December 2007 Quick Links

By Eric Goldman


* I’ve blogged about Various, which operates, before. They made the news recently in two ways. First, they sold to Penthouse for half-a-billion dollars. Second, they settled with the FTC for “pelting” users with unwanted sexually graphic pop-up ads. Do you think these developments are linked in any way… ? Could it be that Various was willing to settle up with the FTC on any terms so that they could get a half-billion dollar check? In this respect, I’m reminded of the MySpace/Intermix $7.5M settlement with the NY Attorney General’s office in a dubious enforcement action that was immediately followed by MySpace’s sale to News Corp. for $580M. Hey government enforcement agencies–if you can spot hot dot-coms that are negotiating mergers and bring an enforcement action, you can name your price!

* Abrams v. Facebook, the lawsuit over Facebook sending text messages to old phone numbers, has settled. See Michael Erdman and the AP.

* Newsday circulation fraud case (involving inflated circulation numbers) nets $83M restitution, $15M criminal settlement, and nine criminal convictions.

* Texas AG Abbott is prosecuting two companies under COPPA. As far as I know, this is the first state-level enforcement action under COPPA.

* Florida AG Michael Palecki looks to be targeting online advertisers for ads placed by their affiliates.

* The Do-Not-Call registry has become an even less dynamic reflection of preferences.


* The Second Circuit kicked out the settlement struck in Tasini’s aftermath because it covered unregistered copyrights. Rebecca makes some good points.

* Perez Hilton drops YouTube because they took down one of his videos in response to a takedown notice. On the one hand, this shows that there can be marketplace mechanisms that give feedback to intermediaries based on the restrictiveness of their takedown policies. On the other hand, YouTube was a free service; what did you expect?

* Michael Savage, a radio personality, is suing a website for posting audio clips of his rants as part of the website’s criticism of him. See the NYT and CMLP.

* A special master has been appointed in the Grokster case to determine the possible filtering options available to Streamcast. I’m actually amazed that this case is still going!

Reviews and Ratings

* WSJ: Restaurants are giving away free meals to online reviewers to try to get improved consumer ratings.

* BrokerCheck, a regulator-sponsored website for consumer gripes about securities brokers, deletes negative gripes if the complaint settles.

* Retail store signage (“shelf talkers”) routinely overstate the Wine Spectator ratings assigned to wine on the shelves.

Best of Mike Masnick

Mike Masnick of Techdirt is a terrific blogger who is smart, prodigious and opinionated. This month he had some noteworthy posts (even by his standards), including:

* Some wise words about Fark’s trademark application for NSFW.

* “Noncompete Agreements Are The DRM Of Human Capital.

* “Anything Goes Wrong Online? Yell ‘Net Neutrality’ As Loud As Possible!

Search Engines

* Google appears to have categorically wiped out PageRank for bloggers participating in PayPerPost.

* Danny’s sensible remarks on the role of humans in Google’s algorithmic search results.

* Search engines pay $31.5M to settle up for running gambling ads. A significant share of this settlement amount is actually public service ads, not cash. Note that enforcement of federal criminal gambling laws is one of the few exceptions to 47 USC 230; if this had been an enforcement of state anti-gambling criminal laws or a civil action, it should have been preempted.


* “Like the proverbial tree falling in a forest, the unauthorized use of a trademark that is never perceived by anyone cannot be said to create a likelihood of consumer confusion.” Custom Manufacturing and Engineering Inc. v. Midway Services Inc. (11th Cir. Nov. 21, 2007). This statement was made in the context of a counterfeit component part, but it sounds like a good reason to reject liability for including trademarks in keyword metatags.

* Todd Hollis is suing a second time. Last time the court sidestepped 230. This time, I hope the court will use 230 to terminate the lawsuit permanently.

* Mark Radcliffe’s “2007 Top Ten Free and Open Source Software Legal Issues

* A nice recap on “location-based mobile services,” the delivery of services predicated on GPS devices in cellphones. UPDATE: It looks like mobile marketing/privacy is the topic du jour (or, at least, a topic worthy of end-of-the-year recaps). AP weighs in on the same topic.

* Kaspersky flags Windows Explorer as a virus and then reverses itself, calling this a false positive. Then again, many people consider Microsoft software “malicious code,” so maybe the positive wasn’t so false after all.