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.

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

Sponsor

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

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

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

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

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

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

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

Pulling Down the Facebook Social Graph

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

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

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

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

Taking a Deeper Look

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

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

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

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

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

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

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

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

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

Giants of trip hop visit the lounge for the very first time this week, as do several friends old and new. Plus, we're giving away four free copies of Artemis' new EP Auralei. Check out my Twitter feed for more details.

Playlist for Dave's Lounge #182:

1. Massive Attack, "Girl I Love You (feat. Horace Andy)" Free download from: RCRD LBL
2. Jazzra, "The Only One" Buy from: iTunes | eMusic
3. SoulAvenue feat. LazyGrooves, "Walk With Me" Buy from: iTunes
4. Colette, "Like the Sun" Buy from: iTunes | eMusic
5. Artemis, "Ella" Buy from: Bandcamp
6. Adani & Wolf, "Lady in Black" Buy from: iTunes
7. Water (feat. Fay Lovsky), "Hold Me" Buy from: iTunes
8. Yubaba, "One" Buy from: iTunes | eMusic

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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

I'm hesitant to use the term brand' since it is overused right now and a bit nebulous, especially when it comes to humans. I guess if your name was a brand then it would fit . . . but there thousands of brands with the same name, so maybe not.

Over the last few years with the rise of social everything online many people have arrived without the experience of the growing pains that made the market ready for these sites. With that, the newbies have arrived at the front gate to deliver gems on Facebook like, In hell right now, that would be work! Way to go genius. Don't get run over by the forklift you rode in on.

It has been my desire for years that there were be some licensing that has to happen before people could hop online and make the same mistakes that people were making a decade ago. An education center would be fitting like community annex night courses. Even cabbies gotta go to school.

I thought that since tomorrow is Thanksgiving and you might engage face to face with some people that aren't so savvy, that you could share some words of internet wisdom with them. It. Is. Your. Job. To save them. From. Themselves. Share these of course after you have helped them remove 30 GB of kitty photos from the desktop of their Windows Me eMachine. Okay?

1. Don't use Facebook or MySpace or Twitter at work
2. Don't talk about your boss on the computer
3. Don't ever upload pictures of yourself or Mom drunk
4. Don't put pictures of grandma drunk on the internet
5. Don't take photos of anything naked and upload it
6. Don't threaten the bully from your 8th grade class on Facebook. We know he didn't deserve to succeed in life but he did. Let it go.
7. Don't contact anyone that you hooked up back in the day that Mom knows. That goes for you too Mom. Forget they exist and use your memories remember their sweet smell and freak moves.
8. Don't tell your neighbor that his spouse is cheating on Facebook. Just don't.
9. Don't type anything into your computer that would cause Santa to leave you a lump of coal
10. Don't evah, evah, evah upload a photo of your cat to the internet and caption it. You will never get hired for a job again especially if I am the head of HR

That's it. Now you can spend your Thanksgiving in peace after you lay down the law to your in-laws about Managing Yourself Online'. Cuz the internet is a job.

DISCLOSURE OF MATERIAL CONNECTION: http://cmp.ly/0

Managing Yourself Online: A Thanksgiving Guide is a post from: TechStartups.com

Social media is a double-edged sword. Due to its unfiltered nature, it can be a powerful promotional tool. However, it can also publicly expose our problems. Former reality TV star Tila Tequila is an unfortunate but prime example.

Some backstory: Tila Tequila is one of the most popular artists on MySpace, was the subject of an MTV reality show, and most recently filed assault charges against San Diego Chargers linebacker Shawne Merriman, which were subsequently dropped.

Fastforward to Wednesday, November 18th. That night, Tila had a very public meltdown on her Ustream page. She waved around a gun, played around with a knife, ranted about Shawne Merriman, and stripped naked, all live for thousands of people to see (the video was immediately taken down).

Despite claiming that she would never use her Ustream ever again, Tila is back on live video, and this time it's even more bizzare. She is streaming as Jane Cordovez, which seem to be her alter ego for the evening. She is not only waving around a gun once again, but is dancing around with a sword. Yes, a sword. And that's only half an hour into the live stream.

It's unfortunate that she's allowing her breakdown to be publicly streamed. While her brand has always been racy, the last few days have been simply bizzare. If she indeed has issues, we hope she gets some help.

The live, unfiltered video stream is below:

Tags: live video, Tila Tequila, ustream, video

Beyond joining the cool kids at the table again, Facebook is ready to begin stepping on the toes of its biggest competitors, Google and Twitter. And they are positioning themselves to put more nails in the MySpace coffin.

Facebook has been rejuvenated by the release of new products, interface improvements and acquisition of FriendFeed. A service much loved by brand name nerds that were able to grok the arcane interface and discussion method.

Facebook is now positioned (with some tweaks) to stunt Twitter's growth, enter real time search as the dominate player and extend its platform much further than Google or Twitter through its API.

Stunting Twitter's Growth

Facebook and its audience are maturing. And this maturation makes it more tolerable for the cool kids to come back to the service. Cool kids in this case being those that were first to jump on board and when the unwashed digital masses began showing up they jumped ship to avoid those newbies getting Dooced for moronic updates.

The audience maturation shouldn't overshadow the growth of Facebook as a more robust platform for messaging. With changes in chat, fan pages, the release of Facebook Lite and snatching up FriendFeed they are acting on a strategy to better control ads that provide a higher ROI for advertisers, removing excess interface components to run a lean set of products like Lite and integrating the core of an API that can power a massive real time search engine.

All of these capitalize on growing an audience by word of mouth and new services build on top of the Facebook platform. With both this combined maturation it will be harder for Twitter to justify the lack of features that it offers as a core service. No payloads of video or audio, chat or multiple user pages for the same account. Today's users expect these features and more like social search.

Real time Social Search

Facebook has done a great job of making recommendations of people to friend and groups to join. They track every bit of activity that you perform on the site, analyze it and then offer up customized recommendations. Add the FriendFeed engine to this and you have an extremely powerful real time social search utility.

Users on Facebook are heading to the front lines, where the cool kids have been for years, to fight the battle against an ever expanding delta of information. The best weapon to use in this battle is created by harnessing the power of each users friend base to narrow incoming river of information . . . to begin with. By using this select group of trusted confidants the delta begins to shallow and offer more valuable focused results.

