February 06, 2012
Roommates.com Isn't Dealing in Illegal Content, Even Though the Ninth Circuit Denied Section 230 Immunity Because It Was
By Eric Goldman
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 2012 WL 310849 (9th Cir. February 2, 2012)
A brief history of this long-running case. Fair housing advocates sued Roommates.com for allowing potential roommates to evaluate each other using allegedly discriminatory criteria in violation of the Fair Housing Act (FHA) and related state claims. In 2004, the district court dismissed Roommates.com based on 47 USC 230. In 2007, the Ninth Circuit reversed the district court in a horribly fractured batch of opinions led by Judge Kozinski. The Ninth Circuit wisely vacated those opinions and heard the case en banc. In 2008, the Ninth Circuit en banc majority, in an opinion written by Judge Kozinski, subsequently reinforced that 47 USC 230 didn't apply to parts of Roommates.com's service. The Ninth Circuit en banc majority opinion became the flagship exception to 47 USC 230, but that exception has proven narrow over the past four years; most cases citing Roommates.com rule for the defense.
After the Ninth Circuit en banc ruling, the case remanded to the district court to evaluate the substantive merits of the FHA and related claims (now that the Section 230 immunity was off-the-table). Although the Ninth Circuit en banc majority opinion didn't conclude that Roommates.com acted illegally, the opinion assumed Roommates.com's illegality so strongly that, not surprisingly, the district court ruled that Roommates.com violated the FHA and related claims.
The FHA ruling went back to the Ninth Circuit. Last week, the Ninth Circuit ruled--in yet another opinion by Judge Kozinski--decisively that Roommates.com hadn't acted illegally, i.e., that it hadn't violated the Fair Housing Act (or California equivalent) because roommates who share a dwelling aren't covered by the statutes. From a cyberlaw standpoint, the ruling is only mildly interesting.
Much more interesting is this ruling's implication for 47 USC 230 and the Ninth Circuit's prior en banc ruling. In his en banc majority opinion, Judge Kozinski offered the following conclusion, which is the most commonly cited holding of this case:
If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune.
Well, Judge Kozinski's latest ruling concluded that Roommates.com wasn't dealing in illegal content, so it should be immune, right? But Judge Kozinski earlier concluded that Roommates.com didn't qualify for the immunity because it had been dealing with illegal content. What gives?
It appears that Judge McKeown, in her en banc dissent, predicted this trap:
the question of discrimination has not yet been litigated. In dissenting, I do not condone housing discrimination or endorse unlawful discriminatory roommate selection practices; I simply underscore that the merits of the FHA claim are not before us. However, one would not divine this posture from the majority’s opinion, which is infused with condemnation of Roommate’s users’ practices. To mix and match, as does the majority, the alleged unlawfulness of the information with the question of webhost immunity is to rewrite the statute.
Indeed, one way of interpreting the Ninth Circuit's sequence of rulings is that, per the en banc ruling, a plaintiff can defeat a 47 USC 230 immunity defense simply by alleging the existence of illegal content (as part of showing the website encouraged/required illegal content), and this allegation works even if the content ultimately isn't illegal. But this would be a bad policy result--we need the immunity exactly when the plaintiff's allegation is wrong. We now know Roommates.com deserved to win (either due to the immunity or based on the substantive doctrine), but the immunity would have gotten us to the right result much faster. After all, Roommates got its 47 USC 230 dismissal in the district court EIGHT YEARS AGO. Now, 8 years later, we've reached the same result, but the parties have spent enormous amounts of time and money to restore that status quo. As both Judge Kozinski and Judge McKeown acknowledge, the point of the 47 USC 230 immunity is to help defendants save those costs for the defense. By letting the plaintiff's incorrect allegation trump the immunity, the Roommates.com majority rule has undermined that objective.
[Procedural note #1: it is tempting to criticize Roommates.com's counsel for pushing the 47 USC 230 immunity ahead of other defenses, but that's not fair. Putting aside the fact that Roommates.com did advance multiple defenses initially and not just 230, Section 230 should eliminate the defendant's need to go through a claim's substantive elements (and all of the discovery associated with it). So it's a logical litigation strategy to put the Section 230 immunity first. And in fact, Roommates.com got the Section 230 win at the district court, so until the Ninth Circuit coughed up its hairballs, the defense strategy worked well.]
[Procedural note #2: it's a little harder to be sympathetic to Judge Kozinski. In his defense, as an appellate judge, he deals with the cases as they arrive on his desk. [UPDATE: In the first version of this post, I mistakenly claimed the case was initially dismissed on a motion to dismiss.] However, his en banc opinion was written quite broadly and loosely. If he had any doubts about the legality of Roommates.com's actions--and the new opinion makes it clear he's strongly in support of their actions--he could have acknowledged that possibility more clearly rather than writing such a strongly worded opinion based on the presumptive illegality.]
A different way of reading this result is that the latest Ninth Circuit ruling has undermined the en banc ruling. Roommates.com never had illegal content in the first place, so the en banc opinion was based on a factual predicate that wasn't true. I've asked Roommates.com's counsel about the possibility of asking the Ninth Circuit to vacate the en banc ruling because of this factual predicate problem. I don't know if such subsequent proceedings are possible, but it would be a big win for 47 USC 230 jurisprudence for the Ninth Circuit to wipe away the en banc opinions. Even though the en banc opinions have produced mostly defense-favorable rulings, wiping them out would clean up some unnecessarily loose and confusing language in the majority opinion as well as cast significant doubt on the few plaintiff-favorable cases that have built on Roommates.com (e.g., Accusearch, NPS, Swift v. Zynga, Jones v. thedirty).
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The case library:
* February 2012 Ninth Circuit ruling
* Roommates.com's reply brief on the second appeal
* Roommates.com's opening brief on the second appeal
* District court ruling on remand. November 2008 stipulation. Blog post on those developments.
* 9th Circuit en banc opinion from April 2008
* Recording of the en banc oral argument
* Amicus brief from a variety of Internet companies such as Google, eBay and Amazon plus non-profit organizations such as the EFF [subsequently rejected by the Ninth Circuit]
* Amicus brief from various news organizations
* Amicus brief from the ACLU. Roommates.com's reply brief to the ACLU brief.
* The Fair Housing Councils' request to brief Batzel. Roommates.com's opposition. The Ninth Circuit denied the Councils' request on Nov. 6.
