Rumors of Apple's supposed ban started Wednesday when iLounge reported that several companies had been informed that, starting in May, Apple would no longer carry screen protectors in their retail stores. According to iLounge's sources, stand-alone solutions as well as those bundled with cases will eventually be removed.

There were so many pundit theories about what could have sparked the decision that iLounge wrote a follow-up article to address them. The conspiracy theorists came up with all kinds of reasons: Apple is making room for iPad accessories, Apple wants you to ruin your phone so you have to buy another, the iPhone is too classy for a flimsy piece of plastic, etc. Our personal favorite theory was that Apple might be planning a new product or technology that doesn't work properly with the film applied. iLounge even got an e-mail from an Apple Store employee, suggesting that the ban might be due to the difficulty in applying the protective layer. Apparently, this employee's store barred employees from doing this for customers some time ago.

In our experiences here at Ars, the iPhone screen is extremely hard to scratch, though some of us have admittedly had much better luck than others. It seems much more likely that an iPhone screen will crack due to a fall than it will develop noticeable scratch. In that case, no amount of thin, flimsy, plastic is going to save your device from that.

What Apple is up to is really anyone's guess. We would like to think that Apple is coming out with its own line of overpriced iPhone screen protectors, but it's more likely they are just more trouble than they're worth for Apple. Screen protectors may still be available at Apple Stores, but probably not for long. Don't worryyou can get the exact same thing for your iPhone from places like Best Buy, Fry's, and almost any other outlet that sells iPhone accessories.

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• notebook paperBe optimistic: bring lots.


• a clipboard or other hard surface if you like to work on the bed instead of a desk like I do.


• different colored pensI found it useful to write all the changes I wasn't sure I wanted to make in a different color pen. That way, if I changed my mind, I could easily find those particular changes and remove them.


• Post-It notesGood to bookmark pages when you flip back and forth between sections.


• different colored highlightersI learned a terrific exercise by attending a conference by Darcy Pattison. You shrink your manuscript to a font small enough to fit your entire manuscript onto 32 pages (play with the margins and single space). You then use different colored highlighters to highlight whatever you want to examine for flow in your novel. You then lay out your novel on the floor and can see the entire thing in one look.


• laptop computer (Note: ask ahead of time whether the hotel AND YOUR SPECIFIC ROOM have wireless. My room must have been just on the cusp of wireless coverage. I got a good 30 min. of online time and that's it. (It ended up being a good thing, as I didn't have access to time-sucking Facebook).


• keyboard, mouse, etc.It was worth it to me to have a mouse instead of using the touchpad of the laptop. I was fine with the mini-keyboard of the laptop, but if you're not, keep that in mind. Nothing's worse than having time to type and being uncomfortable.


• printerYes, you heard me correctly. I purchased a small HP printer from Walmart for $35 (color and black ink included). It was SO WORTH having with me. Sometimes I redo a page so extensively, I need to edit it a couple of times. It was helpful to be able to print it and write on a clean copy.


• printer paper


• flash driveIf you don't bring a printer, you still may want to print. By bringing a flash drive, you can print in the hotel's business center (or, you can always email yourself your manuscript and open it that way).


• scissorsin case you want to cut your story apart to lay out


• stapler or hole punchI keep my novel in a binder. After I printed some new pages, I wished I was able to stick them in my binder.


• synopsisIf you change your novel, you may want to update this as well


• other drafts of the novelI know I ended up referring to old copies of my novel for parts I had deleted from the most current version.
  

Non-writing Related

• snacksLots. Now's not the time to worry about calories. Okay, I'm rationalizing the fact that I brought a jumbo bag of M & Ms, Red Vines, and Sun Chips, but let's just refer to these foods as fuel for creativity.


• meal-ish FoodsI regret that I didn't pack anything that could count as a meal. Because my hotel had a HUGE children's chess tournament going on, the parking lot was packed. In an effort to not lose my great parking space, I refused to leave the hotel. That meant I had to eat at the restaurants at the hotel. Saturday morning, I spent $4 on a cup of Dannon yogurt and a microscopic box of Cheerios. I should have brought a couple granola bars, an apple, a box of raisins, etc.


• coolerAgain, for bringing your own food. My room didn't have a refrigerator. If it had, I could have packed my own yogurt for under a dollar (can you tell I'm still bummed my yogurt cost $2.50?)


• water


• hand soapAm I the only one that can't stand how hotels still provide a bar soap instead of having a pump by the sink? I bring my own instead of using the slimy bar. A tip for any hotel stay.


• ipod and headphones, workout clothes, etc.It was nice to take a break on the treadmill for a bit to clear my head. It also helped to work off about 4 M & Ms.


• swimsuitA hotel with a pool was a must for me. I forced myself to make it to a certain page before I could take a swim break though.

Doctor's Associates, Inc. v. QIP Holders LLC, 2010 WL 669870 (D. Conn. Feb. 19, 2010). My prior post on this case.

As a long-time vegetarian (over a quarter-century), I find America's obsession with "more meat" competitions simultaneously amusing and repulsive. On my personal blog, I have routinely chronicled the "burger wars" between heartland restaurants trying to outdo each other by offering bigger and bigger burgers. As far as I know, the current high-water mark is the Beer Barrel Main Event Charity Burger, a 123 pound burger that includes 80 pounds of meat. See the photo. If you're one of those people who thinks a burger can never have too much meat, good luck working on that bad boy.

Today's post involves subway sandwiches instead of burgers, but it turns out that subway sandwich restaurants' competition over claims of having more meat is no less stiff. Quiznos kicked off the war in 2006 by launching a "double meat" line of sandwiches. Quiznos ran two TV ads comparing the meat in its sandwiches to Subway's and set up a website soliciting individuals to make and submit their own comparative digital video ads. Subway was not amused and ultimately filed a seventh amended complaint (!) over Quiznos' ad campaigns. (What a patient judge).

The parties hotly contested every aspect of the litigation, and Rebecca does a thorough recap of the lengthy ruling. I'm going to focus on the court's discussion of the crowdsourced video ads published on Quiznos' ad campaign website, which Quiznos defended on 47 USC 230 grounds.

Citing the MCW v. Badbusinessbureau case from 2004, the court says "the critical inquiry with respect to CDA immunity in this case is whether the Defendants merely published information provided by third parties or instead were actively responsible for the creation and development of disparaging representations about Subway contained in the contestant videos."

The MCW decision was questionable even at its time, but it's bizarre to see the court reach into history for this obscure, archaic, unpublished and geographically distant (it was a TX precedent being cited in a CT court) district court precedent. To do this, the court bypasses dozens of more recentand more thoughtfulcases, including the multiple Ripoff Report cases that have expressly and implicitly rejected the MCW case. A more natural citation would have been the Roommates.com case, which also referenced legal distinctions between active/passive websites similar to the legal standard quoted above. However, if the court had followed Roommates.com, it almost certainly would have ruled for the defense, as Quiznos didn't require illegality or even channel users towards illegality. (Rebecca makes the same point). Therefore, I'm baffled how the court got to this legal standard citing this legal precedent.

Using this odd legal standard, the court says it's up to the jury to decide if Quiznos just exercised traditional editorial control or impermissibly "actively participated in creating or developing the third-party content submitted to the Contest website."

Unquestionably, sending this case to a jury is a 230 loss, but how bad is unclear. We'll never find out what the jury would do with the case because the parties promptly settled the case after this ruling. However, a plaintiff's ability to hold a case open through trial, rather than having it disposed of earlier in the proceedings, would itself represent a significant win for plaintiffs--it would mean plaintiffs can get discovery to fish for embarrassing facts, force the defense to incur lots of litigation costs, and get a chance to tell their sob story before a jury. (FWIW, I am not aware of any 230 case that has ever reached a juryam I forgetting something?) Nevertheless, I think very few courts will follow this precedent given the plethora of more persuasive precedents and the fact that Quiznos' crowdsourced ads were just one part of Quiznos' larger allegedly false ad campaign. Therefore, I don't expect this 230 loss to spread to many other cases.

I also don't think this case shines much light on the legitimacy of crowdsourcing ads. There's no reason to believe that crowdsourced ads are per se problematic. At the same time, if the advertiser uses the ads offline, clearly the advertiser "adopts" the ad and takes full responsibility for its contents. If the advertiser only publishes the ad online, 230 might be available but the advertiser still might tread cautiously due to the FTC Endorsement and Testimonial Guidelines, which basically ignores 230 and holds advertisers liable for certain types of third party advertisements anyway. I think 230 may nullify this part of the FTC guidelines, but most advertisers would rather not tangle with the FTC to establish the deficiencies in the FTC's thinking. As a result, I expect most advertisers will vet most crowdsourced ads, even if they only publish them only, as if the advertiser is legally responsible for the ads and not protected by 230.

BTW, the Subway v. Quiznos lawsuit isn't the only litigation over subway restaurants' claims of double meat. In an apparently unrelated lawsuit, last month a class action suit was filed over Blimpie's "Super Stacked" sandwich for overclaiming that it had double meat.

I confess some schadenfreude when I see lawsuits against meat pushers for overhyping meat quantities. I would not shed a tear if the meat pushers lock up each other in litigation death struggles and sue each other to oblivion. Of course, consumers can facilitate that outcome by refusing to patronize vendors who "compete" with each other by encouraging us to overconsume the Earth's resources.

Today, Rescuecom issued a press release declaring victory in its litigation against Google. But it's an odd definition of "victory" given that Rescuecom has apparently voluntarily abandoned its 6 year litigation effort without any new concessions from Google. The dismissal notice.

This development reminds me a lot of the American Blinds v. Google denouement, where American Blinds also simply gave up and dropped its multi-year lawsuit without any concessions from Google. Note to future plaintiffs: if you're going to threaten Google's $20B/year cash cow, chances are pretty good that they have the resources to outlast you.

Why did Rescuecom give up? According to Rescuecom's press release, "Google has recently confirmed to Rescuecom that it has removed Rescuecom's trademark from its Keyword Suggestion Tool." That, plus the fact that Google blocks trademark references in ad copy, means that Rescuecom feels it has "obtained two of the three things we initially sought in our complaint against Google." And if two out of three is good enough for Meat Loaf, apparently it's good enough for Rescuecom. At minimum, having low standards makes it a lot easier to declare victory when you give up.

However, this explanation is pretty hollow. Although the press release treats Google's removal of Rescuecom from the keyword suggestion tool as a new development, it appears that Google made this change IN 2005. Wendy Davis reports:

[Rescuecom CEO] Milman says he only learned last week that Google had stopped suggesting Rescuecom as a keyword. "Who knows what would have happened if they had told us back in 2005 that they had taken our name out of their keyword tool?" he said.

