June 09, 2009
May 2009 Quick Links Part 2
By Eric Goldman
Blogs and Boards
* WSJ: Bloggers, Beware: What You Write Can Get You Sued
* j2 Global Communications v. Zilker Ventures, CV 08-07470 SJO (AJWx) (C.D. Cal. April 22, 2009). A consumer review website can putatively qualify for anti-SLAPP protection, but not in this case because the plaintiff established its prima facie case.
* Biggs Cardosa Associates Inc. v. Bradbury, 2009 WL 1508703 (Cal. App. Ct. May 29, 2009). Here's another one for all of you Rip-off Report fans. A former employee lost a jury trial (and was hit with over $100,000 of damages) for breaching a "non-disparagement" clause in his separation agreement by posting negative comments about his former employer and colleagues on a variety of online fora, including numerous posts on the Rip-off Report.
* Houston Chronicle article on a lawsuit against a website operator for a user post saying that a woman has herpes when she, in fact, does have herpes. She is claiming public disclosure of private facts. [Stupid Houston Chronicle expired the article and moved it to its archives, breaking a number of links throughout the web. Here's a short recap of the article.]
* Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. April 27, 2009). The contract of an independent contractor government "hearing officer" was non-renewed because she blogged on the topics of her hearings, raising questions about her impartiality. As the court says in dismissing the resulting lawsuit from the hearing officer:
To reiterate, this Court fully recognizes the cherished right of free speech, as well as the commendable goals of the RA. But these cannot wash away the bona fide concerns that arise when a judicial officer elects to disseminate her opinions in cyberspace with little or no restraint. Because of her position, Plaintiff's attempts to qualify her stances as solely her own were entirely ineffectual. With particular jobs come certain precise responsibilities. In Plaintiff's case, one of these included avoiding even the appearance of bias via extra-judicial comments. Plaintiff's deep concerns about the special education issues and the resulting creation of her blog ultimately caused her to face a dilemma that she alone created. The choices she freely made thereafter led to her non-renewal, and as aforestated we do not find any of the Defendants' conduct actionable under the circumstances.
This case reminded me some of Richerson v. Beckon from last year.
* JuicyCampus redux: People's Dirt. Let the angst over anonymous online forums begin anew.
* Doe v. Ciolli, 2009 WL 1204361 (D. Conn. April 30, 2009). In the AutoAdmit lawsuit, the court rejected Matthew Ryan's (aka ":D") motion to dismiss for lack of jurisdiction.
* Facebook v. Power Ventures, Inc., 2009 WL 1299698 (N.D. Cal. May 11, 2009). Largely following the troublesome Ticketmaster v. RMG case, Power Ventures' motion to dismiss Facebook's copyright and DMCA claims was denied. (Other claims survived too). Comments from Jeff Neuburger and Tom O'Toole.
Miscellaneous
* Colleen Chien, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, North Carolina Law Review, Vol. 87, 2009
* Mazur v. eBay Inc., 2009 WL 1203937 (N.D. Cal. May 5, 2009) Class certification denied. My blog post on this case’s more troubling ruling about 47 USC 230.
* Riggs v. MySpace, Inc., 2009 WL 1203365 (W.D. Pa. May 1, 2009). Venue selection clause in MySpace user agreement upheld.
* Salter v. State, 2009 WL 1409484 (Ind. App. Ct. May 20, 2009). Saving pornographic photos of a minor to a CD does not constitute the "creation" of child porn, even though a new "copy" has been created.
* State v. Bell, 2009 WL 1395857 (Ohio App. Ct. May 18, 2009). MySpace chat sessions aren't MySpace "business records" for hearsay purposes.
* Forbes: the Hidden Costs of Privacy. This article has been written, and written again, many times in the last decade; yet the regulatory dynamics have not improved.
Posted by Eric at 10:35 AM | Content Regulation , Copyright , Derivative Liability , Patents , Privacy/Security , Publicity/Privacy Rights | TrackBack
May 03, 2009
April 2009 Quick Links
By Eric Goldman
[Just a reminder that I am posting some “quick links” exclusively to my Twitter account, so if you want to keep up with everything, follow me at Twitter or subscribe to the RSS feed.]
Marketing/Spam
* Zango is dead (and so is adware), Ken Smith, Zango's CTO, conducts a post mortem: What Zango Got Wrong and What Zango Got Right. Mike Masnick's post-mortem.
* The FDA's instructions about pharmaceutical search marketing have led to lots of confusion. See Search Engine Land and the NYT.
* NYT: "Never Mind What It Costs. Can I Get 70% Off?"
* Tsan Abrahamson on social media and marketing law.
* Asis Internet Servs. v. Consumerbargaingiveaways. A district court diverges from Mummagraphics and says CAN-SPAM does not preempt CA's anti-spam law even if there is no common law fraud.
* Jackson v. American Plaza Corp., No. 08-8980 (S.D.N.Y. April 28, 2009), A Craiglist advertiser isn't a third party beneficiary of Craigslist's contract for purposes of stopping another advertiser from breaching the contract (in this case, spamming the forum).
Defamation
* Gardner v. Martino (9th Cir. April 24, 2009). I'm not a fan of talk radio, and the 9th Circuit apparently isn't either. The court upheld an anti-SLAPP dismissal of a defamation claim against the radio talk show host because "The Tom Martino Show is a radio talk show program that contains many of the elements that would reduce the audience’s expectation of learning an objective fact: drama, hyperbolic language, an opinionated and arrogant host, and heated controversy." Accord DiMeo v. Max. As Marc Randazza notes, rulings like this pose a challenge for those who think contextually ridiculous statements should be treated as "cyberbullying" or "cyber-harassment." Cf. the Finkel v. Facebook case involving asinine but clearly meaningless chatter on a private Facebook page.
* Some big defamation losses reported by CMLP:
- Blogger hit with $1.8M damage award.
- $12.5M defamation judgment against a gripe site.
* CMLP has a page organizing all of its 47 USC 230 material.
Intellectual Property
* Publicly republishing a private email leads to a default judgment of copyright infringement.
* Bryant v. Europadisk, Ltd., 2009 WL 1059777 (S.D.N.Y. April 15, 2009). In 2000, musicians authorized distributors to distribute their [hard copy] recordings, which the defendants ultimately ripped and allowed Amazon and Rhapsody to deliver via downloading. The resulting lawsuit turned on the interpretation of the license agreement term “internet sites.” The court says the term "is not ambiguous and does not extend to websites selling digital copies of songs. At the time the parties entered into the agreements, The Orchard sold physical copies only. As its Vice President explained by affidavit testimony, digital downloads of music did not become a “viable business” until iTunes was launched in approximately April 2004, long after Media Right and Gloryvision entered into contract."
* Octomom is seeking trademark registrations.
Miscellaneous
* GeoCities is shutting down.
* eBay will referee customer disputes.
* Wilson Sonsini's VC financing term sheet generator.
* Oddee: 10 Most Bizarre [Online] Gaming Incidents
Posted by Eric at 06:31 AM | Adware/Spyware , Content Regulation , Copyright , Derivative Liability , E-Commerce , Internet History , Licensing/Contracts , Marketing , Spam , Trademark , Virtual Worlds | TrackBack
April 14, 2009
Robert Steinbuch Loses Another Round--Steinbuch v. Hachette
By Eric Goldman
Steinbuch v. Hachette Book Group, 2009 WL 963588 (E.D. Ark. April 8, 2009). The Justia page.
Law professor Robert Steinbuch, a male "protagonist" from the notorious and risque Washingtonienne blog by Jessica Cutler, suffered another courtroom loss. As far as I can tell, he is fighting the battle against Cutler now on three fronts: (1) the 4 year old lawsuit against Jessica Cutler directly, (2) a lawsuit against Hyperion, the publisher of Jessica's novel (after the district court dismissal, the lawsuit was partially revived by the 8th Circuit), and (3) this lawsuit against Hachette, the distributor for the Hyperion-published book.
In this ruling, the court grants Hachette's 12(b)(6) motion to dismiss with leave to amend. Overall, the court criticizes Steinbuch (who is now acting pro se) for a sloppy complaint:
Despite the enumeration of six claims for relief, the real nature of Steinbuch's claim, as alleged in the complaint, appears to be a claim for public disclosure of private facts. Little effort appears to have been made to plead more than labels and conclusions with respect to the other five claims for relief. On each of those claims, Steinbuch appears to rely on a formulaic recitation of the elements of the cause of action, which the Supreme Court has held will not do.
It's not exactly clear how rulings like this improve Steinbuch's reputation.
Because of the conclusory allegations, the court breezily dismisses the claims other that public disclosure of private facts. That claim fails because Steinbuch did not allege the heightened scienter required to hold book distributors liable for the books they distribute. The court also notes, without resolving, potential concerns about Steinbuch's core argument that Cutler violates Steinbuch's privacy by disclosing their mutual sexual affair:
it should be noted that the parties have not briefed, and the Court has not considered, the issue of whether, if A and B conjoin [Eric's note: conjoin???] in a private place, and A later decides to publish an account of her experience in that encounter, B can bring an action for invasion of privacy. To put it another way, in that circumstance, does A need B's consent to publish an account of her experience with him?
As I've said before, 3 separate lawsuits spanning 4 years qualifies in my book as a really bad breakup.
Posted by Eric at 01:58 PM | Content Regulation | TrackBack
April 13, 2009
Blogspot Sued for Dead Blogger's Content--Davis v. Google
By Eric Goldman
Davis v. Google, 09 CH 15753 (Cook County Ct. complaint filed April 9, 2009)
Venkat sent a very interesting lawsuit this morning that raises some complex policy issues. The complaint alleges that Sean Healy created a blog at unknowncolumn.blogspot.com and posted defamatory content about speedskater Shani Davis' mom, Cherie Davis. [I believe the post in question is at http://unknowncolumn.blogspot.com/2006/02/memo-to-cherie-davis.html -- I'm not going to link to it, but it did show up as my first search result for "Cherie Davis"]. The complaint further alleges that Healy is now deceased, so he can no longer remove the content on Cherie's demand, and he did not have a "probate estate" to take over his blog. As a result, Cherie feels like she has nowhere to turn to clean up the alleged defamation, so she is suing Google's Blogspot for a takedown injunction.
On the face of it, the lawsuit is clearly preempted by 47 USC 230, and Google ought to get a quick and unambiguous win. However, there are some lurking policy issues about dealing with online content posted by now-deceased individuals:
* Presumably the content and the account passed through Healy's estate. Even if there was no "probate estate," whatever that means, there is still a legal protocol for succession of Healy's assets--including the copyrights in his blog. So someone now owns Healy's blog, and it should be possible to determine who that is.
* Even if the legal rights have been allocated, taking control over a deceased accountholder's account is not always easy. The last time I recall this issue being discussed, it was in the context of taking control over deceased military personnel's email accounts. Online providers have different policies about how to deal with this--and for good reason, as too loose a policy could enable account hijacking, plus there may be concerns about the deceased accountholder's privacy. I wonder what Blogspot's policy is. This issue won't come up often, but it will definitely come up again.
* If Cherie can't sue Healy's estate, instead of suing Blogspot, I wonder if Cherie could seek a declaratory judgment that the content is defamatory. I would be shocked if Blogspot wouldn't honor a declaratory judgment in Cherie's favor, and it's not exactly like Healy would contest it.
* If Blogspot won't voluntarily remove the content, I wonder if Cherie could have more cost-effectively achieved the same net result through a reputation management service. A good reputation management service should be able to obscure several year old content that hasn't been recently refreshed.
Posted by Eric at 08:52 AM | Content Regulation , Derivative Liability | TrackBack
April 11, 2009
Q1 2009 Quick Links, Part 3
By Eric Goldman
Blogging and Social Networking Sites
* A new version of the EFF Legal Guide to Blogging. While you're there, consider joining EFF as a member. The EFF does first-rate work, and they can use all the support they can get in this economic downturn.
* Red Tape Chronicles: "Blogger: Cash4Gold tried to 'bribe' me."
* Klein v. City of Laguna Beach, 594 F. Supp. 2d 1142 (C.D. Cal. Jan. 23, 2009): "many of the cases striking down ordinances that restrict sound-amplification equipment are artifacts of a bygone age that offered activists few media of mass communication. Twenty, thirty, or fifty years ago, a sound truck was an important means of spreading a message to a large group of people. Now, one must only have a computer and a printer to publish a newsletter or handbill. The Internet, e-mail, text messaging, and widespread mobile communications devices have made it easier than ever to reach a large audience on a small budget. Indeed, it might be easier for Mr. Klein to reach the youth he wishes to target by using Facebook or MySpace."
* Maybe everyone already knew this, but I learned something interesting about Blogger. Apparently in some cases they will place an interstitial warning in front of certain user-posted content.
* Doninger v. Niehoff, 2009 WL 103322 (D. Conn. Jan. 15, 2009). On remand from the Second Circuit, the district court denies damages for a student whose off-campus blog entry led to school discipline. At the same time, Wendy Davis reports on how a Conn. Bill Would Protect Students' Free Speech Online:
* Funny article on Facebook's efforts to police against people who create funny account names, which sometimes ensnares people who actually have funny names like Batman, Six, Super, Pancake and Kisser.
* Facebook Sex-Extortion Plot: a boy pretends to be a girl, gets boys to send naked photos to him, and then threatens to go public with the photos unless they consent to sex with him.
* Dynamic Sports Nutrition, Inc. v. Roberts, 2009 WL 136023 (S.D. Tex. Jan. 16, 2009). A former employee republishing confidential information via his blog is enjoined.
* We now know that Facebook settled with ConnectU for $65M. However, ConnectU might get a little more cash after this information was inadvertently disclosed by its former counsel, Quinn Emanuel, in a marketing brochure.
* Facebook gets TRO against Wallace.
* Some people gave up Facebook for Lent.
* Reuters writes up a shocking study: many teens on MySpace post things they might regret.
* State v. Hause, 2009 WL 295404 (Ohio App. Ct. Feb. 9, 2009). Facebook photos help convict a woman for allowing minors to drink alcohol in her house.
* U.S. v. Villanueva, 2009 WL 455127 (11th Cir. Feb. 25, 2009). MySpace photo and YouTube video showing defendant holding firearms contribute to sentence enhancements for firearms charges.
* John Palfrey & Adam Thierer discuss Palfrey's arguments to "improve" 47 USC 230 by reversing Doe v. MySpace.
Defamation/Cyberbullying
* JuicyCampus has shut down. LA Times, Chronicle of Higher Education, CMLP.
* Lengthy article on the AutoAdmit lawsuits. And a mixed ruling in Ciolli v. Iravani.
* Noonan v. Staples (1st Cir. Feb. 13, 2009). Truth is NOT an absolute defense to defamation in Massachusetts, which apparently also has seceded from the Union because the First Amendment no longer seems to apply.
* Neuwirth v. Silverstein, 2009 WL 294737 (Cal. App. Ct. Feb. 9, 2009). Reiterating that a website can be a public forum for purposes of anti-SLAPP laws. The CMLP writeup.
* Douchebags Lawsuit dismissed. Marc Randazza mocks the lawsuit.
* Rios v. Fergusan, 2008 WL 5511215 (Conn. Super. Ct. Dec. 3, 2008). Connecticut court has jurisdiction to issue restraining order against North Carolina man who posted YouTube video threatening Connecticut woman.
* Fahmy v. Hogge, 2009 WL 33418 (C.D.Cal. Jan. 2, 2009). Court denies Fahme's motion to set aside the dismissal based on lack of jurisdiction because Fahme made the error that caused the dismissal.
* 24Grille v. TripAdvisor (complaint filed April 2, 2009). Restaurant sues TripAdvisor for anonymous TripAdvisor review. Hello 230!
* Censorious laws brewing in WV and NJ.
Yelp
I have been meaning to post about my experiences with Yelp as a reader and a writer, but that has been repeatedly deferred. So, instead, how about a quick recap of Yelp’s woes? Yelp has been under the microscope quite a bit in the last few months.
* Wendy Davis recaps all the Yelp-related litigation she and I could find--at least 5 known cases. CMLP recaps a couple of the lawsuits.
* This East Bay Express article about Yelp caused quite a stir. It was followed up with more attributed sources. A number of other media outlets covered Yelp, including News.com and the NYT. For a full rundown of Yelp haters, check out the Eater coverage.
Wikipedia
* 25 Biggest Blunders in Wikipedia History.
* Two books about Wikipedia I’ve been checking out.
- Wikipedia, the Missing Manual.
- How Wikipedia Works.
Pornography
* Mukasey v. A.C.L.U., No. 08-565. The Supreme Court declined the cert petition regarding the challenge to the 1998 Child Online Protection Act, officially killing the law after a decade of litigation. Putting aside the merits of the law, it would have been a huge shock to the Internet community to have a circa-1998 criminal act resurrected! I'd like to think Congress will be wiser than to try to criminalize Internet porn a third time, but the regulation of Internet porn is like a siren song to Congressmembers.
* State v. Hurst, 2009 WL 580453 (Ohio App. Ct. March 6, 2009). From the unfortunately-named Licking County courts, the defendant downloaded 14,000 pornographic photos into his work computer's local cache in a five day period (he acknowledged he spent 70% of his workday downloading porn). An expert said that about 50 of the photos were child pornographic. The defendant was convicted of possessing child pornography even though he argued that he didn't intentionally download the photos, getting a 39 month sentence and classified as a sex offender.
* Excellent article by Colette Vogele on suing over a sex tape.
Gambling
* The credit card payment systems blocked the New Hampshire Lottery due to the Unlawful Internet Gambling Enforcement Act of 2006.
* Peer-to-peer gambling OKed in Washington.
Posted by Eric at 12:53 PM | Content Regulation , Derivative Liability , Internet History , Privacy/Security | TrackBack
April 04, 2009
Republishing MySpace Post in Local Paper Might Be Intentional Infliction of Emotional Distress--Moreno v. Hanford Sentinel
By Eric Goldman
Moreno v. Hanford Sentinel, Inc., 2009 WL 866795 (Cal. App. Ct. April 2, 2009)
This is one of the most interesting cases I've seen in a while. Moreno was a UC Berkeley undergraduate who grew up in Coalinga, a small town in California's Central Valley whose attractions include a prison, a mental health institution and Harris Ranch, one of the most odoriferous spots on Highway 5. (Coalinga was also the site of a big quake in 1983). After revisiting her hometown, Moreno posted an essay, "An Ode to Coalinga," on her MySpace page. I have not seen the ode, but it was a 700 word essay that started "the older I get, the more I realize how much I despise Coalinga" and then made very negative comments about the town and its residents. Moreno apparently had a change in heart and took the essay down in 6 days. However, while it was posted, the Coalinga high school principal saw the post and submitted it to the Coalinga Record newspaper, which published it as a letter to the editor under Moreno's full name. The community response to the published essay was severe; according to the court, "Appellants received death threats and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, [the dad] closed the 20-year-old family business."
Moreno and some of her family members sued a variety of defendants for public disclosure of private facts and intentional infliction of emotional distress. The newspaper defendants were dismissed through an anti-SLAPP motion to strike, leaving the principal and the school district as the defendants.
The privacy invasion claim was easily rejected. Once Moreno posted the essay to an open-to-the-public MySpace page (even if only briefly), it was no longer private. As the court says, "the fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast." It also did not matter that Moreno did not use her last name on her MySpace page; the court says that her identity was readily ascertainable from her MySpace page (which included a photo)..
However, the intentional infliction of emotional distress claim wasn't ready to dismiss. The jury will get to decide if the defendants' conduct was extreme and outrageous. Personally, I would like to know more why the principal did what he did.
Observations about this case:
1) According to this article, the Coalinga Record editor who republished the essay was fired.
2) Although the newspaper publishers fortunately escaped liability on anti-SLAPP grounds, if they had republished the essay only online, it should have been an easy 47 USC 230 win.
3) You know the cliche: never post anything online that you don't want repeated on the front page of the newspaper. Proven true once again.
4) And on that front, I think some folks assume that they can "take back" Internet-published content by taking it down. As this case reinforces, in some circumstances there is no "do-over." As I describe in my talks on blogs and social networking sites, every time I hit the "publish" button, I'm betting my house. In this case, Moreno effectively bet her parents' house and business when she hit the publish button.
5) The court notes that a copyright infringement claim isn't in front of it. I wonder what the publishers' copyright liability analysis would look like. I suspect the copyright damages wouldn't be great, but I still wonder why the claim wasn't apparently brought.
6) This case provides more evidence that community members don't like to see their community disparaged. I'm reminded of the recent James Andrews kerfuffle. Andrews, a PR executive at Ketchum, was on his way to Memphis to make a presentation at FedEx about using social media when he Twittered "True confession but i’m in one of those towns where I scratch my head and say “I would die if I had to live here!”" That didn't go over so well with the FedEx folks following his Twitter account.
7) Nevertheless, I wonder if the violent and ostracizing community response to Moreno's post didn't in fact validate some of her critiques.
More on this case from Law.com and the Central Valley Business Times.
Posted by Eric at 06:47 PM | Content Regulation , Derivative Liability , Publicity/Privacy Rights | TrackBack
March 25, 2009
Web Host Convicted of State Child Porn Crimes Despite 230--People v. Gourlay
By Eric Goldman
People v. Gourlay, 2009 WL 529216 (Mich. App. Ct. March 3, 2009)
Hot on the heels of the Cook County Sheriff's publicity stunt filing against Craigslist, we get an interesting but complicated ruling exploring the application of 47 USC 230 to state criminal laws. The ruling tries to distinguish between ordinary web hosts and the defendant's behavior, and in doing so finds an adequate basis to punish the defendant for his role in producing and disseminating child pornography.
This prosecution is part of the fallout from "Justinscam," a tragic and well-documented story first told in exhaustive detail in this 2005 New York Times article (and its correction; see the NY Magazine for more about the NYT reporter's unorthodox and controversial role in the story). According to the opinion, at age 13, Justin Berry got a webcam and eventually started broadcasting pornographic images of himself over the Internet. The defendant, Kenneth Gourlay, operated Chain Communications, the host of the Justinscam website. Gourlay then engaged in a dialogue with Berry that ultimately led to the creation of two additional websites, JFWY and mexicofriends. With respect to the crimes on appeal, I quote the relevant portion of the opinion:
"The prosecution of defendant was based on the theory that defendant, knowing that the purpose of the JFWY and mexicofriends websites was to allow Internet viewers to watch Berry engage in pornographic acts, was an active participant in the creation of the two websites. The...prosecution presented evidence (1) that defendant knew Berry hosted his own pornographic website, that Berry wished to take this website, the justinscam website, to the “next level,” and that the purpose of both the JFWY and mexicofriends websites was for others to see pornographic images of Berry, (2) that defendant hosted the two websites with Chain Communications and registered the domain names, (3) that defendant programmed the websites with the JAVA applet to create a near live streaming video image, (4) that defendant created the members-only sections for the websites, and (5) that defendant provided Berry with an advanced web camera when he visited Berry in Mexico. In addition, in online conversations, defendant told Berry that Berry should “milk the cam for all its worth,” that Berry “got the money shots right before” Berry turned the web cam off, and that some high resolution images of the “money shots” would be nice in the website's members-only section."
The Wikipedia entry on Justin Berry also discusses Gourlay's repeated molestation of Berry. Based on this fact alone, Gourlay is destined for significant jailtime, and Gourlay's involvement in Berry's website is almost besides the point. Accordingly, personally I think the court's discussion about the web hosting relationship is hugely colored by the criminal molestation, which makes it hard to disaggregate the court's feelings if this was truly only a customer/vendor relationship.
Nevertheless, focusing only on the facts discussed by the court, Gourlay was more involved with Berry's websites than a typical hosting vendor would be. Gourlay was allegedly providing custom software programming, hardware and recommendations about content decisions to Berry. In a footnote, the court says:
We note that, although defendant claims on appeal that he was merely providing standard web hosting duties to Berry for the JFWY and mexicofriends websites, there was no evidence presented at trial that many of the services defendant provided to Berry for the two websites, such as use of the applet, the creation of members-only pages, the technical assistance given to members of the two websites, and the registration of domain names, were provided for any of Berry's other websites or to other clients of Chain Communications.
A jury ultimately convicted Gourlay of:
* two counts of child sexually abusive activity, MCL 750.145c(2)
* two counts of using a computer to communicate with another to commit child sexually abusive activity, MCL 750.145d(2)(f)
* two counts of distributing or promoting child sexually abusive material, MCL 750.145c(3)
* two counts of using a computer to communicate with another to commit distribution of child sexually abusive material, MCL 750.145d(2)(d)
* third-degree criminal sexual conduct (CSC), MCL 750.520d(1)(a), and
* soliciting a child for immoral purposes, MCL 750 .145a.
Although in this ruling the appellate court reversed the sentencing decision of the trial judge, Gourlay will be going to jail for a substantial period of time.
On appeal, Gourlay claims that the pornography-related offenses were preempted by 47 USC 230. The court says that some of the elements of a 230 defense are met; "There is no dispute that Berry was an information content provider for the JFWY and mexicofriends websites and that defendant, acting as Chain Communications, was an interactive computer service provider."
The state argued that 230 didn't apply because 230 covers only civil claims, not criminal claims. It's true that 230(e)(1) excludes federal crimes from the immunity, but the plain language of the statute is clear that state criminal prosecutions are preempted. The court easily concludes that "Congress intended that no liability may be imposed under a state criminal law that is inconsistent with § 230."
Nevertheless, the court concludes that the jury didn't need to be instructed about 47 USC 230 (which, it sounds like, defense counsel at trial may not have been aware of). The crime of child sexually abusive activity requires the state "to prove that the defendant 'persuade[d], induce[d], entice[d], coerce [d], cause[d], or knowingly allow[ed] a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material.'" The court says that a typical web host does not fulfill the scienter requirements:
An interactive computer service provider, by providing bandwidth, by publishing content that was generated by an information content provider's use of the service's general features and mechanisms, or by knowing of the nature of the published content, has not taken an intentional action directed toward a child to engage the child in child sexually abusive activity.
Therefore, the conviction could be consistent with 230. I didn't exactly follow the court's logic here, and I would be very interested to see how a jury would react in this case if told the foregoing quote. Inferentially, the court is saying that 230 does not apply because Gourlay as a vendor did more than provide bandwidth, publish content and know the contents being published.
With respect to the distribution count, the court lays out the prosecution's burden: "(1) the defendant distributed or promoted child sexually abusive material, (2) the defendant knew the material was child sexually abusive material at the time of distribution or promotion, and (3) the defendant distributed or promoted the material with criminal intent." The court says that some prosecutions under this statute would be preempted by 230 if the prosecution's theory was that "an interactive computer service provider distributes child sexually abusive material with the intent that it be seen by others when, after receiving notice of the material, keeps the material available to be viewed or discovered by others." In other words, failure to respond to a C&D/takedown notice would not convert the provider into a criminal distributor under 230.
Instead, based on the facts I quoted above, the court says that the prosecution's theory is that "defendant, knowing that the purpose of the JFWY and mexicofriends websites was to allow Internet viewers to watch Berry engage in pornographic acts, was an active participant in the creation of the two websites." Given that Gourlay defended on lack of knowledge grounds, not lack of involvement, the court said the conviction was consistent with 230.
This is a complicated case overlaying a tragic situation, but let me offer three implications:
* this case is a good reminder of the toxicity of child porn. As I teach in Cyberlaw class, if you run into child porn, you want to put it as far away from you as possible. Gourlay did not do that. Gourlay’s behavior would be more understandable if Gourlay didn't know there was child porn taking place and thought Berry was over 18 (he claimed both). I suspect the jury found those assertions hard to believe. If Gourlay had any doubts about his beliefs, he should have done more--a lot more--to investigate them.
* Although I think it's a close call, I think that on these facts and based on the precise wording of these statutes, I think the appellate court got it right that 230 doesn't protect Gourlay for the creation and dissemination of child porn. I would be very troubled by that conclusion if Gourlay was purely a technology provider, but the court was clear to distinguish 230's application to the provision of technology. What put Gourlay over the edge for me is the alleged facts that Gourlay appeared to become a co-venturer with Berry and took on a quasi-producer role, and apparently encouraged Berry to increase the pornographic content of the sites--all in the face of Berry being a young teen.
* While I think the court got it right, I'm also disappointed that the jury didn't learn about 47 USC 230. I'm not sure it would have produced a different result, but I imagine a jury would find the fact that Congress provided strong immunities for some of Gourlay's behavior potentially important. All of this reinforces the importance of finding lawyers who know the technology and the applicable law. I suspect many criminal defense lawyers have never heard of 47 USC 230, so it's not surprising if the trial lawyer didn't raise it, but a lawyer who knew that law might have been able to tilt the odds a little more in Gourlay's favor.
Tom O'Toole is similarly unsure what to make of the case.
Posted by Eric at 07:26 AM | Content Regulation , Derivative Liability | TrackBack
March 12, 2009
Rip-off Report Lawsuit Updates: Certain Approval Programs and Ecommerce Innovations
By Eric Goldman
Certain Approval Program v. Xcentric
Certain Approval Programs, L.L.C. v. XCentric Ventures L.L.C., 2009 WL 596582 (D. Ariz. March 9, 2009). I previously blogged about this case in November. This ruling is in response to the plaintiff's request to file an amended complaint, which Rip-off Report resisted on several grounds. Of particular interest is the plaintiff's desire to add a claim for “misappropriation of name or likeness." Rip-off Report responded that such a claim is futile due to 47 USC 230. The court rejected the futility argument at this early procedural stage, saying
Plaintiffs have alleged enough facts regarding Defendants' “creation or development of information provided through the Internet or any other interactive computer service” to make it plausible that Defendants are an “information content provider” for some content and therefore the CDA does not completely immunize Defendants.
This is not the first time that plaintiffs' allegations against Rip-off Report have survived the equivalent of a motion to dismiss, but getting further into the litigation process has proven difficult for plaintiffs.
The court didn't reach the issue, but it's also germane to the futility argument whether a "misappropriation" claim is even preempted by 230 at all or if qualifies as an "intellectual property" claim that is excluded from the immunization. Compare ccBill and Friendfinder.
Ecommerce Innovations v Doe
Ecommerce Innovations, L.L.C. v. Does 1-10, No. MC-08-93 (D. Ariz. Feb. 10, 2009). Thanks to Jeff Neuburger for calling attention to this case. In this case, a defamation plaintiff is seeking identifying information for an anonymous Rip-off Report contributor. The Rip-off Report initially fought the request, but the district court ordered Rip-off Report to comply because the plaintiff had established a prima facie case. The Rip-off Report responded that it plans to appeal the judge's order to the Ninth Circuit, and the district court has stayed the order pending the appeal (although I can't find any evidence that the appeal has been filed yet). As Jeff points out, an appeal by Rip-off Report may prompt the Ninth Circuit to articulate its standards for when plaintiffs can unmask anonymous defendants; it also could become a backdoor way to gauge the Ninth Circuit's attitude towards Rip-off Report in light of some ambiguous language in the initial Ninth Circuit Roommates.com opinion.
Posted by Eric at 11:54 AM | Content Regulation , Derivative Liability , Privacy/Security , Publicity/Privacy Rights | TrackBack
March 11, 2009
The Third Wave of Internet Exceptionalism
By Eric Goldman
[I initially wrote this as an editorial for our University magazine and republished that version through InformIT as well. Here's the original unedited version I submitted.]
From the beginning, the Internet has been viewed as something special and “unique.” For example, in 1996, a judge called the Internet “a unique and wholly new medium of worldwide human communication.”
The Internet’s perceived novelty has prompted regulators to engage in “Internet exceptionalism,” crafting Internet-specific laws that diverge from regulatory precedents in other media. Internet exceptionalism has come in three distinct waves:
The First Wave: Internet Utopianism
In the mid-1990s, some people fantasized about an Internet “utopia” that would overcome the problems inherent in other media. Some regulators, fearing disruption of this possible utopia, sought to treat the Internet more favorably than other media.
47 USC 230 (a law still on the books) is a flagship example of mid-1990s efforts to preserve Internet utopianism. The statute categorically immunizes online providers from liability for publishing most types of third party content. It was enacted (in part) “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” The statute is clearly exceptionalist because it treats online providers more favorably than offline publishers—even when they publish identical content.
The Second Wave: Internet Paranoia
Later in the 1990s, the regulatory pendulum swung in the other direction. Regulators still embraced Internet exceptionalism, but instead of favoring the Internet, regulators treated the Internet more harshly than analogous offline activity.
For example, in 2005, a Texas website called Live-shot.com announced that it would offer “Internet hunting.” The website allowed paying customers to control, via the Internet, a gun on its game farm. An employee manually monitored the gun and could override the customer’s instructions. The website wanted to give people who could not otherwise hunt, such as paraplegics, the opportunity to enjoy the hunting experience.
The regulatory reaction to Internet hunting was swift and severe. Over 3 dozen states banned Internet hunting. California also banned Internet fishing for good measure. However, regulators never explained how Internet hunting is more objectionable than physical space hunting.
For example, California Sen. Debra Bowen criticized Internet hunting because it “isn't hunting; it's an inhumane, over the top, pay-per-view video game using live animals for target practice….Shooting live animals over the Internet takes absolutely zero hunting skills, and it ought to be offensive to every legitimate hunter.”
Sen. Bowen’s remarks reflect numerous unexpressed assumptions about the nature of “hunting” and what constitutes fair play. In the end, however, hunting may just be “hunting,” in which case the response to Internet hunting may just be a typical example of adverse Internet exceptionalism. [For more, check out my 2005 editorial on Internet hunting.]
The Third Wave: Exceptionalism Proliferation
The past few years have brought a new regulatory trend. Regulators are still engaged in Internet exceptionalism, but each new advance in Internet technology has prompted exceptionalist regulations towards that technology.
For example, the emergence of blogs and virtual worlds has helped initiate a push towards blog-specific and virtual world-specific regulation. In effect, Internet exceptionalism has splintered into pockets of smaller exceptionalist efforts.