When users are selecting who they are friends with, they have assigned trust of some varying level in the individual and the type information that they will be sharing. Many times friends or colleagues or members of other hobby groups will share information accordingly to their interests in updates and on their account pages. Real time social search depends on this trust to deliver the most relevant items to a searcher. Facebook has this built in as a core feature.

The I/O of Data, Ads and Opportunity

It is hard to know where to begin. Facebook recently updated their Connect feature which simplified their API somewhat but it still relies on Facebook Markup Language (FBML) a proprietry list of namespaces and commands that interact with Facebook's platform.

I fully expect that Facebook will be releasing a version of their API that conform with the ease of use that existed with FriendFeed's. The FriendFeed API was more akin to that of Twitter than their own. The Twitter API is simple to use, open very powerful.

The release of a simpler API that delivers data in JSON or XML to satisfy developers on different platforms would strengthen all third party tools. It could open Facebook's platform to a greater influx of user generated data to power robust social search and ad inventory. Which is what will keep the ship afloat.

There has been some discussion recently about charging for API usage versus paying developers for using your API. Evidence suggests that the latter is the winning choice to build a strong developer network. Facebook is in a position to drive this type of revenue stream and turn it into the AdSense of the developer world.

Conclusion

Facebook is in a position like no other company to capitalize on paying developers a slice of the advertising pie for including targeted ads in their applications. And if they can be delivered with the content that Facebook is sending developers in a way that allows devs to enhance or choose better, more targeted ads for their applications audience, Facebook would be walking into El Dorado with a smelter the size of the Rhode Island on their back.

For now they have the ability to step on some toes, be it pretty hard. In the coming months and long-term, look for them to begin breaking backs by acquiring properties to freeze out competitors and adding new features for social search.

DISCLOSURE OF MATERIAL CONNECTION: http://cmp.ly/0

Facebook Ready To Step On Toes is a post from: TechStartups.com

Database normalization is a technique for designing relational database schemas that ensures that the data is optimal for ad-hoc querying and that modifications such as deletion or insertion of data does not lead to data inconsistency. Database denormalization is the process of optimizing your database for reads by creating redundant data. A consequence of denormalization is that insertions or deletions could cause data inconsistency if not uniformly applied to all redundant copies of the data within the database.

Why Denormalize Your Database?

Today, lots of Web applications have "social" features. A consequence of this is that whenever I look at content or a user in that service, there is always additional content from other users that also needs to be pulled in to page. When you visit the typical profile on a social network like Facebook or MySpace, data for all the people that are friends with that user needs to be pulled in. Or when you visit a shared bookmark on del.icio.us you need data for all the users who have tagged and bookmarked that URL as well. Performing a query across the entire user base for "all the users who are friends with Robert Scoble" or "all the users who have bookmarked this blog link" is expensive even with caching. It is orders of magnitude faster to return the data if it is precalculated and all written to the same place.

This is optimizes your reads at the cost of incurring more writes to the system. It also means that you'll end up with redundant data because there will be multiple copies of some amount of user data as we try to ensure the locality of data.

A good example of a Web application deciding to make this trade off is the recent post on the Digg Blog entitled Looking to the Future with Cassandra which contains the following excerpt

The Problem

In both models, we're computing the intersection of two sets:

1. Users who dugg an item.
2. Users that have befriended the digger.

The Relational Model

The schema for this information in MySQL is:

CREATE TABLE `Diggs` ( `id` INT(11), `itemid` INT(11), `userid` INT(11),
`digdate` DATETIME, PRIMARY KEY (`id`), KEY `user` (`userid`), KEY `item` (`itemid`)
) ENGINE=InnoDB DEFAULT CHARSET=utf8;   CREATE TABLE `Friends` ( `id` INT(10)
AUTO_INCREMENT, `userid` INT(10), `username` VARCHAR(15), `friendid` INT(10), `friendname`
VARCHAR(15), `mutual` TINYINT(1), `date_created` DATETIME, PRIMARY KEY (`id`), UNIQUE
KEY `Friend_unique` (`userid`,`friendid`), KEY `Friend_friend` (`friendid`) ) ENGINE=InnoDB
DEFAULT CHARSET=utf8;

The Friends table contains many million rows, while Diggs holds hundreds of millions. Computing the intersection with a JOIN is much too slow in MySQL, so we have to do it in PHP. The steps are:

1. Query Friends for all my friends. With a cold cache, this takes around 1.5 seconds to complete.
2. Query Diggs for any diggs of a specific item by a user in the set of friend user IDs. This query is enormous, and looks something like:

   SELECT
   `digdate`, `id` FROM `Diggs` WHERE `userid` IN (59, 9006, 15989, 16045, 29183, 30220,
   62511, 75212, 79006) AND itemid = 13084479 ORDER BY `digdate` DESC, `id` DESC LIMIT
   4;

   The real query is actually much worse than this, since the IN clause contains every friend of the user, and this can balloon to hundreds of user IDs. A full query can actually clock in at 1.5kb, which is many times larger than the actual data we want. With a cold cache, this query can take 14 seconds to execute.

Of course, both queries are cached, but due to the user-specific nature of this data, it doesn't help much.

The solution the Digg development team went with was to denormalize the data. They also went an additional step and decided that since the data was no longer being kept in a relational manner there was no point in using a traditional relational database (i.e. MySQL) and instead they migrated to a non-RDBMS technology to solve this problem.

How Denormalization Changes Your Application

There are a number of things to keep in mind once you choose to denormalize your data including

1. Denormalization means data redundancy which translates to significantly increased storage costs. The fully denormalized data set from the Digg exampled ended up being 3 terabytes of information. It is typical for developers to underestimate the data bloat that occurs once data is denormalized.

2. Fixing data inconsistency is now the job of the application. Let's say each user has a list of the user names of all of their friends. What happens when one of these users changes their user name? In a normalized database that is a simple UPDATE query to change a single piece of data and then it will be current everywhere it is shown on the site. In a denormalized database, there now has to be a mechanism for fixing up this name in all of the dozens, hundreds or thousands of places it appears. Most services that create denormalized databases have "fixup" jobs that are constantly running on the database to fix such inconsistencies.

The No-SQL Movement vs. Abusing Relational Databases for Fun & Profit

If you're a web developer interested in building large scale applications, it doesn't take long in reading the various best practices on getting Web applications to scale such as practicing database sharding or eschewing transactions before it begins to sound like all the advice you are getting is about ignoring or abusing the key features that define a modern relational database system. Taken to its logical extreme all you really need is a key<->value or tuple store that supports some level of query functionality and has decent persistence semantics. Thus the NoSQL movement was borne.

