• notebook paperBe optimistic: bring lots.


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


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


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


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


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


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


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


• printer paper


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


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


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


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


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

Non-writing Related

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


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


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


• water


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


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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

First, let me inventory the raw materials that got me thinking this way. Recently JC Hutchins posted that he had been dropped as an author by St. Martins Press and that they would not be publishing the 7th Son sequels. The post lives between a gut-check and a crisis of faith from one of the pioneering new media creator/ novelist hybrid guys. He also posted about monetary realities of writers pubishing via ebooks. Not that long before this, I had listened to JC's Hey Everybody interview with Pablo Defendini and Ami Greko from The New Sleekness blog. It's a really interesting discussion about the future of book publishing by industry professionals young enough in their careers to be less invested in the status quo and more willing to help a new future emerge. (Side note 1: I met Pablo and Ami at last year's Dragon*Con in the classic SF con fashion I wanted to meet them, saw them in a hotel bar, asked if I could sit with them, introduced myself and hung out for an hour. Try it, it works! ) Much in my thinking was informed over the last month by the Amazon/Macmillan ebook pricing wars of far too large a trail to link to anything. In that debate I did first run across Joe Konrath, his fiction and some of his posts with amazingly open and detailed statistics of what he sells and what he makes from digital publishing. (Side note 2: I bought, read and enjoyed his book Whiskey Sour as fallout from the debate).

There are many other bits of thought in the mix, such as my feelings about beginning my own novel during NaNoWriMo and thinking about hiring my friends at Sterling Editing to work on it and what I might choose to do with such a book when)it is finished. That's enough of a prelude, though. Time to hit it.

JC Hutchins struck a nerve when he basically waved the white flag on his current way of working.

Creating podcast fiction does does not generate direct revenue for me. Based on anecdotal and statistical data, very few people are willing to pay for general podcast content, much less podcast fiction. Since my goal is to make a living wage with my words, the current monetization models including in-show advertisements will not deliver this. Dedicating time and effort to my non-fiction podcast projects will deliver equally underwhelming monetary results.

It is also apparent to me that using the Free model to promote a tangible product, such as I did with 7th Son: Descent and Personal Effects: Dark Art, does not deliver sustainable sales results. I have friends some of whom are my best friends, the most talented people I've had the privilege to know and work with who have absolute faith in this model. I treasure their trailblazing efforts and enthusiasm. My faith, however, has been fundamentally rattled.

Put simply: The new media model viably supports only the most blessed and talented of authors. The time, effort and money I invest in entertaining you for free pulls my attention and talent away from projects that can generate revenue. While podcasting, podcast fiction, and most importantly your support and evangelism has positively impacted my life and career in ways I'll never be able to fully express, I cannot continue to release free audiofiction if I wish to make a living wage with my words.

This is pretty big stuff in the world of podcast fiction. Hutch was one of the pioneers of the form and his getting picked up by St. Martins was considered a watershed and a validation for the medium. So if he can't make it in this world, what does that say about all the other podcast novelists who are less engaged, have less of a fan base, less sheer horsepower? Does it mean this medium is screwed?

I am positing that Hutch had a terrible misfortune of timing, that he arose as a viable author at exactly the wrong moment in publishing history. As he started down his path it seemed like the end game was to get a book deal with a major publisher. For writers of the last 100 years, this was the reasonable career success path for authors, and practically the only one. In the last few years though a sea change has happened so rapidly and thoroughly to flip that Hutch got his boat capsized in the process and he will be far from the only one. As crazy as it may sound, for a certain kind of author at this point I think a major publishing contract may seem like winning the game but is in fact losing it.

The red flags I got from the JC Hutchins post started here:

Examining the lead up to, and release of, the novel, I cannot see how I could have promoted it any better than I did. I literally went broke promoting this book and Personal Effects: Dark Art (another novel that will not have a sequel; it also underperformed). I conceived numerous brand-new online marketing campaigns that dazzled you and others. I asked you to purchase the novel, and many of you did.

