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was questionable even at its time, but it's bizarre to see the court reach into history for this obscure, archaic, unpublished and geographically distant (it was a TX precedent being cited in a CT court) district court precedent.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.

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)].

The matter was remanded by the Federal Circuit to the District Court, and, as we blogged in December, several additional pre-trial rulings again favored the JMRI project, including a ruling on the eligibility of software code that is distributed for free for copyright infringement damages. The settlement was reached with a trial date on the not-too-distant horizon.

With the settlement, the Federal Circuit and District Court rulings will not be subject to direct appeal. Given the rarity of litigation over open source software, it seems unlikely that the reasoning of these two rulings will be questioned judicially in any other open source litigation for some time.

The settlement agreement is here, and the permanent injunction is here.

The explanation of the settlement on the JMRI site indicates that the proprietary software company has agreed, among other things, not to misuse the JMRI software at issue, or to register any domain names incorporating certain terms attributable to the JMRI project, and will make a payment of $100,000. Future disputes will be settled by mediation or arbitration.

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.

With each new milestone in technological evolution we've seen a company emerge as the clear leader. In the current landscape, we observe this happening in several key parts of the marketplace including networking, search and operating systems.

Cloud computing is a new disruptive force that makes us ask the question whether we'll see the future of the cloud dominated by a single company. In this multi-part series, we'll take a look at a handful companies and envision what the world might look like, if, in fact, they win it all. We'll also analyze what it will take for a new company to rise up and claim the leadership role in this chapter of computing.

Sponsor

Dominance Happens: A Bit of Recent History

There has been a love/hate relationship with companies that dominate markets. On one hand, it's us consumers that make it happen. But when they become giants we cheer as governement regulators and competitors knock them down.

Microsoft has faced this issue perhaps more than any company in the past few decades. When the browser battles were in full swing in the late 1990s, Microsoft was taken to court by the Department of Justice for antitrust violations.

In this note released in 2000 - Technology, Market Changes, and Antitrust Enforcement -Microsoft evaluated the idea of whether it was consistent with public welfare for a company to "win" a technology market, and what it means to have a network effect in technology.

Microsoft makes the point that no technology company will hold a dominant position for long if it doesn't innovate and expand the market definition. Additionally, if a company doesn't find the right balance of trust and pricing between its customers new technologies will find a way into the market and cause customers to defect.

Point: A Dominant Vendor Will Emerge in the Cloud

Taking these factors into consideration, we believe there are several points that can support the argument that a dominant player in cloud computing in the future. Due to the nature of market forces a single vendor will emerge as the clear leader in offering cloud solutions.

• First mover advantage: We're already seeing amazing things happen at first-movers like Amazon that are defining product and pricing. This gives them an advantage in fueling further growth and by learning and iterating the solutions in the market. Being first in an infrastructure-driven business will help them reach scale that others just can not reach easily - and potentially price it where others can't match.
• Vendor lock: Once you get started with an infrastructure provider it becomes interwoven into business operations. By the current nature of the cloud (e.g. little standards, a lot of innovation) being first with leading solutions adds more momentum to the first-mover that wins strategic customers.
• Strategic synergies: When we look at the combination of cloud computing and collaboration, we see a natural fit in services that meet more needs and take more market share. It may just work out that bundling works also in the cloud and creates the network effect that Microsoft is famous for. Cisco is also partnering across the landscape, with a focus on preparing the network for the cloud. By making it easier to manage your cloud with Cisco gear, it will provide IT leaders a reason to expand their relationships today, and stay tomorrow.
• Acquisitions and Partnerships: Companies that buy their way into the market will be a big factor in putting momentum behind their offerings. Companies to watch: VMware, Cisco, Oracle. These companies are already showing that the race is on to win the cloud through aggregation of capabilities. Cisco has a blog dedicated to Cloud Computing, Oracle is going on tour sharing its ambitions for the cloud

Counterpoint: A Dominant Company Will Not Emerge in the Cloud

Perhaps no single organization will have the ability to create a dominant foundation in cloud computing. Instead, we'll see many types of solutions as equal peers in the market.

In a way, this runs against the grain of existing technology landscape and our history with successful innovations. Maybe that is why we love the idea of the cloud itself?

• It's too big to own: One big reason to doubt a single dominant force in the cloud is that it feels like owning the Internet. Even Cisco with its strengths can't make such a claim. Perhaps the cloud is the perfect market, where the barriers of entry are low enough that continual evolution will occur.
• It's a movement, not a layer: Another argument against the cloud having a dominant player is its fuzzy definition. There are many parts and pieces to it, and it's not clear today what it would mean to "win" the cloud computing market.
• Portability will keep vendors in check: If customers demand solutions where they can move from vendor to vendor freely, it will impact the landscape. Companies with cloud solutions in the marketplace could be required by these customers to remove barriers to moving data and services between different entities. Additionally, standards and best practices may emerge that allow companies and individuals to move freely between providers. In this world, it will become a fluid market that prevents vendor lock and promotes pricing and trust as brand differentiators.

A Glimpse at Potential Futures

We've compiled a list of companies worth reviewing as candidates as possible dominant players in cloud computing. We'll be looking at their brand and the available assets that could be leveraged to achieve this position. Finally, we'll take a fresh look at what it might feel like if they succeed and shape the brave new world of cloud computing.

The list of candidates we're analyzing includes: Google, Microsoft, Apple, VMware, IBM, HP, Cisco, Amazon, Salesforce, Facebook, and our favorite, Insert new startup to our list by adding a comment below.

Please let us know what you hopes and fears are with the cloud computing marketplace. Any companies we should we add to our list (or remove)? What's your take: Is there one company today that is best positioned to win the cloud?

Photo credit: reddodo & savingfutures

On a conference call with analysts, John Killian, Verizon's finance chief, called the Droid extremely well-received and said that both the Motorola Droid, the HTC Droid Eris and the BlackBerry Storm 2, all of which were introduced during the quarter, were strong sellers.

The telecommunications provider declined to say whether its advertising, which pokes at AT&T's network, made inroads on the rival carrier's subscriber base. Mr. Killian said that porting from other carriers improved overall and that the company was pleased with its performance.

Verizon didn't give any hints as to whether it expects to carry Apple's iPhone something it has indicated interest in even as Droid ads occasionally teased the device's image.

But following a question by Oppenheimer's Tim Horan, who said, The iPhone and high-end smart phones have been taking down networks all over the place and impacting margins how do you avoid that from happening to you? Verizon's chief executive, Ivan Seidenberg, said the company is confident in its infrastructure.

