Technology & Marketing Law Blog

June 09, 2009

May 2009 Quick Links Part 2

By Eric Goldman

Blogs and Boards

* WSJ: Bloggers, Beware: What You Write Can Get You Sued

* j2 Global Communications v. Zilker Ventures, CV 08-07470 SJO (AJWx) (C.D. Cal. April 22, 2009). A consumer review website can putatively qualify for anti-SLAPP protection, but not in this case because the plaintiff established its prima facie case.

* Biggs Cardosa Associates Inc. v. Bradbury, 2009 WL 1508703 (Cal. App. Ct. May 29, 2009). Here's another one for all of you Rip-off Report fans. A former employee lost a jury trial (and was hit with over $100,000 of damages) for breaching a "non-disparagement" clause in his separation agreement by posting negative comments about his former employer and colleagues on a variety of online fora, including numerous posts on the Rip-off Report.

* Houston Chronicle article on a lawsuit against a website operator for a user post saying that a woman has herpes when she, in fact, does have herpes. She is claiming public disclosure of private facts. [Stupid Houston Chronicle expired the article and moved it to its archives, breaking a number of links throughout the web. Here's a short recap of the article.]

* Stengle v. Office of Dispute Resolution, 2009 WL 1138119 (M.D. Pa. April 27, 2009). The contract of an independent contractor government "hearing officer" was non-renewed because she blogged on the topics of her hearings, raising questions about her impartiality. As the court says in dismissing the resulting lawsuit from the hearing officer:

To reiterate, this Court fully recognizes the cherished right of free speech, as well as the commendable goals of the RA. But these cannot wash away the bona fide concerns that arise when a judicial officer elects to disseminate her opinions in cyberspace with little or no restraint. Because of her position, Plaintiff's attempts to qualify her stances as solely her own were entirely ineffectual. With particular jobs come certain precise responsibilities. In Plaintiff's case, one of these included avoiding even the appearance of bias via extra-judicial comments. Plaintiff's deep concerns about the special education issues and the resulting creation of her blog ultimately caused her to face a dilemma that she alone created. The choices she freely made thereafter led to her non-renewal, and as aforestated we do not find any of the Defendants' conduct actionable under the circumstances.

This case reminded me some of Richerson v. Beckon from last year.

* JuicyCampus redux: People's Dirt. Let the angst over anonymous online forums begin anew.

* Doe v. Ciolli, 2009 WL 1204361 (D. Conn. April 30, 2009). In the AutoAdmit lawsuit, the court rejected Matthew Ryan's (aka ":D") motion to dismiss for lack of jurisdiction.

* Facebook v. Power Ventures, Inc., 2009 WL 1299698 (N.D. Cal. May 11, 2009). Largely following the troublesome Ticketmaster v. RMG case, Power Ventures' motion to dismiss Facebook's copyright and DMCA claims was denied. (Other claims survived too). Comments from Jeff Neuburger and Tom O'Toole.

Miscellaneous

* Colleen Chien, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, North Carolina Law Review, Vol. 87, 2009

* Mazur v. eBay Inc., 2009 WL 1203937 (N.D. Cal. May 5, 2009) Class certification denied. My blog post on this case’s more troubling ruling about 47 USC 230.

* Riggs v. MySpace, Inc., 2009 WL 1203365 (W.D. Pa. May 1, 2009). Venue selection clause in MySpace user agreement upheld.

* Salter v. State, 2009 WL 1409484 (Ind. App. Ct. May 20, 2009). Saving pornographic photos of a minor to a CD does not constitute the "creation" of child porn, even though a new "copy" has been created.

* State v. Bell, 2009 WL 1395857 (Ohio App. Ct. May 18, 2009). MySpace chat sessions aren't MySpace "business records" for hearsay purposes.

* Forbes: the Hidden Costs of Privacy. This article has been written, and written again, many times in the last decade; yet the regulatory dynamics have not improved.

Posted by Eric at 10:35 AM | Content Regulation , Copyright , Derivative Liability , Patents , Privacy/Security , Publicity/Privacy Rights | TrackBack

April 21, 2009

Certain Approval Program v. Rip-off Report Update: Misappropriation Claim Dismissed

By Eric Goldman

Certain Approval Programs, L.L.C. v. XCentric Ventures L.L.C., CV08-1608-PHX-NVW (D. Ariz. April 13, 2009).

Yet another update on Rip-off Report litigation. In March, a ruling in Certain Approval Program v. Xcentric caused a minor stir. The plaintiff sought to amend its complaint against the Rip-off Report to add a claim for "misappropriation of name or likeness." Rip-off Report defended that the new claim was futile due to 47 USC 230. The court allowed the amendment, saying that the complaint had alleged enough facts that Rip-off Report was involved in the requisite activity to overcome 47 USC 230. Based on the plaintiff's allegations in its complaint, this was the correct ruling on a 12(b)(6) motion to dismiss, yet some commentators seemed to think this was a crack in Rip-off Report's litigation armor. I didn't see that ruling as a big deal. Instead, I wrote "This is not the first time that plaintiffs' allegations against Rip-off Report have survived the equivalent of a motion to dismiss, but getting further into the litigation process has proven difficult for plaintiffs."

Indeed, after allowing the claim, the court immediately granted Rip-off Report's 12(b)(6) motion to dismiss, saying that:

While the alleged conduct may or may not be immune from defamation liability, the necessary use of Plaintiffs’ names to identify them fails to state a claim upon which relief can be granted for misappropriation. No one could possibly think that Plaintiffs are somehow endorsing Defendants, and the count adds nothing to Plaintiffs’ defamation claims.

I'd like to think that this may provide a significant new defense against publicity rights claims when websites are making "commercial referential uses" of an individual's name, but a laconic ruling like this isn't likely to have much precedential weight.

Posted by Eric at 02:59 PM | Derivative Liability , Publicity/Privacy Rights | TrackBack

April 09, 2009

Boring v. Google Reconsideration Motion Denied

By Eric Goldman

Boring v. Google Inc., 2009 WL 931181 (W.D. Pa. April 6, 2009)

[I'm not quite sure why so many people are interested in this lawsuit. Maybe it's because of the oddly (and aptly?) named plaintiffs; or because Google is a defendant; or because Google Street View raises some interesting privacy issues. Whatever the case, this reconsideration ruling isn't all that interesting or significant, but I recap it here for completeness.]

You recall the Borings, a Pennsylvania couple that sued Google because Google's Street View captured and published their private driveway. In an opinion that showed zero sympathy for the plaintiffs, the district court judge dismissed the lawsuit back in February. Undeterred by the adverse ruling, the plaintiff asked the judge for reconsideration. Not surprisingly given the tenor of the initial opinion, the judge said no.

The plaintiffs appear to have abandoned their privacy and negligence claims. They asked the judge to reconsider their trespass to real property claim, arguing that a trespass claim does not require damages. The judge agrees with that proposition but rejects the reconsideration on a technicality (the Borings did not plead nominal damages in their complaint). The plaintiffs also asked for reconsideration of their unjust enrichment claim, but the judge rejected that as well because apparently they didn't point to any errors.

As a result, the case remains dismissed. Nevertheless, I suspect we haven't heard the last of this lawsuit.

Posted by Eric at 09:18 AM | Publicity/Privacy Rights , Search Engines | TrackBack

April 04, 2009

Republishing MySpace Post in Local Paper Might Be Intentional Infliction of Emotional Distress--Moreno v. Hanford Sentinel

By Eric Goldman

Moreno v. Hanford Sentinel, Inc., 2009 WL 866795 (Cal. App. Ct. April 2, 2009)

This is one of the most interesting cases I've seen in a while. Moreno was a UC Berkeley undergraduate who grew up in Coalinga, a small town in California's Central Valley whose attractions include a prison, a mental health institution and Harris Ranch, one of the most odoriferous spots on Highway 5. (Coalinga was also the site of a big quake in 1983). After revisiting her hometown, Moreno posted an essay, "An Ode to Coalinga," on her MySpace page. I have not seen the ode, but it was a 700 word essay that started "the older I get, the more I realize how much I despise Coalinga" and then made very negative comments about the town and its residents. Moreno apparently had a change in heart and took the essay down in 6 days. However, while it was posted, the Coalinga high school principal saw the post and submitted it to the Coalinga Record newspaper, which published it as a letter to the editor under Moreno's full name. The community response to the published essay was severe; according to the court, "Appellants received death threats and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, [the dad] closed the 20-year-old family business."

Moreno and some of her family members sued a variety of defendants for public disclosure of private facts and intentional infliction of emotional distress. The newspaper defendants were dismissed through an anti-SLAPP motion to strike, leaving the principal and the school district as the defendants.

The privacy invasion claim was easily rejected. Once Moreno posted the essay to an open-to-the-public MySpace page (even if only briefly), it was no longer private. As the court says, "the fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast." It also did not matter that Moreno did not use her last name on her MySpace page; the court says that her identity was readily ascertainable from her MySpace page (which included a photo)..

However, the intentional infliction of emotional distress claim wasn't ready to dismiss. The jury will get to decide if the defendants' conduct was extreme and outrageous. Personally, I would like to know more why the principal did what he did.

Observations about this case:

1) According to this article, the Coalinga Record editor who republished the essay was fired.

2) Although the newspaper publishers fortunately escaped liability on anti-SLAPP grounds, if they had republished the essay only online, it should have been an easy 47 USC 230 win.

3) You know the cliche: never post anything online that you don't want repeated on the front page of the newspaper. Proven true once again.

4) And on that front, I think some folks assume that they can "take back" Internet-published content by taking it down. As this case reinforces, in some circumstances there is no "do-over." As I describe in my talks on blogs and social networking sites, every time I hit the "publish" button, I'm betting my house. In this case, Moreno effectively bet her parents' house and business when she hit the publish button.

5) The court notes that a copyright infringement claim isn't in front of it. I wonder what the publishers' copyright liability analysis would look like. I suspect the copyright damages wouldn't be great, but I still wonder why the claim wasn't apparently brought.

6) This case provides more evidence that community members don't like to see their community disparaged. I'm reminded of the recent James Andrews kerfuffle. Andrews, a PR executive at Ketchum, was on his way to Memphis to make a presentation at FedEx about using social media when he Twittered "True confession but i’m in one of those towns where I scratch my head and say “I would die if I had to live here!”" That didn't go over so well with the FedEx folks following his Twitter account.

7) Nevertheless, I wonder if the violent and ostracizing community response to Moreno's post didn't in fact validate some of her critiques.

More on this case from Law.com and the Central Valley Business Times.

Posted by Eric at 06:47 PM | Content Regulation , Derivative Liability , Publicity/Privacy Rights | TrackBack

March 12, 2009

Rip-off Report Lawsuit Updates: Certain Approval Programs and Ecommerce Innovations

By Eric Goldman

Certain Approval Program v. Xcentric

Certain Approval Programs, L.L.C. v. XCentric Ventures L.L.C., 2009 WL 596582 (D. Ariz. March 9, 2009). I previously blogged about this case in November. This ruling is in response to the plaintiff's request to file an amended complaint, which Rip-off Report resisted on several grounds. Of particular interest is the plaintiff's desire to add a claim for “misappropriation of name or likeness." Rip-off Report responded that such a claim is futile due to 47 USC 230. The court rejected the futility argument at this early procedural stage, saying

Plaintiffs have alleged enough facts regarding Defendants' “creation or development of information provided through the Internet or any other interactive computer service” to make it plausible that Defendants are an “information content provider” for some content and therefore the CDA does not completely immunize Defendants.

This is not the first time that plaintiffs' allegations against Rip-off Report have survived the equivalent of a motion to dismiss, but getting further into the litigation process has proven difficult for plaintiffs.

The court didn't reach the issue, but it's also germane to the futility argument whether a "misappropriation" claim is even preempted by 230 at all or if qualifies as an "intellectual property" claim that is excluded from the immunization. Compare ccBill and Friendfinder.

Ecommerce Innovations v Doe

Ecommerce Innovations, L.L.C. v. Does 1-10, No. MC-08-93 (D. Ariz. Feb. 10, 2009). Thanks to Jeff Neuburger for calling attention to this case. In this case, a defamation plaintiff is seeking identifying information for an anonymous Rip-off Report contributor. The Rip-off Report initially fought the request, but the district court ordered Rip-off Report to comply because the plaintiff had established a prima facie case. The Rip-off Report responded that it plans to appeal the judge's order to the Ninth Circuit, and the district court has stayed the order pending the appeal (although I can't find any evidence that the appeal has been filed yet). As Jeff points out, an appeal by Rip-off Report may prompt the Ninth Circuit to articulate its standards for when plaintiffs can unmask anonymous defendants; it also could become a backdoor way to gauge the Ninth Circuit's attitude towards Rip-off Report in light of some ambiguous language in the initial Ninth Circuit Roommates.com opinion.

Posted by Eric at 11:54 AM | Content Regulation , Derivative Liability , Privacy/Security , Publicity/Privacy Rights | TrackBack

February 26, 2009

McGeveran on Facebook Beacon and Social Media Marketing

By Eric Goldman

Bill McGeveran, a law professor at University of Minnesota, has posted Disclosure, Endorsement, and Identity in Social Marketing to SSRN. The paper walks through Facebook Beacon and marketers' other efforts to take advantage of online word of mouth through social media. It's a surprisingly complex endeavor to parse the various harms putatively experienced by consumers and applicable legal regulations protecting against those harms, and McGeveran's paper navigates through the morass in a sophisticated but easy-to-read way. Facebook Beacon may be over as a cause celebre, but for reasons that McGeveran explains, online word of mouth marketing will undoubtedly play a big role in our future.

The abstract:

"Social marketing" is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers can send personalized promotional messages featuring an ordinary customer to that customer's friends. Because they reveal a customer's browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals' ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation-spanning from privacy to trademark and unfair competition to consumer protection to the appropriation tort and rights of publicity. This Article examines potential concerns with social marketing and the various legal responses available. It demonstrates that none of the existing legal paradigms, which all evolved in response to particular problems, addresses the unique new challenges posed by social marketing. Even though policymakers ultimately may choose not to regulate social marketing at all, that decision cannot be made intelligently without first contemplating possible problems and solutions. The Article concludes by suggesting a legal response that draws from existing law and requires only small changes. In doing so, it provides an example for adapting existing law to new technology, and it argues that law should play a more active role in establishing best practices for emerging online trends.

Posted by Eric at 10:16 AM | Marketing , Publicity/Privacy Rights | TrackBack

February 17, 2009

Google Street View Case Dismissed--Boring v. Google

By Eric Goldman

Boring v. Google, Inc., 2:08-cv-00694-ARH (W.D. Pa. Feb. 17, 2009)

You may recall the Boring case from last Spring. A Pennsylvania couple sued because Google's camera car drove up their private driveway and the resulting pictures were posted to Google's Street View. I thought the whole lawsuit was such a silly publicity stunt that I didn't think it was blog-worthy at the time. Apparently I'm not the only person who wasn't impressed with the suit, because the court didn't give the plaintiffs any benefit of the doubt and dismissed the lawsuit handily (without leave to amend).

Some highlights from the discussion:

Intrusion Into Seclusion. The court says that the plaintiffs did not allege facts supporting that the intrusion was substantial and highly offensive. To reinforce the point that perhaps the plaintiffs didn't experience much harm, the court points out that the plaintiffs didn't take advantage of Google's opt out procedure, plus they drew public attention to themselves by suing and by not redacting or suppressing their contact info in the court filings. I was a little troubled by the latter point, which seemed circular to me--plaintiffs bringing intrusion into seclusion lawsuits unavoidably thrust themselves into the public eye, whether they want to do so or not. This is especially true for anyone suing Google. As a result, it's not fair to hold that consequence against plaintiffs. (As an example of the unwanted publicity faced by privacy rights plaintiffs, consider Robert Steinbuch's experience as a plaintiff against Jessica Cutler). The court also skips over the legal nuances regarding why Google should get a free legal pass when it offers an opt out.

Public Disclosure of Private Facts. As with the intrusion into seclusion claim, the court says that the plaintiffs have not shown the disclosures were highly offensive to reasonable people, as evidenced by the fact that other people haven't opted out of Google's Street View. (An interesting argument on a 12b6).

Common Law Negligence. The court says Google didn't have a duty to the Borings, and it isn't willing to manufacture one.

Trespass. The court says that the plaintiffs' emotional damages were not proximately caused by the trespass.

Unjust Enrichment. The court (correctly, IMO) says that this is not an independent cause of action but is just a quasi-contract remedy.

Injunctive Relief. The court says that the plaintiffs failed to plead "a plausible claim for entitlement to injunctive relief." Which, I think, is one way of saying "not interested."

A clean sweep for Google, and the end (absent an appeal) of a silly lawsuit.

Posted by Eric at 04:41 PM | Publicity/Privacy Rights , Search Engines | TrackBack

February 16, 2009

Yahoo/Overture Sued for Search Results Snippets Containing Plaintiff's Name--Stayart v. Yahoo

By Eric Goldman

Stayart v. Yahoo!, 2:2009cv00116 (E.D. Wis. complaint filed Feb. 5, 2009). The Justia page.

Bev Stayart appears to be proud of her accomplishments. As the complaint recounts her credentials, we are informed that she has an MBA in finance, was a VP at an unnamed financial institution, is passionate about animals, participates in an online discussion forum where her "scholarly" posts have generated 17,000 hits in three years, and has written two poems about protecting seals that were published on Danish websites. I'm not quite sure exactly what we are supposed to glean from these facts, but if they are designed to establish that she has had a life-well-lived, then we might extend her some kudos for that. These facts--IMO, much less compellingly--also apparently support her allegation (para. 21) that her name has commercial value because of "her humanitarian endeavors, positive and wholesome image, and the popularity of her scholarly posts on the Internet." If 17,000 hits in three years creates commercial value in the author's name, then the Internet is filled with rock stars!