If JC is literally going broke promoting 7th Son and Personal Effects book, I think a reasonable question to ask is What is St. Martins Press' role in this? If JC is willing and able to put so much of his own time and money into the promotion of the books, what value is he getting from the big publisher that is worth giving away 90% of the sale of the book to them? 50 years ago, and 20 years ago and 2 years ago, this made sense. It was pretty much impossible to get a book published and into the hands of the world in any significant way especially in a way that a writer could make a full-time living without a major publisher contract, especially one paying advances at a level to be a livable wage. Nowadays, especially due to the markeplace enabled by the Kindle, Nook, Sony Reader et al, that's a different equation.

Joe Konrath's post about the money he makes from the Kindle store shows a really clear pattern that he summarizes with:

My five Hyperion ebooks (the sixth one came out in July so no royalties yet) each earn an average of $803 per year on Kindle.

My four self-pubbed Kindle novels each earn an average of $3430 per year.

If I had the rights to all six of my Hyperion books, and sold them on Kindle for $1.99, I'd be making $20,580 per year off of them, total, rather than $4818 a year off of them, total.

So, in other words, because Hyperion has my ebook rights, I'm losing $15,762 per year.

For a writer with an engaged audience, like JA Konrath has and like JC Hutchins has, there may well be more money in their books self-published primarily through the Kindle and other ebook stores. An interesting bit from the Konrath numbers above, that's from making 35% of the sales price for his direct books. When it changes to 70%, he'll be making twice as much per book as he posted above for the self-published ones.

Let me say it again: for a writer who is engaged with their audience and reasonably prolific (because you need new books to keep this engine turning), we may be at the turning point where a better living is available through self-publishing than a big New York publisher book deal.

There are certainly authors that this model will not work for. During my preparation for last year's Podcasting for Working Writers panel at Dragon*Con I talked to both James Patrick Kelly and Kelley Eskridge on this topic and they both raised the point that for a number of old school writers, the idea of engaging at the level of podcasting and doing large parts of their own publicity is anathema. A reasonable chunk of authors don't want to get out in the limelight and picked this career specifically so they don't have to engage. They write their books, maybe do a few conventions a year, do some bookstore events and that's it. Back to the keyboard where the serious work happens. That's fair enough and those writers will always need a publisher to do the parts of this business that would make them unhappy to pursue.

I think of the classic big publisher and big record label model as basically serving the function of the bank or maybe as VC. The manufacturing and distribution of the creative work was too capital intensive for an individual so this company would lend that money to the process, make the books or records show up in the store, do some publicity and keep most of the money. They insulate the creator from the process and from the retailers and fans. What publicity efforts exist, the big media company acts as a semi-permeable membrane to let a little of the public through, but not a lot. Ultimately in this model, the relationship with the fans of the buying public is owned mostly by the retailer and the publisher or label, very little by the writer or musician. For the author that doesn't want to feed and water that relationship, that's perfect.

For the other kind of author, a JC Hutchins or Mur Lafferty or Scott Sigler, going with a major publisher outsources to a third party a relationship with their fans that these writers are really really good at maintaining. When Hutch is paying his own money to publicize his books and his his own direct line into his own fanbase, what can the big publishers do for him? They could give him large enough advances to keep his bills paid while future books are written, but obviously they aren't willing to do that because sales aren't high enough. JC's books earn money, but not enough money to keep him in that system. For me, the real question is Did St. Martins Press do 9 times the work than JC did to get the work promoted? If not, what did they do to deserve a 90/10 split?

Last November for NaNoWriMo I began a novel that I have literally been thinking about since 1991 when I was 23. While I came nowhere near finishing it that month and am nowhere near finished now, I have a goal to finish this novel in 2010. I've already been thinking about what happens when I finish the book. Do I try to find an agent and then try to have them place it with a major publisher? Since I don't have any plans beyond that one book and thus don't necessarily have a writing career in mind, how does that affect my decision making? At the moment I'm leaning towards not bothering to place the book with any publisher at all. I'll pay Nicola and Kelley at Sterling Editing to work with me to get it publishable and hire a book designer and/or artist to hone the final product and then publish it to the Kindle store, Smashwords, the Nook store and whatever else seems reasonable at the time. I'll probably release it via Podiobooks.com at the the same time, do my publicity via that and the other usual online suspects and let it ride. The key point to me is that the energy I could spend in placing my book at a big publisher could be spent selling the book to readers and I'll probably make more money that way in the long run. This isn't the way things worked for the 19th and 20th century and it may not be the way it works in the future, but March 2010 it is the way it looks to me now. The validation of having a major publisher decide I'm their sort of writer doesn't do anything for me. I don't need the book contract to pay my living, I'd end up doing mostly my own publicity anyway so what the hell does the publisher have to offer me anymore? Rather than have them put out a $15 Kindle book that I see a buck or two from and no one buys with a print version that is on and off the shelves in head-swimming time on a death march to the warehouse remainder store, I'd rather put out a $5.99 ebook version that I see $4 from each one and more people buy. I have a whole rant on how the true function of ebook platforms is to enable impulse buys, but this current post is already too long. That must come later.