To the extent that usage picks up, I think our guys have done a very good job in making sure that we stay in front of that issue, Mr. Seidenberg said. And I know most investors are worried about that. But over the course of the last 10 years, this is what we pride ourselves on doing. So I'm comfortable that we are in good shape on this.

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.

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

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!

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".]

Electronic Frontier Foundation (EFF), a non-profit group dedicated to defending the freedoms of individuals in the digital age, thinks the U.S. government may be violating the privacy of individuals who post content to Facebook and Twitter.

The organization has filed suit in San Francisco's U.S. District Court, Northern District, against the Department of Defense, the CIA, the Department of Homeland Security, the Department of Justice, the Department of the Treasury and the Office of the Director of National Intelligence in order to get information concerning the government's use of social-networking websites for investigative and data gathering purposes to help inform Congress and the public about the effect of such uses and purposes on citizens' privacy rights and associated legal protections.

According to the complaint, EFF is aware that the government is using content posted to social media sites in their investigations. After their initial requests for more information and documentation on the specific policies around these activities went unanswered, the EFF began seeking a court order to force the government's hand in full disclosure.

One of the incidents cited in the complaint was the widely publicized FBI search of an activist's home, which came after the man in question used radio scanners to post the movements of police on Twitter during the G-20 Summit.

From the complaint:

Although the Federal Government clearly uses social-networking websites to collect information, often for laudable reasons, it has not clarified the scope of its use of social-networking websites or disclosed what restrictions and oversight is in place to prevent abuse.

While it should come as no surprise that the government would be monitoring social media sites for information (earlier in the year the White House sought to hire a social media archivist, while the CIA invested in a social media monitoring firm), it does seem that the EFF has a valid complaint, and that the public should know the scope of the government's monitoring activities.

The full 8-page complaint is embedded below. We're curious to see how this all plays out, so we'll keep you posted on new developments.

[via Bloomberg]

Tags: EFF, lawsuit, social media monitoring, trending, Trending Stories, US Government

Dart v. Craigslist, Inc., 09 C 1385 (N.D. Ill. Oct. 20, 2009)

Yesterday, Judge John F. Grady of the Northern District of Illinois federal court dismissed Cook County Sheriff Dart's lawsuit against Craigslist for user-posted advertisements in Craigslist's erotic services/adult services category on 47 USC 230 grounds. This is hardly surprising, as I wrote in March that "this lawsuit is almost certainly preempted by 47 USC 230." However, it was nice to see such a clean and decisive opinion--and a little ironic, as our law enforcement officials, who are supposed to enforce the laws rather than bypass them, got schooled in the limits of their legal authority.

With respect to the 230 analysis, the court characterizes Sheriff Dart's claims as alleging that Craigslist negligently published the user-supplied ads. The court says that the Seventh Circuit implicitly said that 230 preempted such claims in the 2008 CLC v. Craigslist case. To get around this, Sheriff Dart tried a Roommates.com styled attack, arguing that Craigslist induced the users' advertisements by creating an erotic/adult services category and letting users do keyword searches. These arguments go nowhere (making this yet another case where Roommates.com is cited for the defense). An adult services category can legitimately contain postings for legal services, and the keyword search functionality was agnostic about the illegality of the search and therefore a "neutral tool" (whatever that meant from Roommates.com).

Two other interesting doctrinal notes from the opinion:

* In FN 6, the court reiterates that 230 preempts a civil action to enforce a federal criminal statute. See Doe v. Bates.

* the court rejects arguments that Craigslist "arranges" meetings for prostitution, "directs" people to prostitution or "provides" contact info for prostitutes because, in all three cases, the user-supplied ad (if anything) satisfies those verbs. Similarly, Craigslist's role in "facilitating," "assisting" or "aiding and abetting" these user activities is governed by 230. I believe this is consistent with my view that 230 should preempt any claim that one party "endorses" third party online content.

Given some ambiguous language floating in Seventh Circuit 230 jurisprudence from the CLC v. Craigslist case and the old Doe v. GTE case, it wouldn't surprise me if Sheriff Dart tried an appeal. However, this opinion was solidly reasoned and completely consistent with that jurisprudence, so I wouldn't expect a different result on appeal.

Ownership matters, because otherwise Blizzard and other software vendors can wipe away important consumer rights with legalese contained in license agreements. For example, in Section 117 of the Copyright Act, Congress gave owners of computer software the right to use their legitimately purchased software without having to rely on permissions in license agreements. Blizzard and other software vendors are arguing that customers are not owners, but mere licensees, in an effort to eliminate our rights under Section 117.

This "owner-versus-licensee" trick is not just an end-run on Section 117, it's inconsistent with the law in other areas--the courts and Congress have long rejected efforts by copyright and patent owners to impose all kinds of post-sale use restrictions on books, patented machines, and compact discs. Why should software be different? Just as with those other copyrighted works, if you bought the disc that the software comes on outright (as opposed to leasing it, for example), you should get the privileges of an owner (i.e., the right to resell and the right to make copies and adaptations as necessary to use software).

In short, Blizzard's legal arguments here are all about using copyright law to take away consumers' rights in the software they purchased.

eBay may have sold the majority of Skype earlier this month, but that may not matter if the two original founders of Skype get their way. They have just sued eBay and Skype's new investors for damages that they estimate total a rate of more than $75 million daily.

The case pits eBay against Joltid, which is owned by Skype's founders Janus Friis and Niklas Zennstrom. The issue is around a core piece of peer-to-peer technology utilized in Skype. Joltid seems to have the rights to it and has been seeking to yank the code since at least March. Now, they have filed an injunction and are seeking damages in U.S. District Court.

The lawsuit cites eBay, Silver Lake Partners, and its investment partners, who combined own the popular peer-to-peer calling service. The potential damages cited by the lawsuit are stunning, though. They claim that eBay's altering and misuse of their code could total to more than $75 million per day in damages, as each download of Skype is considered by them to be copyright infringement. If you do the math, that's over $27 billion per year. How they came up with that extraordinary number we cannot even begin to comprehend.

Apparently this is not all that unusual for the Skype founders, according to The New York Times, who reports that they've developed a reputation for litigation, stemming from three lawsuits they filed against an investment banker who represented them in the original Skype sale to eBay.

Tags: ebay, Skype

The question of what effect an employee's disloyalty has on authorization to access an employer's computer has arisen in numerous cases in which employers have added civil claims under the CFAA in actions brought against employees alleged to have misappropriated of trade secrets. A typical scenario in which such a claim would be made is where, before departing for a new job, the employee is alleged to have copied or transmitted an employer's computer files for the benefit of a new employer.

