Technology & Marketing Law Blog

November 01, 2011

Call for Papers, 2nd Annual Internet Law Work-in-Progress Symposium, NYC, March 24, 2012

By Eric Goldman

For more information about this work-in-progress series, you might check out my recap from the inaugural event. This is a wonderful event in a fantastic location with a group of terrific scholars. I am eagerly looking forward to it, and I hope to see you there. Note the request for a preliminary RSVP by the end of this month.
_______________

Second Internet Law Work-in-Progress Symposium
Call for Papers

March 24, 2012, New York
***Please note the new date***

The Institute for Information Law and Policy at New York Law School and the High Tech Law Institute at Santa Clara University School of Law are pleased to host the second annual work-in-progress series for internet law scholarship. In order to avoid a conflict with Peter Yu's longstanding cyberlaw event, we've brought forward the date of our event by one week. New York Law School will host the event on March 24, 2012 in downtown Manhattan.

Call for Participation

The work-in-progress event was created for internet law scholars to receive feedback about their papers and projects from their academic peers. Last year over 30 leading internet law academics convened at Santa Clara Law to participate in this inaugural event. The organizers take a broad view of what constitutes "internet law" scholarship, and this year will be no different. We welcome all types of scholarly approaches (doctrinal, theoretical, empirical, etc.) and offer three ways to participate in the event:

Papers-in-Progress Presentation
This track is for paper drafts sufficiently advanced to share with event attendees. We anticipate giving extra speaking time to these presentations. To qualify for these slots, you will need to send a paper draft no later than Friday March 2, 2012. If we have to prioritize presentation requests based on capacity constraints, we plan to give greater priority to papers earlier in the drafting process that will most benefit from peer feedback, i.e., (a) papers that have not been circulated to publication venues will get higher priority than (b) papers that have been circulated to publication venues but do not yet have a publication commitment, which will get higher priority than (c) papers that have been accepted for publication.

Projects-in-Progress Presentation
This track is for research projects without a paper draft for attendees to review in advance. This might occur because your paper draft isn’t ready to share (or does not arrive before the March 2, 2012 cutoff) or because you would like to explore a paper idea before writing a draft. We intend to allocate less speaking time for these presentations than for papers-in-progress presentations.

Discussant
Space permitting, we welcome other scholars to join the conversation as active audience participants.

There is no event participation fee, but all participants are responsible for their own travel expenses. There are no publication obligations associated with presenting at the event.

How to Participate

So that we have an idea of the numbers, could you please let us know by November 30 if you think that you're going to be submitting a paper or would like otherwise to attend. This is not a binding commitment, but will help us plan space and timing. Papers, expressions of interests and queries can be sent to

Dan Hunter
Professor of Law & Director, Institute for Information Law & Policy, New York Law School
185 West Broadway
New York NY 10013
danieladhunter@gmail.com

Posted by Eric at 10:55 AM | General | TrackBack

October 07, 2011

Recommended Books on Business Decision-Making Using Intellectual Property?

By Eric Goldman

I posted the following to the IPProfs email list:

I teach the IP Survey course principally as a business law course, i.e., companies are trying to make business decisions, and IP doctrines can help (or hinder) those decisions. Therefore, I emphasize the interplays between the various IP doctrines and explore how businesses can use the doctrines as substitutes or complements to each other.

I got the following email from an intellectually curious student: "I didn't know about the interactions between different areas of IP before. Also the strategic aspects on how to take advantage each type of IP law. Can you point to some more supplemental readings on this area?"

I felt strangely stumped in making recommendations, and now I fear I'm forgetting some obvious targets. I'd be grateful for any suggestions/recommendations.

I got the following suggestions back from the email list:

Howard Anawalt, Idea Rights
Arena and Carrenas, The Business of Intellectual Property
Jon Garon, Own It
Paul Goldstein, Intellectual Property: The Tough New Realities That Could Make or Break Your Business
Michael Gollin, Driving Innovation
Gruner et al, Intellectual Property in Business Organizations: Cases and Materials
Scotchmer, Innovation and Incentives
Varian and Shapiro, Information Rules

Please send me any further suggestions!

UPDATE: Recommendations in response to this post:

John Palfrey, Intellectual Property Strategy
Mark Blaxill and Ralph Eckardt, The Invisible Edge: Taking Your Strategy to the Next Level Using Intellectual Property

Posted by Eric at 08:49 AM | General | TrackBack

August 05, 2011

South Dakota S.Ct Recognizes the Obvious: a Happy Birthday Message on Facebook Doesn't Mean Much -- Onnen v. Sioux Falls Independent School Dist.

[Post by Venkat Balasubramani]

Onnen v. Sioux Falls Independent School Dist., 2011 S.D. 45 (South Dakota; Aug. 3, 2011)

If any modern day communication is more inconsequential than a "happy birthday" post on Facebook, I'm not sure what is. We've all seen, at one time or another, Facebook's reminder that it's our acquaintance or friend's birthday and have taken the two seconds out of our busy web-surfing schedule to wish the person happy birthday. Both the sender and recipient know full well that this is about the most impersonal birthday gesture possible in modern day society. Still, that was one of the issues in this appeal to the South Dakota State Supreme Court.

Onnen worked at Southeast Technical Institute, a part of Sioux Falls School District. The School District found some irregularities in Onnen's conferral of degrees on students who had not adequately completed course requirements. STI conducted an investigation and recommended termination. The Sioux Falls School District Board agreed with this recommendation. Onnen disagreed, arguing that he was wrongfully terminated. He appealed to the Circuit Court who also rejected his contentions. After trial, Onnen argued that the Circuit Judge should have recused himself because:

[The Circuit Judge] received from a major witness . . . for the Defendant . . . a message on [the judge's] Facebook page wishing [the judge] happy birthday in Czech.

The judge received the message during the trial but before the witness testified. The big question: was the message was an improper "ex parte communication"?

The South Dakota State Supreme Court concluded that the message was not an "ex parte communication" because it did not "concern a pending or impending proceeding." In any event, the communication was not "invited" by the judge, and the judge did not acknowledge or respond to it:

Judge Srstka noted that the post was only one of many and that he did not personally know [the witness]. Furthermore, Judge Srstka did not connect the post [to the witness] even after he testified. Judge Srstka also stated that [the message] did not affect [his] decision-making, as [he] did not know it occurred.

The court says in different words what I said at the beginning of the post: a Facebook birthday greeting is a fairly meaningless communication. The judge in question did not even know the witness; nor did it register with the judge that the witness had sent him a happy birthday greeting on Facebook.

Kudos to Judge Srskta for having a Facebook page and to the South Dakota State Supreme Court for not taking it too seriously.

Related Post:

Is the Florida Bar Taking Facebook Friendship Too Seriously?

Posted by Venkat at 09:07 AM | General

July 25, 2011

Employee Terminated for Accessing 'Inappropriate' Websites not Entitled to Unemployment Benefits -- Berglund v. ITI

[Post by Venkat Balasubramani]

Berglund v. Industrial Tech. Institute, No. 298227 (Mich. Ct. App. July 21, 2011)

Berglund worked at Industrial Technology Institute and was terminated for "using his computer to access inappropriate websites" (and for printing materials unrelated to his employment).

Under Michigan law, an employee is disqualified from receiving benefits if he or she is terminated for "misconduct." Michigan courts define misconduct as:

conduct evincing . . . willful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employee has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer.

Misconduct is not "mere inefficiency, unsatisfactory conduct, [or] failure in good performance . . . ."

The hearing officer found that Berglund was placed on probation and directed to not use ITI's resources or equipment to further his outside activities. After this warning, Berglund was found to have printed materials relating to his outside employment (his teaching gig at Central Michigan University). In addition, the hearing officer found that Berglund visited a number of "inappropriate" websites (e.g., teenagecheerleaders.com, sextelevision.net). Based on the records, the hearing officer concluded that "in an eight hour day, the records reflect some 3½ to 4 hours of visiting those types of sites." The hearing officer concluded that this was "misconduct," and as a result, Berglund was denied benefits. The review board agreed with this determination.

The trial court reversed the agency's determination on the basis that there was insufficient proof that the websites in question were "inappropriate." The court of appeals reversed, holding that testimony regarding the inappropriate nature of the websites was sufficient, and documents and exhibits demonstrating the content of those sites were not necessary. The court also noted that accessing inappropriate websites may compromise the employer's network and the employer thus has a strong interest in preventing the access of inappropriate websites:

An employer has an interest in maximizing the capability of its network. An employee who deliberately accesses websites that hinders the work network's capability harms the interests of the employer. Contrary to Berglund's position that his actions were immaterial, use of the employer's computer equipment to access websites with nudity is not the equivalent of keeping a magazine in a desk drawer.

___

I can't say that the decision is much of a shocker, and it's tough to muster any sympathy for an employee who allegedly spent 3 to 4 hours during a workday on non-work related activities, but I am definitely breathing a sigh of relief that the court did not address the issue of whether accessing sites such as Facebook at work constitutes "misconduct." A decision to that effect would leave us all in a precarious position indeed.

On a more serious note, the court's analogy to the magazine kept in a desk drawer, which the court implies would not constitute 'misconduct,' is interesting. As more activities migrate online, it becomes increasingly easier for employers to regulate employee conduct.

Posted by Venkat at 11:22 AM | General

July 05, 2011

New Jersey Appeals Court Neuters Cell Phone Driving Statute -- State v. Malone

[Post by Venkat Balasubramani]

State v. Malone, 2011 N.J. Super. Unpub. LEXIS 1738 (N.J. Ct. App. July 1, 2011)

New Jersey's cell phone driving statute suffered a serious blow at the hands of the New Jersey appeals court, which held that the statute does not prohibit a driver from "activating" or "dialing" a cell phone equipped with a hands-free device.

Background: Elliot Malone was charged with using a cell phone while driving under New Jersey's cell phone statute (N.J.S.A. 39:4-97.3). An officer observed Malone driving in the opposing direction and saw that Malone was holding a cell phone in his hand and "pushing buttons." At the municipal court hearing, the officer testified that he had no idea whether Malone was using a hands-free device and could not testify conclusively as to what exactly Malone was doing with his phone. The municipal court rejected Malone's arguments, found him guilty, and imposed a fine of $106, along with $33 in court costs.

On review, the trial court concluded that Malone had been using a hands-free device, but that Malone could not satisfy the exception for activating or deactivating the phone. The trial court concluded that it was sufficient for the state to show that Malone "used" the cell phone while driving, and that Malone was "guilty of holding his cell phone while driving." [Malone tried to introduce his cell phone records to support his contention of innocence, but the municipal court rejected this evidence as not having been properly authenticated.] Proceeding pro se, Malone appealed and won.

The Statute: The statute provides that:

the use of a wireless telephone or electronic communication device by an operator of a moving motor vehicle on a public road or highway shall be unlawful except when the telephone is a hands-free wireless telephone or the communication device is used hands-free

The statute also defines a "hands-free wireless telephone," but this definition expressly excludes "the use [while driving] of either hand to activate, deactivate or initiate a function of the telephone."

The Appeals Court's Decision: The appeals court finds that the statute prohibits a motorist from talking or listening to another person or texting with another person, unless the motorist uses a hands-free device to accomplish those functions. Unfortunately for the state, the court also concludes that:

The driver may . . . hold the telephone in one hand for the period of time necessary to 'activate, deactivate or initiate' a function of the telephone.

The state argued that a cell phone equipped with a hands-free device can only be used by a motorist for listening. The state also argued that pushing buttons is the same as dialing, and that "activating" or "deactivating" a phone does not require the motorist to push multiple buttons.

The use of a hands-free phone is not limited to "listening" under the statute: The court rejects the state's interpretation of the statute that it only allows for hands-free equipped mobile devices to be used for listening. The statute defines "use" to include "talking or listening to another person . . . or sending an electronic message [or text message]." The statute's exception for the use of hands-free equipped cell phones thus clearly allows a motorist to "use" the phone that is equipped with a hands-free device for talking as well as listening, and for texting as well.

Motorists are permitted to activate their hands-free device equipped cell phones while driving: The state tried to argue that motorists are not permitted to hold hands-free cell phones at any time while driving unless one of the emergency exceptions was satisfied. The state was fighting an uphill battle on this issue as well given the language of the statute. Motorists are allowed to "use" hands-free equipped cell phones, and the definition of "hands-free wireless telephone" expressly recognizes that the statute does not prohibit "the use of either hand to activate, deactivate, or initiate a function of the telephone."

The state also argued that even if the statute allows motorists to activate or deactivate a hands-free equipped mobile phone, this does not permit motorists to dial the phone. The court rejects this argument as well, citing to legislative history to the effect that hands-free devices should be permitted because they "reduce [but do not eliminate] the distractions associated with dialing, holding, reaching for or picking up a dropped handset." The court also notes that the legislature did not define the terms "activate, deactivate or initiate" and did not expressly prohibit "dialing." Because motorists were permitted to "activate" or "initiate" a phone while driving, this implicitly includes the ability to "dial" while in the process of initiating or activating the phone.

Motorists may press buttons while activating a hands-free equipped wireless device: The court rejects the argument that activation of a wireless phone "should not take the pressing of buttons," noting that there are a variety of ways in which users can dial when using a wireless telephone. Even with voice dialing, which is the most "advanced" of the options, the operators is typically required to press one or more buttons. The legislature did not specify which particular method of voice activation was allowed under the statute. Thus, the court concludes:

There are many ways by which a motorist would 'activate' the wireless telephone, and the statute does not limit the methods used by a motorist.

___

The court's decision neuters the statute to make it totally useless as an enforcement tool. To summarize, under the court's interpretation: (1) motorists can listen and talk while using a hands-free device; (2) motorists can hold the phone in one hand to activate or deactivate the phone; (3) motorists may dial the phone while activating or initiating it; and (4) dialing may require the pressing of multiple buttons. As long as you have a hands-free-equipped phone, the court's interpretation gives you wide berth to argue that, although you were holding it while driving, you were only holding it in order to activate or deactivate it and dial it in the process of activating or initiating it.

Like the majority of people out there, I'm thoroughly opposed to texting or talking while driving. The statute is well intentioned, but the drafters included a hands-free exception (likely in order to satisfy some special interests), and in the process, unwittingly created a loophole big enough to drive a truck through. Legislative drafters don't seem to have a good sense of precision, particularly when it comes to applying the law to technology. Even the simple definition of "dial" is something that is subject to a variety of different possibilities, depending on the type of equipment and application used, and the drafters did not specify which method of dialing was permitted. Given the pace with which technology moves, I'm not sure the legislature could have effectively locked down this definition even if it tried.

I'm guessing the state will appeal this decision, so we'll see whether the New Jersey Supreme Court has a different take on the statute.

Posted by Venkat at 10:03 AM | General

February 07, 2011

Regulating Reputational Information Chapter Now Available

By Eric Goldman

I have posted my book chapter, The Regulation of Reputational Information, which I published as part of The Next Digital Decade compilation I've previously mentioned. I have another version of this chapter coming out later this year in a book oriented more towards social scientists, The Reputation Society: How Online Opinions are Reshaping the Offline World (MIT Press 2011).

This chapter is the final evolution of an essay I wrote for this conference at George Mason University nearly 2 years ago. The chapter is designed to preview a larger/long-term book project on reputation regulation that I hope to write over the next X years (where X remains to be seen!). So, if you would like a brief introduction into one of my long-term research projects, this chapter is the place to start.

The next iteration in this project is my forthcoming article, "In Defense of 47 USC 230," where I will explain in more detail 47 USC 230's salutary role in online reputation systems. I am presenting that talk several times this semester, including at our March 4 47 USC 230 blowout.

I have posted many times about reputation issues on the blog, including several variations of slide decks I've used over the years. Start with this post.

The chapter's abstract:

"This essay considers the role of reputational information in our marketplace. It explains how well-functioning marketplaces depend on the vibrant flow of accurate reputational information, and how misdirected regulation of reputational information could harm marketplace mechanisms. It then explores some challenges created by the existing regulation of reputational information and identifies some regulatory options for the future."

Posted by Eric at 09:22 AM | General | TrackBack

January 30, 2011

Private Employers and Employee Facebook Gaffes [Revisited]

[Post by Venkat Balasubramani]

I posted about a Wall Street Journal article highlighting supposed legal landmines facing private employers who discipline their employees for Facebook gaffes. ("Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?") I asked people to enlighten me if there were any such landmines, and someone did just that (thanks Andrew Oh-Willeke).

It turns out that several states have laws that restrict an employer's ability to fire an employee for lawful off-duty conduct. (Here's a 2008 survey from the National Conference of State Legislatures: "Employee Off-Duty Conduct." It's amazing how many of the statutes expressly cover tobacco products!) The California Labor Code protects employees from discipline or firing based on their "lawful conduct during nonworking hours away from the employer's premises." (Cal. Lab. Code §§ 96(k) and 98.6.[5].) A Colorado statute also protects employees from adverse employment decisions based on their engagement in "lawful activities off the premises of an employer during nonworking hours." (Colo. Rev. Stat. § 24-34-402.5.) (The Colorado statute was known as the "Smokers’ Rights Statute.") The Colorado statute contains an exception where the employer can prove the restriction which the terminated employee violated:

(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

The Colorado statute looks fairly broad. I did not come across any cases involving employees terminated for online activity. One case involved an employee who was terminated for writing a letter to the editor which was critical of his employer. (Marsh v. Delta Air Lines, 952 F. Supp. 1458, 1462-1463 (D. Colo. 1997).) The court denied the employee's claim, find that writing the letter was contrary to the implied duty of loyalty owed to the employer. In rejecting the employee's claim, the court noted:

by providing exceptions to the statute's general rule, the legislature indicated that it did not intend this privacy statute to provide a sword to employees thereby allowing employees to strike indiscriminate public blows against the business reputation of their employer.

Interestingly, both the California and Colorado statutes are tied to activity not on "the premises" of the employer, a concept that has become amorphous, as companies engage in activities online.

There are also state statutes which are intended to protect employees from being fired when they engage in political activity. Finally, an at-will Facebook firing may not constitute termination for cause, which can affect the terminated employee's eligibility for unemployment benefits (and a corresponding increase in the employer's unemployment insurance rate).

Previous post: "Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?"

See also:
"The Blogosphere: Worker Rights and Employer Responsibility" (for an overview) (July 2007)
"Akin Gump Chair Hits Partner’s Personal Blog Post on ‘Ugly’ Indian Prayer" (ABA Journal) (Jan. 19, 2011)

Posted by Venkat at 08:07 PM | General

January 28, 2011

Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?

[Post by Venkat Balasubramani]

I'm not sure why, but this Wall Street Journal article ("Can Employers Fire Over Facebook Gaffes?") screamed out for a comment. Maybe this is just a case of headline puffery, but the idea that there is some sort of legal minefield facing private employers who fire their employees over Facebook gaffes sounds silly. Most states adhere to some version of the "employment at will" rule, which means that you can fire an employee for any reason or no reason at all. Numerous exceptions have chipped away at this rule over the years, but as long as you steer clear of those exceptions, there's nothing out there as far as I know that says you can't fire an employee for a Facebook gaffe.

In any event, there hasn't been much activity in the courts over social media-related firings when it comes to private sector employees. You would think from reading the article that examples of employers stepping on legal landmines would be plentiful, but the examples from the article aren't particularly relevant. Some involve public sector employees (admittedly an area of a fair amount of litigation activity). Another example includes the Cisco in-house lawyer/blogger who butted heads with someone he called a patent troll. A third case involved restaurant employees whose semi-private page their supervisor accessed. (Claims around the allegedly improper access of employee communications by employers has been an area where there actually has been a lot of activity. See, e.g., "Pure Power Boot Camp v. Warrior Fitness Boot Camp" (granting summary judgment in favor of ex-employees based on the improper access of their emails by the employer).)

I think we will be hard pressed to see an example of a private company getting into hot water for disciplining or firing its employee over a Facebook gaffe (unless of course, there are other issues in the background). (Maybe I'm wrong, and there are a slew of cases cycling their way through the courts, but the article certainly does not cite to any.) The article does make a good point that social media allows the private and public to mix in ways that was not possible or likely before, and this could have legal consequences (e.g., an employer finds out about an employee's health condition or membership in a protected class). The article also highlights the ongoing case involving the NLRB, which argued that Facebook posts complaining about employment conditions can be "concerted activity," and the employer's social media policy in that particular case chilled or restricted this activity. (As this post in the Courant notes, settlement discussions are ongoing in that case: "Settlement Talks Underway In Facebook Firing Case." Here's a post from Molly DiBianca that tells everyone to take a deep breath on this issue: "Employers, Don’t Despair. Social-Media Policies Are Not Prohibited by the NLRA.")

Oddly, while lawyers in the Wall Street Journal's story warned about the many perils of Facebook firings, over at King 5, a civil rights lawyer made the point that you can indeed be fired for your Facebook gaffes, and this happens all the time:

Civil rights attorney Kristin Case said Busch's story is actually one that has become very common in her practice. 'In the past two years there's been an enormous boom in the number of people getting terminated for this,' she explained...'If the employer can access something it finds objectionable on an employee's page -- even if the objectionable activity is legal -- it could be grounds for firing. Case says that employees in the private world often misinterpret freedom of speech.'

(King5.com: "What you say on Twitter or Facebook could get you fired.") Maybe I'm missing something, but it seemed like the Wall Street Journal article didn't accurately capture the landscape. There are obviously issues to watch out for, but disciplining an employee for saying or doing something imprudent on Facebook didn't seem like it would be near the top of the list of employer concerns. Employment lawyers - if I'm missing something, please enlighten me! In the meantime, I'm going to chalk this up to media hype, which is typical when it comes to social media and lawyers, but amplified even more when it comes to social media and employment issues. (See, e.g., "Will Dress Codes for Workplace Avatars Soon Be the Norm?" for another recent example.) Interestingly, the public backlash over a Facebook firing may be more significant than any risk of liability. ("Waitress Is Fired for Her Complaint on Facebook: Lesson Learned for Employers?")

The article mentions policies, along with a helpful quote or two from people who draft such policies. I don't know what the best approach is here. Many policies are overwrought. Some are aspirational and simple, almost to the point of being gimmicky. Some useful thinking on this came from a blog post by David Griner: "Why your office shouldn't have a social media policy." Griner's main point is that an employer's social media policy should not aim for specificity as far as social networks, because the space is constantly changing:

[G]iving social media its own HR policy isn't cutting edge. It's short-sighted. Your company's time and energy would be far better spent developing a policy that can be universally applied to all types of digital communication — e-mails, forums posts, blog entries, tweets, status updates, etc. In my opinion, a digital policy for employees should be akin to the U.S. Constitution. It should convey the organization's overarching stance on how workers should comport themselves online. The question isn't whether your policy includes Twitter, Facebook, LinekdIn and YouTube. The question is whether your policy acknowledges that there is no longer a clear divide between the personal and the professional.

Regardless of what a policy should contain, I do think two things are useful: (1) the company should make clear what social media accounts (if any) are official accounts and (2) the company should have a designated person who should be in charge of monitoring the accounts or pages, and who regularly monitors them and deals with issues that arise.

Loosely related: "Packers Fan Fired Over Team Necktie; Will Litigation Ensue?"

Previous post on this topic: "Company Not Responsible for Harassive Comments by Coworker on Personal Facebook Page."

Posted by Venkat at 01:09 PM | General

January 22, 2011

Internet-Proofing your Cease and Desist Letter [Revisited]

[Post by Venkat Balasubramani]

I blogged some time ago about steps you can take to "'Internet-Proof' Your Cease and Desist Letter." Here's what happens when you don't.

The law firm Lazar, Akiva & Yagoubzadeh sent a cease and desist letter to Boing Boing. When you send a letter to someone like Boing Boing, they are going to post it . . . so if you send one, you should make sure it's clean and defensible (and relatively reasonable). Apparently, this particular one was not, and Boing Boing posted the letter. (See "Stupid legal threat of the young century.") Boing Boing also said it was one of the worst letters they had received (and it seems like they receive a lot of cease and desist letters):

Boing Boing has been on the receiving end of one or two stupid legal threats in our day but this one from the firm of Lazar, Akiva & Yagoubzadeh takes the cake, the little cake topper, the frosting and all the candles, as well as the box and the cake-stand and the ornamental forks.

In response, the company on whose behalf the letter was sent walked back the allegations in the letter. It also publicly severed its relationship with the law firm who sent the letter. ("K-12 tutoring company fires law firm over blog spat") (California Watch) (via Volokh)

Internet justice in action! Boing Boing didn't even have to have its lawyers write a response back. They simply posted the letter, and things took care of themselves.

Posted by Venkat at 07:40 PM | General

January 12, 2011

What State Does the Harm Occur in When Adulterous Lovers Text and Email Each Other Across State Lines? -- Knight v. Woodfield

[Post by Venkat Balasubramani]

Knight v. Woodfield, No. 2009-IA-01371-SCT (Mississippi; Jan 6, 2011)

Personal jurisdiction questions in cyberspace have been pretty well hashed out over the last ten years, and it's tough to tell whether recent cases are breaking any new ground on this issue. My view is that they're not - personal jurisdiction standards are somewhat mushy, and in my experience courts assert jurisdiction largely based on the merits and the equities (although their orders may couch their decisions in terms of various tests). (But see this post on two personal jurisdiction cases currently in front of the Supreme Court: "Supreme Court Grants Cert in Important Personal Jurisdiction Cases." More on these cases - which were the subject of today's oral argument from SCOTUSBlog: "Argument previews: When do state courts have general and specific jurisdiction?")

Anyway, the Mississippi Supreme Court heard a case involving a lawsuit for alienation of affections brought by Eric Woodfield against William Knight. Woodfield and his then-wife (Kristina Dokka) resided in Mississippi from July 2006 to April 2007. Dokka commuted from Mississippi to her job in Louisiana, where she met, fell in love with, and later married her co-worker (and the defendant in this lawsuit) William Knight.

