July 07, 2010
Scribd Can't Shake Copyright and Publicity Rights Lawsuit on Motion to Dismiss--Williams v. Scribd
By Eric Goldman
Williams v. Scribd, 3:09-cv-01836-LAB -BGS (S.D. Cal. June 23, 2010).
Larry Williams has written several books on commodities trading (their titles suggest they fit into the "Make Money Fast" genre). He alleges that rogue Scribd users, including the alias “GalaxiaMia Guy” [is it this user?], have repeatedly posted his books to Scribd. Williams sued Scribd for direct, contributory and vicarious copyright infringement and publicity rights misappropriation. The first amended complaint.
Scribd moved to dismiss but ran into a judge who appears to be a stickler about letting unmeritorious cases survive to summary judgment rather than crunching them quickly on 12(b)(6). The judge does nix the direct copyright infringement claim against Scribd. The judge notes Williams' only argument in support of direct infringement is that GalaxiaMia Guy is “friends” on Scribd with Scribd's CEO Trip Adler. Williams seems to think they are in cahoots with each other, but the judge rejects this ill-formed suspicion.
Along the way, the judge snarkily laments: "it’s no secret that the ‘friend’ label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people." Ouch! I'm guessing the judge isn't a power Facebook user.
Then again, I don't understand the "friend" vernacular on Scribd. Scribd allows people to "subscribe" to each other's feeds--like a “follow” on Twitter, it isn't mandatorily reciprocal like a Facebook “friend.” Trip Adler has over a half-million subscribers on Scribd, so if GalaxiaMia Guy was one of those half-million, that doesn't mean anything. No matter what, the judge repeatedly says the "friends" argument is altogether irrelevant.
[This may be a good time to mention that I have been regularly using Scribd to post source materials. I often don't blog about what I post; in some cases, I don't even announce the posting to Twitter. So if you want to see everything I'm posting to Scribd, you can subscribe at Scribd.]
The court rejects Scribd’s motion to dismiss the contributory and vicarious infringement claims as well as Scribd’s 512 defense, all on the same basis that a 12(b)(6) is too early to make a decisive call. For example, regarding the 512 safe harbor, the court says that's properly awarded on a 12(b)(6) only "where the answer to the question is nearly obvious," which apparently isn't the case here. The court also breezes through a 47 USC 230 defense to the publicity rights claim, rejecting the immunity on a motion to dismiss "[b]ecause there are open questions in this case about the extent to which Scribd participated in the alleged infringement." Of course, many cases have granted 230 immunity on a motion to dismiss, but I'm guessing none of those were in front of Judge Burns.
Although Williams' complaint lives to see another day, it’s also clear that Williams will ultimately lose. The judge disparages the complaint (the complaint "isn’t a model of lucidity"), criticizes plaintiff's counsel for various factual omissions in the complaint (which "risks denting his credibility"), calls the remaining copyright claims "thin" and invites Scribd to seek summary judgment ("Scribd seems to have all of its arguments for summary judgment already teed up"). The judge continues:
Based on the evidence and the pleadings, the Court is inclined to say that it appears Scribd has the better arguments in this case; Scribd’s motion to dismiss is largely denied only because it is too early to raise those arguments. Williams should give serious consideration to whether he sincerely believes Scribd does not qualify for the safe harbor protections of the DMCA, as well as whether Scribd did not act as expeditiously as possible to remove Williams’s copyrighted works from its website as soon as it was asked to do so.
With a warning to the plaintiff like that, this case is an excellent candidate for a fee award to Scribd under 17 USC 505 when Scribd wins. I'll be interested to see if the judge remains irascible when it comes time to penalize Williams for wasting everyone's time.
Ben Sheffner has also blogged the case.
BONUS Blog Coverage! (kind of like a hidden track on a record album)
This is also an opportune time to note a recent ruling in Perfect 10 v. RapidShare, another opinion involving secondary copyright infringement also from the S.D. Cal. (in front of Judge Huff instead of Judge Burns). Like Scribd, RapidShare is a UGC web host that's agnostic about the types of content users publish; like Williams, Perfect 10 is a wild-eyed plaintiff.
However, unlike Scribd, RapidShare isn't eligible for the 512 safe harbors because it has not made the requisite Copyright Office filing. RapidShare is also unusual because it lacks any internal search functionality or navigation structure. Instead, each user self-publicizes the file's URL.
Procedurally, Perfect 10 faced a higher burden of proof than Williams because Perfect 10 requested a preliminary injunction, which requires the court to consider Perfect 10's likelihood of success.
Perfect 10's direct copyright infringement claim, based on a 106(3) distribution, isn't likely to succeed because RapidShare never indexes the file itself. The court also rejects an inducement claim.
Regarding contributory infringement, without 512 eligibility, Perfect 10 does not need to send 512(c)(3) notices. Instead, per Perfect 10's typical modus operandi, Perfect 10 simply sent a disk containing its copyrighted photos and basically told RapidShare to block those photos. The court says the disk delivery gave RapidShare actual knowledge of infringement. Wow. I miss 512(c)(3) after all!
Nevertheless, RapidShare does not make a material contribution because "RapidShare does not provide an integrated service that allows users to locate and download infringing files." Further, even though Perfect 10 didn't identify infringing URLs, RapidShare's other remediation efforts led the court to conclude that "RapidShare is using information provided by Plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files." Therefore, "RapidShare is [not] failing to take simple measures to prevent further damage to Plaintiff’s copyrighted works."
Following this ruling, RapidShare countersued Perfect 10 for being a "copyright troll." I'm not sure about the legal merits of RapidShare's countersuit, but I heartily applaud its sentiments!
Posted by Eric at 08:31 AM | Copyright , Derivative Liability , Publicity/Privacy Rights | TrackBack
June 20, 2010
No Wrath in this Quon--Ontario v. Quon
The Supreme Court passes on almost every issue before it in City of Ontario v. Quon.
By Ethan Ackerman (with comments from Eric below)
On Thursday, the U.S. Supreme Court released its opinion in City of Ontario v. Quon, a Fourth Amendment case over the privacy government employees, and those who communicate with them, have in their workplace communications.
I noted with some surprise in December 2009 when the Court granted certiorari, and wondered whether this was a good or bad thing for online privacy. The glass half-full or half-empty quandary remains after the court's narrow opinion. The result for officer Quon and his text message recipients is a loss, but only because the Court found the city's search sufficiently narrow to pass muster even assuming he was entitled to all the possible Fourth Amendment protections, even while the Court declined to conclude whether or not he did actually have those protections. Everyone else will have to await the further development of Fourth Amendment case law, as Justice Kennedy's opinion for the unanimous Court said that "Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices."
There is more insightful commentary than this brief note at Scotusblog.
_____________
Eric's comments: after seeing the opinions, it remains baffling why the court granted cert in this case. The only obvious reason is that the Supreme Court felt like it had to fix the 9th Circuit’s mistakes, as it yet again reversed the 9th Circuit (like that wasn’t entirely predictable). Otherwise, the opinions are so limited to the facts of the case that they provide almost no value to anyone other than the litigants. That seems like a real lost opportunity for an appellate court with discretionary appeals. Even so, it's better than dealing with a Supreme Court screwup that could have easily occurred given the messy facts in this case.
I had a chance to moot the case earlier in Spring, so I read the litigants' SCOTUS briefs. By far the most compelling fact in that massive stack of paper was that Quon was a SWAT team member who was texting on the job using a government-issued device. The on-the-job conduct of SWAT team officers is especially likely to be subject to investigation/discovery requests if/when something goes wrong, so it makes total sense to narrowly circumscribe the privacy afforded to SWAT team members’ text messages. I would feel differently about the privacy rights of other government employees whose minute-by-minute choices don’t have the same instantaneous life-and-death consequences. I don't see how this case's outcome has any implications for private-sector employees or employers.
Posted by Ethan Ackerman at 07:21 PM | Publicity/Privacy Rights | TrackBack
June 19, 2010
MySpace Photo and Internet Gang Roster Evidence Improperly Admitted -- People v. Beckley
[Post by Venkat]
People v. Beckley, Case No. B212529 (Cal. Ct. App. June 9, 2010)
Two defendants were convicted of a gang-related homicide in this case.
MySpace Photos: The girlfriend of one of the defendants offered an alibi that one of the defendants was babysitting her child at the time of the shooting. She also testified that the defendant ceased gang involvement (at her request) after the two became involved. In order to rebut the gang affiliation testimony, the prosecution offered a photograph of the girlfriend flashing a gang sign - the photograph was downloaded from the MySpace page of one of the defendants. The prosecution relied on the testimony of the detective who downloaded the photograph.
The court of appeals held that admission of the photograph was error (unfortunately for the defendants, the court held that this error was harmless). The court noted that there are two methods for authenticating a photograph: (1) testimony of a person who was present when the photograph was taken and (2) expert testimony that the photograph is not "a composite and had not been faked," along with foundational testimony. Here, neither method of authentication was used. The court urged particular caution when it came to digital photos and photos found on the internet:
Although defendants conceded that the face in the MySpace photograph was Fulmore's, neither method of authentication recognized in Bowley qualified the photo for admission as accurately depicting that Fulmore had assumed the pose shown in the photograph. [The detective] could not testify from his personal knowledge that the photograph truthfully portrayed Fulmore flashing the gang sign and . . . no expert testified that the picture was not a "'composite' or 'faked'" photograph. Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when Doggett and Bowley were decided. Recent experience shows that digital photographs can be changed to produce false images. (See e.g. U. S. v. Newsome (3d Cir. 2006) 439 F.3d 181, 183 [digital photographs used to make fake identification cards].)
. . . .
Indeed, with the advent of computer software programs such as Adobe Photoshop "it does not always take skill, experience, or even cognizance to alter a digital photo." (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time (2009) 2009 J. L. Tech. & Pol'y 175, 183.) Even the Attorney General recognizes the untrustworthiness of images downloaded from the internet, quoting the court's warning in St. Clair v. Johnny's Oyster & Shrimp, Inc. (S.D. Tex 1999) 76 F. Supp.2d 773, 775 that "'[a]nyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time.'"
Online Gang Roster: The prosecution also sought to show that defendants belonged to a gang (the Southside Compton Crips) and as evidence offered a roster which appeared on a web page.
The court found that this evidence was also improperly admitted. The detective admitted that "he did not know who authored the roster." Although the detective claimed that "they themselves put [the list] together," he did not explain the basis for this assertion. The court noted that the issue with respect to authenticity was not "whether the computer's printer could be trusted to reliably print out what was . . . stored on some site but whether the content of what was on the site was reliable."
Unfortunately for defendants, the court held that admission of this evidence was also harmless error. This is not the first time a court has found that MySpace gang affiliation evidence was improperly admitted but that the admission was harmless.
Additional Coverage: "'Unauthenticated' Photo From Website Held Inadmissible" (Metropolitan News-Enterprise)
Related: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication"
Posted by Venkat at 11:25 AM | Publicity/Privacy Rights
May 09, 2010
Updates to the Outed Judge-Commenter's Lawsuit Against the Plain Dealer -- Saffold v. Plain Dealer
[Post by Venkat]
I posted a while ago on the lawsuit brought by Judge Saffold against the Plain Dealer newspaper where she alleges the newspaper improperly outed her as a commenter in breach of its privacy policy.
A few updates:
1. Judge Saffold Removed: Judge Saffold was presiding over a serial murder case, and among other things, she was accused of making comments about case on the Plain Dealer's website. At the defendant's request, she was removed from the case.
2. Comments by "lawmiss" on Other Sites: The Plain Dealer reports (in a detailed article) that a commenter with the same username as Judge Saffold ("lawmiss") made comments on other sites, including those that allegedly "target Arabs, Asians, others."
3. A Second Username for Judge Saffold?: The Plain Dealer (again) reports that "other commenters on cleveland.com have noted a similarity between the lawmiss comments and postings under the username 'governmentwatcher.'"
4. Judge Saffold's Unpaid Parking Tickets: The Plain Dealer also reports that Judge Saffold has over $1000 in "fines and late fees for city of Cleveland traffic and parking tickets." (via Volokh Conspiracy)
5. Judge Saffold's Work Computers Removed: The Plain Dealer subpoenaed Judge Saffold's work computers which were removed from her chambers.
___
The Plain Dealer, which reported on all of these stories, seems to be engaged in a media war against the judge. To me, this just highlights the tricky situation the Plain Dealer was in in the first place, by having access to Judge Saffold's account particulars. To the extent they as a media entity have access to information, the temptation to use it will be strong, and tough to resist. Also, the Plain Dealer is providing Judge Saffold ample ammunition to argue that the Plain Dealer was being vindictive, and if it's found to be liable, this may not help the damage calculus. (They're certainly not abiding by the "less is more" rule.) On the other hand, a plaintiff who brings claims revolving around his or her reputation can expect to have everything in his or her background dredged to the surface. If Judge Saffold is found to have been the prolific online commenter that the Plain Dealer says she is, this is not going to do wonders for her reputation, which has probably already suffered some damage following the lawsuit.
Two other posts that I came across that are worth checking out: (1) "Judge Suing Newspaper for Breach of Web Privacy Agreement Over Being Outed as Author of Anonymous Comments" (this post by Professor Volokh and the comments to the post highlight the fact that there's no clear answer under the policy) and (2) "Unmasking a Judge’s Anonymity: Saffold v. Plain Dealer Publishing Co" (this post by Professor Solove discusses the various legal claims, and also points in the direction of no clear answer, at least on the privacy policy issue).
Finally, Professor Goldman was on a Berkman Center panel that briefly discussed this case, along with a host of other issues faced by those who build and maintain online communities [YouTube link]: "Building and Managing Online Communities: Anonymity, Defamation and Privacy, Oh My!" The panel is well worth checking out.