Hmm...I think I know the answer to that question! Then again, if getting out of the keyword suggestion tool really was one of Rescuecom's Big Three objectives all along, maybe they might have asked Google about it in 2005...or 2006...or 2007...or, well, you get the point. Spin it however they want, it's hard for Rescuecom to look good while dropping a lawsuit based on a 5 year old fact.

Nevertheless, I'm interested in knowing more about this removal. Does Google have a way for trademark owners to "opt out" of having their trademarks in its keyword suggestion tool? I would expect that option to become very popular if it were well-known. If anyone has information about how trademark owners can make an election with Google, please share it.

Given the completely disingenuous nature of declaring victory based on getting out of the keyword suggestion tool, there may be a better--and more self-interested reason--for Rescuecom to give up. Rescuecom is defending a trademark lawsuit brought by Best Buy over Rescuecom's competitive AdWords purchases of the "geek squad" trademark. Rescuecom was caught in the duplicitous position of making plaintiff-side arguments against Google while making highly contradictory defense-side arguments against Best Buy. As a result, every positive step in its Google case had the potential to degrade its position in the Best Buy case. By abandoning the Google fight, Rescuecom avoids this difficult dilemma.

As an odd byproduct of this development, Google and Rescuecom are now aligned in advancing the arguments that competitive keyword advertising in AdWords is legitimate. Isn't there a passage in the Bible about the lion and the lamb lying down together?

The roster of pending AdWords cases (I most recently double-checked the status of these cases on February 20, 2010):

* Ezzo v. Google
* Rescuecom v. Google
* FPX v. Google
* John Beck Amazing Profits v. Google and the companion Google v. John Beck Amazing Profits
* Stratton Faxon v. Google (not initially a trademark case). Check the status.
* Soaring Helmet v. Bill Me
* Ascentive v. Google
* Jurin v. Google 1.0 (voluntarily dismissed), succeeded by Jurin v. Google 2.0
* Rosetta Stone v. Google
* Flowbee v. Google
* Parts Geek v. US Auto Parts
* Dazzlesmile v. Epic

In Hung Tan Phan v. Lang Van Pham, the President of a group of Vietnamese Navy and Merchant Marine veterans sent an email to fellow veterans. In the email, he wrote that another veteran, Hung Tan Phan, had been disciplined by the Vietnamese Navy for abusive behavior in the final days of the Vietnam War.

Lang Van Pham received the email and forwarded it to at least one fellow veteran. He included the following introductory paragraph: Dear Kmap: Everything will come out to the daylight, I invite you and our classmates to read the following comments of [the] President of the Federation of Associations of the Republic of Vietnam Navy and Merchant Marine.

Hung sued Lang. Hung alleged that Lang, as the forwarder of an allegedly defamatory message, was himself liable as the publisher of a libelous statement. Lang moved to dismiss, citing CDA section 230 immunity. The trial court dismissed the case and Hung appealed.

The appeals court noted the general rule that CDA section 230 provides immunity from liability for all content providers for publishing information received from third parties. Subsection (c)(1) states that [n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. The court then framed the question as whether by including an introduction to the allegedly defamatory email the forwarder had materially contributed to the illegality of the Internet message. In other words, whether Lang's cover note constituted active involvement in the creation of a defamatory Internet posting such as to to expose Lang to defamation liability as an original source.

The appeals court ruled for defendant Lang. The court held that, on these facts, Lang made no material contribution to the alleged defamatory message he forwarded.

The defendant here, like others, was able to successfully deploy the CDA to escape liability. Still, republishing defamatory (or potentially defamatory) matter is always a risky proposition. If you're intent on republishing potentially defamatory matter, speak with your attorney first to assess your risks and defenses [Hung Tan Phan v. Lang Van Pham, 2010 WL 658244 (Cal. App. 4th Dist., Feb. 25, 2010)].

Yahoo has replaced Google as the default search provider throughout the phone. It's crazy: the home screen widget, the browser, everything's been programmed to use Yahoo.

It is not unusual for carriers to work deals for specific software on its handsets. They take money wherever they can get it. But this deal is sure to confuse the customer, as Android phones are commonly called Google phones by many. Let's face it, Google makes Android, and one of its strengths is the tight integration with the company's online services. And search is certainly one of Google's big services, but not on the AT&T Backflip.

This is the equivalent of a Windows PC hitting the market that has Internet Explorer removed and Safari as the only browser. Some customers might be happy by that but most would be confused. Then to make matter worse, imagine that Internet Explorer couldn't be installed by the user to get around this major change. That seems to be the case with the AT&T Backflip, as early testers are reporting the inability to get Google search working in any of the Android programs.

There has been enough complaining about fragmentation in the Android space, so I won't rehash that topic. But there is something so fundamentally wrong when an Android phone has Google search removed. And replaced by Yahoo search? I guess this makes the Backflip the Yahoo Phone.

Related research on GigaOM Pro (sub req'd):

As Windows Mobile Stumbles, Which Smartphone OS Will Seize the Lead?

Yahoo has replaced Google as the default search provider throughout the phone. It's crazy: the home screen widget, the browser, everything's been programmed to use Yahoo.

It is not unusual for carriers to work deals for specific software on its handsets. They take money wherever they can get it. But this deal is sure to confuse the customer, as Android phones are commonly called Google phones by many. Let's face it, Google makes Android, and one of its strengths is the tight integration with the company's online services. And search is certainly one of Google's big services, but not on the AT&T Backflip.

This is the equivalent of a Windows PC hitting the market that has Internet Explorer removed and Safari as the only browser. Some customers might be happy by that but most would be confused. Then to make matter worse, imagine that Internet Explorer couldn't be installed by the user to get around this major change. That seems to be the case with the AT&T Backflip, as early testers are reporting the inability to get Google search working in any of the Android programs.

There has been enough complaining about fragmentation in the Android space, so I won't rehash that topic. But there is something so fundamentally wrong when an Android phone has Google search removed. And replaced by Yahoo search? I guess this makes the Backflip the Yahoo Phone.

Related research on GigaOM Pro (sub req'd):

As Windows Mobile Stumbles, Which Smartphone OS Will Seize the Lead?

140proof, which is based in San Francisco and backed by a $2-million investment raised last summer from Blue Run Ventures and Founders Fund, said that its algorithm aims ads at users based on their profiles and other public data. Other Twitter advertising services include Ad.ly, which has gotten some press attention for paying celebrities such as Kim Kardashian thousands of dollars to endorse products to their followers, as well as Magpie, Assetize and IZEA.

The question all of these services will inevitably confront including Twitter itself, once it launches its own platform is how users will react to a wave of advertising in what was once an ad-free social network (in the case of 140proof, of course, you can simply not use HootSuite's mobile apps and you won't see them). Many of these services are only just ramping up in what will undoubtedly become a much bigger campaign to bring ads to the Twittersphere. So what will you do when ads start appearing in your Twitter stream?

Related content from GigaOm Pro (sub req'd):

How Human Users Are Holding Twitter Back

Scherillo v. Dun & Bradstreet, Inc., 2010 WL 537805 (E.D.N.Y. Feb. 17, 2010)

I teach my Cyberspace Law students that the most effective online contract formation process is a "mandatory non-leaky clickthrough agreement":

* mandatory = the user cannot proceed to the destination without going through a screen soliciting their consent to the user agreement.
* non-leaky = there are no alternative ways the user can reach the destination. I realize this is redundant with "mandatory," but I remind students that a seemingly mandatory process can have leaks. For example, if customer support representatives will manually set up user accounts occasionally, the mandatory online process has become leaky because now a few users reached the destination without consenting to the agreement.
* clickthrough = the user manifests assent to the contract by clicking, and the user is told that the click signifies assent.

There are other ways to form online contracts (e.g., email exchanges), but if executed properly, the mandatory non-leaky clickthrough process should do very well against contract formation challenges. But even this description leaves open a number of user interaction judgments. Does likelihood of contract formation vary if:

* the agreement terms are presented on the clickthrough page itself or are only available for review by hyperlink?
* the agreement terms are presented in a scrollbox? If a scrollbox is used, must the user be forced to scroll through the scrollbox?
* the user is asked to check an additional box, such as a certification that the user has read the agreement?

In all of these cases, I believe the contract should be properly formed whether the answer to these questions is yes or no. However, I'm now a fan of adding a bonus mandatory checkbox as part of the formation process after reading today's opinion. A user mounts a sophisticated challenge to a mandatory non-leaky clickthrough process, and the bonus mandatory checkbox helps squelch the challenge. I think the court would have enforced it without the checkbox, but it sure put the user in an awkward/untenable position.

Scherillo bought a financial report about a company from Dun & Bradstreet's Small Business Solutions website. Scherillo alleges that the report painted an overly rosy picture of the company, leading him to make bad investment decisions that cost him money when the company tanked. Scherillo wants D&B to cover his investment losses.

Scherillo is almost certain to lose on the merits. Indeed, this case brought to mind one of the earliest cyberlaw cases, Daniel v. Dow Jones, 520 N.Y.S. 2d 334 (N.Y.C. Civ. Ct. Spec. Term 1987). (This case is a fun read--see how the court discusses electronic networked communications almost a quarter-century ago). That case involved Dow Jones' publication of an ambiguous report via a dial-up online service that led the plaintiff to make a bad investment decision. The court said that any tort claim for publishing inaccurate information required the plaintiff to show that it had a "special relationship" (analogous to a fiduciary relationship) with the information vendor, and an ordinary customer-vendor relationship did not qualify as a special relationship.

Interestingly, D&B would rather hear the case in NJ rather than keep it in NY and hope to benefit from substantive NY law that surely would doom Scherillo's case. (Perhaps NJ has a similar law). To move the case to NJ, D&B invoked the venue selection clause in its user agreement. Let's look at the online contract formation process. The court says:

"since 2007, the SBS website has included a page that requires users to register before purchasing a Dun and Bradstreet product ("the registration page"). On the registration page, users input information, including their e-mail address and name. The bottom quarter to third of the page contains a scrollable text box with the title "Terms and Conditions" [which contained a mandatory venue selection clause designating NJ]. Directly below this text box there is more text that reads: "I have read and AGREE to the terms and conditions shown above." Immediately adjacent to this text is a much smaller, empty box ("the terms and conditions check box"). Also at the bottom of the page is another box containing the phrase "Complete Registration" ("the Complete Registration box"). Clicking on this box completes the user's registration. McDonald testified that if a user clicks on the Complete Registration box without checking the terms and conditions check box, the user is unable to complete registration and is returned to the registration page."

Check out the page yourself as I saw it in Google Chrome on Feb. 18 (with cropping). The formation process looks pretty standard to me.