Often, what is at stake in such cases is the employer's ability to maintain an action in federal court. A dispute over misappropriation of trade secrets is likely to involve only state law issues, and unless there is diversity of the parties, there is no basis for jurisdiction in a federal court. But, of course, federal courts have jurisdiction over a CFAA claim, and the trade secret misappropriation claims are then swept into federal court along with the CFAA claim as pendent state law claims.

The Seventh Circuit opinion in International Airport Centers v. Citrin is the ruling that is cited by employers seeking to press CFAA claims in such cases. In that case the circuit, in an opinion written by Judge Posner, ruled that under common law agency principles, an employee who breaches the duty of loyalty to an employer thereby becomes unauthorized to access the employer's computer, at least for the purpose of furthering an act of disloyalty to the employer. In LVRC Holdings, LLC v Brekka, the Ninth Circuit ruled to the contrary, finding that under the plain meaning of the language of the CFAA, acts of disloyalty on the part of an employee do not render the employee's access to the employer's computer unauthorized within the meaning of the statute.

In LVRC, the Ninth Circuit panel concluded that under the ordinary, contemporary, common meaning of the statutory terms, an employer gives an employee 'authorization' to access a computer when the employer gives the employee permission to use it. The court found that there is no statutory language to support the contention that authorization terminates when an employee determines to act contrary to the interest of an employer. The court looked to the term "exceeds authorized access," and concluded that the definition of that term made it clear that Congress had no intent to include in the statute any implicit, rather than explicit, limitation on the term authorization. It is an employer's act of allowing or terminating an employer's authorization to access a computer that determines whether the employee's access is authorized within the meaning of the statute, not the employee's disloyal act. The court reasoned:

Section 1030(e)(6) provides: the term exceeds authorized access' means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter. 18 U.S.C. 1030(e)(6). As this definition makes clear, an individual who is authorized to use a computer for certain purposes but goes beyond those limitations is considered by the CFAA as someone who has exceed[ed] authorized access. On the other hand, a person who uses a computer without authorization has no rights, limited or otherwise, to access the computer in question. In other words, for purposes of the CFAA, when an employer authorizes an employee to use a company computer subject to certain limitations, the employee remains authorized to use the computer even if the employee violates those limitations. It is the employer's decision to allow or to terminate an employee's authorization to access a computer that determines whether the employee is with or without authorization.

The Ninth Circuit rejected the Seventh Circuit's reasoning in International Airport Centers, LLC v. Citrin, concluding that relying on whether an employee's mental state changed from loyal employee to disloyal competitor to determine whether the statute had been violated would be problematic in the criminal law context. The statute should be interpreted consistently in civil and criminal contexts, the court reasoned. Relying on the employee's mental state with respect to disloyalty to determine whether the statute had been violated would run afoul of the proscription against interpreting criminal statutes in surprising and novel ways that impose unexpected burdens on defendants.

In this respect, the ruling echoes (but does not cite) the recent district court opinion in United States v. Drew, No. CR 08-0582-GW (C.D. Cal. Aug. 28, 2009) (the MySpace "cyberbullying" criminal prosecution). There, the court dismissed a misdemeanor charge of violating the CFAA that was predicated on a user's alleged violation of the MySpace Terms of Service, finding that it would run afoul of the void for vagueness doctrine because individuals of 'common intelligence' arguably would not be on notice that a breach of the terms of a service contract could become a crime under the CFAA.

And conversely, the Ninth Circuit ruling appears to contradict the recent opinion in United States v. Nosal, 2009 U.S. Dist. LEXIS 31423 (N.D. Cal. Apr. 13, 2009), in which the district court declined to dismiss an indictment charging a violation of 18 U.S.C. 1030(a)(4). The indictment alleged that the statute was violated when a former employee accessed an employer''s computer network to copy proprietary information for use in a competitive enterprise. The court found that the statutory element of intent to defraud in subsection 1030(a)(4) could be found in the employee''s knowing access of electronic records for uses outside their intended purpose. The court in Nosal also rejected the defendant''s argument that because subsection 1030(a)(4) had never been addressed in the criminal context the indictment should be dismissed under the rule of lenity. Citing International Airport Centers, LLC v. Citrin and a number of opinions following it, the court found that there was ample authority in civil cases construing this section to conclude that the CFAA was violated by the 'access to the employer's confidential and proprietary information to advance his own competitive enterprise.

No doubt more will be heard on this issue in the Ninth Circuit, and other courts as well. And eventually, perhaps, the U.S. Supreme Court.

This website is dedicated to an examination of the law of secondary liability for trademark infringement the idea that someone other than a direct infringer can be liable for infringing another's trademark. Secondary liability for trademark infringement is a relatively recent development in the law, and it has evolved entirely in the courts. . . .

Of all the contexts in which secondary liability has been raised, whether contributory or vicarious, the Internet has by far generated the most interest and attention. The advent of Internet commerce has created new problems for the law to address. On the Internet, buying and selling take place among a seemingly infinite number of parties at lightning speed, making it difficult both to police and remediate infringement. These issues came to light in Tiffany v. eBay, where the court observed that "more than six million new listings are posted on eBay daily, and at any given time, some 100 million listings appear on the website."

In the instant case, it is clear that Plaintiff had no actual notice of the Terms and Conditions of Use. Defendant has also failed to show that Plaintiff had constructive notice. . . Despite Defendant's assertion. .. [no] evidence submitted by Defendant refute Plaintiff's . . .statement that she was never advised of the Terms and Conditions and could not even see the link to the without scrolling down to the bottom of the screen - an action that was not required to effectuate her purchase.
...
[Plaintiff] therefore lacked notice of the Terms and Conditions because the website did not prompt her to review the Terms and Conditions and because the link to the Terms and Conditions was not prominently displayed so as to provide reasonable notice of the Terms and Conditions. Very little is required to form a contract nowadays - but this alone does not suffice.

Beverly Stayart searched her own name and didn't like the results. She got links to pornographic websites, online pharmacies promoting sexual dysfunction drugs, and an adult-oriented online dating service. She sued Yahoo! and other defendants, including the operator of AdultFriendFinder, for false endorsement under the Lanham Act and state-law privacy violations. The court dismissed the Lanham Act claim and surrendered jurisdiction over the state law claims.

Stayart lives in Wisconsin and was previously employed by several major financial institutions in Chicago, attaining the position of Vice President. She's involved in animal protection and genealogy research throughout the world. This includes an internet presence; her periodic posts on one genealogical website have generated almost 17,000 hits during the past three years. (Okay, I'm sorry, but: on the internet as a whole, that's tiny. My stats look more impressive than thatif you've never seen any others.) And two of her poems appear on two Danish websites (they support the preservation of baby seals).