Posted by Venkat at 10:39 PM | Publicity/Privacy Rights
April 23, 2010
Beverly Stayart Strikes Again! This Time, Stayart Sues Google
By Eric Goldman
Stayart v. Google, Inc., 2:10-cv-00336-LA (E.D. Wis. complaint filed April 20, 2010)
I've previously blogged about Beverly Stayart (a/k/a Bev Stayart) and her mockable lawsuit against Yahoo. She has repeatedly declared that she is the only Beverly Stayart / Bev Stayart in the world and that her name--due to the cachet she has built up from being a quality human being--is being used to peddle sex-related pharmaceuticals. She lost her first foray against Yahoo on 47 USC 230 grounds but nevertheless is trying again.
Now, she has launched another effort to defend her name—this time she is suing Google for similar concerns. (Like we couldn't see that coming!). She objects to the fact that Google Suggest prompts searchers on "bev stayart" to search for "bev stayart levitra." (para. 13). Anticipating a 47 USC 230 defense, she argues (para. 15) that Google Suggest represents first party editorial content that drops out of 230 coverage. The complaint also seems to raise the question of whether selling a personal name as a keyword trigger constitutes a publicity rights violation; but the complaint does not appear to evidence any understanding of broad matching, i.e., that a search for "bev stayart levitra" will deliver Levitra-related broad-matched ads for reasons having nothing to do with Bev Stayart. (See this recurring defect in paras. 90-109).
(Note: this prompted me to check out a search for "eric goldman levitra." My first result, from www.hosmersoda.com, looks pretty sploggy to me, but there's no way I'm going to click on these links!!!)
Some unsolicited advice for Bev Stayart: stop suing search engines, and stop running vanity searches on the search engines. Life is too short to fret about sploggers!
Two final notes: Bev's attorney is, once again, Gregory A. Stayart, her employer and presumably a family relation. Also, searches for "Bev Stayart" and "Beverly Stayart" are worth a look—I can’t recall other search results quite like that.
Posted by Eric at 09:29 AM | Derivative Liability , Publicity/Privacy Rights , Search Engines , Spam | TrackBack
April 13, 2010
Google Sued for Publishing Home Address--Harris v. Google
By Eric Goldman
Harris v. Google, Inc., 1:10-cv-21119-AJ (complaint removed to S.D. Fla. April 8, 2010). The original complaint filed in state court. Google's removal to federal court.
Jonathon Harris sells rare coins. His business office is in Stuart, Florida, and he lives in Jupiter, Florida. As gold prices soared, Harris claimed a heightened fear of being robbed; and to the extent his home address was publicly known, he feared that criminals would seek him out there.
Searches for Harris' business in Google Phonebook pointed potential customers to his home address in Jupiter, not his business address in Stuart. Google Phonebook provides a takedown procedure that promises a "permanent" fix within 48 hours. Harris claims that he made a takedown submission and Google initially honored it; but subsequently his home address showed up again, and Google then ignored multiple takedown requests. He sued in state court for public disclosure of private facts and intentional infliction of emotional distress. Google has removed the complaint to federal court.
On its face, I am skeptical that publication of Harris' home address was sufficiently "outrageous" to satisfy the prima facie elements of either of his claim. But even if it does, Google ought to be protected by 47 USC 230. It appears that Google Phonebook is provided by a third party provider, so it should qualify as third party content to Google, and the types of claims Harris makes are squarely covered by 230. Compare, e.g., the Doe v. MySpace cases, where the victims actually experienced physical harm; here, Harris just raises the possibility of prospective harm.
While this looks like an easy 230 case, I wonder if this case implicates some of the interstices of the Barnes v. Yahoo ruling. At its core, Harris isn't complaining just about the publication of his home address; he is also complaining that Google Phonebook's promised a fix and didn't deliver. Per Barnes, any negligence-style claim for failure to remove should be preempted; but did the website disclosures provide Harris with sufficient grounds for a promissory estoppel claim? (Note he didn't make a promissory estoppel claim per se, but it is perhaps implicit in the claims he did make). Ultimately, even if he tries to push the promissory estoppel angle, Harris may have difficulty establishing sufficient reliance on the Google Phonebook disclosures.
I am a little confused why Harris' court filings didn't redact his home address. As is so common for plaintiffs bringing privacy invasion lawsuits, Harris' lawsuit may have been counterproductive at trying to keep the world from knowing his home address. In this respect, I'm reminded a little of the Boring v. Google lawsuit; like the Borings, perhaps Harris is unusually sensitive about his home privacy, and a public lawsuit is an ineffectual method of preserving that. Then again, I bet Harris' lawsuit would not have even materialized if he hadn't felt that Google was such a black box when he repeatedly complained.
Posted by Eric at 09:01 AM | Derivative Liability , Publicity/Privacy Rights | TrackBack
April 08, 2010
Unmasked Judge/Commenter Sues Newspaper for $50mm -- Saffold v. Plain Dealer
[Post by Venkat]
Saffold v. Plain Dealer Publishing Co., Cuyahoga County Court of Common Pleas (filed April 7, 2010) [scribd]
A judge/commenter who was unmasked by the Cleveland Plain Dealer is reportedly suing the newspaper for 50 million dollars. (h/t ABA Journal) There are plenty of bad facts to go around, but I see an uphill battle for the plaintiff.
Background: Cuyahoga County Common Pleas Judge Shirley Strickland Saffold (or someone with access to her email, commenting as "lawmiss") allegedly left some eighty plus comments on the website of the Cleveland Plain Dealer (at cleveland.com). Some of the comments included:
All of these criminals committing crimes against women must stop. None of them should get out of prison, EVER.
Rufus Sims (lawyer of Sowell and of a bus driver convicted of vehicular homicide) did a disservice to his client. If only he could shut his Amos and Andy style mouth ... This was not a tough case, folks. She should've hired a lawyer with the experience to truly handle her needs. Amos and Andy, shuffling around, did not do it.
I'm confused. There's three stories. The first accuses Saffold of being a bully and demeaning the presence of this reporter for no reason. The second indicates that she refused to allow the Plain Dealer reporters to view the proceedings today, and the last indicates that the defense attorneys and the prosecutors agreed that the court needed to find out who the leak was, but they disagreed about the leaking spoiling the pool. What did Saffold do that was wrong??
The Plain Dealer decided to "unilaterally . . . unmask" Judge Saffold and wrote an article about the unmasking. The Plain Dealer and Judge Saffold were not on the best of terms prior to this incident. While Judge Saffold allegedly commented on pending capital murder cases, her comment dealing with the mental health of a relative of Jim Ewinger, a Plain Dealer reporter, supposedly led to the unmasking. (Wendy Davis covered this in an article here: "Cleveland Paper Unmasks Judge As Commenter".)
The Complaint: The Complaint asserts various claims based on the privacy policy (including a promissory estoppel claim), a claim for fraud, a claim for invasion of privacy/false light, and a claim for defamation.
Privacy Policy: The privacy policy claim is tough. For starters, the privacy policy is not clear that it guarantees anonymity. Second, claims for damages based on a breach of privacy policy are not very easy to make. Many recent cases rejected privacy policy-based claims for lack of actual damages (and some jurisdictions have a rule that precludes recovery for emotional damages unless a physical injury is involved). (See, for example, Pinero v. Jackson Hewitt; Bell v. Acxiom; Pisciotta v. Old National Bancorp [pdf].) There's even a case which expressly rejects a claim based on the disclosure of an email address in violation of a privacy policy. (Cherney v Emigrant Bank) Of course, all of these cases are based on the view that disclosure in itself does not cause damage, and Judge Saffold's case presents different facts. She will probably get past the damages hurdle, but she will have to deal with any provisions in the terms of service that the paper could use to undercut her claims or at least limit damages (disclaimers of warranty, limitations of liability, etc.). Her bigger challenge is to prove that the privacy policy actually guaranteed anonymity, and as Wendy's article points out, the policy envisions that the newspaper would use personal information in a variety of scenarios, including for the newspaper's own benefit.
Invasion of Privacy: The invasion of privacy claim is similarly tough because it will probably turn on whether plaintiff reasonably expected that her comments would remain anonymous. Anyone using the internet will tell you that there's no guarantee of anonymity, and in addition to the ambiguity of any guarantee in the policy, the paper will likely argue that the policy made clear that there are a variety of circumstances in which any user's personal information would be disclosed. Disclosure in response to a subpoena is obviously the classic example. Use of personal information for business purposes is another example.
First Amendment/Media Privilege Defense: At the end of the day, plaintiff will have a challenge proving that she reasonably expected some guarantee of anonymity, and even if the court finds that there was a guarantee, the newspaper could also try to invoke some sort of First Amendment/media privilege defense. It's certainly newsworthy for a judge to have commented on pending cases. While this wasn't what prompted the newspaper's unmasking of the plaintiff, this could bolster the newsworthiness argument. The fact that the judge used the same online profile to supposedly comment on a case she was presiding over (!) is extremely problematic and will cut against the expectation of anonymity. A litigant in that case certainly has a shot at discovering the identity of the commenter in order to support a recusal motion, and once the litigant figures out the judge's identity, the cat is out of the bag. The lawyers litigating the serial murder case Judge Saffold was presiding over (and allegedly commented on) are actually making this argument. ("After Web Post About Serial Murder Case, Judge Should Step Down, Lawyer Says"; "‘Lawmiss’ Comment on Accused Serial Killer Is Linked to Judge Overseeing His Case") This makes the Judge's expectation of anonymity argument that much harder. Had the newspaper found this information out from another source, the First Amendment argument would probably be a fairly strong one. However, given that the Plain Dealer doesn't seem to have the cleanest hands, I'm not sure how much mileage this will get here.
__
There are two strong facts on the other side, in the plaintiff's favor. First, the paper seems to have been engaged in a feud with her, and the reporter may have had his own personal score to settle. This will not look good for the paper. Second, media entities can't pick and choose. It certainly is arbitrary for a paper to say "we have a privacy policy and will protect your anonymity . . . except when your identity as a commenter is newsworthy, in which case we'll exploit that to our benefit." Newspapers are in a tricky position as far as commenter anonymity, and no one will reasonably think that media can have it both ways, which is what they'll have to end up arguing. Finally, while the newspaper could have disclosed the Judge's identity in response to a subpoena, that doesn't mean the paper should voluntarily disclose it in order to publish something it thinks is newsworthy (or to settle a score).
The key question here, is how, why, and when the newspaper decided to check out the real identity of "lawmiss."
When all is said and done, plaintiff will finally have to actually prove damages, and suffer the additional embarrassment of a very public dispute around her comments on a newspaper website. Discovery sure is not going to be pretty. (Interestingly, the complaint cites to many public statements made by the Plain Dealer. The Plain Dealer should have adhered to the "less is more rule," when making statements about potential disputes.) Regardless of how the dispute plays out, I guess it illustrates that when interacting online, people need to keep common sense at the forefront. To the extent the she commented on a serial murder case she was presiding over, what was she thinking? On the other hand, what was the newspaper thinking when it decided to "check out the identity of a commenter?"
The case raises the issue of the ethical quandary inherent when a newspaper is the custodian of anonymity. To the extent the newspaper has access to the identity of commenters, there will always be the temptation to check out who particular commenters are. The newspaper in many situations ends up making the call on when to release the identity of the commenter, when to publicize it, and when to fight for anonymity. There will always be conflicting considerations and ethical issues present here.
A final note. Whether someone had the expectation of privacy when dealing with a website or social network is becoming an increasingly litigated issue. I question how useful it is to use the actual language of a privacy policy to determine the expectation of privacy. These are clunky documents that no one ever reads, much less understands. I cringe every time a court wades through a privacy policy, picking and choosing among language it thinks supports or detracts from an expectation of privacy. I blogged about a recent case where a court held that a newspaper website commenter did not waive the expectation of privacy based on language of a policy: Sedersten v. Taylor. Tom O'Toole makes a similar point in a post about another recent case, McVicker v. King: "Newspaper Website's Privacy Policy Creates Expectation of Privacy for Commenters?"
Update: I've added a few additional links below, and clarified that the comments were left with someone who shares the same email address as Judge Saffold. (Judge Saffold's daughter is taking credit for the comments, or at least some of them.) The Plain Dealer reported that someone with the same email address as Judge Saffold left the comments, and verified some of the information behind its reporting through a public records request. It reported that its public records request revealed that someone used Judge Saffold's work computer to access the paper's website at the same exact time as when someone left some of the comments.
Additional Coverage:
Courthouse News has a post which provides some good factual background: "Judge Demands $50 Million From Plain Dealer"
ABC News has a post which also contains some interesting background facts: "Judge Saffold Files $50M Suit Against Cleveland Newspaper Over Online Comments" (It looks like the Judge's daughter who is or was a law student says she was the one who made some of the comments! An Ohio law professor is also quoted as saying it would have been a "major ethics violation" for the judge to have commented on pending cases.)
Cleveland Plain Dealer: "Cuyahoga County Judge Shirley Strickland Saffold files $50 million lawsuit against The Plain Dealer and others"
Gawker: "Can Anonymous Commenters Be Outed if They Do Something Newsworthy?"
The Newsroom Law Blog had a good post about the ethics of the unmasking: "Cleveland Newspaper Unmasks Anonymous Commenter" The post makes a good point about what this may mean for future anonymity arguments asserted by the Plain Dealer on behalf of anonymous commenters. [The Plain Dealer's John Kroll comments on the post . . . fodder for discovery?]
Posted by Venkat at 08:36 AM | Privacy/Security , Publicity/Privacy Rights
February 01, 2010
Google Street View Lawsuit Revived, But Only on Trespass Grounds--Boring v. Google
By Eric Goldman
Boring v. Google Inc., 2010 WL 318281 (3rd Cir. Jan. 28, 2010).
You may recall the book project A Day in the Life of America
Inevitably, some people are going to be unhappy with whatever Google's camera cars indiscriminately captured and published. The plaintiffs in this case, Aaron and Christine Boring, are Pennsylvania homeowners with a reclusive streak. The Google camera car drove down the Borings' private driveway (allegedly ignoring the Borings' signage), took pictures of their house and published the photos through Google Street View.