As the court describes it, Woodfield noticed a change in his marriage in January 2007. He noticed an increase in Dokka's private use of her cell phone and computer (and a corresponding decrease in intimacy). This prompted Woodfield to access Dokka's cell phone [computer crime alert!], and he discovered that in addition to sending him partially nude photos:

in February 2007, [Dokka] and Knight . . . exchanged 131 text messages . . . . [i]n March 2007, Dokka [and Knight] exchanged 807 text messages. . . . Knight and Dokka also exchanged numerous emails during this time. One email sent by Knight to Dokka stated, 'I refuse to feel guilty about falling for you . . . [y]ou enter marriage by choice and you can leave it by choice anytime you choose.'

Upon discovering these communications, Woodfield emailed Knight and requested that Knight stop communicating with Dokka. Knight continued, despite Woodfield's request.

Woodfield brought claims against Knight in Mississippi for alienation of affection. Knight moved to dismiss on the basis of personal jurisdiction. In response to Knight's motion to dismiss, Woodfield claimed that "the communications between Knight and Dokka, while [Dokka] was physically present in Mississippi, had resulted in [Woodfield's] loss of consortium, the damage of which had occurred entirely in Mississippi." The trial court sided with Woodfield and denied Knight's motion to dismiss. The Mississippi Supreme Court affirmed.

On appeal, the Mississippi Supreme Court ran through the (long arm statute/minimum contacts) personal jurisdiction analysis. The court found that Woodfield's allegations that Knight texted, called, and emailed Dokka "while she was in Mississippi were the direct and proximate cause" of the injury, and these allegations were sufficient to bring the claim under the long-arm statute. With respect to minimum contacts, the court found that the emails, phone calls, and texts were sufficient minimum contacts to support the assertion of personal jurisdiction by Mississippi:

Knight knew that Dokka resided with Woodfield . . . in Mississippi . . . and exchanged more than 900 text messages in the course of two months . . . Knight and Dokka also exchanged numerous emails, chronicling their developing relationship.

The court also found that maintenance of the suit in Mississippi did not offend "traditional notions of fair play and substantial justice."

Two justices dissented on the basis that:

all of the in-person contacts between Dokka and Knight took place in Louisiana [and not Mississippi]. All telephone conversations and text messages between them were conveyed by or to Dokka's Louisiana cell-phone number.

The dissenting justices were not swayed by the email contacts either:

[t]he fact that Dokka may have accessed emails in Mississippi is of no moment, as emails can be accessed anywhere.

The dissenting justices also added that it appeared from the emails that Dokka "independently" chose to leave the marriage [i.e., we're not that excited about the merits of the case].

Given the volume of contacts, and the fact that Knight knew Dokka resided in Mississippi, the court reaches the right result under current personal jurisdiction doctrine (in particular Calder v. Jones, which looks to where the "effects" of the actions are felt - incidentally, the Calder v. Jones doctrine is under attack (see "Kill Calder v. Jones!")). On the other hand, the dissenting justices raise a good point, although they ignore the off-line conduct and the fact that Knight had to have known that Dokka and her then-husband resided in Mississippi: the sender of an electronic communication often does not know where the recipient will access it, and this is something that is often raised in objection to varying state regulation of interstate electronic communications (e.g., state statutes that regulate online content). This raises another question. Louisiana does not appear to recognize alienation of affection as a tort, and the jurisdiction question could end up being dispositive. From the defendant's perspective, this looks like a troublesome outreach of Mississippi laws to govern his conduct as a Louisiana resident. However, the fact that he must have known that Dokka and her then-husband resided in Mississippi and the harm would be felt there makes this a tough argument for the defendant to make here.

Loosely related: Minnesota v. Pierce - a case where a prosecution for violation of a protective order which prohibited email contact was set aside because the prosecutor failed to put forth evidence that the email was sent or opened in the county where defendant was prosecuted:

[w]hen the state prosecutes a person who has allegedly violated an order for protection under the Domestic Abuse Act by sending a prohibited message by electronic mail, venue is proper in the county from which the sender mailed the message or the county in which the recipient opened it.

Check out this post at Benchmarks on that case: "Prosecutor flubs e-mail harassment case."

Posted by Venkat at 03:57 PM | General

January 09, 2011

Goldman Spring 2011 Speaking/Travel Schedule

By Eric Goldman

This lists some of my upcoming public/semi-public talks and other events this semester. As always, if we're going to be at the same conference or if I'm traveling to your area and you would like to try to meet up in person, please email me.

Next Digital Decade, TechFreedom, Washington DC, January 19, 2011 (Internet Exceptionalism & Intermediary Deputization)

UH Law Center Moot Court National Championship (MCNC) Symposium, Houston, January 27, 2011 (Remarks on copyright inducement and ACPA, plus I believe I'll participate on the other panels too)

Social Media 2011: Addressing Corporate Risks, PLI, San Francisco, February 9, 2011 (Defamation, False Information and the CDA Safe Harbor)

Stanford Technology Law Review symposium, Stanford, March 3, 2011 (moderating a panel on secondary TM liability)

47 U.S.C. §230: A 15 Year Retrospective, Santa Clara University School of Law, March 4, 2011 (In Defense of 47 USC 230)

Internet Law Work-in-Progress, Santa Clara University School of Law, March 5, 2011

2011 Intellectual Property Institute, USC Gould School of Law, Beverly Hills, March 22, 2011 (Hot Topics in Trademark and New Media)

Law and Regulation of Virtual Worlds, UC Irvine Center for Computer Games and Virtual Worlds, April 8, 2011 (47 USC 230(c)(2))

Trademark Scholars Roundtable, Bloomington, Indiana, April 22-23

INTA Annual Meeting, San Francisco, May 2011 (I'm on two panels: (1) A Century of Trademark Law: Where Do We Go from Here? and (2) Functionality Doctrine)

ALI Annual Meeting, San Francisco, May 2011

Law & Society Association Annual Meeting, San Francisco, May-June 2011 (In Defense of 47 USC 230)

Privacy Law Scholars Conference, Berkeley, June 2-3 (I asked to present my paper In Defense of 47 USC 230 here as well).

Posted by Eric at 09:34 AM | General | TrackBack

December 22, 2010

Court Rejects Plaintiff's Proposal of Class Notice via Twitter, SMS, and Email -- Jermyn v. Best Buy

[Post by Venkat]

Jermyn v. Best Buy, No. 08-Cv-00214-CM-DCF (S.D.N.Y.; Dec. 06, 2010)

Plaintiffs brought a class action against Best Buy alleging that Best Buy failed to honor its price-match guarantee. The court certified the class with respect to New York residents who had bought certain items from Best Buy since 2002 and who were denied Best Buy's price guarantee.

The named plaintiff suggested several forms of notice to potential class members, including notification via: (1) Best Buy's "Twelpforce" Twitter account, (2) SMS, and (3) email. Noting that overinclusive individual notice is not required, and that Best Buy is only required to undertake "reasonable steps" to identify individual affected class members, the court rejects all three suggestions.

Notice via Twitter: The court conducted a random sample of Best Buy's "Tweplforce" account and concluded that it was primarily a medium for providing technical support to customers:

As an online help desk--primarily focused on providing technical advice-- Twelpforce is not tied to Best Buy's price-match guarantee in any way and therefore there is no evidence that customers denied a valid price match use or even know of Twelpforce. Further, as Best Buy points out, Twelpforce is a nationwide help desk and Best Buy cannot limit its "tweets" by geographic area. Thus, a "tweet" about the pending class action will likely reach a nationwide audience--a group that is significantly broader than the defined class.

The courts rejects this form of notice, observing that:

Notice via Twitter is a form of individual notice (akin to notice via mail).

Notice via SMS: As with respect to the suggested notice via Twitter, the court accepts Best Buy's argument that notice via SMS was overinclusive, based on Best Buy's argument that:

Best Buy is unable to restrict its text messages to class members. Best Buy's list of mobile telephone numbers includes the telephone numbers of employees (who are excluded from the class) and select high-level Reward Zone members (i.e., members of Best Buy's loyalty program). Although Best Buy may be able to restrict its text messages to New York customers, there is no link between the list of mobile telephone numbers (which includes individuals excluded from the class definition) and class members. Moreover, the list of mobile telephone numbers is underinclusive because it contains only a select group of Reward Zone members and Best Buy employees.

Notice via email: The proposed email notice suffered the same fate, since Best Buy was "unable to restrict notice via email to only class members . . . [it] only collected customer emails when a customer makes a purchase on bestbuy.com; when a customer obtains a protection or service plan for an item purchased at bestbuy.com or at a Best Buy store; or when a customer voluntarily shares her email address when visiting bestbuy.com."
__

The court's treatment of Twitter as an form of individual notice was interesting, and not entirely accurate. Tweets are not "individualized messages" in the sense that the list of recipients is not controlled by the sender (there's not a finite list) - the list of recipients includes people who follow the general stream of Tweets as well as those who have opted in to receive messages. Additionally, tweets can be disseminated further by those who see initial tweets, increasing the odds that the word would get out to its intended audience.

It's also worth noting that the "Twelpforce" account is not Best Buy's only Twitter account. For some reason, plaintiff didn't suggest notice via Best Buy's main account, which has approximately 123,000 followers. Given that the costs involved in disseminating notice via Twitter are de minimis, I'm surprised the court wasn't more open to the suggestion. Also, I was surprised that neither party brought up Facebook as a possibility. Best Buy's Facebook page is approaching 2 million followers, and offers a similarly inexpensive way to get the notice out to a broad group of interested people. I would think Best Buy's resistance stems from not wanting to suffer any negative branding implications from including news of this class action in its overt marketing channels, but I would have thought the minimal cost would have swayed the court.

The accepted form of class action notices will evolve over the years (the court agreed that notice via Best Buy's website was proper, and Best Buy did not object to class counsel setting up a website where it would disseminate notice). Interestingly, the court approves notice via the New York Times, and suggests a few other local newspapers where notice is appropriate, even though there's no empirical evidence that these methods of notice are any better targeted to reach prospective class members than the ones proposed by class counsel, and undoubtedly they are more expensive. (I don't know where revenue from this notice fits into a newspaper's revenue stream, but it's nice to see that the court is looking out for the dying print media.)

I was somewhat surprised - given the infinite degree of targeting and consumer tracking companies are portrayed as engaging in - that the court did not push Best Buy to take additional steps to identify individual customers within the class. Under the rules as articulated by the court, only class members that can be identified through "reasonable steps" should receive individual notice, but I would have thought Best Buy would have ample "reasonable" means at its disposal to identity affected customers.

Posted by Venkat at 01:53 PM | E-Commerce , General

December 09, 2010

Get Ready for a Rush of Facebooking Activity by Judges in Ohio

[Post by Venkat]

Ohio Supreme Court (Board of Commissioners on Grievances and Discipline): Opinion 2010-7 (Dec. 3, 2010)

I posted previously about Florida's restrictive attitude toward Facebook friending by judges: "Is the Florida Bar Taking Facebook Friendship Too Seriously?" The Ohio Board of Commissioners recently released an (advisory) opinion answering the question of whether "a judge [may] be a 'friend' on a social networking site with a lawyer who appears as counsel in a case before the judge." [Answer: yes.] The opinion is a surprisingly good read. For example, it notes that:

A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network "friend" may or may not be a friend in the traditional sense of the word.

The Ohio advisory opinion runs through the code of conduct for judges and notes that

[u]pholding these required virtues may be challenging for a social networking judge. Social interaction on a network occurs rapidly and is widely disseminated.

Some specific guidelines:

maintain dignity in comments and photographs;
don't convey the impression that anyone is in the position to influence you;
don't make comments about pending matters (privately or publicly);
don't view a witness's profile;
don't give legal advice to others; and
be aware of the contents of [your] . . . page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.

It looks like most of the states that have considered the issue have said jurists can friend (Kentucky, Ohio, New York, South Carolina), with just one state saying no (Florida).

When I wrote the post about Florida's opinion I thought it was taking the concept of Facebook friendship way too seriously. However, since then it seems like Facebook's privacy controls have grown more complicated. I do think there's that issue to consider. In light of this, Ohio's cautionary notes seem warranted. On the other hand, you have to wonder whether this smacks of Facebook exceptionalism. Do we have to articulate the rules for judges following a lawyer on Twitter? Do we need to reiterate the rules of engagement for judges emailing lawyers? Either way, it's nice to see Ohio take a practical stance on the issue.

For what it's worth, the ethics opinion contains reasonably good advice that is probably helpful to lawyers as well (even though lawyers aren't subject to the same canons as judges).

(h/t ABA Journal: "Judges Can Have Facebook Friends, With ‘Constant Vigil,’ Says Ohio Supreme Court Board")

Posted by Venkat at 10:49 AM | General

November 18, 2010

"Trends in Internet Law" Talk Slides

By Eric Goldman

A couple weeks ago, I spoke at the California State Bar IP Section's IP Institute on the nominal topic of Hot Topics in Internet and Technology Law. I don't normally do "hot topics" CLE presentations, and as a result, I decided to experiment with the format. Ultimately, I decided I wanted to talk about some broad trends I'm seeing in Internet Law. Like a typical hot topics presentation, I spent plenty of time talking about recent cases and statutes, but I tried to bucket them into broader themes. My talk slides.

I did learn that it's a lot easier to discuss 8 cases than it is to discuss 8 trends. It turned out that I basically prepared 8 mini-talks instead of just one lecture, so my reimagination of the topic meant I did a lot more work than I expected. I don't anticipate doing another "hot topics" presentation any time soon!

The eight trends I discussed (I ran out of time to discuss the last trend, unfortunately):

* keyword advertising (one of the main topics I blog about). As you can see, I asked the provocative Q: "Are Keyword Ad Battles Winding Down?" Putting aside the ridiculous number of parties who jumped on Rosetta Stone's bandwagon, my broad assessment is that we're close to the finish line, and that TM owners will soon acquiesce to search engine keyword advertising and move onto to freakouts about newer technologies.

* 47 USC 230 (another main topic of the blog). This gave me another chance to plug our upcoming 15 year retrospective of 47 USC 230 on March 4.

* State AGS (enemy #1 of Internet companies)

* Internet plaintiffs' bar (enemy #2 of Internet companies). See the latest are-you-kidding-me? lawsuit: Dunbar v. Google, a class action alleging that Google violates the ECPA by triggering ads off Gmail emails--an issue that was THOROUGHLY angst-ed in 2004.

* Online authenticity. I predict we will see a variety of additional legal moves designed to prop up online authenticity using regulatory tools.

* Scraping

* First Sale and Exhaustion. I'll write a separate blog post recapping our excellent event last week.

* Are Newspapers the Next Big IP Litigants?

Posted by Eric at 09:12 AM | General | TrackBack

November 10, 2010

Job Opening: Assistant Director, High Tech Law Institute

By Eric Goldman

I'm sad to announce that Cindy Tippett, our current Assistant Director of the High Tech Law Institute, will be leaving the position due to a family relocation. Cindy has been an integral part of the HTLI's operations over the past 2.5 years, and we have made substantial progress towards our goals during that time period. I am grateful for her many contributions, and I will miss working with her.

Her departure opens up a really terrific law school administrative job for the right person. See the job description and application. The HTLI has a lot of unfinished business and untapped upside, and the Assistant Director plays a crucial role in serving our communities. If you know a candidate who might be a good fit, I'd be grateful if you would make the referral. If you think *you* might be the right person, please submit an electronic application. Feel free to email me with any questions about the position.

Posted by Eric at 03:00 PM | General | TrackBack

October 19, 2010

Probation Limitations on Internet and Facebook Use Violate First Amendment -- In re J.J.

[Post by Venkat]

In re J.J., Case No. D055603 (Cal. Ct. App. Oct. 15, 2010)

J.J. is a 15 year old who was found to have received a stolen motorcycle. He was adjudged a ward of the court and placed on probation. The conditions of his probation included the following:

[J.J.] shall not use a computer that contains any encryption, hacking, cracking, scanning, keystroke monitoring, security testing, steganography [explanatory link added for others who may have also thought that this was a typo], Trojan or virus software.

[J.J.] is prohibited from participating in chat rooms, using instant messaging such as ICQ, MySpace, Facebook, or other similar communication programs.

[J.J.] shall not have a MySpace page, a Facebook page, or any other similar page and shall delete any existing page. [J.J.] shall not use MySpace, Facebook, or any similar program.

[J.J.] is not to use a computer for any purpose other than school related assignments. [J.J.] is to be supervised when using a computer in the common area of [his] residence or in a school setting.

He challenged these conditions as being overly broad and vague.

The court acknowledges that juvenile courts have broader discretion in fashioning conditions of probation than courts do with adults, but nevertheless noted that probation conditions must comport with constitutional restrictions. The court notes also that restrictions on internet activity curtail First Amendment rights:

Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means.

[We know which side the court comes down on in the debate Malcolm Gladwell started over the efficacy of cyber-activism!]

With this in mind, the court concludes that the limitation on J.J.'s computer (and internet) use is overbroad because it "forecloses access to countless benign and protected uses, and is insufficiently narrowly tailored to serve government interests." The ban:

renders modern life -- in which, for example, the government strongly encourages taxpayers to file their returns electronically, where more and more commerce is conducted on-line, and where vast amounts of government information are communicated via website -- exceptionally difficult.

The ban on the use of internet and social networking sites failed because it was unrelated to J.J.'s criminal history. There was no evidence that J.J.'s receipt of the stolen motorcycle was the result of (or related to) any online activity.

The court also modified the condition which restricted use of computers which contained any "encryption, hacking" or similar software because it was vague - J.J. could violate it unknowingly. The court adds a limitation that the violation must be "knowing" in order to constitute a violation.

Related: "Banned from the Internet" (The National Law Journal; Oct. 11, 2010) (discussing other cases)

Posted by Venkat at 08:05 AM | General

October 08, 2010

September 2010 Quick Links, Part 2

By Eric Goldman

Contracts

* Hutchison v. Yahoo, 2010 WL 3706571 (9th Cir. Sept 20, 2010). AT&T's early termination fee wasn't a penalty, even as applied to a termination with only 2 weeks of service left.

* Evan Brown: Software contractor not bound by EULA it clicked on behalf of client.

* Zev J. Eigen, When and Why Do Individuals Obey Form-Adhesive Contracts?: Experimental Evidence of Consent, Compliance, Promise and Performance: “Individuals are more likely to comply with contract terms obligating them to perform an undesirable task when they see and choose to include the terms in the contract during the consent phase. The research also shows that demands for enforcement framed in moral terms–as a promise made that must be lived up to—similarly yield a greater likelihood of compliance than threats of legal action, instrumental appeals or pressure to conform socially.”

* Ewert v. eBay, 2010 WL 3893681 (N.D. Cal. Sept. 30, 2010). Class of sellers certified against eBay over alleged misrepresentations over the duration of auctions.

47 USC 230

* Voicenet Communications, Inc. v. Corbett, 2010 WL 3657840 (E.D. Pa. Sept. 13, 2010). Police raided a Usenet service provider looking for child porn and seized almost everything they could find. The service provider unsuccessfully sued for 1st and 4th amendment violations. In this ruling, the court also refuses to grant injunctive or declaratory relief to the service provider based on the service provider's 47 USC 230 immunity. My prior post on this case.

* Black v. Google Inc., 2010 WL 3746474 (N.D. Cal. Sept. 20, 2010): "Plaintiffs appear to argue that Congress did not intend to grant immunity under § 230 in circumstances involving anonymity....However, there is no provision in the CDA that imposes such a limit." Prior blog post.

Content Regulation

* The jury ruled for the defense in Moreno v Hanford Sentinel, an instant-classic cyberlaw case. My prior blog post.

* Defamation lawsuits against the media are down sharply.

* Nebraska v. Drahota (Neb. Sup. Ct. Sept. 24, 2010). Anonymous harsh emails cannot be prosecuted as a breach of the peace when they did not amount to "fighting words."

* California enacts an "e-personation" law against fake online identities. CA Sen. Joe Simitian’s commentary.

* Congress goes after crush animal videos again.

* Useful Berkman Center report on the legal regulation of sexting, although not surprisingly the report does not offer any good answers.

Technology and our Legal System

* U. S. v. Diehl-Armstrong, 2010 WL 3718941 (W.D. Pa. Sept. 20, 2010). No change in the trial’s venue due to either popular YouTube videos related to defendants (which do not indicate the geography of viewers) or a Wikipedia entry.

* In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 2010 WL 3720406 (S.D.N.Y. Sept. 7, 2010): "Search engines have indeed created significant new dangers for the judicial system. It is all too easy for a juror to find out more than he or she should by typing a few carefully chosen words into a search engine. Nevertheless, in this instance, the jury was not too polluted by the receipt of extra-judicial information such as to prevent it from rendering a fair verdict based on the evidence introduced at trial."

* NY State Bar Association Opinion #843 (Sept. 10, 2010): "A lawyer representing a client in pending litigation may access the public pages of another party's social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation."

* ABA Formal Opinion 10-457: Lawyer Websites: "Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18."

Miscellaneous

* Posted to my personal blog: “Scribd Puts My Old Uploads Behind a Paywall and Goes Onto My Shitlist”. As Wired explains, Scribd’s meltdown continues.

* Slashdot on a competition for automated Wikipedia anti-vandalism efforts. Later this year, I’ll address how and why my Wikipedia doomsday predictions haven’t come to pass.

* AOL quietly settled its community leaders lawsuit for $15M. The money was distributed this summer, so I believe the lawsuit is over. Unfortunately, this case leaves unresolved important issues about employment law applied to crowdsourcing.

* Apple has clarified and liberalized its App Store policies. Always smart to keep developers on your side.

* Zamora Radio, LLC v. Last.FM, 2010 WL 3893985 (S.D. Fla. Sept. 30, 2010). Internet radio station may not be sufficiently interactive to support remote jurisdiction.

* Evan Brown on Reed Construction Data v. McGraw Hill Companies, a case where competitor A accessed competitor B's proprietary database using stealth contractors.

* The Supreme Court denied certiorari in the Boring v. Google case.

* Law.com: 25 Most Influential People in IP. I nominated several of the selected folks. However, I did notice one group was categorically not present—the list does not contain any bloggers...

Posted by Eric at 12:04 PM | Content Regulation , Derivative Liability , General , Licensing/Contracts | TrackBack

October 05, 2010

New Internet Law Work-in-Progress Series

By Eric Goldman

Announcing a New Internet Law Works-in-Progress Series and Call for Participation

The High Tech Law Institute at Santa Clara University School of Law and the Institute for Information Law and Policy at New York Law School are pleased to announce a new annual works-in-progress series for Internet Law scholarship. The inaugural event will be held at Santa Clara University on March 5, 2011. Thereafter, the event will rotate between NYLS and SCU each Spring semester.

Why Another Work-in-Progress Series?

As Internet Law scholars, many of us already have numerous venues to present our works-in-progress. However, although many existing works-in-progress events have accommodated our scholarship in the past, none of them expressly cater to Internet Law scholarship. For example, in August the Intellectual Property Scholars Conference (IPSC) at Berkeley cut the Internet Law papers to manage their capacity constraints. It made complete sense for an IP-oriented works-in-progress series to turn down non-IP Internet Law scholarship, but it also highlighted that we as Internet Law scholars need our own dedicated venue to meet, socialize with and learn from each other as a community. We hope this new series will serve that purpose.

Call for Participation

Topically, we take a broad view of what constitutes “Internet Law” scholarship, and we welcome all types of scholarly approaches (doctrinal, theoretical, empirical, etc.). We offer three ways to participate in the event:

Papers-in-Progress Presentation for paper drafts sufficiently advanced to share with event attendees. We anticipate giving extra speaking time to these presentations. To qualify for these slots, you will need to upload a paper draft no later than February 21, 2011. If we have to prioritize presentation requests based on capacity constraints, we plan to give greater priority to papers earlier in the drafting process that will most benefit from peer feedback, i.e., (a) papers that have not been circulated to publication venues will get higher priority than (b) papers that have been circulated to publication venues but do not yet have a publication commitment, which will get higher priority than (c) papers that have been accepted for publication.

Projects-in-Progress Presentation for research projects without a paper draft for attendees to review in advance. This might occur because your paper draft isn’t ready to share (or does not arrive before the Feb. 21 cutoff) or because you would like to explore a paper idea before writing a draft. We intend to allocate less speaking time for these presentations than for papers-in-progress presentations.

Discussant. Space permitting, we welcome other scholars to join the conversation as active audience participants.

How to Participate

If you would like to participate in the event, please email Eric Goldman (egoldman@gmail.com) no later than January 17, 2011. In your email, please (1) specify your desired form of participation (paper-in-progress, project-in-progress or discussant), (2) provide a short talk abstract (please, no more than 500 words), and (3) let us know the paper’s status (uncirculated, circulated or accepted for publication). We intend to confirm participation by February 1, 2011, but we will respond before then to early participation requests, so we encourage you to submit your request at your earliest convenience.

There is no event participation fee, but all participants are responsible for their own travel expenses. We will be announcing additional travel and hotel information soon. There are no publication obligations associated with presenting at the event.

Other Events of Interest

Immediately preceding the March 5 work-in-progress event are two other events of interest to Internet Law scholars. We encourage you to join us for one or both of these events.

On March 4, 2011, Santa Clara University is hosting a symposium entitled “47 U.S.C. § 230: a 15 Year Retrospective” to recognize the 15 year anniversary of the statute’s enactment. Featured speakers include former Representative Christopher Cox (one of the two named co-sponsors of the bill that evolved into the statute), Ninth Circuit Chief Judge Alex Kozinski, Ken Zeran (the plaintiff in the seminal 230 case Zeran v. America Online) and many more. The event is sponsored by the High Tech Law Institute at Santa Clara University School of Law, and co-sponsors include Harvard Law School’s Berkman Center, Stanford Law School’s Law, Science & Technology program, the Berkeley Center for Law & Technology, the New York Law School’s Institute for Information Law and Policy, the Congressional Internet Caucus Advisory Committee and the Electronic Frontier Foundation. For more on this event and to RSVP, see the event page. Work-in-progress participants get free admission to this symposium.