The No-SQL movement is a used to describe the increasing usage of non-relational databases among Web developers. This approach has initially pioneered by large scale Web companies like Facebook (Cassandra), Amazon (Dynamo) & Google (BigTable) but now is finding its way down to smaller sites like Digg. Unlike relational databases, there is a yet to be a solid technical definition of what it means for a product to be a "NoSQL" database aside from the fact that it isn't a relational database. Commonalities include lack of fixed schemas {TODO}. Below is a list of some of the more popular NoSQL databases that you can try today along with a brief description of their key qualities

1. CouchDB: A document-oriented database where documents can be thought of as JSON/JavaScript objects. Creation, retrieval, update and deletion (CRUD) operations are performed via a RESTful API and support ACID properties. Rich querying is handled by creating Javascript functions called "Views" which can operate on the documents in the database via Map/Reduce style queries. Usage: Although popular among the geek set most users seem to be dabblers as opposed to large scale web companies.

2. Cassandra: A key-value store where each key-value pair comes with a timestamp and can be grouped together into a column family (i.e. a table). There is also a notion of super columns which are columns that contain whose values are a list of other key-value pairs. Cassandra is optimized to be always writable and uses eventual consistency to deal with the conflicts that inevitably occur when a distributed system aims to be always writable yet node failure is a fact of life. Querying is available via the Cassandra Thrift API and supports fairly basic data retrieval operations based on key values and column names. Usage: Originally developed and still used at Facebook today. Digg and Rackspace are the most recent big name adopters.

3. Voldemort: Very similar to Cassandra which is unsurprising since they are both inspired by Amazon's Dynamo. Voldemort is a key-value store where each key value pair comes with a timestamp and eventual consistency is used to address write anomalies. Values can contain a list of further key value pairs. Data access involves creation, retrieval and deletion of serialized objects whose format can be one of JSON, strings, binary BLOBs, serialized Java objects and Google Protocol Buffers. Rich querying is non-existent, simple get and put operations are all that exist. Usage: Originally developed and still used at LinkedIn.

There are a number of other interesting NoSQL databases such as HBase, MongoDB and Dynomite but the three above seem to be the most mature from my initial analysis. In general, most of them seem to be a clone of BigTable, Dynamo or some amalgam of ideas from both papers. The most original so far has been CouchDB.

An alternative to betting on a speculative database technologies at varying levels of maturity is to misuse an existing mature relational database product. As mentioned earlier, many large scale sites use relational databases but eschew relational features such as transactions and joins to achieve scalability. Some developers have even taken that practice to an extreme and built schema-less data models on top of traditional relational database. A great example of this How FriendFeed uses MySQL to store schema-less data which is a blog post excerpted below

Lots of projects exist designed to tackle the problem storing data with flexible schemas and building new indexes on the fly (e.g., CouchDB). However, none of them seemed widely-used enough by large sites to inspire confidence. In the tests we read about and ran ourselves, none of the projects were stable or battle-tested enough for our needs (see this somewhat outdated article on CouchDB, for example). MySQL works. It doesn't corrupt data. Replication works. We understand its limitations already. We like MySQL for storage, just not RDBMS usage patterns.

After some deliberation, we decided to implement a "schema-less" storage system on top of MySQL rather than use a completely new storage system.

Our datastore stores schema-less bags of properties (e.g., JSON objects or Python dictionaries). The only required property of stored entities is id, a 16-byte UUID. The rest of the entity is opaque as far as the datastore is concerned. We can change the "schema" simply by storing new properties.

In MySQL, our entities are stored in a table that looks like this:

CREATE TABLE entities ( added_id INT NOT NULL AUTO_INCREMENT PRIMARY
KEY, id BINARY(16) NOT NULL, updated TIMESTAMP NOT NULL, body MEDIUMBLOB, UNIQUE KEY
(id), KEY (updated) ) ENGINE=InnoDB; 

The added_id column is present because InnoDB stores data rows physically in primary key order. The AUTO_INCREMENT primary key ensures new entities are written sequentially on disk after old entities, which helps for both read and write locality (new entities tend to be read more frequently than old entities since FriendFeed pages are ordered reverse-chronologically). Entity bodies are stored as zlib-compressed, pickled Python dictionaries.

Now that the FriendFeed team works at Facebook I suspect they'll end up deciding that a NoSQL database that has solved a good story around replication and fault tolerance is more amenable to solving the problem of building a schema-less database than storing key<->value pairs in a SQL database where the value is a serialized Python object.

As a Web developer it's always a good idea to know what the current practices are in the industry even if they seem a bit too crazy to adoptyet.

Further Reading

• How FriendFeed Uses MySQL to Store Schema-less Data by Bret Taylor
• Looking to the future with Cassandra Digg Blog

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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.

In part 1 and part 2, we looked at how the real-time Web is a new form of communication, creates a new body of content, is real time, is public, and has an explicit social graph associated with it. A final characteristic of the real-time Web is that it carries with it an implicit model of federation.

Sponsor

A number of sources both generate and consume real-time streams. As a result, many of these new companies are becoming communication carriers, passing their users' real-time threads through their networks to other networks. This is more than simply being open (i.e. more than allowing data to be imported and exported). Just as in shipping and transportation and other communication industries before it (telephone, Internet packets, and email, to name a few), the real-time Web is developing a federated model of transmission whereby companies formally or tacitly agree to facilitate transmission and perform actions on behalf of end-users within the eco-system.

It's hard to say whether this model has arisen because of a conscious strategic effort to build a new industry, or because building a fully closed world would have required just too many resources, or because of a collective effort among business friends and acquaintances to develop open products and open interactions so that cool new things could be created. It's probably a combination of all three, but considering the history of the people at Twitter and FriendFeed (Paul Buchheit, one of FriendFeed's founders, is credited with coining Google's unofficial "Don't be evil" slogan), the open and cool factors are probably a big part of the equation.

At this point, there seems to be a general willingness to accept and transmit messages from outside sources (carrying costs are not significant, and transmission is automated via APIs, and so overhead is minimal). That said, infrastructure costs are bound to increase, competition will heat up, illegitimate companies will spot opportunities, and monetization strategies will be devised, which will all put strain on this truly open exchange.