When I interviewed Cory Doctorow in 2006, one of the things he said is that the generation coming of age now is the first one to arise without a stigma attached to self-publication. Since I've been paying attention to the world of science fiction and writers in general, a giant shift has happened. When I joined GEnie in 1992, the notion of self-publishing your work meant that it was unreadable tripe and the very thought of it was risible to any serious author. Nowadays, it might well be the most rational economic choice available. If you aren't already in the system and earning livable wages from advances on your books, and you are the sort of writer and person with that drive a JC Hutchins, a Scott Sigler, a Tee Morris, a Mur Lafferty, an Alec Longstreth, someone willing to do more than thrown the manuscript over the wall and wait for finished copies to return it might be time to take the reins yourself and just do this. The costs are low which means the cost of failing is low. The traditional publishers aren't paying that much anyway so the opportunity costs are low. Just do it. Lynne Abbey, CJ Cherryh and Jane Fancher did. The writers at Book View Cafe did. I will. Don't pin your hopes on a big publisher with economic drivers that are different than yours. Just do it yourself, work the people yourself and keep as much of the money as you can.

Tags: akismet, amazon, ebooks, jakonrath, jchutchins, kindle, macmillan, publishing, sterlingediting, stmartinspress

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

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

via Blogeee

A post from the Asus Eee PC blog.

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

We're not going to see the iPad hit stores for another two months, but it is already changing the e-book game and forcing publishers and consumers to pick sides.

Last night, several blogs including Venturebeat and NYT's Bits Blog noticed something was amiss on the website of the world's largest retailer: Amazon suddenly stopped selling books from Macmillan, one of the world's largest book publishers.

Not every Macmillan book is gone, but popular ones such as The Gathering Storm are no longer sold by Amazon, either in physical or Kindle form. You can still find the Amazon pages for Macmillan's books you just can't order the actual books.

According to The New York Times, the reason the books were pulled was the iPad. Macmillan told Amazon that it wanted to change its pricing and compensation agreement, upping the price of some books from $9.99 to $15 and splitting sales 70/30, the same model Apple uses for the iPhone app store and its upcoming iBooks store. Amazon's apparent response was to flex its muscle and pull countless Macmillan books off the virtual shelves.

The Dynamics of the New E-book War

Ever since we got word of the iPad's existence, we've known that Amazon and Apple were on a collision course. Apple saw an opportunity to not only create a new category of device, but to get its hands into the publishing market. In the same way Apple has transformed music, the computing giant would reshape books and become the primary distributor of e-books worldwide.

Back in September, we wrote a lengthy piece explaining why we believed Apple's tablet would eat the Kindle's lunch, displacing Amazon's lordship over e-books. We argued that its multipurpose functionality, color screen, and sexier interface and look would put it over the top. Now that we know the iPad's starting price ($499), our opinion hasn't changed. While the Kindle will survive, its sales will likely never be the same.

Publishers like Macmillan apparently agree with us as well, otherwise it wouldn't so boldly demand price changes from Amazon. Before the iPad was revealed, Amazon was the only player in the game. You played by its rules or you could take a hike. Now with a viable alternative only months away, publishers can run to Apple, where they will have more freedom over its e-book prices.

Amazon's clearly worried, which is why it's launching an app store and used its earnings report to remind us that the Kindle is far from dead. But if publishers decide to abandon the Kindle, then Apple will have won the war by default.