On March 3, 2011, the Stanford Technology Law Review will hold a symposium on current and emerging issues of secondary or intermediary liability on the Internet. Panels will explore these issues in the context of copyright, trademark, and aspects of privacy law. The event will take place at Stanford Law School, with more details to come soon. Please contact Symposium Chair Holley Horrell (hhorrell@stanford.edu) for more information.

For More Information

We will be posting more information about the work-in-progress event to our event web page.

Posted by Eric at 12:51 PM | General | TrackBack

September 14, 2010

Company Not Responsible for Harassive Comments by Coworker on Personal Facebook Page -- Amira Jabbar v. Travel Services

[Post by Venkat]

Amira Jabbar v. Travel Services (D.P.R.; Sept. 10, 2010) (Order on reconsideration)

Plaintiff brought a hostile work environment claim against her employer. Plaintiff alleged, among other things, that the employer failed to properly investigate derogatory comments made on Facebook. Specifically, following a company event, another employee (or someone related to the other employee) uploaded photos of the event to a personal Facebook account. Plaintiff commented on the Facebook photo and said: "remind me that taking pictures in this shade is really a dis-service to my wonderful chocolate skin." In response, another employee (who also happened to be a defendant) responded by stating: "That is why you always have to smile!!!" Plaintiff pointed to this comment along with other evidence in support of her hostile workplace claim.

The court rejects plaintiff's claims on summary judgment. With respect to the Facebook comment, the court finds that there was no evidence that the account to which the photo was uploaded was a company account. The court also did not credit plaintiff's testimony that the company had a policy in place that encouraged employees to upload photos of company events to their Facebook pages. In any event, the court rules that the company took appropriate corrective action:

As to the Facebook incident, [the company] asked its IT contractor to block access to [Facebook] for all office computers.

Yikes!

It's tough to read too much into this opinion, and it doesn't in practical terms answer the burning question of what sorts of things (if anything) related to Facebook and other networks belong in a company's social media policy. But the court seemed to rely on the fact that the Facebook account was the personal account of an employee (or a friend) and not an official company account. If the comment was made on the company's official Facebook page, would it have mattered? Would it have made a difference if the commenter was in a supervisory position vis a vis plaintiff? I'll leave it to the employment law experts to answer these questions, but I'm guessing at a minimum, the company has an obligation to take prompt corrective action and have in place a policy in the first place that employees shouldn't make problematic comments on company pages or accounts.

One takeaway from these cases is that if you have official company accounts, it makes sense to designate the person(s) who can "officially" post to these accounts and designate what accounts are official accounts. It probably would not hurt to have someone keep tabs on the account to monitor inappropriate comments and to give any authorized posters a crash course in what types of statements courts consider to be problematic or could get the company in hot water.

[The corrective action undertaken by the company is overly drastic, although it was endorsed by the court. No more access to Facebook from company computers! What are the employees supposed to do all day?]

Posted by Venkat at 01:41 PM | General

August 11, 2010

Facebook Friendship May Undermine University Disciplinary Board Decision -- Furey v. Temple Univ.

[Post by Venkat]

Furey v. Temple University, Civ. No. 09-2472 (E.D. Pa.) (Aug. 3, 2010)

The Eastern District of Pennsylvania recently concluded that a Facebook 'friendship' between a Temple University disciplinary board member and a witness may have procedurally undermined a disciplinary hearing.

Kevin Furey, a Temple University student, was involved in an exchange with an off-duty police officer while technically on school grounds. As described in the order, Furey went out partying and returned to a friend's house where he was staying. Furey's friend "locked himself out his bedroom, [so Furey] went to retrieve a machete [??] from his car to pry open the bedroom door." While at his car, Furey was approached by some men who Furey believed might try to attack or mug him (one of the men, Travis Wolfe, was an off-duty police officer). Furey and the officer engaged in a physical struggle and ultimately Furey was taken down and arrested by additional officers who arrived on the scene.

Furey was charged with a violation of Temple's code of conduct. The panel adjudicating the charge consisted of three faculty representatives and two student representatives. Malcolm Kenyatta was one of the student representatives. Kenyatta was Facebook "friend[s]" with Officer Wolfe, the officer who had the altercation with Furey. Ultimately, the panel recommended that Furey be expelled. Furey appealed his decision to a review board which found that suspension (rather than expulsion) was a more appropriate sanction. The review board also found that the Facebook friendship between Kenyatta and Officer Wolfe constituted a "procedural defect" for which additional investigation into the propriety of the hearing was warranted (the review board did not order a new hearing). The review board made its recommendation to the VP of Student Afffairs, who ultimately decided to go with expulsion.

The "Code Investigator" who was asked to look into the procedural defects by the review board asked Kenyatta about the Facebook friendship. Kenyatta responded that:

he and Wolfe were friends on Facebook, but he had over 400 friends, and [Kenyatta and Wolfe] were not "friends" in the traditional sense.

Furey filed a lawsuit asserting a variety of claims, including due process violations stemming from procedural improprieties underlying the hearing. The court agreed with Furey that procedural defects underlying the disciplinary process could constitute due process violations. Although the court did not itself comment on whether the Facebook friendship undermined the process, the court noted that the review board found that the Facebook friendship constituted a procedural defect, and the code governing the disciplinary process provided that where a procedural defect is found, the review board should recommend a new hearing that would take place in front of a new panel. Based on this and one other procedural defect, the court denied summary judgment to the university, holding that the plaintiff's claims for procedural due process violations could go forward.

Facebook friendships between judges, witnesses, and parties should not be viewed as inherently problematic. Litigants, judges, and parties share social connections all the time. However, disclosure is key, and recently, one court found it problematic where a juror didn't disclose a MySpace 'friendship' with the defendant and then gave an unconvincing explanation for it when questioned. (See West Virginia Appeals Court Grants New Trial Based in Part on Undisclosed MySpace Friendship.) On the other hand, more than one court has sneered at the the "friend" label, treating Facebook friendships as something less than real life friendships.

In Williams v. Scribd (see Professor Goldman's post on that case here), a case involving copyright and publicity claims against Scribd, the court noted:

it’s no secret that the ‘friend’ label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people.

In another case (Quigley Corp. v. Karkus) coincidentally also from the Eastern District of Pennsylvania - the court also turned up its nose at the concept of Facebook friendship:

[T]he Court assigns no significance to the Facebook "friends" reference. Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. . . . Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.

Here, there was some evidence that the panel and certain panel members displayed hostility towards the plaintiff. Plaintiff also presented evidence that Kenyatta and Officer Wolfe were part of some club. In any event, the underlying rules provided that where a procedural defect was found, the review board should have ordered a new hearing and this did not take place. [The court's views on Facebook friendship were not central to the case, but since the case mentioned Facebook, I figure I should blog about it. Thanks in advance for cutting me some slack on this!]

Related posts:

Is the Florida Bar Taking Facebook Friendship Too Seriously?

Posted by Venkat at 02:49 PM | General

August 08, 2010

Ca. Appeals Ct. Affirms Conviction For Fake MySpace Emails Intended to Influence Custody Dispute -- People v. Heeter

[Post by Venkat]

People v. Heeter, B213696 (Cal. Ct. App.) (Aug. 2, 2010)

Background: In a criminal prosecution stemming from false evidence used in a family law dispute, a defendant was convicted of sending fake emails to herself with the intent that the emails would be used to influence a court proceeding. The appeals court affirmed her conviction.

Heeter (the defendant) was married Chris since 2005 (and is his current wife). Chris and his ex-wife (Aubry) were involved in a custody dispute, and Heeter sent herself abusive emails which appeared to come from Aubry. The emails had the tone of Aubry expressing her angst and anger at Heeter for displacing Aubry as the mother of Aubry's child (e.g.):

My son is not yours and will never be yours[!]. Look you ******* *****, I'm sick and tired of you claiming my son is your own. Get over it. He's mine and always will be.

The emails were presented in the context of the custody dispute where Aubry was seeking a modification of the custody arrangement so she could spend more time with her child. Chris opposed the request, and presented the emails to show Aubry's unfitness as a parent. The judge hearing the custody dispute doubted the authenticity of the emails and declined to modify the custody arrangement (Aubry sought additional time and this was not granted). When Aubry expressed her concerns about identity theft to a detective, the detective subpoenaed and obtained MySpace account records for Heeter, Aubry, and Chris. The logs and IP addresses revealed that the emails "had originated from a MySpace account using an IP address identical to that of the MySpace account created in Aubry's name to which they were sent."

Discussion: Heeter was charged under a California statute that made it a crime to (1) prepare a false document or thing; (2) with the intent to produce it or allow it to be produced at a trial or other proceeding; (3) for any fraudulent or deceitful purpose.

Heeter did not dispute that she created the fake account or that she had sent the emails, but contested that she intended that the fake emails would be used in a judicial proceeding. The IP address tied to the MySpace account and the timing of the emails made the fact that Heeter sent the emails hard to contest.

The court held that there was ample evidence from which the jury could reasonably conclude that Heeter sent the emails with the intent that they would be used in the custody dispute: (1) she was aware the dispute was ongoing, (2) the emails related to the dispute, and (3) her explanation of why she sent the emails (to "vent") did not jibe with the content of the emails ("[i]t is simply not reasonable to conclude one would adopt the posture assumed in the writings if their purpose was, as Heeter claims, simply to allow their author to vent her frustrations").

Heeter also challenged the jury instructions and challenged the statute as ambiguous, but the court rejects these challenges.

----

The case illustrates the ease with which email evidence (and MySpace accounts) can be faked. Email evidence is frequently used in family law disputes, which is not surprising, since people probably tend to engage in heated email exchanges (given the subject matter of the proceedings). A family law practitioner confirmed my instincts that courts don't necessarily subject email evidence to exacting standards and that email evidence often ends up being influential. (Ex parte orders which remain in effect until challenged are often issued on the basis of email evidence.) Courts don't necessarily operate with the assumption that email and profile evidence can be easily faked, although the judge hearing the custody dispute saw through the fake emails. I blogged about a recent criminal case where a Maryland appeals court allowed for "circumstantial authentication" of a MySpace profile page. This case illustrates the problems with allowing circumstantial authentication.

It's also interesting to note that in the underlying custody dispute, the judge did not modify the custody arrangement. Aubry had sought more time with her child, but the court denied this request, thus leaving the child partially in the custody of parents who engaged in the conduct that ultimately resulted in this criminal proceeding.

Finally, it's also worth noting that the judge rejected the prosecution's request for jail time and instead sentenced Heeter to three years of probation, with the condition that she pay a $100 fine and she not possess or use any credit cards. [It didn't seem from the decision that the prosecution sought any restrictions on internet access.]

Related: This is not the only recent criminal conviction for someone sending fake communications. Wired recently posted about a case where a woman was convicted for sending threatening text messages to herself following a breakup: "Woman Jailed For Texting Threats to Herself."

Posted by Venkat at 09:20 AM | General

July 29, 2010

Internet Law Syllabus and Reader for Fall 2010

By Eric Goldman

I have posted my syllabus for this semester's Internet Law course, my 16th year teaching the course. This blog post describes some of the latest developments with the class, including the changes from my 2009 course reader. For a more general discussion of the course's pedagogy, see my Teaching Cyberlaw article.

Course Titling

The most obvious change is that I renamed the course to "Internet Law" from "Cyberspace Law"/"Cyberlaw." I discuss the titling choices/dilemmas in my Teaching Cyberlaw article. Though it took a few years to pull the trigger, James Grimmelmann's 2007 post helped convince me that I should rename the course.

Grading

Last year, I tried an experiment of allowing students to write a wiki entry for part of their course grade. I recapped my experiences with that experiment in this blog post. Although I might be willing to try the experiment again, this semester my teaching load will be too demanding as it is, so I didn't think I could find enough time to support the students' wiki writing.

As a result, the class is back to a 100% final exam. As you can see, for the first time I'm letting students choose when to take their exam within a set window. If you've offered exams on that basis and have any suggestions for me, I would be grateful to hear them.

Added/Subtracted Reader Material

It's been an interesting year for Internet law, but I ended up adding only two new cases: Viacom v YouTube and Tiffany v eBay.

To decide what I add, I made a rough list of the most significant developments of 2010 so far. A preview of what might make the top 10 list at the end of the year:

* Supreme Court cases that weren't: Bilski, Quon
* Trademark intermediary liability: Tiffany v eBay; Gucci v. Frontline
* Copyright intermediary liability: Viacom v YouTube; Arista v Lime Group
* Sony v Tenenbaum
* Google and China
* Google/Facebook product gaffes (Buzz, Street View, Instant Personalization) and the plaintiff bar's excited responses to those gaffes
* Trademark owners giving up their lawsuits against Google (Rescuecom, Parts Geek and http://blog.ericgoldman.org/archives/2010/07/yet_another_tm.htm">Ezzo). Also, Rosetta Stone v. Google (whenever the opinion issues)
* Barclays v theflyonthewall. One of the most interesting cases of the year.

Honorable mentions:
* Conflicting 3rd Circuit cases re student MySpace profiles
* Utah repealed its Spyware Control Act
* Anderson v. Bell (electronic signatures count for election petitions)
* Snap-on v. O'Neil. Perhaps the most interesting case of the year so far.
* FTC v. Twitter
* the new 1201 exceptions and the Fifth Circuit's puzzling 1201 ruling in MGE v. GE

Materials I dropped from the reader this year:

* Perfect 10 v. Amazon. I never knew how to teach the Perfect 10 troika of 2007 cases, and in practice I ended up skipping this case last year to conserve time. I think the Viacom v. YouTube decision is a worthwhile substitute, even if it deals with different issues.
* Parker v. Yahoo. This was intended as a recap, but it covers some of the same ground as Ticketmaster v. RMG (which is popular with the students, BTW), and I also cut it for lack of time.
* the UDRP rules. I had included them for completeness, but I never really taught them in detail.
* My slides on keyword advertising and blog/social networking law.

Also, I learned that the federal cyberpiracy protections for individuals, formerly codified at 15 USC 1129, moved to 15 USC 8131. Just so you know!

BTW, I had been looking for years for a good keyword advertising case to teach. Last year, I thought the Hearts on Fire v. Blue Nile case worked well. It does a pretty good job framing the issues. I was also happy concluding the semester with the Moreno v. Hanford Sentinel case--it was a great pedagogical wrap-up.

Electronic Casebook

My other big news about the course is that I have converted my reader into an electronic casebook. This may not sound like much, but it took me a fair amount of time to re-edit the cases and collate the materials.

Eventually, I will probably turn the electronic casebook into an official "published" casebook that can be adopted by other professors. That will require more work to supplement the case materials with pictures, notes, comments, explanatory material, etc. I didn't have time to do that this semester. Maybe next year.

However, I am making the electronic file available at Scribd as a $5 download. You can also buy a print-on-demand version from CafePress for $30 + shipping. This is a bit of an experiment to gauge general interest in the materials. Please let me know what you think of the experiment.

If you are a professor interested in adopting the materials for your course, I'm happy to provide you with a free editable copy of the materials (free to you and free for your students). Just email me.

Past Posts

My analogous blog posts from years past: 2009; 2008; 2007; 2006; 2005.

Upcoming Events

Two upcoming HTLI academic events this year are potentially interesting to cyberlaw specialists, so I'll mention them here. On November 5, we'll have a symposium on the First Sale/exhaustion doctrines, which will address a number of Internet legal issues. Then, on March 4, 2011, we'll have our 47 USC 230 15-year retrospective/geekfest royale, an event you will NOT want to miss! Registration has just opened, and this event could sell out, so get your seat early.

Posted by Eric at 09:23 AM | General , Internet History | TrackBack

June 29, 2010

Steps to 'Internet-Proof' Your Cease and Desist Letter

[Post by Venkat]

I posted a ways back at Avvo's blog about how the internet increasingly affects litigation by shining the light on abusive lawsuits or those that overreach. I didn't mention something related that has become fairly common, and that's the mockery of cease and desist letters by the internet. It seems like not a week goes by without someone sending an ill-advised cease and desist letter that the internet enjoys a good laugh over. Last week's example was brought to you by the National Pork Board and its lawyers, who decided that ThinkGeek's "Canned Unicorn Meat" (released on April 1) infringed on NPB's "The Other White Meat" family of trademarks. (ThinkGeek: "Officially Our Best-Ever Cease and Desist.")

D.C. Toedt has a post titled "Cease-and-desist letters: Five ways to keep your client and yourself from looking foolish" that provides some helpful steps you can take to avoid NPB's plight:

1. Think about whether sending the letter is such a good idea.

2. Consider what the other side might do for a counter-attack.

3. Skip the histrionics – just the facts, ma’am.

4. Never threaten to sue – when the time comes, just do it.

5. Don’t set a compliance deadline, nor demand a written response.

That's pretty sage advice that people often seem to ignore.

Cease and desist letters should also be relatively short and to the point. You obviously want to be right on the facts and the law, but rare is the opponent who will be cowed into submission by extensive citations coupled with wonderful lawyerly prose. If it does not achieve compliance, it ends up being a way to sink a bunch of lawyer time into a letter that does not result in much. Often, a cease and desist letter to a lawyer becomes what a confirmation hearing is to a senator: an opportunity to drone on. (Cease and desist letters often serve other purposes, such as putting the other side on notice, revoking an implied license, etc.) On the other hand, a well-written response could sway the other side. Since the party who is sending the cease and desist will almost always see the response, a thoughtful response is an opportunity to demonstrate why the demands in the letter are out in left field.

Increasingly, lawsuits play out in the public arena, so it's also worth looping in the PR/messaging folks at the early stages (i.e., before you send the letter). If the recipient posts your letter and mockery ensues, you probably skipped one of the steps outlined in the post, but in any event, it would be helpful to have something articulating your rationale and position already out there or ready to go.

Of course, when all else fails, you could always try to assert a copyright in your letter (to prevent its reproduction), but that's just inviting further ridicule.

Added: an alternative via email: "don't include anything mockable in the cease and desist letter." That works as well.

[h/t @techlawyers]

Posted by Venkat at 08:27 AM | General

April 20, 2010

Upcoming Talks Spring 2010

By Eric Goldman

I've added some new talks to my schedule recently, so here's an updated list of my talks for the next couple of months:

May 6, 8-10 am: Obstacles and Opportunities: eCommerce on Both Sides of the Atlantic, a breakfast briefing co-sponsored by Bingham and the High Tech Law Institute. We'll be talking about the Google ECJ opinion, Tiffany v. eBay and other cutting-edge online trademark and copyright topics. In addition to me, the panel includes two Bingham partners and a very special guest: Terri Chen, Google's new chief trademark counsel, in one of her first public speaking venues since she has taken on her new role. Free CLE! Register here.

May 11, 12-1: I'll be speaking at the San Jose State library school about regulating reputation systems. See their event announcement. Seating at this event is very limited, so let me know if you would like to attend in person. A recording will be posted to the web about a week after this event.

May 28: EACLE Conference, Rotterdam. Assuming trans-atlantic flights have resumed by then, I will be speaking about my reputation research in the Netherlands. This may be a closed door event.

June 1, noon: I will give another version of my reputation talk at the University of Amsterdam. This should be an open door event, so contact me if you are interested in attending.

June 8, 8-10 am: Hot Topics in Blog, Social Network and Internet Law, a breakfast briefing co-sponsored by Greenberg Traurig and the High Tech Law Institute. Ian Ballon, one of the world's foremost Cyberlaw experts, and I will be speaking on the latest and most interesting Internet law developments. Free CLE! Register here.

June 25: I'll be speaking about online advertising at the Stanford E-commerce event.

Also, please save the date for our big Fall academic symposium on the First Sale and Exhaustion Doctrines in IP, November 5, at SCU. The event web page with a link to registration. This event will be especially timely given that the Supreme Court should be hearing oral arguments in Costco v. Omega around that time.

Posted by Eric at 04:56 PM | General | TrackBack

March 10, 2010

Utah Passes Nation's First (?) Bioprospecting Regulation

By Eric Goldman

The Utah legislature has passed SB 51, the "Utah Bioprospecting Act," which requires a government-issued license (which presumably will include a royalty cut for the state) before engaging in bioprospecting on government lands not owned by the federal government. The law is awaiting the governor's signature. If enacted, I believe this will be the nation's first state law regulating bioprospecting.

What is Bioprospecting?

Bioprospecting is the process of looking for naturally occurring animals or plants that have commercial utility. The issue is quite hot in many developing countries, which are rich in biodiversity but may be underdeveloped in research and commercialization capabilities. As a result, foreign researchers come to the country to investigate the biodiversity, identify a commercially useful native species, and then commercialize that species elsewhere without any clear compensation to the source country. We might debate the fairness of this situation, but I know that some folks have strong feelings that bioprospecting is illegitimate.

One of the main challenges with regulating bioprospecting is simply defining it. Take a look at this law's messy definition:

(1) (a) "Bioprospecting" means the removal from a natural environment for research or commercial use of: (i) a naturally occurring microorganism, plant, or fungus; or (ii) information concerning a naturally occurring microorganism's, plant's, or fungus' physical or genetic properties.

(b) "Bioprospecting" does not include: (a) horticultural cultivation, except for horticultural genetic engineering conducted in a manner otherwise constituting bioprospecting; (b) an agricultural enterprise; (c) a forest and range management practice; (d) invasive weed management; (e) Christmas tree and related sales; or (f) incidental removal of a microorganism, plant, or fungus while engaged in bona fide research or commercial enterprises.

What??? What does that mean? I think any law that has to say that it's simultaneously trying not to govern weed removal or Christmas tree farming is overly broad by definition. But look at the drafters' failed efforts to draw non-overlapping Venn diagrams. In (b)(a), how can the exclusion cover activity "conducted in a manner otherwise constituting bioprospecting"? Isn't that circular? And doesn't the (b)(f) exception swallow up the whole?

More generally, look at (1)(a)(ii). The law doesn't just regulate the removal of physical specimens, but it regulates any commercial use of information about a specimen. Huh? Does that mean that I can't publish a picture of Utah plants on state lands without the government issued-license? I wonder to what extent the contemplated licensing requirement to disseminate information about plants runs into Constitutional and federal preemption issues.

Why Did Utah Enact a Bioprospecting Law?

In the mid-2000s, Hawaii considered enacting a law about bioprospecting. I can understand this, as Hawaii is a globally leading biodiversity hotspot. Plus, there remains continuing local unrest about Hawaii's status as a state and the fate of native Hawaiians.

But Utah? I don't think of Utah either as a biodiversity leader or a self-perceived victim of colonialism or imperialism. Instead, for me, Utah's main leadership role is as the nation's leader in state legislative incompetence. While this particular law is not per se stupid (in contrast with many of Utah's efforts to regulate the Internet), this law makes some of the systematic errors I've seen from Utah laws.

First, as indicated above, the law is poorly drafted and ambiguous. I have no idea what it covers. I have the same reaction to most of Utah's efforts to regulate the Internet.

Second, I don't understand why this law rose to the top of the legislative priority queue. Part of that is because I have no idea who is bioprospecting in Utah. Are there flinty old bearded codgers, riding burros overburdened with pick axes, steel canteens and blankets, muttering to themselves that "there's biogold in them thar hills"? If not, then who's doing it, and how will this regulation affect them? Note that the Utah legislature only meets a couple of months out of the year, so they have limited space to produce laws. Given all of the other obvious legislative needs, why spend time on this law?

Third, like many other Utah laws, the law reflects an unstated assumption that if outsiders are coming into Utah to make money, the Utah government coffers deserve a little taste of the action. This brought to mind Utah's deplorable "don't spam the kids" registry, which really was just a backdoor way for Utah to try to tax out-of-state email senders. That efforts was a financial failure; I expect this law to be a financially poor decision as well.

On that point, I was shocked to see the fiscal note that this law had no appropriations and "this bill likely will not result in direct, measurable costs and/or benefits for individuals, businesses, or local governments." Really? First, if there's no law enforcement, I imagine most folks will ignore the law. Second, the state will undoubtedly incur some costs to promulgate the statute's contemplated regulations and to negotiate individual licenses with registering bioprospectors. Third, the imposition of the licensing scheme constitutes a transaction cost that discourages some of the regulated activity from occurring in the first place. Some might conclude that outcome is ultimately a good thing, but it almost assuredly has economic consequences. I cannot figure out how this bill got such a clean financial report. Given the Utah legislature's sensitivity to costs, I bet a more thoughtful fiscal report would have slowed (and probably scuttled) the bill's passage.

Posted by Eric at 10:50 AM | General , Patents | TrackBack

January 13, 2010

"Law & Wikis" Panel at AALS Law & Computers Section Annual Meeting

By Eric Goldman

This post recaps the 2010 AALS Law & Computers Section Annual Meeting on the theme of “Law & Wikis.” The program consisted of four papers submitted in response to a Call for Papers from Spring 2009. See my panel announcement from November. AALS will eventually post the session as a podcast.

Tim Armstrong, Crowdsourcing and Open Access. An earlier version of his slides.

Tim is interested in open access to primary legal source materials. Most legal source materials are now born digital, but legacy materials are often only in paper, and this material would be more valuable online. How can we accomplish that? Tim outlined a four-step implementation process:

Step 1: Scan the materials (Tim expressly skipped over the copyright issues associated with scanning). Current scanning projects include Google Books, the Internet Archive and the Library of Congress.

Step 2: Extract the text from the scan using a free web OCR services such as any2djvu.

Steps 1 and 2 do not scale very well, but steps 3 and 4 can scale.