The Borings were not satisfied with exercising Google's opt-out mechanism and instead made a federal case out of Google's transgressions. However, the district court was not impressed and kicked the Borings out of court.
The Borings appealed to the Third Circuit, which rewarded them with a small window of opportunity. The district court had rejected the Borings' trespass claims because they had not adequately alleged damage from the trespass. The appellate court reversed this point, saying a real property owner does not need to allege damage in order to state a valid trespass claim. As the court says, "Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple." I'm not a real property expert, but this sounds right to me. The district court cited an 1899 case in support of its ruling, but the appellate court said that precedent was inapplicable.
Thus, the trespass claim survives a 12(b)(6) motion to dismiss, and the case gets sent back to the district court. While the appellate court expressly didn't tell the judge what to do, it's pretty clear that the appellate court doubts that the Borings will be able to assert any cognizable damage. As the court says, "it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring." My guess is that's the best possible outcome for the Borings.
In my opinion, the court's rejection of the Borings' privacy claims is the more interesting cyberlaw development. The court sensibly concludes that any violation suffered by the Borings would not highly offend a reasonable person. In other words, the Borings overreacted in a way the law does not recognize.
Given that the Borings weren't depicted in the photos, the court's ruling suggests that publishing online photos of private property categorically can't qualify as a privacy violation, whether the photos are taken on public or private property. The court's ruling, however, leaves open the possibility that depicting people in the photos might still be actionable--a question not before the court.
While the case has been revived, it's entirely clear to me that the Borings will not find much success on remand. Nevertheless, to save the litigation costs, Google ought to write a small check to settle the case, and the Borings would be prudent to take it rather than wait for the inevitable judicial denouement. To avoid further unwanted intrusions, they should use their settlement money to buy a gate for their driveway.
Posted by Eric at 06:43 AM | Publicity/Privacy Rights , Search Engines | TrackBack
January 31, 2010
January 2010 Quick Links
By Eric Goldman
Copyright
* An English translation of Google's December loss in France on a Google Book Search lawsuit.
* Ed Felten reports on a survey of files available via BitTorrent. Acknowledging some methodological limits, he estimates ~99% were likely copyright infringing.
* Elsevier B.V. v. UnitedHealth Group, Inc., 2010 WL 150167 (S.D.N.Y. Jan 14, 2010). Denying copyright statutory damages and attorneys' fees to unregistered foreign works is constitutional because the Berne Convention (which Elsevier argued prohibits the statutory formalities) is not self-executing.
* Techdirt: Singapore Court Rules That Online DVR Is Infringing...While Noting How Copyright Law Isn't Really Set Up For This
* Techdirt: If Banning The Internet For Sex Offenders Is Unfair, Is Banning The Internet For Copyright Infringers Fair?
* The Copyright Office issued new regulations on the deposit of online-only works: “The regulation establishes that online–only works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office.”
Trademark/Publicity Rights
* American Airlines v. Yahoo settled. Previous coverage:
- Yahoo Subpoenas Expedia in American Airlines Lawsuit
- Fifth Circuit Denies Yahoo's Jurisdictional Appeal in American Airlines Case
- American Airlines v. Yahoo Venue Transfer Denied
- Yahoo Countersues American Airlines for Declaratory Judgment
- American Airlines Sues Yahoo for Selling Keyword Advertising
* Duplicity alert! Rescuecom is in court defending its keyword ads triggered by competitor Best Buy's TMs.
* Bev Stayart sues Yahoo again over publicity rights. My September 2009 blog post on her prior loss against Yahoo.
Pornography
* Clark v. Commonwealth, 2009 WL 5125009 (Ky. App. Ct. Dec. 30, 2009). Upholding a conviction when "Clark knowingly used a computer for the purpose of getting a minor, or a peace officer whom Clark believed was a minor, to take a sexually explicit photograph of herself."
* Am. Booksellers Found. for Free Expression v. Cordray, Slip Opinion No. 2010-Ohio-149 (Jan. 27, 2010). Ohio's Supreme Court partially upholds its state law restricting Internet distribution of harmful to juveniles material to juveniles when the communications are to recipients known or believed to be juveniles.
Spam
* United States v. Zein (E.D. Mich. 2009). Posting an ad on Craigslist constituted a "mass marketing" activity sufficient to trigger a 2 level sentencing enhancement.
* Comcast and e360 settled their lawsuit. Previous blog coverage.
Blogs/Social Networking Sites
* Sieber v. Brownstone Publishing Company, 2007 CA 002549 B (D.C. Superior Ct. Dec. 23, 2009). A building contractor sued Angie's List and other people over consumer reviews. My prior mention of the case. After 2 years of litigation, a DC trial judge dismissed all defendants on summary judgment and awarded one defendant-counterclaimant $18k+. The entire text of the memo opinion:
MEMORANDUM OPINION AND ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT OF ALL DEFENDANTS, DENYING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT, and GRANTING POOLE'S MOTION FOR SUMMARY JUDGMENT ON HIS COUNTERCLAIM signed by Judge Long, efiled, eserved, and docketed in chambers on December 23, 2009. It is ORDERED that the Motions for Summary Judgment of Brownstone Publishing Co., the Washington Post Company, John Kelly, and John W. Poole are granted; and it is FURTHER ORDERED that the Motions for Summary Judgment filed on behalf of the plaintiffs are denied; and it is FURTHER ORDERED that judgment shall be entered in favor of all defendants against the plaintiffs as to all claims in the Second Amended Complaint; and it is FURTHER ORDERED that judgment shall be entered in favor of defendant Poole and against plaintiff SCS Contracting Group LP as to Poole's Counterclaim against plaintiff SCS Contracting Group for $18,300 plus 6% (six percent) per annum interest, and a separate money judgment for this sum shall be docketed. Court Jacket not in chambers.
* FINRA Regulatory Notice 10-06: Guidance on Blogs and Social Networking Web Sites.
* Duer v. Henderson, 2009-Ohio-6815 (Ohio App. Ct. Dec. 23, 2009). A web publication telling a ghost story and describing the location of purportedly paranormal phenomenon on private property is not liable for any resulting trespass to real property.
* The “moldy tweet” lawsuit was dismissed.
* Two lawsuits holding that bloggers aren't subject to jurisdiction in the plaintiff's home court:
- Silver v. Brown, 2009 WL 5220297 (D. N.M. Nov. 30, 2009).
- Workman Sec. Corp. v. Phillip Roy Financial Services, LLC, 2010 WL 155525 (D. Minn. Jan 11, 2010)
* BBC: France ponders a right-to-forget law.
E-commerce
* Appliance Zone, LLC v. NexTag Inc., No:4-09-cv-0089-SEB-WGH (S.D. Indiana Dec. 22, 2009). Upholding NextTag's clickthrough-formed advertiser agreement. Mehmet Munur’s comments.
* Edward A. Zelinsky, “New York’s 'Amazon Law': Constitutional But Unwise.”
* Largo Cargo v. Google, a new complaint over allegedly mismanaged AdWord bids. This is the latest incarnation of the Almeida case. I think Largo Cargo’s complaint is still a no go.
* The NYT catalogs an impressive roster of futility for US dot coms trying to compete in China.
Miscellaneous
* Gmail will consult the user's prior emails to pick an ad if a particular email doesn't lend itself to a good ad.
* Illustrating the divergence between the open source community and the Wikipedia community, APC reports that 75% of Linux code is now written by paid developers.
* Oddee: 15 Funny Facebook Fails.
* I expect to be in the Netherlands May 23-30. Let me know if you would like to meet up there.
Posted by Eric at 01:19 PM | Content Regulation , Copyright , Derivative Liability , E-Commerce , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Spam , Trademark | TrackBack
January 11, 2010
Top Cyberlaw Developments of 2009 (Eric's List)
By Eric Goldman
Guest blogger John Ottaviani recently dropped by to offer his perspectives on 2009’s top Cyberlaw developments. While I like his list a lot, I independently developed my own top 10 list that has a different emphasis. You might enjoy the contrasts. My list:
#10: Louis Vuitton v. Akanoc. After the judge ordered a web host to stand trial, a jury awarded the trademark owner $32 million due to the web host’s contributions to trademark infringement by its customers. This case stands out for the big damages award and as a rare example where an online provider was held liable under a contributory trademark liability theory. Many trademark practitioners are scratching their heads trying to figure out the import of this case, however. Does this case represent a dangerous new frontier of online liability? Was this a bad jury verdict fueled by poor defense lawyering? Or was this an appropriate outcome because the web host actually engaged in bad behavior that distinguishes it from most “legitimate” web hosts? 2010 may help us understand if this case is part of a new trend or an aberration.
#9: Gordon v. Virtumundo. We’ve seen a lot of silly anti-spam litigation, including the emergence of an entirely new group of entrepreneurs called “spam litigation entrepreneurs” who try to make a living on anti-spam lawsuits. These folks have a true love-hate relationship with spam; they hate it so much that they devote their lives to fighting it, but they love getting spam because each one is a potential revenue source. In general, judges hate spam a lot too, so over the years we have seen a number of doctrinally unsupportable results where judges bent the law to make sure spammers lost.
However, the judicial pendulum has swung in the opposite direction, and in Gordon v. Virtumundo, the Ninth Circuit destroyed a serial anti-spam plaintiff’s entrepreneurial business in a doctrinally questionable but strongly worded opinion. In short order, a number of other spam litigation entrepreneurs have seen their lawsuits shut down with emphasis. Due to this ruling, the era of anti-spammers partying in courts may be on the wane.
#8: Zango v. Kaspersky. The question raised in this issue is simple to state but hard to answer: who should decide what constitutes spam, spyware or a virus? Vendors of software designed to curb these threats would like unfettered discretion to make their classifications; businesses who are classified as a threat would like judges to overturn adverse decisions. As it turns out, in a relatively obscure provision (47 USC 230(c)(2)), in 1996 Congress said that software vendors get to make classifications decisions and unhappy businesses can’t complain about them. In June, the Ninth Circuit upheld Kaspersky’s decision to classify Zango’s software as a threat and rejected Zango’s efforts to take the classification decision out of Kaspersky’s hands. This ruling gives enormous freedom to vendors of anti-spam/anti-spyware/anti-virus software to do their best to keep us safe.
#7: Columbia Pictures v. Fung. This case came out just before the Christmas holiday, so it got lost in the holiday hoopla a bit, but it’s a case of potentially significant import. First, it held that the specific torrent sites at issue induced copyright infringement. Second, the court denied the torrent sites’ eligibility for the DMCA online safe harbors. In part, the court said that an inducing website was categorically disqualified from the DMCA online safe harbors. Like the Akanoc case, it’s not entirely clear if this result was a legal aberration or an appropriate reaction to the defendants’ poor choices. Either way, it is possible that more “legitimate” websites may change their behavior to minimize their exposure based on the legal precedents in this case. If they do, this case could have a major impact on UGC websites.
#6: Lori Drew’s acquittal. Megan Maier’s suicide remains a heartbreaking tragedy, but unfortunately, overzealous prosecutors compounded the tragedy by prosecuting Lori Drew using bogus legal doctrines. The tragic facts got a jury to convict Drew of some misdemeanor crimes. Fortunately, the judge recognized the legal errors of the prosecution’s theory and the jury’s conclusions and granted Drew an acquittal despite the jury findings. The judge finally got to the right result as a matter of Cyberlaw, but the case remains a chilling testament to prosecutorial power.
#5: Harris v. Blockbuster. The rule is really clear. Service providers can't amend online user agreements in the provider’s sole discretion without notice. As the Ninth Circuit informed us in 2007, those contracts don’t fare well in court. So although these provisions are in just about every online user agreement, they don’t work--as Blockbuster found out the hard way.
As part of the litigation detritus from the Facebook Beacon experiment, users sued Blockbuster for sharing their rental transactions with Facebook and all of their friends, allegedly in violation of the Video Privacy Protection Act. Blockbuster tried to bust the class action by invoking the contract’s arbitration clause. Instead, because Blockbuster had the impermissible amendment provision in its user agreement, the court said the contract was illusory and refused to send the case to arbitration.
This case should signal the end of the ridiculous amendment clauses. We’ll see how long it takes the lawyers to give the provisions up.
#4: Battles Over the First Sale Doctrine. We have seen numerous legal battles this year over the First Sale defenses in both copyright and trademark law.
Copyright owners try to engage in price discrimination by carving up the world into geographic territories with different prices for the same product. If they can use copyright law to keep the cheap products from entering the other geographic market, this keeps the product from effectively price-competing with itself.
This year, two cases involved European textbooks which were functionally equivalent to the textbooks being sold in the United States at higher prices. Entrepreneurs were buying the cheap European texts, shipping them to the US and then selling them online. The entrepreneurs invoked the First Sale doctrine, which says that copyright law can’t prohibit the legitimate purchaser of a tangible copyrighted item from reselling the item to whomever they want at whatever price they want.
However, copyright law has another provision that allows copyright owners to block the importation of copyrighted works into the United States. In the 1998 Quality King case, the US Supreme Court said that the First Sale doctrine trumped the importation right when the goods were manufactured in the US, sold overseas, and then imported back to the US. However, in Pearson v. Liu and John Wiley & Sons v. Kirtsaeng, the judges said that the importation right trumps the First Sale doctrine when the goods were initially manufactured overseas. This issue is ripe for further adjudication, though. A similar importation case, Costco v. Omega, is pending before the US Supreme Court, which is deciding whether or not it wants to hear the case. If it does, we may get clearer instructions about the interplay between the First Sale doctrine and the copyright importation right.
Copyright’s First Sale doctrine was also at issue in Vernor v. Autodesk, where the purchaser of a software disk wanted to resell the disk on eBay despite restrictions in the software licensing agreement barring such resales. The court held that the First Sale doctrine applied and allowed the resale. There are other cases percolating through the court system involving the resale of tangible media contained copyrighted material despite contractual restrictions on resale, so this issue remains a hot one.