As in the past, formal carrier agreements could be set down, governments could decide to regulate markets, or other forces could come into play that would transform what is now essentially a free-for-all bazaar into a marketplace with hierarchy. All the same, the expectation of openness and transparent transmission will be difficult to counteract or stop. So, new companies that enter the space, even bigger and better funded ones, will have to adhere to the same model of federation that these pioneering companies have established.

Summary

Whether Twitter will remain the focal point of the real-time Web or be supplanted by another or several companies (as happened in the social network space, first with Friendster, then MySpace, and now LinkedIn and Facebook) is unclear. The underlying characteristics of the real-time Web, however, are defining the next major stage of the Internet and will spread throughout its infrastructure in years to come.

Broader trends on the Web point to users having discrete data and services follow them as they move around the Web. Fred Wilson, a principal of Union Square Ventures, has called this the "de-portalization of the Web," and John Borthwick, CEO of betaworks, has co-opted Chris Anderson's phrase "small pieces, loosely joined" to describe the fast-moving risk-taking small companies that work in the space. Both individuals are leading investors in Twitter and other real-time Web companies.

The Internet is shifting from discrete units of websites and Web pages to discrete units of information (e.g. people, organizations, articles and videos, product offerings, store listings, and blog posts) and associated meta data (e.g. images, addresses, reviews, ratings) that move seamlessly around the Web, being slotted where appropriate. These units of information can be organized in ways that are relevant and personal to each individual, using data gleaned from social graphs as well as recommendation and personalization services that allow users to set their preferences.

In some cases, locations are integrated into these units as supplementary information. For example, Google and Yahoo now include map locations and reviews as part of their search listings. Their search engine algorithms read markup formats in the form of microformats and RDFa that are embedded on Web pages. These formats contain tags denoting names of people and organizations, geo-locations, and ratings and reviews. Both companies report great results from the inclusion of this data, both in increased click-through rates and reduced bounce rates. Support for other structured data is almost sure to follow. Reading tags on a page and doing something useful with them in a search result is not a novel concept, but the rapidly growing support of these tags across the Web is a clear sign that data is becoming much more identifiable and actionable.

This trend towards open and accessible data is even more obvious when you consider the real-time stream for all of the reasons mentioned above: atomic real-time messages, public accessibility, attached social graphs. In a sense, this is similar to the vision of the semantic Web. Tim Berners-Lee said at the TED conference in the fall of 2008, "Twenty years ago, I asked everyone to put their documents on this Web thing... Now I want you to put your data on the Web." The difference is that the effort to make data accessible and more actionable on the real-time Web is being made through methods and interactions not necessarily prescribed by the W3C.

Tim Berners-Lee and the W3C use the term "linked data" to refer to the latter's initiative to expose data and make it accessible. "Actionable data" might be a better term to use for the real-time Web because it doesn't imply a particular approach but merely refers to the concept of making data more identifiable and independent. Linked data refers specifically to using RDF and other W3C protocols to link important concepts, a prescription that is overly complex and not likely to address many of the usage cases on the Web.

The real-time stream is a massive body of continously created and authentic content that by itself would be significant. But when it is added to and integrated with other information on other sites, and when derivatives can be created in a number of dimensions, this concept of actionable data reaches the tipping point. In non-Silicon Valley business circles, Twitter is criticized for not having a solid revenue model. Those on the inside (investors and advisers), however, believe the criticism is short-sighted. As with most communication platforms, the value of the network increases exponentially as the size of the network increases.

By having a low barrier to adoption, the network is able to grow quickly. Only after a critical mass has been reached, and after other companies and communities of interest have helped shape how the platform is used, will it become clear what people are willing to pay for. While they may not have a solid grasp yet of exactly how to make money, those who are building companies and investing in the space do know there will be opportunities. In their minds, the real-time stream is at an early stage in its cycle, one that will likely last 5 to 7 years.

If the real-time Web and its fundamental characteristics are widely understood, its benefits and opportunities can extend throughout the Internet and across all industries.

Read part 1 and part 2 of this series.

Guest author: Ken Fromm is a serial entrepreneur who has been active during both the Internet and Web 2.0 innovation cycles. He co-founded two companies, Vivid Studios, one of the first interactive agencies, and Loomia, one of the top recommendation, discovery, and personalization companies. He has worked at the leading edge of recommendations and personalization, interactive development, e-commerce and online advertising, semantic technologies and information interoperability, digital publishing, and digital telephony. He is currently advising a number of startups and looking at the next big thing in Web 3.0. He can be found on Twitter at @frommww.

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.

Should sex offenders be allowed to use Twitter, Facebook, LinkedIn, MySpace and other social networking sites? Illinois Governor Pat Quinn (pictured) thinks not, and this week signed into law a bill that bans all registered sex offenders in his state from using social networks.

This sounds satisfying on first listen after all, why wouldn't we want to take every possible measure to prevent the horrendous crimes of sex offenders? But many legal blogs are pointing out that the legislation is overzealous and possibly unconstitutional.

Peeing in Public? You Might be a Sex Offender

Salon points out that in 13 states you'll be added to the sex offenders register for urinating in public (in two of which, only if a child was present), while 29 states required registration for teenagers who had consensual sex with another teenager. In other words: it's not just child molesters and rapists who would be banned if such laws became accepted.

Then there's the problem of implementation: who is going to keep an eye on the thousands of registered sex offenders to see if they're using Facebook and Twitter? Surely there are better ways to spend police time than tracking the web habits of someone who had sex in high school?

NYTimes.com is Banned, Too

Other blogs, like Technology Liberation and Hacker Journalist, point out that the broad definition of social networking websites essentially bans these people from the web as a whole banned from posting a resume on LinkedIn, banned from reading the New York Times (or any major newspaper) online because it lets you set up a profile. The description reads:

Social networking website means an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.

In short, punishing rapists and sex offenders may feel satisfying, but this isn't what the bill does: it'll likely affect those who committed far lesser crimes, prove unenforceable, and may even be unconstitutional.

Today confirms that Google's not giving up their quest to become more social media friendly. Earlier today they introduced a series of new iGoogle features that make it more of a social network than a start page, and just now they've released an update to your Google Reader to turn it into a social distribution utility for news on the web.

Google Reader Send To is the new feature that you're likely to love instantly. It's the feature we've wanted from our reader since Twitter became our favorite place to share interesting links. In fact, with Send To you can set your settings to send posts to almost every social site that matters: Blogger, Delicious, Digg, Facebook, MySpace, Reddit, StumbleUpon, and obviously Twitter.