That's why Amazon decided to use its biggest weapon, Amazon.com itself, against Macmillan to send a message to every publisher: If you don't play by its rules, then you can't be in its store. While a publisher can likely survive without the Kindle, the same cannot be said for Amazon.com. Publishers simply cannot afford to leave the world's largest online retailer.

The Kindle and the iPad offer different experiences. The Kindle's battery life and e-ink are strong selling points for the device as a reader, but the iPad offers so much more. Apple's banking on those extra features and its undeniable reach to turn the Kindle into an endangered species.

Publishers now have to either choose a side or walk the tightrope between the two companies. The end result will be a long, drawn-out war that will both help and hurt consumers. How it will end is anybody's guess.

Tags: amazon, apple, Apple iPad, Apple Tablet, ebooks, iBooks, ipad, Kindle, Macmillan, Tablet, trending

We're not going to see the iPad hit stores for another two months, but it is already changing the ebook game and forcing publishers and consumers to pick sides.

Last night, several blogs including Venturebeat and NYT's Bits Blog noticed something was amiss on the website of the world's largest retailer: Amazon suddenly stopped selling books from Macmillan, one of the world's largest book publishers.

Not every Macmillan book is gone, but popular ones such as The Gathering Storm are no longer sold by Amazon, either in physical or Kindle form. You can still find the Amazon pages for Macmillan's books you just can't order the actual books.

According to the New York Times, the reason the books were pulled was the iPad. Macmillan told Amazon that it wanted to change its pricing and compensation agreement, upping the price of some books from $9.99 to $15 and splitting sales 70/30, the same model Apple uses for the iPhone app store and its upcoming iBooks store. Amazon's apparent response was to flex its muscle and pull countless Macmillan books off the virtual shelves.

The Dynamics of the New Ebook War

Ever since we got word of the iPad's existence, we've known that Amazon and Apple were on a collision course. Apple saw an opportunity to not only create a new category of device, but to get its hands into the publishing market. In the same way Apple has transformed music, the computing giant would reshape books and become the primary distributor of ebooks worldwide.

Back in September, we wrote a lengthy piece explaining why we believed Apple's tablet would eat the Kindle's lunch, displacing Amazon's lordship over ebooks. We argued that its multipurpose functionality, color screen, and sexier interface and look would put it over the top. Now that we know the iPad's starting price, ($499), our opinion hasn't changed. While the Kindle will survive, its sales will likely never be the same.

Publishers like Macmillan apparently agree with us as well, otherwise they wouldn't so boldly demand price changes from Amazon. Before the iPad was revealed, Amazon was the only player in the game. You played by its rules or you could take a hike. Now with a viable alternative only months away, publishers can run to Apple, where it will have more freedom over its ebook prices.

Amazon's clearly worried, which is why it's launching an app store and used its earnings report to remind us that the Kindle is far from dead. But if publishers decide to abandon the Kindle, then Apple will have won the war by default.

That's why Amazon decided to use its biggest weapon, Amazon.com itself, against Macmillan to send a message to every publisher: If you don't play by its rules, then you can't be in its store. While a publisher can likely survive without the Kindle, the same cannot be said for Amazon.com. Publishers simply cannot afford to leave the world's largest online retailer.

The Kindle and the iPad offer different experiences. The Kindle's battery life and e-ink are strong selling points for the device as a reader, but the iPad offers so much more. Apple's banking on those extra features and its undeniable reach to turn the Kindle into an endangered species.

Publishers now have to either choose a side or walk the tightrope between the two companies. The end result will be a long, drawn out war that will both help and hurt consumers. How it will end is anybody's guess.

Tags: amazon, apple, Apple iPad, Apple Tablet, ebooks, iBooks, ipad, Kindle, Macmillan, Tablet, trending

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Introduction

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

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

Development of the Reviews

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

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

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

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

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

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

Review Fabrication

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

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

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

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

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

230 as an Immunity Redux

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

Conclusion

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

The updated census of Roommates.com citations:

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

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

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

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

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

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

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

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

First Panel

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

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

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

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

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

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

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

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

Second Panel

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

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

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

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

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

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

Panel 3

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

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

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

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

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

Panel 4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following my remarks, we had more Q&A.

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

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

Danielle: intermediaries are the lowest cost avoiders.