Scherillo attacked the formation process by saying he never consented to the agreement because "it was possible for him to unknowingly and involuntarily 'check' the terms and conditions check box." Not only that, he lined up Sean Chumura, "a cyberwarfare and computer forensics expert" who is also [LINK NSFW] helping Perfect 10 in its lawsuit against Google, to testify that "it was possible for plaintiff, while 'tabbing' through the registration page, to inadvertently hit the space bar and thereby 'check' the terms and conditions box."

[Snarky paragraph alert] First, this may prove the adage that you can find an expert to testify about ANYTHING. Second, Scherillo alleged $75k of investment losses. For a low-value lawsuit like that, he needs a cyberwarfare expert??? Third, I believe Chumura has a MySpace page. Really...? I wonder if he uses an AOL.com email address too. The MySpace page also reveals that its author appeared to attend the Dan Quayle school of spelling.

OK, back to the case. The judge was no more tolerant of this nonsense than I am. He resolves the factual dispute by saying:

even under plaintiff's theory--that, while "tabbing" through the fields on the registration page, he accidentally hit the space bar key and thereby "checked" the terms and conditions box--plaintiff would have seen the check mark appear in the box and then still would have had to hit the "return" key (or clicked the "complete registration" box with the mouse) to complete the registration and advance to the next screen. Plaintiff would have had an opportunity to see that he checked the box inadvertently before he then hit the return key on the "complete registration" box. Thus, to accept plaintiff's theory, the Court would have to find that plaintiff hit two keys accidentally-the space bar and the return key-and that he was then involuntarily and unexpectedly sent to the next screen where he nonetheless proceeded to enter his credit card information and complete the purchase of the report. This alleged chain of events is simply not credible.

Therefore, Scherillo's click on the "Complete Registration" box manifested Scherillo's assent to the terms, even if Scherillo chose not to review them. The court says that the fact that the terms were in a scrollbox is immaterial, and the fact that some sites require the user to scroll through the scrollbox before proceeding doesn't affect the effectiveness of D&B's implementation.

I believe this court would have upheld the formation process even without the bonus checkbox, but you can see how the checkbox defused the withering assault of a cyberwarfare expert. Thus, you might consider implementing the bonus checkbox to discourage similar silly attacks against your contract formation process in the future.

About twice a week I think, "Why don't I try this crazy idea and see if it works?" about some element of my career. With no label, no manager, and no inner voice of reason slow me down, I get to experiment all I want. 90% of my crazy ideas have to do with social networking -- which I spend half a lifetime doing, despite the crap I take from my family and Real Life friends. (Hey, some of us actually do bond over web comics, starship replicas, the fail whale, and photos of stuff on cats.) Mostly my nutty ideas work just a little bit. Some are epic failures. But my experimental flopping and floundering inches me closer to the day when I'll be totally financially independent as a full-time musician. Plus it's more fun than having a real job.

But every now and then a crazy idea works really really really good. Bam!

I planned to sell 20-40 of my little bootleg CD's. Silly me. I sold well over 200. My little stack of jewel cases looked so pathetic.

WholeWheatRadio.org broke every record for online listenership, CD sales, tips -- everything. The more listeners tuned in, the more tuned in, and the more money they gave, the more money they gave. The crowd online was thrilled to be breaking WWR records. I drove away from Talkeetna having earned about $4,000 in one night, with a new CD to produce in just a couple of days and an avalanche of e-mail and publicity requests to deal with. Seldom have I been so happy and so panicked.

In accordance with Southwest's "customers of size" policy, Smith had purchased two tickets but then stood by for an earlier flight, which had one seat remaining. That is when the airline forced him off the plane.

Bloomberg is reporting that Verizon is planning on adding official support for Skype to its handsets. The two companies are expected to announce a partnership at the Mobile World Congress on February 16, which will allow Skype calls to be made from Verizon phones using the provider's 3G data plan.

This would be a shrewd move on the part of Verizon. Voice calls are becoming a less and less of a profit center for wireless carriers. Look at the big price cuts that both Verizon and AT&T introduced last month: The biggest area of price savings is in unlimited voice plans. Data is still a premium, and in the case of Verizon, there are still data caps for mobile data usage.

For consumers, having Skype pre-loaded on a phone which Bloomberg says is to be on a range of low and high-end handsets might mean that instead of paying for a voice plan (or a more expensive voice plan), the option to get a better data plan and just use Skype when making calls might make more sense.

Bloomberg quotes IDC analyst Rebecca Swensen:

What's important is that Verizon understands that, at some point, they are going to be losing voice minutes to the data world. This makes their platform more valuable for end-users. It could be a differentiator for Verizon Wireless.

Although Verizon is the largest wireless carrier in the US, it faces stiff competition from AT&T. Although AT&T's service is pretty universally reviled, AT&T has the iPhone and that continues to drive customers to the carrier. While AT&T is expected to lose exclusivity at some point, it is unclear when or if Verizon will get to carry the device. As it stands, AT&T will be the 3G data provider for Apple's iPad this April.

Skype works on AT&T's WiFi network and a 3G version is in the works as well. Depending on which carrier can offer 3G access to Skype first and on what phones could depend on how valuable this feature is.

If given the choice, would you drop your voice plan and just use Skype over 3G data for making and receiving calls? Let us know!

Tags: 3g data, mobile voip, Skype, verizon, voip

When Jammie Thomas (now Thomas-Rasset) became the first alleged P2P file-swapper to take her case all the way to trial and verdict, no one suspected that she would actually have three trials and verdicts, but that's the case today, as the RIAA rejected a federal judge's decision to slash Thomas-Rasset's damage award. Instead, we're headed to a truncated third trial on the issue of damages.

The recording industry also made it clear this week that both Thomas-Rasset and Joel Tenenbaum (the second P2P defendant to go to trial and verdict) are, in its view, quite terrible people: lying, deceiving, irresponsible, and unreasonable. And the industry can't understand why they're both fighting on.

Now picture our perspective leaving our own experiences, zooming out and up until we can see how all the different groups are interacting on a worldwide social network. That bird's-eye view could be both beautiful and horrible if the resolution was clear enough. That's what a Ramen-eating, ex-Apple engineer named Pete Warden is about to release to the public this week.

Sponsor

This Wednesday, Warden will make Friend, Fan page and name data from hundreds of millions of Facebook users available to the academic research community. It's a move that Facebook has to have seen coming, a move that many in the data-centric community have been calling on the company itself to do for years, and an event that's been complicated by Facebook's recent privacy policy changes, which have muddied the waters of right and wrong but rendered even more data available for outside analysis.

If what people call Web 2.0 was all about creating new technologies that made it easy for everyday people to publish their thoughts, social connections and activities, then the next stage of innovation online may be services like recommendations, self and group awareness, and other features made possible by software developers building on top of the huge mass of data that Web 2.0 made public. It's a very exciting future, and Warden is about to fire one of the earliest big shots in that direction.

Nerds in Space: Social Graph Analysis For Solving Large-Group Problems

Warden studied Computer Vision in college in the U.K., then got into game development. After moving to L.A., he spent six years building graphics drivers for the original Playstation and the XBox. Then he started his own independent business, where, thankfully, he open-sourced much of his work (something he's still doing today).

When he found out that starting his own business wasn't going to work with his immigration status, he was very fortunate to have also caught Apple's eye with the software he had been releasing to the public. Apple bought his company in order to bring him on board. The proceeds of that small sale are now sustaining his next project after going independent again.

After spending five years at Apple struggling to navigate the maze of people and connections and types of expertise in order to get the information he needed, Warden decided to go independent and build a company that solved exactly that kind of problem. "I can't think of a better big company to work for, but it was still a big company," he says. "It was hard to find the right people to talk to, whether for particular expertise or for contacts at external companies." And so Warden left Apple to build a company that would use social graph analysis to solve problems like that. He called the company Mailana, a play on "mail analysis" since he was initially focused on email social graph analysis.

We've written here a number of times about Mailana's tool that analyzes the social graph of any Twitter user. Enter the username of someone on Twitter and Mailana will show you which 20 other people the user has exchanged the largest number of reciprocal public @ replies with. Find someone interesting or important? Mailana's Twitter analyzer will tell you who they most regularly interact with. See, for example, The Inner Circles of 10 Geek Rockstars on Twitter.

Pulling Down the Facebook Social Graph

Now Warden is about to unveil a much larger project along the same vein. For the past six months he's been crawling public profile pages on Facebook. He now has more than 215 million of them indexed and updated about once a month. When he began he was using the Web crawling service 80legs, but over time he had to build his own crawling infrastructure.

When I talked to him this afternoon, he had already begun uploading 100 GB of user data onto his server to make it available for academic research starting on Wednesday. Warden says he's removed identifying profile URLs but kept names, locations, Fan page lists and partial Friends lists. All those fields of data are just waiting to be analyzed and cross referenced. That's one very rich resource.

Yesterday Warden posted some of his own initial observations from the data on his personal blog. Those included:

• In almost every state in the Southern U.S., God is number one most popular Fan page among Facebook users. Among people in the L.A., San Francisco and Nevada regions? "God hardly makes an appearance on the fan pages, but sports aren't that popular either," Warden writes. "Michael Jackson is a particular favorite, and San Francisco puts Barack Obama in the top spot." In the Oregon and Idaho region? Starbucks is number one.
• In the Mormon-influenced areas of Utah and Eastern Idaho, the most popular Fan pages are The Book of Mormon, Glen Beck and the vampire book Twilight, which was authored by a Mormon.
• The bulk of Warden's posted analysis yesterday was about location networks. People in the western U.S. tend to have Facebook friends all over the country; people in the southern U.S. tend to mostly be friends with people who have remained in the same area.

Taking a Deeper Look

These observations are interesting, but they are only the beginning of what's possible. Name, location, friends and interests are great data points to analyze. Warden has written a program that will estimate gender as well, based on names. All these data points can be cross-referenced with outside data, too. Members of Facebook's own staff did this kind of analysis when they compared user last names to U.S. Census data, which allowed them to estimate changes in Facebook's racial composition over time based on the likelihood of people with particular last names to report a particular racial backgrounds.

"I'm mostly thinking 'What do I try first?'," Warden says. "There's so many interesting ways to slice the data - especially as I'm starting to get changes over time. I'm also trying to map out political networks in aggregate; how polarized the fans of particular politicians are - so how likely a Sarah Palin fan is to have any friends who are fans of Obama, and how that varies with location too. One of my favorite results is that Texans are more likely to be fans of the Dallas Cowboys than God."

Warden says he hasn't talked to anyone from Facebook since he started crawling the site, but he did get an email from someone on the security team asking him to take down instructions he'd posted that exposed a security hole that made harvesting peoples' email addresses easy. So the company is paying attention. "I'd love to see them put me out of business by putting decent data out there," Warden says. He says his Amazon Web Services bill was over $5,000 last month.

Why is he indexing all this content and why is he going to hand it over to the academic world later this week? "I am fascinated by how we can build tools to understand our world and connect people based on all the data we're just littering the Internet with," Warden says.