Stayart alleged that she was the only Beverly/Bev Stayart on the internet, and that she had never engaged in a promiscuous lifestyle, or other overt sexual activities, which are repugnant to her and her community. She alleged that her name had commercial value because of her humanitarian endeavors, positive and wholesome image, and the popularity of her scholarly posts on the Internet. The search engine defendants, she alleged, knowingly used her name on false snippets in results by (1) repeatedly linking Plaintiff to the advertising of Cialis by an online pharmacy; (2) repeatedly linking Plaintiff to six separate websites playing pornographic videos containing computer spy ware; and (3) repeatedly linking Plaintiff to a website captioned Free Streaming Porn--HOTTEST DAILY PORN' displaying 27 hardcore pornographic photos. She asked Yahoo! to stop linking her name to these search results. Yahoo! replied: We do not aim to judge web content for appropriateness or censor materials that we find offensive or inappropriate. Instead, we present information as it is reflected on the Web, allowing you to draw your own informed conclusions about what you see.

Stayart also alleged that Various (which operates AdultFriendFinder) used her name on a website advertising its service. She typed her name into altavista.com and got, among the results, jewellery-makin-doorway.orge.pl/bev-stayart.html. This went to an Under Construction site that stated Meet AdultFriendFinder members near Janesville [Wisconsin]-- Over 20 Million Members and displayed five graphic images of fully or partially nude women, accompanied by the age, nickname and city of residence of the women.

Under Iqbal, though a court must accept all well-pleaded facts as true, the claim must still have facial plausibility. And a plaintiff can plead herself out of court, which was what the court determined had occurred here.

False endorsement means that consumers are likely to be misled about a person's sponsorship or approval of a product or service.

In order to have prudential standing under the Lanham Act, Stayart needed to allege at least an existing intent to commercialize her identity. This she didn't do. Though she alleged that her name has commercial value, her complaint is really about distasteful associations. That emotional desire to prevent others from using her name doesn't create Lanham Act standing. Her correspondence with Yahoo!, attached to the complaint, further indicates that her concerns are with privacy and reputation, defamation and demeaning associations. But the Lanham Act does not create a false light tort claim, absent commercialization.

Stayart relied on Doe v. Friendfinder, which refused to dismiss a false endorsement claim against AdultFriendFinder. But Doe didn't address prudential standing in its decision.

The court went on to reach an independent ground for dismissal, lack of likely confusion as a matter of law. [A] commonsense reading of the complaint demonstrates that there could be no likelihood of confusion. The complaint explicitly disavows any association with pornographic materials, sexual dysfunction drugs, or sexually-oriented dating services. This contravenes likelihood of confusion, so Stayart pleaded herself out of court. (Query: before 1999, would Bob Dole have had a claim? He'd never previously been associated with sexual dysfunction drugs, so wouldn't it have been just as implausible that he'd be a pitchman for them?) No one who accessed these links could reasonably conclude that Bev Stayart endorsed the products at issue.

Stayart argued initial interest confusion against AdultFriendFinder. But on the internet, initial interest confusion depends on relatedness of goods and a consumer's level of care. Given that Stayart's identity is completely unrelated to AdultFriendFinder's services, initial confusion won't facilitate free riding on another mark's goodwill. Without a meaningful effect on the market, confusion is of little or no consequence under the Lanham Act. The type of person looking for information about Bev Stayart would not be fooled into using an online adult-oriented dating website. (I'd add in to find her at the end of that; the court might be surprised to find outjust as Stayart might bethe non-Stayart-related interests of the type of people looking for information about Stayart. I'd be willing to bet that even genealogists and animal rescuers sometimes like to meet adult friends!)

Next, a puzzling CDA discussion. The court commented that if Stayart successfully stated a false endorsement claim under the Lanham Act, it would probably fall under the CDA's intellectual property exclusion. But, it continued, one of the fatal flaws of that claim is that Yahoo! didn't use Stayart's name in connection with its own goods or services. It just included snippets from third-party websites and didn't create the content of which Stayart complained. So the proper analysis is vicarious liability/contributory infringement under the Lanham Act.

Under settled doctrine, Yahoo! can't be held liable for failing to remove the search results even after Stayart complained. It didn't control the third-party websites, which fact defeated both contributory and vicarious liability. (That's a shortcut on contributory liability analysis, but not particularly troubling under the circumstances.) The only way Yahoo! could control the results would be to change its algorithm, which goes to the heart of Yahoo!'s role as an interactive computer service. Because ordinary search engines play no part in developing any unlawful searches, Yahoo! should be entitled to immunity because it acted as an interactive computer service, even though Stayart's claims are nominal intellectual property claims. Immunizing Yahoo! doesn't contravene the CDA's IP exclusion because Stayart doesn't have a valid IP claim.

Comment: oh, my. Look, I like CDA immunity generally. But what's weird here is not the court's willingness to use CDA reasoning on an IP claim despite the IP exclusion; what's weird is the court's failure to notice that IP secondary liability doctrine itself incorporates the tech-promoting rationales underlying the CDA. Well, trademark does much more than copyright, these daysbut it's trademark doctrine that's at issue here! There's no need to bring in the CDA! And that last bitthis analysis only applies because Stayart doesn't have a valid IP claimmakes this whole excursion even more obviously useless.

The court then said that matters were less clear with respect to AdultFriendFinder. The site is in some ways interactive, but Stayart's complaint relates to the banner ad associated with the bev-stayart.html URL. AdultFriendFinder's role in the creation of the banner ad content was unclear, so the court couldn't grant it immunity at this stage.

The only claims that remained were state-law claims. Given that the dismissal was on the pleadings, ordinarily a federal court should relinquish jurisdiction, unless it is so obvious how the claims should be decided that the plaintiff should be put out of her misery rather than involving state-court resources. Defendants argued that Wisconsin requires a name to have commercial value in order to maintain a right of publicity claim. But some variations of the appropriation tort, which Wisconsin may recognize, require only commercial use plus bruised feelings. (Doesn't Yahoo! get out of this even if AdultFriendFinder has to proceed in state court? Under what theory is Yahoo!'s use commercial? If it's using snippets from other sites, how can it possibly be distinguished from the New York Times using Stayart's name in a story?)

The distinction between appropriation and the right to publicity (based on commercial damage) is also relevant to CDA immunity. The latter is an IP claim. (Implicit holding: to the extent Stayart is bringing an appropriation claim, Yahoo! is immune.) Plus there's the Perfect 10 versus Friendfinder split over whether state IP claims are preempted by the CDA. Since this is an unsettled issue of federal law, the court couldn't conclude that there was an obvious resolution of the state law claims. Even though the Court already held that Yahoo! was entitled to CDA immunity, the Court cannot say with certainty that a potential right to publicity claim under Wisconsin law is without merit, meaning that the intellectual property exception could save Stayart's claims. Also, AdultFriendFinder's CDA status is unclear, leaving it potentially vulnerable under either a misappropriation or right of publicity claim.