Trademark owners also try to prevent competition with their products that leak out of their official channels of distribution. eBay has been the site of a couple battles over the First Sale doctrine in trademark law. In Mary Kay v. Weber, the court held that the trademark First Sale doctrine may not permit the eBay resale of expired cosmetics by a Mary Kay independent beauty consultant. In Beltronics v. Midwest, a trademark owner shut down the eBay resale of radar detectors that had leaked out of the manufacturer’s channel and were being sold (at a cheaper price) without the manufacturer’s warranty.
Clearly, the First Sale doctrine matters a lot to eBay and other consumer-to-consumer e-commerce websites. With a possible pending Supreme Court case and lots of IP owners looking to stifle competition from goods they have already profited from, expect the First Sale doctrines to get lots of attention in 2010.
#3: 47 USC 230. In my opinion, 47 USC 230 is the most important Cyberlaw statute, so new 230 developments will make my top 10 list for the foreseeable future. This year, there were three federal appellate court rulings interpreting 47 USC 230(c)(1):
* in Barnes v. Yahoo, the Ninth Circuit held that 230 protected a website’s negligent delay in removing user content. However, if the website had promised removal to the user, the user could have a viable claim for promissory estoppel that would not be preempted by 230.
* in FTC v. Accusearch, the Tenth Circuit held that a website’s resale of pretexted phone records—even if those records were supplied by third party suppliers—did not qualify for 47 USC 230 protection because of their illegality.
* in Nemet Chevrolet v. ConsumerAffairs.com, the Fourth Circuit held that a consumer review website was not liable for user-supplied reviews, even when the website worked with the user to submit the review, and despite the plaintiff’s unsubstantiated claims that the website had fabricated the reviews itself.
Really, the big 47 USC 230 news in 2009 is the absence of big news. Specifically, 2009 reinforced that the Ninth Circuit’s 2008 Roommates.com decision—one of the most significant defense losses under 47 USC 230—did not rip open a major hole in the statutory protection of websites. Of the 13 cases that I have seen that have cited the Roommates.com en banc opinion, eleven have cited the case in favor of the defense. (See the list here). The two exceptions are the Accusearch case, mentioned above, and the New England Patriots’ lawsuit against StubHub over season ticket resales, an odd opinion that may not have much influence. Therefore, despite our fears about Roommates.com, the 47 USC 230 immunity remained healthy and vibrant in 2009. For more on this topic, see my special recap of 47 USC 230's year-in-review for 2009.
#2: Keyword Advertising Battles. Keyword advertising battles are another perennial topic on these year-in-review lists. A multi-billion dollar a year industry has sprung up around the sale of keyword-triggered advertising, including some keywords that may be third party trademarks, and trademark owners don’t like it at all. This has led to a multi-front battle between trademark owners, keyword advertising sellers (such as Google), and keyword advertising buyers.
One of the biggest Cyberlaw cases of the year was the Second Circuit’s ruling in Rescuecom v. Google. In the district court in 2006, Google won an easy victory against a trademark owner because the court said that Google did not make the requisite “use in commerce” of the trademark. The Second Circuit reversed the district court, sending the case back for further proceedings. The reversal does not ensure Google’s defeat; Google will now litigate other legal doctrines and might very well win on one of those. However, the Second Circuit’s opinion largely spells the end of any “use in commerce” defense by either keyword advertising sellers or buyers.
Because of the “use in commerce” defense’s demise, keyword advertising cases will now likely turn on whether the advertisements create a likelihood of consumer confusion. One case, Hearts on Fire v. Blue Nile, offered up a new and complicated test for gauging consumer confusion. If other courts adopt this test, keyword advertising cases will get even more expensive and complicated—highlighting how important it was that the Rescuecom case eliminated an easy way to end these lawsuits early.
Meanwhile, despite the fact that keyword advertising battles have been taking place for at least a decade, we have not heard what a jury thinks about the practice—until the November jury ruling in Fair Isaac v. Experian. In that case, the jury found for the defense that the keyword-triggered ads did not create the requisite likelihood of consumer confusion. It remains to be seen if other juries reach the same conclusion. If they do, keyword advertising lawsuits should slowly fade away over time because the trademark owners can’t win in the end.
As for now, keyword litigation is going strong and hardly fading away. In Spring, Google made two changes to its trademark policies where it voluntarily agrees to take down certain types of ads at the trademark owner’s request. In May, Google extended its more liberal US-based policy to nearly 200 other countries, replacing the more restrictive policies it had in place there. Shortly thereafter, Google modified its US policy to do less for trademark owners in situations involving product resales, review websites and sales of complementary/replacement parts. Trademark owners were none too pleased with these changes. In response to these changes and the door opened by the Second Circuit Rescuecom decision, Google got hit with about a dozen new lawsuits, including some class action lawsuits, of which I believe 10 are currently still active.
Finally, all of the wrangling in court and over voluntary trademark policies could be mooted by legislative action, and for the third time, the Utah state legislature considered resolving the keyword advertising issue itself. A law regulating keyword advertising passed the Utah house but died in the Utah senate. Expect the pro-regulatory forces to round up the troops for a fourth try in 2010.
#1: FTC Endorsement Guidelines for Bloggers. The Obama administration has breathed new life into a pro-regulatory FTC, and the FTC sure is interested in all things Internet. The FTC has been nosing around Internet privacy and Internet marketing practices pretty carefully, and I expect 2010 to bring more FTC pronouncements designed to tackle the Internet.
But nothing stirred up a hornet’s nest of confusion and anger in 2009 like the FTC’s Endorsement and Testimonials Guidelines. I think it’s fair to say that the FTC’s guidelines rollout was a complete failure. As usual, the FTC’s guidelines were mealy-mouthed and filled with conditional statements (the FTC hates to lay out bright line rules that might constrain their future discretion). However, the FTC’s general gist was clear: bloggers should disclose when they receive financial or other consideration for their blog posts.
Unfortunately, this general principle leaves open some fairly fundamental questions, like when is disclosure required in situations less clear than straight cash-for-posting, and where should disclosure be made, especially in space-constrained media like Twitter. Needless to say, unhappy bloggers can be very noisy, so blogger response to the FTC’s announcement was loud and vituperative. The FTC tried to backpedal a little by saying that it did not intend to pursue individual bloggers, but this announcement only reinforced that bloggers do not understand what the FTC wants from them.
Meanwhile, the FTC’s proposed guidelines also took an interesting position about an advertiser’s liability for rogue blogger’s posts. This position is generally consistent with government enforcement agencies’ views that commercial players can be legally responsible for content they endorse or link to (see, e.g., my comments on the SEC’s liability-for-linking policy), but this position runs directly contrary to 47 USC 230’s provisions that say A isn’t liable for B’s online content. As a result, I believe that part of the FTC’s proposed guidelines violate 47 USC 230 and would not survive a court challenge.
Overall, the firestorm over the FTC’s Endorsement and Testimonials guidelines is a small part of a larger effort to regulatorily separate advertising from content. The Internet has collapsed those distinctions, perhaps irreparably, so regulators may be trying to accomplish the impossible. Nevertheless, the FTC seems determined to prop up the distinction, and I expect 2010 will bring more FTC efforts on this front.
* * * * *
While that concludes my top 10 list, there were a number of other interesting developments in 2009 that are worth a brief note:
* Moreno v. Hanford Sentinel. A woman trashed her hometown in an obscure but public MySpace posting and learned there is no “do-over” for Internet content publication. My vote for the most factually interesting Cyberlaw case of 2009.
* Google’s keyword metatag announcement. Courts generally treat the inclusion of third party trademarks in keyword metatags as per se trademark infringement. But Google has confirmed that it ignores keyword metatags. Will courts get the message?
* Google Book Search settlement. If the Google Book Search settlement ever gets approved, it may reshape the book industry, redefine libraries, and make all kinds of other socially significant changes. But the list of opponents to the settlement is long and growing. Professor James Grimmelmann of New York Law School is our community’s maven for all things “GBS.”
* Kindle book deletion. The Kindle store sold e-books it didn’t have the right to sell, so it took them back. Users learned of a key factual difference between physical books and e-books—the vendor can remotely make e-books go poof.
* States’ efforts to impose sales tax efforts based on marketing affiliates. For years, states have been looking for ways to make online retailers collect sales tax for them. They are generally stopped by Supreme Court precedent, but in 2008 New York finally figured out a workaround. The New York statute said that marketing affiliates were like traveling salespeople and thus created the physical nexus required for a state to impose sales tax collection obligations. The New York statute survived its first legal challenge, which opened the floodgates of other states passing similar laws hoping to get their piece of the action. Meanwhile, online retailers aren’t just rolling over; instead, they are threatening to cut off (or actually cutting off) marketing affiliates in states that enact these laws—thus potentially costing the states income tax from the marketing affiliates’ revenue, and creating the potential for the entire affiliate industry to be torn apart.
* Maine kids privacy law. Maine thought it could pass a law banning marketing to kids. It was wrong. The state had to withdraw the law and go back to the drawing board.
* UMG v. Veoh. Veoh won another nice DMCA online safe harbor victory.
* US v. Kilbride. The Ninth Circuit says that online obscenity prosecutions need to evaluate national attitudes towards obscene content, not local community standards.
* Kentucky domain name seizure. Kentucky tried to grab 141 domain names that enabled Kentucky residents to engage in illegal gambling. But those domain names also serviced customers for whom the gambling was completely legal, so the Kentucky courts are rethinking the grab.
* FTC v. Sears. As another example of the new pro-regulatory winds blowing through the FTC, the FTC cracked down on Sears for installing spyware on users’ computers that looked at the users’ hard drives, even though Sears paid the users for the installation and disclosed the spyware’s snooping in the user agreement (though in an inconspicuous manner). This case has made a lot of lawyers concerned that adverse disclosures in user agreements won’t satisfy the FTC.
* Facebook the Drama Queen. Ah, Facebook. Love it. Hate it. Facebook is a pretty nifty site and part of my daily routine, but boy, they sure do have a knack for stirring up trouble.
- In February, they made a relatively modest change to their user agreement that caused people to freak out.
- In response to this, Facebook took the provocative step towards user self-governance. Facebook let users vote on some choices and promised to be bound by the results, but with an asterisk: Facebook decided what options users could vote on, and Facebook would honor those choices only if a prohibitively large number of users exercised their franchise. Still, it was a nice gesture towards cyberspace community self-governance.
- In summer, they tried to settle their Beacon litigation, but that also reminded folks of how much Beacon irritated them in the first place.
- Summer also brought allegations of click fraud on Facebook, and lawsuits followed.
- Finally, in Thanksgiving, Facebook rolled out some changes to its privacy options that it pitched as giving users more choices, but it also took away some choices and defaulted users into some options that surprised them.
Given this track record, is it unrealistic to expect more Facebook drama in 2010?
* Estavillo v. Sony. Speaking of self-governance, virtual world enthusiasts would love to establish the legal proposition that virtual worlds are legally equivalent to governments and therefore obligated to restrain their actions just like governments are. One virtual world enthusiast sued Sony for kicking him off the network, claiming that Sony was legally governed as a “company town” and therefore lacked the discretion to kick him off. WRONG (and it wasn’t even close).
* Wikipedia's policy change. In August, the English-language Wikipedia announced that it was going to tighten up its editorial policies, and people Freaked Out. (In fact, I have predicted that Wikipedia cannot avoid increased editorial restrictions over time, so this change should not have been surprising). However, it turns out that everyone got it wrong, and Wikipedia’s editorial changes are far less dramatic (and consequential) than initially reported. I will post a separate recap on Wikipedia shortly.
If you would like a stroll down memory lane, you can see my previous top 10 lists from 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.
Posted by Eric at 10:46 AM | Content Regulation , Copyright , Derivative Liability , Domain Names , E-Commerce , Internet History , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Spam , Trademark , Virtual Worlds | TrackBack
December 26, 2009
November-December 2009 Quick Links, Part 1
By Eric Goldman
Trademarks/Domain Names
* Yahoo and Mary Kay settled Mary Kay's trademark lawsuit over Yahoo's email shortcuts.
* uBID Inc. v. The GoDaddy Group Inc., No. 09-cv-2123 (N.D. Ill. Nov. 5, 2009). uBid’s anti-domain name parking lawsuit failed on jurisdictional grounds. Tom O'Toole explains why this is an unusual jurisdictional ruling.
* Trademark Blog: “Sellify, operator of ONEQUALITY.COM, sues Amazon over Amazon affiliates' alleged misuse of ONEQUALITY.COM as Google keywords.”
* In an unenlightening memo opinion, Second Circuit affirms the Cintas v. Unite Here opinion involving union activists’ web activities using a target company’s trademark. My initial blog post on the case.
* Bloomberg: Buyers of counterfeit luxury goods understand they are getting counterfeits, and many of them upgrade to the real thing eventually.
* Transamerica v. Moniker Online Services, 2009 WL 4715853 (S.D. Fla. Dec. 4, 2009). Domain name registrar does not qualify for ACPA's registrar safe harbor when: "Transamerica alleges that Oversee and the Moniker Defendants, together with the ostensible registrants-the John Doe Defendants-are the de facto registrants of the domain names in question. Transamerica claims that Moniker was not merely acting as a registrant in providing registration services to the John Doe Defendants for the infringing domain names, but instead was part of a scheme to profit from the use of the infringing names. As Transamerica points out, Moniker receives a fee each time an internet user clicks on one of the links attached to the infringing domain sites; such payment establishes at least partial ownership in the domain name." Troubling ruling.
* SafeWorks, LLC v. Spydercrane.com, LLC (W.D. Wash. Dec. 7, 2009). A trademark owner's preemptive registration of domain names containing typographical errors of the registrant's trademarks does not infringe a third party trademarks.