* The Ninth Circuit order granting the en banc hearing
* Fair Housing Councils' reply to the EFF et al amicus brief
* EFF et al amicus brief supporting a rehearing en banc
* Fair Housing Council's response to Roommates.com's request for an en banc rehearing
* Roommates.com's En Banc Request
* The original 2007 Ninth Circuit opinion
* My blog post on the Ninth Circuit opinion
* Blog post on initial district court dismissal per 47 USC 230
Posted by Eric at 11:37 AM Permalink | Derivative Liability | TrackBack (0) | Printable Version
February 03, 2012
Are You Kinning Me? Microsoft Beats Trademark Lawsuit Over Kinect--Kinbook v. Microsoft
By Eric Goldman
Kinbook LLC v. Microsoft Corp., 2012 U.S. Dist. LEXIS 8570 (E.D. Pa. Jan. 25, 2012)
Microsoft makes the Kinect motion controller for Xbox, and for a while tried out a mobile phone named Kin. Kinbook makes a Facebook app (is this it?) that is intended to capture and organize family memories. Kinbook discovered Facebook's overzealous position that it owns the -book suffix, so Kinbook changed its product name to Kinbox. It alleged that Microsoft's branding of Kinect for the Xbox infringed the Kinbook/Kinbox trademark.
It's hard to tell how successful the Kinbook app is. Microsoft says it had 14 active users in May 2011. Kinbook claims closer to 17,000. Either way, Kinbook is hardly setting the world on fire. The court explains:
"Kinbook credits the arrival of the Kinect for XBOX 360 and Microsoft's accompanying marketing blitz with the poor start of its "Kinbox" Facebook application"
Stop right there. How could that be true? Assuming for a moment that "Kinbox" and "Kinect for the Xbox" are so overlapping that they could confuse consumers (a proposition I don't believe), wouldn't Microsoft's massive marketing blitz increase interest in Kinbox's offerings? So this should have produced a tidal wave of folks looking for Kinbox. Even if some of those users suffer disappointed expectations (they came because they wanted something other than what Kinbook provided), those users will turn over but won't affect the organic interest in Kinbook. Microsoft's promotion could only help Kinbook. Passing the blame to Microsoft isn't very credible.
Instead, the court finds the following:
* Kinbook has never generated any revenues
* they intended to build a website and mobile app but never did
* they intended to spend a quarter-million dollars on marketing but have only invested "a few thousand" dollars instead. Indeed, "Kinbook acknowledges that it has not dedicated any significant time, money, or effort to advertise, promote, or market its marks or services."
It sounds like any alleged trademark troubles with Microsoft are just the tip of the iceberg. Instead of fixing those core issues with their business, they invested their valuable resources in court proceedings.
The court reaches the entirely sensible conclusion that there's no likelihood of consumer confusion and tosses the claims. Among other reasons, the court points out multitudinous other users of the "kin" prefix:
"Kincafe," an online social network for families to connect; "Kin Valley," a secure online social network for the family; "Kinzin," an online social publishing service to allow groups to privately share photos; "Kinnect.Us," an online social networking service to stay connected with family and friends; "Kinector," an online service to help users stay connected with relatives through a private web site where family can share information; "Connect 2 Kin," an online service for families to stay in touch and share photos, share documents, schedule events, etc.; "Kindle," an e-book reader with social networking capabilities; and many others.
The plaintiff admitted that none of these other examples were confusing. Yet, somehow Kinect for the Xbox was. Hmm.
Kinbook also tried to argue that Xbox appeals to 5 year olds, so they should be the paradigmatic "consumer" whose confusion is measured. The court mocks this argument:
No matter what else the ever-remarkable current-day precocious 5 year-old can accomplish, this Court cannot fathom a 5 year-old with either the faculties or the financial means to independently purchase a retail item costing hundreds of dollars. Second, even the hypothetical precocious 5 year-old dispatched by indulgent parents (or grandparents) to make her or his own selections of amusement would likely be able to distinguish between a free software application, and a $150 piece of gaming hardware.
This lawsuit has all the indicia of a small trademark owner trying to squeeze a big company for a nuisance settlement. After all, Microsoft spent $100M promoting Kinect; if Kinbook could get only a 5% taste of the action, that would still be quite tasty. This ruling reminded me a little of the recent Fancaster ruling, which also involved a trademark plaintiff who hadn't really invested much in building a business before running to court. In the Fancaster case, there was some evidence that Comcast may have muscled into the plaintiff's sphere knowing the potential pitfalls, but there's no hint of that on Microsoft's part here (the case indicates that Kinbook didn't show up in Microsoft's trademark search). Instead, I'm just left with the suspicion that the plaintiff thought that a low-merit trademark lawsuit would be a faster path to revenues than building a business. If that's your idea of entrepreneurship, as a LOLcat might say, ur doin it wrong.
Posted by Eric at 08:52 AM Permalink | Trademark | TrackBack (0) | Printable Version
February 02, 2012
Comments on Twitter's Country-by-Country Tweet Removal Announcement
By Venkat Balasubramani, with comments from Eric.
Twitter recently announced its decision to censor tweets on a country-by-country basis. People were up in arms and planned a #twitterblackout. It was a big story last week. (Needless to say, I didn't participate in the blackout.)
As an initial note, Twitter's decision is entirely defensible, and I thought Twitter (and its General Counsel Alex Macgillivray) handled it with poise. I also don't know that its decision can easily be placed in the 'censorship' category since it's implemented by a private entity, which has tremendous discretion in blocking content. (Some of this depends on the actual policy, which we don't know the contours of.) Anyway, this is neither here nor there.
What was striking about this story was how it played out in the media--in particular, the muddled nature of the media narrative that followed this story.
What Types of Takedown Requests Will Twitter Honor?: I would have thought the key question here would be the contours of Twitter's policy--did it remove content in response to a court order? An administrative request? A takedown from a private party? Did it matter whether the request was premised on IP infringements? (no) Could it make certain topics totally off-limits in response to a government request? Would it block accounts? (yes) Hashtags? Would it make Twitter totally unavailable in a country? Here's a blurb from a NYT article titled "Censoring of Tweets Sets Off #Outrage" (italics added):
Twitter, like other Internet companies, has always had to remove content that is illegal in one country or another, whether it is a copyright violation, child pornography or something else. What is different about Twitter’s announcement is that it plans to redact messages only in those countries where they are illegal, and only if the authorities there make a valid request.
Huh? What's a "valid request"? An Associated Press story ("Twitter's new censorship plan rouses global furor") was similarly vague about what types of takedown requests Twitter would respond to:
Twitter said it has no plans to remove tweets unless it receives a request from government officials, companies or another outside party that believes the message is illegal. No message will be removed until an internal review determines there is a legal problem, according to Macgilliviray.
There's a big distinction between a takedown notice from a government, one from an individual (including one sent under a takedown regime such as the DMCA) or a corporation. Another story from the Times of India adds some detail and hints at this specific question ("Twitter's censor move with eye on China?"):
some experts wonder if Twitter's position was really different from that of Google or Facebook. "Google and Facebook have said that they would remove content if ordered by the courts, and Twitter too is saying that it can block tweets if required by the law," said an expert. "Where laws are codified, as in Germany and France about pro-Nazi propaganda, Twitter can block pro-Nazi tweets proactively. But in countries like India, where the laws are not that specific, this will be done reactively on the basis of court orders. That's all Twitter is saying."