Once you configure your favorite social sites to send to in settings you can even add your own custom destinations you'll notice that you can then select the send to button at the bottom of the post and pick your final destination.

Google Reader has also introduced a few less social, but more practical ways, to engage with their feed aggregator. They've added a better way to quickly subscribe to the feeds from people you follow, and also given you an easier way to mark items as read in bulk. So now you can select the Mark all as read drop down to fine tune your preferences and only mark items older than a day, a week, or two weeks as read in one easy click.

Google Reader is starting to blossom, and we're a big fan of the new social additions. Share your thoughts on the refreshed Google Reader in the comments.

Tags: google reader

Late last night, news broke that Facebook was working on a Lite version and had (perhaps accidentally) invited a number of people to try it out. In its own words, Facebook Lite is a faster, simpler version of Facebook.

While it's still unclear exactly what the intended purpose of Facebook Lite might be an even more direct competitor to Twitter or simply a Facebook that works better on slow connections one thing is clear: Facebook needed a diet and Lite appears to be exactly that.

Facebook Has Become Complex

Once lauded for its simplicity, Facebook has evolved into an incredibly complex site. Many users still don't understand the difference between Pages and Profiles (a difference that's going to become increasingly blurred), or between Pages and Groups.

There are literally hundreds if not thousands of different privacy options which Facebook is now trying to streamline. And what was once a network just for college students now includes networks for high schools, companies, and, regional networks, though those are about to get killed off.

But Not Necessarily for the Better

And despite all of this feature bloat, many users still actually miss things that have been taken away or moved to the Highlights area of the homepage, like birthdays and events. In fact, another rumor we recently reported on suggests that Facebook is set to soon undo its Twitter-like homepage.

Could the social network be setting up to try and cater to two worlds: one that wants a focus on public facing status updates, and one that wants the information you used to get in the news feed, like new friends of friends and changes in relationship status? Perhaps that's what Facebook Lite is all about.

One Size Doesn't Fit All?

The biggest thing Facebook has going for it right now is that everyone is on it. Although admittedly I now spend more time on Twitter, I still often check Facebook because so many of my friends use it. But that's the exact same boat MySpace was in a couple years ago: the social network you checked because a big part of your social network was still on there.

However, at the moment, there are no signs that Facebook is slowing down, and overall, it's currently the Web's biggest time sink for users. All of this tinkering certainly makes it seems like they aren't resting on their laurels, but where exactly it's leading to is incredibly unclear at the moment.

But Facebook Lite whatever it is seems like an important part of keeping at least a certain segment of users happy. With a site whose population would make it one of the biggest countries in the world, offering more than one way to experience it might not be such a bad idea.

Tags: facebook, Facebook Lite

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).

Before his untimely death, Heath Ledger had become a full blown movie star and Hollywood fixture known for his acting credentials. Most of us, however, were completely in the dark about his directorial aspirations and work behind the camera.

Back in January of 2007 Ledger proposed to direct a music video for Modest Mouse's then unreleased song, King Rat. A year later, the concept had been finalized, but Ledger died before the music video could come to fruition.

Today, however, the music video has just been released on MySpace by Modest Mouse, and it shows Ledger's directorial vision as brought to life by THE MASSES, who finished the video in his honor.

Modest Mouse has been around since 1993, and the indie rock band has seen managed to attract both a cult and mainstream following. The story goes that lead singer Isaac Brock was approached by Ledger, who aspired to direct the video for King Rat, and marry his love of bold and original music with his impassioned stance against the illegal commercial whale hunts taking place of the coast of Australia each year.

THE MASSES, a collective of directors and artists, decided to complete the video on Ledger's behalf. They're even working with Modest Mouse to donate proceeds from iTunes video downloads for the first month to the Sea Shepherd Conservation Society. The non-profit is dedicated to defending ocean wildlife and habitats, and very much works to fight against the injustices that Ledger wanted to convey in the video.

The 6 minute King Rat music video can viewed on MySpace or THEMASSES website, and it's certainly a beautiful work of art that tells a poignant story by flipping the roles of man and whale. We're slightly disappointed, however, that Modest Mouse and/or THE MASSES have decided not to support embedding of the video, and have even prohibited MySpace users from adding the video to their profile. We hope they'll reconsider, so the video, and Ledger's mission to raise awareness on whaling practices, can reach a larger audience.

*Image courtesy of teadrinker on Flickr

Tags: heath ledger, king rat, modest mouse, music video, myspace

The video clip above, from YouTube, is grainy, but TechCrunch's Mike Arrington assures readers it's in the final movie. I hadn't seen the film myself, unaware it touched on social networking, but Arrington writes that MySpace takes up a solid five minutes of the movie.

The treatment is brutal. Early in the clip, MySpace co-founder Tom Anderson asks Sandler if he actually uses the product. The star's reply: "No, no no. I fuck girls, Tom. I don't have time for that." When he goes on stage, the comic greets the MySpace crowd as "nerds" and then trashes their users: "They say the more friends you have on MySpace the less friends you have in real life." .

Sure, MySpace's competitors are insulted, too. But companies like Silicon Valley-based Facebook are fighting hard to avoid Hollywood; Facebook trashed Ben Mezrich's book about the company, The Accidental Billionaires, and by extension the Aaron Sorkin movie based on that book, calling it inaccurate.

But MySpace is based in Beverly Hills, close to Hollywood, and seems to have a better handle on the big picture: Being on the silver screen, in any context, means you're culturally relevant. Why not embrace the opportunity to make your virtual community a lot more real? (Via TechCrunch.)

This is part of our success story series where users share their tips and tricks on using LinkedIn more effectively. Today's user experience story comes from Divya Gugnani, a venture capitalist and principal at First Mark Capital who provides companies with strategic and operational guidance to achieve their visions. Read more on one of her more recent sponsorship deals she closed, with the help of a LinkedIn connection.

I'm a LinkedIn evangelist, and as a startup CEO, I've become an even bigger fan. I love all things social media and happily ride the Twitter, Facebook, MySpace, and Yahoo! Buzz wave. What makes LinkedIn different and incredibly helpful is the instant access to my professional network with an easy to use interface. As a former venture capitalist I used LinkedIn to source deals, check references for management, and connect with entrepreneurs. Today I run a media company in the culinary space, Behind the Burner, where we leverage a network of over 250 culinary experts to package their best tips, tricks and techniques in the form of short videos, articles and blogs. We also offer tools and ingredients the experts recommend at a discount. We actively virally market our food and beverage tips learned Behind the Burner and I take this same sharing approach on LinkedIn.

