November 14, 2008
Just who is an Internet access service provider under CAN-SPAM?
Worded to prevent lawsuits by individual email recipients, the federal CAN-SPAM Act limits who can bring suit for a CAN-SPAM violation. In addition to state and federal enforcers, the Act allows suits by "Internet access service providers." Just who are they, and can individuals find a way back in to court under this provision?
By Ethan Ackerman
One of the most distinct differences between the federal CAN-SPAM Act and state anti-spam laws is the federal law's restrictions on who may bring suit for a violation. Like many federal laws, it's vital to consider the environment in which it passed in attempting to understand the scope and intent of its provisions.
After several years of experience with state laws allowing individual email recipients to bring suit under state laws, and both actual and exaggerated instances of 'professional plaintiffs' bringing questionable suits against email marketers, many business and marketing lobbyists were eager to limit who could bring suits under a federal spam law. While efforts to expand or limit liability under federal laws are as old as the 1st Congress, 2003 was a notable high-water mark. At the same time as, and in the same Congress as, the CAN-SPAM Act, similar Acts altering liability standards and raising barriers to lawsuits and class actions were being passed under the mantra of "tort reform." Limitations on environmental and manufacturer liability, extending sovereign immunity to vaccine developers, restrictions on class actions, preemption of state enforcement and consumer protection laws, statutorily-mandated settlements of active court litigation - these were some of the hallmarks of the 108th Congress' involvement with the judicial branch.
In this environment, it's not surprising that various provisions in the CAN SPAM Act were negotiated back and forth to expand or contract liability, standing and preemption. This blog has previously covered the preemption back-and-forth, but similar negotiation went into just who could sue, and how, and where, and for how much under the CAN SPAM Act.
The final version of s.877 signed into law in 2003 that became the CAN SPAM Act reflects the compromises on several issues necessary to get sufficiently broad political support. This post will attempt to identify each of those issues in turn.
The final bill allows suits by a broad swath of federal regulatory agencies to enforce the law, including most notably the FTC. The scope of state officials' enforcement of the federal law, and just who else could sue, was somewhat more disputed. Prior year versions of the bill allowed suits in state as well as federal court. The initial Senate version of s.877 also allowed suit in federal or state court, but the final version negotiated with the more lawsuit-averse House of the 108th Congress restricted suits to only US federal District Courts, and now redundantly also granted the relevant federal agencies additional authority to removes suits filed by States to federal courts.
The issue of caps on damages and attorney's fees was also near and dear (or anathema) to many in the 108th Congress, and extensive changes exist between various versions of the bill as conditions were horse-traded and various constituencies weighed in. State enforcement statutory damages swung from $20 to $250 over the course of the different Congresses, with treble damages being available, then dropped and replaced with discretionary 'aggravated' damages possibilities. State enforcers' attorneys fees similarly went from mandatory to discretionary between the introduced Senate version and House-approved version. Statutory damages for internet access providers saw similar swings and horse trading, ultimately with certain egregious violations triggering $100 damages and other damages valued at $25, a far mark from a proposed 'up to $10.' Damages caps were also a feature, but swung from as little as $500,000 to in some cases $3 million.
Similarly, the political demands of the House resulted in additional, heightened pleading standards for civil suits by anyone other than federal enforcement agencies. These heightened standards, absent in the initial Senate version but added in sections 7(f)9 and 7(g)2 of the final version, raised a scienter pleading requirement for state enforcers and constricted the definition of 'procure' for suits brought by Internet access providers.
But back to the big difference
As initially indicated, the biggest difference between most state and the federal anti-spam law is the absence of a private right of action for spam recipients in the federal law. In the 108th Congress, a general private right of action was a non-starter. Even the initial Senate version of the bill restricted suits to enforcement officials and Internet access providers. Contrary to the desires of state enforcers from state with such provisions, and apparently an uncomfortable concession from the minority Democrat sponsors, the absence of a private right of action was a stated minimum.
The final wording of Section 7 of the CAN SPAM Act specifies who can bring suit, listing first federal enforcement, then state enforcement, and finally granting Internet access providers the right to bring some civil suits. So who is an 'Internet access provider'?
The short answer - the definition written in the 'definitions' section of CAN SPAM - is that the "term `Internet access service' has the meaning given that term in section 231(e)(4) of the Communications Act of 1934 (47 U.S.C. 231(e)(4))." This somewhat unenlightening reference leads to the actual statutory definition of:
The term “Internet access service” means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.
This broad definition originally was passed into law as part of the earlier Child Online Protection Act (not to be confused with the Childrens' Online Privacy Protection Act). Importantly, CAN SPAM also used other definitions from other prior laws defining similar terms. One example, one short line above the CAN SPAM 'internet access provider' definition, is the definition of 'Internet.' CAN SPAM defines 'Internet' by reference to the earlier passed Internet Tax Freedom Act, 47 USC 151 note. Importantly, CAN SPAM did not adopt the much narrower, more ISP-centric definition of 'internet access provider' in that Act. The Internet Tax Freedom Act defines an internet access provider as "a person engaged in the business of providing a computer and communications facility through which a customer may obtain access to the Internet..."
This definitional difference is important because CAN SPAM was written with service providers above and beyond just then-traditional modem-pooling, DNS-providing traditional ISPs in mind. Spam impacts next-generation services like online website hosts, online email providers, online proxies and filtering services, and CAN SPAM was drafted to take into account not just the dial-up AOLs of the world, but also the Rackspaces, the Hotmails, and the TUCOWs.
So courts have uniformly picked up this clear distinction, right?
If they had, what would there be to write about? While CAN SPAM was commonly understood to prevent end-user lawsuits, that portion of the law is implicit, not explicit. CAN SPAM was, however, explicitly written broadly to cover all, even the as-of-yet-uninvented, online service providers that spam negatively impacted. Unfortunately, subsequent court cases addressing the issue of whether it is an 'internet access provider' bringing suit have sometimes attempted to reinsert traditional ISP-style definitions into the Act.
A recent case getting the issue correct is Haselton v. Quicken Loans Inc.. Though anti-filtering activist Bennett Haselton, administrator of peacefire.org, sued Quicken in his individual capacity, separately incorporated Peacefire also was a named plaintiff. Defendant Quicken made much of the fact that Haselton was the sole employee of the organization and alleged Haselton was simply an individual end-user filing suit. Haselton countered, and the court agreed, that Peacefire's filter-circumventing service, even if operated only by Haselton, was clearly an 'internet access service provider' within the meaning of the Act.