Marketing and Advertising
* In re Gemtronics (FTC ALJ decision Sept 16, 2009). A dietary supplement seller wasn't liable for comments on a website that it didn't own or control but (among other things) it had linked to. While this is great, I still believe the FTC needs to rethink its entire liability scheme of online content endorsement or adoption due to 47 USC 230. See 1, 2.
* Avvo settles Florida bar lawsuit and gets Florida to admit that client testimonials on Avvo aren't lawyer advertising. Rebecca explains why an analogous South Carolina regulation violates 47 USC 230.
* After the FDA spooked pharmaceutical companies to stop engaging in search advertising, the FDA held hearings on Internet pharmaceutical marketing. The Arnold & Porter recap. Ironically, BusinessWeek ran a story wondering if pharmaceutical ads reduce consumer demand.
* The FTC cracks down on online negative option/"continuity plan" offerings.
* In re Miva Inc. Securities Litigation, 2009 WL 3821146 (M.D. Fla. Nov. 16, 2009). The court dismissed a securities class action lawsuit over Miva's/FindWhat's investor disclosures relating to click fraud and spyware. My initial blog post on the case.
* NYT: False advertising litigation is a growth industry.
Search Engines
* A Milwaukee lawyer has alleged that another lawyer buying keyword advertising triggered by his name violates his publicity rights. I’ve posted the complaint to Scribd.
* Google is now personalizing search results for everyone, not just logged-in users. In 2006, I wrote about how universal personalization would affect SEO and concerns about search engine bias. Danny Sullivan believes Google’s change deserves "extraordinary attention."
* Google took out an ad from itself to explain why its image search results for Michelle Obama contained an offensive result. This is after it first tried to remove the image on the pretext that the website was hosting malware.
* Danny Sullivan asks some good questions about Google's integration of Twitter into its search database.
* BusinessWeek: Matt Cutts, Google’s search engine anti-spam superstar, talks about his job. He doesn't sound like the most fun person to travel with
* Rose Hagan, Google's chief trademark counsel, is retiring after 7 years at Google. She leaves behind big shoes to fill.
Posted by Eric at 02:59 PM | Adware/Spyware , Derivative Liability , Domain Names , Licensing/Contracts , Marketing , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
December 18, 2009
Top Cyberlaw Developments of 2009
(Thanks to Eric for letting me post this list here!)
[Eric's note: some of you may recall John, a regular blog guest contributor from 2005-07. It's great to have another contribution from him.]
Eric will post his own list later, but I thought we could start off the holiday season with one person’s view of the top Cyberlaw developments of 2009. It was an interesting year. While intellectual property issues continue to dominate, and we continue to see plaintiffs and their attorneys running smack into Section 230 of the Communications Decency Act, we’ve also seen developments in the areas of Constitutional law, criminal law, and state and federal regulation. So, let’s recap 2009. Unlike David Letterman’s lists, this list is in no particular order of importance.
1. File Sharing Decisions.
After years of lawsuits against file sharers, we finally have two trial decisions. Both held against the peer-to-peer file sharers. Jammie Thomas managed to turn a 2007 verdict of $222,000 (which was later thrown out due to a mistrial) into a 2009 verdict of $1.29 Million. Her motion to reduce the award is pending.
Joel Tenenbaum received more favorable treatment and was subjected to only a $675,000 jury verdict after he admitted liability and his fair use defense was rejected by Judge Gertner. His motion to appeal/reduce the award is due to be filed in early January. Judge Gertner wrote a compelling decision urging Congress to modify the strict liability consequences of new technologies such as peer-to -peer file sharing. In her decision rejecting the fair use defense, Judge Gertner implored Congress “to amend the [Copyright Act] to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damages.” We’ll see if Congress listens.
2. Rise of Copyright First Sale Doctrine.
There were several decisions that turned on applications of the copyright “first sale” doctrine to new online situations. Section 209(a) of the Copyright Act permits the owner of a lawfully made copy of a work to sell or dispose of that copy without the consent of the copyright owner.
We also had two cases (John Wiley & Sons; Pearson Education v. Liu) dealing with the importation of copyrighted works (mostly textbooks) printed abroad and then imported into the United States for sale. Two courts said these transactions are not protected by the first sale doctrine because of the importation provision in Section 602. The courts so far have been following dicta in the Supreme Court’s 1998 Quality King case that goods manufactured overseas and then imported are not protected by the first sale right, despite their reluctance to do so. We may get a resolution of this issue in 2010. The U.S. Supreme Court has invited the Solicitor General to file a brief in the Costco Wholesale Corporation v. Omega, which is on a petition for certiorari to the Ninth Circuit Court of Appeals.
A third entry is Apple v. Psystar. Psystar specialized in creating copies of Apple’s Macintosh OS-X operating System and loading them onto Mac “clones.” The court rejected the first-sale doctrine defense because Psystar’s copies of the Macintosh OS-X operating system were not “lawfully made” within the meaning of Section 109. The parties subsequently settled all claims except for copyright infringement, and Apple obtained a permanent injunction against Psystar.
3. Demise of “Use in Commerce” Defense in Keyword Cases.
In Rescuecom v. Google, the Second Circuit reversed the district court and said that Google’s sale of trademarked keywords as ad triggers constitute a “use in commerce.” This probably is the end of the “use in commerce” defense in keyword advertising cases, which will now turn more on likelihood of confusion (or initial interest confusion) factors.
4. Internet Gambling.
Internet gambling continues to be regulated by a tangle of federal laws ill-adapted for the purpose. Some of the laws date back to the 1961 adoption of the federal Wire Act. This is an areas where Congress should really clean things up, especially with criminal liability sometimes at stake.
Proponents of online gambling took a couple of hits in 2009. In Interactive Media Entertainment and Gaming Association v. Holder, the Third Circuit upheld challenges to the Unlawful Intent Gambling Enforcement Act (UIGEA) on Constitutional grounds. The UIGEA does not prohibit Internet gambling, but does prohibit gambling businesses from accepting financial payments in connection with bets that are illegal under any federal or state law. (This Act has effectively forced legitimate offshore gambling sites to stop taking bets from the United States). The Third Circuit held that the phrase “unlawful Internet gambling” is not vague, and that there is no Constitutionally protected privacy right to gamble in one’s home.
Earlier in the year, the Department of Justice ordered four banks to freeze over $34 million in payments owed to about 27,000 poker players. Although the legality of online poker in the United States is a gray area, the DOJ takes the position that online poker games are prohibited by the federal Wire Act. The DOJ position runs counter to several court decisions that have refused to apply the Wire Act to non-sports related Internet gambling. After the funds were seized, the affected poker sites reportedly reimbursed the players the money that was seized.
5. State Attempts to Regulate the Internet.
This trend, a favorite target of Eric’s ire, continued in 2009. Some more notable attempts include Maine’s passage of a little COPPA Act, banning the use of personal information about minors for marketing purposes (which the Maine Attorney General then refused to enforce), Kentucky’s seizing of domain names associated with alleged gambling websites (the legality of which is pending before the Kentucky Supreme Court), and Utah and other state’s attempts to put sex offender information online or require sex offenders to register websites to which they belong and their passwords.
6. Attempts to Criminalize Breaches of Terms of Use.
Lori Drew created a fake MySpace profile to humiliate a 13-year-old neighbor girl and was subsequently blamed for the girl’s suicide death. Drew was convicted of three misdemeanor counts of unauthorized access to computers under the federal Computer Fraud and Abuse Act for violating MySpace’s terms of service. In United States v. Drew, the court dismissed Lori Drew’s conviction, concluding that MySpace’s terms of service were Constitutionally vague. The result is not surprising, because terms of service are not generally written with criminal prosecution in mind. The MySpace terms at issue prohibited a wide variety of conduct but did not explain what activities would make a user’s access “unauthorized”. The user’s conduct was reprehensible, but not criminal.
7. Online Endorsements.
In October, for the first time since 1980, the Federal Trade commission updated its guidelines for advertisers on how to keep their endorsements and testimonial advertisements in line with the FTC laws. The new guidelines explicitly target online endorsements by bloggers and others who receive cash or in-kind payments to review a product. Bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. While the new guidelines caused a stir among bloggers, they seem to be a reasonable extension of the FTC’s disclosure guidelines in other contexts
8. DMCA Take-Down Notices.
In UMG Recordings v. Veoh Networks, we received some further guidance on what constitutes a proper take-down notice. Here, the court said the copyright owner has the burden of identifying “potentially infringing materials.” A letter merely listing recording artists whose works were allegedly infringing did not give the Internet Service Provider actual knowledge of infringement because the letter does not comply with the DMCA requirements. The court also said that the ISP was not on general notice of copyright infringement just because the website allows users to post music files, which are frequently infringing content.
9. Section 230 of the Communications Decency Act.
There are too many cases to list here, and I am sure Eric has done (or will do) his own exhaustive compilation. The courts clearly expanded the scope of the Section 230 defense in various Craigslist cases (no liability for advertisements for guns or prostitution).
Barnes v. Yahoo showed us that service providers should not make statements and then not follow though. In that case, the plaintiff’s ex-boyfirend created fake personal ads for her on Yahoo and impersonated her in various online forums. She asked Yahoo to take the information down,. A Yahoo employee told her that Yahoo would take the profile down, but Yahoo did not do so until after the complaint was filed.. The Ninth Circuit upheld Yahoo’s Section 230 defenses for claims that Yahoo had an obligation to take the fake profiles down, and that Yahoo did not try to remove some objectionable material. But the court did permit the plaintiff’s claim to go forward that Yahoo had breached its oral contract with her to take the material down, which the Court held amounted to a modification of the “baseline” Section 230 rule.
10. Right to Privacy.
When someone publishes something on a MySpace website without her full name, and then deletes the post, does she have an expectation of privacy? In Moreno v. Hanford Sentinel, Inc., the California Court of Appeals said no. Here, the plaintiff posted an essay that was derogatory of her home town on her MySpace page and then deleted it six days later. In the meantime, the principal at the local high school saw the posting and submitted the poem to a local paper, where the editor (a friend of the principal) published the poem in the Letters to the Editor column and signed the plaintiff’s full name to it. The author and her family received death threats and her father had to close a 20-year old family business. However, the California Court of Appeals ruled that the principal did not invade the author’s privacy by handing the posting to the editor, and further held that the editor did not violate the author’s rights when it published her full name. (The case was remanded in order to address a claim of intentional infliction of emotional stress.)
Let’s hope 2010 brings even more exciting Cyberlaw developments. We have the potential for two Supreme Court rulings, in the Costco case (discussed above) and the Bilski case, which may address the validity of business method patents.
Posted by John Ottaviani at 07:04 AM | Content Regulation , Copyright , Derivative Liability , Domain Names , E-Commerce , Licensing/Contracts , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
December 11, 2009
Denver University “Cyber Civil Rights” Symposium Recap
By Eric Goldman
The week before Thanksgiving, I attended an unusual symposium sponsored by the University of Denver Law Review entitled “Cyber Civil Rights: New Challenges for Civil Rights and Civil Liberties in our Networked Age.” The symposium covered standard Cyberlaw topics, but the raison d'être was University of Maryland law professor Danielle Citron’s two recent articles on online harassment of women: "Law's Expressive Value in Combating Cyber Gender Harassment" (Michigan Law Review) and "Cyber Civil Rights" (Boston University Law Review). It is unusual for a law school to celebrate another school’s professor and her research, especially when the professor is fairly junior. Nevertheless, Danielle’s participation brought together academics from both the Cyberlaw and civil rights communities, which provided a rare and interesting mix of folks..
First Panel
Danielle Citron started off by recapping her two papers. Online participation, such as blogging, is essential to professional standing, and employers are reviewing online profiles of prospective employees as part of their hiring considerations. However, women are being targeted for abuse online. These attacks are harming women by changing their online and offline activities, reducing their job opportunities, and causing women to change their gender representations online. Further, folks are trivializing these problems. Women are underreporting the attacks, and law enforcement only intervenes when there are offline harms. New laws can serve an expressive function to communicate that online attacks against women are socially unacceptable. The new laws can validate women’s feelings that they have been harmed and encourage law enforcement to pursue more cases.
Commenting on the papers, Robert Kaczorowski of Fordham Law (and Danielle’s stepdad) made an extended analogy between the Ku Klux Klan and cybermobs.
Wendy Seltzer asked if we could deemphasize the effect of words rather than prohibit them. Danielle responded that we don’t know how seriously to take any particular threat.
An audience member asked if is there a difference between mobs and individual actors who are just taking advantage of being anonymous. Danielle answered that groups can become more extreme online. I think this point deserves more exploration: a series of uncoordinated individual decisions to “pile on” to an attack can look like a coordinated attack to the victim. This is part of why I thought the KKK references were puzzling—KKK activities are clearly coordinated, while online attacks against women can succeed without any coordination or ongoing connection between the attackers.
Paul Ohm argued that that legal solutions are better for cyber civil rights problems than technological solutions. Paul discussed what he labeled “Felten’s Third Law.” (He doesn’t know of two earlier laws named for Ed Felten; he just assumes they exist given Ed’s impressive and influential oeuvre). As articulated by Paul, Felten’s Third Law is that in Cyberlaw conflicts, lawyers love technical solutions and technologists love legal solutions. In other words, we love the solution we don’t know because we assume it has to be better than the one we do. As both a law professor and technologist, Paul picks law over technology for these problems.
Paul categorically rejects any technical solution that would create a “fully identified Internet.” For example, we should not mandate server log retention because we know the logs will be co-opted to regulate other forms of unwanted content, not just online harassment.
Wendy Seltzer discussed the unintended consequences of legal intervention. For example, mandatory Internet filtering in school libraries hasn’t stopped kids from bypassing the filters, but it has facilitated a marketplace for improving filtering technologies that has benefited repressive regimes. Another example: anti-circumvention technology fails to restrict copying but has reduced innovation around DRMed content. Wendy also noted how norms can help curb abuses. For example, while there are online cesspools, she praised Wikipedia’s evolving guidelines for living people’s biographies.