Perhaps more remarkable is that Bev Stayart claims she is the only "Bev Stayart" and "Beverly Stayart" on the Internet (para. 19), and it appears that she would like to keep it that way. Thus, she is seemingly taking the position that any reference to "Bev Stayart" and "Beverly Stayart" on the Internet must be referring to her and only her. That would be a neat trick if true because it could give her exclusionary power over every Internet reference containing those names, but I would be shocked if there is and has been only one Bev/Beverly Stayart in the entire world.

It's a little unclear from the complaint exactly what's going on to make Bev Stayart unhappy, but it looks like she ran into some cloaked search engine spam pages that referenced her name. For example, she searched for "Beverly Stayart" in Yahoo and got the following search result out of a total of 7 unique search results (surprisingly small number for a person with commercial value in their name):

Pm 10 kb Loading Cialas -- Online Pharmacy

Pm 10kb loading cialas january th, at: pm hi friends i met you

in the tim horton s on bloor st a few Sundays ago I ... on february

bev stayart on march th ...

chitosan-as-a-pharmaceutical-excipient.pills-n-health.cn/...

Incredibly, she then clicked on this search result (whoa!) and was taken to a page on mysharedvideo.com which had her name centered in a darkened movie screen and ultimately played an adult video. Her Norton software went crazy on the page (surprise!), suggesting malware was on the page.

She subsequently tried the same search (in both Yahoo and AltaVista) multiple times and got the same search results each time, which took her to other similar websites that all promoted adult entertainment. She also tried some searches with her name plus an erectile dysfunction drug's brand name and got similar results. Finally, she clicked on the .cn domain name in the search result (bold!) multiple times and was apparently taken to some type of splog pages. The fact that she repeated this search and clicked on the search results many times suggests a rare combination of self-interest and amazing--and undoubtedly unwarranted--confidence in her Norton software.

(Various is a defendant because it showed up as a result in the "related searches" feature of AltaVista and apparently provided spam pages that contain her name in the page title and post-domain URL).

Based on the foregoing, she alleges that Yahoo and Overture's display of the false snippets constituted Lanham Act false endorsement and false designation of origin and violation of Wisconsin's publicity rights statute and common law privacy rights.

There are two obvious problems with the lawsuit against Yahoo and Overture. First, if there is or has been even one other Bev or Beverly Stayart in the world, the plaintiff has a real problem proving that the online references were to her and not the other person. And, with all due respect to Ms. Stayart's lifetime of accomplishments, it would be ridiculous for her to argue that her name is so well-recognized that readers would assume that the references were to her instead of other folks with a common name.

The other major problem is 47 USC 230. Per 230, Yahoo and Overture are not liable for creating snippets of third party content, even if they create a false impression. See, e.g., Maughan v. Google and Murawski v. Pataki. Nevertheless, 230 is not a perfect defense because these claims are close to being "intellectual property claims" that would drop out of 230 coverage in some places. Lanham Act trademark claims are unquestionably IP claims, although I personally think Lanham Act false advertising claims are not. See, e.g., the Kruska case. Even so, irrespective of 230, I think the recent Heartbrand Beef v. Lobel's case suggests that search engines may not be liable for false designation of origin simply by presenting third party content.

Similarly, the WI publicity rights statute might be preempted by 230 even though there is more unanimity that publicity rights are IP; compare ccBill (preempted) and Friendfinder (not preempted). The common law right of privacy claim is almost certainly preempted by 230 in all jurisdictions.

One last tidbit that may help contextualize this case. Bev Stayart appears to be "CFO and Director of Business Development" for Stayart Law Offices, and her co-worker (and family relation?) Gregory A. Stayart is the lawyer in the case. (I had difficulty finding enough info about Gregory or the Stayart Law Offices to clarify the connection; that may have something to do with the fact that Gregory isn't licensed to practice law in Wisconsin). Sorry for the snarkiness, but I guess this is one way for Ms. Stayart to develop a law firm's business, especially in a down market like this.

[A favor: please take a look at the search results for "Stayart Law Offices" and let me know what might explain the widespread redundant distribution of Bev Stayart's resume information at mulitple no-name services. Is this what a typical reputation management campaign produces?]

Posted by Eric at 01:26 PM | Publicity/Privacy Rights , Search Engines | TrackBack

February 06, 2009

2008 Cyberlaw Year-in-Review

By Eric Goldman

It's a sign of my schedule that I'm just now getting to this, and this post will be more pithy than I initially conceived. This post recaps some of the Cyberlaw highlights from last year. Frankly, the two biggest stories of 2008 were the financial markets meltdown and the ascension of President Obama, neither of which have a lot of Cyberlaw angles. In light of those big developments, Cyberlaw in 2008 was comparatively quiet. However, there is still plenty of interesting developments to revisit.

Broad Themes

A few broad themes emerged last year:

* Ludicrous trademark claims. 2008 hardly had a monopoly on dumb trademark claims; those are perennial. But 2008 certainly saw some asinine entries, including putative Cyberlawyer Eric Menhart's claim to own a trademark in the term "Cyberlaw," Jones Day's efforts to claim that a web page referencing its name as the employer of some homebuyers violated its trademark rights, and putative Cyberlawyer John Dozier's claim that if his name is used as anchor text, the link must go to his website or it violates his trademark right.

* This was a good year for expansive readings and applications of user agreements. Some examples:
- the Lori Drew prosecution, where Lori was convicted of violating an agreement that someone else clicked through.
- Jacobsen v. Katzer, where a user of copyrighted material is bound by a contract that he/she never clicked through at all.
- AV v. iParadigms, where kids were not allowed to void a user agreement despite their status as minors (and despite the fact that some of them had no meaningful choice about whether or not to consent).
- JuicyCampus enforcement action, where the New Jersey Attorney General's office tried to treat a negative user behavioral restriction in a user agreement as an affirmative marketing representation that such user behavior would not occur on the site.

* One of the long-standing Cyberlaw memes is that websites must either be passive conduits to avoid liability or active editors to manage their liability, but if a website chooses the latter, the website is liable for any editorial mistakes. That is, if the website edits its site but misses something, it's fully liable for what it missed. This simply isn't true under 47 USC 230, which allows websites to choose to be passive, active or anything in between without varying liability. In the IP context, this passive v. active meme has had more traction, but 2008 saw two solid cases suggesting that if a website tries to police its premises and fails, courts will be sympathetic and excuse any omissions. Example #1: Tiffany v. eBay, where the court gave eBay extra credit for its VeRO program as a basis to excuse any counterfeit goods that slip through. Example #2: Io v. Veoh, where the court was more willing to excuse Veoh because it had undertaken extra policing efforts than was required for the 17 USC 512 safe harbor. Finally, although not an IP case, the court in Cisneros v. Yahoo also lauded search engines for their affirmative efforts to block gambling ads, which the court acknowledged was a hard challenge.

* Despite some adverse rulings early in the year, punctuated by the Ninth Circuit's en banc ruling in Roommates.com, the 47 USC 230 immunization is still extremely robust. We saw a number of expansive and pro-defense rulings per 230 throughout the year, including Craigslist, Doe v. MySpace, Cisneros v. Yahoo and Goddard v. Google. Perhaps more importantly, in the three 230 cases I've seen since Roommates.com that cited to the opinion, all three cited the opinion in ruling for the defense.

* Battles over keyword advertising are hardly over, even though Utah officially backed off its attempt to ban them. The ABA IP Section tried to get into the act, and American Airlines sued Google, settled, and then sued Yahoo.

Top 11 Cyberlaw Developments of 2008

#11: Utah Trademark Protection Act repealed. The Utah Trademark Protection Act had the potential to throw the entire keyword advertising business into turmoil. Instead, now that it's repealed, it just remains as a dramatic reminder of the Utah legislature's incompetence regarding Internet legislation.

# 9 and 10: Fair Housing Council v. Roommates.com and Goddard v. Google. The Roommates.com en banc opinion makes the list based mostly on its potential consequences, not its actual effect. It remains one of the most significant pro-plaintiff incursions into the solidly defense-favorable interpretations of 47 USC 230, but it's so riddled with contradictory and ambiguous language that no one really knows what to do with it. I think Judge Fogel's reading of the case in Goddard v. Google has the potential to become the defining interpretation of the case, and his solidly defense-favorable reading of the precedent in excusing Google for ads placed by its advertisers may only reinforce how little Roommates.com changed the law.

#8: AV v. iParadigms. This case was a terrific win for online fair use enthusiasts because the for-profit commercialization of a database of third party copyrighted works was still deemed fair use. The upholding of the contract against the minors forced to enter into it was also significant. Before this ruling, my assumption is that any plaintiff trying to form a class action lawsuit in the face of an adverse user agreement could always form the class on behalf of any minors who had the right to void the contract. This case seems to shut down that loophole in user agreement protection.

#7: Io v. Veoh. The 17 USC 512(c) safe harbor has been law for over a decade and has produced a couple dozen rulings, but few are cleaner and more decisive for the defense than this one. It was a textbook example of a court rejecting the many different arguments plaintiffs make to kick a defendant out of the safe harbor, and as mentioned before, it was a great validation for Veoh's decision to do more than 512 required.

#6: Jacobsen v. Katzer. From a doctrinal standpoint, this case raises really difficult questions about how a copyright consumer can be bound to terms that he/she never "assented" to. Even so, this case had huge implications because it effectively validated that open source licenses can be binding on licensees, giving much more legal credibility to the entire multi-billion open source software industry. However, an odd footnote: on remand, the district court denied an injunction for the plaintiff, raising more issues about what exactly the plaintiff won at the Federal Circuit.

#5: Tiffany v. eBay. A fantastic validation of eBay's practices against a very serious and sympathetic challenger who had plenty of evidence that counterfeit goods were being sold on eBay's site. The case also shows that courts can grow tired of IP owners simply making up their own rules about how online sites should protect them and then suing the sites for breaching these artificial rules.

#4: Mazur v. eBay. A more scary case to 47 USC 230 defense enthusiasts than the Roommates.com opinion. The court says that eBay isn't protected by 230 for some of the marketing representations it makes, even if those representations are rendered untrue by third parties. While this makes a lot of doctrinal sense, it is also a green light for plaintiffs to mine a website's marketing representations as a way to bypass the otherwise-fatal consequences of 230 on a lawsuit triggered by user behavior or content.

#3: Google Book Search settlement. This makes the list for two independent reasons. First, many folks were hoping the case would establish solid precedent on online fair use, and the settlement ended that hope. Second, the proposed Book Rights Registry has the potential to reshape a number of major industries, including the book publishing business, the book retailing industry and the library industry.

#2: the Lori Drew prosecution. I think this may have been the most polarizing Cyberlaw development of 2008, exposing deep divides in people's appetite for punishing bad conduct online. It's hard to assess the overall implications of her conviction because no one rallied to praise Lori Drew's choices, and her case is still a ways from a final legal outcome. However, the possible implications of the case were so complex that it took a special three part series for me to explore its nuances (1, 2, 3).

#1: Cartoon Network v. CSC (the "Cablevision" case). Boy, the more I think about this case, the more important it becomes. The case upends our assumption that if we see it online, it's fixed, creating a new class of unfixed electronic works. Also, the court treats the users, not the service, as making the requisite copies, which reinforces the possibility that online providers can be just "dumb technology providers" for copyright law purposes and reinvigorates the possible defense that a service provider's copying is just done as a proxy for its users. However, the Supreme Court's ambiguous response to the cert petition--not yes, not no, but a request to the Solicitor General for comments--leaves this decision in a precarious position.

Other Developments of Special Note

47 USC 230

* Doe v. MySpace. The Fifth Circuit soundly rejects the argument that MySpace had an obligation to police its “premises.”

* Craigslist. Judge Easterbrook's language in Doe v. GTE had given plaintiffs some hope that the Seventh Circuit would provide a friendly venue to plaintiffs trying to overcome 47 USC 230. Judge Easterbrook may still love his language (which he quoted extensively in the Craigslist ruling), but his practical and no-nonsense ruling for the defense squelches the hope that the Seventh Circuit will become a plaintiff's haven.

* New Jersey's enforcement action against JuicyCampus. State AG offices HATE 47 USC 230.

Affiliate Liability

* Impulse Media. A jury thumped the FTC's overly expansive views of affiliate liability for spam.

* NY v. Direct Revenue. A state judge emphatically rejected the NY AG's office's expansive views of affiliate liability for adware.

Trademarks/Domain Names

* American Airlines' lawsuits against Google and Yahoo. No one I know fully understands why American Airlines sued Google for selling its trademarks for keyword ads. No one I know understands what concessions Google gave to American Airlines to settle the case. And no one I know understands why American Airlines decided to sue Yahoo after procuring the Google settlement. It's all a big mystery.

* NSI's grabbing of domain names in response to WHOIS queries. Is there any better example of ICANN's failings to police domain name retailers than to have one retailer selling a scarce good grabbing the good exclusively (blocking attempted sales by all other retailers) when a customer merely inquires about it?

* Kentucky's attempted seizure of 141 gambling-related domain names. As I wrote before, "Is a domain name property? Yes. See the Sex.com case. Can a plaintiff seize a domain name pursuant to a favorable judgment? Yes. Is it appropriate for Kentucky to seize domain names for gambling websites available in Kentucky? Of course not, because this would effectuate an extraterritorial reach by curtailing non-Kentucky residents from making possibly legal uses of the domain name."

* Eric Menhart, a lawyer who claims to practice Cyberlaw, doesn't know that Cyberlaw is a generic term.

* New gTLDs. Maybe I should reserve this development for 2009...if it happens.

Others

* McCain complains about 512(c)(3) notices taking down his YouTube videos. Surprise! 512(c)(3) notices are unforgiving. Sen. McCain, now that you've had a first-hand taste of their power, maybe you'd like to revisit the statute to see if it's producing the right incentives?

* FCC's bust of Comcast. The pro-regulatory forces were queued up to pounce on any examples where an IAP violated Net Neutrality principles, and Comcast's chicanery in forging reset packets was impossible for anyone to defend.

* NebuAd's flameout. Behavioral ad targeting is in our future unless regulators stop it. NebuAd won't be the winning provider of targeting services, but legislators will keep trying to regulate it further out of existence nonetheless.

Posted by Eric at 05:50 PM | Adware/Spyware , Copyright , Derivative Liability , Domain Names , E-Commerce , Internet History , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Spam , Trademark | TrackBack

January 20, 2009

Outdated Whois Information Might Lead to False Light Tort--Meyerkord v. Zipatoni

By Eric Goldman

Meyerkord v. The Zipatoni Co., 2008 WL 5455718 (Mo. App. Ct. Dec. 23, 2008)

It's a late entry, but this opinion may be a dark horse candidate for the most bizarre case of 2008.

Meyerkord was a Zipatoni employee and listed as the registrant on domain names at Zipatoni's Register.com account. Meyerkord left in 2003. In 2006, Zipatoni ran an astroturfing viral campaign for Sony to promote the Play Station Portable at the domain alliwantforxmasisapsp.com. A BusinessWeek story on the campaign and the Urban Dictionary entry.

Unfortunately for Sony--and Meyerkord--the campaign did not go well. Bloggers and others got suspicious of the overly colloquial site, unmasked the astroturfing and decided to "out" the people involved. They pulled up the Whois records, saw the outdated information that Meyerkord was the registrant, and mistakenly assumed he was involved in the campaign.

The case doesn't get into the specific treatment of Meyerkord, but it seems logical to assume that he was subject to a blogger firing squad circa 2006, i.e., shoot first and ask questions later (I'd like to think the blogosphere would be a little more circumspect circa 2009, but maybe not). For example, the Consumerist has its own category tag for alliwantforxmasisapsp, and it awarded Sony the "Lucky Golden Shit" award for best "flog" of 2006. In this post, the Consumerist "outs' Meyerkord and calls him a "douchebag" (which, for reasons my aging brain can't comprehend, has become the modern derogatory term of choice) until they modified the post, striking out his name and recanting "he is an innocent bystander in this sordid affair." Oops...a little late for that, don't you think, Consumerist?

In response to this rough justice from the blogosphere, Meyerkord sued Zipatoni for the privacy tort of false light. The lower court dismissed the complaint for failure to state a claim. In this ruling, the appellate court reverses the lower court and remands the case to allow Meyerkord to file an amended complaint if he can allege that Zipatoni acted with actual malice.

While I can see why the court was sympathetic to Meyerkord for being falsely associated with an astroturfing campaign, in my opinion, Zipatoni's real negligence was its failure to keep its domain name records updated FOR THREE YEARS! I feel silly mentioning the obvious and well-known practice pointer that you should keep your Whois records up-to-date; and especially remove any former employees from Whois records. Not only does outdated Whois information pose a major security risk, but it could allow former employees to assert ownership over the domain. Now, keeping them on the record may be tortious to the former employee as well. In any case, for having a former employee listed on its domain names for three years, Zipatoni deserves whatever punishment they get.

One more oddity: alliwantforxmasisapsp.com now is a promotional site for Haagen Dazs ice cream. Huh? I presume Haagen Dazs bought the residual traffic from all of the links bashing the domain, but (1) the association between PSP and Haagen Dazs doesn't make any sense, and (2) I would have thought a big brand like Haagen Dazs wouldn't want the implicit taint of benefiting from an astroturfed website.