Unfortunately, other courts, and commenters, have often channeled their skepticism over the litigation intentions of a plaintiff into interpreting this broad definition narrowly. For example, the Gordon v. Virtumundo court's palpable disagreement with serial plaintiff Gordon's litigation intentions and strategy led it to reach to hold, contrary to the plain wording of the definition, that Gordon's multi-user internet email service was not a " a service that enables users to access ...electronic mail... offered over the Internet."
While they may be legitimate concerns over the capacity and legitimacy of serial plaintiffs' anti-spam suits, courts can address them without resorting to unnecessarily adjusting definitions in the statute. In Hypertouch v. Kennedy-Western University, for example, the court correctly recognized that an email service provider, even though small and providing accounts without charge, was nonetheless a 'internet access service provider.' As Eric blogged earlier, this court addressed its, and defendant's, concern that the plaintiffs allegations were inadequate and more properly addressed towards the actual marketing company in its ruling that plaintiff was an internet access service provider, but its claims were inadequate to survive a motion for summary judgment.
Posted by Ethan Ackerman at 01:29 PM | Internet History , Spam | TrackBack
October 14, 2008
September 2008 Quick Links, Part 3
By Eric Goldman
eBay
* Universal Grading Service v. eBay, Inc. More fallout from the National Numismatic v. eBay case--another lawsuit alleging antitrust and defamation because eBay designated some coin rating services as preferred and impliedly devalued others.
* Windsor Auctions v. eBay has been refiled in a new jurisdiction.
* Mehmet v. Paypal, Inc., 2008 WL 3495541 (N.D. Cal. Aug. 12, 2008). Upholding the consequential damages waiver in PayPal’s user agreement.
* A company's failure in the marketplace can drive up the value of its collectibles on eBay.
* Stelor Productions, Inc. v. Google, Inc., 2008 WL 4218107 (S.D. Fla. Sept. 15, 2008). In the lawsuit alleging that Google causes reverse confusion of Googles.com [warning: annoying music ahead], the plaintiff doesn't get to depose Sergey or Larry yet. Rose Hagan, Google’s long-time chief trademark counsel, is the lucky substitute.
* Lots of rhetoric in the Google/Yahoo ad syndication deal. Google’s advocacy website. Google Chief Economist Hal Varian explains why the deal won’t raise ad prices in the auction. Randall Stross weighs in.
* Google has changed course and now allows religious groups to advertise on the keyword “abortion.”
* Kubit v. Google Groups, 2:2008cv00738 (M.D. Fla. complaint filed Sept. 29, 2008):
I then would like to sue Google Groups for not removing the posts when I repeatedly asked them to for 2 years. I believe I am entitled to at least a small amount of compensation for the emotional distress and lost business income that has resulted from them allowing these posts to remain on their Google Groups, even though I offered them VERY solid proof that I do not have HIV. If they had stopped the posts when they first occurred, they would not have proliferated to hundreds of websites. I became suicidal for a period of time after the posts started. I incurred a lot of emotional pain and fear because of the posts and had to seek psychiatric and psychological help to get my life back together. I still suffer from fears of dating, living a public business life and trusting others.
Yes, this is a pro se complaint. Yes, it is preempted by 47 USC 230.
Marketing/Advertising
* NebuAd is dead (1, 2). Even so, the lure of intermediaries aggregating deep data about consumers for commercial purposes will never die.
* Is Gator/Claria dead?
* The EU passed a non-binding resolution against sexual stereotypes in advertising.
* Celebrity branded merchandise run amok.
Miscellaneous
* Valleywag: "The 5 most laughable terms of service on the Net." For more laughs, see Mark Lemley’s Terms of Use paper.
* Murakowski v. University of Delaware, 2008 WL 4104087 (D. Del. Sept. 4, 2008). This reminded me a lot of the Jake Baker case from the mid-1990s.
* The Virginia Supreme Court reversed itself on the Jaynes anti-spam prosecution, and Jaynes walks. Does Virginia routinely pass unconstitutional laws?
* Becker v. Toca, 2008 WL 4443050 (E.D. La. Sept. 26, 2008). Ex-wife's alleged delivery of "Infostealer" program to grab passwords from ex-husband could violate the ECPA, SCA and CFAA.
* Interesting article on ESPN’s exclusive distribution and bundling agreements with Internet access providers.
* Silly? Horrifying? A sign of the apocalypse?
Posted by Eric at 06:17 PM | Adware/Spyware , Content Regulation , Derivative Liability , E-Commerce , Internet History , Licensing/Contracts , Marketing , Privacy/Security , Search Engines , Spam | TrackBack
October 11, 2008
September 2008 Quick Links, Part 2
By Eric Goldman
Copyrights
* In the Harry Potter fair use case, the court declared that the Lexicon encyclopedia isn't fair use.
* The judge declared a mistrial in the Jammie Thomas case.
* Designer Skin v. S&L Vitamins has reached its denouement. Previous blog coverage of the case (1, 2). In the prior ruling, the judge denied the plaintiff damages for the copyright infringement. In the final ruling, the court enjoins cutting and pasting product shots but allows the defendant to recreate the product shots. Ronald Coleman has more here and here (noting that the court says that, per MercExchange, an injunction does not automatically follow from a finding of copyright infringement).
* Wired's 5 year retrospective on the RIAA's litigation campaign against file sharing.
Social Networking Sites, Blogs and Online Publishing
* J.S. ex rel. Snyder v. Blue Mountain School Dist., 2008 WL 4279517 (M.D. Pa. Sept. 11, 2008). Upholding student discipline for creating a fake MySpace page of principal. The school initially based the discipline on the student infringing copyright (by cutting and pasting the principal's photo) but this aspect of the case wasn't mentioned at all in the court’s reasoning.
* O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008). Two seventh graders make a video about killing their teacher, described as:
The slide show is essentially a dramatization of the murder of Mrs. [redacted]. The first slide photo states, "Mrs. [redacted] dies." Throughout the slide show there are photos of Plaintiff dressed up in a costume, depicting a woman meant to resemble Mrs. [redacted]. There is red text on each slide photo that describes the scene. One slide says, "Jelly Donut's knife: haha fat bastard. here i come!" In this same photo, the viewer can see a butcher knife lunging at Mrs. [redacted] character from the camera's point of view. The butcher knife is then laid on the fallen victim while the text reads, "hehehe. i'm a shank yoooooooooo!" At the end of the slide show, it reads, "your [sic] dead, BITCH! :D".
I think they thought it was funny, but no one else did. One of them posted the video to YouTube. It's unclear what happens to the poster, but the co-content creator was suspended and forced to transfer to another school for her eighth grade. In this case, her TRO request is denied, even if she didn't intend the video to be publicly distributed and even if the video was not a "true threat."
* Spanierman v. Hughes, 2008 WL 4224483 (D. Conn. Sept 16, 2008). Teacher who was fired for inappropriate MySpace communications with students can't sue the school.