Step 3: Proofread and correct the extracted text. Two crowdsourced options for this step:

Option 1: Distributed Proofreaders. This is a large community and can get fast results. However, the project is hierarchical/bureaucratic, which prevents new users from adding texts, and the project does not focus on legal materials.

Option 2: Wikisource. Any user can add materials to Wikisource, it has an easier user interface than Distributed Proofreaders, and the project already handles many legal texts. However, it may be slower than Distributed Proofreaders. Tim recommended that academics consider using Wikisource to distribute scholarship. He posted one of his PDFed articles to Wikisource, and in a few weeks, other users had extracted the text and annotated the article with links to source materials. (I believe you can see his results here).

[Eric’s note: I didn’t fully understand the value of posting a PDF to Wikisource. It seems like the author can accomplish a similar result by web publishing the final article version in HTML or a Word file, which eliminates the effort to extract the text (and avoids any errors which might arise in the extraction process). Further, the author can incorporate links him/herself into the article. In fact, I routinely include lots of links in my academic articles. Ideally, law reviews will start publishing articles with complete author-supplied links rather than viewing those links as unnecessary metadata that can be tossed. (Also, it really irks me when law review editors unnecessarily break URLs in the footnotes by adding spaces). Despite this, I could see the value of Wikisource as another distribution channel for articles to increase readership, and I imagine the Wikisource community would add links that never occurred to the author.]

Step 4: distribution and indexing.

Jon Garon, The Role of Wiki Authorship for the Curatorial Audience

Jon believes that Wikipedia as a communal authoring tool is struggling, and it will require structural changes to preserve its market share.

He highlighted two Wiki norms: (1) eliminate social biases using group deliberation. Ex: Wikipedia’s “neutral point of view.” (2) projects have group goals instead individual goals. In effect, these norms combine to work against attributed authorship. However, in other author communities, authors have shown that they want attribution and integrity. For example, 97%+ of Creative Commons users chose attribution.

[Eric’s note: I’m generally skeptical that Creative Commons license adoptions provide accurate insight into authorial desires. I believe that CC license adoption statistics are skewed by Flickr’s huge photo database. Flickr has adopted a CC license requiring attribution as its default, and the overwhelming number of users (not surprisingly) accept Flickr’s default.]

Jon described three communities of users. 1% of users actively create content. 90%+ are totally passive. The remaining ~10% of users are “curators”—they don’t create new content but curate it for others. Ex: the people who reposted videos of Obama’s inauguration.

With that in mind, he notes that Wikipedia has 75,000 regular contributors, compared to the 20M amateur bloggers, 450,000 professional bloggers and 200,000 YouTube contributors. Measured this way, Wikipedia has a relatively small contributor base, perhaps because authors’ desires conflict with Wikipedia’s norms.

He concluded by advocating a wiki for academic and professional communities where their contributions could “count” for their job requirements. To start, an academic-friendly wiki could adopt attribution and integrity norms. It would also benefit by providing ways to measure contributions, such as counting submitted words/footnotes, content resilience (how long the content lasts until it’s reversed—much like WikiTrust does), inlinks and pageviews. These measurement tools can help contributions “count” as professional accomplishments for employing education institutions and public funding sources.

[Eric’s note: Jon’s project is complementary to my paper on Wikipedia, and I generally agree with his concerns about Wikipedia’s labor supply. I also agree that Wikipedia is not very friendly towards academic contributors in a number of respects, a point I explicitly explore in my paper. We did not have time to explore what Jon thinks of Citizendium, which tries to address his concerns.]

Jacqueline Lipton, Wikipedia and the European Union Database Directive

The EU Database Directive, a product of the late 1990s, assumes a content development paradigm of a single database maker aggregating text-based data into a database. It does not contemplate Web 2.0.

Jacqui emphasized jurisdictional questions. Wikipedia’s site disclosures do not expressly address EU law. Regarding copyright, Wikipedia’s site disclosures say that the site is governed by US copyright law, but it respects other countries’ laws (whatever that means). Thus, with respect to IP dispositions, Wikipedia effectively distinguishes between laws that govern information gathering and information dissemination. Wikipedia assumes local IP laws apply to information gathering and US laws apply to information dissemination. Wikipedia doesn’t address IP laws applying to information receipt.

Could a Wikipedia contributor claim a database right in Wikipedia entries? Wikipedia’s submission rules only address contributors’ copyrights, not database rights. Jacqui isn’t sure if a Wikipedia entry could qualify as a protected “database” under the directive.

Could Wikipedia or its contributors have liability for pulling information from a database and republishing via Wikipedia? She can’t answer this question without knowing the specific member state’s directive implementation.

Jacqui summarized her unanswered Qs:

* Jurisdiction/choice of law issues
- where does information gathering occur?
- information dissemination occurs in the US (Wikipedia runs on US servers)
- where is the information received?
* Joint ownership? And ownership of what? What constitutes the database? Presumably the collection of all Wikipedia entries constitutes a “database,” but it’s not clear if any specific entry does.
* How would the directive (or specific implementations) govern databases that are jointly created by people residing in different jurisdictions?
* Which jurisdiction’s fair use/fair dealing laws apply?

Salil Mehra, WikiTruth Through WikiOrder (a paper jointly authored with David Hoffman). Download from SSRN.

This paper considers why people cooperate on Wikipedia. Their animating insight is that Wikipedia develops order just like the Shasta County ranchers profiled by Ellickson, but Wikipedia contributors lack the same kind of organic relationships with each other that the ranchers had. So why has this order developed?

Wikipedia’s dispute resolution methods are not content-based. Instead, they try to foster continued dialectic among contributors. Examples of Wikipedia’s dispute resolution tools:

* informal methods (talk page, reversions) and requests for comments from other contributors

* formal methods: mediation and arbitration. Mediation doesn’t work too well. The site emphasizes arbitration as a solution, but site members are generally anti-lawyer and adhere to an “ignore all rules” ethos.

To study the Wikipedia arbitration process, Salil and David coded 267 arbitrations. They found the most common complaints were personal attacks (94), editing wars (91) and sockpuppetry (76). Common sanctions included cautions and probations (164), article bans (117) and Wikipedia bans (47). Wikipedia bans were most commonly issued for impersonation and anti-social behavior. In contrast, editing violations were negatively correlated with Wikipedia bans—the dispute resolution system tries to rehabilitate contributors rather than kick them out.

Some audience comments to the presentations:

* Wikis are a technology, and Wikipedia is just one implementation of a wiki. We shouldn’t conflate the two.

* Author attribution and integrity are interrelated rights, especially for academics.

* Do we know what types of projects are best run through wiki technologies, and do we know what steps get the right contributors?

* What copyright foundation would best facilitate wiki activity?

Posted by Eric at 03:19 PM | Copyright , General | TrackBack

December 10, 2009

Is the Florida Bar Taking Facebook Friendship Too Seriously?

[Post by Venkat]

The Florida Judicial Ethics Advisory Committee issued an (advisory) opinion [link] which included the following question and answer:

[May] a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

[h/t WSJ Law Blog] I thought this conclusion was off base, even after you discount for the fact that Florida has some wacky rules governing advertising by lawyers. My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship? In the end, the advisory committee should heed the words of one district court

[T]he Court assigns no significance to the Facebook "friends" reference. Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. . . . Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.

Quigley Corp. v. Karkus, No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009) (mentioned here and here). With this said, judges and lawyers may want to be careful (driven by common sense), and in any event, minimize their Facebook friending activity while a case is ongoing. [See Techdirt's discussion of a judge-lawyer Facebook friending snafu here.]

[Added: see additional coverage in Silicon Alley's Business Insider: "Florida Judges May not Friend Local Lawyers on Facebook".]

Posted by Venkat at 07:50 AM | General

November 17, 2009

AALS Law & Computers Meeting in New Orleans

By Eric Goldman

I'm pleased to announce the AALS Section on Law and Computers program at the AALS annual meeting in New Orleans on Saturday, January 9, 2010. This program was developed in response to the Call for Papers we did earlier this year, and I think this panel should be really interesting. Unfortunately, AALS misprinted the panel's composition in their program guide, so I'm hoping to correct the error here.

Program Title: Law & Wikis
Moderator: Eric Goldman, Santa Clara University School of Law

Papers:
* Crowdsourcing and Open Access: Collaborative Techniques for Disseminating Legal Materials and Scholarship, Timothy K. Armstrong, University of Cincinnati College of Law
* The Role of Wiki Authorship for the Curatorial Audience, Jon M. Garon, Hamline University School of Law
* Wikipedia and the E.U. Database Directive, Jacqueline D. Lipton, Case Western Reserve University School of Law and Visiting Professor, University of Florida Levin College of Law
* Wikitruth Through Wikiorder, David Hoffman & Salil Mehra, Temple University School of Law [the paper is co-authored but only Mehra will be presenting]

Also, the business meeting will be more interesting than most. The agenda includes:
* a proposed change to the section's name to the "Section on Internet and Computer Law"
* a long-term initiative to schedule a mid-year joint session between our section and the IP section
* the always exciting vote for next year's section officers

I hope you can join us. Look forward to seeing you there.

Posted by Eric at 09:24 PM | General | TrackBack

October 27, 2009

Zittrain on the Dark Sides of Crowdsourcing

By Eric Goldman

Last week, Cyberlaw expert/rock star Jonathan Zittrain of Harvard Law School (visiting at Stanford Law School this term) spoke as part of SCU's lecture series on IT, Ethics and Law. An overflow crowd of over 100 people came to the talk, and as usual Jonathan did a wonderful job. You should attend his talks if you have a chance. They are always highly entertaining and thought-provoking.

Overview

Jonathan's talk was opaquely titled "Minds for Sale: Ubiquitous Human Computing and the Future of the Internet." I think his talk really covered the Dark Sides of Crowdsourcing. Normally, such a talk would immediately raise red flags about the speaker’s intentions and net-savviness. However, Jonathan has sterling credentials as a crowdsourcing enthusiast, so he can raise concerns without sounding shrill or regressive.

He pointed to numerous examples throughout his talk, but one of his principal targets is Amazon.com's Mechanical Turk. Mechanical Turk describes itself as "a marketplace of work. We give businesses and developers access to an on-demand, scalable workforce. Workers select from thousands of tasks and work whenever it's convenient." LiveOps is also on his mind; the site hires individuals to provide live customer support for third party businesses from their homes on a flexible and dynamic basis.

The Problems

From the worker's perspective, Jonathan raised several potential concerns about Internet marketplaces for labor, including:

* surveillance. LiveOps can track and monitor every aspect of workers’ performance, including when they were online and where they connected from. This does depend on the employer’s specific technological architecture; I’m not sure if Mechanical Turk gets such deep looks into its workers' behavior.

* alienation. Online workers are often retained to do pieces of a larger project without understanding the whole project. Thus, they may apply existing rote skills but not broaden their expertise.

* moral valence. Because workers may not understand the greater project, they could help projects that are morally objectionable without realizing it. Jonathan gave some terrific examples, such as spammers distributing the work of breaking CAPTCHAs and the government asking citizens to identify folks in group/crowd photos for law enforcement or possibly dissident-busting purposes.

Jonathan also raised some systematic concerns that could arise from these online labor marketplaces, including:

* without uniform labor laws, employers could trigger a race to the bottom where the work flows to jurisdictions with the laxest worker protections. We’ve already seen an analogous situation as states try to enact “Amazon affiliate sales tax” laws designed to trigger sales tax collection obligations based on the presence of marketing affiliates in the state, which has prompted some Internet companies to dump affiliates overboard in some of those states based solely on their regulatory policy.

* crowding out. As it becomes easier for workers to monetize their time in smaller units, they may become less willing to contribute their labor to non-paying enterprises like Wikipedia. I address some of these dynamics in my Wikipedia paper.

Possible Solutions

Jonathan identified some possible solutions, including:

* revitalized labor standards, such as minimum wage laws or anti-child labor laws. As one example, he proposed that worker reputation should be “portable” so that good workers for an online enterprise can have their accomplishments follow them to future employers. Ironically, this may be unintended Internet exceptionalism because IMO worker reputation isn’t portable in physical space due to the collapse of the job reference market.

* unionize online workers. Unionization was a natural proposal given the talk’s tenor, but I found it anachronistic. How can unions be relevant to online labor markets where people can "change jobs" with a few clicks of a mouse? The Internet has much more competition among employers than any geographically restricted labor market, and the employees’ friction to change jobs online is so much lower than it is in physical space. For example, unhappy Mechanical Turkers can easily click to a large number of competitive websites that will gladly pay them for their contributions. At the same time, the Internet globalizes labor forces in ways that are unprecedented in physical space, so the value for “commodity” labor plummets. Both dynamics seem to doom any efforts to unionize online labor.

* disclosure. Employers should have to disclose who they are and why they are asking for the work to be done.

* opt-out. When people are doing work without knowing it, they should have the opportunity to opt-out. For example, the RECAPTCHA project uses human CAPTCHA-solving to correct OCR scanning errors. Zittrain thinks people should be given a choice not to provide those services.

Jonathan's final takeaway message was to express a general reservation that money is pervading our relationships and activities. He gave the example of how a Mechanical Turk employer offered to pay other Turkers to do kind acts--something, Jonathan pointed out, is oxymoronic because paying people to be kind means they aren’t actually being “kind.”

My Comments

Whether intended or not, Jonathan’s talk had a strong Marxist undercurrent that is tough for many of us to embrace. The Internet makes labor markets more efficient. It also increases the heterogeneity of ways that people can find gainful employment they can perform at the time and place of their choosing. Both generally sound like strongly positive developments to me.

I thought Jonathan’s strongest point was his dystopian view of bad actors (e.g., repressive governments and spammers) crowdsourcing socially detrimental work without workers knowing it. Disclosing the employer’s identity and motivations would be a partial but necessarily incomplete solution. More transparency would prevent people from inadvertently contributing to bad projects, but some people need cash so desperately that they will take it regardless of the moral valence. (I'm ignoring the malcontents who would gladly pay for the chance to facilitate social disruption).

Jonathan’s talk became harder to follow as he addressed examples well beyond online labor marketplaces. Specifically, a number of his examples seemed to conflate work activities, play activities and other ways that people voluntarily allocate their time. (FWIW, I’ve been accused by Timothy B. Lee of doing the same thing in my Wikipedia paper). For example, he treated Google’s use of website links for its PageRank algorithm as a form of “work” where Google gets the benefit of individual linking decisions. (In turn, he lauded Google’s nofollow link as a good example of how laborers can have an opt-out mechanism). While we collectively create value for Google by establishing links to third party sites, I don’t see how linkers are “working” for Google. Instead, I think the links are a positive externality captured by Google. We create positive externalities through our online (and offline) activities all of the time, and I think trying to characterize those as “work” is not the right direction. See, e.g., Frischmann and Lemley’s critique of regulatory overresponses to spillovers.

Similarly, Jonathan gave examples of “games” where the players provide valuable outputs to the game organizers through their ordinary gameplay. An example is where people are asked to tag photos as part of a game, where the tagging can become commercially valuable metadata. In this situation, the game organizers get an undisclosed private benefit (the beneficial work) from what is otherwise a fair market transaction (people voluntarily enjoying the game). Normally, we don’t worry about undisclosed private benefits; in fact, they occur in most economic transactions, even in efficient marketplaces. While increased disclosure about the game organizer’s motivations might help game players make more informed decisions about whether to play the game or how to price their participation, it’s not clear to me that such disclosures would actually help the game player’s make better decisions or enjoy the game more.

Terri Griffith, a colleague of mine in the SCU business school, wrote up her perspectives on the talk.

UPDATE: Mike Sardina, an SCU Law student, also wrote up a recap with commentary.

UPDATE 2: The Markkula Center provided a summary of the talk, and SCU student Courtney Meehan posted on it as well.

Posted by Eric at 12:06 PM | General , Internet History , Virtual Worlds | TrackBack

October 07, 2009

Introducing Guest Blogger Venkat Balasubramani

By Eric Goldman

It's my pleasure to welcome Venkat Balasubramani as a guest blogger. I'm fortunate that I can make this introduction in writing and not orally because I still don't know how to pronounce his last name. As my students can readily attest, I have lousy pronunciation skills generally, and it usually takes me multiple reminders to get it right. It's nothing personal; I wasn't very good at pronouncing my old last name (Schlachter--rhymes with "doctor") either.

Anyway, back to Venkat. Regular readers may recognize his name because Ethan and I have frequently linked to his posts (at least 18 times by my count) at his excellent spamnotes blog. Venkat also has an active presence at Twitter, where he has a large following. I've been reading his blog faithfully for about 3 years now, and Venkat and I routinely share story tips and thoughts all the time. With our common interests and frequent cross-linking, it seemed like a natural for us to work together more closely.

Venkat is a principal at Focal PLLC, a small firm handling cyberlaw and related matters. Before that, he spent time at Gibson Dunn and Perkins Coie, in-house and as a solo practitioner. This range of legal experiences really enriches his posts, and I expect you'll find them as enlightening as I do.

Posted by Eric at 10:10 AM | General | TrackBack

August 06, 2009

State of the Net West Recap

By Eric Goldman

Yesterday, the High Tech Law Institute and the Advisory Committee to the Congressional Internet Caucus co-sponsored the Third Annual State of the Net West event at Santa Clara University. The featured participants were 3 members of Congress (Boucher, Goodlatte and Lofgren) and the White House CTO Aneesh Chopra, supplemented by 8 distinguished discussants. In a jam-packed morning, we covered a lot of interesting and important ground on broadband, privacy, antitrust, immigration and open government. This blog post recaps some highlights from the discussion.

Boucher on Broadband

Rep. Boucher emphasized the importance of broadband availability to economic activity and expressed concern that the US wasn't keeping up with broadband deployment (he said, "we can do better"). He offered three policy proposals for ways the federal government could help:

* revise the Universal Service Fund to allow dollars to be spent on broadband deployment; and require USF fund recipients 5 years from now to be offering broadband or be cut off from USF
* federally preempt state laws prohibiting municipal broadband offerings (which about 25 states have)
* get the FCC to develop a broadband deployment plan

He expressed disappointment with the guidelines that NTIA and the Department of Agriculture have adopted to give away the $7.2B broadband fund that was part of the stimulus package. It appears he will be encouraging both entities to rethink their guidelines.

My colleague Al Hammond was the broadband discussant. Al made a number of good points, including noting that broadband deployment is both a rural and low-income issue (Boucher appeared to be focusing more on the former) and raising concerns about municipalities not playing fair and the FCC overcounting actual broadband availability.

Boucher on Privacy

Rep. Boucher also gave a preview of the privacy bill he is planning to introduce next month. He started off by saying he likes ad targeting, especially first party targeting (he said he buys items based on customized recommendations). So he wants to encourage "appropriate" ad targeting, not eliminate it. His bill is expected to contain the following elements:

* websites collecting data will be required to post a prominent privacy policy
* users can opt-out of first party targeted ads. This also includes data sharing necessary to enable first party ads
* websites that want to share data with unaffiliated third parties will need opt-in. However, behavioral ad networks can proceed on an opt-out basis if they allow users to see and edit their behavioral profile, except for sensitive information categories that would always be opt-in
* both the FTC and state AGs would have enforcement authority

To the extent that the mandatory privacy policy and opt-out options codifies existing industry practices, this proposal generally seems benign but not worth the effort--the costs of the inevitably poor statutory drafting outweighs any benefit we might get from regulatory codification. Requiring opt-in would likely eliminate third party behavioral ad networks, which (as I've discussed before) is more likely to be a detriment than a win.

I was especially intrigued by the proposal that behavioral networks can flip from opt-in to opt-out by letting users access a user profile. I need to see more details about Boucher's thinking, but doesn't this superficially sound crazy? The most obvious problem is authentication of the user before seeing his or her profile. How would this be done? The networks usually don't know the identity of the specific individuals they are profiling, so they can't authenticate identity. And just tying profile access privileges to a cookie or machine sounds like a recipe for disaster for all shared computers. Plus, a web interface seems to increase the security risks that the bad guys can see profiles they shouldn't be able to see. On first blush, it sounds like this part of Boucher's proposal may need a complete rewrite, with unknown consequences for the entire structure of his proposal.

Mike Hintze of Microsoft was the privacy discussant. He espoused Microsoft's standard line that there should be a comprehensive privacy law.

In the Q&A, Boucher appeared willing to consider concurrent privacy enforcement authority by self-regulatory organizations, so long as they enforced the law's minimum requirements. But any self-regulatory effort wasn't a substitute for other aspects of his bill.

Lofgren on Antitrust

Rep. Lofgren said that if the Bush administration did too little on antitrust enforcement, the Judiciary committee is now concerned that Obama and Varney will do too much. Lofgren is particularly focused on the chilling effects of the mere threat of antitrust scrutiny, not just the actual successful prosecution in court of cases. Thus, an "informal" DOJ expression of interest can deter innovative activity by high tech companies.

She also expressed skepticism that antitrust laws remain effective at protecting technology markets, which are marked by fast innovation and low barriers to entry. (I believe her exact words were "traditional antitrust measures of marketplace behavior might no longer work.") At minimum, any technology-related antitrust enforcement actions should be focused on improving innovation rather than trying to manage current marketplace prices.

Finally, she said that copyright restrictions should be considered in antitrust inquiries. Mike Masnick has more to say on this.

Michael Katz of UC Berkeley was the most colorful respondent. He shared Lofgren's concern that antitrust law may be counterproductively squelching innovation, especially when companies try to capture antitrust enforcers to hassle competitors. He had especially harsh words for the FCC, calling it much less disciplined than the DOJ and observing how the FCC can blackmail companies using its leverage. He also complained that the FCC's review of mergers takes too long, and as an example of their lack of discipline, the FCC will impose merger conditions that have nothing to do with the merger.

Tim Bresnahan of Stanford and my colleague Cathy Sandoval were the other respondents.

At the end of her talk, Lofgren praised the Google Book Search settlement, saying that in some ways it lowers barriers to entry. She also said she was grateful that Google appears to have found a back-door way to liberate orphan works given that she wasn't able to pass an orphan works bill. I'm all in favor of orphan works reform, but a class action settlement seems like a weird way to get there.

Chopra on Open Government

Aneesh Chopra is the new White House CTO, a role that never existed before, which puts Chopra at Obama's elbow on all technology issues. This was Chopra's first Silicon Valley trip since he undertook his new role. His first talk was on Tuesday night at a Churchill Club event; we were his second. Lots of people were very interested in learning more about him. He was the big draw for the press, and we got an unprecedented number of walks-in based in part (we think) on his talk. He was also mobbed before and after his talk--everyone seemed to want a piece of his attention (then again, I'd love to have a chance to kick some stuff around with him one-on-one myself!).

It's easy to see why Chopra sparks such curiosity. My impressions were that he was genuinely affable, smooth without being slick, substantive without being bookish, a big fan of crowdsourcing and an even bigger fan of assessment and measurement of outcomes.

He started off by discussing the importance of technology and how the US's rate of technological performance is lagging against other countries. He then identified three ways to "turn the ship around":

1. invest in innovation building blocks, such as a smart/secure infrastructure, more R&D and improved workforce expertise
2. healthcare reform, especially improvements to the information technology side of healthcare delivery
3. an improved education system, including distance learning and more emphasis on lifelong learning

He then discussed open government issues and gave examples of ways technology can facilitate participatory governance.

Goodlatte and Discussants on Immigration

Rep. Goodlatte laid out the Republican's high tech agenda, which includes:
* skilled workforce, including immigration reform
* patent reform
* trade issues
* taxation, including efforts to define when activity in a state triggers tax obligations
* net neutrality (don't regulate but improve antitrust enforcement)
* privacy (opt-out except for sensitive information)

The panel then drilled down on immigration reform. I was really excited to have this panel because workforce issues are so central to the Silicon Valley's "secret sauce" and yet I couldn't recall a time that the HTLI had sponsored a discussion about them. Obviously immigration issues are age-old and are well-trodden, but I nevertheless found the discussion helpful--with the one caveat that everyone on the panel agreed with everyone else, so there was a lot of preaching to the choir. I learned an interesting factoid that both Reps. Goodlatte and Lofgren were formerly immigration attorneys, so they have some front-line domain expertise in this area.

First discussant was AnnaLee Saxenian of UC Berkeley. She talked about how skilled immigrants have fueled innovation in this country. She gave a number of stats in support of this, including that a majority of Silicon Valley engineers are foreign-born, and a high percentage of technology entrepreneurs and patent applicants are foreign-born individuals. She also noted that foreign-born skilled works create net new jobs and also help build better ties to their home country.

We benefit from the best and the brightest from around the world, who come to the US because of our higher education system and historically have chosen to stay. However, she is concerned about this retention because of bureaucratic barriers. She is also concerned that companies, frustrated by their lack of access to development talent, will offshore their R&D.

Finally, she pointed out that immigration discussions kludge together the issues of skilled and low-skilled workers, even though their issues are very different.

Keith Wolfe of Google reinforced many of AnnaLee's points from Google's specific experiences.

My colleague Deep Gulasekaram was the last discussant. He pointed out that free marketplaces may require free movement of labor, which isn't consistent with our current immigration policy. He raised concerns about state and local anti-immigration policies and the negative consequences of tying foreign workers to specific jobs (by linking their visa to the job).