(??) It's strange that the stories all described the key standards for what type of request will trigger a takedown in totally vague terms. Obviously it wouldn't make sense for the stories to describe in painful detail the innumerable types of requests an entity such as Twitter receives and how it deals with each of these types of requests, but it was clear after reading these stories that the media didn't have a firm grasp on the contours of Twitter's 'policy'. This was somewhat strange because this was the crux of the story, right? There's one larger aspect of the story which was clear which is that Twitter decided that whatever its policy is regarding takedowns, its response can be limited by country or region--i.e., if one particular country or region decides to send a takedown this may not affect all Twitter users. (The content will be available elsewhere. Also, as others quickly pointed out, as a user who is trying to access content on Twitter, there are probably ways to get around Twitter's country-specific block of content.)
Not surprisingly, many press reports cited to EFF's statement regarding Twitter's policy but even EFF's statement was fairly vague on the particular point of what takedown requests Twitter will honor ("What Does Twitter’s Country-by-Country Takedown System Mean for Freedom of Expression?"):
Twitter already takes down some tweets and has done so for years. All of the other commercial platforms that we're aware of remove content, at a minimum, in response to valid court orders. Twitter removes some tweets because they are deemed to be abuse or spam, while others are removed in compliance with court orders or DMCA notifications. Until now, when Twitter has taken down content, it has had to do so globally. So for example, if Twitter had received a court order to take down a tweet that is defamatory to Ataturk--which is illegal under Turkish law--the only way it could comply would be to take it down for everybody. Now Twitter has the capability to take down the tweet for people with IP addresses that indicate that they are in Turkey and leave it up everywhere else. Right now, we can expect Twitter to comply with court orders from countries where they have offices and employees, a list that includes the United Kingdom, Ireland, Japan, and soon Germany.
From what I gather, Twitter's blocking policy will be implemented on a case-by-case basis and it didn't announce any sort of policy for what types of takedown requests Twitter will automatically honor. But to me this is a key point that none of the stories really dug into.
Will Twitter Implement its Policy Only Where it has People and Offices?: This is another question that I was curious about. Will Twitter honor requests from countries where it doesn't have offices or does this work on a case-by-case basis also? If Twitter's assets, offices, or people are at stake then this obviously changes the calculus, but what about far-flung jurisdictions where Twitter has no presence and no expected or future relationships? EFF's post also hints at this but doesn't really offer specifics:
Twitter's increasing need to remove content comes as a byproduct of its growth into new countries, with different laws that they must follow or risk that their local employees will be arrested or held in contempt, or similar sanctions. By opening offices and moving employees into other countries, Twitter increases the risks to its commitment to freedom of expression. Like all companies (and all people) Twitter is bound by the laws of the countries in which it operates, which results both in more laws to comply with and also laws that inevitably contradict one another. Twitter could have reduced its need to be the instrument of government censorship by keeping its assets and personnel within the borders of the United States, where legal protections exist like CDA 230 and the DMCA safe harbors (which do require takedowns but also give a path, albeit a lousy one, for republication).
For what it's worth, the tradeoff between keeping a local presence and complying with a foreign court order is not anything new. Google has dealt with it, among other countries in Italy. (For all I know @amac could have been one of the lawyers who dealt with this while at Google.) Yahoo! dealt with it in France when it was ordered to take down Nazi memorabilia. In evaluating Twitter's policy, I would guess what people would want to know most (apart from what types of takedowns Twitter intends to honor) would be what types of jurisdictions Twitter intends on screening content in.
__
Maybe Twitter's decision isn't really a policy decision to screen content at the request of governments or entities but to make available the capability to screen content by geographic regions. There's a fundamental difference between the two. I certainly got a clear sense that there was a policy change afoot from the stories announcing Twitter's decision. Either way, none of the stories bothered to get into the details on what I thought were the two core issues. The other tangentially related issue that did not get much attention is how Twitter would respond to requests for user information from governments. We're not much wiser in terms of Twitter policy than we were when we started. On the one hand, this is somewhat strange, given that most reporters live and breathe Twitter, regardless of whether this is their reporting beat. On the other hand, maybe it's an example of how social media can infect journalism? Reporters are friendly with Twitter (as an entity, or a product) so maybe they were reluctant to ask the hard questions? Maybe everyone was in a rush to get their stories out so they didn't dig deep?
I think we'll have to wait and see to see how the policy actually plays out, but Twitter's actions demonstrate a commitment to free speech and openness so it should have gotten the benefit of the doubt. For whatever reason, the story just spiraled and took on a life of its own.
[For my money, one of the best stories on this was from Al Jazeera, which raises the fundamental question of what Twitter's policy is exactly: "Making sense of Twitter's censorship."]
Other posts worth checking out:
* Twitter's initial blog post which wasn't crystal clear on the issue: "Tweets still must flow."
* Lauren Weinstein: "Twitter's censorship muddle."
* Inforrm's Blog: "Legal questions about Twitter ‘censorship’ and country-specific content control – Judith Townend"
___________
Eric's Addendum
To see if we could get our own answers to these unresolved points, Venkat and I took our questions to Alex Macgillivray, and he generously responded to us. Our exchange:
Our Q: What types of takedown notices will be sufficient to get Twitter to take down a post? Court order? Government demand without a court order? Private demand without a court order? (I believe 512(c)(3) takedown notices already work). Others? Does it vary by country?
Alex's answer: "We do analysis of each complaint. For example, even a 512(c)(3) request does not necessarily lead to a removal."
Comment: I infer this means takedown demands are evaluated on a case-by-case basis. If Twitter does not have hard-and-fast rules about takedown demands that clearly work or clearly don't, that would explain why other media outlets weren't precise on this point.
Our Q: Will Twitter take down posts only in countries where it has a physical presence, or will it remove content from countries even where it doesn't have a physical presence?
Alex's answer: "Again, would depend on the requests. For example, a child pornography complaint, even from a user in China, might result in a global removal even though we are not responding in general to requests from China
and are still blocked there."
Comment: child porn is an extreme "test case" because of its toxicity, so I'm still not clear on what happens with less toxic content. I similarly infer everything is done on a case-by-case basis, which would also explain the muddled media coverage.
___________
Eric's Comments
It appears Twitter thought its announcement was good news. Instead of having to remove a tweet from its database entirely, Twitter will now remove tweets only from one country's database. This leaves the tweet up for the rest of the world, and it makes it trivially easy for people in the affected country to get the tweet if they care. Furthermore, the tweet won't vanish; instead, it will be a "noisy withdrawal" by leaving a note that says the tweet was removed. Plus, Twitter will turn over the takedown demand to ChillingEffects, allowing interested folks to monitor the activity and find out what happened. In a world filled with irrepressible censorious impulses, Twitter's policies were designed to make the best of a bad situation.