* An encouraging update on the Lori Drew prosecution.
* Bill McGeveran on Facebook Beacon and legal liability.
* Good NYT article on the sociology of Facebook and Twitter.
* Sam Bayard on an interesting but confusing ruling from Montana on its shield law applied to anonymous online posters.
* Verdana Partners v. Giles. Online newspaper wins anti-SLAPP claim.
* Jardin v. Datallegro, Inc., 2008 WL 4104473 (S.D. Cal. Sept. 3, 2008). A litigant's taking down a blog post and its comments is not destruction of evidence.
* Nemet Chevrolet has appealed its 230 loss. Previous blog coverage.
* Do Facebook's anti-spam policies overregulate Facebook's power users?
Posted by Eric at 07:49 AM | Content Regulation , Copyright , Derivative Liability , Internet History , Spam | TrackBack
September 23, 2008
Carterfone and Open Access in the Digital Era Symposium, October 17
By Eric Goldman
On October 17, we are having a neat event at Santa Clara University. A brief word about the genesis. I don't normally travel in telecom circles but I went to a few events in the past year or so, and at these events the FCC's 1968 Carterfone opinion and the "Carterfone principles" were heavily invoked. It was clear that Carterfone was an important opinion and of continuing relevance today, but I was having a problem--it wasn't clear that the speakers were referring to Carterfone consistently. Instead, everyone seemed to have their own idiosyncratic interpretation of the case. So the idea was to get together a group of experts to see if we could try to work through the case's meaning and implications. This also gives us a platform to talk about Net Neutrality, optimal regulatory structures for network design, open access principles and a whole bunch of other interesting academic issues.
We have a terrific and eclectic group of speakers, but I am especially excited that the opinion's author, Nick Johnson, will be joining us for a keynote talk. It will be interesting to see how he and the group survey the opinion 40 years later. A brief marketing description is below the line. As usual, admission is free unless you want CLE (and even then, it's free in some cases). Please feel free to spread the word, and I hope to see you there.
___________________
Carterfone and Open Access in the Digital Era
Santa Clara University School of Law
Sponsored by the High Tech Law Institute and the BroadBand Institute of California
October 17, 2008
9 a.m. – 5 p.m.
The FCC’s 1968 Carterfone decision—celebrating its 40th anniversary this year—is frequently cited in policy discussions about Net Neutrality and open access, but there is little consensus about how its provisions should apply to Internet access providers and emerging communications technologies. This Symposium will gather leading telecommunications policy experts to explore the opinion’s implications—past, present and future—on communications policy. Nick Johnson, the former FCC Commissioner who authored the opinion, will provide the keynote address.
Attendance is free and open to the public. Five plus hours of CLE are also available to attorneys at HTLI benefactor firms and in-house counsel for free, to Santa Clara Law alumni for $50, and to everyone else for $100. Santa Clara Law is a State Bar of California approved MCLE provider.
For speaker information and to register online, visit
http://law.scu.edu/hightech/carterfone-symposium.cfm.
Posted by Eric at 03:51 PM | Internet History | 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.
* 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 07, 2008
July 2008 Quick Links, Part II (Non-IP Edition)
By Eric Goldman
Search Engines
* Google explains all of the ways that it reinterprets the actual search query provided by a consumer to deliver results for words the searcher didn't use. As I've said before, Google's intermediation makes it impossible for a judge to assume that a defendant's website was ranked based on the search terms selected by the searcher.
* In the vein of In re Yahoo, Google was hit with two class action lawsuits alleging that Google failed to disclose that AdWords ads were going to be placed on undesirable pages liked parked pages. See Levitte v. Google (complaint and Justia page) and RK West v. Google (complaint and Justia page).
* Google was denied attorneys fees in the long-running Parker v. Google case. Parker v. Google, Inc., 2008 WL 2600299 (E.D. Pa. June 30, 2008).
Wikipedia
* Defamation lawsuit against Wikimedia tossed per 230. I've been waiting for the actual ruling to do a complete writeup. If you see it, please pass it along.
* NYT: "Wikipedia Tries Approval System to Reduce Vandalism on Pages." Surprised?
Trespass to Chattels
* In the latest development in Oracle v. SAP/TomorrowNow, SAP has shut down TomorrowNow, the subsidiary that prompted the lawsuit from Oracle. The Second Amended Complaint expands the finger-pointing at SAP for supervising its subsidiary. Still unresolved: the size of SAP's check to Oracle, and possible jailtime for TomorrowNow folk.
* Thomas O'Toole: Illinois adds anti-scraping provision to its attorney discipline website to block Avvo's crawlers.
Marketing
* 50 Cent is back in court on another questionable legal theory (see our first deconstruction of his litigation tactics). This time, Taco Bell tried a quasi-ambush marketing stunt to get something for free that he thinks they should have paid for.
* Rebecca on the latest ruling in NetQuote v. Byrd, the "lead fraud" case. Also, the ruling has some interesting discussion about whether a competitor who clicks on a competitor's ads in AdSense is guilty of a tort of "click fraud." The court says not in this case.
* TRUSTe is converting from a non-profit to a for-profit company.
Porn
* ACLU v. Mukasey (I've lost track of the number of AGs who have been the named defendant in this lawsuit). The Third Circuit struck down COPA for the third time.
* PC Magazine: RIP Usenet, killed by the New York AG office's campaign against child porn traded on USENET.
Miscellaneous
* A bizarre article on "Internet trolling" in NYT Magazine. With its rambling and scattered discussion, I have no idea what the author defines as trolling. However, the article did bring to mind a much better 1994 article from Wired, The War Between alt.tasteless and rec.pets.cats.
* Steinbuch v. Cutler, 2008 WL 2622853 (E.D. Ark. July 1, 2008). The court denied a motion to transfer the long-running case to DC.
* If a caffeine-addicted blogger goes off about your business, it's risky to fight back.
* Mike Masnick: Keeping The Benevolent Dictators of Silicon Valley Honest
* Wed, Aug. 13, 1-2 Eastern time, David Donoghue, Evan Brown and I will be doing an ALI-ABA teleseminar about the latest developments in 47 USC 230. Details. Mention coupon code TSPV02EG and save $30.
Posted by Eric at 06:57 AM | Content Regulation , Internet History , Marketing , Search Engines | TrackBack
July 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 01, 2008
June 2008 Quick Links
By Eric Goldman
Trademarks/Domain Names
* Utah Lighthouse Ministry v. Foundation for Apologetic Information and Research, 2008 WL 22043807 (10th Cir. May 29, 2008). CMLP writeup. Nice 10th Circuit win for a gripe site against trademark infringement and cybersquatting. This case, plus the SKI VAIL case, indicate that the 10th circuit is making progress undoing the harm it created in the Australian Gold v. Hatfield case.