In response, Danielle admitted that her solutions need to be more surgical. She said she might consider moving from a notice-and-takedown model to a notice-and-preserve model for intermediaries.
Second Panel
This panel was composed of three women academics from the civil rights community, so it was a noticeable shift from the typical Cyberlaw academic discussion.
Mary Anne Franks is a University of Chicago Bigelow Fellow and soon-to-be full-time law professor. She expresses our collective disappointment that cyberspace isn’t a utopia that allows people to escape offline discrimination and harassment. She laments that women can lose control of their identities online, such as when someone creates a fake online profile in their names.
She then addressed how cyberspace is unique/special/different with respect to gender harassment. Many commentators try to duck cyberspace exceptionalism, so it was refreshing to see her tackle the issue squarely. Existing offline discrimination/harassment laws assume interactions between repeat players at work and school; online harassment can be divorced totally from any existing social networks. However, because the online activities still harm targeted individuals at work and school, we should treat the harms the same. Offline, there are switching costs to changing jobs or school; online, search engines’ consolidation of results for search on a person’s name creates a different type of switching cost. In terms of supervisory power, she thinks web operators have analogous control to employers or school administrators. Thus, when web operators receive notice of online harassment, they should have a duty to do something about it. Offline, employers can develop a variety of responses and policies to combat workplace harassment. Web operators should have similar latitude; for example, they can delete offending posts or suspend/ban accounts.
Helen Norton, a University of Colorado law professor, did not share Danielle’s optimism (expressed in her first article) that existing discrimination laws can curb online harassment. Instead, Helen thinks a new civil rights statute is needed, but she might limit its remedies to exclude money damages. Helen is pessimistic that there will be regulation any time soon, noting that it can take years to enact civil rights legislation. Helen would also like to see more precise definitions of the exact harms that women are experiencing only online.
Nancy Ehrenreich, a Denver University law professor, began her talk by saying that we should not overstate the Internet’s benefits. She then clarified that we should not assume that disadvantaged folks can overcome barriers online. For example, we impose cultural categories on people in every interaction, so even if people try to mask their identity online, they can’t really escape. She wondered why we aren’t talking about an anti-discrimination law for the web. Her concern is that discrimination denies individuals access to the Internet.
In Q&A, Paul Ohm observed that civil rights scholars often invoke free speech as the countervailing concern to their desired regulations, but Cyberlaw scholars are often more interested in other “generative” effects of the Internet, such as new business models, new labor models and new modes of production.
Panel 3
James Grimmelmann (see his slides) started with the Skanks in NYC case. In that case, the defendant criticized someone else in her social network on a blog, calling the plaintiff (among other unflattering things) a “skank.” The plaintiff sued to obtain the blogger’s identity. After a successful unmasking, the plaintiff dropped the lawsuit, having successfully publicly shamed the blogger.
James hypothesized that this unmasking and shaming was an appropriate remedy—the blogger got shamed (like “an eye for an eye”), and unmasking is a better outcome than other legal remedies like damage suits. James then posited a thought exercise that provided plaintiffs with an expedited unmasking procedure if they drop any damages claim. This would have a number of benefits. Unmasking curbs online harassment is especially effective at busting online mobs. Also, an unmasking remedy avoids messy debates over the First Amendment’s scope, and it may be more desirable than trying to hold online providers liable.
Having advanced his own strawman, James then cut it down. In some cases, defamation remedies may be more desirable, and plaintiffs may not know that until they learn the putative wrongdoer’s identity. In other cases, plaintiffs who just want unmasking would appreciate a lower legal hurdle. Also, we provide legal protection for anonymity for good reasons.
James’ lessons from the thought exercise: we should consider ways to decouple an unmasking remedy from litigation. At the same time, we need to protect defendants from pretextual unmasking; in some cases, retaliation is a big concern, and we should incorporate this concern into the unmasking decision.
From Chris Wolf’s talk (see his full remarks), the most interesting thing I learned is that 18 states have laws banning wearing masks in public, enacted to suppress KKK activities. This was the second speaker’s KKK reference of the day, and it made me wonder if we were experiencing some variation of Godwin’s Law.
Panel 4
Viva Moffat observed that secondary liability issues generate the most heat in online harassment discussions. She expressed concern that imposing legal duties on third parties may not help law’s norm-shaping effect, and it’s not appropriate to impose liability just because the provider has deeper pockets or the direct actor can’t be found. She also suggested that imposing liability on third parties creates a greater risk of collateral damage than direct liability. [Note: I would like to know more about this last assertion. I suspect we cannot make a utilitarian calculation a priori]. As a result, she favors focusing more efforts on sharpening direct liability.
Ed Felten talked about identifying and anonymizing online activity. He explained the usual sequence of events in chasing bad online content:
log file => IP address => identity => justice
But the IP address => identity step breaks down when users use an anonymizing proxy or the user’s network uses network address translation (used by home wireless routers or in coffee shops) and all connected devices’ requests share a single IP address. He said that a majority of Internet connections use NAT.
Because IP address tracebacks can dead-end at the intermediary, an IP address can reveal too little information. However, even when users aren’t investigatory targets, IP addresses can reveal too much information, such as geolocation. This paradox—IP addresses simultaneously reveal both too much and too little information—reflects that the IP address system was built for routing, not identification. So could we design a better authenticating technology?
He then conducted a “semi-realistic” thought experiment of a new technological “tag” that could be used instead of IP addresses. This tag could have the following attributes:
* can be placed by any intermediary
* conveys no information about the sender unless unwrapped by the intermediary (presumably for good legal cause)
* unwrapping the tag yields the best identity information the intermediary has
* the tag’s use is voluntary as a technical matter
* the tag is removable as a technical matter
I then batted clean-up. A summary of my remarks:
Today’s conversation has revisited long-standing Cyberlaw issues, such as:
* anonymity v. accountability, and who should be responsible for online content and actions
* cyberspace as a physical place. See, e.g., Noah v. AOL (an online discrimination case), National Federation of the Blind v. Target (also an online discrimination case) and Estavillo v. Sony
* cyberspace exceptionalism and cyberspace utopianism (on the latter point, see my article on search engine utopianism)
* when is the optimal time to regulate rapidly evolving technology? Early, when the technology is still in its infancy, or later, when market forces and new technological evolutions may have cured the early problems?
Danielle’s articles convinced me that women are experiencing serious harms online that men—including me—could easily trivialize. Danielle’s articles also convinced me that online harassment has strong parallels to the 1970s legal evolution of workplace harassment doctrines, where a big part of the battle was to get people to take the harms seriously.
While I find a lot of descriptive value in Danielle’s work, the normative implications are not as clear. As usual with attempts to regulate rapidly evolving technology, there are many important but overwhelmingly hard definitional challenges, such as who is an “intermediary,” what are “online mobs” and what constitutes online “harassment.” For example, I do not think the Skanks in NYC incident is an online harassment case or an “attack,” but James Grimmelmann’s talk assumed those characterizations.
While we can debate what should be the right level of regulatory intervention, we should not overlook that Congress already enacted a law squarely governing intermediary liability for online harassment: 47 USC 230. The angst that prompted this conference—bad behavior online—is the logical consequences of 230’s broad immunity. The statute enables websites to adopt policies that they will not police user content or retain server logs of user activity. These choices aren’t a surprise or a per se abuse of the immunity; instead, they are the unavoidable implications of Congress’ action.
We might question Congress’ wisdom in adopting 230, but we should not diminish its potential importance to the Internet as we know it. [In Q&A, Chris Wolf asked about the comparative experience in countries that don’t have such broad immunity. In those countries, we know that websites take down user content much more freely, and I believe that the most interesting UGC innovations are all taking place here in the US, not countries with more restrictive UGC liability.] I can, at most, only prove correlation and not causation, but I believe 230 is one of the main causal reasons why the Internet has succeeded so well.
When I speak around the country about 230, I often encounter folks who generally accept 230’s immunity scope but want just one new exception, i.e., their pet topic. If everyone got their “just one” exception, the law would be eviscerated. (I said it would be Swiss-cheesed to death; maybe I should have said it would be overcome by a thousand duck bites). I’m not rejecting new exceptions categorically (they should be each considered on their own merits), but in aggregate 230’s immunization benefits are actually quite precarious. I believe 230 works precisely because of its strength and simplicity, so adding more exceptions could significantly reduce its efficacy.
I concluded my remarks by observing that online harassment is a subspecies of bullying and incivil behavior in our society. While we can and should work to curb online harassment, I am more interested in addressing bullying and incivility in all its forms, wherever it takes place.
In this regard, I have been impressed by how my son’s school is proactively addressing bullying. See more about this effort, called Project Cornerstone. The school is teaching kids not to bully or to tolerate being bullied, and the project gives bullied kids tools to go on the offensive against bullies. There’s no guarantee that anti-bullying programs will work in the short or long run, but I remain hopeful that online harassment today partially reflects that many current Internet users never got any anti-bullying education. Perhaps, then, online harassment issues will naturally abate (without any regulatory intervention) as new generation of Internet users, better educated about bullying, come onto the Internet.
Following my remarks, we had more Q&A.
Paul Ohm Q: Some cyber folks argue against secondary liability because they believe that a victim can pursue a direct action, but Ed’s talk suggests that user anonymity will continue to be possible.
Mary Anne Franks: civil rights isn’t about individual claims because victims have to bear too high a burden to pursue claims. Instead, civil rights are about changing large-scale social norms. The goal is to achieve anti-discrimination by any means necessary. Thus, civil rights scholars have already discussed and concluded that it’s appropriate to impose liability on intermediaries like employers and schools.
Danielle: intermediaries are the lowest cost avoiders.
James Grimmelmann: no, the harassers are the lowest cost avoiders. Civil rights folks would get more support from the Cyberlaw crowd if they focused their regulatory desires towards intermediaries who are in active concert with the bad actors.
Danielle's Wrap-Up
We all agree that:
* education can make a big difference
* online communities need to self-police
* there are numerous limits to using the law as a solution, including that lawsuits don’t make sense and 230’s immunity.
We don’t agree on what to do next. There are First Amendment limits, and technology doesn’t offer any panaceas.
Posted by Eric at 07:12 AM | Content Regulation , Derivative Liability , Internet History , Publicity/Privacy Rights | TrackBack
December 02, 2009
Case Western “Signifiers in Cyberspace” Conference Recap
By Eric Goldman
In mid-November, I attended a conference at Case Western Reserve University School of Law in Cleveland, Ohio entitled “Signifiers in Cyberspace: Domain Names & Online Trademarks.” My notes:
David Fewer spoke about Canada’s WHOIS policy. The old Canadian registry policy published registrant information without restriction. Then, the registry proposed a new policy not to publish personal information in the WHOIS database for individual registrants and for organizations that can show harm from publication. To reveal registrant information in those situations, a warrant would be required. That policy got amended to allow warrantless access for cybercrime enforcement, registered IP infringement and ID theft. Fewer argued that the amended policy violates Canadian privacy laws (PIPEDA) because consumers are not given adequate disclosures, the exclusions from the privacy policy are arbitrary, and consumers aren’t given the required option not to participate.
Corynne McSherry of EFF discussed how TM owners are bypassing direct challenges against gripers and instead putting pressure on domain name registrars. She focused on the Yes Man spoof website of the New York Times, which included a parody ad of the De Beers diamond manufacturer. Humorless De Beers sought relief from Joker.com, the parodist’s registrar. EFF has responded to De Beers that the parody is legitimate because it has no commercial aspect, it’s nominative use, and the First Amendment applies. The EFF is also encouraging Joker.com to ignore De Beers because it (as the registrar) can’t be liable for the registered domain name. So why is Joker.com even entertaining De Beers’ complaint? Corynne notes the registrar’s revenue from any single domain name registration is less than legal cost of investigating and responding. Corynne discussed how parodists and gripers can minimize their legal risk (I blogged on these recommendations in May).
I remain very interested in situations where domain name registrars apply their own takedown policies to their customers. For example, I’ve previously mentioned GoDaddy’s “itchy trigger finger” when it comes to intervening with its registrants. I suspect there is significant heterogeneity among registrars’ interventionist tendencies. I think this is an area worth exploring. If you have other examples of domain name registrar intervention in its customers' content, please share them.
Stacey Dogan spoke about the aftermath of the Rescuecom ruling. Stacey is disappointed that courts aren't adopting her arguments to use the “trademark use in commerce” doctrine to insulate intermediaries (she calls it her “biggest failure in life”). She described three post-Rescuecom uncertainties: (1) what acts by intermediaries constitute TM infringement? (2) on what doctrinal basis? (direct v. contributory), and (3) what remedies do the intermediaries face?
Stacey thinks courts need to be more precise about the nexus between defendant behavior and TM owner harm. This should lead to better distinctions between direct and contributory infringement.
She offered a taxonomy of claims against intermediaries:
* General confusion = when the intermediary creates confusion through the blurring of ads and editorial content. Stacey thinks these aren’t TM issues. But if commingling is the problem, then the remedy should be an injunction requiring the intermediary to label the ads.
* Strict liability = when the search engine is automatically on the hook for its involvement with the ads. Stacey says courts should reject this approach due to the search engines' lack of proximate causation for consumer confusion. If a search engine faces any liability, it should be solely on the basis of contributory infringement (with its higher scienter bar).
* Failure to act = when the search engine fails to respond to TM owner’s takedown notice. She said we don’t see this in search engine cases [a point I disagree with given that the TM owner vs. search engine lawsuits all represent a failing of the search engines’ voluntary TM policies]; instead, she was thinking of the Tiffany case. Stacey thinks the failure of act prong is where the legal action should be. She wants courts to map out appropriate scienter levels. General knowledge of infringement isn’t enough, and courts should let defendants make reasonable judgments about whether the advertiser will qualify for any trademark defenses. If the advertiser is obviously infringing, and intermediary gets notice and fails to act, she thinks contributory liability could be appropriate.