Regulatory responses to social networking sites like Facebook and MySpace are a prime example of Internet exceptionalism splintering. Rather than regulating these sites like other websites, regulators have sought social networking site-specific laws, such as requirements to verify users’ age, combat sexual predators and suppress content that promotes violence. The result is that the regulation of social networking sites differs not only from offline enterprises but from other websites as well.
Implications
Internet exceptionalism is not inherently bad. In some cases, the Internet truly is unique, special or different and should be regulated accordingly. Unfortunately, more typically, exceptionalism cannot be analytically justified and instead reflects regulatory panic.
In these cases, regulatory exceptionalism can be harmful, especially to Internet entrepreneurs and their investors. It can distort the marketplace between web enterprises and their offline competition—occasionally advantaging the website (such as 47 USC 230), but typically hindering the web business’ ability to compete. In extreme cases, such as Internet hunting, unjustified regulatory intervention may put companies out of business.
Accordingly, before enacting exceptionalist Internet regulation, regulators should articulate how the Internet is unique, special or different and explain why these differences support exceptionalism. Unfortunately, emotional overreactions to perceived Internet threats or harms typically trump such a rational regulatory process. Knowing this tendency, perhaps we can better resist that temptation.
Posted by Eric at 12:20 PM | Content Regulation , Derivative Liability , Internet History | TrackBack
March 05, 2009
Cook County Sheriff Sues Craigslist for Erotic Services Category
By Eric Goldman
Dart v. Craigslist, Inc., 09-CV-1385 (N.D. Ill. complaint filed March 5, 2009)
Dart, the Cook County, Illinois sheriff, has sued Craigslist in federal court for creating a "public nuisance" because its "Erotic Services" category facilitates prostitution. Unfortunately for Dart, this lawsuit is almost certainly preempted by 47 USC 230:
* 47 USC 230 covers the publication of third party ads. See Cisneros v. Yahoo.
* 47 USC 230 preempts a civil claim that is derived from a criminal statute. See, e.g., Voicenet v. Corbett; Doe v. Bates. The federal crimes exception only applies to the enforcement of federal criminal statutes. Therefore, a civil claim based on state or local criminal laws is unambiguously preempted.
* Although hardly a model of clarity, last year the Seventh Circuit clearly held that Craigslist was covered by 47 USC 230 in a claim that Craigslist violated the Fair Housing Act.
* In distinguishing the Seventh Circuit Craigslist case, the Ninth Circuit's Roommates.com case pointed out that Craiglist's listings were open narratives and therefore fully covered by 47 USC 230. The complaint's allegations that Craigslist was involved in creating the bad content because of its category title, search functions and other attributes aren't likely to get around either the Seventh Circuit or Ninth Circuit precedent.
* Indeed, the Seventh Circuit concluded its opinion by pointing out that the Craigslist ads made it easier to find lawbreakers:
Using the remarkably candid postings on craigslist, the Lawyers’ Committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination....It can assemble a list of names to send to the Attorney General for prosecution. But given §230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination."
All of which is true here as well, and all of which is a good reason why the Seventh Circuit isn't likely to reach a different result here.
At a few points, the complaint implies that Craiglist harmed the sheriff's office because the office spent $105,000 busting 156 individuals for prostitution through Craigslist. WHAT?! Enforcing laws is what the sheriff's office is given taxpayer money to do! And, at less than $700/arrest, I wonder if this is CHEAPER than trying to bust prostitution criminals through other techniques. In other words, it's possible that Craigslist makes it cheaper for the sheriff's office to do its job, so to claim any harm by spending taxpayer money to do its job is ludicrous.
While this lawsuit is little more than a sad publicity stunt by the sheriff's office, I remain uncertain whether or not it's a good thing for Craigslist to have an "erotic services" category. I understand the argument that it centralizes these ads in one place rather than having these ads spammed through other Craiglist categories, but I'm confused what, if any, "erotic services" advertised in this category are ever legal. If everything directed to this category is always illegal, it seems like Craigslist could, and perhaps should, voluntarily choose to eliminate the category altogether. That may require Craigslist to invest some more resources policing its other categories to prevent their spamming/hijacking by the dispersed ads, but that may be the unavoidable cost of a free classified ads service.
UPDATE: A reader points out the Craigslist FAQs:
Q: Why does craigslist have an "erotic services" category?
A: It was established at the request of craigslist users, who were tired of seeing ads for escort services, sensual massage, adult web cams, phone sex, erotic dancing, adult websites, nude housecleaning, etc mixed into the regular personals and services categories.
So it seems that there could be some non-illegal activities mixed into this category. Not having checked out the category myself (and not really wanting to do so from my work computer...), I wonder what percentage of posts actually offer these alternative services? i.e., do users actually regularly post nude housecleaning ads?
UPDATE 2: Craigslist says that its existing deal with the state AGs has reduced erotic services ads 90-95% in 12 months.
Posted by Eric at 01:45 PM | Content Regulation , Derivative Liability | TrackBack
March 03, 2009
Facebook Sued Over Private Facebook Group--Finkel v. Facebook
By Eric Goldman
Finkel v. Facebook, Inc., 102578-09 (N.Y. Supreme Ct. complaint filed Feb. 24, 2009).
A New York teenager has sued Facebook and four Facebook users (plus their parents) for allegedly defamatory content posted in a private Facebook group called "90 Cents Short of a Dollar."
This case fits neatly with other legal battles over "cyber-bullying" (whatever that means), such as the AutoAdmit lawsuits, the Sandler case and the Lori Drew case. (For another recent and troubling example of cyber-bullying that I read just this morning, see Wolfe v. Fayetteville, Arkansas School Dist., 2009 WL 485400 (W.D. Ark. Feb. 26, 2009)).
In this case, the plaintiff's school peers said some not-nice things about her in a private Facebook page. The Newsday article has some more color about the sour relationships between Finkel and the defendants. The plaintiff claims that the posts meant that "the plaintiff was a woman of dubious morals, dubious sexual character, having engaged in bestiality, an 'I V drug user' as well as having contracted the H.I.V. virus and AIDS."
With respect to the claim against Facebook, this lawsuit is unquestionably DOA. Frankly, I'm not sure why the plaintiff bothered to sue Facebook. Facebook is completely immunized per 47 USC 230, and this should be an easy dismissal. The complaint didn't even try to do anything fancy to get around 230; in fact, the complaint alleges that Facebook "published" the content, the absolutely wrong allegation to make if you're trying to bypass 230. I think it significantly detracts from the sympathy we might otherwise feel for plaintiff for her to have futilely dragged Facebook into the lawsuit. And, it ensures there will be at least one aggressive defendant in the lawsuit.
With respect to the school peers' liability, this case raises some interesting and complex questions. First, and most obviously, how did the plaintiff get a copy of the private group's postings? This reminds me a little of the Washingtonienne case, although access to Cutler's blog wasn't technologically restricted like it was in Facebook.
Side note: the republication of the private group's posts in this complaint reminds us once again that we always have to be prepared for our digital words to show up on the front page of a national newspaper. In particular, including the transcript to the complaint without a protective order was an aggressive move; I suspect other people reading the transcript for the first time will not be happy.
Second, there were only 6 group members listed on the exhibit, which means the total universe of listeners for any defamatory statement was 5 other folks (the person posting the statement doesn't count). This may severely circumscribe any damages. Third, given that this group of 6 presumably represented a social clique with its own norms and mores, it's entirely possible that the small universe of readers completely understood that superficially factual statements weren't really factual and were never intended to be. In this respect, I'm reminded a little of the DiMeo v. Max case, where the judge adjusted the evaluative standards to reflect the fact that message boards fostered a laxer conversation, and readers understood that. A quick perusal of the posts suggests that all of them clearly were utter nonsense and, I suspect, fully understood by all readers to be inane and meaningless chatter. Finally, the posts apparently never referred to the plaintiff by name, although this may be irrelevant if everyone knew who was being discussed.
The lawsuit also goes after the students' parents. Among other things, to try to establish liability, the complaint alleges that the parents negligently supervised their children. I'd gladly write a $100 check today if the plaintiff or her lawyers could articulate a foolproof way that parents can use to prevent high schoolers from doing stupid things on Facebook (without denying them access to Facebook altogether).
From my perspective, going to court over this matter was not a good decision. Nevertheless, I remain troubled by the examples of mean behavior among students that I'm seeing in the alerts I'm getting. For example, the Wolfe and Sandler cases I mention above are absolutely horrifying. Even though I graduated high school nearly 25 years ago, reading about meanness among high schoolers still gives me the shakes, reminding me how bad high school can be! And it weighs heavily on my mind as a parent. However, I can't imagine any legal solution that will make people be less mean to each other.
Posted by Eric at 02:34 PM | Content Regulation , Derivative Liability | TrackBack
February 03, 2009
Social Networking Sites and Blogs Talk for Students
By Eric Goldman
Today I gave a talk entitled "Social Networking Sites and Blogs" for the on-campus Student Intellectual Property Law Association (SIPLA). My slides. In conjunction with this, I thought it might be useful to organize a bibliography of my previous postings and materials on these topics.
Blogs Generally
* Three part series on blogging: How I decide which blogs to read?, Should I blog? and If I decide I want to blog, how do I get started?
* LexBlog Q&A with Rob La Gatta, parts 1 and 2
* Blogging, Scholarship and the Bench and Bar Panel Recap
* North Carolina Blogging Conference Recap
* Recaps of the first and third gatherings of the Bay Area Blawgers
Blog Law
* A Guest Blogger's "Meta" Post About Guest Blogging
* Blog Content Aggregation, RSS Feeds and Copyright Law
* Steinbuch v. Cutler: New Lawsuit Over Blogging--Steinbuch v. Cutler, Steinbuch v. Cutler Update--Cutler's Motion to Dismiss, Steinbuch v. Cutler Update, Steinbuch v. Culter Update: Cox Out, Cutler Bankrupt, Steinbuch's Second Battlefront Against Cutler Shut Down
* BidZirk v. Smith: Griping Blog Post Leads to Lawsuit--BidZirk v. Smith and Blogger Wins Lawsuit Over Gripe Post--BidZirk v. Smith
* Defamation Lawsuit Against Blogger Dismissed on Jurisdictional Grounds--Fahmy v. Hogge
* Bloggers' Defamation Liability Not Dismissed--Saadi v. Maroun
* Blogger Protected by Anti-SLAPP Statute--GTX v. Left
* Connecticut Blogger Not Subject to Texas Jurisdiction--Healix Infusion v. Helix Health
* Co-Blogger Identity Isn't Disclosed via 512(h), but Takedown Letters Are Copyrightable
* Blog Defamation Lawsuit Lacks Jurisdiction--TrafficPower.com v. Seobook.com
Social Networking Sites Generally
* Social Networking Sites and the Law
* Facebook v. ConnectU. See also Facebook's Lawsuit Against Competitive Email Harvesting Continues--Facebook v. ConnectU
* Telephone Numbers as Identity Authenticators--Abrams v. Facebook
MySpace
* MySpace Defeats Sherman Antitrust Claim for Blocking Links to Competitor--LiveUniverse v. MySpace
* Lori Drew Conviction Reflections Parts 1, 2 and 3. See also Lori Drew Prosecuted for CFAA Violations--Some Comments, and a Practice Pointer
* MySpace Gets 230 Win in Fifth Circuit--Doe v. MySpace. See also MySpace Suit for Liability for Sexual Assault Dismissed and Doe v. MySpace.com --- Continued
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
Other Social Networking Sites
* Website Isn't Liable When Users Lie About Their Ages--Doe v. SexSearch and Doe v. SexSearch Affirmed by 6th Circuit, But Not on 230 Grounds
* Xanga.com Busted for COPPA Violation
Posted by Eric at 01:25 PM | Content Regulation , Derivative Liability , Internet History | TrackBack
January 20, 2009
Kentucky Reverses Seizure of 141 Gambling-Related Domain Names
By Eric Goldman
Interactive Media Entertainment and Gaming Association v. Wingate ex rel Kentucky, 08-CI-01409 (Ky. Ct. App. Jan. 20, 2009)
We see state enforcement agencies freak out about the Internet all the time, so I have a hard time determining which freakouts are more noteworthy than others. However, it definitely caught my attention when Kentucky tried to seize 141 domain names associated with worldwide gambling operations. Their objective was to shut down illegal gambling in Kentucky, but the domain name seizure would have the effect of shutting down those websites worldwide--even if the gambling site was legal with respect to some of its non-Kentucky users. This kind of extraterritorial impact should be categorically outside the province of individual states.
So it's a relief to see that the Kentucky court system has corrected its errors and rejected the seizure of the domain names. The judges don't agree on the matter, and we get 3 opinions out of a 3 judge panel. However, two of the judges emphatically agreed that domain names do not qualify as "gambling devices" under the statutory definition, making their seizure under the statute unlawful. Relying on this definition in the statute sidesteps the many important public policy issues underlying the case, but it's a good (and IMO correct) result nonetheless.
Posted by Eric at 02:59 PM | Content Regulation , Domain Names | TrackBack
January 08, 2009
December 2008 Quick Links, Part 2
By Eric Goldman
Social Networking Sites/Cyber-Bullying/Sexual Predation
* More on the Lori Drew conviction:
- Wired has a tough behind-the-scenes look at the Lori Drew jury deliberations.
- The jury instructions
- In case you missed it, my special three part series on implications of the Lori Drew conviction: Part 1, Part 2, and Part 3.
* Yet more fallout from the Lori Drew prosecution and conviction. Wired has a story on the cyberbullying litigation frenzy. The Washington Post has a recap on the proliferation of state anti-cyberbullying laws.
* U.S. v. Morris, 2008 WL 5101636 (7th Cir Dec. 5, 2008). Judge Posner talks about the difference between entrapment (not OK) and vigilantism (OK) in the context of a mom who created a fake MySpace persona to chat with an alleged sexual predator who had contacted her underage daughter.
* Facebook's policy on breast-feeding photos has sparked protests both online and off (1, 2, 3). It reminds me a bit of one of my first challenges as Epinions' general counsel. (search for Epinions).
* Barry Schwartz: is Google getting desperate for ad revenue?
* The Register: "Google this week admitted that its staff will pick and choose what appears in its search results." However, I don't think the article supports this aggressive statement. Instead, it appears the article is getting excited about the fact that Google manually tweaks the algorithms when they produce goofy results--something we've known for years.
* Updates on Axact v. Student Network Resources, the case involving alleged copyright infringement of term papers. Axact allegedly has been trying to get its domain name registrars to release its domain names for transfer, and SNR is trying to cut them off. Apparently Google also balked at the instructions to kick the subject domain names out of its index, but SNR and Google resolved their differences enough to reach a stipulation. Finally, I've received numerous threats and requests from Axact to modify my original post, which has prompted me to make some minor changes.
Marketing
* IMS Health v. Ayotte. New Hampshire passed a law restricting the use of a doctor's past prescribing practices (i.e., behavioral information) for personalized/targeted sales calls. This opinion upholds the NH law against a First Amendment and dormant Commerce Clause challenge.
* Australian advertisers are cookie-ing users at high CPM sites so that they can show the users targeted ads when those users appear at lower CPM sites.
* Sony busted for COPPA violations.
* New advertising medium: school exams.
Miscellaneous
* Good article on the Sprint v. Cogent peering fight.
* And a good article showing limits to the Long Tail theory.
* U.S. v. Grober, 2008 WL 5395768 (D. N.J. Dec. 22, 2008). Grober pleaded guilty to uploading and downloading child porn over the Internet. The judge rejects the 19 1/2 year minimum sentence specified by the Sentencing Guidelines and instead sentences Grober to the 5 year statutory minimum. This opinion poignantly explains why this judge, like several others, rejects the Sentencing Guidelines in Internet child porn cases because the dictated sentences are too severe.
* BusinessWeek is still amazed that people actually--get this--provide their time and efforts over the Internet without getting paid!
* Lior Strahilevitz, Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Nw. U. L. Rev. 1667 (2008). Lior explores the cross-elasticities of demand for types of reputational information and shows that if some information isn't available (due to, say, privacy laws), decision-makers will consult less credible or pernicious sources. For example, if a landlord can't get good credit information about a prospective tenant, the landlord may resort to discriminatory considerations (like race) to decide whether or not to rent to the tenant. Good article.
* I have previously written about New York v. Synergy6, Inc., 404027/03 (N.Y. Sup. Ct. Jan. 6, 2006), where the court soundly rejected the New York Attorney General's office regarding a marketer's liability for allegedly illegal emails sent by downstream affiilates (i.e., not in direct privity). I have not been able to find a copy of the opinion electronically, but over the holidays I found my hard copy and scanned it to a PDF. Check it out, especially in combination with the 2008 New York v. DirectRevenue opinion, which soundly rejected the NYAG's affiliate liability arguments in the adware context.
Posted by Eric at 07:44 AM | Content Regulation , Copyright , Domain Names , Marketing , Privacy/Security , Search Engines | TrackBack
December 29, 2008
MySpace Defeats Sherman Antitrust Claim for Blocking Links to Competitor--LiveUniverse v. MySpace
By Eric Goldman
LiveUniverse, Inc. v. MySpace, Inc., 2008 WL 5341843 (9th Cir. Dec. 22, 2008). The June 2007 district court ruling in MySpace's favor. LiveUniverse's Nov. 2006 press release upon filing the lawsuit.
LiveUniverse runs VidiLife.com, which it characterizes as a social networking site that competes with MySpace. There is also some personal drama here: LiveUniverse's CEO is Brad Greenspan, the former CEO of eUniverse/Intermix--the company that sold MySpace to News Corp in 2005 for a half-billion dollars, although Greenspan opposed the deal at the time and remains disgruntled to this day.
In October 2006, MySpace allegedly redesigned its site to block VidiLife.com, including allegedly preventing MySpace users from embedding LiveUniverse-hosted videos into their MySpace pages or even mentioning VidiLife on MySpace. LiveUniverse sued MySpace for a Sherman antitrust violation and 17200 unfair competition.
In an opinion unfortunately designed as non-precedential, the Ninth Circuit dismissed the Sherman Act and 17200 claims, saying that MySpace could break links to competitive sites if it wanted and that such behavior did not constitute an actionable "refusal to deal." While the opinion itself is brief and unremarkable, the implications of this ruling are potentially significant:
First, I see this case as an interesting and useful counterpart to the KinderStart v. Google case (and, to a lesser extent, the Person v. Google and Langdon v. Google lawsuits). In KinderStart, the court said that Google wasn't liable for its editorial decisions about indexing and ranking third party sites, including sites that compete with Google. This case extends those principles to kibosh a possible Sherman Act "refusal to deal" bypass to the KinderStart ruling.
Second, I remain intrigued that my limited review of materials never revealed a good explanation for exactly what changes MySpace made in October 2006 and why it did so. Perhaps the explanation is somewhere, but it certainly wasn't front and center. Could MySpace be systematically interfering with user outlinks not for putatively legitimate reasons (such as to reduce the risks of drive-by downloads or the in-line linking of unwanted porn) but instead for questionable motivations, such as reducing its users' awareness of competitors or a personal vendetta against a former CEO? Greenspan's initial press release indicated that in 2005 and 2006 MySpace also tried to block outlinks to similarly competitive YouTube and Revver before MySpace users revolted against those blocks. I'm glad the marketplace mechanisms worked there, but I'd still like to know more about MySpace's practices and motivations. Public scrutiny and monitoring can be a reasonably good substitute for legally compelled disclosures, but I wonder if MySpace's choices are getting enough attention. I can't vouch for its authenticity, but I thought this was a fascinating and disturbing chart. Not that I was in the target audience anyway, but if this chart is anywhere close to correct, MySpace sure doesn't look like the right community for me.
Third, the case didn't discuss 47 USC 230(c)(2), the statutory immunization for filtering decisions. It seems fairly obvious to me that the statute should protect MySpace's filtering choices--even from an antitrust challenge so long as the challenge is civil, not criminal. We should learn a lot more about 230(c)(2) from the Ninth Circuit's ruling in the Zango v. Kaspersky case, which is still pending on appeal.
Fourth, I try to stay away from net neutrality topics, but this case may have some implications for that debate. My understanding is that some anti-net neutrality advocates argue that antitrust law, including the Sherman Act, will regulate discriminatory decisions made by the carriers sufficient to deter bad practices. That may be true, but here the court rejects a refusal-to-deal challenge when one online competitor freezes out another online competitor. This might portend poorly for a refusal-to-deal challenge to non-neutral practices by carriers, which in turn might eliminate a safety valve that the anti-net neutrality folks have pointed to as an alternative to regulation. Don't get me wrong, I'm very suspicious of net neutrality regulation, but this case might indicate that existing regulations won't prohibit discriminatory carrier practices as well as some people hope.
Posted by Eric at 11:59 AM | Content Regulation , Derivative Liability , Search Engines | TrackBack
December 24, 2008
Stress-Relieving Company Gets Anti-SLAPPed Per 230
By Eric Goldman
Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D.Or. Dec. 18, 2008). The defendants' (lengthy) celebratory blog post.
If you're a 47 USC 230 junkie like me, there are few better Christmas gifts than a nice defense-side 47 USC 230 win. So just when I thought I was done blogging for the holidays, this goodie appears in my satchel. Ho ho ho!
Maybe I'm overcome by the holiday feeling, but I naively assume that a company selling products to help "customers relieve stress, reduce anxiety, and achieve emotional balance and spiritual enlightenment though meditation techniques” wouldn't need to use tough litigation tactics. But this lawsuit belies my utopianism. Can't we all just get in touch with our chakras?
The plaintiff is in the stress-relieving business. The defendants all have some connection to SOTT.net, a/k/a "Sign of the Times," a website that describes itself as "The World for People Who Think." Depending on your definition of "think," they should have either a very large or very small audience, but a few moments poking around the site left me baffled about their editorial focus. (Pictures like this one are interesting and slightly disturbing, but I don't quite understand the message). Their "quick guide" isn't very quick and doesn't do much to guide me, but I get a vague sense that the site may occasionally dabble in conspiracy theories.
OK, back to the lawsuit. Laura Knight-Jadczyk is the key defendant in this lawsuit. In response to some anonymous postings on an SOTT.net message board, Laura allegedly posted disparaging comments about the plaintiff (HBI) to the website, including alleged assertions (quoting from the court's opinion) "that “HBI is a ‘front for pedophilia;’ HBI is a “cointelpro” organization; HBI markets nothing more than an act of “falling into confluence with a psychopathic reality;” and HBI is “conning” the public." Other SOTT.net forum moderators also posted some allegedly defamatory material. The plaintiff sued Laura plus:
* her employer, QFG
* QFS, a think-tank operated by QFG
* the SOTT.net website. Laura pays the website's expenses and the domain name is owned by her husband
The plaintiff alleged that these parties fund each other's activities and share a common physical location. The plaintiff does not appear to have sued the anonymous posters who contributed to the allegedly defamatory discourse.
This opinion rules on the defendants' joint anti-SLAPP motion. The court grants the motion for Laura because the assertions were her protected opinions and for the other defendants per 47 USC 230.
The court establishes the defendants' two required elements of Oregon's anti-SLAPP statute:
* "Website forum pages allowing users to read and post comments free of charge constitute a public forum under the anti-SLAPP statute."
* "There is no doubt that the statements here were made in connection with an issue of public interest, specifically, the quality of HBI's products and services developed by Pepin [HBI's co-founder]."
With these two points established, the burden shifts to the plaintiff to establish its prima facie case. Laura is the putative tortfeasor, so QFG, QFS and SOTT all claim 47 USC 230 for her postings. The plaintiff responded that these parties are alter egos of Laura, but the court rejects that assertion: "Notwithstanding significant links between Knight-Jadczyk, QFG, QFS, and SOTT that indicate some measure of control over general operations, plaintiff fails to show control over the specific conduct at issue that is required to find QFG, QFS, and SOTT alter egos or instrumentalities of Knight-Jadczyk."
The plaintiff also argued that some of the forum moderators were QFS employees, but the court says that the plaintiff failed to make the requisite evidentiary showing. As a result, all of the forum moderators are third parties for 47 USC 230 purposes, and the defendants aren't liable for their postings either.
In addition to validating that robust online message board discussions can be protected and evidencing the power of anti-SLAPP motions to quickly quash unmeritorious lawsuits, this opinion reinforces that:
1) Website operators aren't liable for the work or postings of independent forum moderators. This is consistent with the recent Best Western v. Furber case.
2) Employers can claim 47 USC 230 protection for employee actions that they do not control. This reminds me a little of the Delfino v. Agilent case.
3) Attempts to get around 47 USC 230 by alleging that the defendants are “alter egos” of each other are unlikely to work, just like the “aiding and abetting” pleadaround also fails.
Posted by Eric at 11:19 AM | Content Regulation , Derivative Liability | TrackBack
November 28, 2008
Roommates.com Loses Summary Judgment on Remand, and Then Partially Settles
By Eric Goldman
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, CV 03-9386 PA (RZx) (C.D. Cal. Nov. 7, 2008). Nov. 19 stipulation.
The Ninth Circuit en banc ruling in the Roommates.com remains one of the most noteworthy Cyberlaw developments of the year, but it didn’t end the case. In the April ruling, the court held that some aspects of the Roommates.com service did not qualify for immunization under 47 USC 230 and remanded the case back to the district court to determine if, in fact, there had been a violation of the Fair Housing Act (and the state law analogue) and whether the First Amendment applied.
However, the remand order, while facially neutral, did not provide a blank slate for the district court judge. The majority en banc opinion repeatedly described the service as illegal and referenced its illegality as a key part of the 230 analysis. While the Ninth Circuit didn’t conclude that Roommates.com should lose on remand, any district judge trying to avoid reversal on appeal really only had one way to go.
It's not surprising, then, that Roommates.com principally lost its substantive case on remand. In a November 7 ruling, the court held that Roommates.com’s system violated the Fair Housing Act and the state law analogue, and Roommates.com was not eligible for constitutional protection (either the First Amendment or any right to intimate association). Consistent with the idea that the court only had one viable option, the court’s analysis is pithy and unforgiving.
After this ruling, the parties conducted a mediation and reached a settlement agreement that partially resolved the case (unfortunately, the settlement agreement wasn’t posted to PACER). The parties agreed on damages, including punitive damages, but didn’t resolve the plaintiff’s claim to attorneys’ fees. The parties also did not reach agreement on injunctive relief. As a result, the parties will go to trial on injunctive relief in January, and the plaintiff can ask for attorneys’ fees after that.
Posted by Eric at 07:56 AM | Content Regulation , Derivative Liability | TrackBack
November 25, 2008
Search Engines Aren't Liable for Gambling Ads Per 230--Cisneros v. Yahoo
By Eric Goldman
Cisneros v. Yahoo, CGC-04-433518 (Cal. Superior Ct. "Tentative Trial Decision" Nov. 6, 2008)
I am frequently asked if 47 USC 230 protects websites for claims based on the ads they run. My answer is emphatically "yes" unless the claim relates to IP, federal criminal law or the ECPA. The fact that the third party content is advertising is irrelevant to the immunization, and so is the fact that the website is being paid to display the allegedly tortious material. I have never organized the 230 jurisprudence to identify all of the cases that confirm immunization for third party ads, but two examples come to mind: (1) the eBay cases over listings, such as the Stoner and Gentry cases, and (2) Ramey v. Darkside Productions. Because it reinforces the lack of liability for third party ads, I should add that 230 protects websites for their own ads in some cases--see here.
However, Internet gambling can violate federal criminal law, and sites associated with third party Internet gambling could drop out of 47 USC 230 coverage accordingly. However, this exclusion only applies when it's a federal criminal agency bringing the enforcement action. Furthermore, when it relates to gambling ads, the criminal claim can be trickier, and the First Amendment can provide some protection for the ads. Nevertheless, I understood why the search engines settled up with the DOJ over gambling ads. They may have had powerful defenses, but 230 wasn't one of them, and it may have been cheaper/smarter to settle up than continue to fight.
In contrast, when a state agency or a private plaintiff complains about a website running third party gambling ads online, the law clearly says that the plaintiff should buzz off. A recent ruling in a long-running lawsuit (filed Aug. 2004; see John O's post from 2005) confirms that, proposing to dismiss a private plaintiffs' lawsuit against Google and Yahoo because it's preempted by 47 USC 230 (among other reasons).
The plaintiffs' 17200 unfair competition lawsuit had already taken some hits along the way, including a ruling that damages weren't available. This left only injunctive and declaratory relief on the table, but the injunctive relief claim was effectively mooted by the search engines' settlement with the DOJ (which, interestingly, the court does not directly discuss).
The plaintiffs persisted, alleging that some gambling ads slip past Google's and Yahoo's efforts to suppress the ads. The court expresses some sympathy for the filtering challenge, noting that "much like bacteria that mutate in order to survive antibiotics, would be on-line gambling operators change their tactics to escape detection, necessitating different enforcement techniques by the defendants." (This sounds like a good basis for a 47 USC 230(c)(2) dismissal, also not discussed by the court). The court gives props to the defendants' suppression efforts and refuses to promulgate a technology-based injunction telling the search engines how to run their business, saying "the defendants are doing as good a job as possible at removing on-line gambling links, and that job is far better than anything this court could come up with in an injunction."
The 230 discussion is pretty straightforward. One nice touch: the court explicitly talks about the plaintiffs' allegations that Google and Yahoo were "aiding and abetting" the illicit gambling. Citing the 7th Cir. Doe v. GTE ruling from 2003, the court correctly says that 230 trumps aiding and abetting claims, even if Google and Yahoo made money from the advertising. This is a good reminder that "aiding and abetting" or similar claims (like conspiracy) should not be a viable plead-around to 47 USC 230.
Posted by Eric at 01:49 PM | Content Regulation , Derivative Liability , Marketing , Search Engines | TrackBack
November 19, 2008
October 2008 Quick Links, Part 3
By Eric Goldman
Pornography
* Can you believe this? A 15 year old girl took nude photos of herself using her cellphone and sent the photos to her peers. She is now being prosecuted on child pornography charges. The girl's behavior sounds more like a cry for help than a criminal act.
* Judges are pushing back against online child porn downloading cases.
* PROTECT Our Children Act (S.1738). If I were a legislator, I would name all of my bills (regardless of substantive topic) “Protect Our Children Act” to ensure passage. Among other things, the law creates a new crime of “child pornography that is an adapted or modified depiction of an identifiable minor” (assuming this survives First Amendment scrutiny, no more photoshopping Miley Cyrus’ face onto a naked woman’s body). The law also modifies existing law to require that websites and Internet access providers who find child porn on their network to forward it and other information to the CyberTipline operated by the National Center for Missing and Exploited Children.
Online Crimes
* Sarah Palin email hack indictment. Orin's comments.
* HR 5938. Congress amended the Computer Fraud & Abuse Act again to increase the penalties and criminalize conspiracies to violate the law.
* S 431, Keeping the Internet Devoid of Sexual Predators Act of 2008 or the `KIDS Act of 2008'. Wired's critique. This law requires sex offenders to register their email addresses with a central database and then permits social networking sites to access the database and block registrations from the sex offenders. The most interesting aspect of the law is that it tries to define a social networking site as: “an Internet website (i) that allows users, through the creation of web pages or profiles or by other means, to provide information about themselves that is available to the public or to other users; and (ii) that offers a mechanism for communication with other users where such users are likely to include a substantial number of minors; and (iii) whose primary purpose is to facilitate online social interactions.” Is there any Web 2.0 site that does not qualify? Any wagers about how long it will take Congress to change this law to require social networking sites to block sex offenders’ email addresses rather than making it optional as this law states?
* State v. Ellison, 2008 WL 4531860 (Ohio App. Ct. Oct. 10, 2008). Two childhood friends have a falling out. One posts an allegation on her MySpace page that the other is a child molester. After the district court convicted her of harassment via a telecommunications device, the appellate court overturned the conviction because she lacked sufficient intent to harass.
Miscellaneous
* Ryan Haight Online Pharmacy Consumer Protection Act of 2008, HR 6353. “No controlled substance that is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act may be delivered, distributed, or dispensed by means of the Internet without a valid prescription.”
* Gotbaum ex rel. Gotbaum v. City of Phoenix, 2008 WL 4628675 (D. Ariz. Oct. 17, 2008). Malicious blog posts in local Phoenix blogs about a lawsuit aren't enough pre-trial publicity to warrant a change in venue.
* Bursac v. Suozzi, 2008 WL 4830541 (N.Y. Sup. Ct. Oct. 21, 2008). Online shaming of DWI suspects before conviction violates due process. Are you listening, FTC?
* Canadian court: linking to defamatory material is not defamation.
* In an attempt to forestall further movement on the Global Online Freedom Act, the search engines released a high concept statement on how they won’t help repressive regimes.
Posted by Eric at 10:03 AM | Content Regulation , Privacy/Security , Search Engines | TrackBack
November 07, 2008
Rip-off Report Back in Court
By Eric Goldman
It's been a few months since I've blogged on new Rip-off Report litigation. For many companies, a blog hiatus might signal good news, but in Rip-off Report's situation, it merely reflects that I've been falling behind in tracking all of the new lawsuits. I don't blog all of their cases, but two relatively new lawsuits caught my attention:
Certain Approval Programs v. Xcentric Ventures, 2:08-cv-01608-MHB (D. Ariz. complaint filed Aug. 29, 2008).
Among the plaintiff's allegations are that automatically putting the words "Rip-off Report" into a user report page's title tag is defamatory and not covered by 230. The complaint has some useful screen shots depicting how Rip-off Report works.
Xcentric Ventures, L.L.C. v. Opinion Corp. dba Pissed Consumer, 2:08-cv-01841-JAT (D. Ariz. complaint filed Oct. 7, 2008).