* Georgia has a new anti-phishing law (16-9-109.1) that acts as a para-trademark law. See my comments on the analogous California anti-phishing law.
* After initiating a trademark lawsuit against a consumer review site and soundly losing in court, Lifestyle Lift paid $17,500 to settle its own lawsuit and avoid claims for legal fees under Rule 11 and the Lanham Act.
* Marty reports on a German case saying that white-text-on-a-white-background is a trademark use.
* Update on the battle over the trademark registration for "SEO."
* Will TLD proliferation lead to a new open era in domain name administration, or will the resulting anarchy just reinforce that top search engine placement is the really important online real estate? It seems like the currently limited number of TLDs has some benefits from a bounded rationality standpoint, and those benefits will be lost in a cacophony of unknown TLDs.
Patents
* My colleague Colleen Chien has posted "Patently Protectionist? An Empirical Analysis of Patent Cases at the International Trade Commission" (forthcoming William & Mary Law Review). She empirically demonstrates that the ITC mostly involves disputes between two domestic litigants, making it a redundant battleground with federal district court but nevertheless an attractive venue for plaintiffs due to a number of procedural advantages. She makes a number of recommendations to eliminate the litigation gamesmanship offered by having parallel venues. Check it out.
Search Engines
* Udi Manber, chief algorithm keeper for Google, reiterates why it's silly for lawyers and judges to put too much legal emphasis on the relative placement of search engine results, saying "it's definitely the case that if you do the same search on a different cluster, you may get slightly different results at a given time. It's also the case that if you do the same search on different days you may get different results, because some of the results are things we indexed five minutes ago."
(Over)Regulation
* In response to an enforcement effort by the NY AG's office, several Internet access providers have blocked access to newsgroups that are putatively sources of child pornography. See the NYT story and the NY AG press release. In practice, this means wholesale takedowns of newsgroups that may have nothing to do with child porn. For example, Verizon is killing all USENET hierarchies except comp.*, misc.*, news.*, rec.*, sci.*, soc.*, and talk.*. Wired suggests this is the death of online intermediary freedom as conceptualized in 47 USC 230. Of course, 230 never protected intermediaries from criminal exposure for child porn, and this isn't the first time that an access provider has knuckled under to the NY AG's office. See the BuffNet enforcement action from 2001.
* Ohm, Paul. The myth of the superuser: fear, risk, and harm online. 41 UC Davis L. Rev. 1327-1402 (2008). A neat article on how regulators manufacture a fake bogeyman, the unbeatable "superuser," as a justification for expansive regulatory power.
* No evidence that data breach disclosure laws actually help reduce identity theft. Surprised?
* The FTC wants civil enforcement authority for spyware actions. Haven't they heard that the adware battle is already over...and they won?
Contracts
* Mark Radcliffe expresses concern about the ALI's proposed software licensing project on open source licenses.
* Sarah Bird on a messy contract lawsuit involving an SEO contractor.
Anonymity
* Tendler v. www.jewishsurvivors.blogspot.com, 2008 WL 2352497 (Cal. App. Ct. June 10, 2008). A subpoena request to identify a blogger doesn't support an anti-SLAPP cause of action.
* In the AutoAdmit lawsuit, Doe 21's motions to squash the subpoena and proceed anonymously were both denied. David Hoffman provides an update on the case.
Event Tickets
* Chicago has moved against eBay for reselling tickets in violation of its amusement tax law.
* The Ticketmaster v. RMG case ended with a default judgment granting a permanent injunction and $18.2M in damages.
General
* Vanity Fair: How the Web Was Won.
* Paul Levy blogs about a plaintiff's effort to bypass 230 by suing the authors of complaints about the vendor and then joining the consumer complaint site as a necessary party as a cost-increasing tactic.
* BusinessWeek on emerging technological tools to protect workers' attention against unwanted/untimely interruptions.
* Text message-savvy kids educate the North Carolina DMV about the meaning of the term "WTF," which was used on a license plate example on the DMV's website.
* I have one free pass to OMMA Behavioral in San Francisco July 21. First person to send me an email asking for the pass gets it.
Posted by Eric at 12:32 PM | Adware/Spyware , Content Regulation , Derivative Liability , Domain Names , E-Commerce , Internet History , Licensing/Contracts , Marketing , Patents , Privacy/Security , Search Engines , Trademark | TrackBack
June 03, 2008
May 2008 Quick Links, Part 2
By Eric Goldman
Copyright
* Google says it isn't settling the Viacom lawsuit (I don't believe it).
* Interesting juxtaposition: (1) Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates and (2) BusinessWeek ran a lengthy retrospective on Tanya Andersen's battle against the RIAA, including her beefs against the RIAA’s investigation and enforcement tactics.
* A music warez trader was convicted by a jury of criminal copyright infringement.
Online Contracts
* Juanda Lowder Daniel. Virtually mature: examining the policy of minors' incapacity to contract through the cyberscope. 43 Gonz. L. Rev. 239-269 (2007/08). This article addresses the very important issue of contracting capacity of minors. See my most recent post on that topic.
* Adelman v. Sparks Network (Cal. App. Ct. May 20, 2008). The Jdate online dating service allegedly failed to include required language (such as notice of a mandatory cooling-off period) in its user agreement. The court dismisses the plaintiff's lawsuit nonetheless because he was a happy customer who didn't suffer any damage.
* Tom O'Toole surveys some recent online contract cases. He offers the following conclusions: (1) Contract Terms Should Be Available for Review, (2) Clickable Buttons/Links Should Clearly Signal Assent, and (3) Humans Are Not Helpful.
* I realize this point would be better explored in a full blog post, and I suspect this point has been made in the academic literature (if so, I'd appreciate some cites so I can pass them along). The issue: how might the endowment effect explain consumer antipathy towards EULAs? Wikipedia says the endowment effect means that "people value a good or service more once their property right to it has been established." This observation occurred to me when I attended a ridiculously stacked panel at the ION Game Conference on "user rights" in virtual worlds. Many of the gripes/grumbles related to very common EULA provisions that simply overrode default law. It occurred to me that maybe part of the problem was that consumers assume the defaults are appropriate rights allocations granting them the "property" right, in which case they suffer a greater psychological loss when those defaults are varied than if different defaults were set. One obvious policy consequence: as part of the considerations when setting defaults, policy makers should include the psychological costs of varying the defaults. If the interaction between EULAs and the endowment effect hasn't been written about, it would make an excellent paper topic.
Other Topics
* A military court has said that distributing a hyperlink to child porn does not constitute criminal distribution of child porn. Tom O'Toole explains the situation.
