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 expressly 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 situa