Nov. 2006 Quick Links

By Eric Goldman

My monthly roundup of noteworthy tidbits:

* Yesmail, an email outsource vendor, was busted by the FTC under CAN-SPAM for failing to honor opt-out requests because Yesmail’s incoming email filters blocked those opt-out requests as spam. This strikes me as a particularly messy technological dilemma–even email outsource vendors need spam filters, but if those filters nab opt-out requests, the FTC isn’t showing any sympathy. So it looks like email outsource vendors will need to use less vigilant spam filters or find some way to direct opt-out requests to a non-filtered email server.

* Best Western Int’l Inc. v. Doe, No. 06-1537 (D. Ariz. Oct. 24, 2006): griper defeats trademark infringement and dilution claims due to the lack of “use in commerce in connection with goods or services.” (HT: BNA’s E-Commerce and Tech Law Blog).

* Simmons v. Florida, SC04-2375 (Fla. Sup. Ct. Nov. 16, 2006). Very troubling ruling from Florida upholding the criminal conviction of a defendant for disseminating harmful to minors material online. First, breaking with an unbroken string of cases dating back to 1996, it upholds the state law prohibiting the dissemination of harmful to minor materials over the Internet from a Constitutional challenge. In the past, these laws uniformly have been struck down under the First Amendment or the Dormant Commerce Clause (or both). Second, the statute applies only to email, but it was used to bust someone communicating via instant message. These types of technology-specific statutes create these odd silos that create too much ambiguity. Declan’s writeup.

* McDonald’s is seeking a patent on using a “sandwich delivery tool” to deliver filling (like ham) to a “bread component.” This could be the greatest thing since sliced bread!

* From Greg Linden’s blog: Google surveys its users and they say they want more results per page. So Google tests a search results page with 30 results/page. The result? A 20% drop in traffic! Note that a 10-result page takes 0.4 seconds to load, while a 30-result page takes 0.9 seconds, so the working theory is that an extra 0.5 second latency deterred a lot of searching. This may give a little insight into why Google is fighting so hard on net neutrality. If Google does get relegated to a slow lane, it may lose lots of searches.

* A band called Bones registers a MySpace account at http://www.myspace.com/bones and, over the course of 2 years, accrues 2,100 friends. Fox, the owner of MySpace, decides that it would prefer to have that URL for its TV show Bones, so it boots the band and puts up a page for the TV show. Can Fox do this legally? It all depends on the contract (but I’m skeptical that the contract was this broad). For some background on taking virtual assets, see my prior discussion on the sex.com litigation and account ownership in virtual worlds. In any case, Fox relented and gave the URL back to the band. But this is a good reminder that, if you care about your web presence, don’t build up goodwill in a URL controlled by someone else.

* FTC busts Guidance Software for inadequate security. According to Internet News: Guidance’s privacy policy said it “takes every precaution to protect our users’ information,” “your information is protected both online and offline” and it protected data “with the best encryption software in the industry – SSL.” Yet, Guidance suffered a security breach that resulted in the leak of 4,000 credit card numbers; and the breach wasn’t detected for 3 months. I’m not entirely sure what to make of this–was this enforcement action based solely on overstatements in the privacy policy, or was it based on poor security practices regardless of the privacy policy? My vote is that it’s the latter based on the BJ’s Wholesale Club precedent.

* A consumer group filed a complaint against Zillow for doing a lousy job of providing valuation estimates. While Zillow’s estimates may be poor, this complaint raises some troubling concerns about the liability associated with any web-based price estimate service. Could developments in this matter affect Google’s PageRank as a valuation of the worth of web pages?

* Ted Leonsis, vice chair of AOL, didn’t like the search results when he vanity searched. So he vowed to improve his Google profile, launching a high volume blog that helped drive preferable results to the top of the list. My advice to Ted: enjoy the favorable placement while it lasts; you’re only one Googlebomb away from disappointment.

* We are generally conditioned to think that every searcher gets the same search results for the same search. This model is progressively breaking down due to personalized search and other innovations. A catalog of reasons why search results vary for searchers. I eagerly await the time when courts recognize this fact when dealing with search engine cases!

* A DoubleClick study claims that 30% of consumers admitted that they sometimes click on banner ads, but 61% of consumers said that at least sometimes they made a mental note of the advertisers and followed up with them later. If true, this means that banner ads generate a lot more value than is measured by clicks alone. However, I wonder if this result should be chalked up to the “talk is cheap” category?

* It’s like a well-worn joke: if you’ll believe that, I’ve got a bridge to sell you. But no joke: they may be selling the Golden Gate Bridge–well, at least, corporate sponsorships for it. Of course, the bridge is so iconic that a brand owner could get significant goodwill from being associated with it. On the other hand, it’s the world’s leading suicide destination; not exactly the best corporate tie-in for many brands.

* According to one anti-spam vendor, “9 out of 10 emails now spam.” At this rate, pretty soon it will be 11 out of 10 emails.