Jammie Thomas-Rasset

Much of Jammie Thomas-Rasset's legal arguments following this summer's $1.92 million Recording Industry Association of America file sharing jury verdict against her don't have much weight or precedent.

Clearly, that a jury in June ordered her to pay $80,000 for each of the 24 music tracks she infringed on Kazaa is outrageous and shocks the conscience and there's no rational relationship between the amount of harm suffered by the recording industry and the award granted.

Thomas-Rasset wass the nation's first sharing defendant to go before a jury. The RIAA has filed more than 30,000 lawsuits targeting individuals, and most have settled out of court.

That said, in their latest court papers, (.pdf) Thomas-Rasset's legal team again is sticking to the argument that the whopping jury award is a due process violation all in a bid perhaps to secure a third trial. (The first ended in a $222,000 judgment against the Minnesota woman, but a mistrial was declared after the judge conceded he gave faulty jury instructions)

Still, it is true that the U.S. Supreme Court and the lower courts have repeatedly reduced lofty jury awards based on so-called due process breached. But those were punitive damages awards, not statutory damages awards.

Those punitive damage reductions, including the Exxon Valdez oil spill disaster, do not apply to Thomas-Rasset's case although Thomas-Rasset's defense team suggests there's always a first.

Punitive damages are the amount a jury awards to punish conduct of an offender. Up until recently, there generally has been no limit. But the Supreme Court has suggested that punitive damages should be limited to about no more than 10 times the amount of actual damages a jury awards.

Higher ratios, the courts have said, are due process breaches because defendants have no notice ahead of time about the lofty financial consequences of their actions.

But the law is crystal clear when it comes to the Copyright Act, the law under which the RIAA sued Thomas-Rasset. Juries can award up to $150,000 per violation. Punitive damages do not fall under the Copyright Act.

One of the only points in Thomas-Rasset's brief that makes a compelling argument is that the Copyright Act, when amended in 1999, didn't conceive of non-commercial cases the RIAA has been bringing the past six years.

The notion that Congress decided that the award of statutory damages in this case was somehow appropriate or tailored to ensure deterrence is a fiction that the plaintiffs would have this court adopt. The Congress that enacted the statutory-damages provision of the Copyright Act could not have had the kinds of illegal but non-commercial music downloading here at issue in mind, defense attorney K.A.D. Camara argues in recent briefs.

It's true: There's no doubt that a $1.92 judgment over $24 worth of music provides the clearest example yet of the abuses made possible by the 1976 Copyright Act, which Congress modified in 1999, at the behest of Hollywood and the recording industry, to carry a maximum penalty for a single infringement of up to $150,000.

That statutory penalty was intended to bankrupt large-scale commercial pirating operations, like organized DVD and CD bootleggers not to put individuals like Thomas-Rasset in debt for the rest of their lives.

Still, the RIAA is crying foul.

After Thomas-Rasset refused to settle out of court, the industry is now demanding that Thomas-Rasset pay up. The RIAA is also seeking U.S. District Judge Michael Davis to issue an injunction barring her from future file sharing.

Plaintiffs' evidence showed that defendant knew what she was doing was wrong, that she did it anyway, and then lied about it for years. Through two trials, defendant still shows no remorse whatsoever for her actions and has made it clear that she has no intention of ever satisfying any portion of the judgment against her, Timothy Reynolds, the RIAA's attorney, wrote (.pdf) Davis.

Judge Davis of Minnesota could rule on the retrial and injunction issue any time.

See Also:

• Jury in RIAA Trial Slaps $2 Million Fine on Jammie Thomas
• Feds Support $1.92 Million RIAA File Sharing Verdict
• Will File-Sharing Case Spawn a Copyright Reform Movement?
• Thomas Seeks New RIAA Trial; Says $1.92 Million Verdict Monstrous
• File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA
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United States v. Drew, 2:08-cr-00582-GW (C.D. Cal. Aug. 28, 2009)

Almost 2 months ago, the judge presiding over the Lori Drew trial orally announced that he intended to rule in favor of Drew, but it was a little hard to decipher his statements without a written ruling. On Friday, the judge issued his written ruling, which indicates that he granted Drew's FRCP 29(c) motion for a post-verdict acquittal. I haven't seen any announcement of the prosecution's response and whether they plan to appeal. This ruling also has no direct bearing on any civil claims against Drew. Nevertheless, for now, Lori Drew has been fully acquitted of the criminal charges brought against her.

The Holding

While the written opinion clears up the judge's exact disposition of Drew's status, it is hardly a clear prcis on the legal issues. The judge ultimately grants the acquittal because a Computer Fraud & Abuse Act (CFAA) prosecution based on negative behavioral restrictions in an online user agreement is void-for-vagueness. I think this makes a lot of sense because the negative behavioral restrictions are effectively incorporated into the criminal statute but lack the degree of drafting precision we require from criminal prohibitions. The judge gives a good example of such an imprecise restriction by citing a MySpace user agreement prohibition against posting in band and filmmaker profiles...sexually suggestive imagery or any other unfair...[c]ontent intended to draw traffic to the profile. The judge rightly asks what the terms "sexually suggestive imagery" and "unfair content" mean when incorporated into a criminal CFAA prosecution. If we aren't sure, that sounds like a valid basis for a void-for-vagueness dismissal.

Having said that, given this ruling, I still can't understand why the judge let this case go to the jury in the first place. I believe the judge's ruling was independent of the jury verdict and does not rely on any of the jury findings, so why did he wait until after the jury verdict to make a ruling that he could have made pre-trial? His delay was not costless. The jury verdict against Drew remains a public rebuke of Drew even though it's been wiped away, and the judge could have saved everyone a lot of time and money by cutting to the chase earlier.

The Dicta

The judge's actual void-for-vagueness discussion of Drew's situation starts on page 25 of a 32 page opinion. What's going on in the previous 25 pages? The remainder of the opinion apparently explains how the government may have successfully proven the elements of its case, but I found the discussion gratuitous, meandering and confusing. Some of it could also be pernicious. For example, consider this oh-no quote from FN 22:

As a visitor to the MySpace website and being initially limited to the public areas of the site, one is bound by MySpace's browsewrap agreement. If one wishes further access into the site for purposes of creating a profile and contacting MySpace members (as Drew and the co-conspirators did), one would have to affirmatively acknowledge and assent to the terms of service by checking the designated box, thereby triggering the clickwrap agreement.