Rep. Lofgren added a few remarks:
* Obama told her that it's time for comprehensive immigration reform. [This led to a polite back-and-forth between Lofgren, who favors comprehensive reform, and Goodlatte, who would settle for piecemeal immigration reform]
* Immigration reform is not a substitute for educating the US workforce
* We should give permanence to people we want to keep (i.e., not keep them on some treadmill with the possibility of a forced exit, which prevents their long-term life planning)
* We need to address the family of skilled immigrants, not just the immigrants themselves

More Coverage of the Event

* ABC 7 News
* KCBS radio
* Zusha Ellison of the Recorder
* Joyce Cutler of BNA (BNA subscription required)
* Mike Masnick
* Joel West
* Colette Vogele
* Warren's Washington Internet Daily also ran a story (not web-linkable) "Boucher Promises Online Privacy Bill Draft Soon"
* The extensive Twitter discussion at hashtag #sotnw. Twitterers included @ipolicy, @caminick, @persistance, @miss_eli, @techpolicygirl, @cathygellis, @mmasnick, @nextgenweb, @marianmerritt, @larrymagid, @christinela, @mblatkin, @seangarrettnow, @vogelelaw (who didn't always use the hashtag--we will try to publish a standardized hashtag at future events). Whew! Apologies if I missed anyone. I can't recall seeing more Twitterers in an audience--everyone seemed to have their Twitter page up constantly. As usual, I didn't turn on my computer at the conference (I take notes by hand and blog them later), so my comments seem woefully out-of-date already!

We plan to post the event audio soon so you can listen for yourself. I'll announce the audio posting at my Twitter account when it's live.

UPDATE: Audio now available: Download (item 27) or Stream

Posted by Eric at 10:54 AM | Adware/Spyware , Copyright , E-Commerce , General , Internet History , Marketing , Patents , Privacy/Security | TrackBack

May 02, 2009

Upcoming Talks in May and June

By Eric Goldman

May and June have become unexpectedly busy. I've got over a half-dozen public speaking engagements scheduled for the next two months. Where you can find me:

* May 7, Arlington, VA. Law and Economics of Innovation conference co-sponsored by George Mason University and Microsoft. I'll be speaking about my Economics of Reputational Information project.

* May 14, Stanford. Legal Frontiers in Digital Media co-sponsored by the Media Law Resource Center and Stanford. I'll be speaking about behavioral advertising.

* May 19, SCU, 11:45-1. Memory and the Web, a lunchtime talk by SCU Prof. Geof Bowker. I'll be commenting on his talk.

* June 2, Palo Alto, 8-10. Marked for Confusion: Has the Internet Changed Trademark Law? co-sponsored by HTLI and Bingham. Other panelists will be Mary Huser from eBay and Tom Kuhnle from Bingham. The RSVP page isn't up yet; contact me if you're interested in coming.

* June 4-5, Berkeley. Privacy Law Scholars Conference, I'll be speaking on my Economics of Reputational Information project.

* June 12, Stanford. 6th Annual E-Commerce Best Practices Conference. I'll be speaking about affiliate liability issues.

* June 18-19, Washington DC. Consumer Protection Conference sponsored by the ABA Antitrust Section. I'll be speaking about 47 USC 230.

As always, it would be a delight to see you there!

Posted by Eric at 06:54 PM | General | TrackBack

March 18, 2009

Call for Papers: AALS 2010 Annual Meeting, Law & Computers Section: "Law & Wikis"

By Eric Goldman

[feel free to redistribute this post widely]

Call for Papers on the Topic of “Law and Wikis”
2010 AALS Annual Meeting, New Orleans, Jan. 6-10, 2010

The AALS Section on Law and Computers invites you to submit a request to present on the topic of “Law and Wikis” at the Section’s session at the 2010 AALS Annual Meeting in New Orleans, Louisiana. The Annual Meeting will be held January 6-10, 2010; the session’s exact day and time is TBD. Selected speakers must submit a paper to AALS prior to the Annual Meeting for posting to the AALS website; those papers may be accepted for publication in other venues so long as the paper is not published before the Annual Meeting. The Section hopes to place the group of selected speakers’ papers in a to-be-designated law journal.

About the Topic: Wiki technologies offer novel and interesting ways for people to work online collaboratively. The best-known wiki application is Wikipedia, a highly successful website that has generated millions of encyclopedic articles from volunteer contributors. This panel will explore the interaction between law and wiki technologies, including Wikipedia. We are interested in presentations that address any aspect of wikis or Wikipedia. Example topics might include:

* Ownership of content created using wikis
* Who (if anyone) is responsible for ensuring the accuracy of wiki-generated content?
* Wikipedia governance structures
* Should the legal regulation of wikis differ from other Internet communications technologies?
* Wikis and deliberative democracy
* The use of wikis in legal pedagogy

How to Apply: Please email your presentation proposal to the section chair, Professor Eric Goldman, Santa Clara University School of Law, no later than April 6, 2009, noon Pacific time. Email address: egoldman@gmail.com. Your proposal should include your name, professional title, professional affiliation(s), contact information, presentation title, short abstract (less than 500 words please), estimated length of your paper, and (if applicable) any information about the paper’s publication status. Abstracts will be reviewed by a working group of the AALS Law & Computers Section, and selected speakers will be contacted no later than April 25, 2009. Selected speakers must bear their own travel and conference registration expenses.

Posted by Eric at 03:55 PM | General | TrackBack

February 23, 2009

Bay Area Blawgers 4.0, March 18, 6-8 pm, SCU

By Eric Goldman

The High Tech Law Institute at SCU Law is sponsoring the fourth gathering of Bay Area legal bloggers/blawgers. We'll have an hour of structured discussion and lots of mingle time. The theme for the discussion will be "Blawger Burnout." Light refreshments will be served. The details:

Who: The event will cater principally to legal bloggers in the Bay Area, but everyone is welcome. Expected attendees include Harry Boadwee, Anthony Corso, Cathy Gellis, Eric Goldman, Paul Gowder, Rudy Guyon, Joy Haas, Kirk Hanson, Eric Hartnett, Greg Haverkamp, Gordon Johnson, Brandy Karl (maybe), Kimberly Kralowec, Linsey Krolik, Mike Masnick, Cathy Moran, Amy Morganstern, Joe Mullin, Deborah Neville, Colin Samuels, Michael Sardina, Erik Schmidt, Mister Thorne, Kevin Underhill, Virginia Waite and Julia Wei.

When: March 18, 6-8 pm

Where: Wiegand Room, Arts & Sciences Building, Santa Clara University. Directions to campus.

Cost: Free.

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

How: Please RSVP to Eric Goldman

EVERYONE IS WELCOME! Please extend the invitation to anyone you think might be interested.

Posted by Eric at 09:21 AM | General | TrackBack

January 29, 2009

Erika Rottenberg Talk Recap

By Eric Goldman

Yesterday, in celebration of International Data Privacy Day, Santa Clara University hosted Erika Rottenberg, LinkedIn's GC, for a lunchtime talk. Despite putting the event together at the last minute, we had a strong turnout of about 90 folks in the audience. Erika focused her remarks mostly for the students in the audience, encouraging them to think about the future implications of their online activities. Some of the parts of her talk that I found most interesting:

* LinkedIn has 34M users and is adding about 1.5M new users a month
* Approx. 29,000 LinkedIn users have an SCU affiliation (such as current or former students)
* LinkedIn gets about 2 subpoenas a month. [corrected from the talk]

She talked about how employers are researching job candidates online (for yet another story on this topic, see this Sun-Sentinel article). Though hearsay, she’s been told that approximately 10% of final job applicants don't actually get an offer due to inappropriate online activities. She gave some great examples of good and bad uses of online networking sites:

The good. She discussed Henk van Ess, the "Accidental Entrepreneur," who became a successful web retailer after discovering a better iPhone battery from China and then generating customers for it through his LinkedIn activity. She also discussed that company recruiters are trolling through sites like LinkedIn looking for new employees, leading to serendipitous job offers.

The bad. Her flagship case study was Joshua Lipton (see the AP story). Lipton was awaiting sentencing in a drunk driving incident that caused serious injuries to a victim. During this time, he went to a Halloween party in a "jailbird" costume wearing jailhouse attire, and photos from the party were posted to his Facebook page. The prosecutor submitted the photos to the judge, which prompted the judge to give a harsher sentence in response to his apparent lack of remorse.

Erika also discussed James Andrews, a Ketchum advertising executive who flew to Memphis to train FedEx employees about using social media like Twitter. While traveling, he tweeted "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!'" Perhaps not surprisingly, a FedEx employee saw Andrews' tweet, was offended by the seeming denigration of Memphis, and shared the tweet with FedEx's big brass. The result was a strong rebuke by FedEx to Andrews and his employer Ketchum, putting a lucrative advertising account in some jeopardy, and some questions about whether Andrew had the personal expertise to teach others about using social media given the apparent faux pas. (There's a lot written on the Andrews situation; here is the blog post that broke the story).

[Edited to make some changes]

Posted by Eric at 11:04 AM | General | TrackBack

January 13, 2009

Eric Goldman Road Show Spring 2009

By Eric Goldman

As usual at this point in the semester, I'm still scheduling events for the semester, but this post enumerates some of the events I have calendared so far. Some of these are High Tech Law Institute events, so we'll be disseminating more information about those as it comes available. As usual, if I'm going to be in your area or if we are going to be at the same conference, please let me know! If I'm speaking, my topic is in parenthesis after the event.

Jan. 13 (TONIGHT!), Sacramento: Navigating the Hazards of Cyberspace, Sacramento County Bar Association Intellectual Property Law Section (47 USC 230). This is a free event, so if you're in the area, please come!

Jan. 28, SCU: HTLI special noontime speaker on privacy issues. More info to come.

Jan. 30, San Jose: The journal's patent law symposium. I may be around at the conference some, but I'm double-booked with...

Jan. 30-31, SCU: The HTLI is hosting the ABA Business Law Section Cyberspace Committee's Winter Working Meeting. Come interact with cyberlawyers from around the country (and the globe) as they work on their various work projects. The Winter Working Meeting is all about work, not about presentations, so it's a unique and interesting way to get to know your colleagues. Hope you can make it!

Feb. 7-9, Boulder: The Digital Broadband Migration: Imagining The Internet’s Future, University of Colorado Boulder/Silicon Flatirons (Why Wikipedia Will Fail)

Feb. 11, Santa Clara: SMX West (Legally Speaking: Recent Legal News About Search)

Early March at SCU: the HTLI will be scheduling Bay Area Blawgers 4.0. If you are a Bay Area-based legal blogger and have never received an email about the event before, please contact me so I can add you to our list. More info to come.

March 11, Santa Clara: IEEE Communications Society, Santa Clara Valley Chapter (Internet Law Frontiers)

March 13, SCU: HTLI is hosting Prof. Barton Beebe of Cardozo Law (visiting at Stanford Law this semester) for a lunchtime talk to the faculty. Please contact me if you are interested in attending.

March 26, SCU: HTLI is co-sponsoring a careers in trademark panel on campus with INTA. It will be primarily student-focused, but everyone will be welcome. I won't be there because I'll be traveling to...

March 27, New York: Intermediaries in the Information Society, Fordham Center on Law and Information Policy (Content and CDA Immunity)

April 2, San Francisco: PLI Information Technology Law Institute 2009: Web 2.0 and the Future of Mobile Computing (Social Networks & Blogs)

April 30, SCU: The HTLI is co-sponsoring with the Berkeley Center for Law & Technology a full-day academic symposium on the 1909 Copyright Act. We haven't finished our marketing materials, but I guarantee the speaker list will be fabulous. Please reserve the date on your calendar now!

I'm still working on my summer event list, but one I'll mention now:

June 4-5, Berkeley: Berkeley-GW Privacy Law Scholars Conference, UC Berkeley Law School (Economics of Reputational Information)

Posted by Eric at 09:42 AM | General | TrackBack

October 20, 2008

Economics of Reputational Information Talks

By Eric Goldman

In the past 2 weeks, I traveled around the country presenting different versions of my Economics of Reputational Information research project to three slightly different audiences. As a result, this troika of presentations provides a nice snapshot of how I develop a topic from talk to talk. I've gotten some really terrific feedback on the project. If you have any thoughts on these slides, I would gratefully welcome them. My next step is to work up a definitive outline of my first writing project on this topic, so I'm still at a very early stage that would benefit from your input. My slides from the talks:

* Works in Progress Intellectual Property (WIPIP) Colloquium, Tulane University School of Law
* Midwestern Law and Economics Association Annual Meeting, Northwestern University School of Law
* IP Speaker Series, Cardozo Law School

You may recall my initial post on this topic about my presentation at IPSC at Stanford Law.

Posted by Eric at 10:02 AM | General | TrackBack

October 08, 2008

NYC Talk on Economics of Reputational Information

This coming Monday (Oct. 13) at noon, I will be speaking at Cardozo Law School on my Economics of Reputational Information project. If you are in the NYC area, I would love to have you come to the event and share your comments on my work. Lunch will be provided. The details:

Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003
Room 1008
RSVP: ipprogram@yu.edu or 212-790-0207

Posted by Eric at 08:58 AM | General | TrackBack

September 17, 2008

Road Show Fall 2008

By Eric Goldman

This post highlights some of my talks and events scheduled for this semester. As always, if I'm going to be in your area, it would be a delight to see you--let me know.

October 3: Works in Progress Intellectual Property (WIPIP) Colloquium, Tulane University School of Law, New Orleans

October 4: Midwestern Law and Economics Association Annual Meeting, Northwestern University School of Law, Chicago

October 13 (noon-1): Cardozo Law School (NYC), IP Speaker Series. I'll be speaking about my Economics of Reputational Information project. I believe this event will be free and open to the public, so if you're in the NYC area, please plan to come!

October 17: All-day symposium at Santa Clara. More details soon.

November 4: Federal Circuit oral arguments at Santa Clara University. More details soon.

November 14-15: Virtual Worlds, Social Networks & User-Generated Content Roundtable, Vanderbilt Law (Nashville)

December 8: 2008 IP and the Internet Conference, California State Bar IP Section, Santa Monica

December 10: 2008 IP and the Internet Conference, California State Bar IP Section, San Francisco

Early January: AALS in San Diego

Posted by Eric at 10:14 PM | General | TrackBack

August 19, 2008

State of the Net West 2008 Recap

By Eric Goldman

Earlier this month, the High Tech Law Institute co-sponsored "State of the Net West," an event designed to facilitate a conversation between DC policy makers and Silicon Valley technology folks. We had a terrific turnout (especially given that we held it during peak vacation season) and some stimulating conversation. We recorded the discussion, so take a listen [these are at iTunesU, so you need the iTunes client to access them]:

* Welcome and Panel 1 on reputation, anonymity and social networking
* Panel 2 on 47 USC 230. See Larry Magid's writeup of this panel.
* Panel 3 on cloud computing and the privacy of remotely stored information. See a writeup of this panel.

Some interesting tidbits from the day:

* Rep. Goodlatte's son now works at Facebook
* Rep. Lofgren called the Roommates.com decision a "real stretch"
* Michael Fertik said that it only takes 20 minutes to ruin someone's reputation online while it can take 20-200 hours to repair the damage
* there was some discussion about ways that copyright law attempts to protect individual privacy. Copyright law wasn't designed to do that, so it functions poorly in that regard (and probably others). If you're looking for a paper topic, there may be some merit to exploring copyright's role as a privacy protection tool.

Posted by Eric at 06:10 PM | General | TrackBack

August 14, 2008

Fall 2008 Cyberspace Law Syllabus

By Eric Goldman

I've posted my latest Cyberspace Law course syllabus. Some changes from last year:

* added an August 2007 Search Engine Land article by Chris Silver Smith on geolocation technologies and their efficacy.

* added California Penal Code Sec. 502.

* added my slides on trespass to chattels and related doctrines (to save some classtime laying out these complex doctrines).

* added my Fair Use Cheat Sheet (I had routinely distributed it to students during the semester, but this year I finally remembered to include it in the reader).

* substituted the Second Circuit ruling Cartoon Networks v. CSC for the district court ruling in Cablevision. I deleted the Field v. Google case because it became largely redundant with the Cartoon Networks ruling for the pedagogical point about volitional activity.

* substituted the amended Ninth Circuit opinion in Perfect 10 v. Amazon.

* added the Ticketmaster v. RMG case. I'm not sure what to do with this case, but I'm thinking of using it as a mid-semester mini-review.

* deleted the Lockheed v. NSI case and added the Tiffany v. eBay case. The Lockheed case is probably more general in nature and is a 9th Circuit case (and it's a lot shorter!), so this was a tough call. On the other hand, I think the facts in the Tiffany case better reflect the modern web economy than the 1990s-era Lockheed case.

* substituted the Roommates.com en banc ruling for the 3 judge panel ruling. Fortunately, last year, by the time I got to Roommates.com, the 3 judge panel ruling had already been wiped away by the en banc grant, so I never had to teach that hairball.

* substituted the FTC's updated CAN-SPAM regulations.

* substituted the Fifth Circuit Doe v. MySpace ruling for the district court opinion.

* deleted the module on spyware/adware. I've not been able to get there in the past 2 years, and I don't see how that will change this year.

Cases from this year that barely missed the cut:

* A.V. v. iParadigms
* Mazur v. eBay
* Zango v. Kaspersky

I need to look at yesterday's Federal Circuit Jacobsen case. This may be a post-printing addition.

There are still some areas I'm not happy with:

* the Perfect 10 troika of cases regarding secondary copyright liability. They are a big chunk of reading with a low pedagogical payoff because the legal rules are incoherent.

* the keyword advertising cases. I'm still waiting for a great teaching case on keyword advertising. The FragranceNet case is an OK summary of the discussion, and the Playboy v. Netscape case has a number of useful pedagogical angles, but neither is ideal.

More on this topic:

* my Fall 2007 syllabus recap
* my Fall 2006 syllabus recap
* my Fall 2005 syllabus recap
* my Cyberspace Law course page listing all of my syllabi, exams and sample answers from the past 14 years
* my essay on Teaching Cyberlaw

Posted by Eric at 08:15 AM | General , Internet History | TrackBack

August 13, 2008

Economics of Reputational Information Talk

By Eric Goldman

I am nearing the end of my last major research project (the Brand Spillovers project--see [1] and [2]). I hope to post a near-final draft to SSRN in the next couple of months.

Meanwhile, I'm now moving on to my next major project, which I am currently calling "the Economics of Reputational Information." This project isn't an IP paper specifically, but it is a natural extension of my last couple of papers that discussed how trademarks could suppress socially useful Internet content. I presented some very initial thoughts about the project at IPSC last week at Stanford. My slides.

Posted by Eric at 04:48 PM | General | TrackBack

July 21, 2008

Teaching Cyberlaw Article

By Eric Goldman

As part of the recent St. Louis University Law Journal's issue on Teaching Intellectual Property Law, I published a short article entitled "Teaching Cyberlaw." The abstract:

"Over the past dozen years, Cyberlaw courses have become a staple of the law school curriculum. This Essay, part of a Spring 2008 St. Louis University Law Journal issue on Teaching Intellectual Property Law, explores methodological and pedagogical issues raised by these courses."

This article, based on my experiences teaching Cyberlaw for the past 13 years, organizes my thoughts about the pedagogy of teaching Cyberlaw, including course titling, doctrinal coverage, teaching materials and more. I think the article will be particularly interesting to folks teaching the course for the first time, but I expect veteran Cyberlaw professors will find a few interesting tidbits as well. I was given a limited word count cap, so I didn't intend to make this article exhaustive. Instead, I view it as a tentative and limited effort to help kick off a community discussion about how we teach the course.

On that front, I am scheduled to be the Chair of the AALS Law & Computers Section in 2009, which principally means that I will help organize the Law & Computers session at the AALS Annual Meeting in New Orleans in January 2010. (Hard to believe, but it's less than 18 months away!). One idea I've been considering is to have a panel discussion about Teaching Cyberlaw issues at that session. Comments/thoughts?

When i did my research for my Teaching Cyberlaw article, I didn't find any other law review-style articles that addressed Cyberlaw pedagogy at any length. Then, just as my article was going to press (and therefore after I could make any changes), a topical article emerged: Patrick Quirk, Curriculum Themes: Teaching Global Cyberlaw, International Journal of Law and Information Technology, March 2008. Quirk uses the article to enumerate 10 topical "themes" that are likely to be omnipresent in Cyberlaw courses both today and in the future:

"Where are we? (Jurisdiction),
Who are we? (Transacting via networks),
Who pays us? (E-money and funds transfer),
Who protects us? (Spreading and transferring transactional risk),
Who funds us? (The other type of computer ‘security’),
Who taxes us? (Who doesn’t?),
Who bugs me? (Network crimes and misdemeanors),
Who came before me? (Historical analogies for technology regulation),
Who watches (over) us? (Ubiquitous privacy issues),
The pervasive problems of intellectual property."

I definitely organize my course differently, but vetting different organizational approaches is part of the pedagogical fun.

Posted by Eric at 08:37 AM | General , Internet History | TrackBack

July 14, 2008

State of the Net West 2008, August 6, SCU

By Eric Goldman

I would like to invite you to attend State of the Net West 2008, co-sponsored by the Advisory Committee to the Congressional Internet Caucus and the High Tech Law Institute. This event is a complement to the very popular State of the Net event in DC held each January, which has become the "must attend" event for technology policy wonks and lobbyists. See my recap of this year's event. On August 6 at Santa Clara University, we'll have a West Coast version of the DC event, with three members of Congress guiding our discussion on cutting-edge policy issues related to Internet content protections. As usual, registration is free, so submit your RSVP here. I look forward to seeing you there!
__________

The full description:

In August The Congressional Internet Caucus Advisory Committee in collaboration with the High Tech Law Institute at Santa Clara School of Law cordially invites you to attend the 2nd Annual State of the Net West Conference on Wednesday, August 6th, 2008, in the California Room at the Benson Center of the Santa Clara University School of Law, from 8:30 a.m. to 2:30 p.m. The discussion will feature leaders of the Congressional Internet Caucus, including Congresswoman Zoe Lofgren, Congressman Mike Honda, and Congressman Bob Goodlatte. Other participants will include West Coast academic scholars, public interest advocates, and industry executives during a series of discussions on current, important technology policy issues. State of the Net West is designed to channel West Coast thought leadership from the academic community and private sector to help inform the technology policy issues being debated in Washington.

The State of the Net West Conference allows for bicoastal networking and dialogue on key policy issues to take place in the heart of Silicon Valley. Participate in lively debates exploring the following topics:

"Will Our Reputations and Privacy Survive the Age of Social Networking?"

"Can ISP Immunity Survive the Onslaught of Web 2.0"

"The Movement of Information from the Crowd to the Cloud"

The Congressional Internet Caucus Advisory Committee hosts the annual "State of the Net Conference" in Washington to frame many of the technology policy debates that Congress grapples with throughout the year. State of the Net has grown into the largest and most influential information technology policy conference in the country to discuss technology trends and the enormous challenges that lawmakers, industry leaders, and citizens must confront and resolve. While the State of the Net Conference has been an unmitigated success at framing the debate in Washington, an infusion of intellectual capital from the West Coast significantly enhances the State of the Net discussions.

Posted by Eric at 03:24 AM | General | TrackBack

June 07, 2008

Vacation and Guest Bloggers

By Eric Goldman

For the next two weeks, I will be enjoying a celebratory river-rafting trip on the Hulahula River in the Arctic National Wildlife Refuge. This is a supremely remote destination--it takes 4 airplanes to get there from the Bay Area (the last one being a bush plane that will land on a gravel bar of the river), and needless to say, it won't be possible to blog from there even if I wanted to.

While I won't be blogging for the next couple of weeks, long-time guest bloggers John Ottaviani and Ethan Ackerman will be around to keep the conversation going. I hope you enjoy their posts, and I'll see you the week of June 23.

Posted by Eric at 09:55 PM | General | TrackBack

April 29, 2008

Wikipedia Ethics Event, May 15 at SCU

By Eric Goldman

The High Tech Law Institute is cosponsoring (along with the Center for Science, Technology and Society and the Markkula Center for Applied Ethics) the following event:

The World that Wikipedia Made: The Ethics and Values of Public Knowledge
May 15, 2008, 6.30-8.00 p.m., de Saisset Museum, Santa Clara University
Speakers: Mike Godwin (GC of Wikimedia and one of the pioneers of Cyberlaw) and Carl Hewitt. Pedro Hernández-Ramos will moderate.
Admission is free; parking is $6. RSVPs aren't required.
More details about the event and bios for the participants.

This event should be a great opportunity to explore the ethical, legal and credibility issues associated with Wikipedia's editing structure (something I've critiqued before). I haven't heard Carl speak before, but I can confirm that Mike Godwin is a brilliant and entertaining speaker.

Posted by Eric at 05:46 PM | General | TrackBack

April 23, 2008

Two Open Positions at the High Tech Law Institute, Santa Clara University

By Eric Goldman

We're hiring! Please send interested candidates to the online job descriptions and application mechanism.
_________

The High Tech Law Institute (HTLI) is the umbrella organization that sponsors and helps administer Santa Clara University School of Law's well-regarded program in high tech and intellectual property law. Among other duties, the HTLI manages SCU's rich curriculum of high tech and IP courses and offers events for academics, Silicon Valley lawyers and others.

The HTLI is looking to fill two important administrative positions:

1) Assistant Director of the HTLI. See the job description.

2) Program Manager, HTLI. See the job description.

Each position provides an excellent opportunity for a motivated and entrepreneurial individual to play a pivotal role in defining and enhancing the services provided by the HTLI.

Interested applicants should submit an online application via the "apply" button at the end of the job description. We are considering applications as they arrive, so applicants are encouraged to apply as soon as possible. We would be very grateful if you could help spread the word!

Santa Clara University is an Equal Opportunity/Affirmative Action employer, committed to excellence through diversity, and, in this spirit, particularly welcomes applications from women, persons of color, and members of
historically underrepresented groups. The University will provide reasonable accommodations to all qualified individuals with a disability.

Posted by Eric at 09:16 PM | General | TrackBack

April 20, 2008

Bay Area Blawgers 3.0, May 20, Berkeley

By Eric Goldman

The High Tech Law Institute at Santa Clara University School of Law is pleased to sponsor Bay Area Blawgers 3.0, the third gathering of legal bloggers in the Bay Area and friends. This time we're thrilled to co-host the event with the Berkeley Center for Law & Technology at the UC Berkeley Law School. As we have done in the past, we'll spend about 1 hour of our time in a structured discussion, with the balance of our time for informal chit-chatting. The details:

When: May 20, 6-8 pm

Where: Goldberg Room, UC Berkeley Law School. Directions and parking.