Graeme Dinwoodie believes the ECJ will not follow the Advocate General’s opinion in the Google case. He explored two parallels between the AG’s opinion and Rescuecom: Both get away from trademark use of commerce, and both consider underlying policy values. Graeme thinks search engine defendants should move away from disputing the lack of harm to the trademark owner; instead, he thinks they will get more traction by showing the countervailing benefits of their advertising. For example, he thinks they should be showing how keyword advertising can facilitate investment and innovation.
Jeffrey Samuels shared his perspectives as a panelist in 200 UDRP proceedings. Since the UDRP’s implementation, there have been about 25,000 UDRP decisions. 40% are US registrations. 75% involve .com. 75% are defaults.
The UDRP isn’t designed to solve all domain name disputes. He gave an example of a domain name registration containing a celebrity child’s name. The UDRP isn't helpful because a 2 week old kid doesn’t have protectable trademark rights.
“The UDRP is hardly a model of clarity.” All cases are fact-dependent. If a UDRP proceeding has unusual facts, he recommends requesting a 3 member panel--these proceedings get more carefully evaluated opinions and minimize the effects of any one panelist’s idiosyncratic views.
Some issues that regularly arise in UDRP proceedings:
* What the TM owner has to do to establish its rights. The majority view is that a registration anywhere in the world suffices. Common law rights generally require presenting sufficient evidence validating the rights.
* There remains a split of authority on “sucks” sites.
* In the early days, panelists used to run through the multi-factor likelihood of confusion factors. That’s rarely done today. Now, most panelists just make sight and sound comparison.
Karl Auerbach discussed two interrelated issues: (1) ICANN lacks any political authority for its “Internet governance” role, and (2) technology does not require that ICANN monopolize DNS root services. He argues that we would benefit from competition among DNS root services. His argument reminds me a bit of the net neutrality debate. We can hypothesize many possible net neutrality problems, but most of them go away with vigorous competition. Similarly, ICANN’s often-ridiculous shenanigans would be less vexing in the face of bona fide competition for DNS root services.
Dan Hunter spoke about a new paper he’s writing with Mark McKenna. Their target is the fundamental trademark principle that trademark law protects against consumer confusion. They think consumer confusion is an imperfect proxy for our normative goal of protecting consumers. Some confusion is endemic in a complex society; and some methods of communication, like humor, require confusion to work. Therefore, they want to move away from trying to block consumer confusion and instead refocus trademark law on reducing errors in consumer decision-making. This seems like a fruitful endeavor, but they are also taking a swipe against the consumer search cost justification for trademark law, a move I didn't follow.
Bill McGeveran recapped his recent work on social networking sites and gave a preview of his next article. His target is fake online profiles such as the Tony La Russa fake Twitter account. He expects to see more pressure to create IP rights in personal identities.
I spoke about trademarks and behavioral targeting, and in particular the competition among marketers for consumer preference information. For example, I believe the anti-deep packet inspection pushback wasn’t based solely on privacy concerns. Instead, destination websites fear that an IAP will disintermediate them and use its prime access to consumer preference information to steer customers to competitors. (See this blog post for more on that point). My (very brief) slides.
Posted by Eric at 07:16 AM | Derivative Liability , Domain Names , Internet History , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
November 03, 2009
Law Professor Sues Over 'Above the Law' Blog Posts--Jones v. Minkin
By Eric Goldman
Jones v. Minkin, 1:09-cv-23256-MGC (S.D. Fla. complaint filed Oct. 27, 2009). The Above the Law blog post on the lawsuit with links to the posts in question.
Given its history of provocative and occasionally aggressive blog posts, it's actually a little surprising that popular law blog Above the Law has not been sued before. A blogger's life is inherently filled with peril. We bet our houses with every blog post, and eventually the law of large numbers starts working against us. The risks are even greater for bloggers covering legal topics. By definition, we routinely cover people who are prepared to mix it up in court. As a result, it's almost inevitable that blawgers who keep at it long enough will get sued eventually.
The plaintiff in this case is University of Miami law professor D. Marvin Jones, who in 2007 was improperly detained by police for possibly racist reasons. This prompted a series of blog posts on Above the Law that included an unflattering cartoon and unfavorable characterizations. Jones now claims that the blog posts put him in a false light, invaded his privacy and constituted copyright infringement because the blog posts used the photo from his university profile page. Although the complaint uses the word "defamation" earlier in the pleading, no defamation claim was alleged. For these violations, Jones asks for tens of millions of dollars to right the alleged wrongs.
I'm skeptical about all three claims, but the copyright claim is almost unquestionably bogus. It's not properly pleaded; there's no allegation of a copyright registration. More importantly, I would be shocked if Jones owned the copyrights in the photo on his faculty page. Usually faculty photos are taken by a university photographer or a third party vendor; in either case, the photo subject normally does not obtain ownership or an exclusive license to the copyright. Perhaps Jones has managed his IP affairs better than 99+% of professors. If not, 17 USC 505, the copyright fee-shifting provision, seems like it sets up Jones to potentially write a check to the defendants. (Fair use also seems strongly possible, but we don't need to get there if the plaintiff can't establish a prima facie case of infringement).
With respect to the alleged privacy violations, there is the obvious problem that police incident reports should be public documents. However, I’m also interested Jones' faculty bio does much to trumpet his high public profile. He self-describes himself as a "public intellectual" (a fairly rare self-characterization among academics) and says he has "appeared as an expert on national and local television" and "is a sought after speaker at many universities." These self-reported assessments about his public visibility don't obviate his privacy rights, but they do suggest that a police detention--especially one with racial overtones, exactly the type of thing he discusses in these public spaces—and the associated report either don't qualify as a "private fact" or are sufficiently newsworthy to trump his privacy interests.
Ben Sheffner's post on this case makes good points about the false light claim. He says it's DOA because (1) Florida doesn't recognize the cause of action, and (2) to the extent it's based on the cartoon, the cartoon was provided by a third party and therefore 47 USC 230 preempts the claim.
This lawsuit reminded me a little of the long-running Steinbuch v. Cutler lawsuit, which also involved a law professor/plaintiff Robert Steinbuch (now at UALR) claiming privacy violations against a blogger. That legal battle hasn't turned out so well for Steinbuch. Putting aside a number of substantive losses along the way, the lawsuit has been going nearly 5 years with no clear end in sight. Some of the delay was caused by Cutler's bankruptcy, but much more of it was due to the inherent weakness of judicial proceedings as a redress for unwanted speech. And in the end, I don't think the lawsuit has done much to enhance Steinbuch's reputation as a law professor or otherwise.
Two other minor points about the lawsuit. First, the complaint repeatedly criticizes Above the Law for referring to Jones as "D. Marvin Jones" rather than some other variation of his name, alleging that the usage was designed to ensnare searchers looking for his book. Perhaps that was the intent (doubtful, but possible), but I have chosen to refer to Jones by the name he uses on his faculty profile...which is "D. Marvin Jones." Second, it was jarring to see "Barack Obama" misspelled in a complaint (especially given the plaintiff's expertise) as "Barrack Obama."
Unfortunately for Above the Law, Florida does not have a robust anti-SLAPP statute. Nevertheless, given its facial lack of merit and the possibility that Jones will want to minimize the size of the check he has to write the defendants for his ill-conceived copyright claim, I hope this lawsuit will reach a quicker resolution than the Steinbuch v. Cutler saga.
FWIW, there is an attractive free conference tomorrow afternoon in San Francisco that, quite topically, will address the unique challenges of online reporting of legal cases. (The official page is down, but this page has all the relevant details). Hope to see you there.
UPDATE: Jones has voluntarily dismissed the case within days of bringing it.
Posted by Eric at 01:57 PM | Content Regulation , Copyright , Derivative Liability , Publicity/Privacy Rights | TrackBack
October 21, 2009
Domain Names as Property Subject to Creditor Claims--Bosh v. Zavala
[Post by Venkat]
Most people take it for granted that domain names are property. As such, there shouldn't be much dispute that domain names are subject to the claims of judgment creditors. But I've seen enough resistance to this position that I thought a recent case was worth a quick mention. This recent case (Bosh v. Zavala (08-CV-04851-FMC-MANx) (C.D. Cal. Sept. 24, 2009)) also raises some interesting questions about the mechanics of trying to use a domain name to satisfy a judgment. For more perspectives, see Marc Randazza's post on this case here; see also NYT; Domain Name News; Deadspin.
Background: One of the early and often-cited cases for the proposition that a judgment creditor cannot get a domain name is Network Solutions, Inc. v. Umbro Int’l, Inc., 259 Va. 759, 770 (Va. 2000). In Umbro, the Virginia Supreme Court held that "a domain name registrant acquires the contractual right to use a unique domain name for a specified period of time...[but this] contractual right is inextricably bound to the domain name services that [Network Solutions] provides." Umbro concluded that the domain name registration agreement was a "contract for services" (which was not subject to "garnishment") rather than property. (Umbro was preceded by the Eastern District of Virginia's decision in Dorel v. Arel where the court punted on the "issue of whether a domain name is personal property subject to [a lien]" because the judgment creditor could take advantage of an easier, practical solution: "the registrar's policies.")
Kremen v. Cohen: Enter Kremen v. Cohen, decided by the Ninth Circuit in 2003. Kremen cast a shadow over Umbro. Kremen involved an action for conversion where the underlying property was a domain name. One of the big questions in front of the court was whether a domain name was property which could support a claim for conversion. The court pretty definitively answered that a domain name was property and therefore could support a claim for conversion. Following Kremen, courts started to realize that since domain names are property, they should be subject to the claims of judgment creditors. (See Office Depot, Inc. v. Zuccarini, 621 F. Supp. 2d 773 (N.D. Cal. 2007).) More recently, in Bosh, Judge Florence Marie-Cooper of the Central District of California allowed Toronto Raptors basketball player Christopher Bosh to seize a slew of domain names held by Luis Zavala, based on a cybersquatting judgment obtained by Bosh.
The key conceptual question to resolve is whether domain names are freely transferable, or whether domain name registration services are contracts personal to the registrant. Given the emergence of the flourishing secondary domain name market, you would think there would be no dispute as a practical matter as to whether domain names are freely transferrable. But it's not as hard you may think to encounter people who argue that domain names are just personal contract rights. For example, in 2009, Network Solutions took this position in the Kentucky domain name case where the Kentucky AG tried to seize numerous domain names based on the fact that they were "gambling devices" used in contravention of Kentucky law. (See pages 7 through 11 of their amicus brief filed in Kentucky: [pdf].) The Kentucky AG's decision was on questionable legal grounds for a variety of reasons, but I was surprised to see Network Solutions' reliance in its amicus brief on Umbro.
From a practical standpoint, the big question is whether a judgment debtor has assets that can be sold to satisfy a judgment. If there are such assets (whether in the form of domain names or otherwise), most courts are going to find a way to let the judgment creditor get at them. There may be tweaks around whether the particular statute in question covers a certain type of property (see, e.g., Palacio Del Mar Homeowner's Association, Inc. v. McMahon, 174 Cal. App. 4th 1386 (2009) (domain names are not subject to "turnover order," coincidentally, the same type of order Bosh obtained)), but it's a mistake to see these cases as somehow rejecting the theory domain names are properly subject to the claims of creditors. One caveat: even if domain name registration services are not contracts personal to the registrant, not every domain name can be easily bought and sold. As discussed in a moment, certain types of domain names - including potentially those involved in Bosh - are tougher to monetize without stepping on the toes of third parties.
Process Questions: In Bosh, the domain names all related to the names of famous athletes and celebrities and were ordered "turned over" to Bosh. Bosh plans on distributing them to other athletes whose names the defendant was squatting on. (Bosh plays for the Toronto Raptors and the defendant squatted on the names of Bosh and many other athletes.) Bosh is somewhat atypical since Bosh didn't really care about satisfying the judgment he obtained and probably will not undertake further efforts to collect. But one of the problems with Bosh is that it doesn't set any sort of process to value the domain names. Is the defendant's judgment satisfied based on the turnover? Who is to say? A turnover to Bosh is sort of an awkward result, and seemingly precluded by the statute (see McMahon), but Zavala was not around to contest the issues, so it is what it is.
A related problem is that Bosh would have a tough time selling the domain names, given that there would be little guarantee that any purchaser would steer clear of engaging in the same conduct that the defendant did in Bosh. The court in Zuccarini alludes to this. (See Zuccarini, 621 F. Supp. 2d at 778, fn. 7.) It's unlikely a court would ever conclude this, but if Bosh decided to auction off the names that were turned over, would he be treading close to the cybersquatting line?
Back to the typical case. Some would argue there's some sort of non-infringing use for all domain names, and that it's up to the purchaser to figure out non-infringing uses. There are plenty of established auction houses that regularly deal in domain names (e.g., Moniker; Sedo). The best bet is to sell a domain name through a court-blessed third party auction. Theoretically, the market price at an auction will accurately reflect the assessment of purchasers as to how the domain name can be used. I guess a very rough analogy is that real property is freely exchangeable, but you can only use it without injuring the rights of your neighbors. No one argues based on the hypothetical nuisance claims of neighbors that real property is not freely exchangeable and therefore not subject to the rights of creditors.
At the end of the day, there are plenty of issues around the fringes, but domain names are likely not off limits for judgment debtors based on the theory that domain names are not "property". Most courts will find a way to let judgment creditors get at domain names. That's not to say that the process of seizing the names and disposing of them does not raise thorny issues.
Posted by Venkat at 10:02 AM | Domain Names , Licensing/Contracts , Publicity/Privacy Rights , Trademark
October 15, 2009
Q3 2009 Quick Links, Part 2
By Eric Goldman
Trademark
* Venkat: Twitter makes the dictionary.
* Federal Circuit says Hotels.com is generic.
* Steve Madden sues eBay for trademark infringement. Marty's coverage. Justia page. I found the fifth cause of action, "trademark delusion," a surprisingly apt malapropism.