I've networked and participated in various entrepreneur, startup, food and wine enthusiast groups on the site, from ONEKO Internet Entrepreneurs to Slow Food to Food Service Professionals Network. People regularly send me inMail for culinary how-tos, restaurant insights, small business questions and entrepreneurial advice. Sometimes these interactions result in new business relationships.

Last month, Michael Gross (CEO of AJ Madison) one of the country's largest e-commerce appliance retailers, reached out to partner with us on one Behind the Burner's video segments through LinkedIn. He wanted to further market his appliance brand and we were considering doing a piece on summer grilling, and so we made a deal. They sponsored the segment and offered a e-commerce deal so our members can enjoy free shipping on appliances through Labor Day and as a result, they got a great professional, widely syndicated video segment highlighting their high end outdoor grills and how to use them.

I also use LinkedIn to generate buzz about my new business and keep my personal and professional network up-to-speed on my culinary happenings. Adding my profile link in outgoing emails adds credibility and the extra qualification nudge with certain requests. Your LinkedIn profile is like a mini resume, that snapshots your skills, experience and offerings and I like being able to subtly sell my expertise, as well as investigate other people's potential by reviewing their profiles. This has been great resource for recruiting new talent, including writers, videographers, graphic designers and interns.

Some fans objected to Reznor's claim that Topspin Media (video interview) got it right with its re-release of the Beastie Boys album Ill Communication, which offers a wide array of merchandise in just about every conceivable format at a wide variety of prices. It's become a well-worn criticism of the independent distribution model that fledgling bands need a helping hand in order to make it in the music business. Not so, says Reznor. According to him, giving away digital music while charging for scarce, premium edition is the best way forward for artists of all stripes not just Radiohead and his own band, Nine Inch Nails.

Forget thinking you are going to make any real money from record sales, wrote Reznor on his message board. Make your record cheaply (but great) and GIVE IT AWAY [as DRM-free MP3s] Collect people's e-mail info in exchange (which means having the infrastructure to do so) and start building your database of potential customers. Then, offer a variety of premium packages for sale and make them limited editions / scarce goods.

It's a play straight out of Anderson's playbook (and, in fact, Anderson cites Nine Inch Nails as an example of a business that understands Free).

To put it into practice, Reznor advises that bands distribute through Amazon, TopSpin or Tunecore; set up a simple, Flash-free site outside of MySpace (which he says is dying and reads as cheap / generic); never abuse their mailing list; use free tools from Twitter, Flickr, Vimeo, YouTube and SoundCloud; and give people a reason to keep coming back to their site (Reznor's own forums are an example of this strategy).

However, Reznor says the strategy of giving away music in return for e-mail addresses, then marketing pricey box sets and other premium goods to those e-mail addresses only makes sense if a band wants to keep all its money and stay in control of its image.

If you are looking for mainstream super-success (think Lady GaGa, Coldplay, U2, Justin Timberlake), your best bet in my opinion is to look at major labels and prepare to share all revenue streams / creative control / music ownership. To reach that kind of critical mass these days, you'll need old-school marketing muscle, and that only comes from major labels.

Good luck with that one.

See Also:

• Free! Why $0.00 Is the Future of Business
• TopSpin Lets Bands Ape Radiohead, Nine Inch Nails
• Video Interview: Ian Rogers, Topspin Media
• SoundCloud Threatens MySpace as Music Destination for Twitter Era
• Wired Editor-in-Chief Chris Anderson on the Future of Free
• Nine Inch Nails and Radiohead Dominate Amazon MP3 Chart
• It Just Got Cheaper To Sell a Song on iTunes
• MySpace Music: What Went Wrong, and What's Being Done About It

Photo: Andrea Veraart

I've noticed a strange trend lately.

For some reason, people seem to be equating social media with social networking.

At the same time, they seem to be treating blogging as something other than social media.

I find this very strange indeed.

For example, here the author proclaims that he's quitting social media and gives his reasons why. But he also states he'll continue to blog, by god.

Then there's this other post, which did a nice job of rounding up the discussion about the latest blogs are dead red herring. Problem is, the title Blogs vs Social Media seems to expressly state that the two are different and distinct things.

Did I not get the memo on this?

Blogs are Social (and Alternative) Media

First, let's look at a definition. In the case of social media, I think even Wikipedia can be trusted:

At its most basic sense, social media is a shift in how people discover, read and share news, information and content. Technologies include: blogs, picture-sharing, vlogs, wall-postings, email, instant messaging, music-sharing, crowdsourcing, and voice over IP, to name a few.

In fact, it's a fairly easy case that blogs were the first modern form of social media. I say modern because many would argue that social media started pre-web with Internet Relay Chat and BBS systems. Heck, the most popular part of lame ol' America Online was the cyber-sex social aspect.

So in the modern social media sense, blogs came way before social networking exploded with MySpace, Facebook, and Twitter. Blogs pioneered social media well before Friendster came and went (remember Friendster?).

One thing you'll notice in the definition above is the emphasis on content. Not just user-generated conversational content, but the production of content that is an alternative to traditional media AND that benefits from interlinked conversation and comments.

Maybe the fact that old media has co-opted those aspects of blogs is the reason that some people no longer see blogging as social media. I think that's a bit silly.

Media Producer Versus Social Networker

Maybe I've got it wrong, but the fascinating part of social media to me is not just the social networking. It's the fact that anyone willing to put in the work can become a media producer/personality without speaking a word to anyone in the existing media power centers of Los Angeles, New York, et al.

Blogs are simply the best way to publish new media content. And social media news and networking sites are the ways that content gets exposure. It's not money and geography that determines if your content spreads it just has to be deemed good enough to be shared by regular people.

If you want to become a music journalist, no one in LA or NYC can tell you no. If you want a shot at becoming an actress or celebrity without enduring casting couch sexual harassment, you can absolutely go for it and succeed.

From a more practical standpoint, using social media in terms of media production is what content marketing is all about. Producing content and having something related to sell is one way where free content pays for itself big time.

• It's how producing your own video show about wine boosts the bottom line of your bricks-and-mortar wine store to the tune of millions, all while making you a celebrity along the way.
• It's how you write a book and create buzz for it without waiting for Oprah to call.
• It's how you create a lucrative business with high margins and hefty happiness.

