May 2007 Quick Links

By Eric Goldman


* MySpace Inc. v. The Inc., No. CV 06-3391 RGK (C.D. Cal. Feb. 27, 2007). This case has some personal interest because was one of my flagship clients before I left the law firm in 2000. This ruling held liable under CAN-SPAM, California’s anti-spam law and the user agreement for spamming within the MySpace network. See the BNA writeup. Among other remarkable angles of this ruling, the court upholds the liquidated damages clause based on the anti-spam restrictions in the contract. Based on this adverse judgment, in April the parties settled for over $2.5M —basically, all of’s remaining cash, leaving its survival in serious jeopardy.

Domain Names

* Domainers are hot. Business 2.0 article on Kevin Ham, a major domainer who has wildcarded Cameroon’s .cm TLD. NYT article on NameMedia, which owns 725,000 domains.

* From the AP: Entrepreneurs loaded up on Virginia Tech- and victim-related domain names following the massacre.


* Broadway producer Scott Rudin was annoyed that the New York Times’ website published user-submitted reviews of his play. To tweak them for doing so, the play cherry-picked some comments from the users’ submissions and ran them in ads for the play with the attribution “The New York Times Online.” An NYT editor objected to that attribution because it connoted an editorial judgment of the paper, rather than the paper’s readers. Read the fun back-and-forth between Rudin and the editor.

* From the Washington Post: Billboards are the second-fastest growing ad category (after the Internet) due to increased traffic congestion and new digital billboard technology. And a technologist has developed eye-tracking technology that may let billboard advertisers accurately count eyeballs.

* Optima Funding, Inc. v. Strang, 2007 WL 1430699 (Cal. Ct. App. May 16, 2007). A mortgage company said it never sent unsolicited faxes or authorized anyone to do so on its behalf, but it did use lead generation companies. Strang sued Optima repeatedly in small claims court for TCPA violations. Optima struck back with a 17200 claim, basically saying that Strang was falsifying evidence to connect Optima to the faxes. In this ruling, the California Appellate Court upholds Strang’s anti-SLAPP motion to strike.

* NYT: Custom postage stamps haven’t really caught on. (Note: I just tested on them in my IP course exam).

* NYT: “The High Price of Creating Free Ads.” Advertisers may not save any money by relying on user-generated ads. See my previous blog post about the legal costs of UGC ads.

* Rebecca discusses false advertising developments in one of our least favorite 1201 cases, Static Control v. Lexmark.

* AP: Wisconsin bar owner gets a ticket for serving Coors Light beer using a Miller Lite-branded tap. He should have known better than to cross the only major brewery still in Brewtown by serving Colorado beer.

Search Engines

* Brodsky v. Yahoo (C.D. Cal. complaint filed May 11, 2007). A stockholder derivative lawsuit against Yahoo alleging that Yahoo inflated its stock price by hyping its ad businesses. I read through the lengthy complaint and found it mostly nonsensical. For example, consider this allegation of wrongdoing: “whereas Yahoo!’s rivals were paying high-traffic vendors to route traffic through their Web sites, Yahoo! was charging large vendors for access and was dependent on that revenue to make its revenue targets, making Yahoo!’s Web site a less desirable location for vendors to drive traffic to.” Huh? Search Engine Land has more.

* Google has blacklisted all term paper websites from its AdWords program. Reminds me a little of Macellari v. Carroll

Intellectual Property

* Grisman v. YouTube, Inc., C-07-2518 (N.D. Cal. May 10, 2007). Second class action lawsuit against YouTube (and third major broadside, including the Viacom lawsuit). Appears to be highly derivative of the Football Association Premier League lawsuit (see the WSJ Law Blog for more on this).

* Clark v., CIV S-05-2187 (E.D. Cal. May 10, 2007). Clark published a book, sold 187 copies and gave away 234. He sued Amazon (and other online booksellers) claiming that he alone had the exclusive right to distribute the book, so their resales were infringing. Amazon responded that the resales were covered by the First Sale doctrine. Clark responded by saying that Amazon sold more copies than he sold/gave away, but that’s because Clark mistakenly believed that a seller’s lifetime transactions rating were all based on sales of his book. Summary judgment for Amazon.

* Like other content producers, pornographers are feeling the sting of online competition–especially due to the low barriers to entry of amateur-produced content.

* From Washingon Post: Appraisers are going to war over recycling of data they generate during appraisals, which they claim violates promises made to them. When I was guest-blogging at Concurring Opinions, I blogged on the possible IP angles of this dispute.

* BusinessWeek: “Faking out the Fakers: Faced with a tidal wave of counterfeit goods, companies are turning to secretive sci-fi technology. But crooks catch on fast.” It’s like the analog version of DRM.

* The USPTO’s collection of aural TMs.


* Bray v. QFA Royalties LLC, 2007 WL 1306517 (D. Colo. May 3, 2007). Posting a suicide note on a private franchisee-group’s website isn’t grounds for termination of franchises. See Wiggin and Dana’s writeup.

* Nazaruk v. eBay, Inc., 2007 WL 1417287 (10th Cir. May 15, 2007). In a non-substantive opinion, the 10th Circuit upheld the venue clause in eBay’s user agreement. My post on the district court opinion.

* Washington Post article on individuals declaring “email bankruptcy,” i.e., deleting everything in their in-box and starting afresh.

* To mitigate risk, the Concurring Opinions multi-contributor blog has been converted into an LLC.

* University of San Francisco has created a single page aggregating blogs from the entire USF community.