* A.B. v. State, 2008 WL 2031388 (Ind. May 13, 2008). It seems like the digital age recipe for guaranteed trouble: 8th grader + hatred towards a school principal + MySpace. How many judicial cases are we going to see with this combination? This one involves some mean-spirited and profanity-laced comments about her principal made by a 14 year old girl on a private MySpace page accessible only by 26 students. The principal saw it only because one of the students gave a printout to the principal. The court concludes that posting to a private MySpace page doesn't satisfy the criminal standards of "intent to harass, annoy, or alarm" via the Internet.
* Doe v. Friendfinder Network, Inc., 2008 WL 2001745 (D.N.H. May 8, 2008). The court denied the plaintiff's motion for reconsideration on Friendfinder's 230 eligibility for the statement "Sorry, this member has removed his/her profile."
* Another "where are they now?" retrospective on dot com boom companies, ironically running in the Industry Standard (which wiped out in the dot com bust itself).
Posted by Eric at 11:56 AM | Content Regulation , Copyright , Derivative Liability , Internet History , Licensing/Contracts , Privacy/Security , Virtual Worlds | TrackBack
May 07, 2008
April 2008 Quick Links
By Eric Goldman
Anti-Gaming
* Even though Ticketmaster won its lawsuit, Minnesota overreacted to the Hannah Montana ticket crush by banning software to circumvent an online ticket allocation process. See Sec. 609.806. Check out the hyperbole in this press release! What's next? Are legislators going to make SEO a crime?
* Google modified its relevancy algorithm 450 times in 2007. And yet courts still cite to Brookfield for how search engines operate!
* The UK cracks down on shill marketing online. ClickZ: "Under the new [UK] Consumer Protection from Unfair Trading regulations, it will be illegal to "Falsely claim or create the impression that the trader is not acting for purposes relating to his/her trade, business, craft or profession," or to "falsely represent oneself as a consumer."" See also AdAge.
IP
* Speaking of SEO....the latest pathetic attempt to grab a generic term and trademark it? "SEO." Sarah Bird is on the job.
* Do student notes of a professor's lecture constitute copyright infringement? We may find out.
* Atlantic v. Howell. More on the "making available" theory of copyright infringement.
* Sarah Bird on registering copyrights in websites and blogs.
* A for-profit T-shirt listing the names of deceased Iraq soldiers sparks a publicity rights lawsuit.
General
* Bowen v. YouTube, Inc., 2008 WL 1757578 (W.D. Wash. April 15, 2008). The court upheld the forum selection clause in YouTube's user agreement.
* eBay is ending its promotion of third party live auctions. Maybe because of this loss?
* Rebecca blogs on SuccessFactors, Inc. v. Softscape, Inc., 2008 WL 906420 (N.D. Cal.), an odd case involving the Computer Fraud & Abuse Act and an "attack PowerPoint" allegedly sent by a competitor to its prospective customers.
* Kate Kaye writes about the new Internet industry lobby group, the "State Privacy and Security Coalition," designed to fight laws like the Utah Trademark Protection Act.
* Kevin Werbach, The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart, UC Davis Law Review, Forthcoming. An interesting paper applying "network formation" theory to show how the Internet came together as a unified network and how those unifying forces are under constant stress.
Posted by Eric at 08:52 PM | Content Regulation , Copyright , Internet History , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
March 02, 2008
Feb. 2008 Quick Links
By Eric Goldman
Advertising
* BusinessWeek: Monetizing social networking sites isn't as easy as everyone had hoped, clickthrough rates are through the floor (0.04%!), and ad proliferation on the sites is driving users away.
* Wilbur, Kenneth C. and Zhu, Yi, "Click Fraud" (January 2, 2008). This paper appears to argue that search engines can increase their profits by failing to disclose the true rate of click fraud on their network.
* In re Miva, Inc. Securities Litigation, 2008 WL 450037 (M.D. Fla. Feb. 15, 2008). This lawsuit alleges that Miva and some associated individuals understated or misreported Miva’s reliance on click fraud, spyware and third party distributors in its public statements and thus inflated the company's stock price. Last year, the court dismissed many of the allegations but let a couple survive. In this ruling, the court dismisses a few more defendants from some statements and lets the rest of the case proceed.
* Going-out-of-business sales are often just another scam. (HT ContractsProf). Note this is completely consistent with economists’ theoretical predictions of final-period behavior of trademark owners.
* Google's stock has lost $70B in market cap in 7 weeks. Oh darn. Clickz offers some theories about why Google's clicks are declining. Could lower rates of click fraud be part of it?
* Hal Varian, Google's Chief Economist, argues that Google's marketplace success is solely due to its "secret sauce" (i.e., the advantage of learning by doing) rather than any defects in the marketplace.
Spam
* Jaynes v. Virginia (Va. Sup. Ct. Feb. 29, 2008). By a 4-3 vote, the Virginia Supreme Court upheld Jeremy Jaynes' 9 year sentence for violating Virginia’s spam law.
* Silverstein v. Experienced Internet.com, 2008 U.S. App. LEXIS 3364 (9th Cir. 2008). Ninth Circuit dismissed a CAN-SPAM lawsuit for lack of jurisdiction when the defendants attest that they didn't send the message and aren't local.
Domain Names
* NSI has been sued for its practice of grabbing pre-registration domain names based on WHOIS searches. The complaint. Good luck defending those practices, NSI!
* Two more breathy articles about the economics of domaining from the New York Times and Network World.
47 USC 230
* Johnson v. Barras, 2007 CA 001600 B (DC Superior Ct Feb. 1, 2008). Court dismisses a lawsuit against a website for republishing a defamatory story per 47 USC 230.
* Yet another doomed lawsuit against MySpace for facilitating communications between an adult male and an underage female that led to sex. Sam Bayard's comments.
Pornography
* NY Lawyer (login required): "Defense Bar Sees Growing Practice in Internet Sex Crimes"
* A federal obscenity prosecution for publishing graphic short stories (without pictures) on the Internet? As Tim Wu says, "astonishing."
* The Utah legislature is considering entering the marketplace again, this time through a certification mark program for Internet access providers who are willing to combat porn. See HB407. Of course, the Utah legislature has had terrific success in the past creating successful new business opportunities that the marketplace has overlooked.
User-Generated Content
* Nick Carr: "What we've seen happen with self-regulating communities, both real and virtual, is that they go through a brief initial period during which their performance improves - a kind of honeymoon period, when people are on their best behavior and rascals are quickly exposed and put to rout - but then, at some point, their performance turns downward. They begin, naturally, to decay." Like, I think, Wikipedia.
* Slate on the top-heavy nature of contributions to Wikipedia and Digg.