Read that first sentence again. WHAT??? Did the court just say that every visitor is bound to MySpace's browsewrap just by visiting the website? Uh, I don't think so, or at least I hope not. Whoa.

Another oddity: on page 9, the opinion says "According to Sung, MySpace owns the data contained in the profiles and the other content on the website." (Sung is MySpace's VP of Customer Care). The court slyly quotes the applicable provision in the user agreement which clearly points out that MySpace only takes a non-exclusive license to user data, not ownership. So what could this reference to ownership possibly mean?

Implications of the Ruling

Although I wish the judge had been more careful and laconic in his drafting, this opinion is still a good jurisprudential development. This opinion erects a significant hurdle for future CFAA criminal prosecutions for breaches of user agreements because they will face the same void-for-vagueness challenge that was dispositive here.

I'm less clear how this opinion might affect civil CFAA lawsuits for using third party servers in excess of a user agreement. As the case recounts, a number of cases already accept those claims, and I think this judge's dicta simply adds to those cases. So, for example, if MySpace wanted to sue Drew civilly under a CFAA theory for the behavior at issue with her criminal prosecution, I don't think this opinion would stand in the way. In fact, I think MySpace would cite it favorably. Then again, I doubt MySpace will be suing Drew; MySpace has been conspicuously low-profile about a crime purportedly committed against it.

I do not expect this ruling will defuse any debates over cyberbullying and how to deter it using legal means. If anything, the fact that Lori Drew walks is more likely to pour gasoline on the fire of state legislators who think they can solve the problem through their brilliant statutory drafting. They are wrong, of course, and they can do plenty of harm by trying (see, e.g., the broad and dangerous law that Texas just passed). Unfortunately, I expect more anti-cyberbullying legislative efforts, for better or (mostly) for worse.

Even though the judge corrected a judicial system error, I continue to believe that we as cyberlawyers need to mitigate the problems we create by putting extensive and ambiguous negative behavioral restrictions into our online user agreements. As I've explained before, I think best practices now move most negative behavioral restrictions into a non-binding statement of community norms and expectations.

Soren Gordhamer is the author of Wisdom 2.0: Ancient Secrets for the Creative and Constantly Connected (HarperOne, 2009). His homepage is www.sorengordhamer.com. You can follow him on Twitter.

As a company, Whole Foods has impressively embraced social media more than most, gathering over 1.2 million followers on Twitter and 123,000 fans on Facebook in the process. While it is easy to understand why a relatively young company or one started by a tech-savvy founder would so completely embrace social media communication tools, it is quite a bit more remarkable for an almost 30 year old established brick and mortar company with roughly 50,000 employees and over 270 stores worldwide to have done so.

I recently visited the Whole Foods headquarters in Austin, Texas to meet with members of their new media team, including Bill Tolany, the company's Senior Coordinator of Integrated Media, and Winnie Hsia, who oversees the @wholefoods account. I wanted to know how Whole Foods integrated social media tools into their communications strategy, and what lessons had they learned from doing so. Below are five of the lessons that Whole Foods shared with me during our chat.

1. Make Content Increasingly Relevant

Whole Foods started initially with just the @wholefoods account but as it gathered followers, they realized it had limitations: while it was useful for news with national appeal, it was less so for sharing local information or addressing specific interests of customers. A percentage of their followers, for example, might be interested in an event happening at their New York City store or reviews of certain food items, but many others would not be interested.

To address this, they encouraged all their stores to start their own accounts and tweet about events at their store and news related to that local area. They also created separate accounts for specific issues, such as one for wine and one for cheese, where the head of those departments post and interact with customers. In fact, with over 150 company Twitter accounts and new ones added regularly, they likely have one of the largest corporate presences on Twitter. The goal with so many different accounts is to create increasingly relevant, and often local content.

2. Go Where Your Customers Are

When asked how they initially decided to use Twitter as a platform, which was pre-Oprah and before most other companies their size had done so, they emphasized that their goal has always been to interact with their customers no matter where those customers are. As Twitter gained momentum, they realized that a presence on it made sense, though they never foresaw that they would get over a million followers and how much staff time it would take to manage.

The conversation with customers, however, is essential to the company, whether it happens in person at a store or on a social network. Whole Foods, in fact, is active on numerous social media communication channels, not just Facebook and Twitter: they also have a Flickr page, an actively updated blog with videos on cooking healthy meals, and have employees responding on the customer feedback site Get Satisfaction. The goal is not just to pick one place and force customers to come to them, but to meet customers on their home court, wherever that may be.

3. Loosen Control from the Top

Likely the most difficult task for any large company when embracing social media is learning to let go of control. On one hand, most companies will want millions of followers on sites like Twitter, yet on the other hand, large corporations also tend to be cautious when taking risks. They're unsure how much control they are willing to relinquish when it comes to governing how social media is used.

Whole Foods seems to really understand that such a top-down approach does not work in the age of social media. In fact, I was initially surprised that several people I interviewed while at the company headquarters that managed different corporate Whole Foods Twitter accounts used them quite differently from each other. Some, for example, shared personal information while others kept posts strictly to business. When I asked Tolany, who oversees the department, about it, he said that it did not surprise him at all. While they encourage some basic guidelines, Whole Foods has learned that for social media to work well, whoever is managing an account needs to be authentic, allow his or her personality to come through, and have fun in the process. If management tries to exercise too much control, the account will be less likely to succeed at engaging people.

4. Decide What Channel to Use for What Purpose

With a presence on so many social networks, Whole Foods tries to figure out how best to use each service. For example, they have found that for customer service, Twitter is much more effective than Facebook. On Twitter people can easily @reply a question and they can quickly respond. On the other hand, for rich media, including embedding videos or longer posts or responses, Facebook tends to be better. Likewise, for posting original content, their blog serves as the hub, allowing staff from various departments to share material. The company also created a nifty iPhone application with 2,000 searchable recipes and a store locator, which is a great platform for disseminating static information.

5. Let the Conversation Happen

My visit to the Whole Foods headquarter came at an interesting time. The previous week, Facebook, Twitter, and various blogs were ablaze with (mostly negative) comments in response to Whole Foods CEO, John Mackey's, Op-Ed in The Wall Street Journal titled The Whole Foods Alternative to ObamaCare. We did not dive too much into the Mackey Op-Ed issue, but we did talk about whether having such a strong presence on Facebook and Twitter has allowed people to more easily express anger at them. During our conversation it became clear that Whole Foods realizes that people are going to talk about the company, both positively and negatively, whether they are have a presence on social networks or not. It is helpful, though, to know what people are saying and to be able to respond if necessary.