"Nobody thinks about how much valuable information they're generating just by friending people and fanning pages. It's like we're constantly voting in a hundred different ways every day. And I'm a starry-eyed believer that we'll be able to change the world for the better using that neglected information. It's like an x-ray for the whole country - we can see all sorts of hidden details of who we're friends with, where we live, what we like."

For a great example of the kind of social impact that data analysis can make, Warden points to some of the fascinating ways that GIS data is illuminating the intersection of race and public services. Data has shed light on social injustices for decades, and measurable information about the interactions of hundreds of millions of people every day on Facebook offers opportunities to discover both good and bad news about the contemporary human condition.

Warden says he's not yet been able to interest any investors in his ideas for businesses based on this data, so his girlfriend Liz Baumann, a former insurance actuary, stepped in to help and is now running much of the crawling. He says he's now focused on "working on ways of presenting all this information in a form that answers questions for people willing to pay." His first experiment along those lines is the very interesting FanPageAnalytics.com.

What does Pete Warden hope for from this week's public release of all this Facebook data? "Hopefully I'll get to see a bunch of interesting [academic research] papers come out of it, worst case. And I'd like to be the guy people turn to when they need stuff like this."

Already well-respected among a fringe group of bleeding-edge geeks, we hope that Warden's work on social graph analysis will end up impacting a far larger number of people than may ever know his name.

To be fair, these two developments are really far apart in their delivery dates. The Gmail status update could come as soon as tomorrow, whereas the the speech-to-text-to-speech translation system is still a ways out. You can definitely see just how much work Google needs to do by trying to read your Google Voice voicemail transcriptions. (Voice search works better on Android 2.1 because you're talking slower and enunciating.) But both these features point in the same direction many of the company's other products have been hinting at. Here's a list of Google's major products, in case you forgot, and which sector of communication they want to dominate.

Google Voice: This is a big one, and it'll be the most natural interface for Google to slot in the voice-translation into. If you're using it the way Google wants you to use it, you're already piping all your voice calls and SMS through Google's tubes. And refining speech to text gives them a good idea of your interests and what you're talking about, allowing them to better serve up the relevant ads to you during calls.

Gmail: Having access to at least one end of everyone's email conversations, outside of business emails, gives Google the ability to be a gateway for most of your written communications. But that's not enough for Google, which is why they developed...

Google Wave: It's email, message boards, chat rooms and collaboration software all in one, except every participant needs a Google account. This closes that "openness" loophole that email has, and forces everyone into Google's biosphere. So this, and Gmail, should make sure that every medium-length communique passes through Google's maw for analysis. But what about shorter and longer forms? Update: Thanks commenters, for reminding me that Google made Wave open, so people can create their own Wave servers to talk to each other with the Wave protocol. The point still remains, that if you were going to use a service, wouldn't you rather use the service from the company that created the protocol, for performance and feature reasons?

Google Docs: For longer documents.

Google Talk: For short blasts of instant messaging, video chats and some audio chatting.

Picasa and YouTube: Communication doesn't have to be all text-based, you putting your photos and videos online count too.

Android and Chrome OS: By getting you down at the operating system level, Google can theoretically know every kind of communication you perform. It knows who you talk to, how you do it and when you do it. It can even shape the how by delivering the experience themselves.

Everything else. There's Checkout, Finance, Maps, Reader, News and other apps, which fill in the other forms of communication or expression that aren't quite covered by the major products above. One major missing piece is social networking, where Google basically failed before with its Orkut service (except for Brazil), so this new Twitter/Gmail hybrid might be their next entrance into the space.

But why do they want these things? Why would Google want to be the middleman between you and the world? To sell you ads, of course. And don't think Google is going to stop at just helping you talk over the internet or over the phone, they're going to reach into meatspace as well. How? One step is making that speech-to-speech translation portable, so you can do a sort of near-field communication with someone else with the same device while at the same time being able to look them in the face. Then, blast you two with the appropriate ads on the billboard next to you.

Things are clearly on the decline over time. In fact, Chris Silver Smith projected that if this trend continues, the yellow pages will be toast.

Google Trends also allows for state by state views of a term's popularity. For example, here is what the term Yellow Pages looks like when filtered for Massachusetts:

Notice the steeper decline than the national level.

Heading South, here is what Alabama looks like:

Less steep than the national trend.

It looks like Louisiana has spilled the least amount of yellow blood over the past six years:

And what city within Louisiana is the strongest? Metairie: the city that elected white supremacist David Duke to Congress in 1990.

What about Minnesota? The yellow pages decline is much steeper than the national average:

Of course, there are some cities holding out. Louisianas of the North, perhaps? Here they are:

This may help explain why yellow pages companies have such a hard time understanding pushes for opt-out legislation in places like Minnesota, Oregon, and Hawaii. On the ground in places like Texas or South Carolina, yellow pages use may be holding relatively strong. I'm sure there are places that are practically a generation behind major US cities when it comes to Internet access. Without fast, reliable Internet access and the funds to buy a decent computer, the Yellow Pages are a rational choice for business information. That's less the case in major cities, who've generally had access to 10+ years of high speed Internet access.

By being more powerful we mean that the Eee PC 1005PE features 2GB of RAM, and 320GB of HDD. The screen remains at 10.1-inch of course with 1024x600 resolution. It's battery pack is still 6-cell 4400mAh with 11 hours of battery life and of course it is powered by Intel Atom N450 CPU running Windows 7.

Since it is not officially announced yet, no official pictures are available, even its price and release data are uncertain at this moment. But we will sure bring these information to you once they became available, so stick around.

via Blogeee

A post from the Asus Eee PC blog.

Eee PC 1005PE-H Spotted, More Powerful than the One without an H

iPad - image courtesy of Apple Inc.

The world has waited quite awhile for Apple to finally release its tablet. The world wanted it so much that in a way it worked against Apple. People built up their expectations of the iPad so high that it was going to be tough for Apple to surpass it. Did they? The simple answer is no. The iPad falls short of the world's lofty expectations. Is it Apple's fault? Not totally.

The world wanted Apple to produce a breakthrough device so much that when Jason Calcanis, founder of Engadget fired of tweets saying that he had been a beta tester for Apple and started to rattle off specs that were too good to be true, people believed him (this writer included). Why not? He's been writing about the tech industry and is one of the more recognizable names in the blogosphere that it seemed plausible. I hindsight, the solar panels should have been a dead giveaway.

On to the iPad. At first glance it does indeed just look like a big iPod Touch. Is it revolutionary and magically as Apple said it is? It should be had the world not been exposed to the iPhone and iPod Touch prior to it. On its on it is still revolutionary. Here's why.

1. The size is a big factor Sure it may look like a big iPod Touch but the bigger form factor just opens up a lot more possibilities. I've been a long time user of the iPod Touch and iPhone. I have both the first generation of iPod Touch and iPhone and thus have a little bit of experience with the devices. They both are great mobile devices. For checking important emails, looking up stock and weather quotes, reading a short article on the internet that really can't wait both these devices are top notch. But for reading books, watching movies, etc. It's just ok. After awhile your head starts to spin because of the eye strain and makes you want to put it down. The iPhone and iPod Touch are great mobile devices that can be used for short periods.

On the areas that the iPod Touch and iPhone are lacking, I think this is where the iPad starts to shine. Its size makes for an excellent device to watch videos on. The screen is large enough for personal viewing that it doesn't become such a chore. Reading books should be easier too although I shall reserve judgment on that until I actually get to try it.

2. Keeping it Simple - I've heard about a lot of people saying that the iPad lacks multi-tasking, etc. but I believe that Apple's attitude of keeping the iPad simple is actually is a strength. We've been surrounded by a culture of multitasking that it's gotten to a point that it's become a hindrance rather than helpful. When we work on our computers, we often find ourselves doing email, chatting, reading web pages all at the same time. It's becoming confusing and our concentration is suffering. I'm not saying this is always bad but in some cases keeping focus on things is good.

I also believe that the target users for the iPad are really people who aren't that techie. Let me qualify this. I'm not saying these people don't like technology or are adverse to it. I'm saying these people are the ones that like technology that just works. That's why a lot of people play games on consoles. Sure they can play games on the PC but it takes so much work to do so. Consoles are simple. You place the game, you play. Simple. The iPad is pretty much simple as well. It won't take rocket science to figure it out.

3. Touch me - The touch interface feels natural. It's been around for awhile but Apple's iPhone/iPod Touch interface that has been adapted for the iPad is the most natural touch interface I've seen. It's not a PC interface that has been adapted for touch. It's actually designed with the touch interface in mind. Therefore it just feels natural. People who aren't tech oriented really don't have a hard time figuring it out. Case in point, my tech challenged mother didn't have a hard time learning her iPhone.

4. It's what inside that counts In this case, one of the biggest things about the iPad announcement is actually the processor. Apple now has it's own processor inside one of its devices. It actually looks pretty good. If the impressions of people that have had a chance to play with the iPad. This thing screams and isn't power hungry. If this chip finds it way to the iPhone, we'll have quite the smart phone on our hands.

The iPad was designed to fill a gap between the netbook and a smar tphone. Will it do that? I think to a certain extent it will. I envision people buying this to have them in their homes and have easy access to email, photos, videos. Sometimes you just want to share photos with a friend and not necessarily project it on the TV. The iPad is a good alternative.

I also see it as a good addition to people who have desktops but want something portable to bring around the house to check emails, watch videos from anywhere and yes that includes the bathroom. I don't think it will get hot enough to burn your crotch as a MacBook/MacBook Pro does.

Will it revolutionize the way the iPod has? It has the potential to do so but only time will tell. For a 1.0 product it's good. I'm sure as with the iPod and iPhone the succeeding versions will only be better.

Post from: EveryJoe

Apple iPad: Breakthrough or Breakdown?

A federal lawsuit alleging collusion among the major music labels over digital download pricing can proceed, a three judge Appeals Court panel ruled today.

As lawsuits go, this one's a humdinger, charging that the labels engaged in a price-fixing conspiracy to ensure that they each made about 70 cents per track sold online, and that no one received a better deal than anyone else. The case had earlier been tossed for a "failure to state a claim," but the Second Circuit Court of Appeals has reinstated it and ordered the trial judge to proceed with the case.

Today, as I am sure you have noticed, I'm short on my five blog posts a day by about . . . um, five. That is until now.

I've been down with a bug all day and feeling a little better thanks to a great post from Bruno Giussani on his blog Lunch Over IP. The post is titled, Tips for Conference Bloggers, and includes an incredibly insightful and well designed PDF cheat sheet.

His post from a little over two years ago holds strong today and is resonating with me enough to crank this post out. Timing is important in this case since we are beginning a new conference season with mega events like SXSW on the horizon.