* Christian Science Monitor: Teachers Strike Back at Students' Online Pranks.
* Sam Bayard on a motion to quash in the AutoAdmit case.
Reputation
* eBay no longer lets sellers leave negative/neutral feedback for buyers. This putatively stops sellers from retaliating against buyers who leave legitimate complaints, but it also skews the database towards only positive reviews, which ultimately undercuts its credibility.
* In India, where courtships remain very brief by US standards and grooms can be paid dowries by the bride's families, there is an emerging trend for brides to hire "wedding detectives" to ferret out the scoop on grooms and whether their representations are correct.
* Funny article on being a secret shopper for Consumer Reports.
* Dan Solove's book, The Future of Reputation, is now available online for free. Ethan's review of the book.
Patents
* Six years later, eBay finally buys it now: eBay v. MercExchange settles with eBay buying out some of MercExchange's patents and licensing others.
* Mike Masnick: "Psst! Patent Examiners Do Not Scale"
Copyright
* Mike Masnick: “Why We Should All Want Politicians Who Plagiarize.”
* Do Not Resuscitate...My Copyrights (funny).
Miscellaneous
* Citizen Media Law Project has a useful discussion on getting insurance for cyberlaw risks.
* People v. Fernino, 2008 WL 382348 (N.Y. City Crim. Ct. Feb. 13, 2008) (woman violated a no-contact order when sending a MySpace message to the person).
* Mike Masnick: "We Need A Broadband Competition Act, Not A Net Neutrality Act"
* A retrospective on some of the leading dot-coms from the 1990s.
Posted by Eric at 05:32 PM | Content Regulation , Copyright , Derivative Liability , Domain Names , E-Commerce , Internet History , Marketing , Patents , Privacy/Security , Search Engines , Spam , Trademark | TrackBack
February 21, 2008
Eric Menhart Backs Off CyberLaw Trademark Claim
By Eric Goldman
You may recall that last month we all had a good laugh over self-proclaimed Cyberlawyer Eric Menhart's trademark application for the term "CyberLaw" to describe his Cyberlaw practice. (In case it wasn't clear, we weren't laughing WITH him...). Despite his initial blustery defense of the application (which, as a reader noted to me, violated the First Rule of Holes), Menhart has now backed off his claim to own the term "CyberLaw." Instead, he has amended his application to seek a trademark registration only in his stylized CyberLaw logo. (Thanks to Tricia Bishop at the Baltimore Sun for calling my attention to the amendment and sending the copy). Unfortunately, I won't dare display the logo here because it would likely make me his next enforcement target; but you can see the design in the amended application.
With this amendment, I'm inferring that all of us--even Michael Grossman, the victim of Menhart's efforts to enforce his purported trademark rights in the term "CyberLaw"--are now free to use the term "Cyberlaw" for its dictionary meaning without fear of getting sued by Menhart. However, Menhart doesn't appear to have changed his tune about the merits of his initial application. Instead, the Baltimore Sun quotes him as saying that he amended his application because:
It was very clear that this was not going to be an academic argument, it was going to be more of a shouting match, and I didn't think it was worth my time to get involved in a shouting match with people that were going to shout louder and had more ammunition in their holsters than I had
Funny--I would have thought it wasn't worth his time because the application was completely unmeritorious.
What Eric Menhart might characterize as a "shouting match" is actually online word of mouth in action. (Note: the Baltimore Sun article incorrectly quoted me as saying that the blogosphere "gang-heckled" him. Actually, I said that we "gang-tackled" him, but the imagery of gang-heckling is perhaps nevertheless appropriate). Historically, it has been fairly rare to see bona fide public evaluations of a lawyer by his or her peers; that kind of reputational information was often well known among lawyers practicing in the geographic/doctrinal area and effectively unavailable to everyone else. Now, through the Internet, everyone--including Menhart's prospective clients--can easily find out what his peers think of Eric Menhart's choices, enabling this reputational information to have a much greater effect at rewarding or punishing marketplace participants as appropriate.
UPDATE: More coverage of this topic:
* Brett Trout
* Ron Coleman
* Sam Bayard
* Techdirt
Posted by Eric at 11:32 AM | Internet History , Trademark | TrackBack
February 14, 2008
Classic Article on "Cybermediaries"
By Eric Goldman
Mitra B. Sarkar et al., Intermediaries and Cybermediaries: A Continuing Role for Mediating Players in the Electronic Marketplace, J. COMPUTER MEDIATED COMMUNICATIONS, 1995
I've been working on my Brand Spillovers paper, which in part addresses the trademark legal principles that govern intermediaries including retailers and search engines. The Sarkar article is one of the most prescient and clear-sighted articles assessing the role of online intermediaries. In particular, it provides a terrific checklist of ways that intermediaries can provide valuable services to consumers and producers, thus continuing to add value to the distribution chain even as transaction costs generally decrease due to electronic mediation. This article is even more remarkable because it was written in the mid-1990s, at the height of cyberspace exceptionalism and at the time when conventional wisdom was that the Internet was going to create widespread disintermediation. A refreshing read, even today.
Posted by Eric at 11:09 AM | Derivative Liability , E-Commerce , Internet History | TrackBack
January 18, 2008
Who Owns "CyberLaw"(TM)? Eric Menhart, a DC IP Attorney, Thinks He Does
By Eric Goldman
Every now and then, we see comical efforts to claim trademark rights in common Internet-related terms. You might recall that the word "Internet" itself was once a trademark (see a list of registrants dated 1994); the term "listserv" is also a trademark that the owner is trying to preserve (bonne chance!), and Hormel has protested the use of its "Spam" trademark in connection with email. Typically, the trademark owner is trying to prevent the genericism of its trademark. Those battles are almost always futile, but I can see why they are fought.
The latest would-be-funny-if-it-wasn't-so-sad attempt to assert trademark rights in a common Internet term involves the term "Cyberlaw." But unlike the anti-genericism efforts, Eric Menhart--a self-described "recognized leader" in intellectual property--is seeking to fence in the generic term "Cyberlaw" to convert it into his own property. He has filed a federal trademark application (application 77341910) in the term "CyberLaw" for the following services:
Legal document preparation and research services for attorneys; Legal research; Legal services; Legal services, namely, preparation of applications for trademark registration; Consulting and legal services in the field of privacy and security laws, regulations, and requirements; Expert witness services in legal matters in the field of intellectual property and information technology; Providing a website that features information on the development of international law, regulations, legal policies, and legal practices in a manner that promotes global governance by all types of organizations; Reviewing standards and practices to assure compliance with intellectual property and information technology laws and regulations; Attorney services; Litigation services; Legal services, namely, trademark maintenance services; Copyright management; Copyright management consultation; Registration of domain names for identification of users on a global computer network; Arbitration; Arbitration services; Consultation in the field of data theft and identity theft; Intellectual property consultation; Intellectual property watch services; Licensing of advertising slogans and cartoon characters; Licensing of computer software; Licensing of intellectual property; Litigation consultancy; Mediation; Patent licensing; Preparing and filing incorporation papers; Providing information relating to legal affairs
He claims a priority date of Feb. 22, 2007. Mysteriously, his website displays the circle-R next to the term "CyberLaw" even though it's only a pending application (the application was just filed Dec. 1, 2007).