Who: Everyone is welcome, but this event principally will cater to active legal bloggers. Bloggers and friends who have said they plan to attend include: Tsan Abrahamson, Jerry Bame, Hudson Bair, Robert Barr, Larry Downes, Eli Edwards, Bob Eisenbach, Cathy Gellis, Mark Goldowitz (maybe), Susan Gluss, Eric Goldman, Beth Grimm, Greg Haverkamp, Matt Holohan, Cathy Kirkman, Kimberly Kralowec, Ethan Leib, Cathy Moran, Joe Mullin, Deborah Neville, David Newdorf, Dana Nguyen, Chris Peeples, Aaron Perzanowski, Elizabeth Pianca, Mark Radcliffe, Ash Remwa, Colin Samuels, Jason Schultz, Tim Stanley, Stacy Stern, John Steele, Kevin Underhill, Tom Villeneuve, Fred von Lohmann, J. Craig Williams and Cicely Wilson. (This list will be updated as new blawgers and friends RSVP).

Cost: Admission is free.

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

RSVPs: RSVP to Eric Goldman (egoldman@gmail.com).

Some background materials:

* Announcements of Bay Area Blawgers 1.0 and 2.0.
* Recap of the first gathering
* Photos from the second gathering at Fenwick & West's San Francisco office. More photos.
* List of possible discussion issues
* Census of Bay Area Blawgers

Posted by Eric at 05:05 PM | General | TrackBack

March 31, 2008

PLI Presentation on Social Networking Sites and Blogs

By Eric Goldman

Last week I gave a brief overview talk about social networking sites and blogs at a PLI conference. My slides. For each screen shot, you'll have to imagine some of the faux-witty remarks I might have made. To help you along as an example, on the fourth slide I noted that Ian Ballon doesn't look a day over 70. (You can see a different assessment of Ian's age here).

Posted by Eric at 10:09 AM | General | TrackBack

January 11, 2008

Top Cyberlaw Developments of 2007

By Eric Goldman

I have posted my annual Cyberlaw recap, enumerating the top 10 Cyberlaw developments from 2007, at InformIT. You'll have to read the whole thing to find out my votes for the biggest developments from last year (can you guess my #1???). From the article, some of the runners-up:

* Jammie Thomas Loses P2P File Sharing Jury Trial. Even a jury of our peers knows that P2P file-sharing of copyright works isn't legit.

* DVR-as-a-Service Isn't Permissible. You can record broadcasted shows on a device in your house. Just don't ask anyone to do it for you.

* AutoAdmit Controversy Spills Over Into a Lawsuit. Some sophomoric online banter among law students is all fun-and-games until someone gets sued.

* Commercial Referential Trademark Use Is Successful Defense. A trademark owner can't use trademark law to stop people chattering about its business on a message board.

* Anti-Spyware Vendor Protected by 47 U.S.C. 230(c)(2). A company that doesn't like being called spyware can't use the judicial system to force a different label.

Curious what I thought was more exciting than these developments? Go check out the whole thing!

As an aside, you may be wondering why I published the recap at InformIT instead of here on this blog. I've complained before about my crummy AdSense revenues. Apparently InformIT is much better at monetizing content than AdSense is, because InformIT pays me easily 100X (or more) what I would expect to earn by posting the article here. So whether InformIT is monetizing better or just spending like drunken fools, that ratio is enough to get my attention. As an added bonus, I spiked the InformIT article with generous links back to my site, and I never mind getting some extra link love from reputable third party domains.

Posted by Eric at 11:45 AM | General | TrackBack

January 08, 2008

Road Show Spring 2008

Some of the places I'll be this semester. As always, please let me know if I should plan to see you there!

January

Jan. 15: Best Practices for Businesses Exploring…Exploiting…and Expanding in Web 2.0, Pike & Fischer teleconference

Jan. 26: The Toll Roads: The Legal and Political Debate Over Network Neutrality, University of San Francisco School of Law. I'm moderating an afternoon panel.

Jan. 30: Congressional Internet Caucus Advisory Committee's 4th annual State of the Net Conference, Washington DC. Check out the panel I'll be on--there could be some sparks!

Jan. 31: Spyware: What's Worked, What's Left, and What's Coming, Anti-Spyware Coalition, Washington DC. I'm really excited about the panel topic of "Is Adware Dead?" I have some strong thoughts on this topic!

February

Feb. 1: Internet Collaboration: Charting the Waters of Virtual Worlds, Web 2.0, and the GPL, Santa Clara Computer & High Tech Law Journal. Judge Kozinski, a frequent presence on this blog, will be the keynote speaker, and the speaker list is studded with other luminaries.

Feb. 8-9: Fourth International Conference on Contracts, McGeorge School of Law in Sacramento.

Feb. 26 SMX West, Santa Clara

March

Mar. 24: Information Technology Law Institute 2008, Practicing Law Institute, San Francisco

April

Apr. 18: Co-sponsored event with Berkeley Center for Law & Technology to be held in Berkeley. This hasn't been publicly announced, but I promise you it will be relevant to this blog's audience and a top-notch event, so mark your calendars now.

Posted by Eric at 09:32 PM | General | TrackBack

December 31, 2007

2007 Blog Year-in-Review

By Eric Goldman

A look back at 2007:

Most Popular Blog Posts

1) The Most Effective Anti-Terrorism Law EVER
2) Utah Bans Keyword Advertising
3) Rescuecom v. Google Law Professors' Amicus Brief [overflow from #1]
4) Sex.com -- An Update
5) Regulating "Stealth" Marketing [overflow from #2]
6) Keyword Ads and Metatags Don't Confuse Consumers--J.G. Wentworth v. Settlement Funding
7) American Airlines Sues Google Over Keyword Ads
8) Search Engines Defeat "Must-Carry" Lawsuit--Langdon v. Google

Some Posts You Might Have Missed the First Time Around

* The Victorian Internet
* Best and Worst Internet Laws
* Gifts for Incoming First Year Law Students
* Israel Trip Reflections
* Suggestions for Conference Organizers

Blog Statistics

* Despite the overall softness in the legal blogosphere market, all of the blogs' key metrics (unique visitors, visits, page views) roughly doubled in 2007 compared to 2006.
* Google represented about 90% of search engine referrals.
* Top 10 referral search terms: "sex.com"; "barbri class action"; "law professor salaries"; "law professor salary"; "eric goldman blog"; "donotcall.gov"; "facebook connectu"; "eric goldman"; "goldman"; "american blinds". This is the third year in a row that "law professor salary" was a top 5 referral term. I wonder why such a small number prompts such great interest?
* The blogs had about 320 posts this year. Top categories include derivative liability, search engines and trademarks, each with about 70 posts this year.
* According to Google Analytics, I had visitors from 184 countries, including countries with low Internet usage (<50k Internet users per CIA Factbook) such as Greenland, Guinea-Bissau, Andorra and Reunion.
* AdSense continues to disappoint. My eCPM has been progressively decreasing over time, and it's down to $1.60 in 2007. As confirmation of how poorly AdSense performs for my site, in the month of December, I earned about 3X from Amazon Affiliates program than I did from my AdSense on my blogs, even though I have affiliate links only on about a half-dozen pages (compared to the couple thousand pages displaying AdSense ads).

Blog Year-in-Review from 2005 and 2006

Posted by Eric at 10:45 AM | General | TrackBack

October 12, 2007

Bay Area Blawgers 2.0

By Eric Goldman

The High Tech Law Institute at Santa Clara Law School and Six Apart are pleased to announce Bay Area Blawgers 2.0, the second gathering of legal bloggers in the Bay Area. See a recap of the first gathering. This time, we'll spend an hour in a structured discussion starting around 6:15 (see some possible discussion topics). We'll spend the rest of the time schmoozing/chit-chatting.

When: November 5, 6-8 pm.

Where: San Francisco office of Fenwick & West, 555 California Street, 12th Floor, San Francisco, CA. Directions.

Who: Everyone is welcome, but this event principally will cater to active legal bloggers. People who have indicated they plan to attend: Tsan Abrahamson, Ann Althouse, Harry Boadwee, Michael Bond, Brian Crossman, Aviva Cuyler, Robert Eisenbach, David Friedman, Sujatha Ganesan, Cathy Gellis, Eric Goldman, Joe Gratz, Beth Grimm, Chris Hoofnagle, Kimberly Kralowec, Matthew Lasar, David Levine, Tom Levis, Ethan Leib, Susan Nevelow Mart, Mike Masnick (maybe), Mary Minow, Cathy Moran, Amy Morganstern, Joe Mullin, Keith Nagayama, Deborah Neville, David Newdorf, Bruce Nye, Kevin O'Keefe, Jay Parkhill, Bertrand Pautrot, Aaron Perzanowski, Benjamin Reyes, Scott Righthand, Colin Samuels, Jason Schultz, Derek Slater, Peter Smith, Tim Stanley, John Steele, Stacy Stern, Kelly Stewart, Victoria Stodden, Gene Takagi, Chris Vail, Colette Vogele, Fred von Lohmann, Julia Wei and Cicely Wilson.

Cost: Admission is free, but parking is not!

CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

RSVPs: RSVP are ESSENTIAL for this event because of security procedures at 555 California Street. RSVP to Eric Goldman (egoldman@gmail.com).

UPDATE: Michael Atkins of Seattle Trademark Lawyer Blog is organizing a similar gathering for Seattle-area blawgers.

UPDATE 2: Stanford CIS/SLATA scheduled an attractive complementary event for the same day (Nov 5 at noon) entitled "How Blogs Impact Legal Discourse."

Posted by Eric at 09:21 AM | General | TrackBack

September 12, 2007

Fall 2007 Tour Schedule

By Eric Goldman

L'Shanah Tovah! Here are some events I'll be attending this semester. It would be a delight to see you at one or more of these:

Sept. 17: Blogging, Scholarship and the Bench and Bar, Santa Clara University
Sept. 17: IT Security World, SF (topic: Blog Law)
Sept. 28-29: Works in Progress Intellectual Property, Washington DC
Sept. 29: TPRC, Arlington, VA (topic: Brand Spillovers)
Oct. 1: New Media Law Conference, SF (topic: Keyword Advertising)
Oct. 2: Trust Online, Santa Clara University
Oct. 5: Trademark Dilution: Theoretical and Empirical Inquiries, Santa Clara University
Oct. 18: Association of Internet Researchers, Vancouver (topic: investment decisions in virtual worlds)
Nov. 1: Jonathan Zittrain lecture, Santa Clara University
Nov. 5: Bay Area Blawgers, SF

Posted by Eric at 02:37 PM | General | TrackBack

September 10, 2007

Fall 2007 High Tech Law Institute Events

By Eric Goldman

I realize this is a self-serving assessment, but I think we have an absolutely terrific roster of events lined up this Fall! Check out some highlights:
________

Sept. 17, 10:30am-12pm. Blogging, Scholarship, and the Bench and Bar, sponsored by the American Association of Law Schools (AALS) & the National Law Journal. This panel will discuss the effect of blogs on legal scholarship, judges and practicing lawyers. To discuss these issues, we have some top-notch bloggers (Larry Solum and Paul Butler, and I'll be there too), Judge Berzon from the Ninth Circuit, and Cindy Cohn from the EFF. If you attend in person, you get the free CLE; alternatively, you can watch it live from your desktop via our real-time webcast. See the details here.
________

Oct. 2, 8:30am-2pm. Trust Online, co-sponsored with the Center for Science, Technology & Society, Markkula Center for Applied Ethics and Microsoft Corporation. This half-day event will gather lawyers, technologists and policy-makers to discuss how online businesses can engender trust from their users. The big name draw is Richard Clarke, but I'm equally excited to hear about some recent academic research by the always-interesting Chris Hoofnagle and Alessandro Acquisti.
________

Oct. 5, 8:45am-5:15pm. Trademark Dilution: Theoretical and Empirical Inquiries, a full-day academic conference on trademark dilution. Take a look at the schedule/speaker list and you'll see why I'm so excited about this conference. If an all-out trademark geekfest appeals to you, this really is a can't miss event. As a bonus, you'll get a boatload of free CLEs.
________

Oct. 12, noon-1pm. Prof. Mike Madison, Univ. of Pittsburgh School of Law, will give a faculty workshop on the topic of "Information Governance." This event is limited to academic faculty and staff; so please email me directly if you want to come.
________

Nov. 1, 6:30-8pm, Distinguished Lecture by the well-known and highly respected Cyberlaw Prof. Jonathan Zittrain, Oxford Internet institute, entitled “The Future of the Internet--And How to Stop It.” RSVP to Jasmine Pilgeram.
________

Nov. 5, 6-8pm. Bay Area Blawgers Roundtable at Fenwick & West's San Francisco office. This is the second gathering of local legal bloggers, following on the very popular first gathering from March. See my recap of the first event. I'll put out a more formal announcement later; for now, RSVP directly to me.
________

Check out our events page for the complete run-down. Hope to see you at these events!

Posted by Eric at 05:26 PM | General | 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

August 01, 2007

July 2007 Quick Links, Part II

By Eric Goldman

Virtual Worlds

* After a remarkable run as media darlings, Second Life is now experiencing some of the inevitable backlash. Case in point: Wired's "How Madison Avenue Is Wasting Millions on a Deserted Second Life." In this respect, Second Life reminds me a little of Keen.com--both provide fantastic platforms for monetizing user-generated content, but that powerful economic platform is likely to take root primarily in the sin businesses (porn, gambling, etc.). (FWIW, Keen.com appears to have cleaned up the dial-a-porn and is now focused exclusively on dial-a-horoscopes). As a result, it will be interesting to see what happens to Second Life's numbers in response to their anti-gambling crackdown. Meanwhile, lawyers--the classic late adopters--are gushing about Second Life's potential as a business generator--an interesting counter-perspective to the Wired article.

* World Copyright Law Report: "Some residents have been using a rogue version of a program called CopyBot to make a copy of anything in the Second Life world, thus threatening to undermine the whole basis of the Second Life economy."

Wikipedia

* More marketers wake up to the value of inserting links into Wikipedia despite Wikipedia's nofollow tag. See my earlier explanation of this. Meanwhile, a Wikipedia administrator talks about what Wikipedians consider white hat practices for marketers.

* Willing to cite to Wikipedia in your legal briefs? Need some custom-tailored authority to support your argument? Edit Wikipedia to say what you want!

* Mike Godwin has become Wikimedia’s GC. You may recall that Mike and I bet about Wikipedia’s future; it appears he has raised the stakes on that bet substantially!

User Generated Content

* "GC's Client from Hell": Whole Food's CEO John Mackey pseudonymously posted about his company's stock and his competitor's stock on Yahoo Finance. The WSJ article has some of the juiciest postings. The NYT on CEO "sock puppetry."

* A restaurant owner used consumer reviews from Yelp as part of deciding to fire employees.

* Interesting interview with the pseudonymous founder of a pay-for-Diggs business.

Blogs

* The ABA Journal has entered the crowded field of blawg directories with one of their own.

* Blawgworld 2007: 77 blawgers chose their favorite posts, which were compiled into an e-book. The compilation turns out to be a great way to get noisy blawgers to promote their brilliant contributions to the e-book, which generates traffic and link love for the publisher, which in turn creates a nice delivery vehicle for sponsored content/advertising.

Miscellaneous

* Asch Webhosting, Inc. v. Adelphia Business Solutions Investment, LLC, 2007 U.S. Dist. LEXIS 52932 (D. N.J. July 23, 2007). IAP terminates customer based on complaints that customer was a spammer. Court holds that the consequential damages waiver applies, effectively negating customer's alleged damages. Rejecting the customer's argument that the termination was in bad faith, the court says: "Plaintiff’s arguments about the accuracy of the spamming complaints do not change the Court’s determination because regardless of the ultimate accuracy or veracity of the spamming complaints, defendant was entitled to rely on those complaints so long as it did so in good faith, and plaintiff has not demonstrated any bad faith by defendant." HT: Technology Law Update.

* Consumer Law & Policy Blog: "companies in two recently filed federal cases explicitly invoke [the recent Supreme Court decision in] Leegin as a justification for terminating the eBay auctions of competitors that charge lower prices online."

* Declan on whether anti-spyware vendors are screening for "fedware" (government keystroke loggers designed to capture data before it's encrypted).

Fun

* More proof that technology can save lives: During a power outage at a hospital, doctors were able to complete a surgery using the light of open cellphones.

* I’m a new fan of Oddee. Some recent posts (it helps to think about sexual connotations when interpreting the photos):
- "15 Unfortunately Placed Ads."
- "Most Unfortunate Logos Ever"
- "Unfortunate Business Names.”

Posted by Eric at 11:06 AM | Adware/Spyware , E-Commerce , General , Internet History , Marketing , Spam , Virtual Worlds | TrackBack

March 24, 2007

Entrepreneurs & IP Talk

By Eric Goldman

I gave a talk to a group of local entrepreneurs on general IP issues in the process of being an entrepreneur. For most of you, this talk is very, very basic, but if you're interested, here are my slides.

Posted by Eric at 02:46 PM | General | TrackBack

March 14, 2007

Eric Goldman Road Show Spring 2007

By Eric Goldman

I have a busy schedule over the next 3 months. As always, I'd welcome the opportunity to meet, either at the events below or if I am in your neighborhood.

March 14: [TODAY!] Radio interview with David Levine on "Hearsay Culture." The live broadcast will air in the Bay Area between 5-6 pm on KZSU, 90.1 fm, or the podcast will be loaded here in the next week or so. David and I discuss domain name regulation, my Coasean Analysis of Marketing paper, online trademark law and anti-adware laws.

UPDATE: Podcast available here.

March 22: Originality, Software and Moral Rights with Prof. Bobbi Kwall

March 26: Virtues and Vices of Open Source Software with Prof. Eben Moglen

March 28: Bay Area Blawgers (about 2 dozen blawgers coming!)

April 5 (noon): Faculty Colloquium at SCU Law. Topic: Brand Spillovers. Please email me if you want to come (space is very limited).

April 6 (10 am): Law, Science & Technology LLM Colloquium, Stanford Law School. Topic: Brand Spillovers (yes, same topic as the day before). This event may have limited access to the public; contact me if you want to come.

April 13: Emerging Issues in Computer and Technology Law, SMU Dedman School of Law, Dallas, TX. Topic: Keyword Law.

April 30: When Spam Isn't Spam: An Unfiltered Look at Self-Regulation and the Law Behind E-mail, Touro Law School, Central Islip, NY. Topic: Anti-Spam and Anti-Blocklist Lawsuits: Past and Future.

May 14: American Law Institute meeting, San Francisco

June 7: 2007 International IT Law Conference, Southwestern Law School (Los Angeles). Topic: On-line Marketing Issues and What to Do About Them.

June 18: Fourth Annual Ecommerce Best Practices Conference, Stanford Law School. Topic: Navigating the Shoals of State Regulation.

Posted by Eric at 09:10 AM | General | TrackBack

March 07, 2007

March High Tech Law Institute Events

By Eric Goldman

The High Tech Law Institute at Santa Clara University School of Law has a terrific series of three events over the next few weeks. I hope to you can join us.

Originality, Software and Moral Rights (details here)
March 22, 2007, 5-7pm
Professor Roberta Rosenthal Kwall, DePaul University College of Law, will lead a discussion on the nature of creative endeavors, the role of moral rights, protection, and the application of these principles to software development. This should be a great event for technology lawyers who wrestle with moral rights issues when doing overseas development. RSVP to Jasmine Pilgeram by March 19, 2007.
This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

Virtues and Vices of Open Source Software with Eben Moglen (details here)
March 26, 2007, 5:30-6:45pm
Professor Eben Moglen, Columbia Law School, of GPL fame/infamy, will discuss his views on the merits of open source software development (and, I anticipate, the demerits of commercial software development), followed by some commentary/pushback by Prof. Geof Bowker and myself. Eben is a colorful, dynamic and frequently hyperbolic speaker, so I expect this event will be very fun and maybe a little controversial. If you work with open source software, this should be an especially interesting event. RSVP to Sherrill Dale by March 22, 2007

Bay Area Legal Blawgers Event (details here)
March 28, 2007, 6-8pm
We now have over 20 Bay area blawgers who have said they are coming, plus a few other non-blogging luminaries. (I'm constantly updating the original post to reflect the master list of attendees). This should be a great opportunity for local bloggers to meet-and-greet and trade tips. RSVP to me by March 26, 2007
This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.

Posted by Eric at 03:40 PM | General | TrackBack

March 01, 2007

Bay Area Blawgers Get-Together, March 28, 6-8 pm

By Eric Goldman

The High Tech Law Institute at SCU Law is sponsoring a gathering for Bay Area legal bloggers/blawgers. Our goal is to get all of us together in a room to meet each other, socialize a bit, and discuss topics of common interest in a group discussion. Light refreshments will be served. The details:

Who: The event will cater principally to legal bloggers in the Bay Area, but everyone is welcome. Confirmed blogger-attendees so far include Harry Boadwee, the Blawg Review editor, Matt Cutts of Google (75% confirmed), Stephen Diamond, Mike Dillon of Sun, Sean Garrett of 463 Communications (trying to make it), Cathy Gellis, Eric Goldman of SCU, Joe Gratz of Keker & Van Nest, Beth Grimm, Patrick Guevara of Randick O'Dea, Matt Holohan, Chris Hoofnagle of Boalt, Cathy Kirkman of Wilson Sonsini, Kim Kralowec of the Furth firm, David Levine of Stanford Law CIS, Mike Masnick of TechDirt, Mary Minow, Kurt Opsahl of EFF, Jay Parkhill, Leah Peachey of Meyers Nave, Aaron Perzanowski of Boalt, Elizabeth Pianca of Meyers Nave, Kristie Prinz, Colin Rule of eBay/PayPal, Colin Samuels, Erik Schmidt of SCU, Jason Schultz of EFF, Mark Smith of SCU, John Steele of Fish & Richardson, Transmogriflaw, Kevin Underhill of Shook Hardy, and Colette Vogele. Other expected attendees include Craig Anderson of the SF Daily Journal, Bob Cullen, Rudy Guyon of Fujitsu, Tom Levis of Backweb, Jan Lewis of Wilson Sonsini, Kevin Martin of Randick O'Dea, Amy Morganstern, Elizabeth Nevis, Benedict O'Mahoney, Risa Schwartz of Cisco, Martin Stone, Andrew Tolve, Cicely Wilson of Justia and Louis Wu.
When: March 28, 6-8 pm
Where: Wiegand Room, Arts & Sciences Building, Santa Clara University. Directions to campus.
Cost: Free. Parking is available for $5
CLE: This event qualifies for 1 hour of general CLE credit. Santa Clara University School of Law is a State Bar of California approved MCLE provider.
How: Please RSVP to Eric Goldman.

Feel free to pass along this notice to anyone you think might be interested.

UPDATE: A superset of possible discussion topics we might address at the event.

UPDATE 2: A roster of the Bay Area Blawgers I could find.

UPDATE 3: My recap from the event.

Posted by Eric at 12:20 PM | General | TrackBack

February 21, 2007

Cyberspace Law Readers--Free to Good Home

By Eric Goldman

[UPDATE: Sorry, they are all gone!]

I have six leftover casebooks from my Cyberspace Law class last semester. These are lightly edited compilations of cases and statutes that I teach in class. (See my syllabus for the table of contents). Email me if you want a free copy--first come, first serve, and only to US mailing addresses.

Posted by Eric at 10:16 AM | General | TrackBack

January 10, 2007

December 2006 Quick Links

By Eric Goldman

* JP Enterprises, Inc. v. HDVE, LLC, 1:06-cv-01046-REB-PAC (D. Colo.). In June 2006, JP Enterprises sued Yahoo for selling its trademarks for keyword-triggered ads. In December, JP Enterprises and Yahoo stipulated a dismissal of the case against Yahoo (the remaining defendants weren't affected), presumably based on a settlement.

* Domain name valuations continue to rise. The latest overvalued domain name? Vodka.com, selling for $3M. This totally perplexes me. Can you imagine what $3M of well-spent PPC advertising would do?

* Amidst the TLD proliferation, ICANN is thinking about retiring some TLDs, such as .su for the (extinct) Soviet Union.

* According to ClickTales, "76% of the page-views with a scroll-bar, were scrolled to some extent[, and] 22% of the page-views with a scroll-bar, were scrolled all the way to the bottom." From a legal standpoint, currently we assume that content “below the fold” usually is legally irrelevant. However, if users routinely scroll down on pages, this may require rethinking.

* Forbes' special report: "Books." Especially interesting stories:
- The Secret Life Of An Online Book Reviewer
- Cory Doctorow, Giving It Away
- Stop Worrying About Copyrights
- Publish And Perish (about picking storage media to archive human knowledge)
- The Networked Book (about using blogs as a complement to the book authoring process)

* How about this manipulative practice? Yelp, the local consumer review guide, pays "marketing assistants" to leave positive comments for review authors to "help make Yelp appear to be a vibrant and outgoing community in hopes that it will actually become one." As the BusinessWeek article says, "Some reviewers may be turned off by the notion that an ostensibly disinterested fellow user is getting paid to compliment their writing." Ya think? Hiring professional back-patters crosses my line.

UPDATE: I got the following email from Jeremy Stoppelman, founder of Yelp:

The Businessweek article is misleading so I can understand how you got that impression. Our system breaks down as follows:

Community Managers - responsible for local marketing & pr, organizing yelp events (offline) and for welcoming people to the site. People who are active in the community generally know this person (and that they are an employee) since they are organizing local events and emailing users all the time.