When you think like a media producer in this brave new social media world, it's your content that social networkers are sharing and promoting, and that translates into your cash. If you're only social networking, you're only someone's user-generated content, and even your digital overlord struggles to make money.

What's the Point?

Honestly, I'm not sure. I just see so much unnecessary confusion out there.

What do you think?

• Is it because people with vested interests in confusion portray social media as something radically new when it's mostly an evolution of the old?
• Should I simply quit worrying about it and stick with those of you who get it?
• What do you think about tofu? Tasty or nasty?

About the Author: Brian Clark is founder of Copyblogger and co-founder of DIY Themes, creator of the innovative Thesis Theme for WordPress. Get more from Brian on Twitter.

LOS ANGELES A federal judge on Thursday overturned guilty verdicts against Lori Drew, and issued a directed acquittal on the three misdemeanor charges.

U.S. District Judge George Wu granted a defense motion to overturn the jury verdict in the case after reviewing transcripts from last year's trial, in which 50-year-old Drew was convicted of three misdemeanor charges of unauthorized computer access.

Drew had faced a maximum sentence of three years and a $300,000 fine. Although prosecutors sought the maximum, probation authorities, in a pre-sentencing report sent to the court, had recommended probation and a $5,000 fine.

Drew was accused of participating in a cyberbullying scheme against a 13-year-old girl who later committed suicide. The case against Drew hinged on the government's novel argument that violating MySpace's terms of service for the purpose of harming another was the legal equivalent of computer hacking.

In September 2006, prosecutors said, Drew conspired to create a fake MySpace account for Josh Evans with her then 13-year-old daughter, Sarah, and a then-18-year-old employee and family friend named Ashley Grills.

Prosecutors alleged that Drew and the two others used the profile to lure Megan Meier, a 13-year-old neighbor, into an online relationship with Josh to find out what Megan was saying about Drew's daughter online. But in October, one of the group, writing as Josh, turned against Megan, and told her that the world would be a better place without her. Shortly afterward, Megan hanged herself in her bedroom.

MySpace's user agreement requires registrants, among other things, to provide factual information about themselves and to refrain from soliciting personal information from minors or using information obtained from MySpace services to harass or harm other people. By allegedly violating that click-to-agree contract, Drew committed the same crime as any hacker, prosecutors claimed.

But testimony in the case offered by prosecution witness Ashley Grills under a grant of immunity showed that nobody involved in the hoax actually read the terms of service. Grills also said that the hoax was her idea, not Drew's, and that it was Grills who created the Josh Evans profile, and later sent the cruel message that tipped the emotionally vulnerable 13-year-old girl into her final, tragic act.

Drew was cleared of the felony computer-hacking charges by a jury, but convicted of three misdemeanors for unauthorized computer access. The jury deadlocked on the felony charge of conspiracy.

More details to come.

Photo: AP

See also:

• Judge Postpones Lori Drew Sentencing; Weighs Dismissal
• Can Lori Drew Verdict Survive the 9th Circuit Court?
• Prosecutors Seek 3 Years in Prison for Lori Drew
• Lori Drew Not Guilty of Felonies in Landmark Cyberbullying Trial
• Prosecution: Lori Drew Schemed to Humiliate Teen Girl
• Government's Star Witness Stumbles: MySpace Hoax Was Her Idea, Not Drew's
• Experts Say MySpace Suicide Indictment Sets Scary' Legal Precedent
• Blog Readers Out Anonymous Adults that Newspaper Refused to Identify

Gibson v. Craigslist, 2009 WL 1704355 (SDNY June 15, 2009). The CMLP page. The Justia page.

In my lengthy deconstruction of the Barnes v. Yahoo case, I criticized the Ninth Circuit for concluding that 47 USC 230 was an affirmative defense (and thus could not support a 12b6 motion to dismiss) without proper briefing or analysis. First, this was sloppy work by the court. Second, the elimination of a 12b6 possibility for the defendants creates a real risk that defendants will be exposed to expensive and time-consuming discovery to eliminate plainly meritless cases. Yahoo and a group of amici have asked the Ninth Circuit to reconsider this aspect of the ruling, and I hope they do so.

Meanwhile, today's case does a competent job reviewing whether or not 47 USC 230 can support a 12b6 motion to dismiss. Unlike the Ninth Circuit, it actually cites and discusses the numerous cases in the area although, remarkably, it does not cite or address the Barnes v. Yahoo case! The court reaches the sensible positions that (1) 47 USC 230 does support a 12b6 motion, (2) as a result, the plaintiff was not entitled to discovery, and (3) the case should be dismissed. For more discussion on why 47 USC 230 supports a 12b6, see Paul Levy's excellent brief.

Substantively, today's lawsuit is brought by a shooting victim who claims that the shooter bought the gun via Craigslist. The complaint argues that Craigslist had a duty to prevent the sale of guns to future criminals and therefore Craigslist breached the duty. This argument is similar to the Doe v. MySpace cases (1, 2) in which the plaintiffs argued that MySpace had a duty to police its website "premises" to prevent online communications that lead to offline crimes. The plaintiff's argument here fares no better here than it did in the MySpace cases. 47 USC 230 precludes the imposition of liability for any breach of duty by failing to police its users' communications (putting aside the also-relevant inquiry of whether Craigslist could have any duty that would have prevented this offline tragedy). The plaintiff tries to get around 230 by arguing it's just trying to hold Craigslist accountable as a "business" rather than as a speaker or publisher of third party content, but the court rejects this goofy argument as "unpersuasive."

More on the case from Eugene Volokh.

The TOSBack.org site was, in part, an outgrowth of Facebook's change in its service agreement in February that seemingly allowed the company to use its members' content forever. Facebook changed its terms after an internet revolution of sorts.

The new tracker, chronicling 44 internet companies, shows terms of service agreements side by side with older and new versions, and highlights what is new.

The companies include Facebook, Google,Wordpress, Data.gov, YouTube, Apple, GoDaddy and, among others, eBay.

See Also:

• Experts Say MySpace Suicide Indictment Sets Scary' Legal
• AT&T, Comcast Deny RIAA Three-Strikes' Participation
• Comcast Deflects User's Questions - Updated
• AT&T Revokes Right to Disconnect Based on Political Speech
• Does Your ISP Sell Your Internet History? Help 27B Investigate
• Adware Maker Says Facebook Security Warning False and

Sometime next week, the company is going to announce that in its first month of inclusion in comScore's measurement system, it has taken the lead over one-stop shop gaming destinations in traffic by a margin. Combined with the company's claim that the so-called extended network' is growing its delivered impressions by 5 to 10% month-over-month, Mochi Media should be attracting over 100 million visitors on a monthly basis right about now.