Fortunately, I'm 100% confident that the TM Office will reject this application because the term "Cyberlaw" has become a generic description for the law of the Internet and related fields--see the Wikipedia entry on the topic. In fact, the term "Cyberlaw" has been around over 15 years. I did a search in Westlaw's News Database and the earliest reference I found was a Macweek article discussing Jonathan Rosenoer's AOL "Cyberlaw" column--from 1992. I'm reasonably confident we could find earlier references. For example, I found a 1993 National Law Journal article ("A Shingle in Cyberspace: Lawyers Online Find Clients--and Some Risks" by Rosalind Resnick) that discusses the "burgeoning field of cyberlaw, those legal issues confronting the online world."
Unfortunately, the improbability of this trademark hasn't stopped Menhart from asserting his perceived rights against third parties. The EFF writes about one such demand against Michael Grossman, a Chicago attorney who runs a blog entitled "CyberBlawg." I'm wondering how many other people have been the unlucky recipient of a demand letter from Menhart asserting similar claims over "CyberLaw." Perhaps those demands will stop once the TM application gets bounced by the TM Office, but the harm done in the interim could be substantial.
One final observation (and I apologize in advance for any snarkiness here, but I know I'm saying what most of us are thinking). It's impossible to ignore that the trademark applicant is a lawyer claiming expertise in Cyberlaw. What kind of Cyberlawyer doesn't know that the term "Cyberlaw" isn't trademarkable for Cyberlaw services, *especially* not by one who claims a priority date of 2007?
Coverage from around the web:
* Boing Boing
* Slashdot
* Techdirt
* Dvorak
* Las Vegas Trademark Attorney (with a careful analysis of precedent trademark applications)
* Groklaw
* Freedom to Differ
* Lex Ferenda (finding a Cyberlaw reference as early as 1987)
* Likelihood of Confusion
* Your Name is My Business
* NameWire
* Life on the Wicked Stage
* Joho
UPDATE: The Baltimore Sun ran an interesting feature on Eric Menhart in 2004. The article notes some critics said that Menhart's "enterprising nature has led him into another pursuit that some people describe in harsh terms -- like 'extortion' or 'blackmail.'"
UPDATE 2: Mr. Menhart has blogged a response to EFF that reinforces that he really doesn't get it. Two unavoidable facts of life for him:
1) The PTO will bounce his TM application
2) If he ever attempts to enforce his purported trademark rights in "CyberLaw" again, he will be met by a buzzsaw of opposition from some very determined folks.
In light of these facts, most savvy lawyers would realize that the absolutely wrong approach is to dig in his/her heels.
Posted by Eric at 03:59 PM | Internet History , Trademark | TrackBack
November 16, 2007
The Victorian Internet
By Eric Goldman
Tom Standage, The Victorian Internet (1998). Find it at Half.com and Amazon
As you might infer, I'm not at the cutting-edge of reading books. I don't read that many books in general; and I tend to read books well after everyone is done talking about them. But I enjoyed this book so much, and it has aged so well over the past decade, that I thought it was worth a shoutout. One side bonus: given that the book is no longer a hot release, you should be able to get this book used for well less than $10.
The book discusses the history of the telegraph. The book explains the technologies preceding the telegraph, the battles between the inventors of the telegraph, the telegraph's role in spawning new technological innovations (and creating enormous wealth for some of those folks) and the ways that the telegraph did--and did not--change society.
Its thesis is that many phenomena we associate with a global electronic network first occurred in the 19th century, not the 20th, which has made our celebration of the Internet's novelty (a topic at its zenith in 1998 when the book was published) ahistorical. The book thoroughly delivers on this thesis. One particular anecdote really hammered this point home. The book talks about a telegraph-mediated "online wedding" that first occurred...before 1848. (Indeed, the book "Wired Love" was published in 1879 and an article "The Dangers of Wired Love" ran in 1886). Yet, numerous newspaper articles from the mid-1990s marveled at Internet-mediated weddings as if they were completely unprecedented.
More generally, the book broadly makes the case that some things never change. For example, the book describes the arms race between telegraph companies establishing pricing schemes to curb attempts to send more information at a lower cost, just to have telegraph senders coming up with new gaming strategies. The book discussed the paranoia of major institutions in response to telegraphy, including governments that sought to control the use of cryptography in telegraphy and newspapers that assumed that the telegraph would destroy their business. (In the latter case, the newspapers adapted and thrived in response to telegraphy). The book also described how the telegraph contributed to feelings of information overload.
The book ends on a bittersweet note. It observes that people thought that the borderless telegraph communication network would contribute to world peace by breaking down barriers to communication. It didn't. If anything, the telegraph played an important role in 19th century imperialism and contributed to some of the bloodiest wars in history. Similarly, 150 years later, many similarly romanticize how the Internet can make the world a better place. Perhaps the Internet is truly different from the telegraph in this respect, or perhaps, we are just ahistorically proclaiming the latest technology innovation as our savior. As the book says, "That the telegraph was so widely seen as a panacea is perhaps understandable. The fact that we are still making the same mistake today is less so."
From my perspective, the only thing "missing" from this pithy and efficient book was a more thorough discussion of how lawmakers reacted to the rise of the telegraph. I would like to know more about how 19th century regulators coped with--or, more likely, freaked out about--the technological assumptions changed by the telegraph.
It seems safe to assume that some legislators misunderstood the technological underpinnings of telegraphy. The book gives numerous examples of how people didn't understand that the telegraph sent only electronic signals and wasn't a teleportation technology, such as the story of a woman in 1870 who sought to "telegraph" sauerkraut to her son. Again, some things never change; in 2003, a member of the House of Lords had a similar misunderstanding about spam. [the exact quote: "Will the Minister explain how it is that an inedible tinned food can become an unsolicited email, bearing in mind that some of us wish to be protected from having an email?"]
In this vein, the book offered one possible explanation for Sen. Stevens' explanation that the Internet is a "series of tubes." [the exact quote from Wired: "the internet is not something you just dump something on. It's not a truck. It's a series of tubes. And if you don't understand those tubes can be filled and if they are filled, when you put your message in, it gets in line and its going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material."] Many telegraph operators built out a network of pneumatic tubes to move messages over short distances because this was quicker and more accurate for those messages. So perhaps Sen. Stevens was thinking of the telegraph when he referred to the "series of tubes."