Marketing Assistants - the first people in a new market (that has little-to-no community), they are paid to update our crappy yellow pages data and write some of the first reviews (e.g. make the site not empty). We initially suggested they get active (post on talk, compliment if someone shows up), but turned away from that quickly (for the same concerns you raised).

The only critique left is that these people aren't badged and I totally understand this issue (minor, but real). Therefore we decided before Christmas break we should badge all our marketing & community staff. This change should be out later tonight.

* The magazine Nature has ended its experiment with an open peer review process. Why? According to the AP, "The journal concluded that many researchers were either too busy or had no real incentive in evaluating their colleagues' work publicly. In addition, none of the editors found the posted comments influenced their decision whether a paper gets published." No point in manufacturing metadata if it's not going to change the decision anyway! But this raises a related question--what incentives are needed to produce useful metadata?

* As written up in the NYT, Sao Paulo has outlawed a wide variety of outdoor advertising, including billboards, leaflets, advertising on the sides of buses/taxis, and via airplanes and blimps, and has promulgated strict rules on commercial signage. This is a radical experiment in the effort to reduce visual clutter by squelching the availability of a major class of advertising. But Chris Hoofnagle (who pointed out the article to me) wonders, where are these ad dollars going to go? Presumably they will be redirected into different ad media, with uncertain consequences. For more on the effect of regulation in one advertising medium on advertising in other media, see my Coasean Analysis of Marketing article.

* In response to the Google/China flap, the State Department in February 2006 established the Global Internet Freedom Task Force (GIFT). On December 20, the GIFT issued a press statement outlining its "GIFT Strategy" consisting of 3 principal points:
- MONITORING Internet freedom in countries around the world
- RESPONDING to challenges to Internet freedom.
- ADVANCING Internet freedom by expanding access to the Internet.
I wonder if this effort will moot the need for the Global Online Freedom Act?

* BusinessWeek article on domain tasting (with the wildly hyperbolic title "The Great Internet Brand Rip-Off"--an editor ran amok!). Domain tasting always has struck me as a silly issue. Of course if you offer marketers a way to get exposure to consumers for free, some of them will abuse it! But I just have to believe that the legitimate utility of the 5 day refund period is low, if not zero. So the refund period should be killed, and consumers who make a typographical error when registering domain names should be SOL (much like it's almost impossible to fix an error if a consumer buys the wrong non-refundable airline tickets).

* Rick Skrenta: "RIP DMOZ: 1998-2006."

* AP Story updating the Steinbuch v. Cutler case. The case is in discovery now, and there's no sign that it will avoid a trial.

* Tom Smedinghoff wrote an excellent recap of last year's developments in the field of information security law: Where We're Headed — New Developments and Trends in the Law of Information Security.

* In December, Shuman (Google's click fraud czar) reportedly said that Google's click fraud rates were less than 2%, but then Google backpedaled and obfuscated about what Shuman had really said. In yet another terrific post, Danny sorts through the mess and tells us what we know and don't know about click fraud rates. Read the whole thing.

* Jeffrey Rohrs is one of the people I trust for expert opinions. I don't agree with his plaintiff-side orientation, but I respect his perspectives. He's written an analysis of the click fraud issue that he calls the Sausage Manifesto. A recap of Google's responses to the manifesto.

* Jennifer Granick predicts that EULAs and the law of mass surveillance will be the hot legal issues of 2007. Both seem good bets; I'd add to that list that this year we'll spend a lot of time irresolutely chasing our tail on the net neutrality issue.

Posted by Eric at 10:00 AM | Domain Names , General , Licensing/Contracts , Marketing , Privacy/Security , Search Engines , Trademark | TrackBack

January 04, 2007

Cross-Border Legal Challenges in High Tech Law, January 26

By Eric Goldman

Our student-run Computer & High Tech Law Journal is putting on a conference, Cross-Border Legal Challenges in High Tech Law, January 26 at the San Jose Museum of Art. See the conference website. It would be great to see you there.

Posted by Eric at 06:04 PM | General | TrackBack

January 01, 2007

2006 Blog Year-in-Review

by Eric Goldman

Most Popular Blog Posts of the Year

1) O'Reilly and the "Web 2.0" Trademark
2) NYT on Fair Use and Documentaries (overflow from Slashdotting of #1)
3) GEICO v. Google Opinion (Finally) Issued
4) Competitor's Keyword Ad Purchase May Be Trademark Infringement--Edina Realty v. TheMLSonline
5) Lane's Gifts Click Fraud Lawsuit Near Settlement
6) Keyword Purchases Not a Trademark Use--Merck v. Mediplan Health Consulting
7) Griper Gets 47 USC 230 Defense for Reposted Article--D'Alonzo v. Truscello (I'm not sure why this post made the top 10 list. I think it may be fueled by comment/referral spam)
8) Downloading Music Isn't Fair Use--BMG v. Gonzalez
9) Search Engine Liability for Selling Keywords Redux--800-JR Cigar v. GoTo.com
10) KinderStart Second Amended Complaint

Overlooked Posts (some of my favorites that didn't get the traffic they might have)

* Unlawful Internet Gambling Enforcement Act of 2006
* Princess Bride and Jurisprudence
* Slinky Factory Tour
* Sexy Professors are Better Professors (?)
* Trademark Travesty of the Month--SMJ Group v. 417 Lafayette Restaurant
* Teenager Busted for Creating Fake "News" Story
* Piracy Loss Estimates as a Managed Number
* Your License, Registration and DNA, Please? (by Ethan Ackerman)

Blog Statistics

* The number of unique vistors in December 2006 was over double those in December 2005, and total visits and pageviews for the year were about 3X that from 2005. It's unclear how much of this was due to comment/referral spammers and other robotic activity.
* Google provided 88% of the referrals from search engines (last year it was 78%).
* Top 10 search phrases used by referrals to find the blog: geico, sex.com, barbri class action, 50.cent oprah, law professor salary, eric goldman blog, gifts for professors, law professor salaries, eric goldman, donotcall.gov
* The blogs have a total of about 860 posts, of which about 300 were made this year. Most commonly blogged categories include search engines (67 posts this year), derivative liability (47 posts), trademark (43 posts), copyright (37 posts) and adware/spyware (27 posts).
* As with last year, only about half of blog visitors used Windows Internet Explorer as their browser.
* Visitors came from over 150 countries, including Australia, Germany (#2 and #3), Malawi and Saint Vincent & Grenadines (with 8,000 Internet users in 2005 per the CIA factbook)
* Ad clickthrough rate of 0.38% with eCPM of $2.41. I'm not thrilled with these numbers.

2005 Blog Year-in-Review

Posted by Eric at 05:20 PM | General | TrackBack

December 29, 2006

My Wikipedia Page is Safe (For Now...)

By Eric Goldman

In my last post on Wikipedia, I mentioned that my personal Wikipedia page had been tagged "article lacks information on the importance of the subject matter." Shortly thereafter, things took the inevitable turn for the worse--the page got nominated for deletion. The Wikipedians huddled on a discussion page and failed to reach a consensus: 7 voted to keep the page, and 7 voted to delete it and/or merge it into another page. Apparently, this preserves the status quo, so my Wikipedia page was saved from deletion for now. It's not exactly the most ringing endorsement, but it's better than having to report to mom that Wikipedia deemed me "non-notable"!

UPDATE: I feel a little better now that I know Matt Cutts was nominated for deletion too. This is the problem of having contributions from people who aren't experts in the applicable area.

Posted by Eric at 03:42 PM | General | TrackBack

December 14, 2006

Site Outage and Comments

By Eric Goldman

The website and blogs had a 4+ hour outage today. My web host pulled the plug (sadly, without warning me) because "it was crashing the server with 250 other customers on it. Something on your website is causing very high server loads." We haven't been able to determine the cause yet, although comment spammers are the most likely culprit. So to convince the web host to put me back online, I agreed to shut down comments for now. Because I'm going to be in Israel for most of the rest of the year, I'm going to leave comments off until January. I'll reassess what to do then. Sorry for any inconvenience if you tried to access the blog and got the scary "this website has been suspended" notice.

Posted by Eric at 12:28 PM | General | TrackBack

August 13, 2006

Fall 2006 Cyberlaw Syllabus

By Eric Goldman

I've posted the syllabus for my Fall 2006 Cyberspace Law course. As I have done for the past 11 years, I prepared my own materials. To do so, I cull through all of the action from the past year to see what changes I should make from the prior year's syllabus. In the late 1990s, a lot--1/3 to 1/2--of the pages would change from year-to-year. In the past couple of years, this pace has slowed considerably. This year, I added only 3 new cases and 1 new statute to the reader:

* the Lamparello case (which I actually substituted in last year after I prepared my 2005 syllabus)
* Perfect 10 v. Google and Field v. Google. They make an excellent compare-contrast unit. They also provide enough material to moot the 2003 Ticketmaster ruling, which I dropped this year.
* I substituted in the Alaska anti-adware law to replace Utah's anti-adware law.

Beyond those additions, I substituted in the 7th circuit ruling in the BMG v. Gonzalez case for the district court ruling, and I dropped the FTC v. Phoenix Avatar spam case and my short editorial on advertiser liability for adware (neither of which I had time to cover).

I could make an argument that the past 12 months have been comparatively slow in cyberlaw (by cyberlaw's historical standards), at least in terms of significant precedent. There have been some fairly important rulings (the KinderStart, JR Cigar, Merck v. Mediplan and Edina Realty cases come to mind) and interesting developments (the Sony DRM episode, click fraud lawsuits and the battles over search engine queries come to mind), but very few of these cases or episodes resulted in important/pedagogically useful precedent or statutes. Not that I'm complaining--it may just be a sign of cyberlaw's maturation.

Interestingly, although blog law is hot, I couldn't really find anything useful to teach on the topic. I think this reflects that blog law is just a seamless part of cyberlaw. As a result, I'm sure I'll integrate blog issues into the course throughout the semester.

Posted by Eric at 08:34 AM | General , Internet History | Comments (2) | TrackBack

July 26, 2006

Blog Law Recap

By Eric Goldman

Spring was a busy time for blog law! This post recap some blog law resources:

* My talk on blogs and intellectual property at the Milwaukee Bar Association (newly posted)
* Notes from my talk on blog law and my experiences as a blogger (newly posted)
* My paper on the law of co-blogging (joint blogging, group blogging and guest blogging)
* EFF's Legal Guide for Bloggers
* Recap from blog law conference at Univ.of North Carolina
* Recap from Bloggership conference at Harvard
* Blog post on risks of employee blogging

Some blog posts about the mechanics of blogging:

* How to decide which blogs to read
* Should you become a blogger?
* How to get started as a blogger
* Vanity monitoring tools (ways to track who's talking about you or your blog)

Finally, if you're interested, my blogroll. Note I add and drop blogs pretty frequently.

Posted by Eric at 11:20 AM | General

June 27, 2006

June 2006 Quick Links

By Eric Goldman

I have had virtually no Internet access over the past 10 days due to my move and travels, so my Bloglines account was bulging with more than 1700 articles. Here's a quick look at some of the items that have caught my attention this month:

* The FTC announced its own data breach due to a stolen laptop. Hmm...is it just me, or is this incident dripping with irony?

* Microsoft appears to be in its "benevolent" dictator mode again. Last year I blogged about how Microsoft made the unilateral decision to wipe some "malicious" software off users' computers without user notice or consent. (If it makes you feel any better, AOL has done the same thing). Now, Microsoft is installing mandatory software that phones home and doesn't tell users it's phoning home. Most people would categorize the phone home capability as spyware, and I'll be interested to see how the undisclosed feature doesn't violate 18 USC 1030(a)(2)(C). Yet, as Andy Patrizio wonders, where's the outrage? The consumer protection lawsuits? Andy writes:

All manner of hell broke loose over the major phone companies reportedly cooperating with the National Security Agency over international phone calls, but the news that Microsoft is watching every single Windows XP PC has been met with deafening silence.

Suzi rounds up the situation.

[UPDATE: First lawsiut over WGA filed. I'm sure more are coming.]

* JP Enterprises v. Yahoo, No. 06-cv-01046-REB-PAC (D. Colo. amended complaint filed June 6, 2006). Complaint against Yahoo Dating and other dating sites for purchasing keywords of a competitor, LoveCity. I'm not optimistic about the plaintiff's chances here, given that it doesn't seem to understand the differences between metatags and keyword triggers. Also, note the irony that Yahoo is buying ads from competitor Google.

* The WSJ writes about the accuracy of recommendation engines. The article explains how consumers make some decisions based on brand perceptions rather than actual utility they derive from the product. As a result, recommendation engines do a better job serving consumer desires by watching consumer behavior rather than relying on self-reported consumer preferences.

This also raises interesting implications for the role of brands in the search process. Brands may help consumers find what they think they are looking for, but at the same time may interfere with utility maximization. To avoid this, one recommendation engine contemplated hiding brands from the consumers.

* Heidi Cohen states the obvious. (Well, she and I think it's obvious, but apparently most marketers still don't get it.) Marketers are in the content publishing business, so they need to think like publishers, not marketers. And, from a policy standpoint, this continues to reinforce the illusory line between marketing content and editorial content.

* Another shocker: Marketers pay-for-placement in editorial content in print publications.

* Michael Scott (from his new blog, Singularity) writes a fun article about the implications of three generations of cyberlawyers: the veteran "computer lawyers" from the 1980s (that includes him), the dot com boomers from the 1990s (which I belong to), and the post-dot com busters from the 2000s.

* More evidence of "banner blindness." As usual, consumers can organically adjust to annoying marketer tactics if legislators avoid jumping into the fray.

* Finally, an article on fake consumer reviews. This is hardly the first article on the topic, but interestingly it hints that some merchants may be outsourcing/offshoring the creation of fake reviews. Forget click fraud shops in India and gold farming in China; those are passe. Instead, here's a new possible tort for you plaintiffs' lawyers--review "fraud"?

Posted by Eric at 05:50 PM | Adware/Spyware , General , Internet History , Licensing/Contracts , Marketing , Privacy/Security , Trademark

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 02, 2006

North Carolina Blogging Conference Recap

By Eric Goldman

Sorry to post yet another conference recap on blog law, but it's been a busy conference season, and everyone wants to talk about blogs! I previously blogged on my presentation at the University of North Carolina's conference on employee blogging. At the end of the day, the conference organizers asked me to recap my observations about the day. Here's how I summarized the conference.

I divided my observations into three categories: what we know, what we don't know, and some predictions for the future.

What We Know

1. There's no such thing as a "private blog." It's an oxymoron. Think of all the people who have learned this lesson the hard way: Jessica Cutler, who used her supposedly limited-distribution blog to share some very intimate details; Jay Kuo, an attorney who blogged on a live case in a password-protected blog and got rebuked by the judge for it; and the many, many students who are making regrettable postings to their MySpace, Facebook or LiveJournal pages (even though places like Facebook limit access). Blog posts restricted to an Intranet may, in theory, remain limited in their distribution, but even then, bits have a funny way of migrating to the most unwanted places.

Because blog posts are effectively public, blog posts are effectively permanent. They live on forever as part of the author's permanent record. Thus, the maxim: "blog in haste, regret at leisure." The ease of blogging seduces people to blog first and ask questions later, but the permanence of blogging makes such tactics unwise.

2. Speech is Good, Speech is Bad. At the conference, Ed Cone said that blogs are "dangerous but useful." This is exactly right. Blogs are generating good speech and bad speech. It would be a mistake to oversimplify the output in either direction--both good and bad speech are an integral part of the blogging phenomenon.

3. Blogs Put Pressure on Companies That Rely on Secrecy/Data Scarcity. The proliferation and democratization of information makes it very hard to sustain businesses that rely on data scarcity or secrecy. Ed Cone gave the analogy of a basketball game. There's a certain secrecy inherent in playing the basketball game inside a closed pavilion. With bloggers recording every move during the game in real-time, the value proposition derived from the game's secrecy degrades. As a result, the game operators aren't selling access to information, and they make a huge misstep trying to do so by futilely restricting the flow of information. Instead, they need to sell other stuff that can't be easily replicated in an information-rich environment. Thus, the businesses that thrive in the blogging era will build businesses that make more money from the widespread dissemination of data.

Along this lines, companies with branded products need to realize that they are in the business of building fan bases. Blogs can help build fan bases by disseminating information to the company's most dedicated customers, thereby rewarding and further encouraging their loyalty. Thus, companies may find value in building their own blogs, and they should tolerate company-related blogs built by the company's fans.

4. Employers Need to Educate, and then Trust, Their Employees. It is unrealistic to expect employees to know what's appropriate/inappropriate regarding blogging without any training. Instead, companies should educate and train their employees about blogging. And, where an employer has decided to restrict employees' blogging activities, the employer should explain the rationale for the restriction so that employees know both the "what" and the "why" and can better apply the rules themselves. At the same time, with adequate training, employers should then trust their employees to make good choices rather than assuming the worst about employees.

What We Don't Know

1. While we know that blogging will produce a mixture of good speech and bad speech, we don't know how to develop restrictions that curtail unwanted speech without also affecting desired speech.

2. It's easy to say that businesses should build businesses that generate value from speech proliferation due to blogging, but it's not clear how businesses will do that. (If I knew how to do this, maybe I could afford a house in Palo Alto!)

Predictions for the Future

1. 10 years from now, it will seem bizarre that we had a standalone conference on blog law. Blogs are just a subset of Internet-mediated communication--nothing more (and nothing less). As Ed Cone said, "blogs are not exotica." After the novelty of blogs wears off, we'll realize that they are just another communication medium, and we'll stop trying to treat them as unique.

2. Corporation-sponsored blogging will increase as a way to grow and cater to brands' fan bases.

3. People will make poor choices about blogging--they will use blogs to do stupid things, make stupid posts, and generally engage in bad behavior. This is basic human nature.

4. Despite the glut of poor choices, I think there will be less blog-related litigation than we might expect. Typically, there just won't be enough money involved to fight about.

Posted by Eric at 02:21 PM | General

April 29, 2006

Bloggership Conference Recap

By Eric Goldman

I spent yesterday at the Bloggership: How Blogs are Transforming Legal Scholarship conference at Harvard Law School. As one might expect, the day was filled with self-referential navel-gazing of the first order, kicked off by Paul Caron's introduction that provided a battery of statistics proving that we thought we were an important group. Here's my notes from the conference:

Doug Berman provided some evidence that law review articles have grown in length over the decades, in part because it has become technologically feasible to write long articles. The articles have also grown less practitioner-oriented. Blogging can fill those gaps by providing shorter commentary that helps practitioners. As a result, blogging fills all three of the main duties of law professors: teaching, scholarship and service.

Larry Solum said that scholars want their works read. To get readers, scholars have to reduce the costs of reading. These costs will be lowered by shortening articles and removing copyright limitations. Thus, he predicted that the future of legal scholarship is "short form" (as opposed to lengthy) open access articles.

Kate Litvak was supposed to be the token naysayer by explaining why bloggers need to get over themselves. Instead, she disappointed the bloodthirsty with a surprisingly mild critique of blogging--she argued that blogging is just one of many changes currently taking in legal scholarship, and perhaps not an especially important one.

Paul Bulter commented on the first three panelists. He was the most rah-rah blogger of the day, declaring blogs "amazingly cool." He also had the best soundbites. He said that bloggers are walking up to legal scholarship and slapping it in the face. In support of this, he drew an analogy that blogs +> legal scholarship is like music videos => movies--in other words, the short and quick nature of blogs will reshape legal scholarship just like music videos have changed the editing and scripting of movies. He concluded that "blogs are about power to the people." (My link, not his)

In response to the question "Is Blogging Scholarship?," Jim Lindgren had a very Jewish response of answering the question with his own question: "Why did you want to know?"

Ellen Podgor said that she may be the first person to affirmatively ding someone in their P&T letter for failing to keep up with the blogosphere. (Note to Ellen: even though I think your remarks were designed to lift the spirits of bloggers, the mere suggestion that some P&T reference letters might contain negative feedback sent most of us untenured folk into a tailspin!).

Gail Heriot said that she found blogging fun, and this created an internal conflict for her: does she want blogging to be recognized as scholarship for legitimate reasons, or because she just wants an excuse to keep having fun?

Orin Kerr talked about the "tyranny of reverse chronological order"--how the presentation of posts by date obscures the most valuable posts.

(Note: I think Orin has a good point. Because of this phenomenon, I rarely make "non-substantive" posts on my blog so that the top post is invariably a significant post. I have also noticed that when one of my blog posts gets a lot of traffic, the immediately following blog post gets overflow traffic (it gets a prominent link in the upper right corner that really catches people's attention). Because of this phenomenon, I don't want to have a blah post following a major hit, and I often don't know which post will be a major hit. So I cut down on the non-substantive posts to minimize that. And if I think a post will be a hit, I try to follow it up with a topically-relevant post so that I can enhance the spillover effect.)

(Having said all that, I don't think the tyrannical effect Orin fears is all that significant. There are lots of ways to merchandise and display blog posts, so there will be evolving solutions. Plus, a lot of blog traffic comes from deep links and search engines).

Gordon Smith gave examples of how he used his blog to engage in a scholarly discourse about the Disney opinion.

Randy Barnett followed up on Gail's talk by warning about the "flight from scholarship." He said that blogging is a temptation to avoid doing scholarship because scholarship is hard. He amused the crowd by observing that many professors don't like to do scholarship because it's hard, but then again many professors don't like to teach and almost no professors like to do university service--making all of the law professors in the room question whether we really have a great job. (We do).

Michael Froomkin talked about how he has different writing voices--he runs different blogs with different voices for each. He also announced the "Journal of Things We Like (Lots)" (or Jotwell.com), a place where people can provide short critiques of law review scholarship as a way of calling attention to the good scholarship that others should read.

Glenn Reynolds spoke by videoconference. (Always a tough thing to do, although he did it well). He explained why bloggers don't get sued for defamation very often and why they should be excused from liability in many cases.

Eugene Volokh gave various examples of how legislators have protected speech beyond the constitutional imperatives of the First Amendment. He raised an interesting question that I hadn't really considered before and can't recall seeing discussed in the literature--could someone raise a constitutional challenge to 47 USC 230 because it provides different levels of protections to different types of media? My instinct is no, but I could see this question being more complicated. If this hasn't been covered in the literature, it seems like an excellent law review article. I wonder if plaintiff will bring this constitutional challenge.

I spoke a little about the liability facing bloggers who work together, such as group blogging and guest blogging arrangements. See my talk notes here. My principal point is that group/guest bloggers are in for some surprises. For example, 47 USC 230 might be defeated if a plaintiff can show that the bloggers were in a partnership or employment relationship, and a blogger might lose the ability to stop republication of his/her posts upon departure from a blog if the arrangement is characterized as a partnership, or the blogger is an employee, or if the blog posts are considered to be contributions to collective works under 17 USC 201(c). I didn't mean to scare bloggers about these issues, but I think a lot of bloggers--including law professors--aren't paying adequate attention to these issues, so I wanted to raise the profile of these issues. Read my entire paper here.

Betsy Malloy talked a little about the importance of anonymous blogging.

Dan Solove said that we are celebrating the blogger as "Davids" against the Goliaths (such as the thesis of Glenn Reynolds' book). However, he explained how the Davids are romanticized as responsible parties who are trying to build personal reputations, but the reality is that most bloggers are teenagers who may not fit our romantic ideal.

Larry Ribstein talked about "publicly engaged academic posts" or "PEAPs." Some of us thought he might be talking about marshmallow peeps.

Ann Althouse described her very laissez-faire attitude towards blogging--it's fun, and it's liberating to press "publish" and then be presented with a new blank window to be populated with new thoughts.

Chrstine Hurt talked about blogging while untenured. She said the two big risks of blogging were that it takes time and risks unfavorable exposure. But then she explained that blogging saves her time by forcing her to keep up with and self-organize the literature (which allows her to get a faster start on her scholarship come summer) and disciplining her to keep her reading/blogging within a fixed time block of her day. Exposure depends on the type of blog the professor maintains. (Or, as she asked in reference to Gordon Smith's cheese obsession: "What will your cheese ratio be?"). A blog that is non-law related can have lower risk of negative exposure, but doesn't do much to build the professor's reputation in the law professor community. Meanwhile, the exposure provided by blogs can open up doors--Christine explained how it allowed her to meet a lot of people who would have never known about her otherwise. (Certainly, both Christine and I felt very fortunate that our blogs opened the door to participate in such a terrific event).

Howard Bashman described how his blog had generated new clients for him. He also said that journalists seek out links from his blog (not vice versa!).

Peter Lattman described how his reporting is affected by reading blogs. From his perspective, journalists view blogs as useful resources, not competitors.

An interesting aspect of the conference. The event was scheduled during reunion weekend at Harvard Law School, and I believe it was billed as a way for alumni to get free CLE. As a result, there was a steady stream of alumni coming and going, many of whom had badges with little labels saying that they were attending their 25th, 35th, 40th or even 50th reunion. I don't want to overstereotype this group, but many of them were elderly men who, I suspect, had never read a blog in their lives. This created an interesting cultural dynamic in the few situations when the blogger crowd interacted with the alumni crowd. The most visible is when one alumnus asked if the bloggers wanted him as a reader. TWO different panelists said (only partially in jest) "no, I don't want you as a reader" right to his face! Ouch!

Many thanks to Paul Caron for organizing a great event and to the Berkman Center for hosting the event.

Other recaps:

* Tim Armstrong (a thorough and insightful recap with links to comments on all of the panels)
* Doug Berman
* Ann Althouse
* Dan Solove (a caricature post)
* Opinio Juris/Roger Alford (a collection of quotes from the event)
* Larry Solum (see April 28)
* Eric Muller
* Jim Lindgren
* Larry Ribstein

Ian Best provides the most thorough meta-post.

