriment just because they are selling electronic access to public information and Plaintiff does not like the information contained in those public documents."
The court also grants Microsoft and Yahoo's First Amendment and 47 USC 230 defenses. Regarding the First Amendment, the court says "all of Plaintiff's allegations rest on the premise that Defendants' websites provide links to information that is in the public record. Plaintiff cannot show he is plausibly entitled to relief." Regarding 47 USC 230, the court says that it agrees with the magistrate report that Section 230 applies, but the judge expresses uncertainty about the immunity for the trademark and publicity rights claims because they are IP claims; and also about the RICO claim as a federal crime (the court doesn't cite the several cases rejecting its line of reasoning on that point).
Getachew v. Google, Inc., 2012 WL 3217611 (10th Cir. August 9, 2012). This case is quite similar to the Nieman case. The court recaps:
Mr. Getachew alleges that when all or part of his name is entered into Google's Internet search engine, the search results yield negative information about him. For example, Mr. Getachew was previously a plaintiff in an employment action, and he alleges that the summary judgment order in that case is available when part of his name is entered into Google's search engine. He also alleges that another Google search result links his name to a "[g]raduate position available in evolutionary systems biology."
All of this, he alleges, hurt his employment prospects. The district court said that his discrimination and Title VII claims were "frivolous" and his state law claims against Google were immunized by 47 USC 230. The appeals court upholds these conclusions. With respect to 47 USC 230, the court says "Google is immune from Mr. Getachew's state-law claims under 47 U.S.C. § 230(c)(1). Under that provision, Google cannot be held liable for search results that yield content created by a third party."
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