I spent nearly the entire last week at CES and had my pride handed to me by this monster trade show/conference/press extravaganza. I was ill prepared for everything that the event would throw at me and approached it like an average conference. This is a mistake I won't repeat.

What I learned at CES was that there are two types of attendees: those doing business and those covering the event. Those in the first category are more concerned with parties, sales and future business relationships. Those in the latter are analyzing, comparing and framing the event for publication.

Publishing from CES is a formidable process. Most press covering the event have teams of people dedicated to gathering information and creating media needed for a final publications. This is a smart move for an event with over 100k attendees.

In addition to the excellent PDF from Giussani's post that addresses the 95% of the concerns of a blogger in 2010 there is 5% that could be added for the here and now. There are new event realities and technologies that can enhance his original thoughts.

1. MiFi is a must have for connectivity. This is especially important for Giussani's rule of blogging an even no later that 10 minutes after it has ended. Conferences don't as often have wifi available as they did back then except in a few locations like press or blogger lounges.

2. Photo/Video lighting gear. Get used to shooting in dark to minimal light and learning your cameras settings well. Check your first few shots or reel to view the quality and make corrections as needed. Much of this can be enhanced with lighting rigs that will allow you to get the shots you need when they happen . . . not when you are ready for them with white balance or aperture settings.

3. Backup workflow. You have a machine that you love and take every where with you, right? What happens when it goes down? Before the event or during you should have a backup plan for gear failure so that it doesn't destroy your workflow. Blogging an event can be difficult in the first place, but when the workflow you went into the even is disrupted it can be detrimental to timely coverage.

4. Speak to previous attendees of the events you are going to be covering. This falls under the guidelines on page 6 of the PDF of collaboration. However, this is a proactive measure before the conference begins so that you can understand what obstacles you might be up against.

5. When the authors recommend having fun, it shouldn't just be at the end of the day for parties or networking. It should be throughout the day. It is counterproductive to be worried during the day about connectivity, media fails or missed opportunities. If something happens that you're not happy with, put it in the back of your mind or write a note down for it and move on. Dwelling on something that you can't do over is to your detriment and that of your readers ro viewers.

Please head over to Bruno Giussani's blog and download the PDF that he has made available. Even if you're not blogging a conference or trade show, there is great value in these tips for any writer publishing to the web.

Image: Screen shot of the PDF cover (Bruno Giussani).

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How To: Conference Blogging is a post from: TechStartups.com

It can be difficult to guess judicial decisions based on the judge's oral questioning of the lawyers, but it's certainly possible to see where judges are having trouble with an argument. In today's case, judges repeatedly went after the FCC's contention that it was acting legally in the Comcast case. Because Comcast's behavior ran afoul of an "Internet Policy Statement" rather than an official rule, the company claims that the FCC had no grounds for action until it made the Policy Statement into actual policy (which FCC Chair Julius Genachowski is trying to do right now).

Judges questioning the FCC's legal team said that the Policy Statement was "aspirational, not operational," that the FCC had not identified a "specific statute" Comcast violated, and that the FCC "can't get an unbridled, roving commission to go about doing good."

What difference would a pro-Comcast ruling make, given that the company has already changed its traffic management practices? It would "free us of this black mark on our record," said a Comcast attorney, according to the Wall Street Journal. That attorney, Helgi Walker, comes from the high-powered Wiley Rein law firm in DC. Ironically, former FCC Chair Kevin Martin, the Republican appointee who sided with the two Democrats on the FCC in the Comcast ruling, was himself a former Wiley Rein lawyer.

In a statement after today's hearing, current FCC Chair Genachowski said, "This case underscores the importance of the FCC's ongoing rulemaking to preserve the free and open Internet. I remain confident the Commission possesses the legal authority it needs and look forward to reviewing the court's decision when it issues."

That decision should come in the next several months.

I will do a more comprehensive year in review for Cyberlaw generally, but I thought it would be fun to take a close look at how 47 USC 230 fared in 2009. This is the first full calendar year following the Ninth Circuit's en banc Roommates.com opinion, and many of us initially feared that the case would create a huge hole in 230's otherwise solid immunity. As it turns out, those concerns have not come to pass. If anything, 2009 shows us just how strong the immunity remains.

I blogged on a total of 22 cases issued in 2009 that discussed the statute. (I blog on every case I see that substantively discusses 47 USC 230). I blogged on other cases in 2009 that were decided before 2009, such as the Woodhull v. Meinel case from October 2008 and DC v. Harvard-Westlake, a 2007 arbitrator's dismissal that came to light in 2009.

Of the 22 calendar year 2009 cases, I would classify 14 of them (63%) as easy defense wins, frequently on a 12(b)(6) motion to dismiss or state law equivalent. Even many of the remaining 8 cases contained good news for defendants. For example, in Shiamili, the defense inexplicably lost at the district court level but got an easy reversal on appeal. The Stayart court granted Yahoo an easy defense win, although co-defendant Various didn't get the 230 ruling. Similarly, the Barnes case granted the defense an easy 230 win on one theory (negligent undertaking) but denied 230 for a different one (promissory estoppel). The Certain Approval Process case said 230 did not prevent the plaintiff from amending the complaint to add a cause of action, but once added, the court instantly zapped the claim on other grounds.

This leaves four unambiguous 230 defense losses in 2009. The leading 230 defense loss was the Tenth Circuit FTC v. Accusearch case, which held a retailer liable for reselling illicit phone records. The other major 230 defense loss was the NPS v. StubHub case, which held that 230 may not apply to a lawsuit over the alleged illegal ticket scalping by StubHub's sellers. Both of these cases involve the retailing of illegal items, suggesting that 230's boundaries may not reach that far.

The other two defense losses are less consequential. The Project Playlist held that 230 does not preempt state IP law claims, a conclusion that deserves note only because the Ninth Circuit held otherwise in the 2007 ccBill case. I believe that no other courts will follow the Ninth Circuit's rule that 230 preempts state IP laws, making the Project Playlist ruling unsurprising.

In People v. Gourlay, a web host was denied a 230 defense to a criminal prosecution for child molestation- and child pornography-related claims. This case turns mostly on the web host's active role creating the child pornography (as well as the host's molestation of the child actor); with that context, this case may have little influence on other cases. Indeed, the court made clear that web hosts providing standard web hosting services could fully qualify for 230 protection against a state criminal prosecution of child pornography dissemination.

In reverse chronological order, a brief overview of the 230 cases from 2009:

Nemet Chevrolet v. ConsumerAffairs.com (4th Cir. Dec. 29, 2009). One of three federal appellate court 230(c)(1) rulings in 2009 (Barnes and Accusearch are the others). A solid defense win for a consumer review website. The plaintiff's claims that the website contributed to the reviews' development and fabricated reviews were tossed on a 12(b)(6) motion to dismiss.

Shiamili v. Real Estate Group (N.Y. App. Div. Dec. 17, 2009). In an unpublicized January 2009 decision, the trial court denied a website's 230 dismissal request for claims based on user-supplied comments. In December, this error was fixed on appeal despite allegations that the website chooses and administers the user content.

Dart v. Craigslist (N.D. Ill. Oct. 20, 2009). Craigslist got a big win in its ongoing battles with various government agencies over prostitution ads on Craigslist when the court held it wasn't liable for those ads.

Riggs v. MySpace (C.D. Cal. Sept. 17, 2009). A goofy case. The court holds that MySpace's deletion of Riggs' account was protected by 230(c)(1) on the apparent theory that Riggs (the plaintiff) was the third party supplier of the deleted content. This case would make more sense as a 230(c)(2) case.

Finkel v. Facebook (N.Y. Sup. Ct. Sept. 15, 2009). Facebook wasn't liable for the contents of a user's private group even though Facebook placed a copyright notice on the page.

Intellect Art v. Milewski (N.Y. Sup. Ct. Sept. 15, 2009). Ripoff Report wins again.

Stayart v. Yahoo (E.D. Wis. Aug. 28, 2009). An convoluted, and possibly confused, ruling that Yahoo wasn't liable for search results snippets. However, Various was denied 230 because it may have originated the content in question.

Cornelius v. DeLuca (E.D. Mo. Aug. 18, 2009). An online retailer wasn't liable for user-supplied comments despite a conspiracy allegation.

Goddard v. Google (N.D. Cal. July 30, 2009). This is a follow-on ruling to an important December 2008 ruling in this case, which dismissed the plaintiff's complaints but gave the plaintiffs another chance. The December 2008 ruling is one of the most interesting and important decisions interpreting Roommates.com. In the July ruling, the judge again found that 230 insulates Google from liability due to allegedly fraudulent ads run through its network and granted a final dismissal.

Doe II v. MySpace (Cal. App. Ct. June 30, 2009). MySpace isn't liable for users' sexual assaults on other users.

FTC v. Accusearch (10th Cir. June 29, 2009). The second of three federal appellate court rulings on 230(c)(1). The defendant was an online retailer of illegal phone records. The retailer claimed that the phone records came from third party suppliers and therefore 230 immunized the retailer from liability associated with the records. The court echoed the Ninth Circuit's Roommates.com decision, effectively extending that case to the Tenth Circuit, and said that the retailer was responsible for selling the illicit phone records despite 230.

Zango v. Kaspersky (9th Cir. June 25, 2009). This is the only 2009 ruling addressing 47 USC 230(c)(2), the overshadowed and frequently overlooked sibling of 230(c)(1). Despite the rarity of 230(c)(2) cases, this case could be fairly influential. The Ninth Circuit held that 230(c)(2) protected an anti-spyware software vendor's decision to classify software as a threat. If you missed it, you might want to take a look at my presentation slides on 230(c)(2), which distill my deep look at 230(c)(2) this summer.

Gibson v. Craigslist (S.D.N.Y. June 15, 2009). Craigslist isn't liable for physical injury caused by a gun purchased via a Craigslist ad.

Doe IX v. MySpace (E.D. Tex. May 22, 2009). MySpace isn't liable for users' sexual assaults on other users.

Barnes v. Yahoo (9th Cir. May 7, 2009; amended opinion June 22, 2009). The third of three federal appellate court opinions on 230(c)(1). The Ninth Circuit held that 230 preempted a claim against a service provider for negligently delaying the removal of user content (essentially, Zeran redux), but 230 did not preempt a promissory estoppel claim based on promises the service provider made to the person requesting takedown. The initial Ninth Circuit opinion had two other unfortunate digressions: (1) it said that 230 was an affirmative defense that did not support a 12(b)(6) motion to dismiss, and (2) the opinion had ambiguous language implying that 230 preempted only state claims, not federal claims. The amended opinion helpfully eliminated both digressions.

Atlantic Records v. Project Playlist (S.D.N.Y. March 25, 2009). 230 does not preempt a state IP claimin this case, a violation of state copyright law for pre-1972 sound recordings.

