Nov.-Dec. 2010 Quick Links, Part 5

By Eric Goldman


*, LLC v New York State Dept. of Taxation & Fin., 2010 NY Slip Op 07823 (N.Y. App. Div. Nov. 4, 2010). A NY appellate court rejected Overstock’s/Amazon’s facial challenges to “affiliates tax” but revived the as-applied challenge. The court distinguishes between “solicitation” of business for Amazon (collection obligation imposed) and passive advertising for Amazon (no collection obligation), but doesn’t clearly explain why Amazon affiliates are engaged in solicitation and not passive advertising. Among other things, the court says [I reordered quotes]:

An advertisement in a newspaper is clearly not solicitation, as it is geared to the public at large. Likewise, the maintenance of a Web site which the visitor must reach on his or her own initiative is not, under the statute, or the advisory opinions, a solicitation. On the other hand, the targeting of a potential customer by the transmission of an e-mail is no different from a direct telephone call or a mailing to a customer. Both constitute active initiatives by a party seeking to generate business by pursuing a sale…When a representative can only receive compensation for an actual sale, it is much more likely that the representative will actually solicit, rather than passively maintain a Web site…..Nevertheless, we remand for further discovery so that plaintiffs can make their record that all their in-state representatives do is advertise on New York-based Web sites.

Although I think the court’s analysis is wrong, it is not fatal to affiliate programs. For example, it seems like Amazon could fix its program by (1) prohibiting email marketing by affiliates, or (2) moving to a CPC model for affiliates.

* Colorado FYI Sales 79:

“If such retailers have total annual gross sales in Colorado of $100,000 or more, such retailers must: Provide notice with each purchase (the “transactional notice”). The transactional notice must:

• State that the retailer does not collect Colorado sales or use tax.

• State that the purchase is not exempt from Colorado sales or use tax merely because it is made over the Internet

or by other remote means.

• State that State of Colorado requires Colorado purchasers to file a sales or use tax return at the end of the year

for all taxable Colorado purchases that were not taxed, and pay tax on those purchases

• The notice must be easily seen and located near the total price.”


* Ars Technica on the Comcast/Level 3 spat. Is it a Net Neutrality red flag or a garden-variety peering disputes?

* Putting an end to one of the most over-hyped stories of the year, Craigslist shut down its adult services category globally.

In an unrelated development, Craigslist got a $6M+ judgment against, which “developed, advertised, and sold software programs to automate posting ads on Craigslist’s website and utilized other automated devices and related services meant to circumvent Craigslist’s security measures.” This is one of those doctrinally troubling rulings that I choose to ignore because it’s a default judgment. See the magistrate report and the judge’s adoption.

* Latest NYT article hand-wringing about cyberbullying. WaPo has a myth-busting article on bullying.

* Specht v. Google, 2010 WL 5288154 (N.D. Ill. Dec. 17, 2010). Google wins a trademark battle over the term “Android.” Some interesting parts:

– “on its own, the use of a domain name or e-mail address to identify an Internet host computer does not constitute a bona fide use in commerce. The use of a website address containing a trademark is not the same as use of the mark.”

– “The website served as a remnant of a closed business. A “ghost site” such as this is not a bona fide use in commerce that can prevent the abandonment of a mark. The cost is small to maintain a domain name registration and host a several-page promotional website without e-commerce functionality, such as that which Plaintiffs contend existed at….Allowing a mark owner to preserve trademark rights by posting the mark on a functional yet almost purposeless website, at such a nominal expense, is the type of token and residual use of a mark that the Lanham Act does not consider a bona fide use in commerce.”

* Oklahoma HB 2800: Executors can take over web accounts of the deceased.

* In theory ending another one of the year’s most overhyped stories, the Borings got $1 for their trespass claim against Google. Previous blog coverage (1, 2, 3).

* Reuters: “A Reuters Legal analysis found that jurors’ forays on the Internet have resulted in dozens of mistrials, appeals and overturned verdicts in the last two years.” Previous blog coverage.

* The Starwood v. Hilton Hotels corporate espionage lawsuit has settled. I tested this dispute on my IP course last year (see the exam and sample answer).

* California State Bar Standing Committee on Professional Responsibility and Conduct Opinion No. 2010-179:

Whether an attorney violates his or her duties of confidentiality and competence when using technology to transmit or store confidential client information will depend on the particular technology being used and the circumstances surrounding such use. Before using a particular technology in the course of representing a client, an attorney must take appropriate steps to evaluate: 1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; 2) the legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information; 3) the degree of sensitivity of the information; 4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; 5) the urgency of the situation; and 6) the client’s instructions and circumstances, such as access by others to the client’s devices and communications.

* Another ill-conceived California law: large companies have to disclose on their websites their efforts to reduce slavery and human trafficking in their supply chains. Are you kidding me???

* Fun with Google Books Ngram viewer: cyberlaw vs. other terms; but different results when the terms are capitalized.

* Inside Higher Ed: “professors ‘caught on tape’ is a growing genre, and some think it could have a chilling effect on academe.”

* HuffPost: You’re Out: 20 Things That Became Obsolete This Decade.

* Tell your favorite male bloggers (besides Venkat and me, of course) how you really feel about their strengths.