Rip-off Report is on the plaintiff's side (again), this time suing a putative competitor and its web host for copyright and trademark infringement. Among the interesting tidbits:
(1) Rip-off Report successfully sent three DMCA 512(c)(3) takedown notices to the web host but is suing the web host anyway for failing to terminate the hosting relationship.
(2) if Rip-off Report has ownership or an exclusive license to the user-supplied reports sufficient to have standing to sue, would this alter its ability to disclaim responsibility for the content of the reports? I think the answer should be "no"--see Schneider v. Amazon and Blumenthal v. Drudge--but exclusive control over user content for copyright enforcement purposes but without concomitant responsibility for other purposes will strike most people as counter-intuitive.
(3) the putative competitor allegedly infringed the Rip-off Report's trademarks by creating and using the URL "http://rip-off-report.pissedconsumer.com" and putting "Rip-off Report" in the site metatags. Hmm...does Rip-off Report really want to establish the precedent that these activities infringe???
Posted by Eric at 09:40 AM | Content Regulation , Copyright , Derivative Liability , Trademark | TrackBack
November 05, 2008
SEC's Proposed Guidance on Hyperlinking Contravenes 47 USC 230
By Eric Goldman
In August, I blogged about the SEC's most recent guidance regarding companies' liability for linking to third party content. Today, I submitted comments to the SEC pointing out that their general position regarding linking contravenes 47 USC 230 with respect to civil lliability. (I believe the SEC guidance also pertains to SEC criminal enforcement actions, and those would not be preempted by 230). Unfortunately, I ran out of time to attack the overall illogic of trying to treat outlinks as the basis of liability in any circumstance. That will have to wait for another day. You can read my comments in PDF (that's the best because of the formatting and footnotes). Or, you can read the comments below.
_________________
November 5, 2008
Secretary
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549-1090
Re: File No. S7-23-08, Commission Guidance on the Use of Company Web Sites
I am an Associate Professor at Santa Clara University School of Law and Director of the school’s High Tech Law Institute.[FN1] My research focuses on Internet law, especially Internet marketing law and search engine law. I have taught an Internet law course every year since 1995-96, and I practiced as an Internet lawyer in the Silicon Valley for 8 years before becoming a full-time professor.
My comments pertain to Section II(B)(2) of Release No. 34-58288. I write to point out that 47 U.S.C. §230 preempts the SEC’s imposition of civil liability for hyperlinked material.
In 1996, Congress enacted 47 U.S.C. §230 to immunize websites and other online entities from liability for third party content. §230(c)(1) says:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
As the statute’s plain language indicates, the SEC cannot treat a company as the publisher or speaker of third party online content under any circumstance. As applied to the SEC’s proposed guidance, §230 means that the SEC cannot hold companies responsible for any content they hyperlink to.[FN2] Although I am not aware of a §230 case that specifically addressed hyperlinked content,[FN3] the case law has been virtually unanimous that websites are not responsible for third party content even when they exercise significant editorial control over the content. For example:
• In D’Alonzo v. Truscello, 2006 Phila. Ct. Com. Pl. LEXIS 244 (Phila. Ct. C.P. 2006), a blogger copied the entire contents of a newspaper article and republished those contents, apparently without authorization, on his blog. The newspaper article was allegedly defamatory (and the newspaper retracted it), but §230 immunized the blogger from any defamation liability even though the blogger affirmatively republished the article.
• In Barrett v. Rosenthal, 40 Cal. 4th 33 (2006), an email list operator made the editorial decision to forward a third party’s allegedly defamatory email to the entire email list. The California Supreme Court held that the email list operator was not liable for defamation for forwarding the email.
• In Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), AOL was not liable for republishing a contractor’s allegedly defamatory content even though AOL had the express contractual right to exercise editorial control over the content.
Although these cases all involved defamation claims, the statute is not limited to those. Instead, §230 preempts all civil causes of action based on third party online content[FN4] —even causes of action enforced by the SEC—unless otherwise specified in §230(e).[FN5]
Further, the immunization applies even when a website explicitly or implicitly “adopts” the third party content. For example, in Global Royalties, Ltd. v. Xcentric Ventures, LLC, 2007 WL 2949002 (D. Ariz. 2007), a website was not liable for continuing to publish third party content that the author had asked the website to withdraw, even if the website had “adopted” the content as its own.;[FN6] Accordingly, the SEC’s standards for “adoption” of third party content may need some revamping for the online context.
Finally, §230 may protect websites’ self-authored characterizations when third parties cause those statements to become untrue. For example, in Doe v. SexSearch.com, 502 F. Supp. 2d 719 (N.D. Ohio 2007), §230 immunized a website’s marketing representation that all of its users were over 18 when a user rendered that statement false by lying about her age.[FN7]
Therefore, the SEC’s proposed guidance may contravene §230 to the extent that it tries to establish civil liability based on a company linking to third party content or for the company’s characterizations of that content. I encourage the SEC to consider revising Section II(B)(2) to reflect §230 and, as appropriate, acknowledge that companies do not face civil liability for hyperlinking to third party content.
I appreciate the opportunity to submit these comments, and I would be happy to elaborate on them further if that would be helpful. Thank you for your consideration.
Respectfully submitted,
Eric Goldman
Associate Professor, Santa Clara University School of Law
Director, High Tech Law Institute
500 El Camino Real
Santa Clara, CA 95053
(408) 554-4369
egoldman@gmail.com
http://www.ericgoldman.org
FOOTNOTES
1. I am speaking only for myself. I provide my affiliation for identification purposes only.
2. See, e.g., Christopher J. Volkmer, HyperLinks to and from Commercial Websites, 7 COMP. L. REV. & TECH. J. 65, 67-68 (2002).
3. The most analogous precedent that came to mind is Smith v. Intercosmos Media Group, Inc., 2002 U.S. Dist. LEXIS 24251 (E.D. La. 2002), which held that a domain name registrar was not liable for an allegedly defamatory website hosted at a domain name registered by its customer. Also analogous is Doe v. MySpace Inc., 528 F.3d 413 (5th Cir. 2008), which held that MySpace was not liable for tortious conduct (sexual abuse) that took place beyond its “premises,” even though the parties had met each other and communicated via the website.
4. See, e.g., Ben Ezra Weinstein & Co. v. Am. Online Inc., 206 F.3d 980 (10th Cir. 2000) (AOL was not liable for publishing inaccurate stock information provided by third parties).
5. §230(e) excludes federal criminal law from the §230(c) immunizations, so §230 does not preempt the SEC’s criminal laws. However, civil claims based on those laws are preempted. See Doe v. Bates, 2006 WL 3813758 (E.D. Tex. 2006); cf. Voicenet Commc’ns, Inc. v. Corbett, 2006 WL 2506318 (E.D. Pa. 2006).
6. However, I should note that the recent Roommates.com en banc opinion, which addressed facts the SEC is unlikely to encounter, has some ambiguous but arguably contrary discussion regarding adoption of third party content. See Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008). Similarly, I am not addressing the application of 47 U.S.C. §230 to the SEC’s “entanglement” discussion.
7. See also Prickett v. infoUSA, Inc., 561 F. Supp. 2d 646 (E.D. Tex. 2006) (§230 immunized information syndicator for its representation that it had verified the syndicated information); Mazur v. eBay Inc., 2008 WL 618988 (N.D. Cal. 2008) (§230 immunized eBay for its representation that its live auction service vendors were screened). But see Anthony v. Yahoo! Inc., 421 F. Supp. 2d 1257 (N.D. Cal. 2006) (§230 does not immunize the dissemination of expired dating profiles with the implicit representation that they were still active); Mazur v. eBay Inc., 2008 WL 618988 (N.D. Cal. 2008) (§230 does not immunize marketing representations that live bidding is “safe,” is conducted against “floor bidders” and involves “international” auction houses).
Posted by Eric at 08:58 PM | Content Regulation , Derivative Liability | TrackBack
October 22, 2008
Defamation Lawsuit Against Blogger Dismissed on Jurisdictional Grounds--Fahmy v. Hogge
By Eric Goldman
Fahmy v. Hogge, 2008 WL 4614322 (C.D. Cal. Oct. 14, 2008). The Justia page.
This lawsuit involves the blog hogonice.com (Hog on Ice). The blog's topical coverage includes "Guns, God, Food, Beer, Tools, Politics, and Whining," and the masthead somewhat incongruously displays both the Christian fish and an Israeli flag. There wasn't much that I found interesting at this blog. Some might view it as a paradigmatic example of blogger self-absorption. The blogger self-describes himself as a humorist, so maybe I just missed the punchlines.
The litigants are former classmates from the University of Miami School of Law (class of 1998). They are both licensed Florida lawyers (Fahmy appears to be inactive). The case suggests that the litigants also were romantically involved, although most people know better than to date lawyers, and everyone knows that two-lawyer couples can be BIG TROUBLE.
Perhaps not surprisingly, then, it looks like their breakup didn't go very well. The blogger allegedly said some not-nice-if-untrue things about the plaintiff on his blog, including "labeling her as a mentally ill alcoholic prostitute," calling her a deadbeat and questioning her work ethic. Most people wouldn't take kindly to these characterizations, but describing a lawyer this way is practically guaranteed to spark a lawsuit...
...which is exactly what happened here. The plaintiff sued the Florida blogger in her home court of California. The blogger moved to dismiss for lack of personal jurisdiction. The court initially denied the motion, but in this ruling, reconsiders the motion and grants it. The blogger wasn't subject to general jurisdiction in California, but the plaintiff tries to reach out using the purposeful availment/Calder v. Jones "effects test." This test works when the defendant expressly aims tortious behavior towards the jurisdiction. Here, the defendant responded that he didn't know his ex was living in California, and therefore he didn't aim his remarks at California. The plaintiff introduced some evidence that the blogger knew she was in California, but the court disregards the evidence because it was not sufficiently authenticated. Case dismissed. The blogger's apparent celebratory message suggests that maybe (through divine intervention or otherwise) the parties will find an extra-judicial reconciliation. If that doesn't happen, based on the tenor of lawsuit, I'd be surprised if the case wasn't refiled in Florida.
I've mentioned before that typically no one looks good in defamation lawsuits like this. This case is no exception, especially given that both lawyers are representing themselves pro se, thus inviting the observation that "a lawyer who represents himself has a fool for a client." For example, the plaintiff's case is tossed because she failed to provide insufficient admissible evidence (such as an affidavit) for her factual allegations. Meanwhile, the court spanks the defendant for making filings that exceeded the permitted length, saying that "[a]lthough Defendant is not a member of the California Bar and claims to be "rusty," the Court finds that ignorance is no excuse in this case." Worse, in response to the defendant's factual rebuttals, the court said that it "is not convinced of Defendant's credibility." Ugh.
UPDATE: CMLP has posted a blog post and a case page on this lawsuit.
Posted by Eric at 05:09 PM | Content Regulation | TrackBack
October 14, 2008
September 2008 Quick Links, Part 3
By Eric Goldman
eBay
* Universal Grading Service v. eBay, Inc. More fallout from the National Numismatic v. eBay case--another lawsuit alleging antitrust and defamation because eBay designated some coin rating services as preferred and impliedly devalued others.
* Windsor Auctions v. eBay has been refiled in a new jurisdiction.
* Mehmet v. Paypal, Inc., 2008 WL 3495541 (N.D. Cal. Aug. 12, 2008). Upholding the consequential damages waiver in PayPal’s user agreement.
* A company's failure in the marketplace can drive up the value of its collectibles on eBay.
* Stelor Productions, Inc. v. Google, Inc., 2008 WL 4218107 (S.D. Fla. Sept. 15, 2008). In the lawsuit alleging that Google causes reverse confusion of Googles.com [warning: annoying music ahead], the plaintiff doesn't get to depose Sergey or Larry yet. Rose Hagan, Google’s long-time chief trademark counsel, is the lucky substitute.
* Lots of rhetoric in the Google/Yahoo ad syndication deal. Google’s advocacy website. Google Chief Economist Hal Varian explains why the deal won’t raise ad prices in the auction. Randall Stross weighs in.
* Google has changed course and now allows religious groups to advertise on the keyword “abortion.”
* Kubit v. Google Groups, 2:2008cv00738 (M.D. Fla. complaint filed Sept. 29, 2008):
I then would like to sue Google Groups for not removing the posts when I repeatedly asked them to for 2 years. I believe I am entitled to at least a small amount of compensation for the emotional distress and lost business income that has resulted from them allowing these posts to remain on their Google Groups, even though I offered them VERY solid proof that I do not have HIV. If they had stopped the posts when they first occurred, they would not have proliferated to hundreds of websites. I became suicidal for a period of time after the posts started. I incurred a lot of emotional pain and fear because of the posts and had to seek psychiatric and psychological help to get my life back together. I still suffer from fears of dating, living a public business life and trusting others.
Yes, this is a pro se complaint. Yes, it is preempted by 47 USC 230.
Marketing/Advertising
* NebuAd is dead (1, 2). Even so, the lure of intermediaries aggregating deep data about consumers for commercial purposes will never die.
* Is Gator/Claria dead?
* The EU passed a non-binding resolution against sexual stereotypes in advertising.
* Celebrity branded merchandise run amok.
Miscellaneous
* Valleywag: "The 5 most laughable terms of service on the Net." For more laughs, see Mark Lemley’s Terms of Use paper.
* Murakowski v. University of Delaware, 2008 WL 4104087 (D. Del. Sept. 4, 2008). This reminded me a lot of the Jake Baker case from the mid-1990s.
* The Virginia Supreme Court reversed itself on the Jaynes anti-spam prosecution, and Jaynes walks. Does Virginia routinely pass unconstitutional laws?
* Becker v. Toca, 2008 WL 4443050 (E.D. La. Sept. 26, 2008). Ex-wife's alleged delivery of "Infostealer" program to grab passwords from ex-husband could violate the ECPA, SCA and CFAA.
* Interesting article on ESPN’s exclusive distribution and bundling agreements with Internet access providers.
* Silly? Horrifying? A sign of the apocalypse?
Posted by Eric at 06:17 PM | Adware/Spyware , Content Regulation , Derivative Liability , E-Commerce , Internet History , Licensing/Contracts , Marketing , Privacy/Security , Search Engines , Spam | TrackBack
October 11, 2008
September 2008 Quick Links, Part 2
By Eric Goldman
Copyrights
* In the Harry Potter fair use case, the court declared that the Lexicon encyclopedia isn't fair use.
* The judge declared a mistrial in the Jammie Thomas case.
* Designer Skin v. S&L Vitamins has reached its denouement. Previous blog coverage of the case (1, 2). In the prior ruling, the judge denied the plaintiff damages for the copyright infringement. In the final ruling, the court enjoins cutting and pasting product shots but allows the defendant to recreate the product shots. Ronald Coleman has more here and here (noting that the court says that, per MercExchange, an injunction does not automatically follow from a finding of copyright infringement).
* Wired's 5 year retrospective on the RIAA's litigation campaign against file sharing.
Social Networking Sites, Blogs and Online Publishing
* J.S. ex rel. Snyder v. Blue Mountain School Dist., 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008). Upholding student discipline for creating a fake MySpace page of principal. The school initially based the discipline on the student infringing copyright (by cutting and pasting the principal's photo) but this aspect of the case wasn't mentioned at all in the court’s reasoning.
* O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008). Two seventh graders make a video about killing their teacher, described as:
The slide show is essentially a dramatization of the murder of Mrs. [redacted]. The first slide photo states, "Mrs. [redacted] dies." Throughout the slide show there are photos of Plaintiff dressed up in a costume, depicting a woman meant to resemble Mrs. [redacted]. There is red text on each slide photo that describes the scene. One slide says, "Jelly Donut's knife: haha fat bastard. here i come!" In this same photo, the viewer can see a butcher knife lunging at Mrs. [redacted] character from the camera's point of view. The butcher knife is then laid on the fallen victim while the text reads, "hehehe. i'm a shank yoooooooooo!" At the end of the slide show, it reads, "your [sic] dead, BITCH! :D".
I think they thought it was funny, but no one else did. One of them posted the video to YouTube. It's unclear what happens to the poster, but the co-content creator was suspended and forced to transfer to another school for her eighth grade. In this case, her TRO request is denied, even if she didn't intend the video to be publicly distributed and even if the video was not a "true threat."
* Spanierman v. Hughes, 2008 WL 4224483 (D. Conn. Sept 16, 2008). Teacher who was fired for inappropriate MySpace communications with students can't sue the school.
* An encouraging update on the Lori Drew prosecution.
* Bill McGeveran on Facebook Beacon and legal liability.
* Good NYT article on the sociology of Facebook and Twitter.
* Sam Bayard on an interesting but confusing ruling from Montana on its shield law applied to anonymous online posters.
* Verdana Partners v. Giles. Online newspaper wins anti-SLAPP claim.
* Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008). A litigant's taking down a blog post and its comments is not destruction of evidence.
* Nemet Chevrolet has appealed its 230 loss. Previous blog coverage.
* Do Facebook's anti-spam policies overregulate Facebook's power users?
Posted by Eric at 07:49 AM | Content Regulation , Copyright , Derivative Liability , Internet History , Spam | TrackBack
September 20, 2008
Bloggers' Defamation Liability Not Dismissed--Saadi v. Maroun
By Eric Goldman
Saadi v. Maroun, 2008 WL 4194824 (M.D. Fla. Sept. 9, 2008). One of the complaints (doesn't everyone know that just blacking out data in a PDF doesn't prevent people from learning the info???). The opposition to the motion to dismiss. There is some evidence that this ruling is part of a broader litigation frenzy--I found 4 separate Justia pages involving these litigants in 4 different jurisdictions other than MDFla (1, 2, 3, 4).
This case reminds us that we as bloggers own our words, and we face the same type of publisher liability as other publishers.
The dispute involves members of the Lebanese-American community. For unspecified reasons (this article provides one possible explanation), the members had a falling out, and some of them allegedly posted negative comments about the plaintiff at biggestloosers.blogspot.com (now gone from the web and archive.org) and other sites. The bloggers tried to defend that the claims were opinion, not fact. The court rejects this argument, saying that "statements that Plaintiff is a mentally unstable stalker, a criminal, and that he has received gifts paid for with money stolen from the Lebanese government, as well as statements that suggest that Plaintiff falsely purports to have a law degree and has committed statutory rape" are all factual claims--especially when the blog screams "OUR STORIES ARE TRUE."
Posted by Eric at 08:54 PM | Content Regulation | TrackBack
September 09, 2008
August 2008 Quick Links, Part 2
By Eric Goldman
Net Neutrality
* The FCC gets on Comcast’s case for deceptively blocking BitTorrent connections without disclosure. While I don’t know anyone who has defended Comcast’s behavior here, at the same time there is an undercurrent of concern about the FCC’s authority to regulate Internet activities. Could this be the FCC camel's nose in the Internet's tent? We will learn more about the FCC's authority because Comcast has appealed the FCC's decision.
* A topic I haven't seen discussed very much: how the doctrine of trespass to chattels intersects with net neutrality principles. The only article I found in a 60 second search on the topic was a couple of paragraphs in J. Gregory Sidak, A Consumer-Welfare Approach to Network Neutrality Regulation of the Internet, 2 J. Competition L. & Econ. 349 (2006).
Contracts
* Jacobsen v. Katzer (Fed. Cir. Aug. 13, 2008). This ruling has been hailed as a validation of open source licenses, but I’m not sure what to make of this opinion. If the opinion merely says that breach of a copyright license can support copyright infringement, that’s no big deal. However, among other conspicuous omissions, the court does not discuss how the licensor formed a contract in this case. Thus, if the court’s conclusion is that copyright owners can impose conditions on licensees’ enjoyment of their copyright without properly forming a contract, then this opinion could undo the entire scheme of online contract formation. For example, it could support a conclusion that browsewrap-style “contracts”/terms of use should be enforceable as conditions on the accessing of copyrighted web pages. See, e.g., Ticketmaster v. RMG.
* Interactive Retail Management, Inc. v. Microsoft Online, L.P., 2008 WL 3851691 (Fla. App. Ct. Aug. 20, 2008). This is a click fraud case I hadn't heard about previously. Microsoft won at the trial court on jurisdiction grounds. This court revives the lawsuit for more jurisdictional investigation.
* Jeff Neuburger on a Wisconsin case saying that the UCC governs contract formation via email instead of UETA.
* Request for your guidance. Wikipedia has some photos that simultaneously say they are released under both a Creative Commons license and the GFDL. See, e.g., this photo. The license terms are irreconcilably inconsistent. If someone wants to use such a photo, now what?
Competition Restrictions
* Edwards v. Arthur Andersen (CA Sup. Ct. Aug. 6, 2008). The Ninth Circuit was wrong to create a narrow restraint exception to B&P 16600, the California statute voiding non-compete clauses.
* XPEL Technologies Corp. v. American Filter Film Distributors, 2008 WL 3540345 (W.D. Tex. Aug. 11, 2008). Rebecca on an odd case involving (once again) the DMCA anti-circumvention provisions as an anti-competition tool.
Miscellaneous
* Two interesting studies recently about people’s response to spam. Despite the animosity, a quarter of consumers have responded to cellphone spam and 30% say they have made purchases in response to spam. For more complementary statistics and my attempt to explain this seeming dichotomy, see here.
* The First Circuit issued an interesting DMCA 1201 case that I haven’t seen discussed. The BNA summary: “District court properly granted summary judgment to plaintiff cable television service provider on claim that defendants violated Digital Millennium Copyright Act by selling low-frequency signal filters, within plaintiff's service area, that were capable of bypassing plaintiff's pay-per-view billing mechanism, since plaintiff's pay-per-view delivery and billing system is technological measure that effectively controls access to copyrighted works, and digital cable filter allows subscribers to "avoid" or "bypass" that technological measure (CoxCom Inc. v. Chaffee, 1st Cir., 8/4/08)”
* AP v. Moreover settles. My initial post on the lawsuit.
* Funny YouTube video: "Here Comes Another Bubble," set to the tune of Billy Joel's "We Didn't Start the Fire"
Posted by Eric at 08:49 AM | Content Regulation , Copyright , Licensing/Contracts , Marketing , Search Engines , Spam | TrackBack
September 08, 2008
August 2008 Quick Links, Part 1
By Eric Goldman
eBay
* Mazur v. eBay Inc., 2008 WL 2951351 (N.D. Cal. July 25, 2008). See my previous blog post on the case. Some commentators are excited about this ruling because it rejects eBay's motion to dismiss a RICO claim.
* Missing Link, Inc. v. eBay, Inc., 2008 WL 3496865 (N.D. Cal. Aug. 12, 2008). This is a lawsuit by eBay sellers complaining that eBay didn’t immediately index their listings in its search engine and eBay raised the price on “Good Until Cancelled” listings. This is the second time the court has dismissed some claims, but even so some claims have also survived the motion to dismiss process.
* As expected, Tiffany appealed the eBay ruling. My initial post.
* Vulcan Golf, LLC v. Google Inc., 2008 WL 2959951 (N.D. Ill. July 31, 2008). The court dismisses a few claims made in the plaintiff's third amended complaint. My post on the initial complaint.
* JIT Packaging v. Google (E.D. Ill. complaint filed Aug. 11, 2008) A third lawsuit against Google over the placement of AdWords ads on parked domains and other putatively undesirable pages.
* A heavily redacted version of the Google/Yahoo agreement. The SEC examiner who let the agreement go through with this many redactions was asleep at the wheel!
47 USC 230
* Bauer v. Glatzer (N.J Superior Ct. July 21, 2008). Wikimedia easily wins a lawsuit against it alleging that a Wikipedia entry was defamatory.
* Capital Corp. Merchant Banking, Inc. v. Corporate Colocation, Inc., 2008 WL 4058014 (M.D. Fla. Aug 27, 2008). 47 USC 230 defense denied against allegations that "Leonard Norwich posted defamatory statements about [the plaintiff] on three websites and Francesca Norwich allowed Leonard to use “a computer registered in her name” to make the defamatory statements." The denial makes sense for Leonard but seems clearly erroneous with respect to Francesca.
* Vanginderen v. Cornell (S.D. Cal. June 3, 2008). CMLP page. This isn't specifically a 230 case but it's still relevant. Interesting lawsuit against Cornell and related entities for electronically posting a school newspaper story from 1983 that was allegedly defamatory. The court dismisses the lawsuit on an anti-SLAPP motion.
Blogging
* A Las Vegas nightclub loses its cool and sues a blogger for, among other things, including its logo in the blog post.
* As part of the fallout from the Troll Tracker blog, Dennis Crouch, of PatentlyO fame, has received a subpoena for communications related to his blog. Dennis' comments and LegalWatch. In a related lawsuit, Frenkel (a/k/a Mr. Troll Tracker) was dismissed from a lawsuit again. Ward v. Cisco Systems, Inc., 2008 WL 4079286 (W.D. Ark. Aug 28, 2008)
Content Restrictions
* Kings English, Inc. v. Shurtleff, 2008 WL 3285898 (D. Utah Aug. 8, 2008). The judge denied the plaintiffs’ motion to reconsider its highly unfavorable prior ruling. My initial post on the lawsuit.
* Reisinger v. Perez (E.D. Wis. complaint filed Aug. 18, 2008), First amendment lawsuit against the City of Sheboygan for intimidating a woman into removing a website link to the city's police department.
* National Federation for the Blind v. Target has settled, with Target paying $6M and redesigning its site.
Posted by Eric at 09:47 PM | Content Regulation , Derivative Liability , Licensing/Contracts , Search Engines , Trademark | TrackBack
August 15, 2008
Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
By Eric Goldman
Draker v. Schreiber, 2008 WL 3457023 (Tex. App. Ct. Aug. 13, 2008). The majority opinion. The concurrence.
John O. and I have previously blogged about teenagers creating fake web pages targeting someone at their school. See, e.g., 1, 2, 3, 4. I must confess to having an odd fascination with these cases because if I were 13 years old in 2005 or 2006, I probably would have done something similar and mistakenly thought it was both knee-slappingly funny and satisfyingly vindictive.
But it's no laughing matter when these pages lead to lawsuits, and that seems to be happening all too frequently. The more typical fact pattern is that the student sues the school for unwarranted discipline meted out in response to a fake MySpace page. In contrast, today's lawsuit is unusual because the vice-principal Draker, in addition to disciplining the students and turning them over to the cops, took her case to court to demand accountability and cash from the students and their parents.
It doesn't look like she is going to get either. The district court dismissed her claims for defamation and intentional infliction of emotional distress, and in the latest ruling, the appellate court upholds the dismissal. The trial court dismissed the defamation claims apparently on the basis that the MySpace page's over-the-top statements were not objectively verifiable facts, and Draker did not appeal that ruling. The intentional infliction of emotional distress claim was dismissed because under TX law the cause of action is a gap-filler, and there was no gap given that the defamation doctrine putatively governs these facts. To me, this seems a little odd--the court simultaneously says that defamation doesn't apply, but there's no gap left to be filled--but the court explicitly acknowledged this seeming inconsistency and was unanimous about it. Case dismissed.
As a parting shot, however, one of the judges issued a stinging concurrence, blasting the students for "outrageous" conduct and admonishing that the "school children of this state should know that appropriating the identity of a teacher or school administrator to create a fraudulent internet social profile is unacceptable, and that engaging in such conduct will have consequences." I'm sympathetic to her concerns, and I'd love to get in the face of some of these teens and shout "WHAT ARE YOU THINKING?" At the same time, I think the seemingly overwhelming prevalence of teen-authored fake anti-authority MySpace pages raises some complex questions about the allocation of responsibility among teenagers, their parents, MySpace, the targets of the criticism, and readers of Internet content. Except in the most extreme cases, I find it hard to believe that the best resolution involves principals, teachers or other school administrators dragging their students (and their parents) down to the courthouse.
Posted by Eric at 10:34 AM | Content Regulation | TrackBack
August 07, 2008
July 2008 Quick Links, Part II (Non-IP Edition)
By Eric Goldman
Search Engines
* Google explains all of the ways that it reinterprets the actual search query provided by a consumer to deliver results for words the searcher didn't use. As I've said before, Google's intermediation makes it impossible for a judge to assume that a defendant's website was ranked based on the search terms selected by the searcher.
* In the vein of In re Yahoo, Google was hit with two class action lawsuits alleging that Google failed to disclose that AdWords ads were going to be placed on undesirable pages liked parked pages. See Levitte v. Google (complaint and Justia page) and RK West v. Google (complaint and Justia page).
* Google was denied attorneys fees in the long-running Parker v. Google case. Parker v. Google, Inc., 2008 WL 2600299 (E.D. Pa. June 30, 2008).
Wikipedia
* Defamation lawsuit against Wikimedia tossed per 230. I've been waiting for the actual ruling to do a complete writeup. If you see it, please pass it along.
* NYT: "Wikipedia Tries Approval System to Reduce Vandalism on Pages." Surprised?
Trespass to Chattels
* In the latest development in Oracle v. SAP/TomorrowNow, SAP has shut down TomorrowNow, the subsidiary that prompted the lawsuit from Oracle. The Second Amended Complaint expands the finger-pointing at SAP for supervising its subsidiary. Still unresolved: the size of SAP's check to Oracle, and possible jailtime for TomorrowNow folk.
* Thomas O'Toole: Illinois adds anti-scraping provision to its attorney discipline website to block Avvo's crawlers.
Marketing
* 50 Cent is back in court on another questionable legal theory (see our first deconstruction of his litigation tactics). This time, Taco Bell tried a quasi-ambush marketing stunt to get something for free that he thinks they should have paid for.
* Rebecca on the latest ruling in NetQuote v. Byrd, the "lead fraud" case. Also, the ruling has some interesting discussion about whether a competitor who clicks on a competitor's ads in AdSense is guilty of a tort of "click fraud." The court says not in this case.
* TRUSTe is converting from a non-profit to a for-profit company.
Porn
* ACLU v. Mukasey (I've lost track of the number of AGs who have been the named defendant in this lawsuit). The Third Circuit struck down COPA for the third time.
* PC Magazine: RIP Usenet, killed by the New York AG office's campaign against child porn traded on USENET.
Miscellaneous
* A bizarre article on "Internet trolling" in NYT Magazine. With its rambling and scattered discussion, I have no idea what the author defines as trolling. However, the article did bring to mind a much better 1994 article from Wired, The War Between alt.tasteless and rec.pets.cats.
* Steinbuch v. Cutler, 2008 WL 2622853 (E.D. Ark. July 1, 2008). The court denied a motion to transfer the long-running case to DC.
* If a caffeine-addicted blogger goes off about your business, it's risky to fight back.
* Mike Masnick: Keeping The Benevolent Dictators of Silicon Valley Honest
* Wed, Aug. 13, 1-2 Eastern time, David Donoghue, Evan Brown and I will be doing an ALI-ABA teleseminar about the latest developments in 47 USC 230. Details. Mention coupon code TSPV02EG and save $30.
Posted by Eric at 06:57 AM | Content Regulation , Internet History , Marketing , Search Engines | TrackBack
July 11, 2008
The Sex Tape Problem...and a Possible Legislative Solution?
By Eric Goldman
An inescapable fact of the digital era is that people will be depicted in digitized sex videos ("sex tapes") that they wish did not exist. Sex tapes can be classified into a variety of types:
* sex tapes of non-consensual sex. The taping may exacerbate the harm to the victim, but the non-consensual sex is already criminal--and the sex tape could provide valuable evidence to the prosecution to help convict the criminal. The consent issue gets trickier when dealing with underage participants who are legally incapable of consenting to sex, such as two underage teens who might jointly decide to tape their sexual encounter.
* sex tapes of consensual sex where one of the parties didn't consent to the taping.
* sex tapes where both the sex and the taping were fully consensual, but one of the parties exceeds the scope of consent about subsequent use or disclosure. Ex 1: sex partner keeps and watches sex tape after breakup in contravention of other party's wishes. Ex 2: sex partner distributes the tape to third parties who the other party didn't contemplate would see the video. In the most egregious case, the sex partner publicly distributes the tape via the Internet when the other party intended the video to remain private.
* sex tapes where the sex, taping, and further use or distribution are fully consensual among all depicted parties. I believe this describes some of the publicity hounds that deliberately leak sex tapes as a type of marketing for the depicted individual(s) (unfortunately, another seemingly inescapable fact of our lives), even if the depicted individual lightly protests about the distribution to increase the scandal factor. These don't raise a lot of interesting legal issues.
Public distributions of sex tapes are surprisingly common. Check out the long list of celebrity sex tapes at Wikipedia. A Westlaw search for the term "sex tape" in all state/federal cases yields 29 lawsuits reported in Westlaw (I'm sure there are synonyms that would reveal more litigation that has made it into Westlaw, and of course Westlaw covers only a small fraction of the cases).
From a legal standpoint, it's easy to offer some proactive suggestions for people creating a sex tape. One, don't make a sex tape unless you can fully control it technologically (or you don't mind if the tape becomes the most-downloaded video on the Internet). Of course, perfect technological control over digital bits may be impossible nowadays; for example, some of the celebrity sex tapes were allegedly leaked by computer repair personnel. Two, if you make a sex tape and don't fully control it technologically, clearly delineate with the other party/parties the disposition of the sex tape in various circumstances, such as breakup. From a lawyer's standpoint, a written contract would be nice.
(This last paragraph demonstrates a third immutable truth that I'm not oblivious to: proactive guidance about the production, control or distribution of sex tapes from a law professor is not that useful. But I digress...).
Unfortunately, once lawyers are brought in to deal with the non-consensual creation, use or distribution of a sex tape, they may not be able to do much to help the non-consenting party. Simply put, existing law provides poor controls for a non-consenting party. There is a long list of torts and crimes that MIGHT provide some control to the non-consenting party depending on the precise facts of the specific situation, including privacy rights (such as public disclosure of private facts), anti-child porn laws, obscenity, ECPA/wiretapping, copyright infringement, breach of contract, intentional infliction of emotional distress, cyberbullying or cyber-harassment and extortion (if the tape possessor makes a "do X or the tape goes up on YouPorn" type threat).