Joyner v. Lazzareschi (Cal. App. Ct. March 18, 2009). A message board operator wasn't liable for user posts.

Raggi v. Las Vegas Police (D. Nev. March 10, 2009). A union wasn't liable for messages that union members posted on the union-operated message board.

Certain Approval Programs v. Xcentric Ventures (D. Ariz. March 9, 2009). 230 did not bar amending a complaint to add a new cause of action when the plaintiff also adequately alleged that the Ripoff Report contributed to the creation and development of the content at issue.

People v. Gourlay (Mich. App. Ct. March 3, 2009). This case involves the prosecution of a pornographic web host who also molested the child actor. The web host asserted a 230 defense in trying to overturn the conviction for the charges related to pornography dissemination. Although 230 can preempt state criminal prosecutions, and web hosts are protected by 230 for their ordinary web hosting activities, this web host actively participated in the site's development and therefore lost 230's protection.

NPS v. StubHub (Mass. Super. Ct. Jan. 26, 2009). In a long-running battle between the New England Patriots and season ticketholders who want to resell their tickets via StubHub, StubHub was denied summary judgment on 230 grounds. The court cites Roommates.com in saying that StubHub may have contributed to illegal ticket scalping sufficient to potentially disqualify it for 230 protection.

GW Equity v. Xcentric Ventures (N.D. Tex. Jan. 9, 2009). Ripoff Report is protected by 230 even though it offers pull-down menus and manipulates user-submitted reports.

Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., No. 08-2097 (4th Cir. Dec. 29, 2009)

Introduction

Citing 47 USC 230, today the Fourth Circuit upheld a 12(b)(6) dismissal of defamation and related claims against a consumer review website. This case is noteworthy because the court rejected some common allegations that plaintiffs make to evade 230, so this case may help defendants get 12(b)(6) motions to dismiss more easily.

ConsumerAffairs.com is a consumer review website with a twist: it works in conjunction with a law firm that mines the submitted complaints for potential class action lawsuits. In June 2008, I blogged about the district court's 12(b)(6) dismissal of the case.

Development of the Reviews

Nemet tried two tactics in its complaint to draft around 230. First, it alleged that ConsumerAffairs.com partially developed 20 reviews. Nemet pled:

Upon information and belief, Defendant participated in the preparation of this complaint by soliciting the complaint, steering the complaint into a specific category designed to attract attention by consumer class action lawyers, contacting the consumer to ask questions about the complaint and to help her draft or revise her complaint, and promising the consumer that she could obtain some financial recovery by joining a class action lawsuit. Defendant is therefore responsible, in whole or in part, for developing the substance and content of the false complaint . . . about the Plaintiffs.

These allegations do not survive a 12(b)(6) motion to dismiss.

* the website "structure and design" argument fails, despite Nemet's attempt to invoke Roommates.com, because ConsumerAffairs' structure was not illegal. To me, the court's discussion reinforces that Roommates.com' real holding is If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune. Chalk this case up as yet another citation of Roommates.com for the defense.

* Asking users questions about their posts does not qualify as development.

* The unsupported assertion that ConsumerAffairs edited posts did not pass the Iqbal standard. Plus, as Zeran indicated, 230 protects editorial decisions, so the allegations needed to assert some editing beyond this protected zone.

Review Fabrication

Second, Nemet alleged that ConsumerAffairs fabricated 8 reviews. Nemet pled:

Because Plaintiffs cannot confirm that the [customer] complaint . . . was even created by a Nemet Motors Customer based on the date, model of car, and first name, Plaintiffs believe that the complaint. . . was fabricated by the Defendant for the purpose of attracting other consumer complaints. By authoring the complaint . . . the Defendant was therefore responsible for the substance and content of the complaint.

This allegation has an obvious (and IMO embarrassing) logic flaw. Even if Nemet can't use its records to validate the facts in a consumer review, ConsumerAffairs.com's fabrication of the post is only one of many possible explanations. The court notes some other possible explanations: "the post could be anonymous, falsified by the consumer, or simply missed by Nemet." (I would also add the possibility of weak recordkeeping by Nemet). To try to get around this logical deficiency, Nemet marshals up some additional allegations:

(1) that Nemet has an excellent professional reputation, (2) none of the consumer complaints at issue have been reported to or acted upon by the New York City Department of Consumer Affairs, (3) Consumeraffairs.com's sole source of income is advertising and this advertising is tied to its webpage content, and (4) some of the posts on Consumeraffairs.com's website appeared online after their listed creation date

But all of these facts are non-sequiturs; none of them show that ConsumerAffairs fabricated the posts, and post-Iqbal these allegations are not enough to state a claim. The dissent disagreed with this conclusion (about the alleged fabrication) and would have allowed those claims to proceed.

230 as an Immunity Redux

In FN 4, the court notes that the Seventh Circuit questioned if 230(c)(1) was just a definitional section. Citing Zeran, which addressed this issue explicitly, the court says "Of whatever academic interest that distinction may be, our Circuit clearly views the 230 provision as an immunity:" As a result, the court "aim[s] to resolve the question of 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from 'ultimate liability,' but also from 'having to fight costly and protracted legal battles.'" It looks like there could be a brewing catfight between circuits over whether 230(c)(1) is an immunity, an affirmative defense, a definitional section or something else.

Conclusion

Given that this court was bound by the Zeran precedent, it's perhaps not surprising that the court found 230 protection for a consumer review website. Nevertheless, by rejecting another plaintiff's attempt to make hay from Roommates.com and rejecting weakly supported allegations of fabrication, this court gave defendants even more support to fend off claims that are, at their core, based on third party content.

The updated census of Roommates.com citations:

Roommates.com Cited for Defense (11 cases): GW Equity v. Xcentric, Best Western v. Furber, Goddard v. Google (and second ruling) Joyner v. Lazzareschi, Atlantic Records v. Project Playlist, Barnes v. Yahoo (note: although the case was a partial loss for the defendant, the Roommates.com discussion came in the defense-favorable part), Doe IX v. MySpace, Doe II v. MySpace, Dart v. Craigslist, Shiamili v. Real Estate Group, Nemet v. ConsumerAffairs

Roommates.com Cited for Plaintiff (2 cases): NPS v. StubHub, FTC v. Accusearch

In my search for information about the world, what matters to me and what is good, I go no farther than an application that I wrote called Filome. I've talk about it quite a bit here at Tech Startups.

It's an app that is about 85% of the way there and is relegated being updated when I have spare time. Which in the last 8 months hasn't been very often. One of the things it is brilliant at though is helping me find what is relevant to me and what I want to write about.

About 30 minutes ago it was tablet computers. But instead of writing about them and adding to the noise, I thought that I would share my filter a tablet computer group from Filome.

First there is the feed for those that want to get right to it - http://www.filome.com/group/ksmith/1/tablet%20computers.rss

Below are the latest 25 posts regarding tablet computing. All linking to the original posts. Find one and follow it down the rabbit hole. Enjoy! (Remember: If you want to stay updated subscribe to the feed link above)

1. You Can Take It With You: Future Trends in Media
2. Who needs tablet computers anyway?
3. Can Android Tablets Find a Market?
4. Why I Hate Ereaders, And Doubt They'll Ever Hit the Mainstream [Ebooks]
5. Why Google Should Make a Tablet [Opinion]
6. Apple to Launch iTunes on the Web
7. Analyst noise: Apple tablet in March for $1k, publishers on-board, Verizon iPhone coming too
8. Apple Tablet Release Date Gets Narrowed Down, Prices Get Estimated
9. Which Companies Will Win The Battle For The E-Book Consumer?
10. A New, Now Netbook You Can Actually Buy: PsiXpda
11. Analysts Predict 1 Billion+ Mobile Web Users by 2010
12. Time Inc. shows off magazine tablet demo, plans future anger about 70/30 profit split
13. Apple tablet rumored to be 'shockingly' inexpensive
14. Apple Registers TabletMac Trademark After Dueling Axiotron MacBook Modders [AppleTablet]
15. Using the Apple LP and Extras format for learning?
16. NVIDIA Tegra tablet prototype hands-on
17. What If Steve Jobs Hadn't Returned To Apple In 1997?
18. Hearst, Time, Conde iTunes For Magazines Only A Few Weeks Away
19. DigiTimes Claims Apple Tablet Delayed for OLED Upgrade [Rumor]
20. Apple tablet(s) in 2H 2010 with OLED screen and tailored content in tow?
21. Cond Nast Gets Wired Ready For Apple Tablet (In Case There Is One)
22. Adobe Air hits 2.0 this is powerful stuff
23. The death of the URL
24. Apple tablet speculation: high-end graphics, several models
25. Bookmark Away: Instapaper Comes Up With A New Way To Work With The Kindle

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• PastryKit: An iPhone Webdev Library from Apple (ajaxian.com)

Tablets, tablets, tablets The Next Devices is a post from: TechStartups.com

King Pharmaceuticals, Inc., v ZymoGenetics, Inc., 2009 WL 4931238 (E.D. Tenn. Dec. 10, 2009). Seattle Trademark Lawyer has some background.

This case involves the cutthroat (sorry) world of blood clotting drugs. King Pharmaceuticals sells bovine (cow) thrombin, a clotting agent. ZymoGenetics sells thrombin made from hamster ovaries and snake venom. ZymoGenetics' version has been making inroads on the thrombin market, and King isn't too pleased about that. King claims that its dropping market share is due to several bad acts on ZymoGenetics's part, including ZymoGenetics' AdWords campaign that included the King trademark "Thrombin-JM" as a keyword.

Blaming illegitimate AdWords for King's dropping market share seemed particularly implausible for two reasons. First, the product is purely B2B and has no consumer-facing side. It's used for post-surgery recuperation, so doctors/hospitals are the target customers--and for professional and liability reasons, they are pretty careful about what they prescribe to patients. So if the AdWords ads have helped facilitate doctor switching, it's more likely due to doctors learning of a new drug that doesn't have some of cow thrombin's negative side effects than any marketplace mistake over brands or other "unfair" diversion.

Second, the AdWords ads produced a trivial number of clicks. ZymoGenetics reports that it got 84 clicks on "Thrombin-JM" (and only 803 on the generic term "thrombin"). The court doesn't expressly guffaw at King for fighting over 84 clicks, but I can hear a snicker or two in the opinion. Not surprisingly given the minuscule volume of clicks, ZymoGenetics voluntarily dropped the competitive keyword purchase when it learned of King's lawsuit (it wasn't giving up much), and it agreed not to buy the keyword again. King pressed for a preliminary injunction to forcibly hold ZymoGenetics to its word, which many courts will issue in these situations, but this court decides that ZymoGenetics' promise is good enough and denied the preliminary injunction.