In fact, when Mackey responded to some of the criticism on his company blog, rather than turn off comments to the post, they encouraged people to express their feedback, and greater than 3,000 people did.

Conclusion

The central take away I got from my visit was the importance of engaging with one's customers no matter where they spend time. When I asked Tolany and Hsia what advice they would give to companies thinking of using social media channels like Twitter, they seemed to both agree that the first task is to know if your customers (or the potential customers you want to engage) are present there. Then and only then does it make sense to invest time on a site.

I also got that part of what has motivated Whole Foods' efforts in social media and what can account for much of their success is a willingness to be bold and take risks. Such boldness can of course have its dangers (such as when writing Op-Ed articles about delicate social issues) yet this has also helped them plow ahead in social media while other businesses their size waited cautiously in the background to see if it was safe or if these sites would gain in popularity.

Of course, any time a company opens up and has a presence on a communication channel like Facebook or Twitter, users can use those sites to criticize as much as to praise. Dealing with negative feedback, however, is better than not having a presence at all. I think Whole Foods is showing that the companies who keep such channels open, and listen to the unpleasant along with the pleasant feedback, will better know what matters to their customers and what company policies may need to change, which is likely to win them support in the end.

Whole Foods, like many other companies, is still finding its way in this age of social media, but they are showing that a non-technology company of their size can engage and innovate in this area.

More social media resources from Mashable:

- Should Your Company Have a Social Media Policy?
- 10 Must-Haves for Your Social Media Policy
- 6 Must-Follow Steps for Selling in Any Economy
- 5 Easy Social Media Wins for Your Small Business
- 7 Secrets to Tweeting Your Corporate Culture

Tags: blogging, business, engagement, facebook, social media, twitter, whole foods

Judge Der-Yeghiayan granted defendants' Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction even though plaintiff brought a federal Lanham Act trademark infringement claim. While Lanham Act claims are generally considered federal questions creating subject matter jurisdiction, plaintiffs claims were in essence breach of contract claims. Plaintiff was a franchisor of Mindy's Restaurants. Defendants were franchisees, until they allegedly stopped making required franchise payments and plaintiff terminated the franchise agreement. While plaintiff's claims were for use of plaintiff's trademarks when defendants allegedly continued operating their restaurant after the franchise agreement was canceled. As a result, the Court held that the parties dispute and plaintiff's claims sounded in contract, not the Lanham Act. The reason the trademarks were allegedly infringed was the termination of the franchise agreement.

• Taylor Lautner - 2009 Teen Choice Awards (socialitelife.celebuzz.com)

Copyright Litigation Handbook (West 4th Ed. 2009) by Raymond J. Dowd

Finally some good news from American law courts which have usually protected the psychotic, lying, whoring skanks who anonymously insult innocent people on the Internet. On Monday, in a New York court, Judge Joan Madden ordered Google to unmask a self publisher on their Blogger service who had anonymously compromised the professional and personal integrity of Vogue model Liskula Cohen.

The blogger went after Cohen in five anonymous posts on August 21 last year. I would have to say that the first place award for Skankiest in NYC' would have to go to Liskula Gentile Cohen, one post began, before accusing the international cover girl model as being a psychotic, lying, whoring skank.

And now Manhattan Supreme Court Justice Joan Madden has ordered to Google to expose the name of the blogger, thereby enabling Cohen to sue him/her for defamation.

READ MORE FROM DAILY TELEGRAPH BLOG

But first lawsuits first.

Advertise.com, which was purchased by ABCsearch.com earlier this year and rebranded as such a few months ago, is a variation on AOL-owned Advertising.com, the beleaguered Internet company claims. In legalese, that translates as follows:

Advertise.com recently commenced use of the virtually identical and confusingly similar designation Advertise.com and design in connection with the same and complimentary services as those offered by Plaintiffs under their federally-registered Advertising.com name and marks and their Ad.com name and marks.

Update: looks like Advertise.com sued AOL first (August 17, 2009)

A search of the USPTO database shows that AOL does in fact have three registered trademarks for Advertising.com, but all are design trademarks, which means they stand little chance of exercising trademark rights over something as generic as the domain name advertise.com. Granted, the logo looks vaguely similar, but virtually identical and confusing' it ain't.

Note that AOL doesn't even effectively market Advertising.com as a business unit anymore - although it may soon recommence doing just that - and redirects the domain name to its Platform-A website instead (AOL rebranded it to the name of this whole-owned subsidiary in April last year and now prefers AOL Advertising as the overarching denominator).

So why would anyone confuse Advertise.com for an AOL property? It just doesn't make any sense to try and claim ownership over any domain name with a variation on the word advertising' in it. What's next? Ads.com? Advertisement.com? In the court documents, embedded below, AOL even boasts the fact that Advertise.com has only about 25,000 unique visitors per month, so what's really at stake here?

The second case is even more bizarre: although often used in its communication, Ad.com is apparently not a trademark owned by AOL, although the company has filed an application for it in the past. But that domain name is actually owned by a Marcos Guillen, who recently sold it to Directi and Skenzo for $1.4 million. Well, almost sold it, because the deal fell through after all, according to industry watchers due to the fact that the mark has not yet acquired distinctiveness for any of the applicants - including AOL - following a recent examination. Guillen has now filed a lawsuit against Directi and Skenzo for backing out of its auction purchase of Ad.com, seeking $1.4 million, prejudgment interest, and/or damages according to proof.

Aol

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When the Ninth Circuit decided Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008), we opined that the opinion wasn't "all that earth-shattering. It's crafted to be narrowly applicable to the particular case decided and should not alter the Section 230 analysis in most future cases." Now, more than a year later, about half a dozen federal courts have espoused the same view.

In Goodard v. Google, Inc., 2009 WL 2365866 (N.D. Cal. July 30, 2009), the United States District Court for the Northern District of California held that Roommates "carved out only a narrow exception" to the rule set out in Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003), that a website consisting of user-generated content "could never be liable [under Section 230 of the Communications Decency Act] because 'no [user] profile has any content until a user actively creates it,'" Roommates, 521 F.3d at 1171 (quoting Carafano, 339 F.3d at 1124) (emphasis added). The court also pointed out two recent district court opinions which reached similar conclusions:

• In Doe v. MySpace, Inc., ___ F.Supp.2d ___, 2009 WL 1457170 (E.D. Tex. 2009), the United States District Court for the Eastern District of Texas found that Roommates was "not applicable" to an action against social networking site MySpace.com because the decision was was only relevant to websites, unlike MySpace, which require their users to provide illicit content.