At the same, depending on the precise facts, it is also possible that the non-consenting party could have no effective recourse against a non-consensual public distribution of a sex tape. First, the laws simply may not fit the facts. Second, even if they do, some of the legal doctrines (such as privacy rights violations) are so "squishy" that they can be hard to enforce, and any criminal prosecution requires a prosecutor to actually take the case. Third, and most problematically, a sex tape posted online might quickly be reposted on multiple servers, including some overseas, exponentially increasing the costs, and substantially decreasing the likelihood, of successfully purging the tape from public view.
Meanwhile, the harm to the non-consenting party can be substantial. The sex tape be profoundly embarrassing to the party (even if the person didn't actually do anything "embarrassing"). The sex tape might provide forensic evidence of illicit adultery/cheating, and that could irreparably change social relationships. Finally, the tape can change the way people perceive the person. For example, a person may have economic or social prospects predicated on a wholesome image, such as beauty pageant contestants, in which case the tape can undermine that image and destroy economic prospects or social relationships.
I was recently discussing this issue with a colleague over lunch and we started kicking around the idea that maybe the sex tape problem would benefit from legislative intervention. Yes, in this limited circumstance for this specific problem, even I am willing to acknowledge that a new law might be worth considering. Our discussion covered two interrelated ideas:
1) It should be impermissible for someone to distribute a sex tape online without all depicted individuals having consented to the distribution. (We could easily extend that to offline distributions as well, but I'm just focusing on the problems of Internet publication now).
2) Intermediary online publishers should be subject to a DMCA-style notice-and-takedown scheme where a non-consenting party can provide suitably rigorous notice that the tape was distributed without his/her consent, in which case the intermediary has some time post-notification to remove the tape before facing further consequences. The notice-and-takedown scheme should also provide the poster with a counter-notification process that shifts the legal liability back to the poster and off the intermediary. Obviously, this requirement would need to override 47 USC 230. However, the notice-and-takedown scheme is essential to give the non-consenting party some effective recourse against the quick proliferation of a video to multiple sites.
I know these suggestion aren't perfect. Some of the obvious deficiencies:
* the definition of a sex tape. It's easy to define the paradigmatic situation, but there are a lot of edge cases that might be hard to resolve in a statutory definition.
* defining consent. Would written consent be required? If oral consent is enough, doesn't that open the door to lots of irresolute and time-consuming he-said/she-said factual disputes?
* the level of validation required for the takedown notice. We could just allow a person to claim identity and lack of consent, or we could require the person to go through some hoops before their takedown notice is effective.
* Constitutional considerations. Personally, I don't think these are especially problematic here, but they are always a consideration when regulating sexual material.
Finally, the most obvious problem is that this would proliferate yet another limited privacy law as a point solution to a specific problem instead of providing a more comprehensive omnibus privacy regulatory scheme preferred by privacy advocates. This would definitely be true, but the limited nature of the regulation and the remedies is a part of why this proposal appeals to me. If we are dealing only with sex tapes, and only requiring consent of the depicted individuals, the risks of plaintiff litigation frenzies, takedown spam and collateral content censorship goes way down, but still a particularly pernicious problem becomes much easier to solve.
So, what do you think? Comments are still down, but feel free to leave a trackback or email me and let me know if I can append your comment to this post.
COMMENTS:
From Colette (7/11):
I would advocate that the new law not only apply to on-line. The sort of law should cover dissemination of sex tapes (however defined) in any format (though the on-line medium is of course much worse because of the viral distribution options).
To the list of possible claims, in some circumstances you might have a defamation claim (e.g. if the sex tape editor/poster refers to the person depicted in the tape as a "porn star", but the person is not).
For the "getting/proving consent" (or perhaps the opposite: expressly stating non-consent) problem, the participants may fairly easily put their consent on the video itself. For most of the cases, that may work in place of a paper agreement re: consent. (One obvious problem of putting the consent on the tape itself, is make sure both (or all) parties have a copy of the tape, including the part of the tape that deals with the consent issue. In the real world, I can imagine that the party who is harmed may not keep a copy of the tape (it's old, from a long time ago, lost in moves, deliberately thrown out because s/he wants to put the incidence behind them). The other party who has it, could easily discard/delete the part of the tape where the "non-consent" is stated. Even if the harmed party expressly stated on the tape that s/he does not consent to distribution, that party would have no proof. Ahhh. This is why we lawyers wold prefer a written agreement. Much easier to track that down if it exists!
[Eric's response: I love it! From a legal perspective, it would be better if before the parties got frisky, they both looked into the camera and expressed their consent. Maybe something like "I consent to this video being posted to the web. Now, show me your &^%$!" Then again, this type of videoed consent to being videoed was instrumental in squelching Ashley Dupre's lawsuit against Girls Gone Wild.]
Posted by Eric at 10:38 AM | Content Regulation , Publicity/Privacy Rights | TrackBack
July 01, 2008
June 2008 Quick Links
By Eric Goldman
Trademarks/Domain Names
* Utah Lighthouse Ministry v. Foundation for Apologetic Information and Research, 2008 WL 22043807 (10th Cir. May 29, 2008). CMLP writeup. Nice 10th Circuit win for a gripe site against trademark infringement and cybersquatting. This case, plus the SKI VAIL case, indicate that the 10th circuit is making progress undoing the harm it created in the Australian Gold v. Hatfield case.
* Georgia has a new anti-phishing law (16-9-109.1) that acts as a para-trademark law. See my comments on the analogous California anti-phishing law.
* After initiating a trademark lawsuit against a consumer review site and soundly losing in court, Lifestyle Lift paid $17,500 to settle its own lawsuit and avoid claims for legal fees under Rule 11 and the Lanham Act.
* Marty reports on a German case saying that white-text-on-a-white-background is a trademark use.
* Update on the battle over the trademark registration for "SEO."
* Will TLD proliferation lead to a new open era in domain name administration, or will the resulting anarchy just reinforce that top search engine placement is the really important online real estate? It seems like the currently limited number of TLDs has some benefits from a bounded rationality standpoint, and those benefits will be lost in a cacophony of unknown TLDs.
Patents
* My colleague Colleen Chien has posted "Patently Protectionist? An Empirical Analysis of Patent Cases at the International Trade Commission" (forthcoming William & Mary Law Review). She empirically demonstrates that the ITC mostly involves disputes between two domestic litigants, making it a redundant battleground with federal district court but nevertheless an attractive venue for plaintiffs due to a number of procedural advantages. She makes a number of recommendations to eliminate the litigation gamesmanship offered by having parallel venues. Check it out.
Search Engines
* Udi Manber, chief algorithm keeper for Google, reiterates why it's silly for lawyers and judges to put too much legal emphasis on the relative placement of search engine results, saying "it's definitely the case that if you do the same search on a different cluster, you may get slightly different results at a given time. It's also the case that if you do the same search on different days you may get different results, because some of the results are things we indexed five minutes ago."
(Over)Regulation
* In response to an enforcement effort by the NY AG's office, several Internet access providers have blocked access to newsgroups that are putatively sources of child pornography. See the NYT story and the NY AG press release. In practice, this means wholesale takedowns of newsgroups that may have nothing to do with child porn. For example, Verizon is killing all USENET hierarchies except comp.*, misc.*, news.*, rec.*, sci.*, soc.*, and talk.*. Wired suggests this is the death of online intermediary freedom as conceptualized in 47 USC 230. Of course, 230 never protected intermediaries from criminal exposure for child porn, and this isn't the first time that an access provider has knuckled under to the NY AG's office. See the BuffNet enforcement action from 2001.
* Ohm, Paul. The myth of the superuser: fear, risk, and harm online. 41 UC Davis L. Rev. 1327-1402 (2008). A neat article on how regulators manufacture a fake bogeyman, the unbeatable "superuser," as a justification for expansive regulatory power.
* No evidence that data breach disclosure laws actually help reduce identity theft. Surprised?
* The FTC wants civil enforcement authority for spyware actions. Haven't they heard that the adware battle is already over...and they won?
Contracts
* Mark Radcliffe expresses concern about the ALI's proposed software licensing project on open source licenses.
* Sarah Bird on a messy contract lawsuit involving an SEO contractor.
Anonymity
* Tendler v. www.jewishsurvivors.blogspot.com, 2008 WL 2352497 (Cal. App. Ct. June 10, 2008). A subpoena request to identify a blogger doesn't support an anti-SLAPP cause of action.
* In the AutoAdmit lawsuit, Doe 21's motions to squash the subpoena and proceed anonymously were both denied. David Hoffman provides an update on the case.
Event Tickets
* Chicago has moved against eBay for reselling tickets in violation of its amusement tax law.
* The Ticketmaster v. RMG case ended with a default judgment granting a permanent injunction and $18.2M in damages.
General
* Vanity Fair: How the Web Was Won.
* Paul Levy blogs about a plaintiff's effort to bypass 230 by suing the authors of complaints about the vendor and then joining the consumer complaint site as a necessary party as a cost-increasing tactic.
* BusinessWeek on emerging technological tools to protect workers' attention against unwanted/untimely interruptions.
* Text message-savvy kids educate the North Carolina DMV about the meaning of the term "WTF," which was used on a license plate example on the DMV's website.
* I have one free pass to OMMA Behavioral in San Francisco July 21. First person to send me an email asking for the pass gets it.
Posted by Eric at 12:32 PM | Adware/Spyware , Content Regulation , Derivative Liability , Domain Names , E-Commerce , Internet History , Licensing/Contracts , Marketing , Patents , Privacy/Security , Search Engines , Trademark | TrackBack
June 03, 2008
May 2008 Quick Links, Part 2
By Eric Goldman
Copyright
* Google says it isn't settling the Viacom lawsuit (I don't believe it).
* Interesting juxtaposition: (1) Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates and (2) BusinessWeek ran a lengthy retrospective on Tanya Andersen's battle against the RIAA, including her beefs against the RIAA’s investigation and enforcement tactics.
* A music warez trader was convicted by a jury of criminal copyright infringement.
Online Contracts
* Juanda Lowder Daniel. Virtually mature: examining the policy of minors' incapacity to contract through the cyberscope. 43 Gonz. L. Rev. 239-269 (2007/08). This article addresses the very important issue of contracting capacity of minors. See my most recent post on that topic.
* Adelman v. Sparks Network (Cal. App. Ct. May 20, 2008). The Jdate online dating service allegedly failed to include required language (such as notice of a mandatory cooling-off period) in its user agreement. The court dismisses the plaintiff's lawsuit nonetheless because he was a happy customer who didn't suffer any damage.
* Tom O'Toole surveys some recent online contract cases. He offers the following conclusions: (1) Contract Terms Should Be Available for Review, (2) Clickable Buttons/Links Should Clearly Signal Assent, and (3) Humans Are Not Helpful.
* I realize this point would be better explored in a full blog post, and I suspect this point has been made in the academic literature (if so, I'd appreciate some cites so I can pass them along). The issue: how might the endowment effect explain consumer antipathy towards EULAs? Wikipedia says the endowment effect means that "people value a good or service more once their property right to it has been established." This observation occurred to me when I attended a ridiculously stacked panel at the ION Game Conference on "user rights" in virtual worlds. Many of the gripes/grumbles related to very common EULA provisions that simply overrode default law. It occurred to me that maybe part of the problem was that consumers assume the defaults are appropriate rights allocations granting them the "property" right, in which case they suffer a greater psychological loss when those defaults are varied than if different defaults were set. One obvious policy consequence: as part of the considerations when setting defaults, policy makers should include the psychological costs of varying the defaults. If the interaction between EULAs and the endowment effect hasn't been written about, it would make an excellent paper topic.
Other Topics
* A military court has said that distributing a hyperlink to child porn does not constitute criminal distribution of child porn. Tom O'Toole explains the situation.
* A.B. v. State, 2008 WL 2031388 (Ind. May 13, 2008). It seems like the digital age recipe for guaranteed trouble: 8th grader + hatred towards a school principal + MySpace. How many judicial cases are we going to see with this combination? This one involves some mean-spirited and profanity-laced comments about her principal made by a 14 year old girl on a private MySpace page accessible only by 26 students. The principal saw it only because one of the students gave a printout to the principal. The court concludes that posting to a private MySpace page doesn't satisfy the criminal standards of "intent to harass, annoy, or alarm" via the Internet.
* Doe v. Friendfinder Network, Inc., 2008 WL 2001745 (D.N.H. May 8, 2008). The court denied the plaintiff's motion for reconsideration on Friendfinder's 230 eligibility for the statement "Sorry, this member has removed his/her profile."
* Another "where are they now?" retrospective on dot com boom companies, ironically running in the Industry Standard (which wiped out in the dot com bust itself).
Posted by Eric at 11:56 AM | Content Regulation , Copyright , Derivative Liability , Internet History , Licensing/Contracts , Privacy/Security , Virtual Worlds | TrackBack
May 23, 2008
Lori Drew Prosecuted for CFAA Violations--Some Comments, and a Practice Pointer
By Eric Goldman
Before I get started, let me first say that my heart goes out to Megan Meier's family. They have suffered a devastating tragedy, and I cannot possibly fathom the pain they must feel. As a result, I feel a little awkward blogging on the situation because I fear my words could be misinterpreted as some sign of disrespect or lack of empathy towards the family. I definitely don't intend that.
I have also passed on blogging about Megan Meier's suicide because, until recently, I didn’t think it raised a real cyberspace issue. Assuming the publicized facts are true, MySpace played a crucial role in mediating the communications between Drew and Meier, but Drew's ruse could have been perpetrated using a variety of communication media. Indeed, for millennia (and well before the Internet), people have been sending false messages to each other as part of some manipulative effort (Les Liaisons Dangereuses comes to mind, but we could find countless other examples). The fact that Drew chose MySpace for her scheme has always struck me as uninteresting at best. I recognize that perhaps MySpace made it easier for Drew to pull off her ruse, and perhaps Meier attached more credibility to MySpace messages than she would have attached to messages delivered in other media. But given that people can do serious harm to other people using many different types of communications media, I think it's a mistake to treat this tragedy as a source of profound insight into the nature of cyberbullying or the evils of cyberspace.
Despite this, we know that a high-profile situation like this will spur overreactions. Of most interest for this blog post is last week's federal indictment of Lori Drew for crimes predicated (at their core) on violations of the Computer Fraud and Abuse Act (CFAA). See the indictment. The CFAA violation putatively occurred because MySpace's user agreement required users to:
* provide accurate registration information
* not use information obtained from MySpace to harass or abuse others
* not solicit information from kids
* not promote false/misleading information
* not promote abusive or threatening conduct
* not post photos of third parties without their consent
Allegedly, Lori Drew breached the user agreement by failing to follow these provisions; and by breaching the user agreement, she made an unauthorized criminal use of MySpace's servers.
In the civil context, plaintiffs frequently use the CFAA to attack a defendant's server usage in violation of a site's user agreement. However, as far as I (and Orin) know, this is the first time the DOJ has tried to treat a user's breach of a site's user agreement as a CFAA crime. Not only is this theory potentially unsupported by the law (see, e.g., Orin Kerr and Dan Solove), but it puts almost all of us at risk of federal prosecution (see, e.g., Wired and the AP). Implicitly, the DOJ is saying that breaching a user agreement to provide false registration to a website or post a third party's photo without permission can be a federal crime. If you have never done any of these activities, please email me so I can send you some angel wings. For the rest of us, the DOJ seems to think that we should avoid the Big House only out of their sheer grace.
Also, though Drew's actions may have been heinous, her alleged breaches of the MySpace user agreement were, to be as charitable as possible, chickenscratch. Most websites like MySpace include contractual restrictions like the ones at issue simply to preserve their ability to kick off troublesome users at their discretion--not to put every non-conforming user at risk of looking down the barrel of an FBI agent's .45.
As a result, the DOJ prosecutors appear to be trying to make the MySpace user agreement do more work than it was designed to do. In that respect, I see this case as part of a broader trend where government enforcement agencies are misreading and misusing website user agreements. Consider two other very recent examples of government folks attaching undue emphasis to restrictions in website user agreements:
* the New Jersey Attorney General's office apparently misread restrictions in JuicyCampus' user agreement to think they should constitute affirmative marketing representations
* Joe Lieberman thinks YouTube should wipe terrorist videos off its site because its community guidelines discourage users from posting violent videos
This disturbing trend prompts me to offer a practice pointer to those of you who draft user agreements. Many user agreements—including MySpace’s—have gotten bloated with lengthy lists of restrictive rules (a manifestation of the rule proliferation phenomenon I blogged about here). It's pretty clear to me that government enforcement actors, either because of their fundamental misunderstanding of contract law or for their own self-aggrandizement, will treat these restrictions as expectations that the conduct won't occur on the site. But because most websites don't proactively enforce the restrictions they announce, this sets up a mismatch between rules and actual behavior—a mismatch that enforcers appear all too happy to exploit.
Therefore, I think it is better practice for contract-drafters to rely more heavily on general restrictive clauses in website user agreement (e.g., "we can kick you off at our convenience") than on overly detailed/specific but underenforced lists of restrictions. I know this stance runs contrary to the prevailing sentiment among most Cyberlawyers, who seem to believe that for every bad user behavior, it's easy enough to add a new contract prohibition that putatively eliminates the problem. But if the contracts are being misread, rule proliferation may be doing more long-term harm than good.
Posted by Eric at 05:49 PM | Content Regulation , Licensing/Contracts , Privacy/Security | TrackBack
May 19, 2008
Content Generation and the Law
By Eric Goldman
Last week I participated on a panel at the ION Game Conference in Seattle to discuss UGC in virtual worlds and online games. You can see a reasonably faithful transcript of the discussion here. Here's a recap of the main points I made:
The Interface Between Content Generation and the Law: Game providers should think about how to generate both more UGC and the right kind of UGC. There are three main sources of law governing the UGC content generation choices:
* the site's EULA. Most EULAs give providers maximum flexibility to manage UGC as they see fit, but if I were researching the issue, I'd start with the EULA to see how the provider may have restricted itself.
* 47 USC 230. Many people operate under the outdated myth that a site must choose to be either a publisher or a passive conduit. Fortunately, the law facilitates heterogeneous approaches to UGC. Per 230, a VW isn't liable for third party content with limited exceptions. Ownership doesn't matter; editing doesn't matter, prescreening/policing doesn't matter. Most VW providers remain unaware of 230's power and import. Due to 230, providers have the choice of various UGC generation strategies, all of which have the same legal treatment.
* 17 USC 512. 512 doesn't go as far as 230 at enabling different content generation approaches, but it still provides some insulation from liability for user-caused copyright infringement.
In addition to these sources, many sites develop their own adjudicatory systems, including ways for users to report problems with other users, expedited takedown procedures (such as VeRO), and customer support representatives (CSRs) as private adjudicators.
How to Increase UGC: Obviously, users can be motivated through incentives/disincentives (carrots and sticks). For example, at Epinions, we used both cash and credit. There is also value in supporting and empowering a site's meta-community (the offsite interaction of power users).
Working with Power Users. I'm often amazed at just how much work users will do for a site for free if you just ask them/empower them. However, in asking users to do more work, sites should be cognizant of the amorphous boundary between independent contractors and employees. Recall the class action lawsuits against AOL and About.com over their volunteer labor force.
Site Responses to UGC Problems: I talked about the problem of "rule proliferation": in response to a new test case involving user behavior, a site often promulgates a new restrictive rule. This may happen infrequently, but even if it happens only 1X/week, that adds up to 50+ new rules/year. The collective effect is a burgeoning body of code and common law that eventually becomes unwieldy and unmanageable. To avoid this code creep, sites should promulgate new common law reluctantly.
What Works with UGC/What Doesn't: Sites should try to address two partially contradictory forces. Most users want to do the right thing, so sites should make it easy for them to do so. At the same time, sites need to build systems that are robust enough to squash the inevitable vandals and bad actors.
If you want a little more on the topic of this panel, I also did an interview for ION's pre-conference newsletter.
Posted by Eric at 12:01 PM | Content Regulation , Copyright , Derivative Liability , Virtual Worlds | TrackBack
May 07, 2008
April 2008 Quick Links
By Eric Goldman
Anti-Gaming
* Even though Ticketmaster won its lawsuit, Minnesota overreacted to the Hannah Montana ticket crush by banning software to circumvent an online ticket allocation process. See Sec. 609.806. Check out the hyperbole in this press release! What's next? Are legislators going to make SEO a crime?
* Google modified its relevancy algorithm 450 times in 2007. And yet courts still cite to Brookfield for how search engines operate!
* The UK cracks down on shill marketing online. ClickZ: "Under the new [UK] Consumer Protection from Unfair Trading regulations, it will be illegal to "Falsely claim or create the impression that the trader is not acting for purposes relating to his/her trade, business, craft or profession," or to "falsely represent oneself as a consumer."" See also AdAge.
IP
* Speaking of SEO....the latest pathetic attempt to grab a generic term and trademark it? "SEO." Sarah Bird is on the job.
* Do student notes of a professor's lecture constitute copyright infringement? We may find out.
* Atlantic v. Howell. More on the "making available" theory of copyright infringement.
* Sarah Bird on registering copyrights in websites and blogs.
* A for-profit T-shirt listing the names of deceased Iraq soldiers sparks a publicity rights lawsuit.
General
* Bowen v. YouTube, Inc., 2008 WL 1757578 (W.D. Wash. April 15, 2008). The court upheld the forum selection clause in YouTube's user agreement.
* eBay is ending its promotion of third party live auctions. Maybe because of this loss?
* Rebecca blogs on SuccessFactors, Inc. v. Softscape, Inc., 2008 WL 906420 (N.D. Cal.), an odd case involving the Computer Fraud & Abuse Act and an "attack PowerPoint" allegedly sent by a competitor to its prospective customers.
* Kate Kaye writes about the new Internet industry lobby group, the "State Privacy and Security Coalition," designed to fight laws like the Utah Trademark Protection Act.
* Kevin Werbach, The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart, UC Davis Law Review, Forthcoming. An interesting paper applying "network formation" theory to show how the Internet came together as a unified network and how those unifying forces are under constant stress.
Posted by Eric at 08:52 PM | Content Regulation , Copyright , Internet History , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
April 22, 2008
March 2008 Quick Links, Part II
By Eric Goldman
Copyright
* A lot of action on whether “making available” a file in a P2P share directory is copyright infringement, including Elektra v. Barker and London-Sire v. Doe. Patry summarizes the action.
* Ticketmaster L.L.C. v. RMG Technologies, Inc., 2008 WL 649788 (C.D. Cal. March 10, 2008). Copyright misuse is not an independent cause of action; it's only a defense. HT Evan Brown.
* A student asked me a good Q that I couldn't answer. Given that copyright work transfers are subject to the risk of a non-waivable termination of transfer 35-40 years after the transfer, how do companies account for that risk on their financial statements?
* A man whose Youtube video was taken down by lawyers for Van Morrison strikes back with a new video: "The Lawyers Pulled My Video Down."
Trademark
* The Utah governor signed SB 151, the repeal of the Utah Trademark Protection Act.
* Wilson v. Yahoo! UK Ltd., No. 1HC 710/07, Feb. 20, 2008. A UK court says that buying the broad-matched keyword "spicy" does not constitute an actionable use in commerce of the trademark "Mr. Spicy." In response, Google liberalized its keyword policy in the UK and Ireland to match its US and Canada policy.
* Vulcan Golf, LLC v. Google Inc., 2008 WL 818346 (N.D. Ill. March 20, 2008). This is another interesting development that I just didn't have time to blog (see my earlier post when the lawsuit was filed). In a lengthy opinion, the district court rejected most of the significant motions to dismiss, saying that she wanted to let the case develop. Ironically, she also complained about the workload in the case--perhaps this is obvious, but granting some motions to dismiss would help clear your docket queue! Unfortunately, most of the opinion isn't insightful because so many issues were reserved for further development. Perhaps the most interesting discussion relates to the "use in commerce" question, and the court rejected a motion to dismiss on that basis: "The plaintiffs have alleged that Sedo and the other Parking Defendants transacted in and improperly profited from domain names that are deceptively similar to the plaintiffs' trademarks. Such statements sufficiently allege the "use" of a domain name to allow the infringement claims against Sedo and Oversee to move forward on this issue." Some other commentary on the case: Sarah Bird and David Fish.
* American Airlines loves Google (except for the part where it's suing Google). HT Search Engine Land.
State Regulation of the Internet
* Some state legislators are becoming privacy entrepreneurs about behavioral targeting. Venkat does a recap. But Zachary Rodgers points out that some of the operative provisions track NAI's self-regulatory guidelines. More angst about deep packet inspection by IAPs.
* Ewert v. eBay, Inc., 5:07-cv-02198-RMW (N.D. Cal. March 31, 2008). eBay isn't an "auctioneer" or an "auction company" as defined by California's Auction Act.
* The Tennessee legislature is considering a goofy response to the Hannah Montana ticket furor.
* Ken Magill at Direct wrote an article entitled "Psychotic Law Clowns in Utah at it Again." A highlight: "Whenever I think of Utah's state legislature, I envision a room full of Jack-in-the-Boxes straight out of a never-made Twilight Zone episode. Every fall, when it's time for the next legislative session, their cranks begin to turn, a chorus of "Pop Goes the Weasel" begins, and on the note for "pop" the lids fly open and dozens of psychotic clown heads spring out of the boxes chanting: "New Internet Law! New Internet Law!""
Other Stuff
* The Economist: The Battle for Wikipedia's Soul. "To create a new article on Wikipedia and be sure that it will survive, you need to be able to write a "deletionist-proof" entry and ensure that you have enough online backing (such as Google matches) to convince the increasingly picky Wikipedia people of its importance. This raises the threshold for writing articles so high that very few people actually do it. Many who are excited about contributing to the site end up on the "Missing Wikipedians" page: a constantly updated list of those who have decided to stop contributing. It serves as a reminder that frustration at having work removed prompts many people to abandon the project." See a similar article in the NY Times Review of Books.
* FTC busts Goal Financial for inadequate security practices.
* The DOJ is busting people who click on a link that purportedly offered child porn, prosecuting them for attempted downloading of child porn.
* Orin Kerr, "Criminal Law in Virtual Worlds," University of Chicago Legal Forum (forthcoming). Orin sensibly argues against virtual world exceptionalism with respect to criminalizing activities in virtual worlds.
Posted by Eric at 10:09 AM | Content Regulation , Copyright , Domain Names , Marketing , Privacy/Security , Trademark , Virtual Worlds | TrackBack
April 02, 2008
School District Didn't Violate First Amendment for Reassigning Teacher Who Blogged--Richerson v. Beckon
By Eric Goldman
Richerson v. Beckon, 2008 WL 833076 (W.D. Wash. March 27, 2008)
A school district appointed Richerson to a position with split responsibilities as a curriculum development specialist and an official mentor for other teachers. She then blogged on her personal blog (I believe this is the blog) about the person who was hired to replace her previous role:
Save us White Boy!
I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice ... and a reluctant one at that. I truly hope that I have to eat my words about this guy.... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him ... He comes across as a smug know-it-all creep. And that's probably the nicest way I can describe him.... He has a reputation of crapping on secretaries and not being able to finish tasks on his own.... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community.... Mighty White Boy looks like he's going to crash and burn.
There are a few obvious problems with this post. First, it's just not a nice post. Second, the discussions about the new hire's race and gender could be legally problematic. Finally, and most importantly, Richerson's new duties as a mentor for other teachers expressly required that she develop trusting and confidential relationships with her mentored teachers, and this post raises some questions about her ability to develop those relationships. As a result, once the school district discovered the post, Richerson was reprimanded verbally and in a memo to the file.
Subsequently, the district received a second complaint about Richerson's blog. Another teacher was chief negotiator for the teacher's union, and Richerson blogged "What I wouldn't give to draw a little Hitler mustache on the chief negotiator." I'd have to see the full post to understand the context for this statement. Taken out of context, it appears to be another not-nice statement. It also further undermines confidence that Richerson could develop the kind of rapport with other teachers to provide the mentorship support expected from her job. As a result of this statement, the district reassigned Richerson from her position and moved her back into being a classroom teacher. In response to this reassignment, Richerson sued for civil rights violations (42 USC 1983) because of the alleged curtailment of her First Amendment rights.
The court shows her little sympathy for what it describes as her "salacious mean spirited behavior":
No teacher who was aware of the attack on “White Boy” set forth above could possibly be expected to enter into a trusting, mentoring, confidential relationship with an instructional coach who had revealed the substance of a teaching position interview as did plaintiff....Not only was the blog set forth above a breach of confidentiality, it was racist, sexist, and bordered on vulgar....[The] Hitler” and “mustache” remarks far exceeded normal standards of decency and no relevance to the issue of “public concern” plaintiff suggests she was addressing....Plaintiff's inability to control her rage and/or passion at the least justifies the reassignment of her duties so as not to expose teachers wanting to improve their classroom skills to potential exposure on plaintiff's blog.
Accordingly, the court grants summary judgment for the school district, dismissing her case.
When dealing with employees who blog about their jobs on personal blogs, employers and courts need to carefully balance numerous competing interests, but I think the court reached the right result in this case. Ultimately, given the nature of the job duties Richerson was asked to perform, her blogging choices raised serious doubts about her ability to perform that job properly. I think this is a good cautionary tale for every employee who blogs about his/her work life--even if blog posts don't expressly violate the law, they can still trigger a reassessment of the employee's judgment in ways that damage the employee's job prospects.
Posted by Eric at 11:17 AM | Content Regulation | TrackBack
March 02, 2008
Feb. 2008 Quick Links
By Eric Goldman
Advertising
* BusinessWeek: Monetizing social networking sites isn't as easy as everyone had hoped, clickthrough rates are through the floor (0.04%!), and ad proliferation on the sites is driving users away.
* Wilbur, Kenneth C. and Zhu, Yi, "Click Fraud" (January 2, 2008). This paper appears to argue that search engines can increase their profits by failing to disclose the true rate of click fraud on their network.
* In re Miva, Inc. Securities Litigation, 2008 WL 450037 (M.D. Fla. Feb. 15, 2008). This lawsuit alleges that Miva and some associated individuals understated or misreported Miva’s reliance on click fraud, spyware and third party distributors in its public statements and thus inflated the company's stock price. Last year, the court dismissed many of the allegations but let a couple survive. In this ruling, the court dismisses a few more defendants from some statements and lets the rest of the case proceed.
* Going-out-of-business sales are often just another scam. (HT ContractsProf). Note this is completely consistent with economists’ theoretical predictions of final-period behavior of trademark owners.
* Google's stock has lost $70B in market cap in 7 weeks. Oh darn. Clickz offers some theories about why Google's clicks are declining. Could lower rates of click fraud be part of it?
* Hal Varian, Google's Chief Economist, argues that Google's marketplace success is solely due to its "secret sauce" (i.e., the advantage of learning by doing) rather than any defects in the marketplace.
Spam
* Jaynes v. Virginia (Va. Sup. Ct. Feb. 29, 2008). By a 4-3 vote, the Virginia Supreme Court upheld Jeremy Jaynes' 9 year sentence for violating Virginia’s spam law.
* Silverstein v. Experienced Internet.com, 2008 U.S. App. LEXIS 3364 (9th Cir. 2008). Ninth Circuit dismissed a CAN-SPAM lawsuit for lack of jurisdiction when the defendants attest that they didn't send the message and aren't local.
Domain Names
* NSI has been sued for its practice of grabbing pre-registration domain names based on WHOIS searches. The complaint. Good luck defending those practices, NSI!
* Two more breathy articles about the economics of domaining from the New York Times and Network World.
47 USC 230
* Johnson v. Barras, 2007 CA 001600 B (DC Superior Ct Feb. 1, 2008). Court dismisses a lawsuit against a website for republishing a defamatory story per 47 USC 230.
* Yet another doomed lawsuit against MySpace for facilitating communications between an adult male and an underage female that led to sex. Sam Bayard's comments.
Pornography
* NY Lawyer (login required): "Defense Bar Sees Growing Practice in Internet Sex Crimes"
* A federal obscenity prosecution for publishing graphic short stories (without pictures) on the Internet? As Tim Wu says, "astonishing."
* The Utah legislature is considering entering the marketplace again, this time through a certification mark program for Internet access providers who are willing to combat porn. See HB407. Of course, the Utah legislature has had terrific success in the past creating successful new business opportunities that the marketplace has overlooked.
User-Generated Content
* Nick Carr: "What we've seen happen with self-regulating communities, both real and virtual, is that they go through a brief initial period during which their performance improves - a kind of honeymoon period, when people are on their best behavior and rascals are quickly exposed and put to rout - but then, at some point, their performance turns downward. They begin, naturally, to decay." Like, I think, Wikipedia.
* Slate on the top-heavy nature of contributions to Wikipedia and Digg.
* Christian Science Monitor: Teachers Strike Back at Students' Online Pranks.
* Sam Bayard on a motion to quash in the AutoAdmit case.
Reputation
* eBay no longer lets sellers leave negative/neutral feedback for buyers. This putatively stops sellers from retaliating against buyers who leave legitimate complaints, but it also skews the database towards only positive reviews, which ultimately undercuts its credibility.
* In India, where courtships remain very brief by US standards and grooms can be paid dowries by the bride's families, there is an emerging trend for brides to hire "wedding detectives" to ferret out the scoop on grooms and whether their representations are correct.
* Funny article on being a secret shopper for Consumer Reports.
* Dan Solove's book, The Future of Reputation, is now available online for free. Ethan's review of the book.
Patents
* Six years later, eBay finally buys it now: eBay v. MercExchange settles with eBay buying out some of MercExchange's patents and licensing others.
* Mike Masnick: "Psst! Patent Examiners Do Not Scale"
Copyright
* Mike Masnick: “Why We Should All Want Politicians Who Plagiarize.”
* Do Not Resuscitate...My Copyrights (funny).
Miscellaneous
* Citizen Media Law Project has a useful discussion on getting insurance for cyberlaw risks.