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

Danielle's Wrap-Up

We all agree that:

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

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

UNICO National said Tuesday that "Jersey Shore" relies on crude stereotypes and highlights cursing, bad behavior and violence in depicting renters at a New Jersey beach house.

An MTV promo says the participants "keep their hair high, their muscles juiced and their fists pumping all summer long!"

UNICO President Andre DiMino calls the show "trash television."

It's scheduled to debut Dec. 3.

MTV did not immediately return a telephone message seeking comment.

WATCH:

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

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

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

Two other interesting doctrinal notes from the opinion:

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

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

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

When you think of a hard-core gamer, do you picture a teenage boy battling his friends in World of Warcraft?

Also on wired.com:

• Gaming Gets a Level Up On Age
• Recession Proof' Gaming Industry Ignores the Stock Market
• SXSW: LoudCrowd Turns Music into Social Video Arcade
• Big Game Publishers Muscle In On iPhone Upstarts

Facebook is really flexing its muscles today. First it acquired radically innovative social network FriendFeed and now it has announced that it's opened up search across all status messages, notes and shared links that users have marked as public. (Don't worry, yours aren't public unless you changed your own settings.)

Searching across all users, whether you know them or not, requires a couple of clicks - but the availability of the feature marks a dramatic turning point in the history of Facebook. For months the company has been pushing users towards being more public and less private. This is why.

Sponsor

Google still can't index the contents of Facebook, because Facebook is positioning itself as a major competitor to Google. There is no RSS feed available for searches, even updates marked public are only public within the walls of Facebook, not on the open web at large. Developers can't build innovative new applications on top of the new Facebook search. It's a walled garden - why would you ever want to leave when Facebook can fill all your needs as a user?!

There's something creepy about this. We've asked before if Facebook is a cult and we've discussed how its privacy moves represent an agenda that praises privacy but doesn't support the kind of privacy people experience in real life. (You share different things with different people, depending on the context.) You probably joined Facebook because you thought it was a secure place to converse with friends and family. It may still be, but the company sure would like it if you'd please lift the lid and let the world search and view those conversations.

Filed under: Cellphones

HTC Hero on sale tomorrow at Orange UK originally appeared on Engadget on Tue, 21 Jul 2009 15:02:00 EST. Please see our terms for use of feeds.

Luckily, I found it first try. I decided to try out Linc Fessenden's bashpodder. It's a 50 line bash script that takes a simple text file of feed URLs and fetches them. No muss, no fuss, no BS. RSS feeds in, podcasts out. I like that. There are now many variations as hackers have fiddled with the functionality, but I'm running the core vanilla mainline version. This one collects together shows into a date based directory. Because of the way it is using wget to fetch the actual files, in most cases it preserves the timestamp of the server version of the file. This actually helps me out a lot in my attempts to listen to shows in chronological order. I did make my own little hack to it, changing where it does the logging of a show URL to the history. The original script does it unconditionally, I have it check the exit code of wget and only put it in the history if that was successful. This way, a failed download will retry later.

Switching from one podcatcher to another is always a bit dicey at first. Since some of these feeds do the insane thing of keeping hundreds of episodes in them, if you aren't careful bashpodder will fetch every one of those and fill up your hard drive. Here's how I handled the transition. It was a bit labor intensive and required me watching it, but after the first run everything was perfect. The thing to be aware of is that there are two files podcast.log and temp.log. The first is the permanent list of fetched files, the second is a working copy and at the end of the run the two are combined, duplicates filtered and the whole thing resaved to podcast.log. As files are fetched, it checks to see if an URL is in podcast.log and if it is, bashpodder skips it.

I ran the script from my MacBook in a terminal window. I ran it via:

sh -x bashpodder.shell

so that it was outputting all of its variables as it worked. When it would get to a new feed, it would splat out the list of file URLs that were parsed out of the RSS feed. I'd copy the files from the list I didn't want downloaded and just put them directly into podcast.log via a file editor. You can be somewhat sloppy with this. When in doubt I let it fetch the file and I'd delete it later. If the URL goes into podcast.log more than once, no problem. It will get taken care of later. This required me riding the script for 45 minutes or so, but I mostly got the old shows into podcast.log manually. After the first run succeeded, I ran the script one more time. It fetched a few at the edges that I missed but then was completely caught up. I deleted files that I knew I had already listened to and away I went.