So how did the messaging, and the community response, go so far wrong? Twitter ran into a small but vocal minority that believe that catering to foreign governments' censorious requests is wrong. I discussed this issue in some detail in connection with Google and China. As I wrote in connection with that situation:
what should a US service provider do when trying to expand internationally? It has a few options, none of them particularly attractive:
* It can skip unreasonably censorious markets altogether, like Google proposes to do in China.
* It can comply with local laws, even though that runs counter to US laws and norms.
* It can ignore local laws, which is typically not a successful plan. In extreme cases, it can lead to local company executives going to jail.
* It can try to change the local country’s laws to be more like ours, either through direct advocacy or by asking the US government to pressure the local government. We routinely use trade negotiations to do this; for example, we have successfully exported our copyright laws this way. But countries usually aren’t thrilled to have the US tell them what their laws should be.
Undoubtedly, the purists would prefer it if Twitter just stayed in the US "bubble" and engage in regulatory imperialism by getting foreign governments to see and do things "our way." A lot of self-satisfied hubris underlies that stance; something we saw with Google's situation where many people appeared to think that denying the Chinese people access to Google would bring the Chinese government to its knees (it hasn't yet). Ironically, American regulators have been on a censorious rampage recently (see, e.g., SOPA, Wikileaks, Operation in our Sites, etc., etc., etc.), so we're hardly on any moral high ground.
The reality is that iif Twitter chooses to expand globally, of course it will have to comply with local law, and of course other countries will require Twitter to take down posts. Twitter has built a technical architecture to reduce the collateral damage of such censorial demands. And I, for one, believe that American dot-coms do more to spread free speech by supplying the technology, even if hobbled through censorship, on an international basis than by not offering the technology at all.
In the end, though, Twitter's move--combined with similar moves, like Google's redirection of Blogspot on a country-by-country basis--remind us that geographic borders remain incredibly relevant to the Internet. This is a political reality, not a technical imperative. Technologically, the Internet is a borderless electronic network, but we continue to erect artificial geographic borders anyway. (See my post, Geolocation and A Bordered Cyberspace). Once again, with censorious proposals like SOPA/PIPA (and, for that matter, OPEN) that seek to create a Fortress USA, America is teaching the world how to embrace artificial geographic borders rather than teaching the world how to tear them down.
One thing I don't understand: if Twitter can turn tweets on and off by country, will that mean countries can assert jurisdiction over it even if Twitter doesn't have a physical presence there? Recall how these issues played out in the LICRA v. Yahoo case, where Yahoo's ad geo-targeting was held against it. Because Twitter can customize views of its databases on a country-by-country basis, foreign governments have a good argument that Twitter can "control" what content goes into a country. Recall, for example, the kerfuffle about Britain's "super-injunction" against Twitter. Even if Twitter didn't have a Britain presence, could Britain now have more leverage to force Twitter to honor its super-injunction? Or, could a foreign country assert that Twitter needs to comply with its data privacy laws on the theory that Twitter could simply turn off tweets in that country if it doesn't want to comply? I'm not sure how Twitter will now explain why it's chosen not to comply with a foreign country's laws, irrespective of its physical presence.
I also asked Alex about this issue:
Our Q: How do you think this policy will affect Twitter's compliance with laws in countries where it doesn't have a physical presence? In other words, because Twitter could simply choose to remove all tweets from showing in a country, Twitter might have a more difficult time arguing that it had no choice about whether or not to show tweets in the country. So, for example, a country may assert that Twitter should comply with its data privacy laws for users in its country even though Twitter has no physical presence there.
Alex's response: "This doesn't change our philosophy with respect to freedom of expression and I don't think it changes the pressure we'll get from countries (other than the transparency piece). Companies that have no way of doing local withholding still get plenty of pressure to do removals. Generally 'I don't have a way to just do this for your country' is a positive from the requesting country's perspective, not a negative or a viable excuse."
Comment: I'm glad I don't have Alex's job. It sounds like Twitter gets a lot of heat from government officials who aren't used to having people say no to them.
Some other discussions about this matter that I found interesting:
* Zeynep Tufekci, Why Twitter’s new policy is helpful for free-speech advocates
* Wired's coverage. Check out Cindy Cohn's quotes.
* WSJ's coverage of Alex Macgillivray's comments
* Blogger.com's New Takedown Policy Thwarts Censorship
Posted by Venkat at 01:14 PM Permalink | Content Regulation | Printable Version
February 01, 2012
Vendor Fails to Form Either an Online or Paper Contract With Customers--Kwan v. Clearwire
[Post by Venkat Balasubramani]
Kwan v. Clearwire Corp., C09-1392JLR (W.D.Wash.; Jan. 3, 2012)
Professor Goldman blogged recently about a case involving Facebook where the court enforced Facebook’s terms of use and based on a venue clause in Facebook’s terms transferred a dispute from New York to California. The court delved into (and seemed to get bogged down in) the distinctions between clickwrap and browsewrap agreements while eventually concluding that the plaintiff was apprised of the terms (or should have been) so there was no reason not to enforce the contract. Kwan v. Clearwire doesn’t involve strictly online terms, but Clearwire was not so lucky. It botched its terms of use (judging from the court’s order it also botched its customer service efforts). End result: it can’t summarily move the dispute to arbitration and has to undergo discovery around whether its customers agreed to the terms. The court was fairly skeptical of Clearwire’s position, so its chances of success on the arbitration front don’t seem great.
Background
Kwan brought a lawsuit aginst Clearwire and collection agents for Clearwire alleging that she was harassed by Clearwire and its debt collectors in an effort to reach a Clearwire customer (which wasn’t her). Among other claims, she asserted claims under the TCPA, the Fair Debt Collections Practices Act, and Washington’s Consumer Protection Statute. Her complaint was amended to add Brown and Reasonover, both of whom tried Clearwire services for a short time (or judging by the complaint, attempted to try Clearwire out for a trial period but with little success). The Clearwire terms contained a class action waiver and an arbitration clause, and Clearwire sought to have the dispute arbitrated pursuant to the Clearwire terms.
Brown signed up for a 14 day trial of Clearwire. She received a confirmation email from Clearwire one week prior to receiving her modem. She tried to connect her modem but was unsuccessful, and she alleged that she was not required to click any sort of acknowledgement before trying to connect her modem. She called Clearwire to cancel her service, but was persuaded by Clearwire to renew her trial period. Clearwire had a service technician check on Brown’s modem. The technician arrived while Brown was at work and Brown’s roommate left the technician alone to try to get the modem working. After the technician left, she tried to get the modem working, and it still would not work properly. According to Brown, she discovered that “use of her microwave interfered with her modem signal.” She tried to cancel her service, and after going back and forth with Clewrwire, Clearwire finally agreed that she could cancel her service. Clearwire sent her shipping labels to return the modem, but according to her, by the time she received the shipping labels from Clearwire, the labels had “expired.” This prompted another round of back-and-forth with Clearwire's customer service. Ultimately, she was able to return the modem to Clewarwire.