* People v. Fernino, 2008 WL 382348 (N.Y. City Crim. Ct. Feb. 13, 2008) (woman violated a no-contact order when sending a MySpace message to the person).
* Mike Masnick: "We Need A Broadband Competition Act, Not A Net Neutrality Act"
* A retrospective on some of the leading dot-coms from the 1990s.
Posted by Eric at 05:32 PM | Content Regulation , Copyright , Derivative Liability , Domain Names , E-Commerce , Internet History , Marketing , Patents , Privacy/Security , Search Engines , Spam , Trademark | TrackBack
December 29, 2007
New Jersey Authorizes Ban of Sex Offenders' Internet Access
By Eric Goldman
New Jersey S1979 (signed December 27, 2007)
New Jersey has passed a law allowing various punishment authorities (judges, parole officers, etc.) to restrict Internet use by convicted sex offenders. The main operative restriction says that these authorities may:
Prohibit the person from accessing or using a computer or any other device with Internet capability without the prior written approval of the court except the person may use a computer or any other device with Internet capability in connection with that person’s employment or search for employment with the prior approval of the person's parole officer
Other restrictions may include unannounced inspection of their computers, devices to monitor Internet use and other appropriate restrictions.
Some observations about this law (expanding on my comments here):
1) There is an obvious grammar ambiguity. The law allows the restriction of a "computer or any other device with Internet capability." Read literally, this appears to enable the restricted use of a computer even if it's not connected to the Internet. I don't think that's what the legislature meant, but it may be what they said.
2) This law is a small example of a much broader social effort to strip sex offenders of civil liberties. Legislators love to pass laws that appear to protect kids from Internet threats, and sex offenders (a) are an obvious target and (b) have zero political clout to combat these efforts. As a result, legislators can pass laws reducing sex offenders' rights without any opposition. (Like most laws of its ilk, this law passed unanimously at every level of review.) I say more about sex offenders as the new pariah here.
3) I would support these laws if social science confirmed (or even suggested...) that the restrictions actually might curb recidivism or otherwise protect kids. However, these laws typically have no social science behind them. As a result, we don't know in advance if the laws are likely to help--or hurt--the situation.
For example, the laws restricting the residence of registered sex offenders (i.e., can't live within 2000 feet of a school) have caused some sex offenders to move out of urban areas (thus potentially limiting their employment prospects), left other sex offenders homeless and caused yet others to drop out of the supervision of their parole/probation officer. Do these outcomes reduce recidivism? There is an answer to this Q; but I don't know it, and I'm guessing our legislators don't either. Similarly, could cutting off sex offenders from the Internet backfire? We should know the answer before proceeding. [UPDATE: This article lays out this argument better than I did.]
4) In 10 years, the Internet exceptionalism of this law will be comically anachronistic. When the Internet is everywhere, there is no way to "wall off" the Internet and stop using it. The Internet can be accessed through computers, of course, but it's also accessed through cellphones, handheld devices and smart appliances--all of which are seemingly potentially off-limits under this law. A TiVo can access the Internet--is that off-limits to sex offenders? When a refrigerator is Internet-accessible, will that be off-limits? Cars are Internet-connected; are they off-limits too? This law makes about as much sense as banning sex offenders from using our road system (which they also use to commit their crimes). The Internet is part of our infrastructure and impossible to avoid, and there is no way to fence it off.
As we have seen over and over again, Internet-related legislation can succeed only when it regulates bad behavior, not "bad" technology. Kicking sex offenders off the Internet as a prophylactic sounds great in theory, but I'm guessing in practice it won't help and might hurt the cause.
Posted by Eric at 10:13 AM | Content Regulation | TrackBack
December 13, 2007
Internet Doctor Gets Extra Jail Time for Using Website--US v. Hanny
By Eric Goldman
U.S. v. Hanny, 2007 WL 4322265 (8th Cir. Dec. 12, 2007)
Given its blatant illegality, I'm a little surprised that we don't hear more about busts of companies and individuals selling prescription drugs over the Internet. I did a quick search in Westlaw and it looks like there have been a few dozen cases, but they don't seem to get much mass-media attention. I also wonder if the enforcement actions have succeeded in actually reducing consumers' ability to order prescription drugs over the Internet. I don't see as many brazen spammed come-ons as I recall getting a few years ago, but I'm not sure how generalizable my experience is.
Today's case involves the criminal prosecution of Dr. Thomas Hanny, a Connecticut-licensed doctor who retired after 30 years as a surgeon. He then hopped on the dot-com bandwagon, writing Internet-mediated prescriptions first for Pharmacon and then, after Pharmacon was shut down by law enforcement, for Jive. Hanny initially had doubts about the propriety of this line of work and even went so far as to hire his own attorney (who also expressed doubts), but Hanny either felt the issue was colorable enough or decided to look the other way, going so far as to ignore a cease-and-desist letter from Missouri prosecutors. Collectively, these proved to be poor decisions that will cost Hanny 33 months of his liberty.
It's a little hard to feel sorry for Hanny renting out his doctor's license, especially given that he doubled down after the Pharmacon flameout by going to another dot-com and double doubled down by persisting after the Missouri C&D. On the other hand, Hanny did get screwed on the issue decided in this opinion by the Eighth Circuit.
The issue is the 2 level sentencing enhancement for "the distribution of any controlled substance 'through mass-marketing by means of an interactive computer service.'" The government did not appear to introduce any evidence that Pharmacon or Jive used spamming or other advertising methods to generate traffic to their websites. Instead, the government contended that the mere existence of an e-commerce website itself constitutes mass marketing. The Eighth Circuit signs off on this interpretation, invoking some moldy-oldy analogies when it says "A public, interactive website reachable by an ordinary web search engine is, at the least, a billboard on the information superhighway." [If it were up to me, any Cyberlaw opinion invoking a tired and misused billboard metaphor would itself be subject to a 2 level enhanced penalty]
My problem with this is that the court conflated retailing with marketing. Simply operating a retail store without marketing to generate traffic cannot qualify as "mass marketing" under any reasonable interpretation of that phrase. As a result of this confused interpretation, every Internet retailer automatically qualifies as engaging in "mass marketing" for purposes of the sentencing enhancement.
Posted by Eric at 10:50 AM | Content Regulation , E-Commerce , Marketing | TrackBack
November 13, 2007
Geolocation and A Bordered Cyberspace
By Eric Goldman
I recently gave a talk on the general theme of the future of e-commerce, and I was allowed to take the topic in any direction. I decided to talk a little about the propagation of geolocation technology and its consequences for a borderless Internet. My notes from the talk:
______
A constant problem in Cyberlaw: the difficulties of authenticating users for age and geography. With respect to geography, in the mid-1990s, there was a strong belief that cyberspace was borderless. Examples:
* John Perry Barlow's 1996 Declaration of the Independence of Cyberspace
* 1997: ALA v. Pataki, where a state anti-Internet porn law (a baby CDA) was struck down as violating the dormant commerce clause. In that case, Judge Preska said: "Geography is a virtually meaningless construct on the Internet."
But there are ways to restore geographic borders to the purportedly borderless Internet:
1) Ask users to self-report. Users may want to self-report geography, especially in the e-commerce context where they want physical goods delivered or need to report their address to authorize a credit card purchase. But the law could force online actors to compel users to self-report geography and then act on the reported information. Examples:
* LICRA v. Yahoo. The French court envisioned that Yahoo could do 90% effective geographic authentication through a combination of IP address analysis and user self-reporting if Yahoo popped up windows asking users to self-report before being allowed to access the website.
* Alaska SB 140, an anti-adware law. To combat pop-up ads, the statute requires software vendors to display pop-up windows asking users to self-report geography.
A world with compelled requests for user self-reporting of geography would be a pop-up filled world constantly asking "where are you now? where are you now?" [see the analogous Verizon ad campaign] This makes user self-reporting undesirable, in addition to being unreliable.
2) IP address analysis. IP addresses are allocated on an International scheme. Yahoo used this scheme to display local ads, a fact noted in the LICRA court. IP address analysis can be more regional; for example, Google does geo-targeting on a more granular basis. Ex: if I search for "mercedes" in Google, I get local Mercedes dealers in the Bay Area. But IP address analysis is incomplete/imperfect.
So if the only geographic authentication tools were IP address analysis or user self-reporting, the Internet would remain more borderless than bordered. However...
3) Geolocation technology. In the future, Internet access devices will be coupled with GPS technology that will automatically report user geography. For example, many mobile phones already have GPS technology in them, and consumers use other mobile devices (e.g., Blackberries) that have geolocation technology. Inevitably, the boundaries between computers and these geolocated mobile access devices will dissolve, meaning that Internet access devices will be geolocated and will automatically self-report user geography as part of interacting with other online actors.
A geolocated Internet will have some benefits. Most obviously, ads can be geographically targeted in ways that can help consumers (i.e., a driver searching for gas can get ads from nearby gas stations). It will also enable other localized content where that matters (weather, directions, location of friends).
But a geolocated Internet will also enable governments to force online actors to "honor" the geographic information. Thus, states could legitimately enact state-specific laws and require online actors to customize their offerings for state residents. Governments could also use the geolocation information to created walled environments, including more highly filtered/screened content. We've already seen this in China and some other countries. In these situations, Internet users will have very different Internet experiences based on their geography. Thus, a geolocated Internet should contribute to the demise the Internet utopianism. Instead of bringing people together over a borderless network, a geolocated world reenables borders that will keep us further apart.
Posted by Eric at 05:44 PM | Content Regulation , E-Commerce , Internet History | TrackBack
October 07, 2007
September 2007 Quick Links Part II
By Eric Goldman
Contracts
* Manasher v. NECC Telecom, No. 06-cv-10749 (E.D. Mich. Sept. 18, 2007). NECC included the following language on its invoices: "NECC's Agreement 'Disclosure and Liabilities' can be found online at www.necc.us or you could request a copy by calling us at (800) 766 2642." Not surprisingly, an arbitration clause in the referenced document wasn't incorporated into the contract because (among other deficiencies) there was no "call to action" that communicated that the referenced document was part of the agreement. HT: Tom O'Toole.
* Hofer v. The Gap Inc., No. 05-40170 (D. Mass. Sept. 28, 2007). 2 friends decide to vacation together in Jamaica. Friend 1 books the travel arrangements for both of them through Expedia. Friend 2 suffers a personal injury at the resort and wants to hold Expedia liable. Expedia invokes the liability protections in its user agreement, but Friend 2 never consented to or even saw that user agreement. No problem, says the court--Friend 1 was Friend 2's agent and therefore automatically bound Friend 2 to Expedia's agreement. For an analogous case involving software installed on a home computer, see here. HT: Tom O'Toole.
Web 2.0
* Video Professor, Inc. v. Doe (D. Colo.). Video Professor believes a bunch of individuals are committing false advertising, disparagement and other torts by bashing Video Professor's products. Video Professor knows it can't sue the intermediaries per 47 USC 230, so instead it's seeking subpoenas to unmask the gripers. This lawsuit seems misarchitected from a legal standpoint (at least, the Lanham Act portions), but it's also a really bad idea from a business standpoint--the chance of this lawsuit rehabilitating their online reputation is near-zero, and the chance of raising the profile of the gripers' comments in the search engines is near-one. Fortunately, Paul Levy is fighting back. HT: Consumer Law & Policy Blog.
* Michael Erdman reports that the Chicago Lawyers Committee v. Craigslist appeal is moving again. For a while, the case was deliberately sitting idle at the Seventh Circuit, presumably to facilitate settlement, but the Seventh Circuit has now issued a briefing schedule.
* Gary Price reports on the move in Wikipedia Germany to have all page edits reviewed by "trusted editors." More on this from the New Scientist. Yet more evidence that Wikipedia is looking increasingly like other editorially controlled content databases.
* Want to see a user community in the midst of turmoil? Check out the troubles at RateItAll. The consequence: 4 power users are gone, taking 20,000 items of content with them.
* News.com: 9 Fun Ways Web 2.0 Startups Can Commit Legal Suicide
Search Engines
* Jayne v. Google Internet Search Engine Founders, 2007 WL 2852383 (M.D. Pa. Sept. 27, 2007). This was a ridiculous pro se lawsuit that the court easily dismisses on its face. The interesting aspect is that the court says that Google isn't a state actor. This isn't the first court to say so, but it reinforces that Google and other search engines aren't subject to Constitutional restrictions.
* Google filed a motion to dismiss the American Airlines lawsuit. HT Gary Price.
* MediaPost: Personalized search results expand the number of search results that users look at and strongly improve clickthrough rate.
Content Regulation
* I missed this when it was first filed: Interactive Media Entertainment & Gaming Association v. Gonzales (D.N.J. complaint filed June 5, 2007), a First Amendment challenge to the Unlawful Internet Gambling Enforcement Act of 2006.
* American Booksellers Foundation for Free Expression v. Strickland, 2007 WL 2783678 (S.D. Ohio Sept. 24, 2007). Another state level anti-Internet porn law was struck down (this time in Ohio), but only on First Amendment grounds. Influenced by the upholding of state anti-spam laws, the court rejects a challenge to the law on dormant commerce clause grounds. This is a rare opinion saying that a baby CDA state law didn’t violate the DCC.
For Fun
Posted by Eric at 08:33 AM | Content Regulation , Derivative Liability , Internet History , Licensing/Contracts , Search Engines , Trademark | TrackBack
October 03, 2007
National Federation of the Blind v. Target Class Certified
By Eric Goldman
National Federation of the Blind v. Target Corp., 3:06-cv-01802-MHP (N.D. Cal. Sept. 28, 2007)
Judge Patel has certified two classes in the lawsuit over Target.com's compliance with the Americans with Disabilities Act. See my previous blog post on the lawsuit. NFB's press release on the latest ruling.
The court certified the following classes:
The nationwide class consists of all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores. The California subclass includes all legally blind individuals in California who have attempted to access Target.com, for plaintiffs’ claims arising under the California Unruh Civil Rights Act, California Civil Code §§ 51 et seq. and the Disabled Persons Act, California Civil Code §§ 54 et seq.
The ADA Claim
The ADA class definition is fairly explicit that the user's inability to use the website affects their ultimate ability to shop in physical space stores. This could be a fairly narrow class of users, as illustrated by the fact that the court evaluates one of the named plaintiff's facts (Sexton) and kicks him out of the class. In Sexton's case, he did some comparison shopping on the web across multiple sites and then would select a winner to purchase at a physical space store (the court calls the process of reviewing a website before going to a physical space store "pre-shopping") . The court says Sexton's inability to pre-shop didn't, in his case, create a recognizable harm. So it remains to be seen just how many class members are actually covered by the court's class definition.
More generally, the ADA only applies if the retailer is a "bricks-to-clicks" retailer where website usability issues degrade the offline shopping experience. On the surface, all other websites are (so far) immune from the ADA's reach. Therefore, it would be a mistake to treat this ruling as imposing an across-the-web ADA compliance requirement. On the other hand, it would also be a mistake for websites to ignore ADA compliance--doing so may violate the spirit of the law, even if it doesn't violate the letter, and it does mean that the websites are cutting off a valuable customer segment and missing out on good karma.
The State Law Claims
In my opinion, the more important and interesting ruling relates to the California state law claims, where the court explicitly says "the Unruh Act and the DPA reach Target.com as a kind of business establishment and an accommodation, advantage, facility, and privilege of a place of public accommodation" even if there's no nexus between the website and the ability to shop in the physical space store. On its face, this ruling seems to apply to all commercial websites, even those without any physical space outlets. Indeed, even though Sexton's ADA claims were dismissed, his state law claims are continuing.
However, the court's ruling raises other important and interesting problems, like whether these laws, as applied to commercial websites without California operations, violate the dormant commerce clause (see my previous discussion of this issue in the prior ruling), and whether plaintiffs can establish jurisdiction over these websites. Because Target has California operations, the court didn't need to explore these issues in this ruling, but they could have significant implications for the scope of this ruling.
But even if the holding is limited to commercial websites with California operations, that still covers plenty of websites. So I have to assume more lawsuits are coming. Alternatively, I wouldn't be surprised if the big dot coms in the Silicon Valley take this issue up with the legislature to get it to clarify its intent about the laws' (in?)applicability to websites.
Conclusion
In all cases, it bears repeating that the court has not adjudicated the merits of the plaintiff's claims, so it could be proven that Target fulfilled its duties under the ADA and state laws. Target still could win this lawsuit. But even if Targets wins, the interpretation of the ADA and the state law claims will stand for now. Get ready for more lawsuits.
UPDATE: Tom O'Toole writes: "Executives at retailers who also operate Web sites should stop whatever they are doing right now and read [this opinion]...The bar set by Judge Patel is a low one. All retail shoppers benefit from reviewing the availability of merchandise online prior to visiting the retail store. If Target's online operation is ultimately found to violate the Americans With Disabilities Act, I am sure that most, of not all, large retailers suffer the same problem."
Posted by Eric at 01:45 PM | Content Regulation | TrackBack
September 07, 2007
August 2007 Quick Links, Part II
By Eric Goldman
* e360 Insight v. Spamhaus Project, 2007 U.S. App. LEXIS 20725 (7th Cir. Aug. 30, 2007). An email marketing company was listed on Spamhaus' ROSKO and sued for defamation and other torts in Illinois. Spamhaus took the position that US courts have no authority to render a judgment on a UK-based operation. The district court ultimately awarded $11.7M in damages and various equitable relief. The Seventh Circuit affirmed the default judgment but vacated the damages and equitable relief, sending those back to the district court to reevaluate the appropriate remedies. I understand that Spamhaus wanted to make a philosophical point by not fighting the lawsuit in the US, but had they overlooked their philosophical objections, they should have won a quick victory per 47 USC 230(c)(2).
* Perfect 10 has appealed its Ninth Circuit 230 loss in ccBill to the US Supreme Court.
* Search Engine Land had a good overview/recap article on geolocation technology. It provides a clear and easy-to-read explanation why the folks who think online businesses can just stay out of a state that enacts dumb regulations are full of crud.
* Pisciotta v. Old National Bancorp, No. 06-3817 (7th Cir. Aug. 23, 2007). Another court (this time, the Seventh Circuit) says that consumer fretting about possible future identity theft isn't enough harm to support a lawsuit. See the analogous JetBlue, Acxiom and Key cases.
* Wikipedia Scanner--an automated tool to determine who is editing Wikipedia pages. Katie Hafner's NYT article on the matter. David Hoffman does a little sleuthing on law firm edits.
* NYT: In the 1990s, a lot of people sought to build an infrastructure for micropayments. Consumers resisted them, but today those efforts seem a little silly--AdSense advertising can generate the same financial benefits for a web publisher without the overhead. Meanwhile, the credit card systems are being stretched to cover micro-transactions because merchants are aggregating a consumer's orders and processing them in bulk (rather than processing each one individually) as a way to reduce the transaction costs.
* NYT: "As video games have surged in popularity in recent years, politicians around the country have tried to outlaw the sale of some violent games to children. So far all such efforts have failed."
* AP: Chinese animated cops will be patrolling the Information Superhighway beat.
* Tired of negative reviews on Yelp, a San Francisco restaurant put up a sign saying "no Yelpers." I wonder if a sign like that lessens or exacerbates negative publicity.
* NYT: Book authors obsessively check Amazon sales rankings and try to game them.
* Facebook accidentally posted some of its source code to a public website. Surely an interesting development for ConnectU's discovery team!
* Another Internet company hires its own in-house economist--this time, virtual world Eve Online.
* A nice retrospective on the Cleveland Free-net, which at one point was a prominent component of the Cyberspace community.
* I have one free guest pass to the CLE International New Media Law conference in SF on Oct. 1-2. Free to the first person who sends me an email request. [SORRY--TAKEN!]
Posted by Eric at 09:48 AM | Content Regulation , Derivative Liability , E-Commerce , General , Internet History , Privacy/Security , Virtual Worlds | TrackBack
July 02, 2007
June 2007 Quick Links
By Eric Goldman
* Spam cases are coming at a regular clip, and it's tricky divining the latest state of the law. Two recent cases that caught my attention:
- US v. Impulse Media Group, 2007 WL 1725560 (W.D. Wash. June 8, 2007). This case involved a porn site that used affiliate marketers who didn't comply with the porn spam labeling requirements. The government argued that the advertiser should be strictly liable for this breach, but the court fairly emphatically rejected that (same as Cyberheat). But the news isn't all good for the defense, as the court also rejected its SJ motion, showing that the question of scienter about affiliate behavior remains a tough one for courts. Venkat's writeup.
- Kleffman v. Vonage Holdings Corp., No. 07-2406 (C.D. Cal. May 22, 2007). A nice complement to the Facebook v. ConnectU case, each holding that aspects of California's anti-spam laws are preempted by CAN-SPAM. In this case, the targeted behavior was the fact that the emailer may have used multiple email addresses to bypass electronic spam filters, but there wasn't anything false/deceptive about each email itself. See the BNA write-up and Venkat's writeup. I've lost track of the preemption cases, but it seems like state anti-spam laws are really getting munched after the Mummagraphics case.
* NYT on the pros/cons of captchas.
* Goodmail has expanded its pay-to-email system to Comcast, Cox, Roadrunner and Verizon.
Intellectual Property
* In Explorologist v. Sapient, involving the posting of a video deconstructing Uri Geller's act, the defendant is arguing (per CCBill) that 47 USC 230 preempts British copyright law.
* A rushed high school yearbook editor downloads lots of Facebook photos and adds them to the yearbook to fill space. Not a good idea!
* Techdirt: Who owns the right to license the design of military weapons to toy manufacturers?
* Marty on intellectual property protection for sexual activity.
Contracts
* A California man claims he bought a Gateway computer that never displayed text properly. Is he bound to the clickthrough agreement displayed on bootup? If this is the only way Gateway presented its contract, the answer should be no.
* At a conference at Southwestern Law School, I heard Prof. Lon Sobel talk about "idea submission" law. He illustrated the phenomenon that "where there's a hit, there's a writ": he suggested that hit TV shows produce an average of 6 "you stole my idea” demand letters. The great 1980s movie Coming to America produced 12 such letters, which resulted in 7 actual lawsuits. Interestingly, Prof. Sobel made the case (implicitly, not explicitly) that there is no separate law of "idea submissions," but rather any such doctrines are subsumed within standard contract law.
eBay
* eBay has changed its stance towards fighting counterfeiters, and it now does more policing itself.
* eBay shill bidder pays $400k to settle with NY AG.
Social Networking/Blogs
* The NCAA kicked a reporter out of the stadium for live-blogging the event. Tip to NCAA: It’s neither possible nor wise to control the flow of real-time information. Get over it. HT: Techdirt.
* Just came across this article: Stacey Schesser, MySpace on the record: The admissibility of social website content under the Federal Rules of Evidence, First Monday, volume 11, number 12 (December 2006).
* Wired: 7 MySpace sex offenders busted.
Marketing/Advertising
* AMCO Ins. Co. v. Lauren-Spencer, Inc., 2007 WL 1795970 (S.D. Ohio June 20, 2007). Insured offers jewelry from a website. Third party claims that the insured's jewelry constituted copyright infringement. Insured tenders the lawsuit to her insurance company under the advertising injury policy. Insurance company seeks a DJ of no coverage. The court says that the website constitutes advertising for the products, and so the policy applies to photos of the allegedly infringing jewelry items, even if the photos themselves were created by the insured. Observation #1: The advertising injury policy is very helpful to web businesses. Observation #2: Due to cases like this, I suspect insurance companies are reducing their willingness to offer advertising injury coverage to web businesses.
* Taylor v. XRG, Inc., 2007 WL 1816142 (Ohio App. Ct. June 21, 2007). The defendant was a vendor retained by bulk fax senders that handled consumer responses, including opt-outs from future faxes. Court held that the vendor wasn't liable for any TCPA/state anti-junk fax laws allegedly broken by the fax sender.
* Newish ad format: ads running 2 seconds in duration.
Search
* It's taken me a while to digest some of Google's new efforts. First, Google released two tools (a new toolbar button and a new personalized tab) to anticipate searchers' needs based on their past searches. Second, Google expanded its search history to incorporate all aspects of a user's searching through its services (what it calls "web history"). Meanwhile, Google has reduced its storage of personalized search data from 18-24 months to 18 months before that data gets anonymized. FWIW, I've been using Google personalized search since November 2005 (presumably, some of my data will be flushed any time now). Google has now captured almost 12,000 searches (with a high so far of 255 searches in a single day). Despite this, Google still doesn’t do a good job making predictions for me.
* Another great study from Jim Jansen (see the last one I blogged about). This one presented identical search results branded from different search engines and found that consumer ratings of relevancy varied based on the brand (Yahoo and Google came out on top). The logical inference--branding does matter to perceptions of relevancy. HT: SEL.
* Matt Cutts on the various ways humans affect Google search.
Domain Names
* Denmark's .dk TLD registry has enacted rules targeted at wiping out domainers. See here (Sec. 8.3.6).
* What's hotter than iPhones? iPhone-related domain names.
Adware/Spyware
* Declan on the latest legislative rally against spyware, the Senate's Counter SPY Act.
* The FTC issued final approval for the DirectRevenue settlement of $1.5M. Commissioner Leibowitz dissented, saying the cash payment was too light.
Online Reputations
* Avvo has filed a motion to dismiss the lawsuit over its ratings of attorneys. The motion is very heavy on the 1st amendment and very light on 230. HT: WSJ Law Blog.
* The Washington Post gushes about Reputation Defender and its competitors, without really acknowledging the value of reputational accountability or the potential for takedown/pushdown abuse.
* Entrepreneurs figured out a way to game FICO scores. Fair Isaac will try to close the loophole.
* Ed Magedson of Rip-Off Report was the victim of a vicious harassment campaign demanding that he remove complaints from the site.
* Lengthy NYT article on Wikpedia. Not much new there, but it does hint at the young age of Wikipedians, and it talks about how "pride of ownership" motivates Wikipedians.
Other
* June 26 was the 10 year anniversary of the classic Reno v. ACLU Supreme Court opinion.
* The NYT has launched a new technology blog called BITS.
Posted by Eric at 02:37 PM | Adware/Spyware , Content Regulation , Copyright , Derivative Liability , Domain Names , Internet History , Licensing/Contracts , Marketing , Search Engines , Spam , Trademark | TrackBack
June 26, 2007
New Cyberlaw Fad--Real Estate Developers v. Griping Homebuyers
By Eric Goldman
We appear to be seeing a mini-trend of homebuilders suing griping homebuyers. Overlawyered's Walter Olson succinctly aggregated some cases, including:
* RSA Enterprises v. Bad Business Bureau and Google, a lawsuit doomed to failure (at least in Google's case) due to 47 USC 230.
* WBG Builders v. ConsumerAffairs.com and Garlic. Depending on the facts, ConsumerAffairs.com may be protected by 47 USC 230, but the news report indicates that WBG is suing the posters as well.
* While not exactly a developer v. buyer lawsuit, a home contractor (Sieber/SCS Contracting) sued a number of defendants for defamation based on postings to Angie's List. According to the DC Superior Court website, Sieber v. Mattera (Case # 2007 CA 002063 B) and Sieber v. Hammock (Case # 2007 CA 001726 B) each settled a month after filing, although Hammock's lawsuit against Sieber for contract breach is still pending (see Case # 2006 CA 006940 B). Sieber also sued Angie's List and some other defendants for malicious interference. Sieber v. Brownstone Publishing, Case # 2007 CA 002549. I think this claim is clearly barred by 47 USC 230 if it's based on user postings. The lawsuit was dismissed May 31 but revived; then all of the individual defendants (but not the named defendant) were dismissed June 11.
What's going on here? First, homebuilders are wasting their time suing sites that republish buyer complaints; those lawsuits should be preempted by 47 USC 230. Second, developers appear to be a little touchy. People always complain about their homes; as readers, we know that and can evaluate others' complaints accordingly. So a developer's lawsuit may appear to offer moral vindication, but chances are it's a bad economic decision (assuming the developer has legitimate reason to complain in the first place).
The latest developer v. buyer case is Taylor Building Corp. v. Benfield, 2007 WL 1748694 (S.D. Ohio June 15, 2007). This lawsuit relates to a gripe site set up at the domain name "www.taylorhomes-ripoff.com" in 2003 that was taken offline in 2004. The developer sued for defamation, tortious interference and trade dress infringement. The court carefully rejects most of the defamation claim (for being substantially truthful) and the tortious interference claim for lacking the requisite scienter. The court also rejects the trade dress claim on several grounds, including the website’s nature as a gripe site:
Benfield clearly hoped to drive customers away from Taylor by posting his complaints about the home builder. Thus, it is arguable that he intended to cause Taylor economic harm. However, in keeping with the logic of Taubman and Lamparello, the Court concludes that, even if Benfield's use of the website was commercial, his website was a forum for criticizing the builder. Accordingly, there is no likelihood of confusion and, thus, no Lanham Act violation.
The court also rejects the initial interest confusion claim because the site didn't sell or promote any products, and no one would be confused by a domain name containing the word "ripoff."
Despite the significant good news for the defendant, two potentially defamatory statements survived the SJ motion. A reminder to gripers: you own your words, so pick them carefully.
Tying these cases together, it appears that developers are the latest industry to realize the power and danger that online word of mouth poses to their businesses. Coping with this revelation requires some care. Historically, publicity-enhancing lawsuits may not have been the best way to respond to negative reputational information, but in the networked era, they are almost guaranteed to be a poor choice. So developers will need to adapt their practices--and perhaps their expectations--to accommodate the modern information ecosystem.
Posted by Eric at 08:37 AM | Content Regulation , Derivative Liability , Domain Names , Trademark | TrackBack
June 12, 2007
AutoAdmit Fiasco Turns Into a Lawsuit--Doe v. Ciolli
By Eric Goldman
Doe v. Ciolli, 307CV00909 CFD (D. Conn. complaint filed June 11, 2007)
AutoAdmit is a message board for law students and related groupies. It's a relatively untamed corner of cyberspace. The site owners have espoused a relatively ideological view that they don't remove user posts, which has contributed to a rough-and-tumble site with lots of inappropriate and juvenile postings.
The site has been well-known in legal education circles for a number of years, but it crossed over to widespread national prominence with a Washington Post article in March discussing how some law students had been harmed by posts on AutoAdmit. The article starts out:
She graduated Phi Beta Kappa, has published in top legal journals and completed internships at leading institutions in her field. So when the Yale law student interviewed with 16 firms for a job this summer, she was concerned that she had only four call-backs. She was stunned when she had zero offers.
The article then points the finger at AutoAdmit, blaming it for her lack of job market success.
Things generally have gone downhill from there, contributing to the relatively unusual situation where one of the site operators had his law firm job offer revoked. But now the heat has been turned up even higher with a lawsuit against a number of the posters to the AutoAdmit site. This is a very messy situation, so let me try to offer some (I hope) relatively innocuous observations:
1) I suspect the law students whose aliases were named in the complaint had that sickening stomach-liquefying feeling when they realized they were being sued. Being sued is an expensive and scary process.
2) The facts aren't entirely clear, but I believe the plaintiffs aren't trying to hold defendants liable for postings they didn't make. Of course, 47 USC 230 would likely bar most/all of such claims (although after Roommates.com, who knows how far 230 goes?), so it appears that the plaintiffs are wisely steering away from that trap.
3) I think the plaintiffs face some very significant causation issues here, at least with respect to the defamation claims that aren't per se libelous. For example, the plaintiff with 16 interviews and zero offers will have to connect the dots to show the online postings caused or contributed to this result. This doesn't sound very easy at all, and it creates the opportunity for the defendants to pick over the plaintiff's life and qualifications with a fine-tooth comb to show that there were other explanations for her lack of success. In all likelihood, this means more embarrassing revelations for the plaintiff; compare the public disclosures that Robert Steinbuch faced by bringing his lawsuit against Jessica Cutler.
4) I wonder if the judge will consider the message board's wide-open and infantile nature when evaluating the postings. Some of the postings cited in the complaint were, in context, so over-the-top that I can't imagine any reader giving them serious credibility. For an analogous circumstance where the judge recognized the contextual silliness of some remarks, see DiMeo v. Max.
5) This lawsuit could be very divisive in the legal education community. In one corner, free speech and personal/professional autonomy; in the other corner, intolerance for harassing and discriminatory behavior (especially by professional school students, like law students) that can seriously harm the professional opportunities and personal enjoyment of other students. These conflicting norms aren't new, but they tend to divide groups into camps that have a hard time finding a middle ground.
6) Although the defamation and related claims will get most of the attention, the copyright claim seems more pernicious--the postings might be covered by fair use [update: see Rebecca's take], but otherwise the defenses against copyright infringement are narrower and less squishy than the defenses against the other personality harm claims.
HT: WSJ Law Blog.
UPDATE: Eugene has a number of interesting observations.
UPDATE 2: David Lat recaps and summarizes the discussion.
Posted by Eric at 11:57 AM | Content Regulation , Copyright , Derivative Liability , Publicity/Privacy Rights | TrackBack
June 03, 2007
May 2007 Quick Links
By Eric Goldman
Spam
* MySpace Inc. v. The Globe.com Inc., No. CV 06-3391 RGK (C.D. Cal. Feb. 27, 2007). This case has some personal interest because theglobe.com was one of my flagship clients before I left the law firm in 2000. This ruling held theglobe.com liable under CAN-SPAM, California's anti-spam law and the user agreement for spamming within the MySpace network. See the BNA writeup. Among other remarkable angles of this ruling, the court upholds the liquidated damages clause based on the anti-spam restrictions in the contract. Based on this adverse judgment, in April the parties settled for over $2.5M —basically, all of theglobe.com’s remaining cash, leaving its survival in serious jeopardy.
Domain Names
* Domainers are hot. Business 2.0 article on Kevin Ham, a major domainer who has wildcarded Cameroon's .cm TLD. NYT article on NameMedia, which owns 725,000 domains.