• In Atlantic Recording Corp. v. Project Playlist, Inc., 603 F.Supp.23d 690 (S.D.N.T. 2009), the United States District Court for the Southern District of New York found that the Roommates decision "was based solely on the fact that . . . Roommates.com . . ., in violation of federal and California state housing law, required potential subscribers to identify their sex, sexual orientation, and family status, and to indicate their preferred sex, sexual orientation, and family status in a roommate."

A couple of other district courts have issued opinions which take the same position: the Roommates decision is narrowly applicable to the facts of that particular case and does not alter the broad immunity afforded by Section 230 in the vast majority of cases. See Lee Baker, Another One Bites the Dust: Roommates as a Hail Mary for Frivolous Lawsuits, Citizen Media Law Project (Aug. 5, 2009); Thomas O'Toole, Five Post-Roommates.com Decisions Confine Immunity Exception to Narrow Circumstances, TechLaw (May 28, 2009).

It's been a long road to get here. Schoemaker originally filed suit against Farrell last April, when Farrell used Schoemaker's trademarked term Shoemoney in his ad copy a breach of Google's terms of service. The case was interesting not just because of Schoemaker's notoriety, but because Farrell is an employee working out of Google's New York office. Given his position, it was feasible that Farrell had used his access at Google to somehow bypass the system's trademark filters (among other things), though Google denied this and attributed the fault to human error.

Farrell subsequently filed an affadavit stating he didn't know that the term was trademarked and blamed a failure of Google's text filters. In June, Farrell then went on to counter-sue Schoemaker for defamation. Farrell dropped half of the counter-suit a month ago, and soon thereafter approached Schoemaker about a settlement.

Yesterday, Schoemaker posted the following to his blog:

For those that have been following my lawsuit against the Farrells, there have been several developments. A few weeks ago, after originally withdrawing half of their defamation lawsuit against me, the Farrells withdrew the other half and completely abandoned their counter-suit against me. I was then approached about the possibility of accepting a settlement offer in exchange for me dismissing my trademark infringement case against the Farrells. Unfortunately, I'm not allowed to write about the nature of the settlement talks or the amount of money that was offered because the settlement offers that were made required confidentiality.
I can say that my lawsuit against the Farrells was settled. This has been a real educational experience for me. I was looking forward to getting my day in court, but I can also say that I am very happy with the final result. There is not a whole lot more I am allowed to discuss.

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Manhattan-based Art Capital Group says Leibovitz borrowed the money last year because she was in dire financial straits due to unpaid bills, mortgage payments and tax liens.

The breach of contract lawsuit, filed Wednesday in Manhattan state Supreme Court, says that in return Leibovitz granted Art Capital the right to sell all of her photographs, plus her homes in Manhattan and upstate New York.

The lawsuit says Leibovitz and her associates are now trying to ignore their obligations.

A spokesman for Leibovitz denies the allegations.

Matthew Hiltzik says the suit is part of Art Capital's "continued harassment."

Daniel Boyd and half-dozen of his alleged recruits in the Raleigh, N.C. area were charged with providing material support to terrorism.

The Justice Department in Washington said Boyd, who is a U.S. citizen, trained in Afghanistan and fought there between 1989 and 1992 before returning to the United States.

Boyd and the other defendants were scheduled to appear in federal court in Raleigh.

A newly unsealed indictment charged that Boyd, also known as 'Saifullah,' encouraged others to engage in jihad.

Boyd allegedly traveled to Israel in 2007 with several of the defendants, hoping to engage in "violent jihad," according to the indictment. The attempt was unsuccessful, though, and the men returned home, officials said.

Boyd was also accused of trying to raise money last year to fund others' travel overseas to fight.

One of the men, Hysen Sharifi, allegedly went to Kosovo to engage in violent jihad, according to the indictment, but it's unclear if he did any actual fighting.

Several of the defendants, including Boyd, were also charged with practicing military tactics on a private property in Caswell, County, N.C. in June and July of this year.

Retired NYPD sergeant Dexter Brown was shot in the 1998 incident and sued the city and police department. It was revealed recently in court papers that the shooter, Det. Luis Lopez, was assisting in the arrest at a Brooklyn crack house. The city Law Department says the shooting was accidental and did not admit wrongdoing.

Brown walks with a cane and suffers chronic pain from damage caused by the shooting. The 45-year-old is retired on disability and cannot work. Brown says he feels vindicated his story came out. The settlement was reached Monday, as the trial was to begin.

Police say a surveillance camera recorded the 18-year-old torching the 1992 BMW on July 10. At the time, it was parked about 2 1/2 feet feet from his apartment building.

The defendant was awaiting a court appearance Friday in First District Court in Hempstead. The charges include arson and reckless endangerment.

Sony was supposed to win this. The company made magnetic tape out of like paper and mud back in the 1940s, turned out a "pocketable" transistor radio in the 1950s, and invented the "portable" television by 1960. They had their first video tape recorder by 1963. They weren't the only ones, but they were among the first and best.

The so-called VTR business had a rocky start. The things were hulking bastards, with huge price tags and poor recording capability.

A company called Ampex put out the first "home entertainment" VTR in 1963, only it cost $30,000 in the Neiman Marcus Christmas catalog, and was nicknamed Grant's Tomb because the product manager who thought it up was going to be shoved inside by the company's accountants. (He would have fit, too, the thing was so big.) Sony comes along in the middle of that decade and puts out a $1,200 "portable" VTR that came with a leatherette case and its own TV. It still weighed 65 pounds.

The worst part about these 1960s VTRs was that they were basically reel-to-reelyou had to thread your own 1-inch videotape through spools and stuff, and by the end of the decade, a one-hour spool of tape was like 8 inches in diameter. Can you imagine your TiVo needing 180 spools of videotape to get the job done?

As Sony toiled on the videotape problem, Matsushitawho we now call Panasonicand its independent subsidiary JVC weren't really standing out in the VTR business. Let's say this: Nobody would have guessed they'd be able to overthrow Sony and kick mecha ass within the decade.

However, these guys were among the biggest manufacturers, dwarfing Sony many times over. Matsushita, known for efficiency, not innovation, tended to focus on big boring appliancesTVs, refrigerators, air conditionerswith a smaller team, branded Technics, devoted to dominating the hi-fi realm. JVC was all about TVs and audio gear, and had decent video know-how.

It was Sony who solved the reel-to-reel problem withta daaa!a video cassette. It was called U-Matic, and at 3/4" thick, it was smaller than the earlier formats, but still a bit of a chunkster. Since video was a bit of a Wild West, Sony felt like it needed partners to firmly establish a f