Reasonover’s experience with Clearwire wasn’t much better. She signed up for a seven day trial period and, because she was not at home when Clearwire shipped the package, Federal Express held it for her. She was unable to pick up the modem within her trial period, so she was worried about being able to cancel. When she plugged in the mdoem, she was only able to obtain “one green bar,” and this too from an “inconvenient location in her house.” Before connecting to the internet, she was presented with an “I accept” screen for Clearwire’s terms, but she bailed. Apparently, Clearwire told her that she could not cancel her serivce. She had some less-than-friendly exchanges with Clearwire, and she reported Clearwire’s actions to her credit card. Ultimately she alleges she paid for the modem (Clearwire disputes this).
Discussion
The court notes that the Federal Arbitration Act provides for arbitration of disputes that are subject to arbitration clauses. While the FAA sets forth a policy in favor of arbitration, it first requires a determination of whether the parties entered into an agreement to arbitrate their dispute. And that’s the hitch for Clearwire.
The court canvasses the law on browsewrap and clickwrap agreements (citing to Specht, Register v. Verio, Hines v. Overstock, and Southwest Airlines v. Boardfirst, among other cases). While Washington courts have not upheld the enforceability of clickwrap or browsewrap agreements, the court notes that shrinkwrap agreements are enforceable under Washington law. The prevailing case in Washington relied on Hill v. Gateway and ProCD v. Zeidenberg, and in both of these cases, “the terms and conditions at issue were included with the product purchased by the consumer.” This is consistent with the court’s inquiry in Specht as to whether the customer had notice of the contractual terms.
The court holds that, on the record before it, Clearwire is not entitled to enforce its arbitration clause. Clearwire pointed to the email confirmation which it sent to customers, but the court notes that the confirmation email did not contain a direct link to Clearwire’s terms—the link pointed to Clearwire’s home page, and Brown would have to “negotiate her way through two more hyperlinks” in order to arrive at Clearwire terms. Clearwire also argued that Brown was aware of the terms and used the product in question. With respect to this argument, the court says:
The breadcrumbs left by Clearwire to lead Ms. Brown to its TOS did not constitute sufficient or reasonably conspicuous notice of the TOS.
In any event, the court notes that Brown returned the modem.
Clearwire fared no better against Reasonover’s claims. It could not rely on the terms on its website because Reasonover testified that she “abandoned the page.” It also could not rely on the confirmation email which it sent because the email did not contain a readily accessible link to the terms—as with the facts with respect to Brown, Reasonover would have had to click through a couple of different links to arrive at Clearwire’s terms. Finally, Clearwire relied on the material that it had sent with the modem. These materials unfortunately suffered from the same flaws:
At the bottom of one of the pages included in the modem packaging was a reference to the TOS and to where the TOS could be located on [Clearwire’s] website. The statement actually contain[ed] two different hyperlinks. Neither link . . . immediately display[ed] the TOS.
D’oh.
As a final bonus, the court also denied the request to arbitrate filed by the collection agency, finding that there was a dispute as to whether it was an agent (with a close relationship to Clearwire) that could enforce the terms, or an arms-length independent contractor, who would not. (citing Swift v. Zynga)
__
Apart from the numerous alleged customer service debacles detailed in the complaint, Clearwire dropped the ball in several ways.
First, it did not have a ‘leakproof’ clickwrap agreement that users had to agree to before they activated the modem or signed on. Clearwire could have forced its users to scroll through and click on an “I agree” button as a prerequisite to activating the modem. (This may not have helped with respect to Brown’s claims since a technician activated the modem, but I assume this was an aberration. Most users probabaly plugged in the modem and signed on without the help of a technician—Clearwire could have forced them to click through and agree to terms.)
Second, to the extent it tried to rely on paper terms which it sent to customers along with the modems, it could have at least included the terms themselves as part of the package. I get the feeling the judge in this case would have worked hard to find a way around enforcing the terms in this scenario, but it would have been harder. (Again, the fact that the customers returned the modems would have affected the analysis. They could have argued that their acceptance of the terms was premised on them keeping the modems and since they didn’t they should not be bound by the terms.)
Finally, there’s the email debacle. I’m not sure the email would have helped since it came after the fact and would be categorized in the same manner as paper terms (i.e., if the customer returns the item, they can argue they should not be bound by the terms). But the email did not even include the terms!
This decision is largely consistent with previous online contracting cases. If you can't easily show the court that the terms were readily accessible, you're going to have a long road to travel down. It also demonstrates that if you can make a compelling case to the court that there's something inequitable afoot (whether in the form of seriously egregious, one-sided terms, or botched customer service, as was alleged in this case) courts will work to find a way around enforcing terms that they may otherwise enforce.
Posted by Venkat at 10:07 AM Permalink | Licensing/Contracts | Printable Version
January 31, 2012
Court Denies Kravitz’s Motion to Dismiss PhoneDog’s Amended Claims -- PhoneDog v. Kravitz
[Post by Venkat Balasubramani]
PhoneDog v. Kravitz, 2012 U.S. Dist. LEXIS 10561 (N.D. Cal.; Jan. 30, 2012)
PhoneDog and Kravitz are fighting over ownership of the Twitter account Kravitz used while he was working for PhoneDog. In an earlier order, the court allowed several of PhoneDog’s claims to continue, although it dismissed PhoneDog’s claims for economic interference due to Kravitz’s allegedly improper taking of the Twitter account.
The court's initial order allowed PhoneDog's claims for conversion and misappropriation of trade secrets to proceed, but dismissed PhoneDog's claims for negligent and intentional interference with economic relationships. I thought PhoneDog’s claims were weak at best, and the court could have whittled down the litigation and guided the parties to their ultimate destination—settlement—by culling some of the claims, but no such luck.
With respect to intentional interference with prospective economic advantage, the court accepts PhoneDog’s theory that:
[d]ue to Kravitz’s alleged conduct, there is decreased traffic to [the] website through the [Twitter] Account, which in turn decreases the number of website pageviews and discourage advertisers from paying for ad inventory on PhoneDog’s website.
This looks like a broad theory of economic interference that would sweep up a lot of otherwise innocent conduct, but the court says that at the pleading stage, this is sufficient. The judge’s decision on economic interference seems to view traffic as an asset that can be misappropriated (even if there is no trademark claim, the economic interference claim is like a claim for diversion of traffic). The court also says that PhoneDog’s negligent interference theories also have merit at the pleading stage because “Kravitz owed a duty of care to PhoneDog as an agent of PhoneDog.”