Looking at worldwide traffic, comScore pegs the Mochi Media network to have received a little over 91 million unique visitors last April, or roughly 8.2 per cent of the total traffic measured in the Online Gaming' category for that month. These are impressive numbers: the second ranked online gaming destination is Spil Games, and the total amount of traffic that network receives on a global scale per month is close to that of Mochi Media Action, a subset of Mochi's network made up of only one genre (adventure games). Familiar brands you'd expect to rank higher, such as Yahoo! Games, MSN Games, EA Online and Nickelodeon, all obtain less than half Mochi Media's reach worldwide.

It's worth noting, however, that most of this traffic is coming from countries outside the U.S.: from those 91+ million visitors per month worldwide, only about 16 million visitors or roughly 17% originates from the Unites States. The company tells me a lot of visitors come from other English speaking nations like Canada and the U.K. but also from China and a good number of European countries.

I also got some numbers regarding its current network size: Mochi Media currently includes more than 14,000 games played across 30,000 websites, which the company claims translates to 1 billion game plays a month worldwide. A company representative declined to share any details about its revenue - the company provides technology for game developers to integrate advertising units powered and distributed by Mochi Media - but did say sales of pre-roll video advertising units are going particularly well, with CPM rates in the low to mid-teens for the U.S. and the UK.

Mochi Media is backed by $14 million in venture capital from Accel Partners and Shasta Ventures. Its most recent financing round was a $10 million Series B round from both investors back in June 2008. Meanwhile, the startup has convinced both a former MySpace (Carol Werner) as a Yahoo exec (Eric Boyd) to join its ranks and spurred small startups like the recently seed-funded HeyZap to do similar things.

Keep your eyes on this one, folks.

Crunch Network: CrunchBoard because it's time for you to find a new Job2.0

Cliqset is not exactly an easy concept to explain, but here goes. Essentially, the platform aims to stitch together the social web by allowing users and developers build, organize and share social information across a wide variety of services. As an end user, Cliqset can help you merge and share the social information (your status updates, location, photos, etc) currently scattered around the web with the people, applications and devices you already use and trust. Developers on the other hand get access to an extensive set of read/write social APIs they can use as an alternative to building and managing support for their own.

The second beta, launching today, comes with a new Location Services API that allows developers to build apps for web and mobile by using location info from users. With the API, developers can fetch and use address information using the latitude and longitude coordinates provided by mobile devices. The gathered location information can be tied to user activities but also be used to store more generic location information that's relevant to the applications they build on top of the Cliqset platform.

A related new element is the integration of Cliqset location services with third-party services like BrightKite, FireEagle and Twitter, basically simplifying how a user can keep their social and location information in sync across the Web.

Also new is a fresh push/pull architecture for social information that travels to and from Cliqset, Cliqset-enabled applications and the supported third-party services. A mix of push/pull functionality is now possible with over 30 third-party services, including Twitter, Facebook, Myspace, identica, laconica, Linkedin, FireEagle, and FriendFeed. It's like the latter on steroids, actually.

Cliqset has recently closed its second seed round, $1.5 million coming from angel investor Derek Mercer, founder and former chairman and CEO of Vurv Technology, a provider of talent management software that was acquired in 2008 by Taleo for about $128.8 million. This comes in addition to an earlier early-stage capital injection of $500,000 by the man, bringing the total invested in the startup to $2 million.

Cliqset - Merge, Organize and Share Social Information from cliqset on Vimeo.

Crunch Network: CrunchGear drool over the sexiest new gadgets and hardware.

MOBfest is an annual music festival in Chicago that features local bands. Natiiv Arts & Media, my company, focuses on social media coaching for local bands. It only makes sense that MOBfest and Natiiv would come together in the form of a showcase.

On June 18, 2009, at the Fiesta Cantina on Clark, four bands that work with Natiiv will be performing. The line-up is....

Calvin Marty & The Sunken Ship (headlining... you might remember them from this post.)

Cobalt and The Hired Guns (who were in the Metromix contest with I Fight Dragons)

Incredible Shrinking Boy (from The Real World soundrack)

and Matt Ryd (who has been featured on Scrubs and was an RA in college)

For now I'm saying that the door opens at 7PM.. I don't know what the cover is going to be... (I've never actually been in charge of a show like this before, so Rachel from MOBfest is leading the way.) Why don't you hop on over to Facebook and RSVP?

On Twitter? So are these guys. @cmatss @wil_fleming @cobaltandthehgs @cobaltmatt @incboy @mattryd

One more Natiiv band that I know also have a MOBfest show - that's I Fight Dragons and they'll be at the Elbo Room on June 20.

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The Los Angeles authorities said John Schiefer, 27, was the nation's first defendant to plead guilty to wiretapping charges (.pdf) in connection to using botnets.

Schiefer, who went by the online handle "acidstorm," faced as many as 60 years in prison and acknowledged using a botnet to remotely control computers across the United States. Once in control of the computers, the authorities said, (.pdf) his spybot malware allowed him to intercept computer communications. He mined usernames and passwords on accounts such as PayPal and made purchases totaling thousands of dollars without consent.

The authorities said he worked by day as an information security consultant with 3G Communications. After his guilty plea, Schiefer was hired at Mahalo, the so-called "human powered search engine." Its founder, Jason Calacanis wrote that the company failed to realize that the Los Angeles company had hired a man who had pleaded guilty to being a hacker.

Calacanis point out that Mahalo users' data was not breached by Schiefer.

Note to Mahalo Users: John's work is well-supervised. Mahalo follows strict security policies and we don't store any sensitive data anyway. (Even if one of our employees did go off the deep end, the most they would have access to would be your questions and answers on Mahalo Answersnot much damage can be done there since they're all public anyway).

The defendant was among eight individuals indicted or successfully prosecuted in a crack down on black hat hackers who use armies of zombie computers to commit financial fraud, attack web sites with floods of traffic and send spam. The crimes at issue involved more than $20 million in losses, according to the FBI.

The FBI dubbed the eight cases "Operation Bot Roast II" -- the second round of its investigations against botnets, one of the most dangerous threats online today. The first FBI crackdown on botnets was announced in June, 2007.

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