Posted by Eric at 02:58 PM | General | Comments (2)

April 26, 2006

Employee Blogging Risks

By Eric Goldman

A couple of weeks ago, I spoke at the North Carolina Journal of Law & Technology's symposium called "Attack of the Blog: Legal Horrors in the Workplace." (I definitely did not pick the name!) In the morning, I spoke about the risks that companies face when their employees blog. I see blogging as a subset of Internet communications generally, so I'm not sure these risks are limited to blogging. Nevertheless, the following risks are possible:

Non-Legal Risks

* Employee relations risk. A personal dispute between employees could be taken online, triggering a flame war or exposing the personal dispute to a broad audience within and outside the company.

* Customer relations risk. Employees could make disclosures that undermine customer confidence in the company's products by revealing too much about the company's inner workings or by disparaging the company's products. Employees could also oversell customers by making overstated claims about the products.

* Reputational risk. Employees might make personal disclosures about other employees/stakeholders that degrade the overall public perception of the company.

Legal Risks

* Admissions. Blog posts could be party admissions. Even if not, they could be adverse evidence introduced in litigation.

* Trade Libel. Employees could actionably disparage competitors' products.

* Disclosure of Non-Public Information. There are several ways that employees could convert non-public information into public information in ways that have legal significance.

- If the company is publicly traded, these disclosures may manipulate the stock price or constitute securities fraud
- Employees could undermine the company's position by tipping off competitors about plans in the works. If the employee publishes company trade secrets to the blog, in most cases that information will be irretrievably lost as a trade secret.
- Employees might disclose third party trade secrets, which could lead those third parties to bring a trade secret misappropriation claim.
- Employees might disclose patentable information that jeopardizes the company's ability to obtain a patent using that information. For example, a blog post should start the 1 year clock ticking under 102(b). Similarly, if the foreign patent applications have not yet been filed, the blog post should negate the company's ability to seek foreign patents on the published information. This is a real gotcha that may catch some unsuspecting companies.

Conclusion

Just to be clear, I'm not convinced these risks are all that serious. The emergence of blogs might lower the guard or caution of employees, but all of these risks would exist even without blogs, and most employees will make good choices. Even so, some employees will make poor choices, and thus companies who are concerned about employee blogging might choose to address blogging as part of an overall policy on Internet usage or disclosure of company information. At the same time, employee blogging can be a significant asset to the company, so companies might look at employee blogging as an resource to nurture rather than risky behavior to squelch.

Posted by Eric at 08:05 PM | General , Patents , Trade Secrets

April 24, 2006

Bloggership Conference and Co-Blogging Law Paper

By Eric Goldman

On Friday, I'm participating in the "Bloggership: How Blogs Are Transforming Legal Scholarship" symposium at the Berkman Center for Internet & Society at Harvard Law School. This event is shaping up as a world class blogger-fest. If you're in the Boston area on Friday and want to experience "oral blogging" first-hand, you should definitely come! Or, at least come to the after-party from 9-11 pm where we'll all be hanging out and socializing. If you introduce yourself to me as a loyal reader, I might even buy you a libation. (If you don't know what I look like, see here--then add 4 years, subtract some hair, and add a few pounds).

If you can't make it in person, you can listen in via the webcast. Or, you can just wait for the inevitable torrent of post-symposium blog posts. Given the panel composition, I'm fairly confident that this event will be one of the most heavily-blogged-about events in the short history of blogs.

Whether you participate, listen in, or just sit silently bemused by all of the navel gazing, you should check out the symposium papers. I think this is a remarkable collection of papers about blog law and the role of blogs in advancing social knowledge.

My contribution to this collection is comparatively pragmatic. The paper is called "Co-Blogging Law" and takes a practical look at the legal consequences of joint/group blogging and guest blogging. It's still in draft form, so I'd very much welcome any comments. The abstract:

Bloggers frequently combine their efforts through joint blogging and guest blogging arrangements. These combinations may be informal from a social networks perspective, but they can have significant and unexpected legal consequences. This Essay looks at some of the ownership and liability consequences of co-blogging and guest blogging. To do so, the Essay will consider different possible legal characterizations of co-blogging, such as partnership, employment and joint ownership. The Essay concludes with some recommendations to minimize the implications of unexpected legal characterizations, including encouraging bloggers to make private agreements, educating bloggers about their choices, and exercising judicial restraint

I hope to see you in Boston!

UPDATE: The Friday after-party will be at Zephyr Lounge in the Hyatt Regency Cambridge, 575 Memorial Drive.

UPDATE 2: I must have been confused--the after-party was a pre-party on THURSDAY niight--sorry if I steered you in the wrong direction. But please come to the conference!

Posted by Eric at 07:19 AM | General

April 17, 2006

Movable Type Upgrade and Liberalized Comments Policy

By Eric Goldman

I've upgraded the blog to the new version of Movable Type with the comment spam filter that everyone is praising. So I'll experiment again with allowing comments without a Typekey account. I hope the lower barrier to entry will encourage you to comment more freely. Meanwhile, we'll see if the comment spammers nail the blog again....

Posted by Eric at 02:36 PM | General

April 06, 2006

Goldman from Marquette to Santa Clara

By Eric Goldman

Starting next academic year, I have accepted an appointment as an Assistant Professor and Director of the High Technology Law Institute at Santa Clara University School of Law. The school's news release. I have posted more details and some personal thoughts here.

Posted by Eric at 11:43 AM | General

March 09, 2006

Smoking Gun on Movie Budgets

By Eric Goldman

The Smoking Gun runs an interesting feature on movie budgets. Among the goodies include the entire line-by-line budget for the movie "The Village," and various excerpts from other budgets of movies by M. Night Shyamalan. Very interesting reading if you're interested in Hollywood accounting...or if you're curious about movie star paydays and perks.

Posted by Eric at 08:16 AM | General

January 15, 2006

My Own Wikipedia Page

By Eric Goldman

Previously, I found my own personal search engine spam page. That was surprising but it wasn't very thrilling. In contrast, I was pretty excited to find my own Wikipedia page. I recognize that Wikipedia is (mostly) open-access, so the barriers to getting a vanity Wikipedia page are virtually zero. But I didn't create this one myself, and I don't know "Ancheta Wis" (the page creator).

So, what did I do that was noteworthy enough to prompt a stranger to create a Wikipedia page about me? (This is one of those tough existential questions--what do I want to be remembered for in history?) Was it my brilliant contributions to legal scholarship? My unparalleled performance as a legal educator? My heart-felt devotion as a husband and father? My freakish Slinky obsession?

Of course it was none of that. Instead, it was my bet with Mike Godwin that Wikipedia will fail in 5 years. In other words, what got the attention of the Wikipedia editors was my discussion about their future. It appears that Wikipedians are as self-referential as law professors!

Now, I'm caught in the dilemma faced by Jimmy Wales--should I edit my own biography? I know LOTS of FASCINATING details about the page's subject matter... Actually, I don't currently plan to edit the page with one glaring exception. If, in 2010, it looks like my prediction is wrong, I'll edit the page to flip the bet around (i.e., so that Mike predicted that Wikipedia will fail).

Posted by Eric at 05:07 PM | General | Comments (1)

January 01, 2006

2005 Blog Year-in-Review

By Eric Goldman

I generally avoid overly self-referential postings, but this post is a glaring exception. In this post, I'll recap some of the blog highlights (and lowlights) of the past year, covering both this blog and my personal blog. I hope you find this at least mildly interesting.

Top 10 Blog Posts (excluding category pages)

1. What Happens to BitTorrent After Grokster? (by Mark Schultz). This post got 50% more page views than the next closest post.

2. Sony, DRM and Trespass to Chattels

3. Important 2d Circuit Adware Case--1-800 Contacts v. WhenU. This is one of my favorite posts of the year.

4. Grokster Supreme Court Ruling

5. Steinbuch v. Cutler Update--Cutler's Motion to Dismiss. This one got unexpectedly large traffic from a Wonkette link (Its tagline: "Politics for people with dirty minds").

6. Artists' Rights and Theft Prevention Act--New Criminal Copyright Infringement Standards

7. Adware Witchhunt Gone Awry

8. Is Sony's DRM Spyware?

9. Grokster Ruling Commentary

10. Wikipedia Will Fail Within 5 Years. I think my statistics generally were distorted by referral spam, comment spam and other robotic activity, but this post's top 10 placement may be due to robots because it got 225 robotic comments in 3 days.

Undiscovered Gems

Some of my favorite blog posts that you may have overlooked.

* Faculty Activity Reports

* Product Placement and the Apprentice TV Show

* Infomediaries--Where Are They?

* Spyware, the Pew Report, Anti-Terrorism Efforts and Coping with Spam

* Taxes, Attention Consumption and Competition

There were some fantastic posts from guest bloggers that may have been overlooked as well--check out Mark Schultz's Stealing Mickey's Mojo, Mark McKenna's Branded Products as Ingredients, John Ottaviani's Federal Circuit Refuses to Register Pennzoil's Clear Motor Oil Bottle as a Trademark and Judge Patel: Maintaining An Index of Downloadable Files is Not "Distributing" the Files, and Ethan Ackerman's Law Enforcement Collection of DNA.

Lowlights

With almost 600 posts this year written at "blog speed," not surprisingly the bottom 1% of posts aren't that great. Among my least-favorite posts: low-value-added posts (e.g., here and here), inflammatory posts, and error-riddled posts (e.g., here, here and here). By definition, I'll always have a bottom 1% of posts, but in 2006 I'll endeavor to avoid such obvious mistakes.

Some Blog Statistics

* 573 posts this year, or about 2/day since the blogs began in early February. The most common topical categories include copyright (87 posts), adware/spyware (85 posts), search engines (77 posts) and trademarks (77 posts).

* Visitors from over 140 countries, some obscure (e.g., Burkina Faso, Moldova) and some tiny (e.g., Faroe Islands, with only 25,000 Internet users in 2002).

* 78% of the search engine referrals came from Google. The next closest was Yahoo with 10%. The top search keyword used to find the blog? "Law professor salary."

* Reflecting the blog's techie audience, about 10% of readers use a Linux OS instead of Windows, and less than half use Microsoft Internet Explorer as their browser.

AdSense (this also covers my personal website)

For the year, the websites had a clickthrough rate of 0.5% (i.e., 1 out of every 200 pages with ads generated a click) and an ECPM of about $3.75 (i.e., every pageview containing ads generated less than half a penny).

I'm not complaining too much about my modest AdSense earnings, but at the same time I think the websites have a lot of untapped revenue potential being obscured by AdSense's poor automated assessments. In particular, I'm frustrated by the omnipresent "Smart Link Marketing"/www.Text-Link-Ads.com display ads that are just not relevant or useful to this audience. I understand that presumably these ads generate more total revenue than other ads that Google might display, but this is because AdSense's algorithms are missing a lot of good keywords. For example, ads for anti-spam or anti-spyware/adware products would be very high CPC and relevant to the audience, but AdSense figures that out pretty rarely.

Thanks for Reading

If you've read this far, you're either a loyal reader or a voyeur (if you're the latter, sorry to omit the juiciest stats like total visitors, pageviews or AdSense earnings, but I don't want to embarrass myself by confirming that the blogs are small potatoes). Either way, thanks for reading in 2005, and I look forward to your continued readership in 2006. Have a wonderful new year!

Posted by Eric at 10:04 AM | General

October 31, 2005

Domain Name Outage This Morning

By Eric Goldman

This morning the blog suffered an outage due to a problem with the domain name renewal. With Rex's help, we got everything straightened out and we should be back in business. Fortunately, the domain never really left my host's control, so there was never a serious risk of porn-napping. I will say this, though--the administrative procedures to manage a domain name at a place like GoDaddy are very taxing, even to me.

Posted by Eric at 04:55 PM | General

September 29, 2005

IP Blogs (and Other Blogs) Worth Considering

By Eric Goldman

Yesterday at a CLE conference in Minnesota, I spoke on a panel about IP blogging with Marty Schwimmer and John Welch. Collectively, we combined our blogrolls to create a master list of the blogs that the three of us read. If you want to check out our collective "wisdom," you can find the list (annoyingly, in Word format) here.

Posted by Eric at 06:07 PM | General | Comments (1)

Women and Law School

By Mark McKenna

If I told you that a famous professor from a well-known law school was arguing on his/her blog that law schools should consider discounting their tuition by 1% for each year a graduate stayed in the work force (with the purpose of encouraging attendance by those to whom the law school education would add the most value), what school would you guess that professor was from? It's an easy question for me - University of Chicago, where everything can be reduced to dollars and cents. And that's precisely right - it's Judge Posner, responding to an article in the New York Times a couple of weeks ago about how some female Yale undergrads expect to leave the workforce at some point after having children [The article was not empirical, and it has been very controversial].

I think Posner is greatly oversimplifying the economics involved here. The evidence pretty clearly suggests that fewer and fewer people are advancing to partnership at big firms (where the big money is), as firms create ever more heirarchical structures. Thus, going to law school with the expectation of making a lot of money down the road is becoming more and more like a lottery, with lots of people buying tickets and few hitting the jackpot. [I realize that, in the big scheme of things, first year associates making $135,000 is hardly peanuts. But I take it that Posner is talking about people who stay in the workforce for a long time, and you can't stay an associate forever]. But people's willingness to pay huge amounts of money to go to law school is based in large part (and, according to Posner, should be based entirely) on that person's expected lifetime return. Lifetime return, of course, is determined by the supply and demand in the market for attorneys - and that market presumes that a certain percentage of lawyers will drop out, whether to raise children, become a high school english teacher, or whatever. If we adopted Posner's system, it seems to me that the expected return would have to go down, since supply of attorneys would rise without any reason to believe demand would rise at the same time. Thus, students' willingness to spend exorbitantly on law school may well go down.

I don't know whether that would happen or not, but it seems to me an equally plausible scenario as Judge Posner's, and determining which one is more likely requires a lot more data. This is one of the reasons I have a hard time with law and economists sometimes - you can make a lot of assumptions that greatly oversimplify reality and then smuggle in normative goals under the guise of "neutral" economics. And it seems to me that is precisely what Posner is doing.

On its face, that point has little to do with marketing. Dig a little deeper though, and you'll see that a great deal of the economic assumptions made in the context of trademark law are just the type of assumption Posner made. They assume that consumers will behave in certain ways and make little attempt to empirically demonstrate that behavior. Those assumptions are normatively loaded, but they are often expressed as though they were neutral descriptions of the way the market works. It doesn't have to be that way; we can learn a lot about consumer behavior if we only learn to ask the right questions.

As a final, and to some extent unrelated point, let me loop back to the beginning of my post. I asked at the outset which school you would associate Judge Posner's position with. If it was an easy answer for you as it was for me, it is because the University of Chicago has done a good job of branding itself. What we make of that brand is a different, and more interesting, question.

Posted by Mark McKenna at 03:09 PM | General , Marketing , Marketing | Comments (1)

September 13, 2005

More on Shortsightedness

By Mark McKenna

Guest blogger Brett Frischmann has a really good post over at madisonian.net. He argues that at least some of the problems New Orleans has experienced in the aftermath of Hurricane Katrina are consequences of shortsightedness. I've been thinking a lot about this lately, in very similar terms.

Brett notes that much of the destruction could have been avoided if we had only invested in infrastructure. We don't because the benefits of those investments are fuzzy and won't be realized until sometime in the distant future. The costs, on the other hand, must be incurred now. This certainly is true in the context of New Orleans, but there's a much broader point to be made here, which Brett hints at. Shortsightedness is pervasive in American public policy.

In his article, Brett mentions social security and the environment as examples of our failure to invest current funds to avoid much more expensive problems down the road. There are many other examples that could be added to the list. The budget deficit is an obvious place to start.

There are several less obvious examples too. We have very good information about the kinds of programs that work to reduce violent crime and keep young kids involved in productive activities. Nevertheless, our prisons are bursting at the seams. Because we refuse to make the necessary investments, we have a much more expensive problem on our hands down the road. A similar story could be told about early childhood education. Unfortunately, but predicatably, the costs of shortsightedness tend to fall disproportionately on those who can afford it least. There's another level on which class has everything to do with the hurricane.

So what in the world does this have to do with technology and marketing? Not very much, except that cognitive science has a lot to say about the natural tendency to be shortsighted. Maybe if we pay more attention to that tendency we can work to offset it.

Posted by Mark McKenna at 01:38 PM | General | Comments (3)

September 01, 2005

Guest Blogger Mark McKenna

I'm pleased to introduce Mark McKenna as a guest blogger. Mark is an Assistant Professor of Law at St. Louis University School of Law, where he teaches IP courses and civil procedure. Prior to becoming an academic, Mark was a trademark and copyright litigator at Pattishall, McAuliffe, Newbury, Hilliard & Geraldson in Chicago. Mark has been doing some interesting work on the trademark and right of publicity fronts, so I'm looking forward to his contributions.

The timing of Mark's and Ethan's stints as guest bloggers is directly related to a new addition to the Goldman household. I'm very grateful to all the guest bloggers for their contributions while my attention is stretched particularly thin.

Posted by Eric at 07:10 AM | General

August 29, 2005

Guest Blogger Ethan Ackerman

I'm pleased to introduce Ethan Ackerman as a guest blogger. Ethan Ackerman is an attorney in Washington DC and previously has been a legislative and technology counsel in the US Senate. He wrote portions of the CAN-SPAM Act and was an amicus attorney in Wahington v. Heckel, one of the early landmarks in spam law. I expect that he will have a lot to say about spam issues, but I welcome his contributions on all fronts.

Posted by Eric at 09:31 PM | General

August 14, 2005

Fall 2005 Cyberlaw Syllabus

It's hard to believe that this is going to be my 11th year teaching Cyberlaw. I've posted my newest syllabus for Fall 2005. The material I've assigned for the first time this year:

Copyright

* BMG v. Gonzalez (confirming direct liability for file sharers)
* Grokster Supreme Court ruling
* 17 USC 506(a) (showing the additions from the ART Act)
* Corbis v. Amazon (an extremely lucid opinion applying the 512 safe harbors--this is an overlooked gem of a case from a pedagogical standpoint)

Trademark

* Bosley v. Kremer (the case nicely encapsulates several facets of a gripe site lawsuit, including infringement, ACPA and SLAPP)

Spam

* My article on the harms caused by spam
* 16 CFR 316 (the various regulations promulgated under CAN-SPAM)
* FTC v. Phoenix Avatar (the case describes in accessible terms the complex evidentiary and financial trail that anti-spam enforcers must unravel)

Adware/Spyware

* The Congressional Research Service report
* 1-800 Contacts v. WhenU 2nd Circuit ruling
* Utah Spyware Control Act (amended)
* My CNET editorial on adware advertiser liability

ALthough this may seem like a lot of changes, it's noticeably less than I've historically made. I think this lower rate-of-change reflects that we are slowly but undeniably developing a body of "classic" cyberlaw cases that are both important precedent and good teaching cases, such as Specht, Hamidi, Reno v. ACLU and Zeran. I also have my "hidden favorites" that aren't especially important cases but still fun to teach, like the Noah, Promatek and Pharmatrak cases.

I did struggle a little with organizing the trademark cases. I don't think there's a single definitive teaching case for trademarks yet that nicely illustrates infringement (and applicable defenses), dilution and ACPA. Instead, I have five trademark cases that each make important but limited points:

* Bosley--good illustration of a gripe site lawsuit, but holding is fairly limited (narrow illustration of what constitutes use in commerce)
* Promatek--great illustration of initial interest confusion (especially with the bell-ringing line), metatags, how the parties can lose sight of the big picture and how judges cut corners, but hardly a traditional trademark infringement analysis
* Lockheed v. NSI--best teaching case for contributory infringement, but effectively mooted by ACPA's safe harbor for registrars
* Playboy v. Netscape--important case on keyword usage and search engines, but the case is extremely disorganized and error-filled
* 1-800 Contacts--important discussion on use in commerce and user control over their software, but very fact-specific

Worse, these five cases are spread out over the sections on trademarks, search engines and adware/spyware. I'd welcome any suggestions on other ways to think about and organize the trademark materials.

Meanwhile, if you want a blast from the past, consider my syllabus from Spring 1996. I taught this course shortly following Netscape going public, before the Communications Decency Act (it passed during the semester) and the resulting litigation, before the Zs (Zippo, Zeran and Zuccarini), and before the DMCA. Back then, "spam" meant Canter & Siegel's inappropriate postings in USENET, "crypto" was one of the top items on EFF's agenda, and the words "adware" and "spyware" had not yet been coined.

As a sign of the changes since then, I continue to teach precisely ZERO of the materials I assigned. However, a small number of the materials would still be useful today; for example, I do still teach John Perry Barlow's essay in my copyright seminar. Of course, some things never change. I taught a Playboy case in 1996, and I teach a Playboy case today (surprisingly, only 1). I suspect some Playboy case will be part of every Cyberlaw packet forevermore.

Posted by Eric at 01:20 PM | General , Internet History

August 01, 2005

New Case Law Lists

Sorry for the catch-all posting, but I have uploaded several new resources to my website:

A list of online contracts cases (emphasizing, in particular, online contract formation).

A list of online service provider liability cases (copyright, trademark, 47 USC 230).

A list of initial interest confusion cases.

None of these lists are intended to be comprehensive, but I use them as databases for their respective topics. I hope you find them helpful.

Posted by Eric at 04:42 PM | Derivative Liability , General , Licensing/Contracts , Trademark

June 28, 2005

Guest Blogger--Mark Schultz

I'm pleased to introduce Mark Schultz as a guest blogger. Mark is a law professor at Southern Illinois University, where he teaches intellectual property courses and legal ethics. Prior to becoming a law professor, Mark was an IT and IP attorney at Baker & McKenzie and the Pattishall firm (both in Chicago). Mark and I share many common interests, and I'm looking forward to hearing what he has to say.

Meanwhile, John Ottaviani will continue to guest-blog. Only a vacation kept him away from sharing his thoughts on Grokster yesterday (an omission that I'm sure will be cured on his return...!).

Posted by Eric at 09:11 AM | General

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

May 19, 2005

Travel Plans and Presentations

I'll be on the West Coast for the next three weeks. During that time, I’ll be making three presentations:

Conference: Second Conference on Online Deliberation: Design, Research, and Practice / DIAC 2005 at Stanford University
Topic: Media Regulation and Deliberative Democracy (raw paper draft)

Conference: Law & Society Association Annual Meeting in Las Vegas
Topic: Trademark Adjacency (I haven’t prepared my notes yet)

Conference: International IT Law Conference at Southwestern University School of Law in Los Angeles
Topic: 47 USC 230 (I’ll post a detailed handout on 47 USC 230 cases when I get back)

During my travels, I will have spotty access to the Internet, so I won’t be blogging at the normal level (I’ll blog when I can). In my absence, John Ottaviani will continue to guest-blog, so look forward to more good posts from him.

I’ll be back in Milwaukee June 13, so my blogging should return to normal then.

Posted by Eric at 11:26 AM | General

May 12, 2005

Internet Explorer Market Share Dips Below 90%

Microsoft’s share of the browser market has dipped below 90%. On my blogs, the numbers are even less favorable for Microsoft. Consider my blog stats in the month of May (so far):

“Unknown” 50.9 % (I believe this includes RSS readers and robots)
Internet Explorer 26.3 %
Firefox 10.9 %
Mozilla 6 %
Konqueror 2.2 %
Opera 0.8 %
Safari 0.8 %
Netscape 0.8 %
NetNewsWire 0.7 %
Lynx 0.1 %

In other words, excluding the unknown traffic, IE accounts for only 53.6% of my hits. Admittedly I skew towards a tech audience, but these stats certainly suggest that IE’s lock on the browser marketplace is experiencing significant pressure.

Posted by Eric at 03:06 PM | General , Internet History

May 11, 2005

MacMillan on RSS

Robert MacMillan at the Washington Post wrote a very good column on the joys and limitations of RSS, harping on the fact that it’s not as simple as it should be (I agree). RSS is one of those technologies where you don’t realize how much you need it until you try it. I now have over 40 blogs and websites in my RSS reader, and I can check all of those sites instantly with a single click of a button. There’s simply no way I would be able to keep up with these sites otherwise. And for sites that don’t have an RSS reader, well, either I’m not reading you at all or you are at a high risk of being dropped from my daily routine.

I use SharpReader as my RSS reader. SharpReader is pretty good—I haven’t had any bugs, and the user interface is acceptable (not great, not bad). The big downside is that it doesn’t check my RSSed sites when I’m out of the office, and that usually means that I will miss some postings from some websites (especially high-volume sites like News.com and Slashdot). Hey, News.com and Slashdot—your RSS feeds should not drop articles so quickly! An RSS website like Bloglines would solve my travel problem as well, but I haven’t made that switch.

For any of my readers not using RSS, you should really get onto the RSS system. [Alternatively, if you're not ready to make the leap, I can add you to an email list to be notified when I post new items (unlike RSS, this is not self-service; I have to add you manually).] You will love RSS because it will save you the time of having to check each website manually. However, on balance, it will probably cost you time as you significantly increase the scope of material you monitor!

Posted by Eric at 09:21 AM | General

May 04, 2005

Guest Blogger--John Ottaviani

I'm pleased to introduce John Ottaviani as a guest blogger. John is a partner at Edwards & Angell in Providence, RI. John practices technology and IP law and is co-chair (along with me) of the Intellectual Property subcommittee of the Cyberspace Law Committee of the ABA Business Law Section. John has a lot to share, so I'm looking forward to his contributions.

Posted by Eric at 09:40 AM | General

February 16, 2005

A blog worth watching

There are a lot of good blogs out there, and at some point I’ll provide a list of the ones I check regularly. But today, by accident, I stumbled across the Guiding Rights blog by Mark Partridge and immediately added it to my RSS reader. Looks like a low volume but high quality contribution to the blogosphere.

Posted by Eric at 10:06 AM | General