* From the AP: Entrepreneurs loaded up on Virginia Tech- and victim-related domain names following the massacre.
Marketing
* Broadway producer Scott Rudin was annoyed that the New York Times' website published user-submitted reviews of his play. To tweak them for doing so, the play cherry-picked some comments from the users' submissions and ran them in ads for the play with the attribution "The New York Times Online." An NYT editor objected to that attribution because it connoted an editorial judgment of the paper, rather than the paper's readers. Read the fun back-and-forth between Rudin and the editor.
* From the Washington Post: Billboards are the second-fastest growing ad category (after the Internet) due to increased traffic congestion and new digital billboard technology. And a technologist has developed eye-tracking technology that may let billboard advertisers accurately count eyeballs.
* Optima Funding, Inc. v. Strang, 2007 WL 1430699 (Cal. Ct. App. May 16, 2007). A mortgage company said it never sent unsolicited faxes or authorized anyone to do so on its behalf, but it did use lead generation companies. Strang sued Optima repeatedly in small claims court for TCPA violations. Optima struck back with a 17200 claim, basically saying that Strang was falsifying evidence to connect Optima to the faxes. In this ruling, the California Appellate Court upholds Strang's anti-SLAPP motion to strike.
* NYT: Custom postage stamps haven't really caught on. (Note: I just tested on them in my IP course exam).
* NYT: "The High Price of Creating Free Ads." Advertisers may not save any money by relying on user-generated ads. See my previous blog post about the legal costs of UGC ads.
* Rebecca discusses false advertising developments in one of our least favorite 1201 cases, Static Control v. Lexmark.
* AP: Wisconsin bar owner gets a ticket for serving Coors Light beer using a Miller Lite-branded tap. He should have known better than to cross the only major brewery still in Brewtown by serving Colorado beer.
Search Engines
* Brodsky v. Yahoo (C.D. Cal. complaint filed May 11, 2007). A stockholder derivative lawsuit against Yahoo alleging that Yahoo inflated its stock price by hyping its ad businesses. I read through the lengthy complaint and found it mostly nonsensical. For example, consider this allegation of wrongdoing: "whereas Yahoo!’s rivals were paying high-traffic vendors to route traffic through their Web sites, Yahoo! was charging large vendors for access and was dependent on that revenue to make its revenue targets, making Yahoo!’s Web site a less desirable location for vendors to drive traffic to." Huh? Search Engine Land has more.
* Google has blacklisted all term paper websites from its AdWords program. Reminds me a little of Macellari v. Carroll
Intellectual Property
* Grisman v. YouTube, Inc., C-07-2518 (N.D. Cal. May 10, 2007). Second class action lawsuit against YouTube (and third major broadside, including the Viacom lawsuit). Appears to be highly derivative of the Football Association Premier League lawsuit (see the WSJ Law Blog for more on this).
* Clark v. Amazon.com, CIV S-05-2187 (E.D. Cal. May 10, 2007). Clark published a book, sold 187 copies and gave away 234. He sued Amazon (and other online booksellers) claiming that he alone had the exclusive right to distribute the book, so their resales were infringing. Amazon responded that the resales were covered by the First Sale doctrine. Clark responded by saying that Amazon sold more copies than he sold/gave away, but that's because Clark mistakenly believed that a seller's lifetime transactions rating were all based on sales of his book. Summary judgment for Amazon.
* Like other content producers, pornographers are feeling the sting of online competition--especially due to the low barriers to entry of amateur-produced content.
* From Washingon Post: Appraisers are going to war over recycling of data they generate during appraisals, which they claim violates promises made to them. When I was guest-blogging at Concurring Opinions, I blogged on the possible IP angles of this dispute.
* BusinessWeek: "Faking out the Fakers: Faced with a tidal wave of counterfeit goods, companies are turning to secretive sci-fi technology. But crooks catch on fast." It's like the analog version of DRM.
* The USPTO's collection of aural TMs.
Miscellaneous
* Bray v. QFA Royalties LLC, 2007 WL 1306517 (D. Colo. May 3, 2007). Posting a suicide note on a private franchisee-group's website isn't grounds for termination of franchises. See Wiggin and Dana's writeup.
* Nazaruk v. eBay, Inc., 2007 WL 1417287 (10th Cir. May 15, 2007). In a non-substantive opinion, the 10th Circuit upheld the venue clause in eBay's user agreement. My post on the district court opinion.
* Washington Post article on individuals declaring "email bankruptcy," i.e., deleting everything in their in-box and starting afresh.
* To mitigate risk, the Concurring Opinions multi-contributor blog has been converted into an LLC.
* University of San Francisco has created a single page aggregating blogs from the entire USF community.
Posted by Eric at 12:59 PM | Content Regulation , Copyright , Derivative Liability , Domain Names , Internet History , Licensing/Contracts , Marketing , Search Engines , Spam , Trademark | TrackBack
May 30, 2007
Court Upholds Student Suspension For YouTube Video of Teacher
Requa v. Kent School District No. 415, 2007 WL 1531670 (W.D. Wash. May 24, 2007).
“The Court takes judicial notice that “booty” is a common slang term for buttocks.”
High school students secretly take video footage of a teacher at school in a classroom. The video footage is edited, graphics and musical soundtrack are added, and the result is posted on YouTube. According to the court, the completed product includes commentary on the teacher’s hygiene and organization habits, and also features footage of a student standing behind the teacher making faces, putting two fingers up to the back of her head, and making pelvic thrusts in her general direction. Additionally, there are several shots of the teacher’s buttocks as she walks away from the videographer and as she bends over, accompanied to a rap song entitled “Ms. New Booty”.
Eight months later, a local news channel discovers the video and airs a news segment featuring the video and others. Students responsible for the video are suspended for 40 days, with 20 days “held in abeyance” if the student completes a research paper while on suspension.
Student exhausts administrative appeals and tries to stop his punishment by filing a lawsuit in federal court alleging violations of his First Amendment rights and Constitutional right to due process. Student loses.
One would think that, given the number of these stories that have come to light in the past year or two, high school students would consider this practice “lame” and move on to some other form of amusement. However, the continuing stream of cases and news reports indicates otherwise.
A few thoughts:
• It looks like the court got this one right. The court went through a fairly standard analysis of the plaintiff’s claims. On the First Amendment issue, the main U.S. Supreme Court cases dealing with public school students is Tinker v. Des Moines Independent Community School District, where the U.S. Supreme Court held that public school students “don’t shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” However, the Court’s decision does permit the free speech rights of students to be limited when the speech “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” For example, in a later case, Bethel School District No. 403 v. Fraser, the Court held that a public high school student running for a student government position could be suspended after he gave a nomination speech that included “obscene, profane language or gestures.”
• Here, the court found that the School District properly suspended the students for their conduct in videotaping in the classroom against a written school policy, not for publishing the video to YouTube or for posting the link to the YouTube video. (In fact, other students who only republished the link and who were not involved in the filming were not suspended.). Apparently, the school’s conduct code contains prohibitions against sexual harassment as well as having cell phones or other video recorders turned on during school hours.
• The court had no difficult here finding that the video constitutes a material and substantial disruption to the work and discipline of the school. “The ‘work and discipline of the school’ includes the maintenance of a civil and respectful atmosphere towards teachers and students alike—demeaning, derogatory, sexually suggestive behavior towards non-suspecting teacher in a classroom poses a disruption of that mission whenever it occurs.”
• The court also found that the video could not be characterized as “criticism” of the teacher because of the footage of the students dancing behind the teacher’s back and making “rabbit ears” and footage of the teacher’s buttocks with the “Booty” rap song, characterizing these as “lewd and offensive and devoid of political or critical content.”
• The court was careful to state that the ability of students to critique the performance and competence of their teachers is a legitimate and important right, one that should not only be tolerated but encouraged by the schools whose mission it is to educate them. In this case, however, the court decided that the students needed to find another way to voice their opinions.
• While this case did not address the issue, the actions by the school district also served to protect them from claims of sexual harassment by the teacher in question. By doing nothing, a school district, like any other employer, risks being accused of creating a “hostile environment” and incurring potential liability for harassment claims.
Posted by John Ottaviani at 03:37 PM | Content Regulation | TrackBack
May 10, 2007
Social Networking Sites and the Law
By Eric Goldman
On Monday, the High Tech Law Institute is co-sponsoring an event entitled "Friends, Lovers, Trust, Safety: The Present and Future of Social Networking." The principal audience is undergraduate students, but everyone is welcome.
One of the hot cyberlaw topics du jour is the legal liability of YouTube, MySpace, Facebook, Friendster, etc. Unfortunately (?), this event won't focus on the legal issues. However, as part of the event, I prepared a short primer for the undergraduates on Social Networking Sites and the Law. Two observations from my research supporting the primer:
1) As you'll see from my primer, I found 3 reported cases involving nearly identical facts: 14 year old boy created a fake MySpace page for his school's principal. There were yet other cases involving similar facts, and one can only assume that there are hundreds of unlitigated incidents for each reported case (see, e.g., this analogous situation).
I can understand how these fake websites happen. After all, I was a 14 year old boy myself (though that was a LONG time ago now) and I remember well the feeling of being imbued with the power of publication, though my publication reach was far narrower than MySpace now enables. However, it was a little breathtaking how common the "gag" appears to be. Hint to 14 year old boys: Fake MySpace pages for the principal are neither funny nor original. IT'S BEEN DONE...A LOT. (See my same observation about YouTube and Listerine).
2) There were a fair number of cases involving sexual predators on the social networking sites. Some of these cases we've heard about, but there were plenty more that were news to me. Once again, assuming there are hundreds of incidents for each reported case, I'm deeply troubled by the amount of sexual predation taking place via social networking sites. (If you want even more disturbing data of a high volume of sexual predation of kids, check out Teacher Smackdown). Regular readers know that I feel strongly that it's ultimately the responsibility of parents to protect their children from online sexual predation, but I'll confess that I don't yet have a good plan for how I'm going to protect my own children.
Posted by Eric at 09:52 AM | Content Regulation , Copyright , Derivative Liability | TrackBack
May 05, 2007
Blogger Protected by Anti-SLAPP Statute--GTX v. Left
By Eric Goldman
GTX Global Corp. v. Left, 2007 WL 1300065 (Cal. Ct. App. May 4, 2007)
This is one of the first cases explicitly holding that a blogger is protected by anti-SLAPP laws. It's not really surprising that bloggers would qualify for anti-SLAPP protection, but still, it's nice to see a case confirm it.
In this case, the blogger operated stocklemon.com, a blog discussing stocks that Left (the blogger) believes are "lemons." He blogged on GTX a few times, for which he got sued for defamation, securities fraud and other claims. GTX isn't the only plaintiff going after stocklemon.com; it looks like the blogger had a knack for getting into trouble, and there have been numerous claims (including by GTX) that the blogger was a short seller deliberately publishing misinformation to manipulate the stock price in his favor. This whole situation is vaguely reminiscent of the problems experienced by the Rip-off Report.
In any case, in response to GTX's lawsuit, Left filed an anti-SLAPP motion to strike. In response, GTX did not adequately muster up sufficient evidence that Left's statements are false. As a result, the trial court dismissed the lawsuit, and in this ruling, the appeals court upholds the trial court's ruling and remands for a determination of Left's attorneys' fees (which GTX will now have to pay).
Posted by Eric at 05:02 PM | Content Regulation | TrackBack
May 02, 2007
Utah's "Don't Email the Kids" Registry a "Financial Failure"
By Eric Goldman
A couple of years ago, Utah and Michigan adopted laws creating "don't email the kids" registries (called the "Child Protection Registry"--see Utah's and Michigan's). These laws allow parents to register email addresses held by kids and requires marketers sending email/spam that's inappropriate for kids to check the registry and screen out the kids' addresses.
Policy-wise, these laws are broadly appealing. First, everyone hates spam, so anything that might reduce spam is ipso facto a good thing. Second, this law is designed to protect kids from Internet evils—a politician’s nirvana!
However, I don’t think either of these rationales (reduce spam or protect kids) capture the real reason why these laws were enacted. Instead, I suspect pure-and-simple economic opportunism. In practice, the law is just an email tax. Legitimate companies concerned about legal compliance will pay to check the registry, creating a stream of new tax revenues mostly generated from out-of-staters. (Naturally, illegitimate spammers won’t comply with the law under any circumstance). You can imagine how politicians would eagerly leap at the opportunity to get a couple farthings' tax on email traffic. CA-CHING!
Meanwhile, only one company--Unspam, a for-profit company--operates a "don't email the kids" registry. I can imagine how this could be a great sales pitch to generate demand for Unspam’s services: Hey legislators, enact the law, generate new tax revenues on email traffic, you get an economic windfall, we get a cut, and EVERYONE WINS!
Despite this seductive pitch, we’ve learned that the "don't email the kids" laws are riddled with problems. For example, mechanically Unspam's registry doesn’t try to authenticate that registered emails are associated with kids, turning the registry into an across-the-board do-not-spam registry (something I think isn’t good policy). The law also suffers from the sheer illogic of trying to erect geographic borders on email traffic; a federal district court didn't agree with this concern, but we may not have heard the final word on this point.
Plus, there's the challenge of protecting the privacy of kids' email addresses in the database. As Wendy Davis of MediaPost reported last Fall:
It's now come to light that several weeks ago, a state employee in Utah released the e-mail addresses of four minors to the Email Sender and Provider Coalition. That gaffe occurred even though Unspam--the private agency managing the list--said it was inconceivable that the list would ever be divulged. "Even if ordered by a court or held at gunpoint, there is no feasible way that I, any Unspam employee, or any state official could provide you even a single address that has been submitted for compliance by any sender," Prince reportedly said in an affidavit.
WHOOPS!
Even more problematically, according to the Salt Lake Tribune, the law has been a "financial failure": the law was projected to bring $3-6M in revenues to the state, but gross revenues have been $187,224, split 80% to Unspam and 20% to Utah—netting Utah a grand total of $37,445. Worse, the law has cost Utah a lot of money, including the following directly attributable expenses:
* $58,000-a-year in prosecutorial fees (estimated cost in original law--not sure if this money has been spent)
* $75,000-a-year for a full-time Department of Commerce investigator (estimated cost in original law--not sure if this money has been spent)
* $100,000 for a private lawyer to defend the law in court (under a contract that could cost up to $200,000). Utah undertook this expense only after Unspam incurred $70,000 of defense costs itself and then cried “no mas,” although the Salt Lake Tribune article indicates that during pre-passage discussions, Unspam may have suggested that it would solely bear the defense costs.
I'm sure this law imposes other "soft" costs throughout the Utah governmental system, plus there are the transaction costs and deadweight losses inherent in any tax. But ignoring these indirect costs and evaluating the law strictly on a cash basis, this law still looks like a bad economic decision for Utah.
There is a meta-lesson here: legislatures rarely can add to state coffers via Internet regulation. Unfortunately, Utah hasn’t yet internalized this lesson despite two highly visible failures. First, in 1995, Utah enacted a digital signature law designed to capture a little piece of the e-commerce pie by becoming the safe haven for digital signature vendors--but there were no takers, so the law sat on the books unused for a decade before Utah repealed the law last year. Second, Utah tried again with this "don't email the kids" law and appears to have struck out financially as well.
Amazingly, despite these precedents, Utah keeps trying! Its latest attempt to get a little Internet gravy is the Utah Trademark Protection Act, where Utah plans to tax (mostly out-of-state) keyword advertisers. As Sen. Eastman told BNA, “Utah can be the trademark registration capital of the country, just as Delaware is the incorporation capital.” Not only would the registration fees flow back to Utah and perhaps to a Utah-based registry vendor such as Unspam (which expressed some interest in bidding on the registry contract), but Sen. Eastman thinks the law may stimulate demand for Utah’s trademark lawyers. However, there are good historical reasons to believe that the Utah Trademark Protection Act isn’t likely to fulfill these dreams of prosperity. This is yet another good reason for the Utah legislature to reconsider the law.
Posted by Eric at 03:23 PM | Content Regulation , Internet History , Spam , Trademark | TrackBack
April 09, 2007
March 2007 Quick Links Part 2
By Eric Goldman
Yesterday I posted the Google edition of my list of interesting items from March. Today I post the remainder of items that caught my eye last month.
Trademarks/Brands
* Bosley Medical Institute v. Kremer, 2007 WL 935708 (S.D. Cal. Mar. 22, 2007). On remand from the Ninth Circuit, the district court denies Kremer's motions to dismiss/for SJ. Michael Atkins recaps the ruling and case's history.
* Milbank Tweed Hadley & McCloy LLP v. Milbank Holding Corp. d/b/a Milbank Real Estate Services, No. CV 06-187-RGK (JTLx), (C.D. Cal. Feb. 23, 2007). After passage of the Trademark Dilution Revision Act, the court rejects the existence of "niche fame" as support for a dilution action. I’m a little surprised that this plaintiff would bring this losing argument.
* ICANN votes down a .XXX TLD. Again.
* NYT on the increasing challenges of creating a unique global brand in very crowded namespaces.
* Trademarked Sentences: A tool that helps you generate poetry by mixing trademarked slogans.
Blogs/UGC
* BidZirk v. Smith, No. 06-1487 (4th Cir. March 6, 2007). The Fourth Circuit, in a non-substantive opinion, denied a company's request for an injunction against a griping blogger's use of its trademarks. My initial write-up of the case. With this loss, the plaintiff's ill-advised decision to appeal the case is now even more clearly a complete waste of the plaintiff's money and our judicial resources.
* Chapman v. Merchandise Mart Properties, 2007 WL 922258 (D. Vt. Mar. 23, 2007). Woman tries to get TRO against physical-space trade show based on trademark interests in the term "GreenStyle," which is her blog’s title. The court rejects the request, but interestingly doesn't seem fazed by the argument that she may have a trademark interest generated from her blog name. Blog names can be trademarkable with sufficient use in commerce, a factor the court ignored completely.
* Sifry: "70 million weblogs. About 120,000 new weblogs each day, or...1.4 new blogs every second."
* A nice retrospective on the history of blogging.
* Wikipedia is requiring some credentialing after getting burned by a pseudonymous contributor who falsely claimed he was a professor.
* Ed Felten has some terrific observations about building distributed reputation systems like Digg (and, for that matter, Epinions). Ed is 100% correct that reputation systems need substantial stabilization; they don't just work deus ex machina.
Contracts
* Dorr v. Yahoo, No 3:07-cv-01428-MJJ (N.D. Cal. complaint filed March 7, 2007). Yahoo offered a premium subscription service allowing users to send email without Yahoo's ads attached. Then, allegedly, they changed the service's terms, and some of the paying customers were unilaterally bumped to a tier where Yahoo's ads were again attached to their email. Steve Bryant has more. In general, if people pay to eliminate ads, during that period of time, Yahoo should not be able to unilaterally amend the terms so that the user is paying but still getting ads.
* Ken Adams blogs on Affinity Internet, Inc. v. Consolidated Credit Counseling Services, Inc., 920 So. 2d 1286 (Fla. Dist. Ct. App. 2006), where the court held that a contract clause saying "This contract is subject to all of SkyNetWEB's terms, conditions, user and acceptable use policies located at http://www.skynetweb.com/company/legal/legal.php" was insufficient to incorporate an arbitration clause contained in the referenced document. Ken's suggested fix: "The SkyNetWEB user agreement located at http://www.skynetweb.com/company/legal/legal.php constitutes part of this agreement."
Government Agencies
* The National Do Not Call Registry: Annual Report to Congress for FY 2006 Pursuant to the Do Not Call Implementation Act On Implementation of the National Do Not Call Registry (April 2007): "The Commission believes that the fundamental goal of the National Do Not Call Registry — to provide consumers with a simple, free, and effective means to limit unwanted telemarketing calls — has been realized." My curmudgeonly take on why the do-not-call registry isn’t great policy.
* Implementing the Children's Online Privacy Protection Act: A Federal Trade Commission Report to Congress (February 2007). The FTC remains pretty pleased with itself about COPPA, but it's worried about social networking sites and the continuing lack of age verification technology. I'm not as impressed with COPPA as the FTC is; see here and here. In any case, if you're doing COPPA research, this report helpfully recounts the 12 COPPA enforcement actions to date.
* Hard to believe, but payola busts are still being made. The latest: a $12.5M settlement. See the NYT and WaPo .
* Terrific post by the EFF’s Seth Schoen about a misguided report on P2P file sharing by the USPTO and the issues with empowering users to control their computers. A must-read.
Miscellaneous
* ACLU v. Gonzales, No. 98-559 (E.D. Pa. March 22, 2007). On remand from the Supreme Court, the court once again holds that the 1998 Child Online Protection Act is unconstitutional.
* CRS Report for Congress: An Overview of Recent U.S. Supreme Court Jurisprudence in Patent Law, March 16, 2007, discussing the last 8 Supreme Court patent cases.
* We've all heard about the magic of network effects. But as this Mercury News article explains, when an Internet start-up company's network takes root principally overseas, it can leave the company with a large audience of unmonetizable users.
* Jacob Loshin, Property in the Horizon: The Theory and Practice of Sign and Billboard Regulation, 30 Environs 101 (2006). A thoughtful discussion of the history of billboard regulation and some regulatory considerations.
* Coca-Cola's launch campaign for "Coke Zero" is premised on the idea that the executives of Coca-Cola want to sue the executives of Coke Zero (i.e., other executives within the same company) for "taste infringement" because the taste is so similar. Personally, I find commercials about faux lawsuits HILARIOUS. Ha ha ha. Except...if there isn't currently a cause of action for "taste infringement," with the expansion of IP rights, it may only be a matter of time... This turns the joke about how hard it would be to establish taste infringement on its head. Ironically, the commercial features Coke's actual lawyers. Yet more on this sorry story.
Posted by Eric at 09:14 AM | Content Regulation , Copyright , Domain Names , E-Commerce , Internet History , Licensing/Contracts , Marketing , Patents , Privacy/Security , Trademark | TrackBack
March 01, 2007
February 2007 Quick Links
By Eric Goldman
* The California Highway Patrol (which, for reasons unclear to me, has investigatory power here) has concluded that the Angelides campaign did not break any laws when they reverse-guessed URLs on Schwarzenegger's website and found an unrestricted page with a video of the Gov wondering about Assemblywoman Bonnie Garcia's "hot'' temperament because of her mixture of "black blood'' and "Latino blood'' and referring to Assembly Republicans as a "wild bunch." The CHP did recommend that Schwarzenegger's team tighten up their website security. Silly reminder: if you really want keep information a secret, don't put it on a website without password protection.
UPDATE: Greg Haverkamp points me to this document, which explains that the CHP has enforcement power over Penal Code 502 violations involving state computers. Interesting. In my mind, I see Erik Estrada revving up his PowerBook to bust some baddies...
* Voda v. Cordis Corp., 2007 WL 269431 (Fed. Cir. Feb. 1, 2007). Patent owner can't litigate infringement of foreign patent rights in US court as part of supplemental jurisdiction over a US patent infringement claim. Patry's writeup.
* NYT on how YouTube indirectly motivates teens to deliberately do stupid things just for the opportunity to post them and perhaps get notoriety. I had a first-hand observation of this when I trolled through YouTube looking for a Listerine commercial that I might show in class while teaching a case involving Listerine. A search for the word "Listerine" in YouTube produces video after video of people doing stupid things with Listerine, like eating big stacks of their breath film or snorting the breath spray and then writhing in pain. Watching video after video of people repetitively doing stupid stunts, I felt like shouting to these people: "IF YOU'RE GOING TO DO SOMETHING STUPID ON YOUTUBE, AT LEAST BE ORIGINAL!"
* From Steve Bryant at eWeek: Shannon Stovall sues Yahoo for including her photo in Yahoo's welcome email, claiming Yahoo violated her rights of publicity/privacy to the tune of $10M compensatory damages and $10M punitive damages.
* Digg users may mark content they don't agree with as "spam." The most recent example is Danny Sullivan's post on SEO, which got Dugg and then was eliminated when anti-SEO Digg users flagged it as spam. If a website defers content grading to its users, it has to trust that they are reporting their feedback accurately. If they aren't, the whole user grading process breaks down. And speaking of breakdowns, there is an active secondary market for Digg votes--check out how Annalee Newitz bought front page placement on Digg for about $100.
* The always-colorful Chris Hoofnagle has released a new paper, "The Denialists' Deck of Cards: An Illustrated Taxonomy of Rhetoric Used to Frustrate Consumer Protection Efforts." By his standards, I suspect I've dealt a full house with some of my rhetoric! Now, I wonder if he's going to create a complementary deck for bogus rhetorical tactics used by consumer protection "advocates"?
* From the EFF: "Debbie Foster, a single mom who was improperly sued by the RIAA back in 2004 for file sharing, has won back her attorneys' fees." Capitol Records v. Foster, No. 04-1569-W (W.D. Okla. Feb. 6, 2007). Unfortunately, that hasn't stopped the plaintiff from advancing nonsense arguments in the case, including the specious argument that a computer owner is automatically responsible if third parties use the computer to infringe copyrights. Fred at the EFF rightly debunks this argument.
* Wikipedia article: "Wikipedia is Failing." Your perspective about success or failure may be influenced by the impressive traffic gains that Wikipedia is experiencing--Wikipedia is now one of the top 10 most trafficked websites. Most of that traffic is coming from Google.
* Doe v. Josef Silney & Assoc., No 07-04167CA15 (Fla. Cir. Ct. complaint dated Feb., 13, 2007). Golfer Fuzzy Zoeller sues an alleged vandal of his Wikipedia page for defamation and related torts. Fortunately, he left Wikipedia out of the suit. However, he only knows the IP address of the person who modified the page, and that IP address is registered to the defendant. Is owning the IP address enough to establish liability? Or is this like an RIAA blunderbuss sue-first, ask-questions-later approach? It seems like the lawsuit should have been against a Doe, with a subpoena to find out who actually edited the page using that IP address.
* US v. Twombly, 2007 U.S. Dist. Lexis 12664 (S.D. Cal. Feb. 22, 2007). A spammer challenges some criminal provisions of CAN-SPAM as vague and overbroad, but the judge has no problems reading the statute to facilitate sending spammers to the slammer. Venkat's writeup.
* CDT groks (and mostly bashes) a variety of online kid-protection bills proposed in Congress.
* From the NYT: Nancy Pelosi posted some videos from C-SPAN to her blog. The Republicans immediately attack her for "pirating" the videos. Turns out that those videos were actually recorded by the government, so they are in the public domain. Whoops! The Republicans had to issue a mea culpa retraction. However, Nancy did grab a C-SPAN-owned video elsewhere which she had to take down. If our legislative leaders can't figure out what video they can recycle, how in the world can less-trained lay people do so? Patry has more.
* A bearish view on domain name speculation from CircleID. I share the sentiment that domain names don't matter, so domaining and typosquatting strike me as a short-term arbitrage opportunity that inevitably will be mooted by a variety of forces. Thus, the idea of paying 40 or 60 years worth of revenue for a domain name is laugh-out-loud funny to me.
* The Long Tail notes that some brands, trying to build a more esoteric image, try to hide their ownership by mainstream mass-market brands, a phenomenon he calls "brand dis-synergy." Examples: Dagoba Organic Chocolate, Joseph Schmidt, Cacao Reserve and Scharffen Berger chocolates (all owned by Hershey) and Converse (owned by Nike).
* Veritas busted for manufacturing revenues via round-tripping with AOL (Veritas bought AOL ads and AOL bought Veritas software; each at inflated prices).
* What does "or" mean? According to the 8th Circuit, it can mean "and." Ken Adams is on the case.
* Ricky Hoggard Holman, a 18 year old high schooler in Sudbury, Canada, correctly blogged all 24 of the American Idol finalists. How? Online research, such as researching the MySpace pages of contestants and emailing their MySpace friends. He also talked to some of the booted final 40 contestants, a few of whom broke their punitive-laden confidentiality agreement to dish some dirt. Maybe he wasn't studying, but clearly he's learned a few things about the power of good old-fashioned research. (The article says he's a straight A student, so he clearly can balance many things). Nice job, Ricky!
Posted by Eric at 12:03 PM | Content Regulation , Copyright , Derivative Liability , Domain Names , Licensing/Contracts , Marketing , Patents , Privacy/Security , Publicity/Privacy Rights , Search Engines , Spam , Trademark | TrackBack
February 16, 2007
MySpace Suit for Liability for Sexual Assault Dismissed
By John Ottaviani
Doe v. MySpace, Inc., No. A-06-CA983-SS (W.D. Tex. 2/13/2007).
“If anyone had a duty to protect Julie Doe, it was her parents, not MySpace.” (Sparks, J.)
This is a HUGE win for MySpace! Plaintiff’s negligence and gross negligence claims were thrown out on two separate theories.
Eric and I have been debating for months whether Section 230 of the Communications Decency Act applies to real world physical injury relating to, but not directly resulting from, the publication of material on the Internet (here, the plaintiffs allege that a 14-year-old was sexually assaulted after giving her cell phone number to a 19-year-old she first met on MySpace.com, and that MySpace.com was negligent for failing to implement basic safety measures to prevent sexual predators from communicating with minors on MySpace). While the contest is not over, we finally have our first decision, and the score is now Eric – 1/John - 0.
Briefly, an 13-year-old girl in Texas lied about her age, and reported she was 18 when she joined MySpace.com and agreed to the terms of use. Subsequently, a 19-year-old initiated contact with her on MySpace.com. At some point, the girl provided the predator with her cell phone number and the two communicated over the phone for several weeks, after which they arranged to meet for a date, during which the girl was allegedly sexually assaulted. The plaintiff sued MySpace.com and its parent, News Corporation, for negligence, gross negligence, fraud and negligent misrepresentation.
At the outset, Judge Sam Sparks of the United States District Court for the Western District of Texas reviewed the legislative history of the Communications Decency Act of 1996 and several of the cases upholding immunity of an interactive service provider under Section 230 for claims other than defamation. In particular, the court relied on Zeran v American Online, Inc., a 1997 case where the victim of a vicious prank sued America Online, Inc. for failing to remove a false advertisement offering T-shirts featuring tasteless slogans related to the 1995 Oklahoma City bombing and instructed interested buyers to call the plaintiff to place an order. In that case, the Fourth Circuit affirmed the dismissal of the claims, because “Section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service”. In the MySpace case, the Court analogized the girl’s allegations that MySpace knew sexual predators were using the service to communicate with minors and failed to react appropriately, to Zeran’s claims that AOL failed to act quickly enough to remove the ads and to prevent the posting of additional ads after AOL was on notice that the content was false.
In my view, this analogy does not hold up. (Eric will disagree). In Zeran, the plaintiff argued that he was harmed because AOL failed to pull a defamatory posting quickly enough. In this case, the plaintiff’s claim was decidedly different: she claimed that she was harmed because of MySpace’s negligence in failing to take appropriate security measures, not because of any posting on the website. The Court, however, found this to be “artful pleading”, and dismissed the argument. “No matter how artfully plaintiffs seek to plead their claims, the Court views plaintiffs’ claims as directed toward MySpace in its publishing, editorial and/or screening capacities”. The Court concluded that MySpace was entitled to immunity under Section 230 and dismissed the plaintiff’s negligence and gross negligence claims with prejudice.
However, it is not clear whether this was a holding or is dicta, and here is where my theory of the case takes over. The Court then went on to also dismiss the negligence and gross negligence claims by refusing to impose a legal duty on MySpace to institute reasonable safety measures to protect minors from sexual predators. The Court refused to impose such a duty on MySpace, “when a minor is harmed after wrongfully stating her age, communicating with an adult, and publishing her personal information.” The Court also rejected an attempt by the plaintiffs to extend premises liability cases to the Internet context, particularly here, where MySpace provides its service to users for free. The Court analogized to the 2003 Doe v. GTE Corp. case, where the Seventh Circuit affirmed the dismissal of claims against the Internet services and web-hosting services provider for hosting images of athletes who were unknowingly recorded unclothed in a locker room, because web-hosting services have no duty to investigate their clients’ activities or prevent potential injury that results in therefrom.
The Court also dismissed the fraud and misrepresentation claims because they did not meet the heightened pleading standard of Federal Rules Of Civil Procedure 9(b). Rule 9(b) requires allegations of fraud to be stated with particularity. The court found that the plaintiff had not plead her fraud and misrepresentation claims with sufficient particularity and dismissed these claims without prejudice. According to the opinion, plaintiffs’ counsel also admitted in open court that the plaintiffs no longer wished to pursue the fraud and misrepresentation claims because the real basis of their cases was negligence.
It is not clear which of the Court’s Section 230 analysis or its negligence analysis is dicta, as it clearly did not need to go down both paths to dismiss the negligence and gross negligence claims. On the other hand, because the court did reject these claims on both grounds, MySpace is in a great position to fend off similar claims in other pending and future lawsuits. As a result, Eric and I will continue to differ on this issue until we receive more guidance.
In the end, while I have a great deal of sympathy for the girl and her family, as I have said previously, I have a hard time seeing that MySpace.com has any legal duty to protect its members (under age or of age), how it can protect its 14-year-old members better than their parents, or that there is sufficient causation to impose liability on MySpace for actions that occur in the physical world. Judge Sparks apparently agrees with me, with what is a candidate for the best legal quote of the first quarter of 2007, if not for the entire year: “If anyone had a duty to protect Julie Doe, it was her parents, not MySpace.”
A copy of the decision can be found here.
Other discussion about this case:
* Associated Press
* Tim Armstrong of Info/Law
* Internet News
* WSJ Law Blog (funny comments there)
* Denise Howell of Lawgarithms
* Evan Brown of InternetCases
[Eric's addendum: I just wanted to make 2 brief additional points to John's excellent post. First, as he predicted, I disagree with him about the merits of this case. As this case and others have repeatedly shown, 230 is even broader than people initially assume. It was obviously applicable here to the negligence claim, and when the plaintiffs gave up their misrepresentation claim, they doomed themselves to being squarely governed by the Zeran precedent. Second, I think this case is a huge win for MySpace and an interesting read generally (especially the discussion about virtual premises), so I'm planning to add this case to my Cyberspace Law syllabus next year. Whether you agree with the outcome or not, the opinion is worth reading. Eric.]