Posted by Eric at 07:08 AM | Domain Names , Marketing , Publicity/Privacy Rights | TrackBack

July 11, 2008

The Sex Tape Problem...and a Possible Legislative Solution?

By Eric Goldman

An inescapable fact of the digital era is that people will be depicted in digitized sex videos ("sex tapes") that they wish did not exist. Sex tapes can be classified into a variety of types:

* sex tapes of non-consensual sex. The taping may exacerbate the harm to the victim, but the non-consensual sex is already criminal--and the sex tape could provide valuable evidence to the prosecution to help convict the criminal. The consent issue gets trickier when dealing with underage participants who are legally incapable of consenting to sex, such as two underage teens who might jointly decide to tape their sexual encounter.
* sex tapes of consensual sex where one of the parties didn't consent to the taping.
* sex tapes where both the sex and the taping were fully consensual, but one of the parties exceeds the scope of consent about subsequent use or disclosure. Ex 1: sex partner keeps and watches sex tape after breakup in contravention of other party's wishes. Ex 2: sex partner distributes the tape to third parties who the other party didn't contemplate would see the video. In the most egregious case, the sex partner publicly distributes the tape via the Internet when the other party intended the video to remain private.
* sex tapes where the sex, taping, and further use or distribution are fully consensual among all depicted parties. I believe this describes some of the publicity hounds that deliberately leak sex tapes as a type of marketing for the depicted individual(s) (unfortunately, another seemingly inescapable fact of our lives), even if the depicted individual lightly protests about the distribution to increase the scandal factor. These don't raise a lot of interesting legal issues.

Public distributions of sex tapes are surprisingly common. Check out the long list of celebrity sex tapes at Wikipedia. A Westlaw search for the term "sex tape" in all state/federal cases yields 29 lawsuits reported in Westlaw (I'm sure there are synonyms that would reveal more litigation that has made it into Westlaw, and of course Westlaw covers only a small fraction of the cases).

From a legal standpoint, it's easy to offer some proactive suggestions for people creating a sex tape. One, don't make a sex tape unless you can fully control it technologically (or you don't mind if the tape becomes the most-downloaded video on the Internet). Of course, perfect technological control over digital bits may be impossible nowadays; for example, some of the celebrity sex tapes were allegedly leaked by computer repair personnel. Two, if you make a sex tape and don't fully control it technologically, clearly delineate with the other party/parties the disposition of the sex tape in various circumstances, such as breakup. From a lawyer's standpoint, a written contract would be nice.

(This last paragraph demonstrates a third immutable truth that I'm not oblivious to: proactive guidance about the production, control or distribution of sex tapes from a law professor is not that useful. But I digress...).

Unfortunately, once lawyers are brought in to deal with the non-consensual creation, use or distribution of a sex tape, they may not be able to do much to help the non-consenting party. Simply put, existing law provides poor controls for a non-consenting party. There is a long list of torts and crimes that MIGHT provide some control to the non-consenting party depending on the precise facts of the specific situation, including privacy rights (such as public disclosure of private facts), anti-child porn laws, obscenity, ECPA/wiretapping, copyright infringement, breach of contract, intentional infliction of emotional distress, cyberbullying or cyber-harassment and extortion (if the tape possessor makes a "do X or the tape goes up on YouPorn" type threat).

At the same, depending on the precise facts, it is also possible that the non-consenting party could have no effective recourse against a non-consensual public distribution of a sex tape. First, the laws simply may not fit the facts. Second, even if they do, some of the legal doctrines (such as privacy rights violations) are so "squishy" that they can be hard to enforce, and any criminal prosecution requires a prosecutor to actually take the case. Third, and most problematically, a sex tape posted online might quickly be reposted on multiple servers, including some overseas, exponentially increasing the costs, and substantially decreasing the likelihood, of successfully purging the tape from public view.

Meanwhile, the harm to the non-consenting party can be substantial. The sex tape be profoundly embarrassing to the party (even if the person didn't actually do anything "embarrassing"). The sex tape might provide forensic evidence of illicit adultery/cheating, and that could irreparably change social relationships. Finally, the tape can change the way people perceive the person. For example, a person may have economic or social prospects predicated on a wholesome image, such as beauty pageant contestants, in which case the tape can undermine that image and destroy economic prospects or social relationships.

I was recently discussing this issue with a colleague over lunch and we started kicking around the idea that maybe the sex tape problem would benefit from legislative intervention. Yes, in this limited circumstance for this specific problem, even I am willing to acknowledge that a new law might be worth considering. Our discussion covered two interrelated ideas:

1) It should be impermissible for someone to distribute a sex tape online without all depicted individuals having consented to the distribution. (We could easily extend that to offline distributions as well, but I'm just focusing on the problems of Internet publication now).
2) Intermediary online publishers should be subject to a DMCA-style notice-and-takedown scheme where a non-consenting party can provide suitably rigorous notice that the tape was distributed without his/her consent, in which case the intermediary has some time post-notification to remove the tape before facing further consequences. The notice-and-takedown scheme should also provide the poster with a counter-notification process that shifts the legal liability back to the poster and off the intermediary. Obviously, this requirement would need to override 47 USC 230. However, the notice-and-takedown scheme is essential to give the non-consenting party some effective recourse against the quick proliferation of a video to multiple sites.

I know these suggestion aren't perfect. Some of the obvious deficiencies:

* the definition of a sex tape. It's easy to define the paradigmatic situation, but there are a lot of edge cases that might be hard to resolve in a statutory definition.
* defining consent. Would written consent be required? If oral consent is enough, doesn't that open the door to lots of irresolute and time-consuming he-said/she-said factual disputes?
* the level of validation required for the takedown notice. We could just allow a person to claim identity and lack of consent, or we could require the person to go through some hoops before their takedown notice is effective.
* Constitutional considerations. Personally, I don't think these are especially problematic here, but they are always a consideration when regulating sexual material.

Finally, the most obvious problem is that this would proliferate yet another limited privacy law as a point solution to a specific problem instead of providing a more comprehensive omnibus privacy regulatory scheme preferred by privacy advocates. This would definitely be true, but the limited nature of the regulation and the remedies is a part of why this proposal appeals to me. If we are dealing only with sex tapes, and only requiring consent of the depicted individuals, the risks of plaintiff litigation frenzies, takedown spam and collateral content censorship goes way down, but still a particularly pernicious problem becomes much easier to solve.

So, what do you think? Comments are still down, but feel free to leave a trackback or email me and let me know if I can append your comment to this post.

COMMENTS:

From Colette (7/11):

I would advocate that the new law not only apply to on-line. The sort of law should cover dissemination of sex tapes (however defined) in any format (though the on-line medium is of course much worse because of the viral distribution options).

To the list of possible claims, in some circumstances you might have a defamation claim (e.g. if the sex tape editor/poster refers to the person depicted in the tape as a "porn star", but the person is not).

For the "getting/proving consent" (or perhaps the opposite: expressly stating non-consent) problem, the participants may fairly easily put their consent on the video itself. For most of the cases, that may work in place of a paper agreement re: consent. (One obvious problem of putting the consent on the tape itself, is make sure both (or all) parties have a copy of the tape, including the part of the tape that deals with the consent issue. In the real world, I can imagine that the party who is harmed may not keep a copy of the tape (it's old, from a long time ago, lost in moves, deliberately thrown out because s/he wants to put the incidence behind them). The other party who has it, could easily discard/delete the part of the tape where the "non-consent" is stated. Even if the harmed party expressly stated on the tape that s/he does not consent to distribution, that party would have no proof. Ahhh. This is why we lawyers wold prefer a written agreement. Much easier to track that down if it exists!

[Eric's response: I love it! From a legal perspective, it would be better if before the parties got frisky, they both looked into the camera and expressed their consent. Maybe something like "I consent to this video being posted to the web. Now, show me your &^%$!" Then again, this type of videoed consent to being videoed was instrumental in squelching Ashley Dupre's lawsuit against Girls Gone Wild.]

Posted by Eric at 10:38 AM | Content Regulation , Publicity/Privacy Rights | TrackBack

May 07, 2008

April 2008 Quick Links

By Eric Goldman

Anti-Gaming

* Even though Ticketmaster won its lawsuit, Minnesota overreacted to the Hannah Montana ticket crush by banning software to circumvent an online ticket allocation process. See Sec. 609.806. Check out the hyperbole in this press release! What's next? Are legislators going to make SEO a crime?

* Google modified its relevancy algorithm 450 times in 2007. And yet courts still cite to Brookfield for how search engines operate!

* The UK cracks down on shill marketing online. ClickZ: "Under the new [UK] Consumer Protection from Unfair Trading regulations, it will be illegal to "Falsely claim or create the impression that the trader is not acting for purposes relating to his/her trade, business, craft or profession," or to "falsely represent oneself as a consumer."" See also AdAge.

IP

* Speaking of SEO....the latest pathetic attempt to grab a generic term and trademark it? "SEO." Sarah Bird is on the job.

* Do student notes of a professor's lecture constitute copyright infringement? We may find out.

* Atlantic v. Howell. More on the "making available" theory of copyright infringement.

* Sarah Bird on registering copyrights in websites and blogs.

* A for-profit T-shirt listing the names of deceased Iraq soldiers sparks a publicity rights lawsuit.

General

* Bowen v. YouTube, Inc., 2008 WL 1757578 (W.D. Wash. April 15, 2008). The court upheld the forum selection clause in YouTube's user agreement.

* eBay is ending its promotion of third party live auctions. Maybe because of this loss?

* Rebecca blogs on SuccessFactors, Inc. v. Softscape, Inc., 2008 WL 906420 (N.D. Cal.), an odd case involving the Computer Fraud & Abuse Act and an "attack PowerPoint" allegedly sent by a competitor to its prospective customers.

* Kate Kaye writes about the new Internet industry lobby group, the "State Privacy and Security Coalition," designed to fight laws like the Utah Trademark Protection Act.

* Kevin Werbach, The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart, UC Davis Law Review, Forthcoming. An interesting paper applying "network formation" theory to show how the Internet came together as a unified network and how those unifying forces are under constant stress.

Posted by Eric at 08:52 PM | Content Regulation , Copyright , Internet History , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack

April 28, 2008

47 USC 230 Trifecta of Cases--Friendfinder, e360insight, iBrattleboro

By Eric Goldman

47 USC 230 cases have been coming at such a rapid clip that I've fallen behind. In this blog post, I'll catch up on three recent cases:

Friendfinder

Doe v. Friendfinder Network, Inc., 2008 WL 803947 (D.N.H. March 27, 2008)

This case involves the publication of a false user-supplied profile on adult dating/hook-up services operated by AdultFriendfinder and Various. Fake dating profiles have been the source of a fair amount of 230 litigation; see, e.g., the Anthony v Yahoo, Landry-Bell v. Various, Doe v. SexSearch, Barnes v. Yahoo, and of course the Carafano case. The Friendfinder case involves two allegations we haven't seen before: (1) when the plaintiff complained, the sites removed the profile but displayed the following message on the profile page: "Sorry, this member has removed his/her profile," which allegedly implied that the plaintiff in fact had authorized the page initially, and (2) portions of the fake profile had been displayed on third party sites as "teasers" to advertise the adult dating services.

The court quickly dismisses the defamation, intentional infliction of emotional distress and various soft tort claims per 230, even if the defendants affirmatively reposted the profiles and even with respect to pull-down menus used to help profile building. This opinion came out before the Ninth Circuit en banc ruling in Roommates.com, but taking Kozinski's disclaimers at face value, the discussion about pull-down menus should have survived Roommates.com.

The court also says that 230 protects the site-authored announcement on the removed profile because "the allegedly tortious nature of those statements proceeds solely from the association they create between the plaintiff and the content of the profile." This might be an important standard to help future courts determine when 230 governs allegations of false marketing representations predicated on bad user info.

The court takes a less defense-favorable direction regarding the right of publicity claim. In direct conflict with the Ninth Circuit's ccBill ruling, this court says that 230 does not preempt state IP claims. Personally, I think this court got the statutory construction right and the Ninth Circuit got it wrong. As this court correctly explains, a court cannot interpolate the word "federal" into 230(e)(2) if it uses intellectually rigorous statutory interpretation.

Having left open the state IP claims, the court (also correctly, IMO) says that a right of publicity claim is an IP claim while any other invasion of privacy claim (i.e., the other three prongs of Prosser's four privacy torts) is not.

The court also survives the plaintiff's allegation of a Lanham Act false designation of origin claim with respect to the use of the false profile in the advertising teasers. But why didn't the court examine the application of 230 to this Lanham Act provision, which arguably isn't an IP claim? I think the court considered the false designation of origin claim, as applied to a false endorsement, to be equivalent to a right of publicity claim, but it would have been nice for the court to unpack this assumption.

The litigation over teaser content raises a question that's been bothering me for some time--when is republication of user-supplied editorial content (in this case, the dating profile) as teaser content on third party websites legally governed as commercial advertising? Teaser editorial content is ubiquitous, but it also serves a marketing function that could (should?) be regulated by commercial advertising restrictions such as the right of publicity. Hey, if you're looking for a paper topic, I think this issue (use of user content in teaser content as a right of publicity issue) is a good one.

More discussion about this case: CMLP, Rebecca, Jeff Neuburger, John Leonard

e360Insight

e360Insight, LLC v. Comcast Corp., 2008 WL 1722142 (N.D. Ill. April 10, 2008)

e360 is an email marketer/alleged spammer. Comcast blocks their emails from getting to Comcast subscribers. e360 sues Comcast for a variety of torts. The court sweeps all of the claims away on a judgment on the pleadings per 230(c)(2), saying that spam filtering constitutes the blocking of objectionable content contemplated by the statute. Further, agreeing with the Kaspersky case, the court says that any good faith requirement in the statute is subjective, not objective, and e360 didn't plead any evidence of subjective bad faith. Case dismissed.

This opinion adds to the burgeoning caselaw under 230(c)(2) showing that it will crunch claims by anyone upset that their communications are being filtered. As applied to an IAP like Comcast, I think this raises an interesting angle in the net neutrality debate. If you're looking for a paper topic, it seems like it would be timely to recap 230(c)(2) jurisprudence and analyze its interplay with other speech-preserving doctrines (must-carry laws, Constitutional free speech restrictions, net neutrality, consumer protection requirements of disclosure, etc.).

iBrattleboro

Mayhew v. Dunn, 580-11-07 (Vt. Superior Ct. March 18, 2008)

This is a simple and clean opinion. The defendants operate the iBrattleboro.com website. A third party posted material to the website that allegedly harmed the plaintiff. The website operators get a judgment on the pleadings. Case dismissed. This is a nice illustration of 230 working exactly as it should. Some useful color on the case from CMLP.

Posted by Eric at 10:27 AM | Derivative Liability , Publicity/Privacy Rights , Spam | TrackBack

February 25, 2008

CaféPress Denied 230 Motion to Dismiss--Curran v. Amazon

By Eric Goldman

Curran v. Amazon.com, Inc., 2008 WL 472433 (S.D. W.Va. Feb. 19, 2008)

Erik Curran was a National Guard soldier who served in "a combat zone." For reasons unclear from this opinion, he was photographed by an unspecified photographer, and the photo (or photos) of Curran became widely republished. Erik is now suing numerous defendants for violations of his publicity and privacy rights based on these republications.

CaféPress is a defendant because third party users provided Curran's photos for republication on CaféPress-produced t-shirts. CaféPress asserts a 230 defense.

Superficially, 230 looks possible. The images were provided to CaféPress by third parties, CaféPress is a website, and 230 preempts right of privacy claims. I also think 230 probably bar right of publicity claims; even if the publicity claims are IP claims, they would still be state-based IP claims that should be preempted per ccBill.

Nevertheless, I'm a little confused about CafePress' 230 defense. Even assuming 230 facially applies, it should cover only CaféPress' web-based publications and not the vending of physical goods. (As discussed in the Accusearch case, it's possible that any vending by a merchant of record is outside 230's scope, even when the vended materials are just online data). Thus, CaféPress' shipment of physical space t-shirts with an improper image could be outside 230's scope. Perhaps CaféPress believes (much like Amazon did in the Corbis v. Amazon case) that the physical space sales are made by its users, not CaféPress. I could see a judge buying that argument, but if CaféPress is integrally involved in every aspect of the physical retailing, manufacturing and shipment of the impermissible items, it's not clear CaféPress can avoid liability for the non-cyberspace activities, none of which should be covered by 230. (In this sense, I believe CaféPress provides substantially more services to its third party "merchants" than Amazon provides its zShop merchants that were at issue in the Corbis case).

The court doesn't get into this nuance here. Instead, CaféPress argued that Curran's complaint had not alleged that CaféPress had created or developed the content at issue. The court says this argument is insufficient because "CaféPress relies upon the absence of facts not pled in the complaint and seeks to place the onus on the plaintiff to plead around affirmative defenses, which it need not do." I think the court is wrong about this--many courts have granted the 230 defense on a motion to dismiss based on incomplete allegations--but this may not matter in the end. The court adds that "plaintiff faces an uphill battle given the broad grant of immunity conferred by § 230, as interpreted in the seminal case of [Zeran]." But the denial of the motion to dismiss gives Curran a fishing expedition license and some time to parse through the liability associated with vending physical items.

One other interesting note. Curran also sued Amazon for displaying a book cover (from a third party publisher) that featured Curran without his consent. Amazon defended by citing the Almeida case, which dealt with an identical issue. In Almeida, the court sidestepped Amazon's 230 defense and instead held that Amazon wasn't liable because the book cover display was just incidental to Amazon's sale of the book. This court defers the issue, refusing the motion to dismiss as too early to make that judgment.