The book was published before Western Union sent its last telegram. At the time I knew this represented the end of an important era, but after reading this book I better understand the significance of that event. Some day, someone will send the very last TCP/IP enabled http message...an event that will also probably pass with a whimper, not a bang.
Posted by Eric at 05:54 PM | Internet History | TrackBack
November 13, 2007
Geolocation and A Bordered Cyberspace
By Eric Goldman
I recently gave a talk on the general theme of the future of e-commerce, and I was allowed to take the topic in any direction. I decided to talk a little about the propagation of geolocation technology and its consequences for a borderless Internet. My notes from the talk:
______
A constant problem in Cyberlaw: the difficulties of authenticating users for age and geography. With respect to geography, in the mid-1990s, there was a strong belief that cyberspace was borderless. Examples:
* John Perry Barlow's 1996 Declaration of the Independence of Cyberspace
* 1997: ALA v. Pataki, where a state anti-Internet porn law (a baby CDA) was struck down as violating the dormant commerce clause. In that case, Judge Preska said: "Geography is a virtually meaningless construct on the Internet."
But there are ways to restore geographic borders to the purportedly borderless Internet:
1) Ask users to self-report. Users may want to self-report geography, especially in the e-commerce context where they want physical goods delivered or need to report their address to authorize a credit card purchase. But the law could force online actors to compel users to self-report geography and then act on the reported information. Examples:
* LICRA v. Yahoo. The French court envisioned that Yahoo could do 90% effective geographic authentication through a combination of IP address analysis and user self-reporting if Yahoo popped up windows asking users to self-report before being allowed to access the website.
* Alaska SB 140, an anti-adware law. To combat pop-up ads, the statute requires software vendors to display pop-up windows asking users to self-report geography.
A world with compelled requests for user self-reporting of geography would be a pop-up filled world constantly asking "where are you now? where are you now?" [see the analogous Verizon ad campaign] This makes user self-reporting undesirable, in addition to being unreliable.
2) IP address analysis. IP addresses are allocated on an International scheme. Yahoo used this scheme to display local ads, a fact noted in the LICRA court. IP address analysis can be more regional; for example, Google does geo-targeting on a more granular basis. Ex: if I search for "mercedes" in Google, I get local Mercedes dealers in the Bay Area. But IP address analysis is incomplete/imperfect.
So if the only geographic authentication tools were IP address analysis or user self-reporting, the Internet would remain more borderless than bordered. However...
3) Geolocation technology. In the future, Internet access devices will be coupled with GPS technology that will automatically report user geography. For example, many mobile phones already have GPS technology in them, and consumers use other mobile devices (e.g., Blackberries) that have geolocation technology. Inevitably, the boundaries between computers and these geolocated mobile access devices will dissolve, meaning that Internet access devices will be geolocated and will automatically self-report user geography as part of interacting with other online actors.
A geolocated Internet will have some benefits. Most obviously, ads can be geographically targeted in ways that can help consumers (i.e., a driver searching for gas can get ads from nearby gas stations). It will also enable other localized content where that matters (weather, directions, location of friends).
But a geolocated Internet will also enable governments to force online actors to "honor" the geographic information. Thus, states could legitimately enact state-specific laws and require online actors to customize their offerings for state residents. Governments could also use the geolocation information to created walled environments, including more highly filtered/screened content. We've already seen this in China and some other countries. In these situations, Internet users will have very different Internet experiences based on their geography. Thus, a geolocated Internet should contribute to the demise the Internet utopianism. Instead of bringing people together over a borderless network, a geolocated world reenables borders that will keep us further apart.
Posted by Eric at 05:44 PM | Content Regulation , E-Commerce , Internet History | TrackBack
October 21, 2007
Ticketmaster Wins Big Injunction in Hannah Montana Case, But Did the Public Interest Get Screwed?--Ticketmaster v. RMG
By Eric Goldman
Ticketmaster L.L.C. v. RMG Technologies, Inc., 2007 WL 2988403 (C.D. Cal. Oct. 16, 2007)
You may remember Ticketmaster's multi-year battle against Tickets.com over data aggregation and deep linking. Ticketmaster never got a solid win in that case, but here Ticketmaster successfully advances the same legal theories against someone gaming its allocation of tickets. Hannah Montana fans might cheer this ruling, but some of the court’s analysis makes this a troubling Cyberlaw development.
Introduction
This case involves what I'll call "ticket sniping"--the practice of quickly snapping up highly-sought-after tickets when they first go on sale and then reselling them at higher prices. When it comes to hot concerts--such as the upcoming Hannah Montana tour--Ticketmaster's price may be well below the prices people are willing to pay in the secondary market. Why don't event promoters use auctions or other dynamic pricing scheme to capture this upside on the first sale? I'm reminded of the odd pricing systems for IPOs--just like that market, perhaps Ticketmaster (as an intermediary) deliberately underprices below the market-clearing price to increase its profits.
In any case, initial ticket buyers from Ticketmaster can get an economic windfall, which naturally motivates people to game the initial first-come, first-served ticket allocation system. RMG was one such gamer. They developed software that helped its customers beat other buyers in the rush to get hot tickets. Ticketmaster sued RMG to stop their gaming activities; the court issues a preliminary injunction:
Copyright
The court says that RMG directly infringed Ticketmaster's copyright in its web pages by browsing them to test the operation of its software tool. Effectively, then, the court says that web browsing is copyright infringement. This isn't the first time a court intimated as much, but it's troubling every time we see it.
The court overlooks any implied license to browse because Ticketmaster's "browsewrap" on its home page (which says "Use of this website is subject to express Terms of Use which prohibit commercial use of this site. By continuing past this page, you agree to abide by these terms") acts as an express restriction on browsing, so any access in contravention of those terms constitutes copyright infringement.
One of the key Qs is how RMG's software differs from other search engine robots. The court skirts this Q, simply pointing to Perfect 10 v. Amazon as excusing the cache copies made by web users who follow search engine links. Of course, search engine robots make lots of other copies, and we think these copies are excused because the final presentation (the display of search results snippets) doesn’t infringe. The court doesn't address this at all.
The court also says that RMG is indirectly infringing based on a Grokster inducement theory because RMG's marketing said it's offering "stealth technology [that] lets you hide your IP address, so you never get blocked by Ticketmaster." This is a pretty expansive interpretation of copyright inducement because the marketing references IP address blocks, not copyright infringement, but it's very consistent with the court's moral condemnation of RMG's behavior.
Anti-Circumvention
The court says that website pages are protected by copyright, and the website