* Yahoo! Inc. v. Ashantiplc Limited. Yahoo is suing over Flicker.com.
* Lots of action involving Mary Kay.
- Mary Kay sued Yahoo for its shortcuts being triggered by the Mary Kay trademark. The Justia page.
- Mary Kay brought another lawsuit to shut down aftermarket resales.
- The Mary Kay v. Weber case has reached a conclusion. See my initial blog post on the case. In March, Mary Kay won a jury verdict against Weber. In August, the district court judge denied Weber post-trial relief. Mary Kay v. Weber, 2009 WL 2569070 (N.D. Tex. Aug. 14, 2009). On Sept. 29, the judge awarded Mary Kay $1.1M, computed as “the defendants' pre-tax net profit for the years 2005 through 2008.”
* I hate greeting card IP cases...especially when they involve Paris Hilton. See the Ninth Circuit opinion.
* Rebecca on a complicated trademark and false advertising case involving cell phone reflashing.
* Third Educ. Group, Inc. v. Phelps, 2009 WL 2029758 (E.D. Wis. July 10, 2009). An oblique nod to a co-blogging situation:
It is possible to have a situation in which a voluntary association develops out of a preexisting creation of an individual (take, for example, a blog created, named, and operated entirely by a single individual that then expands into a voluntary association as it includes more collaborative members but continues to utilize the original name). Under such circumstances, the founding individual might register the name of the voluntary association as a trademark solely in his own name and then license it to the voluntary association because he has used the trademark separate from the voluntary association. However, that did not occur here.
* CollegeSource, Inc. v. AcademyOne, Inc., 2009 WL 2705426 (S.D. Cal. Aug. 24, 2009): "Plaintiff argues for personal jurisdiction on the grounds that Defendant purchased two of Plaintiff's trademarks from internet search engines, so that those engines would display Defendant's advertisements when Plaintiff's word marks were searched….Defendant's uncontroverted affidavit avers that its Adwords were selected by the search engines and were purchased before Defendant knew Plaintiff was located in California.…Accordingly, even if Defendant intentionally infringed Plaintiff's marks, there is no showing that act was “expressly aimed at the forum state” or that it caused “harm that the defendant knows is likely to be suffered in the forum state.”"
* GMA Accessories, Inc. v. BOP, 2009 WL 2634771 (S.D.N.Y. Aug. 25, 2009). A really interesting and confusing lawsuit that says (I think) that electronic usage of third party trademarks does not qualify as a use in commerce and may not constitute contributory trademark infringement, with obvious implications for the search engine keyword advertising cases:
Electric Wonderland's second alleged meritorious defense is that it did not use the CHARLOTTE or CHARLOTTE SOLNICKI marks....Electric Wonderland's President described its business as follows:
Electric Wonderland brokers and/or processes orders from wholesale purchasers for fulfillment by clients of Electric Wonderland. Electric Wonderland does not directly sell its clients [sic] products, does not fulfill orders, does not acquire or maintain any inventory for sale, and does not purchase products from its clients for resale. Electric Wonderland does receive commissions on sales it brokers....
According to the Flack Declaration, these were the services Electric Wonderland provided to Charlotte Solnicki. (Flack Decl. P 3.) "Electric Wonderland did not directly sell Charlotte Solnicki products, did not fulfill orders, did not acquire or maintain any inventory of such products for sale, and did not purchase such products from Charlotte Solnicki for resale." (Flack Decl. P 3.) If this were the extent of Electric Wonderland's role, a fact-finder could find that Electric Wonderland did not "use" the CHARLOTTE or CHARLOTTE SOLNICKI marks, because it did not place the marks on any goods. Likewise, a reasonable fact-finder could determine that Electric Wonderland never used the marks to sell or advertise any of the services Electric Wonderland rendered. Thus, Electric Wonderland would not be liable for direct trademark infringement.
...Electric Wonderland's president claims that "[a]t no time while Charlotte Solnicki was a client of Electric Wonderland was Electric Wonderland aware of GMA's 'Charlotte' products nor of any possibility that the Charlotte Solnicki products were potentially infringing any third party's trademark rights." (Flack Decl. P 5.) If true, a reasonable fact-finder could find that Electric Wonderland neither knew, nor had reason to know of the alleged infringement during the period in question.
In addition, the Second Circuit has not decided whether contributory infringement applies to entities like Electric Wonderland, which provide services instead of products....Thus, Electric Wonderland, as a matter of law, may have a complete defense to contributory infringement liability, a matter which this Court need not decide at this juncture.
* Dan Burk and Brett McDonnell, Trademarks and the Boundaries of the Firm. Interesting discussion (among other things) on how an entrepreneur's/employee's personal reputation and corporate reputation can be interlinked.
Domain Names
* The Eleventh Circuit affirmed the defense win in the domain name case of Southern Grouts & Mortars v. 3M, 2009 WL 2182605 (11th Cir. July 23, 2009). See my initial blog post on the case.
* John Levine: What are TLDs Good For? Bringing to mind the famous Edwin Starr song (I think the answer is the same!).
* ICANN claims it has killed domain name tasting.
Posted by Eric at 09:53 AM | Derivative Liability , Domain Names , E-Commerce , Marketing , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
September 08, 2009
Yahoo's Search Results Snippets Aren't False Endorsement--Stayart v. Yahoo
By Eric Goldman
Stayart v. Yahoo! Inc., 2009 WL 2840478 (E.D. Wis. Aug. 28, 2009)
Earlier this year, I blogged about Beverly Stayart's quixotic lawsuit against Yahoo and others for showing search results snippets that contained her name adjacent to spammy porn and adult content links. Last month, the court efficiently dismissed her federal Lanham Act "false endorsement" claims and then dismissed the remainder of her lawsuit on procedural grounds, allowing Stayart to refile those claims in state court if she chooses. (She shouldn't but she probably will). The court rejected Stayart's Lanham Act false endorsement claim on three different grounds.
Commerciality
The court says that Stayart has not made adequate efforts to commercialize her name sufficient to give her standing for a Lanham Act claim. I agree with the court's factual assessment. Although Stayart alleged that she has been an active participant in online communities, she hasn't done anything to commercialize her name. Stated differently, if Stayart has standing under the Lanham Act's false endorsement provisions, then just about everyone in the world would.
Confusion
The court rejects any likelihood of consumer confusion. I don't particularly like the court's reasoning, which seems to be that since Stayart has lived a squeaky clean life, no one would believe that she could be associated with the seedier activity promoted in the spammy links. This reasoning seems completely inconsistent with the nature of gossip. Nevertheless, the court is completely right when it says "No one who accessed these [spammy] links could reasonably conclude that Bev Stayart endorsed the products at issue." I think this is true because the spammy links lack internal credibility enough for anyone to believe them at all.
With respect to Various, the defendant whose adult website was advertised at some of the spammy links, Stayart argued initial interest confusion because people interested in her might be induced to click on the spammy links. The court rejects the argument by saying "The type of person looking for information about Bev Stayart would not be fooled into using an online adult-oriented dating website." I'm not sure why the court thinks this is true; people have all sorts of “hidden interests.” Nevertheless, I'd like to think no prudent person would be fooled into clicking on spammy porn links in a search engine, even if it referenced Stayart's name.
47 USC 230
The court's discussion up to this point has some odd reasoning, but the 47 USC 230 discussion is quite bizarre. The court's conclusion is that "Yahoo! should be entitled to immunity because it acted as an interactive computer service, even though Stayart’s claims are nominal intellectual property claims....Immunizing Yahoo! from Stayart’s claims would not limit the laws pertaining to intellectual property because Stayart does not state a valid intellectual property claim."
What? Is the court saying that it doesn't need to discuss 230 because Stayart failed to state a valid IP claim, or is the court saying that Yahoo qualifies for the 230 immunity because doing so would be consistent with 230's policies--even if the court has to ignore 230's statutory exclusion for IP claims? The court could have found a role for 230 by concluding that the Lanham Act false endorsement claim wasn't really an IP claim at all, any more than a Lanham Act false advertising claim is an IP claim, but I don't think the court said that.
So I'm not sure what the 230 references means, and I personally think the court would have been better off not discussing 230 at all. (As Rebecca writes, the whole 230 digression was "obviously useless.") At minimum, I don’t think it would be accurate to say that this court found a 230 defense to a federal IP claim. As a result, I’m filing this case in the bucket of “not very interesting” 230 cases.
Note: we already knew that 230 protects search engines from liability for their search results snippets when IP claims aren’t involved. See, e.g., Maughan v. Google and Murawski v. Pataki. A British court also reached the same result on common law grounds. See the Metropolitan International Schools case.
Conclusion
The court denies Various' 230 defense because its association with the banner ad was unclear. Having dismissed the federal Lanham Act claims completely, the court then declines supplemental jurisdiction over the state law claims. The court also rejects Stayart's guffaw-inducing request for sanctions against the defendants for having the temerity of moving to dismiss her complaint.
I'm glad to see Stayart's lawsuit quickly dismissed. It was a ridiculous lawsuit from inception. At the same time, the court's corner-cutting leaves me lamenting the absence of better doctrines to deter junk lawsuits like this in the first place. It's actually can be tricky to say that any trademark complaint is "wrong" given how much doctrinal contortions some courts have indulged in--even when lawsuits like this are so clearly wrong.
More comments on the case: Rebecca Tushnet, Mike Masnick (who has had first-hand dealings with Stayart) and Ars Technica
Posted by Eric at 03:05 PM | Derivative Liability , Publicity/Privacy Rights , Search Engines , Trademark | TrackBack
July 07, 2009
June 2009 Quick Links, Part 2
By Eric Goldman
State Regulation of the Internet
* iAWFUL, the Internet Advocates Watchlist for Ugly Laws
* Texas HB 2003. Part of the anti-cyber-harassment mania. Very broad statute with lots of room for prosecutorial mischief.
* BNA (BNA subscription required): "State Legislatures Consider Criminal, Civil Restrictions on Ticket Purchasing Software": "At least six state legislative bodies are considering bills this session that would place restrictions on the use of “ticket bots.""
* Because states are embracing the Amazon affiliate tax, the online affiliate industry is shrinking as we speak (1, 2, 3). But in one of his rare good moves, Schwarzenegger has vetoed CA's attempt to impose the Amazon tax.
* Clive Thompson in Wired: "By severing the link between location and geography, the internet turned everything upside down. Now mobile phones are inverting everything again, in the other direction — because your location becomes most important thing about you. So how is the return of geography going to change our lives?" My previous commentary on geolocation and the law.
Blogs/Social Networking Sites
* Yath v. Fairview Clinic, 2009 WL 1751767 (Minn. App. Ct. June 23, 2009). Posting illegitimately obtained health information to a MySpace page qualified as “publicity” for purposes of an invasion of privacy claim. The court says: “Yath's private information was posted on a public MySpace.com webpage for anyone to view. This Internet communication is materially similar in nature to a newspaper publication or a radio broadcast because upon release it is available to the public at large.” As a result, the publication qualified as “publicity” even if the material was posted for less than 48 hours and the plaintiff could only prove that a small number of folks actually saw it. Compare the Moreno v. Hanford Sentinel case, where republication of information the plaintiff voluntarily published on her MySpace page could not support an invasion of privacy claim.
Nevertheless, the defendants were excused because they had not created the MySpace page, even though they had supplied the information republished on the MySpace page.
* Richerson v. Beckon. Ninth Circuit upheld reassignment of teacher-mentor based on negative blog comments. My blog post on the district court opinion.
* Kaufman v. Islamic Soc. of Arlington, -2009 WL 1815641 (Tex. App. Ct. June 25, 2009). An online-only journalist qualified as a "member of the electronic or print media" for purposes of an interlocutory appeal statute.
* After von Brunn committed his hate crime outside the US Holocaust Museum, a bunch of his digital trails went dark as websites newly realized his vitriol was posted there.
* If you're looking for a paper topic, here's one: the use of MySpace, Facebook and other social networking sites in family law disputes, especially over child custody. I'm seeing cases every week where social networking site postings are being introduced to corroborate or contradict testimony about a parent's fitness.
Security
* FTC v. Pricewert. The FTC takes down an allegedly rogue Internet access provider. To the extent that the IAP is engaged in criminal activities, no problem; but it's less clear to me if the FTC can get a civil injunction under its Sec. 5 authority to stop the IAP from serving its putatively illegal customers. Such an action could be preempted by 47 USC 230. The FTC, in its brief, says the IAP fits into a Roommates.com exception, an argument presumably bolstered by their 10th Circuit win in FTC v. Accusearch.
* Johnson v. Microsoft Corp., 2009 WL 1794400 (W.D. Wash. June 23, 2009). This is a putative class action over Microsoft’s use of Windows Genuine Advantage (WGA) to validate copies of Windows XP. In this ruling, Microsoft gets SJ on the claim alleging that the contract prevented Microsoft from doing WGA validation. Especially interesting is the court’s conclusion that IP addresses are not personally identifiable information.
* Microsoft v. Lam. Microsoft brings a lawsuit against alleged click fraudders who caused Microsoft to issue $1.5M in credits to advertisers. The NYT article.
* EFF on the most recent amendments to the Computer Fraud & Abuse Act.
Miscellaneous
* Expedia tagged for $184M in damages for improperly marking up its service fees.
* In re Jamster Mktg. Litig., 2009 U.S. Dist. LEXIS 43592 (S.D. Cal. May 22, 2009). Wireless carriers aren’t liable under RICO and false advertising laws for various deceptive practices by wireless content providers.
* New unmeritorious patent lawsuit trend: lawsuits over patent markings for expired patents.
* NYT: Investing in Lawsuits, for a Share of the Awards
* Oddee: 15 geekiest license plates:
Posted by Eric at 09:18 PM | Content Regulation , Derivative Liability , E-Commerce , Licensing/Contracts , Marketing , Patents , Privacy/Security , Publicity/Privacy Rights , Search Engines | TrackBack
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
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