May 2008 Quick Links, Part 2

By Eric Goldman


* Google says it isn’t settling the Viacom lawsuit (I don’t believe it).

* Interesting juxtaposition: (1) Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates and (2) BusinessWeek ran a lengthy retrospective on Tanya Andersen’s battle against the RIAA, including her beefs against the RIAA’s investigation and enforcement tactics.

* A music warez trader was convicted by a jury of criminal copyright infringement.

Online Contracts

* Juanda Lowder Daniel. Virtually mature: examining the policy of minors’ incapacity to contract through the cyberscope. 43 Gonz. L. Rev. 239-269 (2007/08). This article addresses the very important issue of contracting capacity of minors. See my most recent post on that topic.

* Adelman v. Sparks Network (Cal. App. Ct. May 20, 2008). The Jdate online dating service allegedly failed to include required language (such as notice of a mandatory cooling-off period) in its user agreement. The court dismisses the plaintiff’s lawsuit nonetheless because he was a happy customer who didn’t suffer any damage.

* Tom O’Toole surveys some recent online contract cases. He offers the following conclusions: (1) Contract Terms Should Be Available for Review, (2) Clickable Buttons/Links Should Clearly Signal Assent, and (3) Humans Are Not Helpful.

* I realize this point would be better explored in a full blog post, and I suspect this point has been made in the academic literature (if so, I’d appreciate some cites so I can pass them along). The issue: how might the endowment effect explain consumer antipathy towards EULAs? Wikipedia says the endowment effect means that “people value a good or service more once their property right to it has been established.” This observation occurred to me when I attended a ridiculously stacked panel at the ION Game Conference on “user rights” in virtual worlds. Many of the gripes/grumbles related to very common EULA provisions that simply overrode default law. It occurred to me that maybe part of the problem was that consumers assume the defaults are appropriate rights allocations granting them the “property” right, in which case they suffer a greater psychological loss when those defaults are varied than if different defaults were set. One obvious policy consequence: as part of the considerations when setting defaults, policy makers should include the psychological costs of varying the defaults. If the interaction between EULAs and the endowment effect hasn’t been written about, it would make an excellent paper topic.

Other Topics

* A military court has said that distributing a hyperlink to child porn does not constitute criminal distribution of child porn. Tom O’Toole explains the situation.

* A.B. v. State, 2008 WL 2031388 (Ind. May 13, 2008). It seems like the digital age recipe for guaranteed trouble: 8th grader + hatred towards a school principal + MySpace. How many judicial cases are we going to see with this combination? This one involves some mean-spirited and profanity-laced comments about her principal made by a 14 year old girl on a private MySpace page accessible only by 26 students. The principal saw it only because one of the students gave a printout to the principal. The court concludes that posting to a private MySpace page doesn’t satisfy the criminal standards of “intent to harass, annoy, or alarm” via the Internet.

* Doe v. Friendfinder Network, Inc., 2008 WL 2001745 (D.N.H. May 8, 2008). The court denied the plaintiff’s motion for reconsideration on Friendfinder’s 230 eligibility for the statement “Sorry, this member has removed his/her profile.”

* Another “where are they now?” retrospective on dot com boom companies, ironically running in the Industry Standard (which wiped out in the dot com bust itself).