Now, King was going to court to redress ZymoGenetics' perceived transgressions no matter what, so it would be a little unfair to beat up on them for litigating over 84 clicks. However, this case is yet another example of how competitive AdWord lawsuits often are ridiculous overkill given the economic value at issue. (Related examples are 1-800 JR Cigar, which involved $345 of revenue, and Storus, which involved 1,374 clicks over an 11 month period). It's a good reminder to trademark owners to be smart with their litigation dollars!

To learn how to design and deliver better presentations, we need to pull from many educational sources. Books are good, but which ones? I don't usually suggest PowerPoint or Keynote "how-to" books, but instead recommend reading books from various design and communication fields to stretch your knowledge and perspective. Slide:ology by Nancy Duarte is great, of course, and there are many others that I've suggested over the years. Below are ten additional books I can highly recommend; three of them I have recommended before.

PRESENTATIONS & SPEAKING

The Presentation Secrets of Steve Jobs: How to Be Insanely Great in Front of Any Audience by Carmine Gallo.
Since I began this website in 2005, I've talked about the presentation style of Steve Jobs ad nauseam (for example: here, here, here, here, here, and many more). Carmine Gallo does a great job of summarizing all the many good things that Jobs does in his famous Apple keynotes, and he provides concrete takeaways. The point is not to present like Steve Jobs each case after all is very different but there are many lessons to be learned by careful observation of the Steve Jobs keynote. A very nice read that just may change the way you present. (Amazon link.)

Confessions of a Public Speaker by Scott Berkun.
I met Scott Berkun in Sweden this year and spent some time with him in Denmark discussing public speaking and what it takes to be an effective presenter. Scott, a former Microsoft manager, is a great guy and he's a very experienced presenter. If you do a lot of public speaking, you'll get a kick out of Scott's stories. And if you are thinking about starting a speaking career, Scott provides a lot of interesting tips and lessons. Teachers who speak in front of people every day may also find the book useful. (Amazon link.)


PHOTOGRAPHY

Scott Kelby's Digital Photography Boxed Set (Volumes 1, 2, and 3) by Scott Kelby.
I have almost all of Scott Kelby's photography books. He writes in a very informal, engaging style and there's a reason he's the #1 computer book author for five straight years: his books help people learn. I love Scott's work so much, I asked him to contribute tips for the Presentation Zen Design book (he offers 10 tips for taking better photos). These Digital Photography books are colorful, instructive, and aimed at the novice photographer who wants to get a lot better. I found them very useful (especially for the price). You can buy the books individually or as a set. (Amazon link.)

VISUALIZATION OF DATA

Now You See It: Simple Visualization Techniques for Quantitative Analysis by Stephen Few.
I have all of Stephen Few's books he's the Zen Master of presenting data as far as I am concerned. I saw Stephen present in Seattle this summer at the Tableau Conference and we had a chance to spend some time together before the event. He's a fantastic presenter on stage and he's a very down-to-earth guy who knows how to visualize data and how to help others get better at displaying quantitative information more clearly. This is a big hardcover book with some really good lessons. (Amazon link.)

GRAPHIC DESIGN

Visual Language for Designers: Principles for Creating Graphics that People Understand by Connie Malamed.
This is a really large book that begins with a section on how we process visual information and then goes on to introduce principles and techniques that help you understand how to organize for perception, how to direct the eye, clarify complexity, and simplify visuals. This hardcover book has many excellent examples. Beginners will benefit tremendously from the book, but I think many designers will also find the book a good addition to their library. Connie Malamed's website. (Amazon link.)

Before & After: How to Design Cool Stuff by John McWade.
John McWade known to many as "the world's first desktop publisher" is the founder and creative director of Before & After and the author of numerous books on graphic design (this is his latest). John was kind enough to contribute his tips for making better slides for the PZD book. I've been a big fan of John's for a long time and this latest book is his best one yet. Loads of simple, practical, visual lessons. Check out the Before & After website. (Amazon link.)

Design Elements: A Graphic Style Manual by Timothy Samara.
This is a really good book that I have mentioned before which both beginners and experienced designers may enjoy. The book does an excellent job at covering the fundamentals but also goes into some depth with many good examples. I like how Samara starts out the book by discussing just what graphic design is and what designers do. I especially like his "20 Basic Rules of Good Design." (Amazon link.)

A Field Guide to Digital Color by Maureen Stone.
There are many books on color, but this one focuses on digital color and provides a great deal of depth. This is not really a book for novices, but it's an excellent book for designers of all types. I met Maureen Stone in Seattle this summer and saw one of her presentations. She's an excellent presenter and teacher. Maureen spent twenty years working at Xerox PARC on color printing, digital color, interactive computer graphics, illustration and design systems. She knows her stuff. (She was also kind enough to contribute a nice callout section for the color chapter in the PZD book.) This is an excellent book. (Amazon link.)

Don't Make Me Think: A Common Sense Approach to Web Usability (2nd Edition) by Steve Krug.
You might think a book on web usability design has little to do with presentations, but the lessons in this simple book have applications beyond the web. If you have even just a small interest in how to design websites that minimizes cognitive strain and make information clearer, you may find this book helpful. This classic is only about 200 pages and is a quick read with many good lessons that will make you a better judge of what works and what doesn't in a website. Steve Krug's website. (Amazon link.)

CREATIVITY

If You Want to Write: A Book about Art, Independence and Spirit by Breda Ueland.
I have mentioned this book before, but it's a must-read. This is not only a book about writing. In fact, it's much more a book about the imagination, spirit, and creativity. We need more art and creativity in our personal and professional lives; this book gets you thinking. A lot of people, including myself, have found this simple book to be quite inspirational. It was first published in 1938 and it's still a very relevant book today. (Amazon link.)

The week before Thanksgiving, I attended an unusual symposium sponsored by the University of Denver Law Review entitled Cyber Civil Rights: New Challenges for Civil Rights and Civil Liberties in our Networked Age. The symposium covered standard Cyberlaw topics, but the raison d'tre was University of Maryland law professor Danielle Citron's two recent articles on online harassment of women: "Law's Expressive Value in Combating Cyber Gender Harassment" (Michigan Law Review) and "Cyber Civil Rights" (Boston University Law Review). It is unusual for a law school to celebrate another school's professor and her research, especially when the professor is fairly junior. Nevertheless, Danielle's participation brought together academics from both the Cyberlaw and civil rights communities, which provided a rare and interesting mix of folks..

First Panel

Danielle Citron started off by recapping her two papers. Online participation, such as blogging, is essential to professional standing, and employers are reviewing online profiles of prospective employees as part of their hiring considerations. However, women are being targeted for abuse online. These attacks are harming women by changing their online and offline activities, reducing their job opportunities, and causing women to change their gender representations online. Further, folks are trivializing these problems. Women are underreporting the attacks, and law enforcement only intervenes when there are offline harms. New laws can serve an expressive function to communicate that online attacks against women are socially unacceptable. The new laws can validate women's feelings that they have been harmed and encourage law enforcement to pursue more cases.

Commenting on the papers, Robert Kaczorowski of Fordham Law (and Danielle's stepdad) made an extended analogy between the Ku Klux Klan and cybermobs.

Wendy Seltzer asked if we could deemphasize the effect of words rather than prohibit them. Danielle responded that we don't know how seriously to take any particular threat.

An audience member asked if is there a difference between mobs and individual actors who are just taking advantage of being anonymous. Danielle answered that groups can become more extreme online. I think this point deserves more exploration: a series of uncoordinated individual decisions to pile on to an attack can look like a coordinated attack to the victim. This is part of why I thought the KKK references were puzzlingKKK activities are clearly coordinated, while online attacks against women can succeed without any coordination or ongoing connection between the attackers.

Paul Ohm argued that that legal solutions are better for cyber civil rights problems than technological solutions. Paul discussed what he labeled Felten's Third Law. (He doesn't know of two earlier laws named for Ed Felten; he just assumes they exist given Ed's impressive and influential oeuvre). As articulated by Paul, Felten's Third Law is that in Cyberlaw conflicts, lawyers love technical solutions and technologists love legal solutions. In other words, we love the solution we don't know because we assume it has to be better than the one we do. As both a law professor and technologist, Paul picks law over technology for these problems.

Paul categorically rejects any technical solution that would create a fully identified Internet. For example, we should not mandate server log retention because we know the logs will be co-opted to regulate other forms of unwanted content, not just online harassment.

Wendy Seltzer discussed the unintended consequences of legal intervention. For example, mandatory Internet filtering in school libraries hasn't stopped kids from bypassing the filters, but it has facilitated a marketplace for improving filtering technologies that has benefited repressive regimes. Another example: anti-circumvention technology fails to restrict copying but has reduced innovation around DRMed content. Wendy also noted how norms can help curb abuses. For example, while there are online cesspools, she praised Wikipedia's evolving guidelines for living people's biographies.

In response, Danielle admitted that her solutions need to be more surgical. She said she might consider moving from a notice-and-takedown model to a notice-and-preserve model for intermediaries.

Second Panel

This panel was composed of three women academics from the civil rights community, so it was a noticeable shift from the typical Cyberlaw academic discussion.

Mary Anne Franks is a University of Chicago Bigelow Fellow and soon-to-be full-time law professor. She expresses our collective disappointment that cyberspace isn't a utopia that allows people to escape offline discrimination and harassment. She laments that women can lose control of their identities online, such as when someone creates a fake online profile in their names.

She then addressed how cyberspace is unique/special/different with respect to gender harassment. Many commentators try to duck cyberspace exceptionalism, so it was refreshing to see her tackle the issue squarely. Existing offline discrimination/harassment laws assume interactions between repeat players at work and school; online harassment can be divorced totally from any existing social networks. However, because the online activities still harm targeted individuals at work and school, we should treat the harms the same. Offline, there are switching costs to changing jobs or school; online, search engines' consolidation of results for search on a person's name creates a different type of switching cost. In terms of supervisory power, she thinks web operators have analogous control to employers or school administrators. Thus, when web operators receive notice of online harassment, they should have a duty to do something about it. Offline, employers can develop a variety of responses and policies to combat workplace harassment. Web operators should have similar latitude; for example, they can delete offending posts or suspend/ban accounts.

Helen Norton, a University of Colorado law professor, did not share Danielle's optimism (expressed in her first article) that existing discrimination laws can curb online harassment. Instead, Helen thinks a new civil rights statute is needed, but she might limit its remedies to exclude money damages. Helen is pessimistic that there will be regulation any time soon, noting that it can take years to enact civil rights legislation. Helen would also like to see more precise definitions of the exact harms that women are experiencing only online.