Posted by John Ottaviani at 10:39 AM | Content Regulation , Derivative Liability | TrackBack
February 09, 2007
Humane Society Barks at the Wrong Defendant--Humane Society v. Amazon
By Eric Goldman
The Humane Society of the United States v. Amazon.com (DC Superior Ct complaint filed February 8, 2007)
I'm going to start this post with two (relatively uncharacteristic for me) moralistic assertions that I think are largely beyond serious debate:
Proposition #1: dogfighting and cockfighting (and other types of animal fighting) are sadistic and disgusting "sports" that have no place in our society. I support laws prohibiting these activities to protect the unwilling animal victims of this sadism, and I further enthusiastically support the efforts of organizations like the Humane Society that attempt to shut down the purveyors of dogfighting and cockfighting.
Proposition #2: I think it's disgusting that Amazon carries magazines and videos supporting the dogfighting and cockfighting "industry." If I owned Amazon, I would drop those media products as a matter of principle, no matter how profitable (in fact, I doubt it's very profitable). I don't think a faux "free speech" justification for adding this to the magazine line really works here. Amazon exercises its right to speak by deciding what to carry; it has no compulsion to carry these media products, and it can and should choose not to do so.
But I am also very, very frustrated by plaintiffs who just don't "get" 47 USC 230, so let's reiterate (yet again) Cyberlaw 101. It's not that complicated. Because of 47 USC 230, Amazon isn't liable for third party content, PERIOD, unless it involves IP, the ECPA or federal criminal law. It's really that simple. Yet, it seems like plaintiff after plaintiff must personally experience the ritual first-hand--plaintiff files complaint against Internet company for third party content, defendant files motion to dismiss, judge hands out emphatic loss. Why must plaintiffs go through this doomed dance? Why, why, WHY?
It's particularly heartbreaking to see the Humane Society tee itself up for a resounding failure because it detracts mightily from its otherwise important and sad story. The Humane Society has launched an ambitious campaign against various providers of media catering to dogfighting and cockfighting clientele. Good for the Humane Society! I hope they succeed wildly. But, in a baffling display of legal ignorance, they also sued Amazon for selling the media, both for selling magazine subscriptions and for enabling merchants to advertise videos in its marketplace. WRONG, WRONG, WRONG. Amazon's behavior here is fully covered by 47 USC 230, just like eBay is fully protected for auctions on its site. See, e.g., Gentry v. eBay (sale of fake sports memorabilia); Stoner v. eBay (sale of bootleg recordings).
Specifically, the Humane Society claimed violations of DC's consumer protection law based on violations of various federal laws. These claims are preempted as a "state" law. The Humane Society can't salvage the claims by asserting they are derived from federal criminal law; a civil claim based on a federal criminal law is still preempted by 47 USC 230. See Doe v. Bates.
It appears that the Humane Society is trying to get around this in part by claiming that Amazon is the merchant of record, so Amazon can't claim that the media products are really third party content. I might be more sympathetic to this argument if Amazon took possession of the media products and sold them from its inventory for its own account. However, it appears that Amazon is just an ordering front for the magazine, which is fulfilled directly by the publisher, and with respect to the videos, these appear to be merchant listings delivered directly from the merchant to the buyer. It appears that Amazon is just the cheese in the sandwich, much like eBay. Therefore, I think it would be disingenuous to characterize Amazon as the seller.
The Humane Society also claimed violations of DC's consumer protection laws based on misrepresentations (basically, saying the magazine/video content is legal, when it isn't). I'm not sure the facts even support this claim; but if they do, I think these claims are also generally preempted by 47 USC 230 when based on third party content (although I don't think John O. agrees).
News reports have also indicated that the Humane Society is trying to get state prosecutors to bring a civil enforcement action against Amazon. These, too, are preempted by 47 USC 230. Therefore, despite the multi-pronged legal attack against Amazon, all of the prongs look destined for failure.
While I'm sad that the Humane Society didn't do its legal homework, I want to reiterate my Proposition #2. Amazon should voluntarily drop the magazines and wipe the videos off its site--not to minimize its own legal liability, but because the content of those media products is probably illegal and because it's the right thing to do. Until Amazon makes this choice, I will think less (a LOT less) of its brand.
Posted by Eric at 09:41 AM | Content Regulation , Derivative Liability | TrackBack
December 13, 2006
Unlawful Internet Gambling Enforcement Act of 2006
By Eric Goldman
No one is better at coughing up legislative hairballs than Congress. The Unlawful Internet Gambling Enforcement Act of 2006 (grafted to the end of the SAFE Port Act) was passed over 2 months ago, but my repeated attempts to blog on it have been stymied by its Byzantine drafting. If you want a flagship example of how special interest lobbying combined with legislative mumbling can produce an unreadable mess, check out this beauty.
The statute assumes that some gambling is unlawful under state/federal law, but it doesn’t say what. For example, there is a split of authority about whether the Federal Wire Act (18 USC 1084) already prohibited Internet gambling. This law doesn’t answer that question for us, although the statute (in response to special interest lobbying) “helpfully” excludes a number of specific gaming-related activities from its purview.
Because of the existing legal uncertainty and this statute’s deliberate decision not to address the uncertainty (see 31 USC 5361(b), saying that this law doesn’t change any state/federal/tribal law prohibiting or permitting gambling), no one knows with confidence what actually constitutes illegal Internet gambling. Despite this, Congress prohibits those engaged in the business of betting/wagering (an effectively undefined term) from accepting money in connection with illegal Internet gambling. In other words, Congress can’t figure out what’s illegal, but it’s happy to require some financial gatekeepers to make those decisions for it. There is some rulemaking to work out the procedures for how money should be blocked (AG Gonzales and the Federal Reserve Board get the pleasure of drafting those), so we’ll have to see what the rules say before we can tell how conservative financial gatekeepers will become.
To me, the more interesting piece relates to liability for interactive computer services. As a starting point, 47 USC 230 already immunizes ICSs from any liability based on state gambling laws or any federal civil laws related to gambling. However, 230 does not insulate ICSs against federal criminal laws. Thus, for example, if the Wire Act applies to Internet gambling, 230 would not apply, and ICSs could be criminally liable for third party gambling activity.
The statute partially reduces the 230 limitations by allowing the DOJ or state AGs to seek a court order requiring ICSs to take down a lawbreaking website. 31 USC 5365(c). Without this statutory exception, 230 should have barred any civil orders. At the same time, the statute appears to expand 230 protection to eliminate ICS liability under the Wire Act unless the ICS has “actual knowledge and control of bets and wagers” and owns or operates an illegal gambling website. I’m not exactly sure it means to have “actual knowledge and control of bets and wagers,” but my suspicion is that this defines a very narrow universe of activities. So, on balance, it looks like this law may have slightly expanded ICS immunization by providing some limits on ICS liability for third party criminal gambling activities.
Posted by Eric at 12:34 PM | Content Regulation , Derivative Liability , E-Commerce | TrackBack
November 29, 2006
Nov. 2006 Quick Links
By Eric Goldman
My monthly roundup of noteworthy tidbits:
* Yesmail, an email outsource vendor, was busted by the FTC under CAN-SPAM for failing to honor opt-out requests because Yesmail's incoming email filters blocked those opt-out requests as spam. This strikes me as a particularly messy technological dilemma--even email outsource vendors need spam filters, but if those filters nab opt-out requests, the FTC isn't showing any sympathy. So it looks like email outsource vendors will need to use less vigilant spam filters or find some way to direct opt-out requests to a non-filtered email server.
* Best Western Int'l Inc. v. Doe, No. 06-1537 (D. Ariz. Oct. 24, 2006): griper defeats trademark infringement and dilution claims due to the lack of "use in commerce in connection with goods or services." (HT: BNA's E-Commerce and Tech Law Blog).
* Simmons v. Florida, SC04-2375 (Fla. Sup. Ct. Nov. 16, 2006). Very troubling ruling from Florida upholding the criminal conviction of a defendant for disseminating harmful to minors material online. First, breaking with an unbroken string of cases dating back to 1996, it upholds the state law prohibiting the dissemination of harmful to minor materials over the Internet from a Constitutional challenge. In the past, these laws uniformly have been struck down under the First Amendment or the Dormant Commerce Clause (or both). Second, the statute applies only to email, but it was used to bust someone communicating via instant message. These types of technology-specific statutes create these odd silos that create too much ambiguity. Declan's writeup.
* McDonald's is seeking a patent on using a "sandwich delivery tool" to deliver filling (like ham) to a "bread component." This could be the greatest thing since sliced bread!
* From Greg Linden's blog: Google surveys its users and they say they want more results per page. So Google tests a search results page with 30 results/page. The result? A 20% drop in traffic! Note that a 10-result page takes 0.4 seconds to load, while a 30-result page takes 0.9 seconds, so the working theory is that an extra 0.5 second latency deterred a lot of searching. This may give a little insight into why Google is fighting so hard on net neutrality. If Google does get relegated to a slow lane, it may lose lots of searches.
* A band called Bones registers a MySpace account at http://www.myspace.com/bones and, over the course of 2 years, accrues 2,100 friends. Fox, the owner of MySpace, decides that it would prefer to have that URL for its TV show Bones, so it boots the band and puts up a page for the TV show. Can Fox do this legally? It all depends on the contract (but I'm skeptical that the contract was this broad). For some background on taking virtual assets, see my prior discussion on the sex.com litigation and account ownership in virtual worlds. In any case, Fox relented and gave the URL back to the band. But this is a good reminder that, if you care about your web presence, don't build up goodwill in a URL controlled by someone else.
* FTC busts Guidance Software for inadequate security. According to Internet News: Guidance's privacy policy said it "takes every precaution to protect our users' information," "your information is protected both online and offline" and it protected data "with the best encryption software in the industry – SSL." Yet, Guidance suffered a security breach that resulted in the leak of 4,000 credit card numbers; and the breach wasn't detected for 3 months. I'm not entirely sure what to make of this--was this enforcement action based solely on overstatements in the privacy policy, or was it based on poor security practices regardless of the privacy policy? My vote is that it's the latter based on the BJ's Wholesale Club precedent.
* A consumer group filed a complaint against Zillow for doing a lousy job of providing valuation estimates. While Zillow's estimates may be poor, this complaint raises some troubling concerns about the liability associated with any web-based price estimate service. Could developments in this matter affect Google's PageRank as a valuation of the worth of web pages?
* Ted Leonsis, vice chair of AOL, didn't like the search results when he vanity searched. So he vowed to improve his Google profile, launching a high volume blog that helped drive preferable results to the top of the list. My advice to Ted: enjoy the favorable placement while it lasts; you're only one Googlebomb away from disappointment.
* We are generally conditioned to think that every searcher gets the same search results for the same search. This model is progressively breaking down due to personalized search and other innovations. A catalog of reasons why search results vary for searchers. I eagerly await the time when courts recognize this fact when dealing with search engine cases!
* A DoubleClick study claims that 30% of consumers admitted that they sometimes click on banner ads, but 61% of consumers said that at least sometimes they made a mental note of the advertisers and followed up with them later. If true, this means that banner ads generate a lot more value than is measured by clicks alone. However, I wonder if this result should be chalked up to the "talk is cheap" category?
* It's like a well-worn joke: if you'll believe that, I've got a bridge to sell you. But no joke: they may be selling the Golden Gate Bridge--well, at least, corporate sponsorships for it. Of course, the bridge is so iconic that a brand owner could get significant goodwill from being associated with it. On the other hand, it's the world's leading suicide destination; not exactly the best corporate tie-in for many brands.
* According to one anti-spam vendor, "9 out of 10 emails now spam." At this rate, pretty soon it will be 11 out of 10 emails.
Posted by Eric at 11:47 AM | Content Regulation , Marketing , Patents , Privacy/Security , Search Engines , Spam , Trademark | Comments (4) | TrackBack
November 21, 2006
Griping Blog Post Leads to Lawsuit--BidZirk v. Smith
By Eric Goldman
BidZirk, LLC v. Smith, 2006 WL 3242333 (D.S.C. Nov. 7, 2006)
Despite all of the hype about blog law, the reality is that we've had comparatively few blog-specific lawsuits. As a result, we give extra attention to the early disputes (like this one) as possible predictors of what's to come.
This case involves a classic griping blog post. The author, Smith, runs a blog called Fix Your Thinking, which purports to cover "editorial news & news commentary covering eBay & Apple drama." On Dec. 31, 2005, he ran a lengthy post entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story " In this post, he relates his unfavorable experiences with BidZirk, one of the many companies that help people resell goods on eBay. As part of this post, he used BidZirk's logos several times.
In response to this gripe post, BidZirk sued Smith for Lanham Act violations, defamation and invasion of privacy. Smith fought back with unspecified counterclaims. At a March 16 hearing, Smith promised to remove all but one of BidZirk's logos. On April 10, the judge denied BidZirk's motion for a preliminary injunction because Smith's use of the trademarks was for news reporting and commentary (which isn't actionable under trademark law). BidZirk has appealed the denial of the preliminary injunction to the Fourth Circuit Court of Appeals.
In the Nov. 7 ruling, the judge evaluates BidZirk's motion to dismiss Smith's counterclaims for lack of federal subject matter jurisdiction. Smith's counterclaims relate to his experiences with BidZirk and their dealings in litigation, neither of which the court felt were close enough to BidZirk's claims over the blog post to mandate consolidation, and there was insufficient basis to support federal jurisdiction otherwise. Presumably, Smith can reflie his claims against BidZirk in an appropriate state court.
Putting aside the procedural technicalities, I'm still stuck on why the plaintiff brought this lawsuit in the first place. Smith posted a very idiosyncratic story to a relatively low-profile blog about a small eBay reseller with 3 storefronts in South Carolina. As a result, I assume that very few people would notice the post, let alone be influenced by it. The lawsuit just escalate the attention paid to the post. Meanwhile, I haven't been able to work through all of the facts, but on its face the trademark claim appears pretty bogus, and the defamation and invasion of privacy claims could be as well. So I have an especially difficult time understanding how this lawsuit is economically rational. Finally, given the website modifications that Smith has already made, I can't figure out why BidZirk thinks that a preliminary injunction is worth pursuing all the way to the Fourth Circuit.
Of course, there is always the possibility that this lawsuit is not about the merits and instead is just an abusive effort to punish a blogger for speaking out.... In any case, the seeming illogic of this lawsuit illustrates why there are comparatively few blog-related lawsuits. Most of the time, it just doesn't make sense to sue over a blog post.
Posted by Eric at 02:11 PM | Content Regulation , E-Commerce , Publicity/Privacy Rights , Trademark | Comments (4) | TrackBack
November 03, 2006
October 2006 Quick Links
By Eric Goldman
* All the media wants to do is talk about Google. All Google, all the time. Three major pieces in the span of three days: The NYT on lawsuits against Google. The WSJ on Google's hiring practices. The Washington Post on Google's culture.
* William Slawski discusses some of Google's patent applications for technologies to minimize trademark liability for keyword-triggered ads. A new patent application (with Google's senior trademark counsel listed as an inventor!) was recently published entitled "Automated screening of content based on intellectual property rights." The patent application generally provides a system for bouncing ads that might be infringing. It's interesting that Google wants to patent this system to keep competitors from using it--Google already stands alone among the major search engines in continuing to permit unrestricted competitive keyword buys.
* Randall Stross on how venture capitalists like to invest their money within a 20 minute drive--one of the reasons why the Silicon Valley community is self-reinforcing. Even now, with fancy virtual technology, geography still matters--a lot.
* I've previously blogged on the dark side of consumer-generated content--that it can be a huge liability trap for unsuspecting consumers. And if consumers ever figure this out, we'll see the supply of consumer-generated content dry up. On that note, a negative peer review of a doctor led to a judgment of $142M against the reviewer, $32M against his colleagues, and $161M against the hospital. The judge haircut this down to "only" $23M, with only $12M coming from the reviewing doctor. With numbers like that, all of us are going to keep our mouths shut!
* Like we couldn't see this train wreck coming. Utah passes a law that kids' email addresses can be registered on a do-not-spam list. Whoops, the registry divulged some of these email addresses--gee, thanks for the help protecting the kids from porn spam.
* BusinessWeek has an important article on the impossibility of getting accurate metrics of online activity. If you are drafting web contracts, you as the lawyer absolutely need to clarify whose numbers will govern the contract (and, if the vendor's number controls, you may want to specify the methods for counting).
* CNET has a goldmine of emails and other documents from the HP pretexting scandal. Great fodder for real-life cautionary tales.
* Pinnacle was busted for running a Ponzi scheme. It turns out that Pinnacle had run ads in major publications like Newsweek and the WSJ. So the WSJ Law Blog surveys 2 experts--are newspaper publishers liable for fraudulent ads provided by their advertisers? Answer: No.
* Los Angeles Boy Scouts can earn a "Respect Copyright" activity patch. See the patch here.
* Braver v. Ameriquest Mortgage Co., CIV-04-1013-W (W.D. Okla. Oct. 20, 2006). Spammer generates mortgage leads, including one from an Oklahoma resident, and resells to defendant mortgage lead broker, who in turn flips the leads to Ameriquest. Mortgage lead broker is based in SC and sued in OK. Court grants broker's motion to dismiss for lack of jurisdiction. For more on the plaintiff's multi-year quixotic legal quest, see here.
* A now-familiar story. Teens party hard. Someone snaps photos and posts to MySpace. School finds out and disciplines partiers. The twist? The school only disciplined the female partiers, leading to a sexual discrimination lawsuit.
* Politicians are being Google-bombed by opponents to advance material critical of them.
Posted by Eric at 10:16 PM | Content Regulation , Copyright , Derivative Liability , E-Commerce , Licensing/Contracts , Search Engines , Spam , Trademark | TrackBack
October 09, 2006
Must Websites Comply with the ADA (and State-Law Equivalents)? National Federation of the Blind v. Target
By Eric Goldman
National Federation of the Blind v. Target Corp., No. C 06-01801 (N.D. Cal. Sept. 6, 2006)
This case got a fair amount of attention when it first came out, so I'm a little late to this party. However, I think there were some key points from this case that got overlooked.
Must Websites Comply with the ADA?
To the limited extent addressed by the precedent, websites have not been obligated to comply with the ADA (or similar anti-discrimination laws). See, e.g., Access Now v. Southwest Airlines; Noah v. AOL. This is because the laws apply to physical spaces, not virtual spaces. This opinion breaks with the precedent by denying a motion to dismiss by target.com. Thus, this case could stand for the proposition that websites may be required to comply with the ADA.
However, I think this opinion is substantially narrower than that. The court says that target.com may be tightly integrated with Target's physical stores to the point where the inability to use the website may interfere with blind people's ability to fully enjoy the physical stores. (On that front, FN 4 is telling: "It appears from a review of the website in question—which the court notes is not in evidence but nonetheless does raise some questions—that Target treats Target.com as an extension of its stores, as part of its overall integrated merchandising efforts.")
Thus, this reasoning should only apply to "bricks 'n' clicks" retailers who have both physical and online stores and integrate the two. Thus, the reasoning does not apply to pure e-commerce retailers with no offline stores or to web publishers of any sort. It should also exclude retailers who completely separate their online and offline stores.
(Having said that, it's a no-brainer that businesses should try to accommodate blind visitors to their websites; not only are blind visitors a valuable market segment, but it's the right thing to do).
In any case, the court just refused a motion to dismiss. As a result, Target's ultimate liability remains to be determined. It may be noteworthy that the judge denied the motion for a preliminary injunction despite the favorable legal ruling to the plaintiff.
Must Websites Comply with State-Level ADA Equivalents?
I think the even more important ruling in this case relates to the dormant commerce clause (DCC). Based on the DCC, Target tried to dismiss claims under some California state laws that overlap the ADA. This is not a new issue on the Internet--there is a pretty good list of DCC cases, but with an odd split. In one line of cases, I believe every court that has opined on state anti-Internet porn laws have deemed them invalid under the DCC. In contrast, most other courts, especially those involving anti-spam laws, have upheld state Internet regulation from DCC challenges.
Here, Target argues that the CA ADA-equivalents will have an extraterritorial effect by forcing Target to change its website even for non-CA residents. Judge Patel breezily dismissed this argument, saying that Target should just build a CA-specific website to comply with CA law. She continued:
Pataki asserts that someone who puts content on the internet has “no way to determine the characteristics of their audience . . . [such as] age and geographical location.” Pataki, 969 F. Supp. at 167. This is simply incorrect. It is common practice for websites for entities operating in multiple countries to have a single site that directs customers to different versions based upon language. Websites can determine the location of a user from information they provide, such as a credit card number, or from the internet service provider an individual uses. It may, or may not, be prohibitively expensive for a website to tailor its content based on the location of its users, but it is certainly technically feasible.
It's true that this is technically feasible, but that's hardly insightful. Other than outcomes that break the laws of physics, anything is possible with the proper application of time and money. But this argument misses two critical points.
First, applying CA law here to require Target to display an interstitial page to request geographic information from web visitors may regulate the interaction between two entities not resident in CA. (This is harder to see when Target chooses to do business generally in CA, but consider this argument in the context of the Alaska anti-adware law where I believe no adware vendor is resident in Alaska but they still must ask non-Alaskan residents for geographic information due to the Alaska law.) This is exactly the kind of extraterritorial effect that the DCC should preclude. This is also a place where the Internet is just different from offline circumstances because of an implicit tautology: the laws require websites to authenticate visitors to determine if these visitors trigger the website's requirement to comply with the law--thus, the laws required the websites to take certain steps even in the circumstances where the laws don't apply because the interaction is between two non-residents. (Which is almost certainly true in 99%+ of adware downloads putatively governed by "ask geography before downloading" requirement of the Alaska anti-adware law).
Second, and more importantly, this would be a terrible policy result. It's hard to imagine the counterfactual Internet where every website visitor is bombarded by interstitials or pop-ups from every website requesting geographic information before they can proceed to see the website's contents. This would be a horrible user experience that would inhibit the seamless floating from website to website that characterizes the web's link economy. We just won't go across websites as freely as we do today. Also, some users would be uncomfortable with providing geographic information to the website. (Some users provide this geographic information unwittingly through their IP addresses, but many do not).
The battle over geographic authentication rages on, and this case's pithy analysis doesn't do much to advance our understanding. Nevertheless, it gives us another important data point that our days of being able to browse the web without constant self-reporting of geography may be numbered. Personally, if that comes to pass, I'll miss the Internet the way it is today.
Posted by Eric at 02:50 PM | Adware/Spyware , Content Regulation , E-Commerce , Spam | TrackBack
September 22, 2006
Texas Assistant Principal Sues Students and Parents Over Defamatory Profile on MySpace.com
By John Ottaviani
High school students have been battling with and lampooning their assistant principals for generations. Last Spring, students in San Antonio, Texas, applied 21st century technology to the practice, when they allegedly set up a profile for their female assistant principal on MySpace.com, using her name and picture as if she has posted the information herself. But these students went too far. The profile contained the assistant principal’s name and picture, as well as other “lewd, defamatory and obscene comments, pictures and graphics,” including the false statement that she is a lesbian.
The profile was up for about a month before another teacher at the school told the assistant principal about the website. Apparently, MySpace took the site down as soon as it was notified that the assistant principal did not post the information. After an internal investigation, the school identified at least two students as either creating or assisting in creating the webpage.
According to an article in MySanAntonio.com, one of the students was suspended for three days, and the other had to attend a parent conference. After the police department was called in to investigate, criminal felony charges were also filed against one of the students.
It doesn’t end there. The assistant principal has now filed a complaint in Texas state court alleging causes of action against the students for defamation, libel per se, and gross negligence. The assistant principal has also sued the parents of the students, alleging that they negligent breached their duty to the assistant principal to supervise the activities of their children as they access the Internet. The complaint seeks an unspecified amount of compensatory and punitive damages, lost wages, damages for emotional distress and mental anguish, and reimbursement of medical expenses.
The assistant principal’s primary goal is accountability, according to her attorney. She wants the students to face consequences.
Interestingly, the complaint does not name MySpace.com as a defendant. This could be a recognition by the assistant principal’s attorney that Section 230 of the Communications Decency Act would probably absolve MySpace.com from liability in this situation.
As I have argued previously, I have a hard time seeing that MySpace.com has any legal duty here other than to take down offensive content when notified. This case may, however, be the first to test my argument that it is the parents of teenagers who are better situated to protect their children and others from harm that their children may cause with their computers.
A copy of the complaint can be found here.
Posted by John Ottaviani at 02:20 PM | Content Regulation , Derivative Liability | Comments (1) | TrackBack
June 23, 2006
Google Child Porn Lawsuit Withdrawn--Toback v. Google
By Eric Goldman
Sensing that his 15 minutes of fame was up, Jeffrey Toback has withdrawn his lawsuit against Google regarding Google's alleged facilitation of child pornography. This withdrawal is hardly surprising given the lawsuit's complete lack of merit. Nevertheless, I am a little disappointed that the lawsuit won't proceed--I was actually looking forward to the schadenfreude of a judge issuing an opinion ripping Toback to shreds. Fortunately, the blogosphere has been doing a pretty good job on that front. I think Alex E. hit the nail on the head when he crowned Toback "Dorkus Maximus." This is the kind of devastatingly accurate nickname that can become permanent.
But I'm still holding out hope that my schadenfreude desire will be satisfied. Election season is coming up, and I trust that Toback's constituents have learned some valuable insights about the "quality" of lawmaking that they are getting from him.
Posted by Eric at 05:20 PM | Content Regulation , Derivative Liability , Search Engines
June 08, 2006
Congress to Make Search Engine Bias Illegal?
By Eric Goldman
Like we couldn't see this coming. To make the point that the content providers are playing with fire, one member of Congress has proposed to sweep them into the Net Neutrality legislation (see the text). Ha ha.
I must say, I really don't understand why companies like eBay and Google have forced the Net Neutrality issue. I understand that in theory price discrimination could work to their disadvantage, but there are so many reasons not to get Congress involved now:
* the IAP's price discrimination is purely hypothetical today. No one is doing it today, and it's not clear that price discrimination by IAPs is either technologically sensible or sellable in the market.
* Congressional regulation of hypothetical technological issues never works out well (Congress isn't so hot with real live issues either). This issue, in particular, is nuanced, and nuanced policy-making is never Congress' strength.
* This issue has become partisan, with the party in control on the "wrong" side to the content providers' positions. And there are powerful economic forces opposing the content providers. (UPDATE: BusinessWeek explains the paralyzing lobbying power of the telcos).
* as we've seen, this issue could backfire if Congress starts asking questions about the discriminatory choices made by content providers. Google is especially walking a thin line given how many questions have been raised about its "discriminatory" ranking practices (see here and here and here and here).
Maybe it's too late after all their drum-beating, but my advice to Google, eBay and all the other content providers pushing the Net Neutrality issue:
LET SLEEPING DOGS LIE
Posted by Eric at 10:40 PM | Content Regulation , Search Engines | Comments (2)
"Must Carry" Lawsuit Against Search Engines--Langdon v. Google
By Eric Goldman
Langdon v. Google, 1:06-cv-00319-JJF (D. Delaware complaint filed May 17, 2006)
Omigosh, will these lawsuits over search engine editorial discretion ever cease? Earlier this week I reported on (yet another) lawsuit against Google for dropping a website in its rankings. Now, this latest lawsuit claims that the search engines squelched various political ads and de-indexed the plaintiff's website.
I won't do a thorough deconstruction of the lawsuit because it has zero chance of success. It was filed pro se and doesn't conform to standard procedural rules about complaints. More importantly, it lacks legal merit on its face. The complaint is principally based on the loser argument that a search engine is a public forum—an argument which has already been rejected a number of times.
I feel a growing ennui about with these unmeritorious pro se complaints/publicity stunts against search engines, so normally I would have passed on blogging about this. However, I thought the requested relief (see page 28 of the complaint) was remarkable enough to warrant a mention. There, the plaintiff says:
"I ask for the following relief...(c) that Google-AOL, Yahoo! and Microsoft be required to place my ads for my websites...in prominent places on their search results for searches of my choosing; (d) that Defendants Google-AOL and Yahoo! honestly rank my websites...in their search results, as Microsoft does..."
Wow, what plaintiff wouldn’t like this relief? Many websites pay search engines a lot of money for these benefits, but if guaranteed prominent ad placement and an “honest” (i.e., better) ranking is available from a judge, you can only imagine the line to the courthouse. Lawyers would displace the SEM/SEO industry entirely!
I thought the “must carry” demand implicit in (c) is particularly interesting. Recall that from Miami Herald v. Tornillo, a statutory must-carry rule applied to newspapers violated the constitutional freedom of the press. Given the very specific justifications for tighter regulation of broadcasting, and that those bases have been held inapplicable to the Internet (see, e.g., Reno v. ACLU), I think (for these purposes) that search engines are more appropriately analogized to newspapers instead of broadcasters. Accordingly, I can’t see how any judge could constitutionally order “must carry” relief here.
If I were one of the search engines sued, I’d look at this lawsuit as a blessing, not a nuisance. If the search engines play their cards right, maybe this case can produce some unambiguous and favorable precedent clarifying their right to exercise their editorial discretion (beyond the Search King precedent). That precedent, plus maybe some sanctions or anti-SLAPP relief, may help to inhibit future unmeritorious claims.
Hat tip: Wired News blog.
Posted by Eric at 12:46 PM | Content Regulation , Marketing , Search Engines | Comments (3)
May 25, 2006
Teenager Busted for Creating Fake "News" Story
By Eric Goldman
It seems like every day there are new stories about teenagers doing stupid things online, but this story still struck me as interesting and unusual.
The incident involves a website, Cheezus.com, that asks the user to submit a name and location. The site then populates this data into a pre-authored "story" about sexual misconduct. You can see a test example here. (I entered the terms "Plato," "Athens" and "Parthenon"; the rest of the page is provided by the website--and apologies to any Plato descendants for besmirching his name). Perhaps this website does more than other sites to increase the apparent authenticity of the resulting page, but it's not hard to find many similar websites that play off the same riff.
According to the Milwaukee Journal-Sentinel, a 14 year old middle-schooler used the site to create a fake story about his teacher as retribution for a low grade. The teenager then printed out the pages and distributed the story to some of his school chums. A few students turned the story over to the school's "cop," and the teenager was busted. As a result, the teenager received a ticket for disorderly conduct plus a school suspension.
So the key question is: when does a gag cross over to impermissible mischief? We engage in a variety of deceptions for humorous purposes (April Fool’s gags are a leading example), but at some point a gag can have a pernicious effect on its target. However, I’m not sure I know the border between funny and illegal, and I doubt a teenager does either.
In this case, the gag had extra potential to cause mischief because student readers may have struggled to assign the appropriate level of cognitive authority to the web page printout. This, of courses, raises a complex issue about the ability of readers (especially students) to figure out what’s legitimate and what’s bogus online (and offline too). If anything, the website may have established too much credibility--it uses a fancy "Times" masthead, has a page layout that resembles a typical online page layout for newspapers (even down to the weather graphic in the upper left), has a byline and photo, and sounds internally credible. Perhaps it looks even more authoritative when printed out.
But it's still just an Internet page, and it's trivially easy to manufacture bogus Internet content. Perhaps students are getting this message, because the article says that students did suspect it was a prank. If so, I’m not sure why any punishment was required.
As for Cheezus, I’m pretty tolerant of websites doing stupid things, but this particular website bothers me from both a legal and ethical standpoint. From an ethical standpoint, the website is designed to capitalize and reinforce reader misperception without giving the reader any clue that this is a gag. I’m not saying this website goes too far, but I would be a lot more comfortable if the website was either less credible-looking or more outlandish. Otherwise, the website is practically leading its users into a problematic spot. Certainly I can see how a teenager author might be easily led astray.
From a legal standpoint, this website might qualify for 47 USC 230 because the defamatory content comes from a third party filling out a web form (see Carafano, Roommate.com, Prickett). But it might not. The website authors wrote salacious content that they knew was false. At some point, the website authors own the words they write.
Finally, the article raises a variety of other interesting dynamics, including the efficacy of Internet filtering at schools and the risks that we as teachers face for giving out low grades.
Posted by Eric at 02:01 PM | Content Regulation , Derivative Liability | Comments (4)
May 11, 2006
Quick Links May 2006
By Eric Goldman
My blogging queue has gotten too thick. Here's some items that caught my attention that I've been meaning to blog and simply haven't gotten to.
* I previously blogged about Chris Wilson, the website operator who allowed users to post pornography and was then prosecuted for distributing pornography under state law. I argued then that such prosecutions were immunized by 230. According to AP, in January, Chris pleaded no contest to 5 counts of possession of obscene material (this news report sounds garbled; the crime of possessing obscene material, without more, should protected by Stanley v. Georgia). For this, in April, he was sentenced to 5 years probation.
* Deborah Wilcox has written an article about situations when trademark owners should NOT send a trademark cease-and-desist letter. Given how many trademark plaintiffs' lawyers mistakenly shoot first and ask questions later, this article raises an important but overlooked perspective.
* The blogosphere is doubling every six months. 4 million bloggers update their blogs at least weekly.
* Cedric reports that, in February, Google finally won an AdWords case in France.
* 310,000 consumers were affected by Lexis-Nexis' data breach. Lexis-Nexis offered them a free year of credit monitoring services. Only 6% took Lexis-Nexis up on the offer, a number that's similar to other such offers (Citibank only had a 4% signup rate). Bob Sullivan tries to figure out why. Among the theories:
- consumers discarded/ignored the notification as junk mail
- consumers were suspicious that the free offer wasn't going to be free in the end
- consumers are apathetic about privacy issues
I have my own speculation about this, but I think the time for relying on intuition is long past. Instead, I think further empirical research is critical before more legislatures robotically rubber-stamp existing legislation designed to remediate data breaches. I remain suspicious that these mandated solutions are doing nothing to help the problem, and may in fact be exacerbating the problems.