UPDATE: Michael Erdman's comments.

Posted by Eric at 10:33 PM | Derivative Liability , Publicity/Privacy Rights | TrackBack

December 10, 2007

Yale Reputation Economies Symposium Recap

By Eric Goldman

Reputation is a hot topic in Cyberlaw circles, so the Yale ISP conference on Reputation Economies in Cyberspace came at a propitious time. Some of my meta-observations from the talks.

1) We lack a uniformly accepted definition of reputation. During the conference, it was clear that most speakers were working with their own idiosyncratic definitions. Without a standardized definition, people can easily talk past each other.

2) Reputational systems are everywhere--FICO scores, letters of recommendation, Google PageRank, product review sites like Epinions, spam filters, employee evaluations, etc. I plan to catalog them in my next big paper. For now, Jonathan Zittrain gave two interesting examples: (1) British pubs are now taking patrons’ fingerprints and publishing a blacklist of rowdy pubgoers to other pubs, and (2) websites allow angry drivers to criticize bad drivers by license plate number.

3) We often treat reputation as a monolithic assessment (good or bad), but it is granular and contextual. Reputation systems need to reflect these nuances, and we’re seeing movement in that direction. For example, eBay is considering more granular feedback scores, which might entail different scores for product description accuracy and shipping speediness. However, increased granularity is subject to the accuracy/simplicity tradeoff—increased complexity improves accuracy but makes it more costly to participate in the system.

To overcome the accuracy/simplicity tradeoff and reduce collection costs, reputational data can be collected automatically. Bill McGeveran compared Facebook’s automatic collection of recommendations through Beacon with ratemyprofessor.com (a site I’ve critiqued before--1, 2, 3), where the communication costs discourage students from providing feedback unless they hold extreme views (i.e., love it/hate it).

Jonathan Zittrain suggested that people should be able to request that some information should not become part of their reputation. He gave robots.txt as an analogy; it is a voluntary standard that web publishers can use to keep content (that might have reputational implications) out of the search engines, which in turn significantly reduces its visibility. Although robots.txt is voluntary, it is widely followed. Jonathan thinks a similar voluntary system might be helpful for reputational data.

4) As noted by several speakers, reputation has economic value that can be converted into cash. For example, spammers have better delivery success—and thus make more money—if they can work with a high-reputation email address that is less likely to be blocked/filtered, and an seller with high feedback commands premium prices for his/her auctions. These payoffs create incentives for “bad guys” to capitalize on undeserved reputation, leading to the hijacking of high-feedback accounts and feedback-inflating activity (such the serial consummation of penny auctions) that can be used for a short but intense burst of fraud.

Bill McGeveran gave Facebook’s Beacon as another example of reputation’s selling power. In that case, Facebook and marketes are engaged in “reputational piggybacking” to get extra credit from the “recommending” user’s validation.

Because reputation has economic payoffs, we are tempted to provide property-like protections for reputation. Trademark law is an example of this in the commercial context. In contrast, with respect to individuals, damaged reputations can have significant non-economic harms that are not well-handled through property systems. Discussions about legal protection for reputations can get confusing when economic protectionism are conflated with these non-economic harms.

5) No reputational system will be perfectly accurate. Any system will have Type I and Type II errors. So how accurate must a reputational system be for it to be credible? We should assess this question by comparing a reputational system’s errors against the errors from alternative systems (or the absence of the system altogether).

A reputational system might be improved through more robust error correction mechanisms. Jonathan Zittrain gave the example of the Google News feature that allows a quoted individual to add comments right below the article. This reminded me a lot of Frank Pasquale’s asterisk proposal.

6) Reputational information is time-sensitive in that more recent reputational information is more useful to assessing reputation. Jonathan Zittrain proposed a concept of “reputational bankruptcy” where "old" information could be permanently suppressed because it is not useful to make future assessments. He analogized this to the time-based degrading of eBay’s feedback score, which segregates transactional information by date (i.e., 1 month, 6 month, all time).

More resources on this topic:
* notes from my talk
* my article on the intersection between online word of mouth and trademark law
* the collection of position papers from the event
* other recaps: the conference wiki, Jenny Ambrozek, James Grimmelmann, Aldon Hynes, Greg Lastowka, Andy Oram, Frank Pasquale (1, 2), Rebecca Tushnet (1, 2, 3, 4), Michael Zimmer

Posted by Eric at 10:27 PM | E-Commerce , Publicity/Privacy Rights , Spam , Trademark | TrackBack

November 26, 2007

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet: Ackerman's Review of Daniel Solove's Newest Book on Privacy and the Internet

My slightly incented [FN1] take on Dan Solove's most recent book: The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.

by Ethan Ackerman

Unfortunately, I have to advise against beginning to read this book late on a Friday night on a crowded subway car full of antics-heavy party-goers if you also have a cellphone camera in your pocket. Why? It's not the locale or the company, as Dan Solove begins his compelling second exploration of privacy on a crowded subway too - on the freshly dog-poop-messed floor of a Korean subway car, to be exact. No, it's because readers that are most of the way through the book can appreciate the situation's potential much better. Fortunately for my fellow Friday night riders (especially the guy who kept trying to play the jug on an empty bottle of malt liquor) I was already into Chapter Six that night. More than 130 pages in, I'd already heard tales of funnier, sadder, and more embarrassing moments recorded for public posterity. More importantly, I'd also been exposed to a significant chunk of Solove's excellent thinking on the nuanced impact on individual privacy that comes from a massively participatory Internet - where everyone can be a content contributor, where anonymity and obscurity are likely fleeting but consequences may be lifelong, and where many users' expectations and norms are still trying to adapt to previous technologies like cameras and newsprint.

It is this aspect of Solove's book - the deep AND wide thinking about an individual's interaction with the modern Internet - that moves the book out of the one-point-rigorous-analysis of an academic article and the semi-random anecdotal topicality of a blog post and into the category of critical (in the must-read sense) literature. Where Solove's previous work tackled the pressing but somewhat solve-able problems that arose from individuals losing control of their personal information to government and commercial entities, this book tackles individuals' loss of access and control of their information at the hands of other individuals - and, increasingly, by their own hand on blogs, social networking and image sharing sites of their own.

As Solove points out, this book is much more ambiguous and less proscriptive in its conclusions than his prior work. Reading the book is the best way to understand why Solove doesn't just say "do more 'x'," or "make 'y' illegal on the Internet," or "tech people about how to do 'z'," but Solove's reasoned reluctance to throw out lots of solutions (and the nuance of the few ideas he does suggest) seem to be the main sticking point with reviewers so far. While having my own suspicions and opinions on what might and might not (and what definitely does and does not) work about modern privacy protections, I have to agree with Solove on one of his main premises - it is equal parts impossible and vital to avoid over-censorship or under-protection when trying to simultaneously protect individual autonomy, speech and privacy. I'd have to agree with what I think Solove's ultimate aim is here - informing people and getting them to think more about privacy themselves. To put words in Solove's mouth, if everyone is more informed and thinks about these issues themselves, not only will any ultimate solutions probably be better, but they will also perhaps be moot, as more people will have chosen the non-problematic action in the first place.

Chapter Three may prove particularly interesting for some of the marketing and economics-analysis readers of this blog. Despite the fact that it looks like a well-written lay discussion of just what makes communication different on the Internet (it even innocently starts out with anecdotes about the Washingtonienne scandal), Chapter Three is an excellent stealth lesson in communications theory, information theory, and even an economics lesson about reducing transactions costs and capturing the benefits and harms of previous externalities. Solove could have titled this chapter "the long tail phenomenon of online talk." Though the chapter never says so in so many words, it discusses the impact of markedly reduced transaction costs of sharing AND recalling information. It uses network theory to explain how the connectedness of an information sharer still largely dictates information flow, and it also explores how the Internet has increased both the positive and negative externalities associated with information exchange.

My biggest beef is with a topic that pops up only briefly, once at the end of Chapter Two and again briefly in the conclusion: what might the future of privacy look like? More specifically, where are important trends taking us and in what ways may we consider privacy that we don't now? Solove's work dedicates page after page to the values and desires and social benefits that form our notions of privacy, and equally numerous pages to developments that alter and possibly enhance or diminish our privacy. But how about at least exploring alternate visions of what that may look like as time progresses? (Talk about reviewers wanting to have their cake and have it fed to them too.) The last two paragraphs of Chapter Two tease the reader with the idea that privacy may not even matter to future generations, a plausible idea that finds much support in the preceding pages. Yet, this meme is basically dropped until a brief resurrection in Chapter Eight, where it serves (in "Do people want privacy anymore") as a foil for Solove's convincing later argument that yes, people want privacy and they have a nuanced, non-binary view of privacy that changes, but does not necessarily diminish, with each technological change. How about a few pages on that dys/u-topian future where privacy doesn't matter - the utopian one where social acceptance and factual accuracy negate any need to 'hide' embarrassing facts and early learning mistakes, or the dystopian one where our warts and peccadilloes are now universally surveilled and broadcast, but still have sanctions and social stigmas associated with them?

[FN1] If there is only one thing for an author worse than a poor book review, it is probably no book reviews. While this problem wouldn't apply to The Future of Reputation, Dan Solove did a rather innovative thing to insure against it anyway. He offered free review copies to any mainstream blogger who would author a review, regardless of content. This review is in response to that generous offer.

Posted by Ethan Ackerman at 11:17 AM | Publicity/Privacy Rights | TrackBack

November 21, 2007

Search Redirection Tool Could Be Trespass to Chattels--Burgess v. EForce

By Eric Goldman

Burgess v. EForce Media, Inc., 2007 WL 3355369 (W.D.N.C. Nov. 9, 2007)

Every now and then a consumer goes on a me-vs.-the-world bender and decides to unilaterally save society by suing everyone in sight. Burgess' anger over unwanted advertising may have sparked such a campaign. His previous appearance on the blog involved his pro se lawsuit against American Express and many other major brand names for unwanted pop-up ads. In that ruling, the court intimated that advertisers could be liable for contributory trespass to chattels.

In this companion action, Burgess sued a number of defendants for spam. The court rejects his CAN-SPAM claim for lack of standing (he doesn't qualify for the limited private causes of action).

Burgess also sued for the installation of search redirection client software, claiming it was a privacy invasion, trespass to chattels, and "illegal conduct." The defendants first tries to dismiss the claims as preempted by CAN-SPAM, but CAN-SPAM's preemption clause does not apply to generally applicable laws like privacy invasions and trespass to chattels. Nevertheless, the magistrate report (approved by the judge) dismisses the privacy invasion claim for failure to state a claim, saying:

While the undersigned shares in plaintiff's frustration with the internet and the unconscionable applications that interfere with one's use and enjoyment of technology--and at times display offensive websites--frustration of purpose is not an invasion of privacy. Further, the undersigned cannot find any North Carolina case recognizing a cause of action for invasion of privacy based on computer viruses that redirect internet searches or inquiries, or any cases that would suggest that similar such conduct in other fields would support such a claim.

The "illegal conduct" claim was also dismissed.

On the other hand, building on Burgess prior ruling in state court, this court refuses to dismiss the trespass to chattels claim. Citing to Sotelo and others, the court says that Burgess' "pro se pleadings are not a model of clarity but nevertheless suffice to state a claim for trespass to chattels. He sufficiently alleges actual possession of his computer and 'unauthorized, unlawful interference' with his use of this personal property." So the Sotelo precedent marches on, even though this court (as with the prior Burgess court) doesn't acknowledge Hamidi, Mummagraphics or the other cases that would put these expansive trespass to chattels rulings in serious doubt.

As a result, Burgess' case lives to see another day. I'm sure we haven't heard the last from him!

Posted by Eric at 02:32 PM | Adware/Spyware , Publicity/Privacy Rights , Search Engines , Spam | TrackBack

October 28, 2007

Blogger Wins Lawsuit Over Gripe Post--BidZirk v. Smith

By Eric Goldman

BidZirk, LLC v. Smith, 2007 WL 3119445 (D.S.C. Oct. 22, 2007)

I have previously blogged about BidZirk v. Smith, a flagship example of how a pernicious and misguided plaintiff with a thin skin can ruin a blogger's life. Fortunately, even though the blogger handled the case pro se, the court saw the case's lack of merit and finally ended the case.

The case started when Smith blogged a lengthy post on his negative experiences with BidZirk, an eBay drop-off company. BidZirk struck back with a lawsuit claiming defamation, privacy invasion and trademark violations. After losing its request for a preliminary injunction, BidZirk appealed to the Fourth Circuit, which denied its request. Very messy discovery followed, with both parties getting chastised for their conduct. Finally, in this ruling, the court granted Smith summary judgment, and threw in some sanctions against plaintiffs' counsel to boot.

Specifically, the court said:

* calling BidZirk's founder a "yes man" was an opinion and therefore not actionable as defamation
* South Carolina doesn't recognize the false light invasion, and even if it did, nothing portrayed the plaintiffs in a false light. Further, linking to a photo published on a third party website does not constitute a publicity rights violation
* Smith was immune from trademark claims because his reference to BidZirk was in the context of news reporting or news commentary. Though the court doesn't equate bloggers and journalists generally, it gives Smith the same protection given to journalists
* BidZirk's attorney filed a lis pendens on Smith's condo, and the court sanctioned the attorney $1,000 because the attorney had no basis to claim a right against Smith's property

As a result, BidZirk's lawsuit should be over unless it makes the unwise choice to appeal to the Fourth Circuit (a distinct possibility given its past practices). But the really unfortunate part is that the court signalled that its disinclination to support the plaintiff's claims very early in the lawsuit. A rational plaintiff would have taken the hint then. Instead, the plaintiff wasted everyone's time, money and emotional energy pursuing a fruitless case.

Meanwhile, I'm not clear what, if any, of Smith's counterclaims are still outstanding. Perhaps Smith will get some additional remedy beyond the moral vindication and $1,000 in sanctions. But even if he does, there really is no way to correct the fact that the plaintiff consumed the last year and a half of Smith's life, forcing him to defend a lawsuit that was ridiculous and ill-conceived from the outset. (The court declined to award Rule 11 sanctions, saying it was a close call).

As the court says, "In essence, this is a case in which the Plaintiffs have sued Smith because he published articles on the internet critical of the Plaintiffs' business." Thus, on the surface, this appears to a cautionary tale to all bloggers that we live in peril of being dragged into court whenever we negatively critique businesses. Yet I see this ruling as a redemption of sorts--it takes a lot of courage to blog, and it takes even more courage for bloggers to stand behind their words when challenged, but we have a responsibility to make sure we can't be bullied on either front. On behalf of bloggers everywhere, we applaud Philip Smith's courage and determination to defeat this case.

UPDATE: Comments from the defendant himself, Philip Smith, as well as Sam Bayard.

Posted by Eric at 10:57 AM | Publicity/Privacy Rights , Trademark | TrackBack

October 24, 2007

Interesting Contract Interpretations in Eighth Circuit Fantasy Baseball Case--CBC v. MLB

By Eric Goldman

CBC Distribution and Marketing, Inc., v. Major League Baseball Advanced Media, L.P., No. 06-3357/3358 (8th Cir. Oct. 16, 2007)

You've already heard about this case, which held that MLB's right of publicity claim against a fantasy baseball league provider was barred by the First Amendment. Personally, I found that ruling only mildly interesting. The First Amendment defense to ROP claims is so squirrelly that I have no idea when we'll see it again, so the precedential impact of this ruling is unfortunately low. Instead, the court should have ruled that publishing player statistics in an online commercial database isn't a commercial exploitation (i.e., lacked the requisite "commercial advantage") of any player's publicity rights any more than publishing a book compiling such statistics would be. That would have been a more sensible ruling and would have provided a lot greater certainty for the future.

In any case, I think the discussion about the expired CBC-MLB contract is way more interesting than the right of publicity discussion. The court lays waste to the standard interpretation of at least 2 very commonly used contract provisions, and this provides a cautionary tale to drafters.

Representation/Warranty of Authority

The contract said that the licensor "represents and warrants that it has the authority to grant the rights licensed herein." Normally, this R&W is made as part of a series of ownership R&Ws--typically that the licensor (1) owns its licensed stuff, (2) has the right to grant licenses to the stuff, and (3) use of the licensed stuff won't infringe any third party rights. When these R&Ws are poorly drafted, they can be effectively redundant (i.e., a third party claim of infringement triggers all three R&Ws), but #2 does pick up two additional situations compared to #1: (a) where the licensor owns the stuff but has granted an exclusive license to a third party that would conflict with the newly granted license, and (b) where the licensor itself in-licenses stuff, in which case the R&W tests if the licensor has appropriate sublicensing rights.

Here, the court rejects the licensee's argument that the Players Association (the licensor) breached the R&W because it didn't have good title (because there were no enforceable publicity rights). Instead, the court reads the R&W as an R&W of agency--that is, that the Players Association is the agent of the players.

FWIW, personally, I rarely use R&Ws of ownership. Usually, I handle infringement risks solely through an indemnity. So I would be unlikely to encounter this issue in a contract I drafted. But I have seen this language hundreds of times in other contracts, and I believe the parties have always intended to ascertain the licensor's good title. As a result, this court seems to have completely misread this provision, and its interpretation jeopardizes the interpretation of the language in the many, many other contracts where it appears.