Nancy Ehrenreich, a Denver University law professor, began her talk by saying that we should not overstate the Internet's benefits. She then clarified that we should not assume that disadvantaged folks can overcome barriers online. For example, we impose cultural categories on people in every interaction, so even if people try to mask their identity online, they can't really escape. She wondered why we aren't talking about an anti-discrimination law for the web. Her concern is that discrimination denies individuals access to the Internet.

In Q&A, Paul Ohm observed that civil rights scholars often invoke free speech as the countervailing concern to their desired regulations, but Cyberlaw scholars are often more interested in other generative effects of the Internet, such as new business models, new labor models and new modes of production.

Panel 3

James Grimmelmann (see his slides) started with the Skanks in NYC case. In that case, the defendant criticized someone else in her social network on a blog, calling the plaintiff (among other unflattering things) a skank. The plaintiff sued to obtain the blogger's identity. After a successful unmasking, the plaintiff dropped the lawsuit, having successfully publicly shamed the blogger.

James hypothesized that this unmasking and shaming was an appropriate remedythe blogger got shamed (like an eye for an eye), and unmasking is a better outcome than other legal remedies like damage suits. James then posited a thought exercise that provided plaintiffs with an expedited unmasking procedure if they drop any damages claim. This would have a number of benefits. Unmasking curbs online harassment is especially effective at busting online mobs. Also, an unmasking remedy avoids messy debates over the First Amendment's scope, and it may be more desirable than trying to hold online providers liable.

Having advanced his own strawman, James then cut it down. In some cases, defamation remedies may be more desirable, and plaintiffs may not know that until they learn the putative wrongdoer's identity. In other cases, plaintiffs who just want unmasking would appreciate a lower legal hurdle. Also, we provide legal protection for anonymity for good reasons.

James' lessons from the thought exercise: we should consider ways to decouple an unmasking remedy from litigation. At the same time, we need to protect defendants from pretextual unmasking; in some cases, retaliation is a big concern, and we should incorporate this concern into the unmasking decision.

From Chris Wolf's talk (see his full remarks), the most interesting thing I learned is that 18 states have laws banning wearing masks in public, enacted to suppress KKK activities. This was the second speaker's KKK reference of the day, and it made me wonder if we were experiencing some variation of Godwin's Law.

Panel 4

Viva Moffat observed that secondary liability issues generate the most heat in online harassment discussions. She expressed concern that imposing legal duties on third parties may not help law's norm-shaping effect, and it's not appropriate to impose liability just because the provider has deeper pockets or the direct actor can't be found. She also suggested that imposing liability on third parties creates a greater risk of collateral damage than direct liability. [Note: I would like to know more about this last assertion. I suspect we cannot make a utilitarian calculation a priori]. As a result, she favors focusing more efforts on sharpening direct liability.

Ed Felten talked about identifying and anonymizing online activity. He explained the usual sequence of events in chasing bad online content:

log file => IP address => identity => justice

But the IP address => identity step breaks down when users use an anonymizing proxy or the user's network uses network address translation (used by home wireless routers or in coffee shops) and all connected devices' requests share a single IP address. He said that a majority of Internet connections use NAT.

Because IP address tracebacks can dead-end at the intermediary, an IP address can reveal too little information. However, even when users aren't investigatory targets, IP addresses can reveal too much information, such as geolocation. This paradoxIP addresses simultaneously reveal both too much and too little informationreflects that the IP address system was built for routing, not identification. So could we design a better authenticating technology?

He then conducted a semi-realistic thought experiment of a new technological tag that could be used instead of IP addresses. This tag could have the following attributes:

* can be placed by any intermediary
* conveys no information about the sender unless unwrapped by the intermediary (presumably for good legal cause)
* unwrapping the tag yields the best identity information the intermediary has
* the tag's use is voluntary as a technical matter
* the tag is removable as a technical matter

I then batted clean-up. A summary of my remarks:

Today's conversation has revisited long-standing Cyberlaw issues, such as:

* anonymity v. accountability, and who should be responsible for online content and actions
* cyberspace as a physical place. See, e.g., Noah v. AOL (an online discrimination case), National Federation of the Blind v. Target (also an online discrimination case) and Estavillo v. Sony
* cyberspace exceptionalism and cyberspace utopianism (on the latter point, see my article on search engine utopianism)
* when is the optimal time to regulate rapidly evolving technology? Early, when the technology is still in its infancy, or later, when market forces and new technological evolutions may have cured the early problems?

Danielle's articles convinced me that women are experiencing serious harms online that menincluding mecould easily trivialize. Danielle's articles also convinced me that online harassment has strong parallels to the 1970s legal evolution of workplace harassment doctrines, where a big part of the battle was to get people to take the harms seriously.

While I find a lot of descriptive value in Danielle's work, the normative implications are not as clear. As usual with attempts to regulate rapidly evolving technology, there are many important but overwhelmingly hard definitional challenges, such as who is an intermediary, what are online mobs and what constitutes online harassment. For example, I do not think the Skanks in NYC incident is an online harassment case or an attack, but James Grimmelmann's talk assumed those characterizations.

While we can debate what should be the right level of regulatory intervention, we should not overlook that Congress already enacted a law squarely governing intermediary liability for online harassment: 47 USC 230. The angst that prompted this conferencebad behavior onlineis the logical consequences of 230's broad immunity. The statute enables websites to adopt policies that they will not police user content or retain server logs of user activity. These choices aren't a surprise or a per se abuse of the immunity; instead, they are the unavoidable implications of Congress' action.

We might question Congress' wisdom in adopting 230, but we should not diminish its potential importance to the Internet as we know it. [In Q&A, Chris Wolf asked about the comparative experience in countries that don't have such broad immunity. In those countries, we know that websites take down user content much more freely, and I believe that the most interesting UGC innovations are all taking place here in the US, not countries with more restrictive UGC liability.] I can, at most, only prove correlation and not causation, but I believe 230 is one of the main causal reasons why the Internet has succeeded so well.

When I speak around the country about 230, I often encounter folks who generally accept 230's immunity scope but want just one new exception, i.e., their pet topic. If everyone got their just one exception, the law would be eviscerated. (I said it would be Swiss-cheesed to death; maybe I should have said it would be overcome by a thousand duck bites). I'm not rejecting new exceptions categorically (they should be each considered on their own merits), but in aggregate 230's immunization benefits are actually quite precarious. I believe 230 works precisely because of its strength and simplicity, so adding more exceptions could significantly reduce its efficacy.

I concluded my remarks by observing that online harassment is a subspecies of bullying and incivil behavior in our society. While we can and should work to curb online harassment, I am more interested in addressing bullying and incivility in all its forms, wherever it takes place.

In this regard, I have been impressed by how my son's school is proactively addressing bullying. See more about this effort, called Project Cornerstone. The school is teaching kids not to bully or to tolerate being bullied, and the project gives bullied kids tools to go on the offensive against bullies. There's no guarantee that anti-bullying programs will work in the short or long run, but I remain hopeful that online harassment today partially reflects that many current Internet users never got any anti-bullying education. Perhaps, then, online harassment issues will naturally abate (without any regulatory intervention) as new generation of Internet users, better educated about bullying, come onto the Internet.

Following my remarks, we had more Q&A.

Paul Ohm Q: Some cyber folks argue against secondary liability because they believe that a victim can pursue a direct action, but Ed's talk suggests that user anonymity will continue to be possible.

Mary Anne Franks: civil rights isn't about individual claims because victims have to bear too high a burden to pursue claims. Instead, civil rights are about changing large-scale social norms. The goal is to achieve anti-discrimination by any means necessary. Thus, civil rights scholars have already discussed and concluded that it's appropriate to impose liability on intermediaries like employers and schools.

Danielle: intermediaries are the lowest cost avoiders.

James Grimmelmann: no, the harassers are the lowest cost avoiders. Civil rights folks would get more support from the Cyberlaw crowd if they focused their regulatory desires towards intermediaries who are in active concert with the bad actors.

Danielle's Wrap-Up

We all agree that:

* education can make a big difference
* online communities need to self-police
* there are numerous limits to using the law as a solution, including that lawsuits don't make sense and 230's immunity.

We don't agree on what to do next. There are First Amendment limits, and technology doesn't offer any panaceas.

The Florida Judicial Ethics Advisory Committee issued an (advisory) opinion [link] which included the following question and answer:

[May] a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

ANSWER: No.

[h/t WSJ Law Blog] I thought this conclusion was off base, even after you discount for the fact that Florida has some wacky rules governing advertising by lawyers. My question to the advisory committee is whether this means that it's now inappropriate for a judge to have lunch with a lawyer friend, or engage in email banter with lawyer friends? Is attending the same party now off limits? I assume these actions would still be viewed as appropriate, given that lawyers and judges interact socially (and publicly) all the time. What's so special about Facebook friendship? In the end, the advisory committee should heed the words of one district court

[T]he Court assigns no significance to the Facebook "friends" reference. Facebook reportedly has more than 200 million active users, and the average user has 120 "friends" on the site. . . . Indeed, "friendships" on Facebook may be as fleeting as the flick of a delete button.

Quigley Corp. v. Karkus, No. 09-1725, 2009 U.S. Dist. LEXIS 41296, at *16, n.3 (E.D. Pa. May 19, 2009) (mentioned here and here). With this said, judges and lawyers may want to be careful (driven by common sense), and in any event, minimize their Facebook friending activity while a case is ongoing. [See Techdirt's discussion of a judge-lawyer Facebook friending snafu here.]

[Added: see additional coverage in Silicon Alley's Business Insider: "Florida Judges May not Friend Local Lawyers on Facebook".]

In a bizarre case involving teen YouTube sensation Justin Bieber and a riotous crowd of his fans, a record exec from Island Def Jam Records was arrested Friday for, among other things, failing to Tweet when told to by authorities.

When the Beiber event at Roosevelt Field mall became unruly (video below), police appealed to the artist's label to send a Tweet telling the crowd to leave. When that allegedly didn't happen, police arrested James Roppo, a senior vice president of Island Def Jam Records, for endangering the welfare of a minor and obstructing government administration.

An Associated Press feed reads:

Police arrested a vice president from Bieber's record label, Island Def Jam Records, saying he wasn't cooperating with attempts to disperse the crowd. James Roppo, 44, of Hoboken, N.J., was charged with a series of misdemeanours, including endangering the welfare of children and obstructing governmental administration.

We asked for his help in getting the crowd to go away by sending out a Twitter message, said Nassau County Police Det. Lt. Kevin Smith. By not cooperating with us, we feel he put lives in danger and the public at risk.

The report doesn't put the police in a good light, especially considering that Bieber's feed does contain Tweets asking the crowd to leave.

But all may not be as it seems: contrary to the AP reports, the NY Daily News implies that the arrest was for sending out updates that Bieber was signing autographs even after the crowd had dispersed.

Roppo is pleading not guilty to the charges.

[via MediaMemo]

Tags: twitter