The net result is that all of PhoneDog’s claims move forward, and Kravitz (and PhoneDog) will have to slog through some additional discovery in order to resolve PhoneDog’s claims at the summary judgment stage.
I can't think of any new lessons to draw from this ruling, except that some sympathetic judges will let claims move forward. It would have been cheaper and quicker for everyone involved to have entered into a written agreement addressing the issue, or at least to have addressed this question up front (even if informally).
Previous posts:
An Update on PhoneDog v. Kravitz, the Employee Twitter Account Case
Courts Says Employer's Lawsuit Against Ex-Employee Over Retention and Use of Twitter Account can Proceed
Related posts:
Another Set of Parties Duel Over Social Media Contacts -- Eagle v. Sawabeh
Employee's Claims Against Employer for Unauthorized Use of Social Media Accounts Move Forward--Maremont v. SF Design Group
Ex-Employee Converted Social Media/Website Passwords by Keeping Them From Her Employer--Ardis Health v. Nankivell
Court Declines to Dismiss or Transfer Lawsuit Over @OMGFacts Twitter Account -- Deck v. Spartz, Inc.
Posted by Venkat at 08:25 AM Permalink | Marketing , Publicity/Privacy Rights , Trespass to Chattels | Printable Version
January 30, 2012
Judge Can't Decide if Facebook's User Agreement is a Browsewrap, But He Enforces It Anyways--Fteja v. Facebook
By Eric Goldman
Fteja v. Facebook, Inc.,2012 WL 183896 (S.D.N.Y. Jan. 24, 2012). Fteja's initial "complaint" (filed as an order to show cause).
If I could waive a magic wand, I'd retire the phrases "clickwrap" and "browsewrap." Those terms trace their lineage to a radically different technology--plastic shrinkwrap on physical products--and, as a result, they never developed clean or precise definitions in the online world. This opinion is much more prolix than necessary because the court couldn't figure out what either term meant and therefore couldn't decide how to apply the precedent. Fortunately, the court gets to the right place eventually.
Fteja claims that Facebook terminated his Facebook account improperly because it discriminated against him as a Muslim. Facebook will win this lawsuit eventually; see, e.g., my paper about online user account terminations and 47 USC 230(c)(2) and Young v. Facebook.
For now, after removing the case from New York state court to federal court, Facebook sought to transfer the case to its home court in California. Facebook invoked the venue selection clause in its user agreement (its "Terms of Use"). Facebook uses a mandatory non-leaky clickthrough agreement where the terms are hyperlinked from the clickthrough page. (The language says: “By clicking Sign Up, you are indicating that you have read and agree to the Terms of Service," where the words Terms of Service are a hyperlink). This user interaction should have made it an easy case. This formation process (mandatory clickthrough with hyperlinked terms) has been upheld in dozens of cases. Indeed, buried in his overlong discussion, the judge says "Fteja was informed of the consequences of his assenting click and he was shown, immediately below, where to click to understand those consequences. That was enough."
Yet, the judge launches into an extended discourse about the philosophy of online contracts. Overly troubled by the hyperlinked presentation of the actual terms, the court reaches this awkward classification:
Facebook's Terms of Use are somewhat like a browsewrap agreement in that the terms are only visible via a hyperlink, but also somewhat like a clickwrap agreement in that the user must do something else—click “Sign Up”—to assent to the hyperlinked terms. Yet, unlike some clickwrap agreements, the user can click to assent whether or not the user has been presented with the terms.
The judge then snarks about social media exceptionalism:
it is tempting to infer from the power with which the social network has revolutionized how we interact that Facebook has done the same to the law of contract that has been so critical to managing that interaction in a free society. But not even Facebook is so powerful.
(Don't underestimate Facebook, your honor. It is changing our brains).
Despite all the navel-gazing, the judge realizes:
There is no reason why that outcome should be different because Facebook's Terms of Use appear on another screen rather than another sheet of paper....The mechanics of the internet surely remain unfamiliar, even obtuse to many people. But it is not too much to expect that an internet user whose social networking was so prolific that losing Facebook access allegedly caused him mental anguish would understand that the hyperlinked phrase “Terms of Use” is really a sign that says “Click Here for Terms of Use.” So understood, at least for those to whom the internet is in an indispensable part of daily life, clicking the hyperlinked phrase is the twenty-first century equivalent of turning over the cruise ticket. In both cases, the consumer is prompted to examine terms of sale that are located somewhere else. Whether or not the consumer bothers to look is irrelevant.
Having convinced himself that Facebook's venue selection clause is enforceable, the judge then concludes that transfer is proper. All of the relevant evidence is at Facebook's headquarters, Fteja's witnesses don't appear to be near NYC, the alleged contract breach means the "locus of operative facts" took place in California, and Fteja's medical condition ("Ménière's disease") won't keep him off airplanes.
Some related posts:
* Court Disregards Check-the-Box Agreement and Doesn't Enforce Venue Clause -- Dunstan v. comScore
* Forum Selection Clause in "Submerged" Terms of Service Presumptively Unenforceable -- Hoffman v. Supplements Togo
* Anti-Scraping Lawsuit Largely Gutted--Cvent v. Eventbrite
* Interesting Database Scraping Case Survives Summary Judgment--Snap-On Business Solutions v. O'Neil
* Clickthrough Agreement With Acknowledgement Checkbox Enforced--Scherillo v. Dun & Bradstreet
* Contract Formed Even If Customer Never Received It--Schwartz v. Comcast
* Ticketmaster Wins Big Injunction in Hannah Montana Case, But Did the Public Interest Get Screwed?--Ticketmaster v. RMG
Posted by Eric at 09:25 AM Permalink | Licensing/Contracts | TrackBack (0) | Printable Version
January 29, 2012
Newspaper Isn't Liable for User Website Comment Per 47 USC 230--Delle v. Worcester T&G
By Eric Goldman
Delle v. Worcester Telegram & Gazette Corp., 2011 WL 7090709 (Mass. Super. Ct. Sept. 14, 2011)
I previously mentioned this ruling in a recent Quick Link, but I can write up a full post now that I've seen the actual opinion.
Robert Delle is a lawyer (of course). A reporter surreptitiously called Delle and asked for his views on Obama's citizenship. The reporter then published a story in the T&G calling Delle a "birther" and opining about the relationship between the birther movement and racism. Seven months later, the T&G published a story covering a lawsuit that Delle was litigating. A user commented to that article that "there was no bigger dope than Delle." Delle claims the comment came from a T&G employee/agent, but his only support for this belief is that he'd heard a rumor that sometimes newspapers comment on their own stories.