Now when I run it, I get only the new files. They go into that day's directory, they sort themselves out somewhat by timestamp. I set up a cronjob to run this at 5 AM and now I'm in business. All the scripts that I use to put the files on my Insignia MP3 player work fine with the new directory structure and I'm back in business. Thanks Linc. This workflow is better than what I had, I no longer have Juice bogging down my machine and eating a lot of memory to do this simple task, and the whole thing runs in a simple bash process that I'm comfortable modifying if I want to. Right on.

A close relative of Pac Man, the Stap Man Stapler uses those strong jaw muscles to make your office work a breeze. If his cousin can gobble energy dots and ghosts all day, the least this one should be able to do is to shoot a piece of sharpened metal through a few sheets of paper.

Product Page ( 16.00, about $26)

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

Time is usually - nearly always - displayed by a circular indication: one dial and two (or three) with the time displayed around a perpetual circle. However, this 360 representation of time goes against everything we learnt as we grew up drawing a straight line on a blank page and marking it Past, Present and Future. Why do we think of time as travelling in a straight line yet display it rotating around a circle? The answer is straightforward: mechanisms that continually rotate are much simpler to produce than those that trace a straight line then return to zero. In fact, the latter is so difficult that, until now, nobody has ever managed to develop a production wristwatch with true retrograde linear displays.

The triple-cam is crafted from bronze beryllium, a metal selected for its inherently self-lubricating properties and low co-efficient of friction, and takes the form of three small inclines. The precise shape of the curve of the incline is relayed to the pivoting rack, while the teeth on the end of the rack mesh with and rotate the minute cylinder. The triple-cam makes a complete rotation in three hours so that each of the three inclines takes 60 minutes, and 180 points of reference have been calculated on each of the three cams to ensure the precise and isochronic rotation of the minute cylinder.

Model: UR-CC1

Case: available in either grey gold with titanium case back (limited edition of 25 pieces) or black gold with titanium case back (limited edition of 25 pieces); brushed-satin finish

Movement: calibre UR-CC1; automatic winding regulated by fly brake turbine pneumatic shock absorber

Indications: linear display for hours and minutes with jumping hours and retrograde minutes ; second display both digital and linear

Dimensions: 45.7mm x 43.5mm x 15mm

Dial and Bridges: ARCAP P40. SuperLumiNova treatment on hours, minutes displays

Genesis of a creation

1958. Messrs Gilbert Albert and Louis Cottier combine their talents to create a watch destined to revolutionize the horological world. Their idea is completely outrageous: it is the world's first watch to feature a linear display. It is an extraordinary, avant-garde piece that fulfils none of the aesthetic criteria of the time. As for its linear indication, the idea may seem simple but the execution is a technical headache of monumental proportions. However Messrs Albert and Cottier believe in it and they stick with it, creating a prototype for Patek Philippe.

1959. A patent is deposited by Louis Cottier, detailing the technical scale of the achievement. Then nothing. The prototype is put on to one side. Does the watch even work? Today nobody knows for sure. It took its place in the corner of the Patek Philippe museum and proceeded to arouse curiosity from time to time.

1998. With pencil and paper Martin Frei, co-founder of the URWERK brand and an aesthete at heart, sketches the first outline of his future creation: a watch in which the hours and minutes are indicated by two straight, parallel lines. But he hesitates. With Felix Baumgartner, master watch-maker and co-founder of URWERK, another idea springs to mind the concept of the hour satellite, presented for the first time at Basel. The earlier project is postponed, sine die.

2006. URWERK is henceforth known and recognized for its mechanical hour satellite watches in which orbiting hour satellites indicate the minutes. But the idea of developing a different way of telling the time continues to fascinate Felix Baumgartner. In the end it is the Alfred Hitchcock film The Birds that gives him the decisive nudge in the right direction. In one of the most famous scenes from the film, the heroine seeks refuge in an old Dodge. The image lasts only a few seconds but it is crucial a close-up of the dashboard and its linear speedometer. Yes. That's it! A continuous line with which to mark time. Felix and Martin work non-stop on this new project. Their research leads them to the discovery of Gilbert Albert and Louis Cottier's watch. It will be their muse.