Declaration of Ownership

The court also interprets the language that the Players Association "is the sole and exclusive holder of all right, title and interest" in and to the players' names/statistics. I call this type of provision a declaration of ownership--typically intended to clarify the respective ownership rights between the parties. Personally, I hate these provisions, especially in licenses of public domain data. What does it mean to declare the licensor the "owner" of public domain data? And I've had way too many pointless/fruitless negotiations over the ownership about user data that are unquestionably hindered by the weak grammatical structure of such a declaration.

The Eighth Circuit gives us another reason to hate the declaration of ownership clauses. They say that "quite obviously" the language is an R&W of ownership, which the Players Association breached because, in fact, it didn't have enforceable right of publicity rights. So watch out for those declaration of ownership clauses--they could become an unintended backdoor warranty of ownership!

Enforceability of Post-Termination Restrictions

The MLB contract had provisions waiving a licensee's right to challenge MLB's ownership rights (the no-challenge clause) and restricting post-termination use of the data (the no-use clause). The no-challenge clause isn't that unusual in the trademark license context, but it's extremely aggressive with respect to licenses of public domain data. (I can't recall ever seeing it in a right of publicity license). The no-use provision is very common among licenses of public domain data. Without the clause, immediately after the license, the licensee will have an electronic copy of the data and can exploit it freely without paying for it, thus undermining the licensor's business model.

The district court struck down both clauses on public policy grounds. This was a sensible approach with respect to the no-challenge clause, which has the effect of precluding judicial oversight over dubious claims of ownership. As for the no-use clause, I'm reminded of the Listerine case and the survival of confidentiality restrictions in a trade secret license even after a trade secret has lapsed in the public domain. Normally we tolerate these trade secret restrictions that make the licensee worse off than if the licensee had never signed the contract in the first place. I'm not sure it's a good policy result, but it's well-established as a legal doctrine.

Whenever I did data in-licenses, I would always contractually preserve our post-termination ability to procure replacement data from other sources for this very reason (just like I always include a provision in trade secret licenses/NDAs removing the confidentiality obligations if the trade secret is in the public domain). My guess is that MLB was a real bear about such negotiations, so they probably would have resisted the inclusion of such a provision. But without that provision, there is a risk that the court would enforce the post-termination obligation in a way that effectively made the data licensor a monopoly supplier of the data in the future.

The court sidesteps all of this by finding the declaration of ownership provision was a warranty that the licensor breached and thus released CBC from the reciprocal obligations. This sure seems like a roundabout way to reach the result that CBC isn't contractually restricted from using public domain data. It would have been cleaner if the court would have categorically restricted such clauses on public policy grounds. Instead, because the court took this convoluted process, licensees of public domain data either have to (a) include sufficient warranties (or clauses that a court will misinterpret as a warranty) that will allow the licensee to escape post-termination restrictions on public domain data, or (b) as I always do, include a post-termination right to obtain the data from other sources, which is usually painful to negotiate.

Posted by Eric at 06:13 PM | Licensing/Contracts , Publicity/Privacy Rights | TrackBack

October 06, 2007

September 2007 Quick Links Part I

By Eric Goldman

Marketing

* From the NYT: There are 200+ auto repair shops in the "Iron Triangle" area in New York, and apparently they compete fiercely with each other, shouting out price quotes as cars needing repairs drive by. But according to one business owner, "Competition is fierce, but we got ground rules here for pulling in customers...For one, you got to stand in front of your own business. You can’t come and stand in front of my shop and steal my customers."

* Cowan v. Hotwire, LASC Case No. BC328621 (Los Angeles Superior Court complaint filed Feb. 10, 2005). I just found out about this case because apparently I'm a potential class member. The gist of the lawsuit is that Hotwire overpromised the hotel quality based on the star ratings assigned to specific hotels. Whether or not this lawsuit is meritorious, it's another reminder that companies need to precisely characterize their rating systems.

* You may recall the lawsuit over James Frey's A Million Little Pieces, a non-fiction story that was a little fictional. The case settled with a class remedy of a refund for book purchasers who went through a fairly complicated process. Care to guess how many purchasers tendered claims? Try 1,345--meaning about $20,000 of actual cash will go into the hands of "harmed" class members. Transaction costs to award this $20,000 of relief? Lawyers want almost $800,000, plus the costs to communicate with the class were about $335,000--in total, about $56 for every $1 of relief.

* In this article, I discussed how intermediaries would seek to mine a person's various methods of communication as source material for ad targeting (that is, unless the law restricts the intermediaries' ability to mine such data sources). The latest example? Pudding Media, which provides free Internet-based calls for the opportunity to deliver contextually relevant ads triggered by the contents of the phone call.

* The "perfect schwag"? One obvious option that didn't make the list...slinkies!

Intellectual Property

* We usually assume that copyright owners won't license their content to critics seeking to disparage them; hence, fair use is needed to permit such critical secondary uses. But a counterexample from the NYT: Naomi Klein licensed the Canadian "National Post" to display excerpts of her book alongside a critical review. There is some evidence Klein didn't know the hatchet job was coming, but even if she did, would it have been a bad choice on Klein's part? Not necessarily. See this study showing that even a critical New York Times book review lifts sales.

* Chang v. Virgin Mobile USA (D. Tex). See the NYT article on this case. Virgin Mobile allegedly downloaded photos from Flickr to use in an advertising campaign without getting publicity consents from the individuals depicted. This is a lawsuit by one of the depicted individuals. I'm very surprised by this apparent oversight because most ad agencies are thoroughly aware of publicity rights issues. Maybe someone mistakenly thought that Flickr's Creative Commons license extended to publicity rights?

* Freecycle Network, Inc. v. Oey (9th Cir. Sept. 26, 2007). Defendant does not make a trademark "use in commerce" when his actions were not "made to promote any competing service or reap any commercial benefit whatsoever."

* WSJ: "Web-Address Theft Is Everyday Event"

* WSJ: Some franchisors are loosening restrictions on franchisees’ ability to make independent choices.

Posted by Eric at 10:10 PM | Copyright , Domain Names , Marketing , Publicity/Privacy Rights , Trademark | TrackBack

June 20, 2007

The 4th Amendment in your inbox

By Ethan Ackerman

While the 4th Amendment gets litigated more often than, say, the 10th Amendment, it is still rare when a court finds federal law unconstitutional for inadequately protecting a 4th Amendment interest in email's privacy.

Earlier this week, the 6th Circuit in Warshak v. US did just that. Largely agreeing with amici briefs filed by law professors and the Electronic Frontier Foundation, the 6th Circuit ruled that "A [government] seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to" a 4th Amendment violation - notwithstanding the statutory language.

The case arose out of a wire/mail fraud investigation into Warshak's personal and business activities. Federal agents obtained an order issued under the Stored Communications Act (SCA) directing Warshak's ISP to produce account information and email contents. Importantly, the order found (as the SCA required) that there were "reasonable grounds to believe" the emails were "relevant to a criminal investigation." The order was not, however, a full "probable cause" warrant.

Warshak learned of this surveillance one year later when he received the SCA-required notice letter (270 days after the SCA required it to be sent) saying his emails had been searched. Warshak promptly requested that the government stop searching his email without a warrant or notice, but the government declined to commit to stopping. As a result, Warshak sued, alleging that warrantless searches of email violated his 4th Amendment rights. The District Court and 6th Circuit largely agreed.

Having concluded that the government had mostly complied with the SCA in its searches, both the District Court and the Sixth Circuit nevertheless insisted on a 4th Amendment analysis. They had little trouble concluding that people "maintain a reasonable expectation of privacy in e-mails that are stored with, or sent or received through, a commercial ISP." This is a "well duh" conclusion to most Internet users, but interestingly, relatively few Courts of Appeal have made this Constitutional analysis. Why? It's not due to courts' laziness or aversion to Constitutional holdings, but it reflects that the federal statutes for the most part actually track Constitutional protections. So, arguably, this case reflects a rare circumstance where government searching complied with statutory law, but not the 4th Amendment.

Because the SCA protects some emails, most email cases never reach the 4th Amendment; a case can be decided based on the statute. (This is easier said than done in practice, as the SCA is a dense, detailed and specific statute.) For example, in a recent high-profile example, US v. Councilman, the 4th Amendment was effectively invisible. However, lurking in these cases is whether the 4th Amendment protection requires more than the statutory protections - especially as amendments (like the Patriot Act) have pared back the protections or standards in these statutes.

For more on the court's actual 4th Amendment analysis, read the opinion or this summary. In short, the court had to resolve whether the applicable data was (1) the type routinely disclosed to 3rd parties, in which case there was no 'reasonable expectation of privacy' and a subpoena was sufficient authorization, or (2) the contents of communications fully protected by the 4th Amendment, which requires the government to obtain a probable cause warrant. It concluded the data was the latter.

From this (wholly unbiased, disinterested, dispassionate - honest!) viewer's opinion, this case highlights the weakness of having statutory provisions attempt to protect Constitutional rights. Here, the relevant provisions were produced by political compromise, not an effort to implement the 4th Amendment. The Court of Appeals opinion subtly acknowledges this in its discussion of the Supreme Court's Berger case, pointing out that early wiretap statutes had the exact same inadequate "reasonable grounds to believe" standard that forced the Berger court to similarly overrule those statutes. It's always nice to see a rigorous analysis from an actual user's perspective.

ERIC'S ADDITIONAL COMMENT: Among other things, this case is a sobering reminder of how government actors sometimes zealously pursue their objectives without regard for appropriate safeguards. The Sixth Circuit's opinion is bristling with hostility towards the government's post hoc attempts to justify its behavior. In this respect, we're lucky that the judiciary "has our back," but it's still chilling--and sad--to consider the efforts Warshak had to go through to get very basic and rather obvious protections.

Posted by Ethan Ackerman at 06:52 AM | Publicity/Privacy Rights | TrackBack

June 12, 2007

AutoAdmit Fiasco Turns Into a Lawsuit--Doe v. Ciolli

By Eric Goldman

Doe v. Ciolli, 307CV00909 CFD (D. Conn. complaint filed June 11, 2007)

AutoAdmit is a message board for law students and related groupies. It's a relatively untamed corner of cyberspace. The site owners have espoused a relatively ideological view that they don't remove user posts, which has contributed to a rough-and-tumble site with lots of inappropriate and juvenile postings.

The site has been well-known in legal education circles for a number of years, but it crossed over to widespread national prominence with a Washington Post article in March discussing how some law students had been harmed by posts on AutoAdmit. The article starts out:

She graduated Phi Beta Kappa, has published in top legal journals and completed internships at leading institutions in her field. So when the Yale law student interviewed with 16 firms for a job this summer, she was concerned that she had only four call-backs. She was stunned when she had zero offers.

The article then points the finger at AutoAdmit, blaming it for her lack of job market success.

Things generally have gone downhill from there, contributing to the relatively unusual situation where one of the site operators had his law firm job offer revoked. But now the heat has been turned up even higher with a lawsuit against a number of the posters to the AutoAdmit site. This is a very messy situation, so let me try to offer some (I hope) relatively innocuous observations:

1) I suspect the law students whose aliases were named in the complaint had that sickening stomach-liquefying feeling when they realized they were being sued. Being sued is an expensive and scary process.

2) The facts aren't entirely clear, but I believe the plaintiffs aren't trying to hold defendants liable for postings they didn't make. Of course, 47 USC 230 would likely bar most/all of such claims (although after Roommates.com, who knows how far 230 goes?), so it appears that the plaintiffs are wisely steering away from that trap.

3) I think the plaintiffs face some very significant causation issues here, at least with respect to the defamation claims that aren't per se libelous. For example, the plaintiff with 16 interviews and zero offers will have to connect the dots to show the online postings caused or contributed to this result. This doesn't sound very easy at all, and it creates the opportunity for the defendants to pick over the plaintiff's life and qualifications with a fine-tooth comb to show that there were other explanations for her lack of success. In all likelihood, this means more embarrassing revelations for the plaintiff; compare the public disclosures that Robert Steinbuch faced by bringing his lawsuit against Jessica Cutler.

4) I wonder if the judge will consider the message board's wide-open and infantile nature when evaluating the postings. Some of the postings cited in the complaint were, in context, so over-the-top that I can't imagine any reader giving them serious credibility. For an analogous circumstance where the judge recognized the contextual silliness of some remarks, see DiMeo v. Max.

5) This lawsuit could be very divisive in the legal education community. In one corner, free speech and personal/professional autonomy; in the other corner, intolerance for harassing and discriminatory behavior (especially by professional school students, like law students) that can seriously harm the professional opportunities and personal enjoyment of other students. These conflicting norms aren't new, but they tend to divide groups into camps that have a hard time finding a middle ground.

6) Although the defamation and related claims will get most of the attention, the copyright claim seems more pernicious--the postings might be covered by fair use [update: see Rebecca's take], but otherwise the defenses against copyright infringement are narrower and less squishy than the defenses against the other personality harm claims.

HT: WSJ Law Blog.

UPDATE: Eugene has a number of interesting observations.

UPDATE 2: David Lat recaps and summarizes the discussion.

Posted by Eric at 11:57 AM | Content Regulation , Copyright , Derivative Liability , Publicity/Privacy Rights | TrackBack

June 02, 2007

Steinbuch v. Culter Update: Cox Out, Cutler Bankrupt

By Eric Goldman

Two updates in the always-interesting Steinbuch v. Cutler case.

1) Steinbuch v. Cutler, No. 05-970 (D.D.C. May 16, 2007). Ana Marie Cox, the Wonkette blogger--who was brought into the suit merely for linking to the allegedly tortious blog--was dismissed from the case on statute of limitation grounds.

2) Jessica Cutler has filed for bankruptcy. Not only has this resulted in a stay of the case, but after chasing Cutler in court for the past 2 years, Steinbuch apparently is going to learn first-hand the meaning of the term "judgment-proof defendant." The full text of the minute order:

MINUTE ORDER: In view of Defendant Jessica Cutler's notice of her Chapter 7 bankruptcy petition filing in the United States Bankruptcy Court in the Northern District of New York, this case is automatically STAYED pursuant to 11 U.S.C. Section 362. Signed by Judge Paul L. Friedman on 6/1/2007. (mm)

Posted by Eric at 02:31 PM | Derivative Liability , Publicity/Privacy Rights | TrackBack

April 18, 2007

Judge Kozinski Talks About Cyberlaw

By Eric Goldman

Last October, Judge Alex Kozinski of the Ninth Circuit chatted with me in my Cyberspace Law course for 75 minutes. If you listen to the recording, you'll hear Judge Kozinski's humorous thoughts on receiving gifts when he speaks (he auctions them on eBay), selling on eBay (he's very proud of his feedback rating), blogging (he hates bloggers--told me that right to my face at breakfast after I told him I was a blogger) and being a judicial male "superhottie," as well as a less spirited discussion about the law of virtual worlds and the Sex.com case (it's hard to pin down sitting judges on substantive legal doctrines). Hope you enjoy the interview.

Posted by Eric at 04:05 PM | Domain Names , Publicity/Privacy Rights , Virtual Worlds | TrackBack

March 01, 2007

February 2007 Quick Links

By Eric Goldman

* The California Highway Patrol (which, for reasons unclear to me, has investigatory power here) has concluded that the Angelides campaign did not break any laws when they reverse-guessed URLs on Schwarzenegger's website and found an unrestricted page with a video of the Gov wondering about Assemblywoman Bonnie Garcia's "hot'' temperament because of her mixture of "black blood'' and "Latino blood'' and referring to Assembly Republicans as a "wild bunch." The CHP did recommend that Schwarzenegger's team tighten up their website security. Silly reminder: if you really want keep information a secret, don't put it on a website without password protection.

UPDATE: Greg Haverkamp points me to this document, which explains that the CHP has enforcement power over Penal Code 502 violations involving state computers. Interesting. In my mind, I see Erik Estrada revving up his PowerBook to bust some baddies...

* Voda v. Cordis Corp., 2007 WL 269431 (Fed. Cir. Feb. 1, 2007). Patent owner can't litigate infringement of foreign patent rights in US court as part of supplemental jurisdiction over a US patent infringement claim. Patry's writeup.

* NYT on how YouTube indirectly motivates teens to deliberately do stupid things just for the opportunity to post them and perhaps get notoriety. I had a first-hand observation of this when I trolled through YouTube looking for a Listerine commercial that I might show in class while teaching a case involving Listerine. A search for the word "Listerine" in YouTube produces video after video of people doing stupid things with Listerine, like eating big stacks of their breath film or snorting the breath spray and then writhing in pain. Watching video after video of people repetitively doing stupid stunts, I felt like shouting to these people: "IF YOU'RE GOING TO DO SOMETHING STUPID ON YOUTUBE, AT LEAST BE ORIGINAL!"

* From Steve Bryant at eWeek: Shannon Stovall sues Yahoo for including her photo in Yahoo's welcome email, claiming Yahoo violated her rights of publicity/privacy to the tune of $10M compensatory damages and $10M punitive damages.

* Digg users may mark content they don't agree with as "spam." The most recent example is Danny Sullivan's post on SEO, which got Dugg and then was eliminated when anti-SEO Digg users flagged it as spam. If a website defers content grading to its users, it has to trust that they are reporting their feedback accurately. If they aren't, the whole user grading process breaks down. And speaking of breakdowns, there is an active secondary market for Digg votes--check out how Annalee Newitz bought front page placement on Digg for about $100.

* The always-colorful Chris Hoofnagle has released a new paper, "The Denialists' Deck of Cards: An Illustrated Taxonomy of Rhetoric Used to Frustrate Consumer Protection Efforts." By his standards, I suspect I've dealt a full house with some of my rhetoric! Now, I wonder if he's going to create a complementary deck for bogus rhetorical tactics used by consumer protection "advocates"?