Bringing a defamation lawsuit over being called a "dope" doesn't seem very savvy to me, and the court easily dismisses the claim due to 47 USC 230. The court correctly concludes "the T & G cannot be held liable for the statements of a third party on the comments section of its website." It doesn't matter if the T&G prescreened the comments, allowed other users to flag the comment as abusive (which Delle did) and decided not to act after users had flagged the comment as abusive. Delle's unsupported allegation that perhaps the T&G wrote the comment wasn't enough to survive the dismissal motion.
The court also tosses the defamation claim against the T&G for its earlier story. Interestingly, the court doesn't directly address the defamatory implications of calling someone a "birther," even though in my world a that's much worse insult than calling someone a dope. Instead, the court says that any implication that birthers are racist, and therefore Delle may be a racist, was clearly based on the reporter's personal beliefs, plus it constituted an interpretation of facts rather than a fact itself.
Prior blog coverage of newspapers' 47 USC 230 wins for user-posted comments.
Posted by Eric at 05:14 PM Permalink | Content Regulation , Derivative Liability | TrackBack (0) | Printable Version
January 27, 2012
Top Internet Law Developments of 2011
By Eric Goldman
As usual, I'm running late with my year-end recap. This post begins with my countdown of the top 5 Internet Law developments of 2011, then it lists other interesting developments and cases. It concludes with some of the most linked posts and then my editor's choice of some posts in 2011 that might have been a little overlooked. As usual, thanks for reading the blog in 2011!
Countdown: My Top 5 List of Developments in 2011
#5: Righthaven Implodes. Since the beginning, I've been skeptical of Righthaven's business model. Seriously, who else thinks it's a good idea to sue small-time mom-and-pop bloggers and non-profits on a one-by-one basis? However, even I had no idea that Righthaven would accelerate their own demise by routinely making basic litigation errors. A sketchy business model + a litigation shop that isn't very good at litigation = one dead start-up. It's always fun (in a bloodsporty way) to watch hubristic bullies get their just desserts, but watching the Randazza firm school the Righthaven litigators in Litigation 101 has been amazing. THAT'S how you litigate.
Righthaven lost often in 2011 (see my August reset). They lost fair use rulings (e.g., CIO, Choudry). They lost on standing grounds (e.g., Democratic Underground, Wolf). They were hit with sanctions. They were hit with hundreds of thousands of dollars of attorney fee shifts (e.g., Leon, Wolf, DiBiase). They even lost their domain name in an auction--a delicious irony given that Righthaven's complaints improperly demanded its defendants' domain names on the theory that it might need the domain name to satisfy a judgment against the defendant, when in fact it was Righthaven's domain name that was used to help satisfy a judgment against it!
Righthaven ended 2011 on death's door, but the trend of newspapers trolling for copyright litigation isn't going away. I'll be watching NewsRight closely in 2012.
#4: Medical Justice Gives Up. Speaking of hubristic bullies... You recall Medical Justice, the organization that helped doctors and other medical service providers take copyright assignments from patients in their as-yet-unwritten reviews so that the doctors could expeditiously remove unwanted reviews by sending 512(c)(3) takedown notices to review sites. It's an interesting legal hack, but it has some bad side-effects, including the fact that patients hated it, the copyright assignments almost certainly were void (for public policy reasons and others), doctors were hurting themselves by discouraging patient reviews (patients prefer to choose doctors when there's a critical mass of patient reviews), and (as our research uncovered) most consumer review sites ignored the doctors' 512(c)(3) takedown notices. Obviously, with those defects, Medical Justice wasn't exactly adding a ton of value to its clients. Medical Justice finally gave up, but too late to prevent a lawsuit against one of its clients and a complaint to the FTC. Chances are Medical Justice will be living with a long-term hangover from this entrepreneurial foray.
Seeing Medical Justice stop peddling anti-patient review tools was slightly satisfying, but that result was always a fait accompli. The reason Medical Justice's change of heart matters is that shady or clueless vendors keep developing new ways to suppress unwanted consumer reviews, and I hope Medical Justice's experiences will discourage other vendors from trying the copyright hack. I talk about these dynamics more in my paper on regulating reputational information.
#3: gTLD Expansion. It remains unclear exactly what ICANN's rollout of unlimited top level domains will do. Due to the expansion of new namespaces, brand owners face a long list of complicated--and potentially expensive--choices to make. Unfortunately, these choices don't really benefit society; instead, the gTLDs tax businesses while the benefits accrue to a small number of service providers (and, of course, ICANN itself). I think many businesses will reserve their name in multiple new gTLDs to prevent squatting--with the net effect that businesses will spend more money just to preserve the status quo. Meanwhile, most consumers are likely to be bewildered by the unlimited number of TLDs, which is just going to increase their tendency to rely on search engines and link directories rather than domain names to navigate to their desired destinations.
#2: Internet Consumer Privacy Lawsuits Tank. 2011 initially looked like the year of the Privacy Plaintiff. A torrent of privacy lawsuits had been filed, plaintiffs had wrested a few important and lucrative settlements, and Internet companies continue to make questionable privacy decisions that create a steady supply of potential new lawsuits.
But the path to riches didn't materialize. Instead, 2011 emerged as the year when privacy class action lawsuits mostly failed miserably. Courts principally rejected the lawsuits on standing grounds for lack of cognizable harm, but plaintiffs failed on other related grounds, such as a lack of damages negating the prima facie case. There were some exceptions where plaintiffs made a little progress (see, e.g., Claridge v. RockYou, Anderson v. Hannaford, Fraley v. Facebook). I'm sure the privacy plaintiffs' bar will be studying those rare successes to formulate a better battle plan--and to better prepare their cases and find strong named plaintiffs, a recurring omission that hasn't gotten a lot better over the year. However, for now, it's clear that the privacy plaintiffs' bar can't just show up in court and hold out their hands for a payday.
#1: Regulators Broke the Internet. We've always known that regulators could combat bad online activity by working "up the chain," i.e., by making upstream service providers liable for the bad acts or obligated to cut off the activity. However, for the most part, we've shared a tacit understanding that systematically going up the chain was a "nuclear" option--it would fix the specific problem but only at significant collateral cost that, on balance, makes the option unattractive.
I think we'll look back at 2011 as the year that tacit understanding broke down. In 2011, regulators around the world showed a seemingly insatiable demand for working up the chain. Although we in the USA like to think we're different from other repressive regimes, the evidence suggests otherwise. Some examples of "up the chain" activity in 2011:
* Arab Spring. Repressive regimes got local Internet access providers to turn off Internet access in the country.
* Operation in Our Sites. The Immigrations and Customs Enforcement (ICE) agency keeps seizing domain names of suspected foreign rogue websites on an ex parte basis, making errors and breaking the law in the process. Mike Masnick blew open the story on Dajaz1.com, which ICE seized on an ex parte basis, conducted secret proceedings for a year, and then gave back the domain name with no explanation.