Original Prototype Movement

Watchmaker Felix Baumgartner

I am not big on nostalgia, but I have always loved the linear speedometers found on old cars. My older brother had a 1960's Volvo and it was that which gave us the first idea for a horological linear indication. I recently watched the film The Birds' by Alfred Hitchcock, and in it the heroine took refuge in an old Dodge with a linear speedometer- it is one of my favourite scenes. There are very few wristwatches with linear indications. One of them, if not the first, was The Cobra', which was developed in the late 1950s by Mr. Louis Cottier. It is sensational! Although it was created over half a century ago, it is still very contemporary. Unfortunately, it only exists as a single prototype and was never put into production. Now, 50 years after he filed his patent (1959), URWERK pays homage to the work of Louis Cottier by creating its own interpretation of the Cobra. -Felix Baumgartner

Designer Martin Frei

I am interested in the perception of time. Physicists tell us that time can be warped or stretched, and our daily experiences are with the circular cycles of the days, seasons and years. But I am also intrigued that time can be ordered, even straitjacketed, to flow in a linear direction - a straight line from the past, through the present, to the future. And, because this can represent an individual's lifeline, I feel that this linear format can be a very human way to look at time. That plus the fact that I think it looks really cool! -Martin Frei

Time is usually - nearly always - displayed by a circular indication: one dial and two (or three) with the time displayed around a perpetual circle. However, this 360 representation of time goes against everything we learnt as we grew up drawing a straight line on a blank page and marking it Past, Present and Future. Why do we think of time as travelling in a straight line yet display it rotating around a circle? The answer is straightforward: mechanisms that continually rotate are much simpler to produce than those that trace a straight line then return to zero. In fact, the latter is so difficult that, until now, nobody has ever managed to develop a production wristwatch with true retrograde linear displays.

The triple-cam is crafted from bronze beryllium, a metal selected for its inherently self-lubricating properties and low co-efficient of friction, and takes the form of three small inclines. The precise shape of the curve of the incline is relayed to the pivoting rack, while the teeth on the end of the rack mesh with and rotate the minute cylinder. The triple-cam makes a complete rotation in three hours so that each of the three inclines takes 60 minutes, and 180 points of reference have been calculated on each of the three cams to ensure the precise and isochronic rotation of the minute cylinder.

Model: UR-CC1

Case: available in either grey gold with titanium case back (limited edition of 25 pieces) or black gold with titanium case back (limited edition of 25 pieces); brushed-satin finish

Movement: calibre UR-CC1; automatic winding regulated by fly brake turbine pneumatic shock absorber

Indications: linear display for hours and minutes with jumping hours and retrograde minutes ; second display both digital and linear

Dimensions: 45.7mm x 43.5mm x 15mm

Dial and Bridges: ARCAP P40. SuperLumiNova treatment on hours, minutes displays

Genesis of a creation

1958. Messrs Gilbert Albert and Louis Cottier combine their talents to create a watch destined to revolutionize the horological world. Their idea is completely outrageous: it is the world's first watch to feature a linear display. It is an extraordinary, avant-garde piece that fulfils none of the aesthetic criteria of the time. As for its linear indication, the idea may seem simple but the execution is a technical headache of monumental proportions. However Messrs Albert and Cottier believe in it and they stick with it, creating a prototype for Patek Philippe.

1959. A patent is deposited by Louis Cottier, detailing the technical scale of the achievement. Then nothing. The prototype is put on to one side. Does the watch even work? Today nobody knows for sure. It took its place in the corner of the Patek Philippe museum and proceeded to arouse curiosity from time to time.

1998. With pencil and paper Martin Frei, co-founder of the URWERK brand and an aesthete at heart, sketches the first outline of his future creation: a watch in which the hours and minutes are indicated by two straight, parallel lines. But he hesitates. With Felix Baumgartner, master watch-maker and co-founder of URWERK, another idea springs to mind the concept of the hour satellite, presented for the first time at Basel. The earlier project is postponed, sine die.