* Barton Beebe's slides from his presentation, US Contextual Advertising Law, at the Fordham International IP conference in April.
Posted by Eric at 09:03 AM | Adware/Spyware , Content Regulation , General , Privacy/Security , Search Engines , Trademark
May 05, 2006
Google Sued for Child Porn--Toback v. Google
By Eric Goldman
Toback v. Google, Inc., No. 06-007246 (NY Sup. Ct. complaint filed May 4, 2006)
Yet another legislator has seized the public microphone to grandstand about Internet threats. This time the lucky legislator is Jeffrey Toback, a member of the Nassau County Legislature, and the threat is that Google puts ads over third party child porn. Instead of passing an unconstitutional or ill-informed law (the typical legislative solution), this time the legislator has taken his battle to the courts, suing Google in a NY state court.
I haven't seen the complaint, so it's impossible to determine the cause of action (or Mr. Toback's standing to bring the enforcement action) from the AP report. But it doesn't matter--I'm 95% confident that any cause of action brought by Mr. Toback will be preempted by 47 USC 230--motion to dismiss, case over. For a great example of this, recall Doe v. Bates, where the court specifically rejected a civil lawsuit based on federal child porn laws when the content had been posted by third parties.
So this case seems DOA. My recommendations to Mr. Toback:
1) Enjoy your 15 minutes of AP stardom
2) Then, withdraw your complaint to avoid wasteful and futile litigation
3) Then, stick to doing what you do best, like passing unconstitutional and ill-informed laws rather than bringing ill-informed lawsuits
UPDATE: The plaintiffs' press release.
UPDATE 2: I have now gotten a copy of the complaint. I can confirm that this lawsuit is just a publicity stunt, and a pathetic one at that. Among other evidence of cluelessness, the complaint uses a wacky definition of "child pornography" (defined as "repulsive material that is illegal to distribute to children") that no knowledgeable lawyer would use. Further, by coopting such a baggage-laden term, the complaint (and associated press material) misdirects just about everyone who doesn't read the complaint closely.
Further, consistent with its status as a press release rather than a serious legal document, the complaint takes numerous gratuitous shots at Google, including swipes for doing business in China and using user data to target ads.
As for the legal merits, the complaint makes an argument that Google is a mall owner and its advertisers are its tenants, and therefore Google has the same legal duties to police tenants as landlords do. I'm not making this up. It appears that the drafters don't understand the difference between merchants and the media that distribute advertising for them. And they certainly don't know 47 USC 230!
The complaint has 2 substantive causes of action: negligence and intentional infliction of emotional distress. I can't figure out how the plaintiff has standing, and some of the things that the plaintiff complains about (such as the Protection of Children from Sexual Predators Act of 1998) do not, as far as I know, have any private cause of action. Otherwise, the entire complaint is predicated on liability for third party content, and thus is clearly covered by 47 USC 230.
Between the lack of standing, the lack of private causes of action, the 230 immunization, and the overall junkiness of this complaint, I think this lawsuit has zero chance of surviving a motion to dismiss. NONE. I hope the judge awards Google sanctions for wasting its time (and ours as well). I also hope Toback's constituents remember this abuse of the legal process come re-election time. His constituents deserve better.
UPDATE 3: Alex E. awards "Dorkus Maximus" Toback his "Dork of the Month" award.
Posted by Eric at 12:47 PM | Content Regulation , Derivative Liability , Search Engines | Comments (3)
March 10, 2006
AP on Internet Porn Regulation
By Eric Goldman
Associated Press runs a retrospective/status report on Congress' battle against Internet porn. Believe it or not, this battle recently entered its second decade--Congress' first effort, the Communications Decency Act, was passed in February 1996. After that law was struck down, Congress passed the Child Online Protection Act in 1998, a law that has already resulted in two US Supreme Court opinions, led to a major flap between Google and the DOJ, and is now scheduled for trial in October. As the detritus of Congress' efforts spills out to new fronts, I can't fathom just how much legal work has been spurred by Congress' fixation on Internet porn.
Meanwhile, as the article points out, everyone has moved past children's access to online porn to even more problematic issues like online sexual predators, adware/spyware concerns and copyright liability for P2P file sharing. As a result, if the trial court upholds the law, there will be massive shock and panic as the Internet industry contemplates how to comply with a law that virtually everyone has been ignoring for 8 years.
Posted by Eric at 12:07 PM | Content Regulation , Internet History
March 06, 2006
Congress Is Lovin' the Internet...to Death?
By Eric Goldman
Congress has an unresolved love-hate attitude towards the Internet. Through the 1990s, Congress frequently said that the Internet should be left alone from a regulatory standpoint. Indeed, in some cases, Congress affirmatively deregulated the Internet; 47 USC 230 and the Internet Tax Freedom Act come to mind.
However, Congress is irresistibly drawn to Internet regulation. Every Congressional session, members of Congress propose literally hundreds of laws to regulate some aspect of the Internet. Obviously, not all of these laws pass, but the sheer volume is evidence of the seductive lure of Internet regulation. Congress just can’t control itself!
I was working through the piles on my desk yesterday and I came across three recently proposed laws that demonstrate this irresistibility. All three laws reflect legislative opportunism to capitalize on hot media issues; all three laws reflect a certain idealism for how markets should function; and all three laws would have radical (and possibly crippling) effects on the Internet.
1) Eliminate Warehousing of Consumer Internet Data Act of 2006, HR 4731 (Introduced Feb. 8 by Rep. Markey).
Rep. Markey promised this law in response to the DOJ-Google flap. The premise is simple enough: online companies should flush their databases of personal data so the DOJ can't abuse its power to get that data. This animating principle translates into the following operative provision:
"An owner of an Internet website shall destroy, within a reasonable period of time, any data containing personal information if the information is no longer necessary for the purpose for which it was collected or any other legitimate business purpose, or there are no pending requests or orders for access to such information pursuant to a court order." The definition of personal information is suitably broad--first/last name qualify, as does an email address.
I don’t like this law’s expansive sweep. It would govern many seemingly-unimportant websites, such as my blogs (which allow users to submit both their first/last name and their email addresses). In some cases (like mine), I can’t flush personal data because it’s in the hands of my service providers.
Further, ironically this law doesn't even correct the DOJ-Google situation. First, the data requested by the DOJ wasn't personal data as defined by the law. Second, and more importantly, Google arguably has a legitimate business purpose to keep every scrap of data it ever lays its hands on (after all, how can you organize the world's information if you have to flush some of it down the drain?). Given that many businesses can claim a continuing benefit from keeping personal data, this law won't get that data flushed. Instead, I think it merely creates weird/unexpected technical headaches.
2) Internet Non-Discrimination Act of 2006, S. 2360 (Introduced March 2, 2006 by Sen. Wyden)
This law follows on the hot topic of net neutrality, or a “two-tier” Internet, which is also linked to AOL’s implementation of Goodmail’s certified email program. The law’s basic premise is simple: data transit vendors should not discriminate between bits—each bit should get processed equally. This gets codified in a list of restrictions about the products/services that a covered entity can (or can’t) offer.
I'm dubious about the theoretical underpinnings of this law, but for now my objection to the law is far more tactical. The law restricts the behavior of "network operators," which is anyone who "provides communications directly to a subscriber." I think the law was intended to govern the provision of Internet access/connectivity. But, as drafted, I think the law covers everyone who moves data from one point to another--this should include every website that provides user-to-user communication, including email service providers, instant message providers, blog providers, "email this page to a friend" providers, etc., etc. In other words, virtually the entire Internet.
This drafting error is, in theory, fixable. The law could just define the covered entities as Internet access providers more carefully. However, I don't think this is an easy fix. I think there is no clear distinctions between the various "layers" (content v. application v. transport); at least, the distinctions aren't definable statutorily.
Worse, it significantly restricts beneficial intermediary behavior, such as blocking incoming spam. The law acknowledges this consequence and says that the governed entities can block spam if the consumers are notified and have a chance to disable the application. So whereas AOL might kill almost all incoming spam at the server level, the law would take this choice out of AOL’s hands. I’m not sure what consequences result from that, but my heart tells me it’s expensive for AOL/the consumer and it could lead to weird and unexpected results.
In effect, this law would place most of the Internet under the oversight of an administrative agency (the FCC). The Internet had thrived without FCC oversight for a while now. I’m having a hard time believing that turning the Internet into a comprehensively-regulated industry would be a good thing.
3) Global Online Freedom Act of 2006, HR 4780 (Introduced Feb. 16, 2006 by Rep. Smith).
This law builds off the Google/Yahoo-China flap. It has various proposals designed to get China and other repressive countries to stop censoring Internet content.
Specifically, the law would create a new administrative agency called the "Office of Global Internet Freedom." This title alone is disconcerting; it sounds like something out of Orwell or Kafka. Indeed, like any good dystopian view of bureaucracy, the OGIF would free the Internet by telling its citizens what they can't do.
In this case, the OGIF would help generate a list of bad censorship-loving countries. On the initial list are China, Iran and Vietnam. All US search engines or content hosts cannot locate those functions in the bad countries. (Note that the definition of search engines or content hosts covers anyone who has a search tool on their website or permits users to generate content). Search engines also cannot change their filtering based on requests from bad countries. Content hosts also can't help "Internet jamming" and can't disclose personal data at the request of bad countries.
This law seems terribly misguided. It’s as if Rep. Smith thinks that Google is so amazing that countries will change their censorship laws just to get Google’s services. But we know better. Chinese entrepreneurs will have no problem providing competent yet censorable search services. I’m sorry to be the bearer of bad news, Rep. Smith, but embargoing Google isn’t going to bring down the current Chinese government.
Meanwhile, this law represents a dangerous step towards government regulation of search engine operations. I know that pro-regulation forces would love to have the chance to regulatorily inculcate their normative values into search engine algorithms; this law represents a first step along that path. However, I think there’s little chance that government fiat will improve search engine coverage or relevancy. Instead, I think there’s a much better chance that government intervention in search engine operations will degrade search engines’ usefulness to consumers.
Conclusion
Reading these 3 laws in succession, two 1980s songs came to mind. First, Congress “just can’t get enough” regulation of the Internet. However, "If you love somebody, set them free." We’ll see just how much Congress loves the Internet as it wrestles with these bills.
Posted by Eric at 06:39 PM | Content Regulation , Internet History , Privacy/Security , Search Engines | Comments (3)
February 17, 2006
Blog Defamation Lawsuit Lacks Jurisdiction--TrafficPower.com v. Seobook.com
By Eric Goldman
Software Development and Investment of Nevada d/b/a Traffic-Power.com v. Wall d/b/a Seobook.com, No. 2:05-cv-01109-RLH-LRL (D. Nev. motion to dismiss granted Feb. 13, 2006)
I generally avoid blogging about Internet jurisdiction cases. They tend to be fact-specific, and as a result the case law in this area is especially inconsistent (even by Internet law standards). The courts are also hampered by a legacy 1997 case (the seminal Zippo case) that tends to find jurisdiction more often than it should. Because of its deficiencies, many courts have veered away from Zippo, but it still gets cited way too often.
Despite being just a jurisdictional case, this case is interesting because it's one of the few cases specifically about blogs, and as everyone knows, blog law is hot.
In this case, Aaron Wall (a Pennsylvania resident) runs a blog on SEO topics. The blog allows users to comment and to buy Wall's book. The complaint alleges that Wall and his users defamed the plaintiff's services on the blog and posted plaintiff's trade secrets. Obviously, to the extent Wall's users posted defamatory contents, Wall is insulated per 230. However, even in that case, Wall could be on the hook for any defamatory comments he posted, and 230 probably doesn't cover the trade secret claims.
The plaintiff sued in Nevada federal court. Wall moves to dismiss for lack of jurisdiction.
Under the Zippo precedent, the court considers if the combination of the book sales and the user comments makes Wall's website "interactive." Some courts would have deemed the blog an e-commerce site because it sold books, which would have supported jurisdiction in Nevada. This court wisely looks beyond that and notes that there was no evidence Wall ever sold his book in Nevada. Collectively, the book sales and user comments were enough to characterize the blog as "interactive," but not enough to warrant jurisdiction.
After rejecting the effects test, the court dismisses the case for lack of jurisdiction. However, the plaintiff can amend the complaint and try again, so the case isn't over yet.
This is a favorable ruling for bloggers. At minimum, it suggests that even if the blog enables user comments and thereby creates an interactive website under the Zippo test, jurisdiction will not automatically follow.
Posted by Eric at 05:47 AM | Content Regulation
February 02, 2006
Congress, Search Engines and China
By Eric Goldman
OPEN LETTER TO THE MEMBERS OF THE CONGRESSIONAL HUMAN RIGHTS CAUCUS
Dear Caucus members,
Like you, I do not like the fact that search engines are helping China effectuate its repressive policies. However, I am confused why you are targeting the search engines. If you really think this is a big deal, shouldn't you be TAKING IT UP WITH CHINA?
Here's the way I see it. You, as members of Congress, are among the most powerful people in the world. You have a wide variety of very powerful tools in your toolkit. If you don't like a country's policies, you can:
* send envoys to the country and ask them to change;
* negotiate treaties where the country agrees to change; and
* even impose economic or other sanctions as punishment for failing to change.
Given those powers, you are uniquely positioned to get China to change if you think it needs to do so.
Admittedly, effectuating those changes in China is hard. First, there's always an uncomfortable subtext when we go around telling countries that they should adopt policies more like ours. But ignoring that (as we should do when it comes to human rights issues), there's a second and more practical problem. China is a major economic, political and military force that isn't going to do what we want just because we're the USA. I don't blame you for not wanting to tangle with them.
However, instead of pushing China yourself, it appears that you want the search engines to do your dirty work. But the search engines are a lot less powerful than you are, and they have fewer tools in their toolkit than you do. Do you really think search engines can affirmatively get China to unilaterally change its policies? Or that a voluntary boycott by search engines will matter in the least to China? The way I see it, you expect the search engines to undertake a doomed effort and then you're chastising them for wisely declining that challenge.
Don't get me wrong--I'm very unhappy when any company helps a repressive regime implement its censorship policies. But I'm even unhappier when my elected officials avoid doing the hard work necessary to make real change and, instead, hold a grandstanding publicity stunt as their way of making faux progress.
Signed,
An Unimpressed Constituent
Posted by Eric at 09:42 AM | Content Regulation , Search Engines
November 02, 2005
Adult Webmaster Criminally Prosecuted for User-Uploaded Photos
By Eric Goldman
Chris Wilson runs a website called NowThatsFuckedUp.com (first page is office-safe; I didn't look further!). The website describes itself as "an Amateur community for wife and girlfriend pictures," and the photos contain graphic depictions of people engaged in sex. All of the photos are uploaded by site users.
On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).
Let's assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can't understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230. It wouldn't matter if Wilson screened or edited the photos (as claimed by the probable cause report)--see, e.g., Ramey v. Darkside Productions, Schneider v. Amazon.com.
I recognize that 47 USC 230 hasn't been publicly tested in a criminal case, but the statute expressly does not preempt federal criminal law and expressly preempts all state laws. So this seems like an easy application of the statute, and I can't understand what the prosecutors are thinking.
However, there's a twist. The website also has allowed military personnel serving in Iraq and Afghanistan to upload photos of enemy corpses. (The idea was that military personnel couldn't easily use their credit cards from overseas. The webmaster was willing to waive the fees for active-duty personnel. The photos were a (perhaps twisted) way to prove that the users were actually serving on active duty.) There has been some speculation that Wilson has been singled out for prosecution because some in the military are unhappy about this aspect of his website.
If this is true, then the state prosecutors are engaged in a truly egregious abuse of their power--trying to censor socially-protected speech through an unrelated criminal prosecution. But even if this military angle isn't true, the prosecution is still an abuse of prosecutorial power--there is a federal safe harbor directly on point, and prosecuting the case despite that is irresponsible at best.
Some articles on this prosecution and the Iraq/Afghanistan photo angle:
Ynotmasters, October 27 (barely office-safe)
Orlando Weekly interview with Wilson's counsel, Lawrence Walters, October 13
AP Story, October 8
Reuters story, October 8
CNN story on soldiers trading photos for porn access, Sept. 28
AmericaBlog.com, Sept. 26 (reporting on the photos of dead Iragis/Afghanis)
East Bay Express story, Sept. 21
Wilson also has a defense site set up.
UPDATE: Wilson has pleaded no contest to 5 misdemeanor counts to resolve the matter. If those misdemeanor counts were based on user-uploaded content, then it's a shame he had to do even that.
Posted by Eric at 02:59 PM | Content Regulation , Derivative Liability
September 14, 2005
U.T. v. Longhornsingles.com Part 2 - state email filtering
White Buffalo v. U.Texas, Austin, No. 04-50362-CV0 (5th Circuit, August 2nd, 2005)
This second post of a two-part posting continues looking at the 5th Circuit's opinion in this unique case. The first post focused on the CAN-SPAM Act and how the court applied it in this case. This second post will talk about 1st Amendment complications when a government agency or entity (in this case the University of Texas) adopts a filtering policy or blocks email. Part One concluded that the 5th Circuit rather bungled the application of CAN-SPAM, even if eventually got to the correct conclusion. In contrast, in Part Two, the 5th Circuit seems quite aware of the more nuanced 1st Amendment issues and applies them quite well, with an eye to the unique concerns that email technology can raise. Oh, and the 5th Circuit couldn't resist dropping a slightly hidden filtering time bomb into the opinion as well...
Background
Part One gives the details of the case, so we'll jump right on in to the 1st Amendment issues.
The 1st Amendment
White Buffalo asserted that the University of Texas was restricting its speech in violation of the First Amendment. We've heard about the 1st Amendment complications of regulating spam before, and even seen laws similar to CAN-SPAM survive 1st Amendment challenges, but a quick primer might help focus things.
The 1st Amendment says "Congress shall make no law...abridging the freedom of speech."
It is worth pausing to figure out whether the 1st Amendment even applies - the text does say "Congress," and U.T. is certainly not they. Originally, as the Supreme Court ruled in Barron v. Baltimore, the Bill of Rights restricted only the federal government. But we cannot go home just yet. In 1925, the Supreme Court, in Gitlow v. New York, recognized the 14th Amendment might have changed things and gave birth to the doctrine of incorporation, under which provisions of the Bill of Rights were deemed to restrict the states as well as Congress.
So the 1st Amendment applies to state actors and state actions.
Question #2 - is the spam filtering policy at U.T. state action? U.T. did try to say no, it wasn't a state actor, but the 5th circuit dismissed this argument as "meritless." It's beyond the scope of this post, but just when subdivisions of a state are or aren't state actors is a contentious question that often gets litigated, so U.T. was probably making a plausible, if weak, argument. CAN-SPAM, for instance, tries to avoid this considerable question by defining both states AND their subdivisions into the law.
Public or Private Fora? The 5th takes a pass.
1st Amendment jurisprudence distinguishes between 'public' and 'private' fora, and places different levels of scrutiny on government speech restrictions depending on whether they restrict speech in public or private. For example, government prohibitions on employees posting "for sale" ads on an agency's office bulletin board may be allowed with less scrutiny than government restrictions on street corner pamphleting. The 5th Circuit recognizes that email has elements of both, and rather than answer what it calls a "dicey but admittedly important" question, it takes a clever pass. Recognizing that the 'public forum' test is the more stringent of the two tests, it assumes without deciding that email filtering restricts public forum activity and analyzes it under that tougher test. Strategic opinion-writing perhaps, but you can almost hear the disappointment dripping from campus speech & 1st amendment organizations' pens as they report on the decision.
Central Hudson and commercial speech
Diving into the mechanics of analyzing government restrictions on commercial speech, the 5th Circuit pulls out the relevant Supreme Court case on the subject, Central Hudson. This 1980 case not only recognized that commercial speech was different, and subject to lesser protections, than other types of expressive speech, but gave a detailed analytical framework for reviewing government restrictions on commercial speech.
Where the rubber meets the road: the 4 Central Hudson tests.
1) Is it misleading or speech about illegal acts? The Court whizzes through this - no one alleged misrepresentation, or that the ads were for illicit substances, etc. - they even comply with CAN-SPAM.
2) Does U.T. promote a substantial interest in adopting a filtering policy? The 5th circuit recognizes that U.T. has a legitimate interest in adopting a policy to benefit its users, especially after users have complained about the unsolicited emails. No one is alleging the filtering is pretextual or discriminatory. Sounds like a legitimate interest, not that hard of a question. U.T. also says it has an interest in not stressing or clogging its mail servers. The court correctly pauses a bit at this argument. Mail servers are designed to deliver mail, complaints about overloading shouldn't be rubber stamped, but require inspection, the court says, taking a shot at the opinions in eBay, Inc. v. Bidder’s Edge and other court cases that seem too ready to find wrongdoing in any undesired computer loads. The court follows up on this criticism in considerable detail under the final test.
3) Does filtering address the problem? Here the court basically says 'well, duh!', stating "One can hardly imagine a more direct
means of preventing commercial spam from appearing in account-holders’ inboxes and occupying server space than promulgating a
policy that excludes such material..." It is worth noting, although the court doesn't, that spam filters aren't perfect, they don't block all spam. The Central Hudson test doesn't require perfection, however, but only that the policy work.
4) Is the solution tailored to prevent or minimize collateral damage? Here's where the 5th Circuit spends the meat of its energy, finding that, by blocking email from a sender's IP address for known bulk spammers, U.T. is helping its users. More specifically, the court finds that by only blocking in response to user complaints or system volume triggers, U.T.'s filtering is sufficiently tailored to minimize collateral damage. Then the court throws in a parenthetical bombshell, reminding that the filtering must be content- and viewpoint-neutral...
The content-neutral gorilla - don't bring it out of the cage if you aren't willing to feed it.
This last half-sentence is easily the 800-pound gorilla in this case.
Granted, this case was not about filtering based on content, but about filtering based on mail volume. It is perhaps right that the 5th Circuit shouldn't spend much time on an issue not technically before the court, but content-based spam filtering is pervasive, and in all likelihood there are many state agencies that employ content-based email filtering, in part because it blocks a significant amount of spam. (Think about all those spam filters set up to screen out words like 'viagra,' 'porn,' 'free offer,' 'multi-level marketing,' or the like.) Should the 5th circuit have brought up such a potentially large problem so tangentially without addressing it squarely?
Posted by Ethan Ackerman at 09:08 AM | Content Regulation , Spam
July 26, 2005
Challenge to CDA's Obscenity Provision Rejected--Nitke v. Gonzales
Nitke v. Gonzales, No. 01 Civ. 11476 (SDNY July 25, 2005).
This case involves a challenge to the 1996 Communications Decency Act's restriction on disseminating obscenity over the Internet. The basic gist is that there are different standards for evaluating obscenity throughout the US. As a result, a content publisher who has questionable content will not risk publishing the content, even if it is legal in the publisher's local community. Taking this argument to its logical extreme, a publisher will not post content to the Internet if it has any risk of violating the most restrictive jurisdiction's standards of obscenity, which will cause some quantum of non-obscene content to be foreclosed from Internet publication.
These arguments are hardly new. They were rejected in the context of dial-a-porn in the Sable Communications case, where the court effectively said that the phone sex provider should refuse to accept calls from places where the content might be questionable. Of course, in the telephone context, authenticating geography is easier (do it by area code) than it is on the Internet--although the forces of censorship continue to insist that Web publishers can determine the geography of their readers (using IP address analysis or perhaps silly techniques like pop-ups requesting self-authentication) and restrict content dissemination accordingly.
The Nitke plaintiff's basic argument was also largely rejected in the court's highly fragmented decision in Ashcroft v. ACLU, when the court rejected the argument that differing community standards was alone a sufficient justification to reject COPA.
In any case, given the Supreme Court precedent on this topic, it's not surprising the plaintiffs lost their challenge to the law, but what a way to lose! The court acknowledges that the named plaintiffs had proper standing to challenge the law because of their activities might be legitimately chilled. Yet, the court nevertheless rejects the challenge because the plaintiffs were unable to show substantial overbreadth, which the court wanted evidenced by:
* the total amount of speech implicated by the CDA
* the amount of protected speech inhibited by the CDA
* is there a reason that the online differing-standards issue is worse than faced by traditional pornographers?
This is entirely circular. It's the lack of reliable information about what will be considered obscene (and where) that creates the plaintiff's dilemma in the first place. The only way to satisfy the court's request would have been to show the exact same work that was subject to obscenity prosecutions in two different jurisdictions at roughly the same time and that those prosecutions reached different conclusions. Perhaps this data is available, but it wouldn't surprise me if these cases are very few. For more on the evidentiary challenges, see the plaintiff lawyer's blog entry.
In any case, I'm not especially surprised by the result, but I am disappointed the judges took this route to reject the challenge.
UPDATE: The Supreme Court denied certiorari March 20, 2006.
Posted by Eric at 11:01 AM | Content Regulation
July 25, 2005
Internet Hunting Editorial
On my other blog, I have frequently railed against the regulatory response to Live-shot.com and hunting via the Internet (you can find postings sprinkled throughout this page). I finally organized my thoughts into an editorial that ran today in the San Jose Mercury News. I welcome your comments.
UPDATE: So, isn't this typical? The Mercury News ran an early draft of the editorial even though I sent, and they received, the updated file. Read the editorial they should have published.
Posted by Eric at 06:01 PM | Content Regulation
June 25, 2005
Problems with Congress' Latest Anti-Porn Law
Congress' latest anti-porn attack is codified in 18 U.S.C. 2257. a law which requires anyone producing or distributing pornography to engage in some costly and logistically-difficulty verifications and record-keeping. Kurt Opsahl at EFF explains how this law affects more than just commercial pornographers and, instead, has the potential to jeopardize significant quantities of socially-beneficial speech on the Internet.
The Free Speech Coalition is challenging this law and has reached a temporary settlement with the DOJ to defer enforcement of the law until a court can rule on its constitutionality. My hope is that this law, like so many of Congress' other efforts to attack pornography, will bite the dust so that online publishers will not have to incur costly and potentially-futile reviews of anything that might be characterized as pornography.
Posted by Eric at 11:52 AM | Content Regulation , Derivative Liability
June 23, 2005
EFF's Legal Guide for Bloggers
The EFF has released the wonderful resource “Legal Guide for Bloggers.” It successfully strikes a delicate balance between being comprehensive, accurate and accessible to lay readers. If you’re wondering about the law of blogging, this guide will most likely answer your questions.
Unfortunately, the guide doesn’t address a set of topics on my mind: the relationship between joint bloggers and issues raised by guest bloggers. I expect to see fights over attribution, the blog title/URL, use of postings after the relationship ends, and even who gets the AdSense revenue. Unfortunately, the law in this area is destined to be complex and counterintuitive. Joint bloggers may very well be treated as “partners” under the applicable corporations law, subject to a complex set of statutory defaults. Therefore, it would make a lot of sense for joint bloggers to have a “Joint Blogger Agreement” spelling out their relationship, although I am guessing that virtually no joint bloggers (even lawyers/law professors) have anything of the sort. I have yet to see any models or examples posted online.
Meanwhile, I do plan to say more about the legal issues raised by guest bloggers. Indeed, this summer I plan to draft and enter into a “guest blogger agreement” with John O. I’ll post a copy when I draft it.
I understand why the EFF’s guide doesn’t get into these topics—they are peripheral at best to the EFF’s core objective of encouraging bloggers to exercise their free speech rights. Therefore, even with these omissions, I still heartily recommend that all bloggers read the EFF guide.
Posted by Eric at 10:59 AM | Content Regulation , General
June 10, 2005
Groups Sue to Strike Down Utah's Anti-Internet Porn Law
King's English, Inc. v. Shurtleff (D. Utah complaint filed June 9, 2005). As expected, the ACLU is leading a charge against Utah for their latest anti-porn initiative (HB 260). The AP story. Declan's News.com story.
I have already predicted that this law will be struck down as unconstitutional. The complaint itself gets right to the point:
"With respect to the application to the Internet of the criminal provisions relating to distribution to minors of harmful to minors materials, 18 federal judges, including three Courts of Appeal, as well as one State Supreme Court, have struck down as unconstitutional laws in Arizona, Michigan, New Mexico, New York, South Carolina, Vermont, Virginia, and Wisconsin similar to the Act. In addition, the United States Supreme Court invalidated a similar federal law on First Amendment grounds in Reno v. ACLU, 521 U.S. 844 (1997), aff'g 929 F. Supp. 824 (E.D.Pa. 1996)."
This is slightly overstated because the laws do vary, but it does nicely illustrate the overwhelming odds against this law being constitutional. Indeed, although the complaint doesn't say it, I'm pretty sure that none of the challenged laws have survived the challenge (at least, in any meaningful way).
When this act is struck down, we will complete yet another wasteful cycle of legislators who grandstand about Internet porn without regard to the civil liberties they implicate and the costs they impose on society at large (and on watchdog groups like the ACLU). If you're not already a member of the ACLU (I've been a member for almost 20 years), you might consider joining to help fund expensive and unfortunately-necessary efforts like this.
Posted by Eric at 09:20 AM | Content Regulation , Derivative Liability
June 07, 2005
Web Gambling Advertising Suit Against Search Engines Allowed to Proceed
By John Ottaviani
Business Wire is reporting that Judge Richard Kramer of the San Francisco County Superior Court has denied a motion to dismiss certain of the allegations in a class action lawsuit filed last summer against Google, Yahoo! and other major search engines, for their alleged involvement in the illegal advertisement of Internet gambling.
The complaint alleges that Yahoo!, Google, Overture, Ask Jeeves, LookSmart, AltaVista, Terra Lycos, Jupiter, FindWhat, Kanoodle, Business.com and Sex.com violated California law by providing paid or "sponsored" advertisements in violation of the California Penal Code provisions and the California Unlawful Business Practices Act. Google and Yahoo! reportedly have since abandoned gambling advertisements, but are still subject to the lawsuit for their prior actions.
It is not clear whether the new ruling addressed substantive issues or only went to procedural questions. The plaintiffs are attempting to break new legal ground by taking on online gambling advertising. However, given the recent court rulings expanding the scope of protection under the Communications Decency Act, the search engines should have strong arguments for immunity under Section 230 of the CDA (although the complaint specifically alleges that none of the defendants qualifies for immunity as an "interactive computer service" under Section 230(f)(2), but at best are "information content providers" under the CDA). The search engines also seem to have very strong First Amendment and dormant commerce clause defenses.
It would be very interesting to know if Judge Kramer ruled on the CDA defense. If anyone has a copy of the ruling, we would appreciate it if you would please send it along for us to look at.
Posted by John Ottaviani at 11:31 AM | Content Regulation , Search Engines
May 16, 2005
Supreme Court on Interstate Shipment of Wine--Granholm v. Heald
Granholm v. Heald, 544 U.S. __ (May 16, 2005). The US Supreme Court, in a 5-4 vote, has declared that states cannot discriminate between out-of-state wineries and in-state wineries in allowing direct-to-consumer sales. Such discrimination violates the dormant commerce clause. As the court says:
“The current patchwork of laws—with some States banning direct shipments altogether, others doing so only for out-of-state wines, and still others requiring reciprocity—is essentially the product of an ongoing, low-level trade war.”
Meanwhile, after an extensive historical and precedent review, the majority concluded that the discriminatory treatment is not saved by the general authorization of powers in the 21st amendment.
As a result, statutory schemes that required out-of-state wineries to sell through a three-tier distribution scheme (winery -> distributor -> retailer) but permitted in-state wineries to sell direct-to-consumer are unconstitutional. This appears to affect about half of the states.
While this is an entirely sensible result, the net effect is less clear. The court gives states the following options:
“A State which chooses to ban the sale and consumption of alcohol altogether could bar its importation; and, as our history shows, it would have to do so to make its laws effective. States may also assume direct control of liquor distribution through state-run outlets or funnel sales through the three-tier system.”
In addition, the court says that states can require permits as a condition of direct shipping, which can act as a way for the state to get taxing authority over out-of-state wineries.
So, the question is, which way will states go? Though they can no longer offer protectionist measures for their in-state wineries, will they go in the direction of erecting other barriers, such as requiring the use of three-tier distribution for everyone, or imposing onerous taxes on everyone? Or will this case finally cause the elimination of the regulatory barriers to the free interstate movement of alcohol, allowing unrestricted sale of alcohol over the Internet? Only time will tell, but I’m hoping we can move in the direction of improving consumer welfare rather than expanding an unnecessary and industry-protectionist bureaucracy.
Meanwhile, because of the differential treatment of in-state and out-of-state wineries and the funky language of the 21st amendment, unfortunately this case does not offer us deeper insights into the dormant commerce clause's application to the Internet. That will have to wait for another case.
UPDATE: Declan's story.
Posted by Eric at 12:14 PM | Content Regulation , E-Commerce
April 06, 2005
ACLU Considering Challenge to Utah Anti-Internet Porn Law
The ACLU of Utah is considering a constitutional challenge against Utah’s most-recent anti-Internet porn law. Despite Rep. Dougall’s defensiveness, this law is almost certainly unconstitutional, and I’m confident that it will be struck down when scrutinized by the courts. We should be thankful to the ACLU for taking the initiative to clean out this legislative stinker. (I’ve been a member of the ACLU for nearly 2 decades precisely because I support initiatives like this).Posted by Eric at 11:17 AM | Content Regulation , Derivative Liability
March 21, 2005
Utah Governor Signs HB 260
Not a surprise, but today the Utah governor signed HB 260, the ridiculous Internet service provider-as-filterer law. See my earlier critique (I think there are other objectionable aspects of the bill; I tried to control myself). Anyone want to make predictions: (1) is this law unconstitutional, either under the First Amendment or the dormant commerce clause? (2) will ISPs be prote