* From the EFF: "Debbie Foster, a single mom who was improperly sued by the RIAA back in 2004 for file sharing, has won back her attorneys' fees." Capitol Records v. Foster, No. 04-1569-W (W.D. Okla. Feb. 6, 2007). Unfortunately, that hasn't stopped the plaintiff from advancing nonsense arguments in the case, including the specious argument that a computer owner is automatically responsible if third parties use the computer to infringe copyrights. Fred at the EFF rightly debunks this argument.

* Wikipedia article: "Wikipedia is Failing." Your perspective about success or failure may be influenced by the impressive traffic gains that Wikipedia is experiencing--Wikipedia is now one of the top 10 most trafficked websites. Most of that traffic is coming from Google.

* Doe v. Josef Silney & Assoc., No 07-04167CA15 (Fla. Cir. Ct. complaint dated Feb., 13, 2007). Golfer Fuzzy Zoeller sues an alleged vandal of his Wikipedia page for defamation and related torts. Fortunately, he left Wikipedia out of the suit. However, he only knows the IP address of the person who modified the page, and that IP address is registered to the defendant. Is owning the IP address enough to establish liability? Or is this like an RIAA blunderbuss sue-first, ask-questions-later approach? It seems like the lawsuit should have been against a Doe, with a subpoena to find out who actually edited the page using that IP address.

* US v. Twombly, 2007 U.S. Dist. Lexis 12664 (S.D. Cal. Feb. 22, 2007). A spammer challenges some criminal provisions of CAN-SPAM as vague and overbroad, but the judge has no problems reading the statute to facilitate sending spammers to the slammer. Venkat's writeup.

* CDT groks (and mostly bashes) a variety of online kid-protection bills proposed in Congress.

* From the NYT: Nancy Pelosi posted some videos from C-SPAN to her blog. The Republicans immediately attack her for "pirating" the videos. Turns out that those videos were actually recorded by the government, so they are in the public domain. Whoops! The Republicans had to issue a mea culpa retraction. However, Nancy did grab a C-SPAN-owned video elsewhere which she had to take down. If our legislative leaders can't figure out what video they can recycle, how in the world can less-trained lay people do so? Patry has more.

* A bearish view on domain name speculation from CircleID. I share the sentiment that domain names don't matter, so domaining and typosquatting strike me as a short-term arbitrage opportunity that inevitably will be mooted by a variety of forces. Thus, the idea of paying 40 or 60 years worth of revenue for a domain name is laugh-out-loud funny to me.

* The Long Tail notes that some brands, trying to build a more esoteric image, try to hide their ownership by mainstream mass-market brands, a phenomenon he calls "brand dis-synergy." Examples: Dagoba Organic Chocolate, Joseph Schmidt, Cacao Reserve and Scharffen Berger chocolates (all owned by Hershey) and Converse (owned by Nike).

* Veritas busted for manufacturing revenues via round-tripping with AOL (Veritas bought AOL ads and AOL bought Veritas software; each at inflated prices).

* What does "or" mean? According to the 8th Circuit, it can mean "and." Ken Adams is on the case.

* Ricky Hoggard Holman, a 18 year old high schooler in Sudbury, Canada, correctly blogged all 24 of the American Idol finalists. How? Online research, such as researching the MySpace pages of contestants and emailing their MySpace friends. He also talked to some of the booted final 40 contestants, a few of whom broke their punitive-laden confidentiality agreement to dish some dirt. Maybe he wasn't studying, but clearly he's learned a few things about the power of good old-fashioned research. (The article says he's a straight A student, so he clearly can balance many things). Nice job, Ricky!

Posted by Eric at 12:03 PM | Content Regulation , Copyright , Derivative Liability , Domain Names , Licensing/Contracts , Marketing , Patents , Privacy/Security , Publicity/Privacy Rights , Search Engines , Spam , Trademark | TrackBack

February 18, 2007

Steinbuch's Second Battlefront Against Cutler Shut Down

By Eric Goldman

Steinbuch v. Cutler, 2007 WL 486626 (E.D. Ark. Feb. 7, 2007)

Everyone's favorite blog law case, Steinbuch v. Cutler, spilled over to a second front. While the lawsuit over Cutler's blog posts continues in DC, Steinbuch initiated a lawsuit against Cutler and her publishers over the publication of her book, The Washingtonienne. Steinbuch has moved to Arkansas to take a law faculty position, so to make everyone else's life difficult, he sued for privacy violations in a federal court in Arkansas.

In this ruling, the court has little difficulty dismissing the claims for lack of jurisdiction. No one other than Steinbuch is located in Arkansas, and Steinbuch moved there after the publication date (thus, under the single publication rule, the continuing publication in Arkansas doesn't count for specific jurisdiction). Hyperion, the book's publisher, didn't make a marketing push in Arkansas, and sales--both by Hyperion and by Cutler from her website--have been anemic (see below), i.e., consistent with Asahi stream of commerce. HBO has optioned the book for a possible TV series, but they haven't committed any privacy violations yet. Plus, in all cases, the book is fictionalized, so it's not entirely clear that any Arkansan would recognize the book as a privacy violation. Finally, the corporate parents of Hyperion and HBO are too attenuated from this lawsuit simply by owning another defendant.

As a result, the court says what everyone knew all along--that the proper venue for this lawsuit is DC, where the blog-related litigation is ongoing and where all of the witnesses are located.

While this is yet another embarrassing judicial development for Steinbuch (this time, the embarrassment is seeing a law professor's motion being so soundly thumped), it's also embarrassing for Cutler and Hyperion that very few people are buying Cutler's book. As part of showing that they are not doing business in Arkansas, Cutler and Hyperion sheepishly admit that there haven't been a whole lot of sales. According to the opinion, "at least four copies of the book have been purchased here, forty-six copies were sold to retail or wholesale accounts, and two books were purchased from the internet....Arkansas has not proved to be a lucrative market for Cutler's book, and the evidence shows that the book's minimal distribution is diminishing." Let's see, 52 copies at an MSRP of $24 = less than $1,250 of gross revenue from the entire state of Arkansas. Ouch!

I'm also intrigued that HBO is thinking about developing the book into a TV series. Maybe they will call it "Sex in DCity"?

Posted by Eric at 12:50 PM | Publicity/Privacy Rights | TrackBack

November 21, 2006

Griping Blog Post Leads to Lawsuit--BidZirk v. Smith

By Eric Goldman

BidZirk, LLC v. Smith, 2006 WL 3242333 (D.S.C. Nov. 7, 2006)

Despite all of the hype about blog law, the reality is that we've had comparatively few blog-specific lawsuits. As a result, we give extra attention to the early disputes (like this one) as possible predictors of what's to come.

This case involves a classic griping blog post. The author, Smith, runs a blog called Fix Your Thinking, which purports to cover "editorial news & news commentary covering eBay & Apple drama." On Dec. 31, 2005, he ran a lengthy post entitled "Special Report: You Gotta Be Berserk To Use An eBay Listing Company! The Whole Story " In this post, he relates his unfavorable experiences with BidZirk, one of the many companies that help people resell goods on eBay. As part of this post, he used BidZirk's logos several times.

In response to this gripe post, BidZirk sued Smith for Lanham Act violations, defamation and invasion of privacy. Smith fought back with unspecified counterclaims. At a March 16 hearing, Smith promised to remove all but one of BidZirk's logos. On April 10, the judge denied BidZirk's motion for a preliminary injunction because Smith's use of the trademarks was for news reporting and commentary (which isn't actionable under trademark law). BidZirk has appealed the denial of the preliminary injunction to the Fourth Circuit Court of Appeals.

In the Nov. 7 ruling, the judge evaluates BidZirk's motion to dismiss Smith's counterclaims for lack of federal subject matter jurisdiction. Smith's counterclaims relate to his experiences with BidZirk and their dealings in litigation, neither of which the court felt were close enough to BidZirk's claims over the blog post to mandate consolidation, and there was insufficient basis to support federal jurisdiction otherwise. Presumably, Smith can reflie his claims against BidZirk in an appropriate state court.

Putting aside the procedural technicalities, I'm still stuck on why the plaintiff brought this lawsuit in the first place. Smith posted a very idiosyncratic story to a relatively low-profile blog about a small eBay reseller with 3 storefronts in South Carolina. As a result, I assume that very few people would notice the post, let alone be influenced by it. The lawsuit just escalate the attention paid to the post. Meanwhile, I haven't been able to work through all of the facts, but on its face the trademark claim appears pretty bogus, and the defamation and invasion of privacy claims could be as well. So I have an especially difficult time understanding how this lawsuit is economically rational. Finally, given the website modifications that Smith has already made, I can't figure out why BidZirk thinks that a preliminary injunction is worth pursuing all the way to the Fourth Circuit.

Of course, there is always the possibility that this lawsuit is not about the merits and instead is just an abusive effort to punish a blogger for speaking out.... In any case, the seeming illogic of this lawsuit illustrates why there are comparatively few blog-related lawsuits. Most of the time, it just doesn't make sense to sue over a blog post.

Posted by Eric at 02:11 PM | Content Regulation , E-Commerce , Publicity/Privacy Rights , Trademark | Comments (4) | TrackBack

August 01, 2006

Amazon’s Display of Book Cover Doesn’t Violate Publicity Rights—Almeida v. Amazon.com

By Eric Goldman

Almeida v. Amazon.com, Inc., 2006 U.S. APP. LEXIS 17989 (11th Cir. July 18, 2006)

Introduction

Product photos on e-commerce websites’ product pages are a notorious liability trap. During my tenure at Epinions, product page photos were the only reason why we actually got sued (twice…ugh).

Product photos can raise some pernicious copyright issues, but in this case, the plaintiff sues Amazon for publicity rights violations. Ultimately, the court rules in favor of Amazon, effectively creating a strong precedent that online booksellers are immune from right of publicity claims for displaying book covers, even if the publisher in fact violated the right of publicity. However, the court indulges in a sloppy analogy to offline bookstores that may limit the scope of this opinion to just online booksellers and perhaps a few other media vendors. The case is also noteworthy for a goofy but irresolute discussion of 47 USC 230.

Facts

A publisher published a child’s photo on the cover of a book. The publisher got the requisite publicity consent for the first edition, but there are differing views about whether the consent extended to a second edition. Amazon displayed the second edition's book cover on its product page for the book. The plaintiff sued Amazon for publicity and privacy rights violations (these ultimately merged) and civil theft.

Right of Publicity and 47 USC 230

The district court dismissed the publicity rights claim based on 47 USC 230. This was an interesting ruling because 47 USC 230 doesn’t preempt “intellectual property claims,” so the question arises—is a publicity rights claim an IP claim? A precedential case (Perfect 10 v. ccBill) expressly says yes, Black’s Law Dictionary includes publicity rights in the definition of IP, and I venture that most IP professors cover publicity rights (albeit briefly) in IP survey courses. So I think many of us have assumed/believed that 230 does not preempt publicity rights claims.

The appeals court discusses this issue in some detail but ultimately punts on the question. Instead, it explicitly says it’s not opining on the question, basing its ruling on other grounds. So a definitive resolution of 47 USC 230’s application to publicity rights claims will have to wait another day.

Along the way, the court drops some very unfortunate dicta into a footnote. Agreeing with some confusing dicta from the 7th Circuit’s Doe v. GTE case, this court says 230(c)(1) is “phrased as a definition,” even though the footnote acknowledges the extensive precedent treating it as an operative immunization. The court then continues:

there is no issue of actual or constructive knowledge because the Florida right of publicity does not impose upon interactive service providers an obligation to filter or censor content. Moreover, as a factual matter, there is no indication that Amazon had knowledge of the allegedly misappropriated image and it responded promptly to Almeida's notice by removing [the book] from its websites

This completely gratuitous language will unfortunately give plaintiffs a sense of false hope. As I’ve discussed repeatedly on this blog, actual or constructive knowledge is irrelevant to a 230 determination. See, e.g., Zeran. Yet, this court’s sloppiness will give plaintiffs more grist to try their tired and futile argument that scienter matters under 230. I’m very confident that the impending plaintiff frenzy will give the 11th Circuit the pleasure of revisiting this dicta to clarify itself.

Right of Publicity and Physical/Virtual Bookstores

Instead of 230, the court bases its dismissal on the text of the applicable publicity rights statute, which applies to using an image “for trade, commercial, or advertising purposes.” The court says that Amazon’s display of the book cover on a product page doesn’t qualify. Instead, the court analogizes the online bookseller to a physical space bookseller, where the product page is the equivalent of the bookseller placing books on its shelves:

Amazon's role as an internet bookseller closely parallels that of a traditional bookseller. Because internet customers are unable to browse through shelves of books and observe the actual book cover photos and publisher content, Amazon replicates the bookstore experience by providing its customers with online cover images and publisher book descriptions

The court also distinguished two Girls Gone Wild video cases because the defendants in those cases picked the women to showcase on the product packaging and advertising. In contrast, Amazon was reflected the book cover selected by the publisher.

The court concludes:

Amazon's use of book cover images closely simulates a customer's experience browsing book covers in a traditional book store. Thus, it is clear that Amazon's use of book cover images is not an endorsement or promotion of any product or service, but is merely incidental to, and customary for, the business of internet book sales

It’s always dicey to make analogies between physical space and online contexts, and this analogy is suspect as a factual matter. First, there is no question that Amazon’s product page plays a major role in Amazon’s marketing and sales strategy. It is designed to place well in the search engines and uses a variety of tricks to extract additional sales from the customer. So treating the product page as the equivalent of a store bookshelf is a very charitable view.

Second, and perhaps more importantly, Amazon displays book covers all over its website, not just on the product page. Amazon uses the covers on personalized recommendation pages, in search results, in merchandising emails to its customers, and in content it syndicates to its affiliates (and, I suspect, to other third parties). Basically, Amazon does a ton of marketing for itself using book covers, so Amazon absolutely uses book covers to increase its sales. This sounds a lot like advertising/commercial purposes to me.

Ultimately, as a policy result, I think the court got it right. Amazon is merely depicting the book cover chosen by the publisher, so this ought to be a “contributory” or secondary publicity rights claim—and I don’t think there should be such a doctrine (admittedly, I haven’t researched that topic).

In any case, by making its clumsy analogy to browsing an offline bookstore's shelves, the court effectively limits this precedent to websites that can analogize their pages to such shelves--online book retailers, online music sellers, maybe online poster sellers. However, I think it would be tough to stretch this analogy to, say, search engines—an issue I believe is still live in the Perfect 10 v. Google case.

Civil Theft

Finally, the plaintiff alleged civil theft, which requires knowingly obtaining/using another’s property with the intent to appropriate the property for his/her use. In the context of physical goods, this makes complete sense. In the content of intangible goods, the scope of this statute is very confusing. In copyright cases, we normally don’t have to worry about this claim because it’s preempted by federal copyright law. However, in the context of a publicity rights claim, the copyright preemption doesn’t apply. Here, the court dismisses the claim for Amazon’s lack of scienter (because it didn’t pick the book cover). Even better for Amazon, the civil theft statute has a fee-shifting provision, so the court upholds an award of attorney’s fees to Amazon.

Posted by Eric at 10:12 PM | Derivative Liability , E-Commerce , Marketing , Publicity/Privacy Rights | TrackBack

July 26, 2006

Stay at Home Mom K's Johnny Damon's Right of Publicity Claim

By John Ottaviani

Last week, ESPN.com reported yet another unsuccessful and ridiculous attempt to use trademark law to stifle negative commentary.

According to the article, Ann Sylvia, a Massachusetts mother of two children, has operated an on-line store on eBay since 2001 so she can spend more time at home with her children. The on-line store "Owen & Emma's Place," is named after her children. Among other items, the on-line store sells baby and children's clothing and maternity clothes.

Among the "Daddy's Girl" and "My Mom is Hot" baby bibs and onesies are several items that reveal Ms. Sylvia's baseball affections. The problem in this case was not the "Yucky Yankees" or "Yankees Suck" bibs. Ms. Sylvia also offers bibs and onesies with the phrase "Damon Sucks." Last month, eBay pulled the listing after The Scott Boras Corp. (the entity which acts as agent for the New York Yankee baseball player Johnny Damon) complained that these items violated Mr. Damon's right of publicity. The complaint went so far as to threaten to blemish Ms. Sylvia's eBay rating and jeopardize her "Power Seller" status.

Rather than backing down, Ms. Sylvia swung for the fence. She hit a home run when she pointed out that there were other baseball players named Damon in the major leagues, so that her bibs might not be referring to Mr. Damon at all. Ms. Sylvia eventually reached a compromise by agreeing not to use "Johnny," "Boston," "Red Sox," "New York," or "Yankees" in the listing for that particular bib.

For those who are not baseball fans, the background to this story is that Mr. Damon played baseball for the Boston Red Sox team from 2002-2005, and played a key role in Boston's 2004 World Series Championship. After the 2005 season, however, Mr. Damon elected to leave the Red Sox and signed a four year contract for a higher salary with the New York Yankees, the arch rival of the Red Sox. Many Boston fans (including my daughter) now feel that Mr. Damon is a traitor.

After Eric's commentary on the case where trademark law was used by a restaurant to try to stop a non-profit group from handing out leaflets about the restaurant's labor practices, I hope this isn't a trend. Will the entire crowd be enjoined from chanting epithets at Mr. Damon the next time he appears in Fenway Park? Outside the stadium, will all the vendors of merchandise that uses the names or likeness of Mr. Damon and his teammates in uncomplimentary ways be confiscated? There are significant First Amendment issues here. It also seems that Mr. Damon and his agent might spend their time more efficiently chasing counterfeiters, rather than those clearly commenting on his playing ability, business dealings or loyalty.