* Graduated Response. Copyright owners got Internet access providers to voluntarily (?) agree to restrict, and eventually terminate, their users' accounts.
* Secondary liability against intermediaries. Rightowners keep expanding their intermediary targets, including lawsuits against ad networks and SEOs/web designers. To be fair, some of these lawsuits aren't going very far, and expansive secondary liability theories aren't new in 2011.
* Ex Parte Seizures. Rightsowners are asking for the moon against third party service providers in ex parte proceedings, and courts are giving it to them because the third parties aren't there to represent their own interests. We recap this epidemic in this post.
* SOPA and PIPA. These proposed bills were the finest examples of rightsowners pursuing the nuclear option regardless of the collateral damage. The bills' basic architecture was to attack a wide range of intermediaries for third party actions--domain name registrars, search engines, payment service providers, ad networks. By seeking to deputize the intermediaries, the bills sought to instantiate "up the chain" duties across virtually the entire Internet. Putting aside their other policy deficiencies, I think we should resist all laws predicated on that fundamental assumption of intermediary deputization. See my post on the OPEN bill for why I reject the compromise "follow the money" solution. Sadly, I stand virtually alone in my stance.
Other Interesting Developments.
Some other interesting developments this year:
* Patent Reform. The America Invents Act is the most dramatic patent reform bill in years, and it has many provisions that may affect Internet companies, including the joinder standards, the prior user defense, and the novelty/priority standards. The law doesn't fix the overall problems with bad Internet patents or unmeritorious assertions of those patents, but it nevertheless could make some dramatic changes in what Internet companies do.
* Google and Antitrust. Google has become the incumbent in search, and all of its rivals--especially the companies Google is disintermediating--are desperately seeking to knock it off its perch. I believe Google and antitrust was the #1 topic prompting reporter phone calls to me in 2011. We are waiting to see what comes from the FTC investigation into Google's practices, and the list of Google-haters keeps growing daily. At the same time, the anti-Google forces made surprisingly little actual progress in 2011, including suffering a conspicuous (and not even close) loss in the myTriggers case. See my paper on why I am so over the Google antitrust battles.
* DC's Obsession with Busting Silicon Valley Companies. Sometimes, it feels like DC insiders wake up in the morning and wonder, "What Silicon Valley company do I feel like busting today?" Drive down the 101 from San Francisco to San Jose and play the "Spot the FTC/DOJ Bust" bingo game. Some of DC's targets in 2011: Google Buzz, Twitter (finalized in 2011), Facebook, Google pharma ads, Apple and others for no-poaching restrictions, and others. Good times!
* Judges Order Litigants to Hand Over Passwords to Social Networking Sites. This year, several judges ordered litigants to turn over their Facebook passwords to their litigation opponents for discovery purposes. See, e.g., Zimmerman v. Weis (which I added to my Internet Law reader this year). In 10 years, we'll look back at this mini-trend and shake our heads at the judicial cluelessness. Social networking sites contain a mix of public and private information, and letting a litigation opponent root around the account is just as objectionable as making a litigant hand over the keys to his/her house so the opponent can rummage around.
Other Key Court Rulings in 2011
Some other interesting court decisions this year:
* Author's Guild v. Google. The court rejected the Google Book Search settlement agreement for good reasons, but it sent the parties back to square 1. Why the parties haven't been able to broker a legislative compromise is beyond me.
* Barclays v. theflyonthewall. The Second Circuit took a big bite out of the hot news doctrine. Unfortunately, the Second Circuit didn't kill the hot news doctrine outright, but the opinion leaves open very little room for hot news plaintiffs.
* Network Automation v. Advanced System Concepts. The most important keyword advertising ruling to come out in several years. While the ruling itself was a mixed bag for the litigants, the opinion tore down a number of crusty plaintiff-favorable legal doctrines that had cluttered up trademark jurisprudence for years--including virtually mooting the initial interest confusion doctrine and killing the "Internet trinity" bypass to the standard multi-factor likelihood of consumer confusion test. I've noticed that the opinion has already noticeably tilted courts towards more defense-favorable rulings.
* Betty Boop case (Fleischer Studio v. AVELA). For a few months, it looked like the Ninth Circuit had eliminated trademark merchandising rights in characters that were out-of-copyright. Then it changed its mind; but still it liberated Betty Boop to the world.
* PhoneDog v Kravitz. An interesting battle over ownership of a Twitter account.
* Levitt v Yelp/Ascentive v. PissedConsumer. 47 USC 230 still works really, really well as an immunity. In Levitt, Yelp got a 230 dismissal that Yelp had tried to get advertisers to pay to manage consumer reviews. In Ascentive, the court rebuffed a plaintiff's effort to use a trademark infringement claim against a consumer review website to work around 230.
* Habush v Cannon. Buying a person's name as the trigger for keyword advertising doesn't violate their publicity rights.
* UMG v. Shelter Capital. While everyone waits for the Second Circuit's decision in Viacom v. YouTube, the Ninth Circuit stole some of that thunder with a powerful endorsement of the 17 USC 512 safe harbor. Too bad Veoh didn't live long enough to enjoy the win.
* In re Rolando S. Rolando was convicted of felony identity theft for taking a classmate's Facebook page for a joyride. My vote for the most interesting Internet Law case of 2011, and an instant cyberlaw classic. I've already added it to my Internet Law reader, and the students seemed to enjoy discussing the case.
Some of the Most Linked Blog Posts in 2011 (Per Topsy)
* New Advertising & Marketing Law Casebook Available for Review
* Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc.
* "App Store" Isn't Generic, But Apple Can't Enforce Its Purported Trademark in the Term--Apple v. Amazon (Apple legal issues are always good link bait)
* Twitpic Modifies Terms and Claims Exclusive Rights to Distribute Photos Uploaded to Twitpic
* Republishing Entire Newspaper Story is Fair Use--Righthaven v. CIO
* Court Rules That Instant Message Conversation Modified the Terms of a Written Contract -- CX Digital v. Smoking Everywhere (the most popular post of the year by far--a modern Contract Law classic)
* Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices--Amaretto Ranch Breedables v. Ozimals
Favorite "Overlooked" Posts
A few posts that maybe got overlooked a little:
* Cyberbullying and Restorative Justice [a Long-Delayed Post on DC v. RR]
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
* Marijuana Activist Can't Change His Name to "NJWeedman.com" -- In re Forchion
* Free-to-Consumers Ad-Supported Website Isn't Illegally Priced--Cammarata v. Bright Imperial
* What Would a Government-Operated Search Engine Look Like in the US?
Lists of Yore
Previous top 10 lists from 2010, 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.
Posted by Eric at 09:45 AM Permalink | Copyright , Derivative Liability , Domain Names , Evidence/Discovery , Internet History , Patents , Privacy/Security , Search Engines , Trademark | TrackBack (0) | Printable Version