Posted by John Ottaviani at 09:21 PM | Publicity/Privacy Rights , Trademark

May 09, 2006

Ebates Sued for Trespass to Chattels--Sotelo v. Ebates

By Eric Goldman

Sotelo v. Ebates Shopping.com, No. 06C-2531 (N.D. Ill. complaint filed May 5, 2006)

The Collins Law Firm has filed a third class action lawsuit over adware, this time targeting Ebate's Moe Money Maker client software. The complaint alleges that Moe Money Maker interferes with other client-side software and that Ebates misrepresents the nature of Moe Money Maker in its marketing. Similar to the other complaints from the Collins Law Firm, this complaint alleges the following causes of action:

1) Computer Fraud & Abuse Act
2) Electronic Communications Privacy Act
3) Trespass to Chattels under common law
4) Illinois Consumer Fraud Act
5) Negligence
6) Computer Tampering
7) Invasion of Privacy under common law
8) Cal. B&P 17200 and Civ. Code 1021.5

The Chicago Tribune article on this lawsuit and Collins generally.

A status report on the other adware-related civil litigation that I know about:

* Sotelo v. DirectRevenue. Settled in March (Suzi's report on the settlement). It appears that settlement freed up Sotelo's time to become lead plaintiff again. I've recommended to David Fish that Sotelo should buy some really good anti-spyware software.
* Simios v. 180solutions. Case is in discovery.
* Michaeli v. eXact Advertising. Motion to dismiss filed Dec. 12, 2005 and still pending.
* Consumer Advocates Rights Enforcement Society v. 180solutions (a/k/a Battalgia v. DirectRevenue), No. 2:05-cv-02547-LKK-PAN (E.D. Cal). According to PACER, the last reported action was a motion to dismiss filed April 24 (principally on procedural grounds).
* Kerrins v. Intermix Media. The case appears to be proceeding. A trial date has been set for January 2007, but the parties could settle before that.

If you are aware of others that I missed, I'd love to hear about it.

Posted by Eric at 11:51 AM | Adware/Spyware , Licensing/Contracts , Publicity/Privacy Rights

February 15, 2006

Your License, Registration and DNA, Please?

Congress Passes, President Signs, Press ignores...
As broader nationwide DNA database becomes law, states rush to fill database with expanded collection laws of their own.

By Ethan Ackerman

The DNA Fingerprint Act of 2005, which I blogged about late last year, was signed by President Bush into law on January 5, 2006. The legislation expands federal DNA collection efforts to include some legal and illegal immigrants, and allows states to contribute DNA collected for any reason listed under state laws to the federal DNA database. The final language did not change since I first wrote about it. See also the summary here. Rather than rehashing the bill, this post will discuss (1) how the media missed this issue, (2) related state and international developments, (3) the large role individual states' policies will have on deciding just how 'invasive' this database is, and (4) some current 'DNA criminology' shortcomings that this bill may make even worse.

The Media Missed the Issue

While the initial legislative steps of the DNA Fingerprinting Act drew some attention, the media silence on its ultimate passage can be summed up in one phrase - 'buried in layers of legislation.' The DNA Fingerprinting Act was rolled into the 2005 Violence Against Women Act and 2005 DOJ Reauthorization Act, a 176 page mega-bill, which had the effect of obscuring its passage. It took several days for the press to even digest the DOJ bill's passage - its other provisions included Democrat-driven 'mail-order bride' protections and the extensively-blogged 'Cyberstalking prevention' provisions (and even that wasn’t covered in the press until a week later).

International & state developments

On the international scene, Ireland and Scotland, among others, are also expanding DNA collections. (Scotland has the unique wrinkle of being the only UK territory where evidence collected at arrest is held and destroyed if a conviction doesn't follow. Other UK regions already collect and retain DNA at the time of arrest; it is this higher threshold that is targeted for removal.) The UK DNA collection expansion is in tandem with its fingerprint collection expansion - UK police are also set to beging 'roadside' collection of fingerprints. Here again, the UK appears to be following US lead, as several jurisdictions, notably Phoenix, AZ, are already collecting 'roadside' fingerprints, initially voluntarily but now under penalty of jail, for traffic violations. The UK appears to be out in front of the US, however, with 'in the field' DNA collection, with even bus and train drivers collecting DNA of suspects - in this case 'spitting passengers.'

At the state level, legislation expanding DNA collection to suspects is racing through legislatures - apparently regardless of the political party in control. The Democratic-controlled New Mexico House recently passed legislation authorizing collection from felony suspects. The Republican-controlled Kansas legislature is apparently ready to do the same. Indiana, where different parties control the two legislative chambers, is also several steps into the legislative process of passing a similar bill. Somewhat more liberal New York is running into difficulties over Republican Governor Pataki's version of expanded collection authority, which would apply to misdemeanors and felonies, but only after conviction. While the federal DNA bill allows states to collect DNA for any purpose, under any "applicable legal authority," states so far seem focused on expanding collection from just convicted felonies to felonies AND misdemeanors, and in many cases also to criminal suspects, for now.

The pressure for a state 'race to the bottom'

A notable aspect of the piecemeal expansions occurring at the state level is the "race to the bottom" between states that appears likely. States with heightened guilt or suspicion standards (such as 'felonies only' or 'after conviction, not just arrest' states) would benefit the least from their correlatively smaller databases. A database's utility increases exponentially, not just linearly, with the number of entries it contains. Pressed to obtain the maximum value from their systems, or even just a usefulness level comparable to states that collect more DNA, each state would feel a pressure to expand its database to match or exceed other states. Institutional, and often moneyed, motivators such as political platform-staking, a drive for increased governmental efficiency and pressures to lower crime also force states to compete in expanding these DNA databases. These concentrated pressures exert much more force than the diffuse pressures of individual desires for genetic privacy - a classic economic imbalance often seen in other policy-making scenarios.

States with laws already on the books

At the time the federal DNA Fingerprinting Act passed, Virginia, Louisiana, California, Florida and Texas already had laws requiring DNA collection at the time of arrest for some or all crimes. Yet almost all of these states also have had notable instances of erroneous forensic 'mis'matches, with wrongly convicted suspects serving time before their eventual release. In Virginia, a prisoner's life sentence was commuted and he received an eventual pardon after being exonerated by conflicting crime lab tests. In Louisiana, a man served 17 years before an eventual pardon. A minor was convicted of rape and served over four years before exoneration in Texas, and a prisoner served a 17-year term before it was overturned in Florida (search for Rudolf Holton on page), for example.

DNA Database Shortcomings

Just as with any other scientific endeavor, DNA screening is plagued by errors and fraud. What makes DNA screening different is that, unlike carbon-dating trees or replicating embryonic stem cells, fraudulent DNA evidence doesn't just cause media scandals but it is used to incarcerate or execute people.

Error

Like any other human endeavor, collecting, handling, and processing DNA evidence is an error-prone process. The same characteristic that makes DNA evidence so incredibly useful - an amazingly small fragment of as little as several human cells can be used to identify its genetic source - makes it incredibly prone to contamination. Stray chromosomes from a lab worker, housecat, other evidence sample or crime scene witnesses can be misattributed to a person, and this error can be multiplied by the chemical reaction that underlies modern DNA forensics. Worse, even if scientists get the chemistry right, their assistants and prosecutors still have to get the paperwork right and not mislabel or switch results or files.

Fraud

In many cases, a desire to cover up the errors discussed above apparently leads to false or misrepresented DNA results. In other cases, a lack of impartiality - the majority of official state and local crime labs are tied directly to the local police force - is the problem. For example, in Indiana (which is also contemplating an expansion of collections), allegations that prosecutors pressured crime lab workers to alter evidence have imploded the trial of an alleged murderer.

Showing just how far one crime lab employee's evidence-concealing can go, Michigan and Chicago have both investigated the alleged concealment of exonerating DNA evidence by a Chicago crime lab worker who subsequently went to work at the Michigan state crime lab. Chicago settled over $9 million in claims from the incident.

Similarly showing how far irregularities with DNA evidence can get, questionable testimony from a Virginia crime lab was a large part of the reason the US Supreme Court stayed execution (though ultimately declined cert.) on Robin Lovitt's Virginia death row petition in 2005. Lovitt's sentence was ultimately commuted as a result of the misrepresentations. Problems, however, are not limited to state labs. The US Army's lab, which operates roughly in parallel with the FBI's national lab as a crime and records lab for the US military, stands accused of evidence fraud as well.

DNA's mythical status as irrefutable evidence compounds these shortcomings

Criminal jurors, charged with deciding facts in a trial, tend to be irreversibly swayed by DNA evidence, rightly or wrongly. Call it the "CSI effect," but DNA evidence creates an irrefutable connection in the minds of most jurors. While this can be a two-edged sword when juries expect forensic evidence prosecutors just don't have, jury allegiance to DNA evidence tends to harm defendants it is introduced against much more than it exonerates them.

DNA's genetic nature means inclusion is 'inclusion by proxy' for all your relatives, and an 'open genetic book' about personal attributes and status.

DNA, like a fingerprint, is a useful personal identifier. Indeed, there is a scientific and mathematical basis for the uniqueness and correlation of an individual to his or her DNA that is largely absent for fingerprints. DNA, however, is much more than just an individualized identifier. Much like a family tree, bank statement, dental impression or medical history file may serve to identify an individual, these records (like DNA) also contain much personal information unrelated to authenticating a person’s identity. DNA may reveal private information such as legitimacy at birth or the presence of a gender-change operation or marrow transplant. Some research suggests there are also reliable genetic markers for such traits as aggression, substance addiction, criminal tendencies and sexual orientation.

*title with apologies to James F. Van Orden, who authored an excellent, and slightly variant-titled article I discovered after writing this post.

Posted by Ethan Ackerman at 10:12 AM | Privacy/Security , Publicity/Privacy Rights

January 13, 2006

Web Term Paper Lawsuit Settles

By Eric Goldman

In September, I blogged about Macellari v. Carroll. In that case, a student sued a website that allegedly offered her term paper for sale. The case has settled under a confidentiality cloak (registration required). However, a defendant has said he is "happy with the outcome."

A quick settlement certainly seemed like a logical outcome, especially from the defendants' perspective. There was little upside to them to see this case through to a judgment. Of course, settlement also leaves open the risk of "me-too" litigation. One of the defendant's websites claims over 100,000 papers in the database--that's a lot of potential plaintiffs!

Posted by Eric at 10:00 AM | Copyright , Derivative Liability , Publicity/Privacy Rights

October 19, 2005

Latest Junk Fax Lawsuit--Adler v. Vision Lab Telecommunications

By Eric Goldman

Adler v. Vision Lab Telecommunications, Inc., 2005 WL 2621984 (D.D.C. Oct. 17, 2005).

I've set up a Westlaw alert to notify me of new TCPA cases and I'm pretty shocked by the volume of cases being reported under the law--it's way higher than I imagined. I typically get 3-5 emails from Westlaw a week with new cases interpreting the TCPA. Not surprisingly, plaintiffs seem to be loving it!

I'm blogging about this case in particular because of its direct relevance to the adware/spyware cases like Sotelo v. DirectRevenue and Simios v. 180Solutions (I know there's a third case against eXact, but I haven't had a chance to read the complaint yet).

In the Adler case, the plaintiffs brought suit over junk faxes. The defendants moved to dismiss the various claims.

Of particular interest is that the judge granted the motion to dismiss the common law negligence claim, saying that the common law claim was subsumed by the TCPA law. It appears that this specific question has created a split of precedent. The court cited both Morris v. Fax.com, Inc., No. 03-CA-1109 (D.C. Sup. Ct. June 13, 2003) allowing (reluctantly) the negligence claim to survive a motion to dismiss, and Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365 (Tex. App. 2004), which granted the motion to dismiss.

While the Sotelo court denied the motion to dismiss the negligence claim, I think the Sotelo court ultimately will reach the same conclusion as this court that the negligence claim is subsumed in the other claims.

Also interesting is that the judge denied the motion to dismiss the common law invasion of privacy claim (raised in the Simios case but not (yet?) raised in the Sotelo case). Referring to the Restatements and a motley assortment of precedent, the court says "in extreme circumstances, sending unauthorized fax advertisements may be an intrusion upon seclusion." The court then hastened to add that "Adler may have difficulty proving that defendants' faxes were a frequent enough intrusion to be highly offensive to a reasonable person."

I'd have to research the case law more, but on the face of it, this seems like a big win for anti-fax/anti-telemarketing plaintiffs. There's an acknowledgement that with the right facts, a common law invasion of privacy claim is valid.

Does this thinking port over to the adware/spyware context? The motley precedent cited by the Adler court is heavily laced with references to telephone calls being intrusive, so as precedent this case could be easily distinguished. On the other hand, if the standard is that any marketing intrusion could constitute invasion of privacy so long as the intrusion is frequent enough, then anti-adware plaintiffs should be thrilled!

UPDATE: BNA (subscription required) reports that the case has settled.

Posted by Eric at 06:28 PM | Adware/Spyware , Marketing , Publicity/Privacy Rights

September 22, 2005

Second Anti-Adware Class Action Filed--Simios v. 180Solutions

By Eric Goldman

Simios v. 180Solutions, Inc., No. 05C 5235 (N.D. Ill. complaint filed Sept. 13, 2005). This complaint isn't "new" news; Suzi blogged about it 10 days ago.

This is the second anti-spyware class action lawsuit initiated by David Fish of Collins Law Firm. The first target was DirectRevenue; this time it's 180Solutions. I've critiqued the merits of many of the claims in my review of the judge's first substantive ruling in Sotelo v. DirectRevenue. In this post, I'm going to principally critique some of the differences between that lawsuit and this one.

Venue

In the Sotelo case, the plaintiffs sued in state court. To avoid the Class Action Fairness Act, which mandates that most class action lawsuits are heard in federal court, the plaintiffs tried two techniques: (1) the proposed class covered only Illinois residents who had DirectRevenue's software on their machines, and (2) the complaint named some Illinois-based defendants in an attempt to destroy diversity.

Those techniques failed, and the Sotelo case is in federal court. This time, the plaintiffs didn't even try any of the venue-manipulation techniques and instead originated the lawsuit in federal district court. I'm not entirely clear why being in Illinois state court was desirable, but skipping ahead to federal court seemed like a smart move to me. Among other things, it creates the opportunity to plead some new causes of action.

Defendants

In the DirectRevenue case, the plaintiffs sued DirectRevenue, its holding company, an advertiser and an ad serving network. The diversity of defendants created some complexity and increased the paperwork, as each of the defendants are in different legal positions.

This time, the plaintiffs are suing just 180Solutions. However, it's possible that additional defendants will be added. In particular, I expected the plaintiffs to name some of 180Solutions' advertisers because the DirectRevenue advertiser was not able to get out of the lawsuit on the first try.

New Cause of Action--Computer Fraud & Abuse Act

Because the Sotelo plaintiffs tried to keep their lawsuit in state court, they did not plead any federal claims. Now, freed from that restriction, the plaintiffs bring a Computer Fraud & Abuse Act claim for the first time. The CFAA is a complex law, and I'm not entirely sure that the plaintiffs can establish a prima facie violation. However, I teach my Cyberlaw students that they should always plead common law trespass to chattels and CFAA together (if they can do so within ethical constraints), so adding the CFAA claim made complete sense here.

New Cause of Action--Electronic Communication Privacy Act

Another new federal claim, this time under the ECPA. I'm pretty skeptical about the ECPA claim. The lawsuit alleges that the 180 software "intercepts" communications and "discloses" the contents to third parties. These are the appropriate words under the statute, but I'll be interested to see if the plaintiffs can marshal the right facts to support the claim.

Trespass to Chattels

The complaint has cleaned up some of the damage allegations in support of the trespass to chattels claim (see, in particular, Para. 27), so the claim has an even better chance of surviving a motion to dismiss.

The plaintiffs, however, continue to plead some damages (such as user "frustration") that a court following Intel v. Hamidi simply will ignore. The plaintiffs also kept in some of their silly damages allegations (the software "utilizes pixels and screen-space on monitors"; the software slows performance, which causes the computer to stay on longer, which results in additional electrical consumption). I think the plaintiffs do themselves a disservice by mixing some legitimate and substantive allegations with some trivial and de minimis "harms."

New Cause of Action--Invasion of Privacy

The plaintiffs allege that the software invades their privacy under the common law. I think the plaintiffs intend to fit under the "intrusion to seclusion" tort. While this appears to have been appropriately pled, it's a stretch and, I think, has a low likelihood of success.

Conclusion

I understand that some plaintiffs' lawyers like to use rhetorical tricks, but I thought calling 180Solutions' software a "virus" and referring to computers as "infected" undermined the plaintiffs' credibility. Aside from that (and some other gratuitous allegations that have zero legal significance but were apparently made simply to smear 180Solutions), this complaint is noticeably more tightly drafted than the Sotelo complaint. I expect this tighter drafting gives it even better odds of surviving a motion to dismiss. Whether the lawsuit can survive summary judgment, however, is a much different story!

Posted by Eric at 06:49 PM | Adware/Spyware , Publicity/Privacy Rights

September 06, 2005

More on Rappers and Car Dealers

By Mark McKenna

In the name of not being left out of the interesting discussion about Snoop Dogg's trademark lawsuit against Gary Barbera (not to be confused with Hannah Barbara, of Flintstones fame), I thought I would put in my .02.

As I said in a comment to Eric's previous post regarding 50 Cent's complaint, I think Eric is looking too hard for a specific trademark of Snoop Dogg's that the dealership is using.

From what I can tell from the complaint on The Smoking Gun (it's not the whole complaint), the plaintiff appears to be alleging both trademark infringement under Section 32 and unfair competition under Section 43(a). I don't think the trademark infringement claim is worth discussing. Like Eric, I don't see any possible basis for a claim alleging use of the SNOOP DOGG. In fact, on its own, I think asserting that claim is borderline sanctionable.

But the 43(a) claim seems to me quite plausible. As John noted below, courts have found 43(a) violations in lots of situations where it was hard to identify what "mark" the defendant was using. That's because 43(a) doesn't require that the defendant be using any mark, or even that the plaintiff have a mark. All that is required is that the defendant use something, or some combination of things, that potentially suggests sponsorship or endorsement. I don't like that rule because it seems destined to result in individuals and companies being able to prevent anyone from referring to them at all (or, as Stacey Dogan says, in having the exclusive right to evoke). It is, nevertheless, pretty clear to me that it is the rule.

So it seems to me that there are only really 2 substantive questions in Snoop's case:

1. Does this ad, as a whole, suggest that Snoop Dogg sponsors or endorses the car dealership?
2. Does Snoop's contractual relationship with Chrysler anticipate uses by the dealers?

If the contract doesn't anticipate uses by dealers or at least give Chrysler the right to sublicense (and I'd be surprised if it does), then Snoop's relationship with Chrysler probably doesn't confer any benefits on the dealer. While the dealer can legitimately claim that the suggestion that Snoop sponsors or endorses Chrysler is accurate (i.e., that the ad contains no false designation of origin because Snoop really does endorse Chrysler), I doubt that runs to the dealer. That is an interesting question though, and I am not familiar with any case dealing with that issue. Is anyone else?

UPDATE: Apparently Barbera is claiming that the 50 Cent ad is based on a radio advertisement that 50 Cent did to promote a giveaway at the dealership [I haven't seen a similar claim relating to the Snoop Dogg ad]. That adds an interesting wrinkle to the case. On the one hand, this could be seen as a simple dispute over whether the agreement between 50 Cent and the dealership relating to the radio ad gives the dealership the right to make derivative advertisements. Assuming the contract is silent on the issue, does that impicitly limit the right to use 50 Cent's name/likeness/image to the radio ad? I don't know for sure, but I'd bet that's the way the contract would be interpreted.

On a more theoretical level, however, that doesn't altogether sit well with me. If the 43(a) claim [set aside the right of publicity claim for the moment] turns on the question of whether the dealership is falsely suggesting 50 Cent's sponsorship or endorsement of the dealership, then doesn't the dealer have a pretty good argument that there's nothing false about their suggestion? Isn't there some real sense in which 50 Cent did endorse the dealership? Is this really that different than when Good Housekeeping recommends a product and the product's manufacturers reference that recommendation in an ad? Or when Terri Welles continues to say that she was "Playmate of the Year," when in fact she was?

Of course, in the long run it probably doesn't matter that much if the dealer is able to make that argument effectively because parties with bargaining power (as we might assume celebrity endorsers generally are) will simply contract around the rule by explicitly forbidding additional uses of their name/likeness/image beyond the particular ads contemplated. And the current right of publicity, which is really broad (too broad, in my opinion), surely doesn't care whether 50 Cent really did ever endorse the dealership.

Posted by Mark McKenna at 12:36 PM | Marketing , Publicity/Privacy Rights , Trademark | Comments (3)

Rappers, Car Dealers and Trademarks --- John Weighs In

By John Ottaviani

Eric and I have been debating the claims in the 50 Cent and Snoop Dogg cases, and whether there can be trademark like protection for "speech patterns." Not surprisingly, as one who likes "non-traditional" trademarks, I am coming down more strongly than he that there are potentially viable "trademark like" claims here.

I would argue that these claims are analogous to the "sound alike" body of cases, in which case this is not really a new legal frontier.

A voice is not copyrightable, because the sounds are not fixed. But courts have already recognized that speech patterns or voices acquire something like "secondary meaning" over time. The First Circuit recognized Burt Lahr's unfair competition claim when Lestoil aired a commercial using an imitation of Lahr's voice with a cartoon of a duck. (Lahr v. Adell Chemical Co., 300 F.2d 256 (1st Cir. 1962). More recently, Bette Midler successfuly argued that when her distinctive voice was deliberately imitated in a television commercial for Lincoln automobiles, it was an actionable tort under California common law for misappropriating part of her identity. Midler v. Ford Motor Company, 849 F.2d 460 (9th Cir. 1988). Tom Waits recovered $375,000 in compensatory damages and $2 million plus attorneys fees in punitive damages on theories of voice misappropriation under California common law (the same claim on which Ms. Midler was successful) and false endorsement under Section 43(a) of the Lanham Act, when Frito-Lay imitated his voice for a radio commercial. Waits v. Frito Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).

So whether you call it "trademark infringement" or "unfair competition" or "voice misappropriation" or "right of publicity," the courts have recognized that there is something wrong with deliberately imitating the well-known, distinctive voice of a professional singer or actor to sell a product. It may be out there at the boundaries of "trademark" law or "unfair competition" law, but courts are using trademark-like concepts to protect the singer's or actor's right to control the placement of his/her voice. And the car dealer situation would seem to be a logical extension of radio and television advertisements to print advertisements.

Yes, in this case, the words are printed in the car dealer's advertisement rather than spoken like in a radio or television commercial. But the car dealer is using either the well-recognized exact quote (If the car is fly ...) or the well recognized speech pattern (..izzle ...) without permission to sell his cars.

The analysis in the car dealer case may be more factually intense, given that in that case there is some arguable relationship (express or implied) between the products and the spokesperson, when there was no authorization (authorization was denied, in fact) in the Waits and Midler cases.

In the end I agree with Eric on one thing ... whether or not Mr. Barbera has successful defenses, unless he likes to spend money on lawyers and spend time in depositions and court appearances, he should find other ways to promote his dealership.

Posted by John Ottaviani at 11:06 AM | Marketing , Publicity/Privacy Rights , Trademark

September 05, 2005

Rappers, Car Dealer Ads, and Expansive Interpretations of Trademark Law

By Eric Goldman

Broadus v. Gary Barbera Enterprises, Inc. (E.D. Pa. complaint filed Aug. 2005).

Ten days ago I blogged about the rapper 50 Cent's lawsuit against the Gary Barbera dealership for running a car ad that showed a picture of 50 Cent with the phrase "Just Like 50 Says." Assuming the dealership ran the ad without permission, this use looked like a textbook misappropriation of publicity rights.

However, the trademark implications were more troubling: 50 Cent does not have a trademark in his likeness but has a registered trademark in "50 Cent." Could we combine the picture plus the trademark to cover the number "50"? Perhaps, although this takes trademark law pretty far.

We get to revisit this issue with the same dealership. On the heels of the 50 Cent fracas, the Gary Barbera dealer ran two ads:

* the first shows a picture of the rapper Snoop Dogg next to the phrase "Is Bar-Bizzle the Sh-izzle? Boy I Gu-izzle."

* the second again shows the picture and uses the phrase, but adds "If the car is fly...then you must buy."

In his complaint, Broadus/Snoop says that he has a registered trademark in the phrase "Snoop Dogg." However, the dealer never used this phrase. Instead, the complaint contends that the dealer used "the distinct speech pattern employed by Broadus and associated with his professional likeness and persona and the SNOOP DOGG trademark" (Para. 12). The complaint goes on further to say that the dealer misappropriated his "speech pattern" and "distinctive manner of speech."

Let's start with the right of publicity. If the dealer does not have permission, then they have misappropriated his right of publicity by using the photo. The problem is that Snoop Dogg made a commercial for Chrysler. Presumably he granted publicity rights to Chrysler as part of that deal. The question is--does the agreement between the dealer and Chrysler sublicense those rights? If yes, then Snoop Dogg has no lawsuit. If not, the dealer is in trouble.

While the right of publicity claims seem relatively straightforward, the trademark claims are far more problematic. Unlike the 50 Cent case, where the dealer at least part of the registered trademark ("50" of the trademark "50 Cent"), here the dealer did not use any part of the registered trademark ("Snoop Dogg").

So how did the dealer infringe Snoop Dogg's trademark rights? Snoop Dogg could have trademark rights in his identity, but the portion of the complaint on the Smoking Gun site made no such allegations, and I doubt that would stick.

The dealer allegedly took his distinctive speech style of using "-izzles," although I'm inferring that Snoop Dogg never actually said "Is Bar-Bizzle the Sh-izzle? Boy I Gu-izzle" (and even if he said it, there's a big gap between saying the phrase and having a trademark in the phrase). So how can he have a trademark in the speech pattern of using "-izzles" in nonsense phrases? I would vote that he simply cannot do so. Trademark law doesn't cover speech patterns, nor could it without reaching too deeply into human communication patterns.

Apparently, Snoop Dogg did say "If the car is fly...then you must buy" in the Chrysler ads. As a result, I don't see how Snoop Dogg can enforce any rights in that phrase; the trademark rights should accrue to Chrysler. In turn, the dealer's rights also depend on the contract between the dealer and Chrysler.

So where is the dealer's trademark use/infringement of a trademark right owned by Snoop Dogg? The photo + nonsense phrases of "-izzle" = trademark infringement of the trademark "Snoop Dogg"? I don't think this is enough to support a trademark infringement claim. Snoop Dogg should win only on the right of publicity claim (or not at all).

In any case, although trademark law may not apply to its behavior, I have a tip for the Gary Barbera dealership: lay off using photos of rappers in your ads for a while. They seem to get you into trouble...and into court!

John Ottaviani's take on this matter. Mark McKenna's take on this matter.

Meanwhile, an update on an unrelated but also overreaching trademark dispute. The LA Times runs a good story about the "What happens here stays here"/"What happens in Vegas stays in Vegas" trademark dispute. While this particular phrase could conceivably infringe, in my previous blog post I reference how the trademark owner is trying to protect too many variations of that phrase.

Posted by Eric at 09:36 PM | Marketing , Publicity/Privacy Rights , Trademark

September 02, 2005

Student Sues Term Paper Website (and its Host)

Macellari v. Carroll, no. 4:05-CV-04161-JPG (S.D. Ill. complaint filed Aug. 31, 2005).

Blue Macellari, a student at Duke and Johns Hopkins, has sued a term paper vendor (Rusty Carroll/R2C2, Inc.) operating three websites (doingmyhomework.com, freeforessays.com and freefortermpapers.com) for copyright infringement, a Lanham Act violation, defamation, privacy invasion and unfair trade practices. The lawsuit also names the web host Digitalsmiths.

I'm not sure what the Lanham Act violation could be, and the defamation claim seems a little tough. The copyright infringement claim, however, seems potent. If, in fact, the term paper vendor didn't have permission, it doesn't have a lot of great defenses. I'm less clear about the web host's liability--did Blue send a 512(c)(3) notice? If not, the theory is that they shouldn't be liable, although a number of courts have bypassed that requirement.

Depending on the outcome, this case could create some real issues for Turnitin and similar services. I've never been fully clear that a court was going to bless their use of student papers for commercial benefit, and this lawsuit might expose weaknesses in their legal posture.

Another interesting angle: Blue's lawyers are doing this pro bono.

Coverage: Lawyer's press release, Chronicle of Higher Education (subscription required), Inside Higher Education, AP story

UPDATE: A copy of the complaint (thanks to John O for pulling it from PACER)

Posted by Eric at 10:47 AM | Copyright , Derivative Liability , Publicity/Privacy Rights | Comments (11)

August 26, 2005

Steinbuch v. Cutler Update--Cutler's Motion to Dismiss

You may recall Steinbuch v. Cutler, where a Washington staffer blogged about her modestly-scandalous sexual experiences with a Senator's counsel. For the voyeurs, I've uploaded Cutler's motion to dismiss the lawsuit filed last month.

The principal grounds for dismissal include the statute of limitations, the facts weren't private, Cutler had run a "private" blog, and the First Amendment. I'm not an expert in calculating the statute of limitations, but on its face this struck me as a pretty potent defense against most of the lawsuit.

As predicted, the lawsuit has some racy facts (I counted 7 references in the motion to dismiss to "spanking"), and the motion to dismiss names even more names. The various factual disclosures/reiterations in the motion to dismiss shows exactly there is a major downside to plaintiffs bringing invasion of privacy or defamation lawsuits. Talk about a relationship ending badly!

UPDATE: Wonkette rightly points out the weakness of the "I didn't understand how to use Blogger" defense.

Posted by Eric at 09:46 AM | Publicity/Privacy Rights | Comments (3)

August 24, 2005

What 50 Cent Really Said--Use the Term "50" and You'll Hear From My Lawyer

Jackson v. Gary Barbera Enterprises, Inc. (E.D. Pa. complaint filed Aug. 2005).

A car dealer in Philadelphia runs an advertisement for Dodge Magnums. Included is a picture of the popular rapper 50 Cent and the phrase "Just Like 50 Says." 50 Cent has a federal trademark registration in "50 Cent" for various categories but alleges that he is "commonly known...informally as '50.'"

On the surface, this seems like a garden-variety right of publicity violation (a cause of action apparently alleged but omitted from the Smoking Gun's papers). If this use was without permission, then I don't see much room for a strong defense.

Note, however, that the dealer is claiming that 50 Cent recorded two sound bite radio promotions for the dealer, in which case perhaps the newspaper ad really is just like 50 Cent said. If so, this may end up as a simple interpretation of the scope of the publicity consent/endorsement contract from the radio promotion, or it could turn into an extremely complicated case about the scope of "fair use" of a celebrity's personality. Consider the analogy--Oprah raves about a product on her TV show; to what extent can that product manufacturer use Oprah's quotes (attributed to Oprah) in their marketing?

However, I'm more interested in the trademark violation on a stand-alone basis. From my perspective, using the photo isn't a trademark violation. And I think it's pretty hard to extend the trademark registration in "50 Cent" to cover "50." It's possible that 50 Cent has developed common law trademark rights in the term "50," but that would require having developed secondary meaning. I know 50 Cent had some popular albums, so I'm pretty skeptical about that! I'd love to see how many people, seeing the phrase "Just Like 50 Says" without the photo, would think that the phrase referenced 50 Cent. Although I'm not the target audience, I strongly suspect the vast majority of readers would find that opaque.

In any case, I always find it interesting when trademark owners try to pluck individual letters or numbers out of the social lexicon and convert them into proprietary assets (this is hardly the first time). You might want to think twice the next time you punch in "50" into your calculator or spreadsheet.

Finally, in a partially-ironic twist, it seems like every newspaper covering this story has used it as an excuse to show more pictures of 50 Cent. Newspaper use of photo to sell newspapers = OK, car dealers use of photo to sell cars = not.

Posted by Eric at 07:32 AM | Publicity/Privacy Rights , Trademark | Comments (4)

May 18, 2005

New Lawsuit Over Blogging--Steinbuch v. Cutler

Steinbuch v. Cutler (D.C. D.C. complaint filed May 18, 2005). Interesting and risqué lawsuit for invasion of privacy and intentional infliction of emotional distress (warning: the complaint is not 100% office-safe). Jessica Cutler ran a blog under the name “Washingtonienne.” In the blog, she provided very specific details about her simultaneous sexual relationships with six different men. In particular, she identified the plaintiff by his initials “RS,” although one time she also referred to “Rob.” She also provided lots of specific details about each person and made a number of disclosures of very personal facts about RS.

Some observations about the lawsuit:
* This is not the first blog-related lawsuit, but as an early case, it has the potential to reinforce that blogs are just another publication medium that can create legal liability.
* The fact that she attempted to blog using pseudonyms may not save her from legal liability. This has direct implications for anyone who thinks it’s a good idea to blog about work situations by revealing details selectively (hint to summer associates tempted to blog about their firms—this means you!).
* This case has all the marks of a messy and titillating lawsuit, so I’m sure we’ll hear a lot more about it because it combines new technological issues with age-old voyeuristic interests in sex.

(Thanks to Daniel Solove at Prawfsblawg for the tip)

Posted by Eric at 11:02 AM | Publicity/Privacy Rights

March 16, 2005

New 47 USC 230 case--Roskowski v. Corvallis Police Officers’ Association

Roskowski v. Corvallis Police Officers’ Association, 2005 WL 555398 (D. Ore. Mar. 9, 2005). Messy disputes between the former Corvallis Chief of Police and the police officer’s association. The Association set up a website to disseminate its gripes with the chief and allowed anyone to post messages there. Unsurprisingly, some of the messages were unflattering.

The chief sued the association (and others) for the negative posts to the website under a false light/invasion of privacy claim. The association claimed 47 USC 230. The court dispatches this part of the claim fairly efficiently. The court cites Stoner and Schneider as precedent that websites are interactive computer services, and the chief used the word “publication” in her complaint, so the court applies the law to false light/invasion of privacy claims (in some sloppiness, the court references defamation here).

However, were the postings provided by “another information content provider”? This should have been an easy inquiry (there’s plenty of precedent on this point). However, the court confirms that the association wasn’t responsible for the postings because it “had no control over who posted or what was posted over the website.” Implicitly using this standard suggests that the court would have been receptive to the arguments made by the Barrett and Grace plaintiffs. Of course, some of us would take the position that the association wouldn’t be liable even if they did have “control” over the posts. See, e.g., Blumenthal v. Drudge, Ramey v. Darkside Productions.

Thanks to InternetCases.com for pointing this case out.

Posted by Eric at 01:49 PM | Derivative Liability , Publicity/Privacy Rights