2006. URWERK is henceforth known and recognized for its mechanical hour satellite watches in which orbiting hour satellites indicate the minutes. But the idea of developing a different way of telling the time continues to fascinate Felix Baumgartner. In the end it is the Alfred Hitchcock film The Birds that gives him the decisive nudge in the right direction. In one of the most famous scenes from the film, the heroine seeks refuge in an old Dodge. The image lasts only a few seconds but it is crucial a close-up of the dashboard and its linear speedometer. Yes. That's it! A continuous line with which to mark time. Felix and Martin work non-stop on this new project. Their research leads them to the discovery of Gilbert Albert and Louis Cottier's watch. It will be their muse.

Original Prototype Movement

Watchmaker Felix Baumgartner

I am not big on nostalgia, but I have always loved the linear speedometers found on old cars. My older brother had a 1960's Volvo and it was that which gave us the first idea for a horological linear indication. I recently watched the film The Birds' by Alfred Hitchcock, and in it the heroine took refuge in an old Dodge with a linear speedometer- it is one of my favourite scenes. There are very few wristwatches with linear indications. One of them, if not the first, was The Cobra', which was developed in the late 1950s by Mr. Louis Cottier. It is sensational! Although it was created over half a century ago, it is still very contemporary. Unfortunately, it only exists as a single prototype and was never put into production. Now, 50 years after he filed his patent (1959), URWERK pays homage to the work of Louis Cottier by creating its own interpretation of the Cobra. -Felix Baumgartner

Designer Martin Frei

I am interested in the perception of time. Physicists tell us that time can be warped or stretched, and our daily experiences are with the circular cycles of the days, seasons and years. But I am also intrigued that time can be ordered, even straitjacketed, to flow in a linear direction - a straight line from the past, through the present, to the future. And, because this can represent an individual's lifeline, I feel that this linear format can be a very human way to look at time. That plus the fact that I think it looks really cool! -Martin Frei

So Cassetica sued in federal court, alleging a number of causes of action, including violations of the Computer Fraud and Abuse Act, 18 USC 1030 et seq. (CFAA). CSC moved to dismiss pursuant to FRCP 12(b)(6) for failure to state a claim. The court granted the motion, finding that Cassetica did not plead either damage or loss as required by the CFAA.

What the CFAA requires

Interpreting the CFAA differently that at least one other judge in the Northern District of Illinois has (cf. Garelli Wong & Assoc. v. Nichols, 551 F.Supp.2d 704 (N.D.Ill. 2008)), Judge Kendall held that Cassetica was required to plead either damage or loss as such terms are defined in the CFAA. (In Garelli Wong, the court held that both damage and loss must be pled.)

Under the CFAA, damage is defined as any impairment to the integrity or availability of data, a program, a system, or information. Loss is defined as any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.

Insufficient damage allegations

The bare allegations of damage in the complaint were not enough. The court found that Cassetica did not allege any facts that would plausibly suggest that the software downloads authorized or not caused a diminution in the computers or usability of [Cassetica's] computerized data. The court went on to observe that [c]ritically absent from the Complaint are allegations that CSC's downloads resulted in lost data, the inability to offer downloads to its customers, or that the downloads affected the availability of the software.

Insufficient loss allegations

Cassetica's complaint also failed to plead loss. The allegations primarily dealt with the lost fees Cassetica would have received had the alleged unauthorized downloading not taken place. Because Cassetica did not allege that it lost revenues as a result of an interruption in service caused by CSC, its claim for lost revenue fell outside the CFAA's definition of loss.

Download picture courtesy Flickr user soren_nb under this Creative Commons license.

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.

Here are a few items on the subject that I have found highly interesting.

• Dan Conover wrote a piece called The Newspaper Suicide Pact a few weeks ago, and it really seems to have gotten a lot of traction. It was even Boing Boinged a few weeks ago. I've wanted to talk to Dan about his experiences looking at the future of newspapers for the Charleston Post and Courier and then having all recommendations ignored. What I really like about this piece is that he points out a fact I think is really important. In all these pro-newspaper articles they are really arguing the positives for a newspaper industry that hasn't existed for a long time. There are very few plucky rumpled beat reporters wearing out the shoe leather doing investigative reporting so if your argument for newspapers involves this sort of romantic self-image, it ain't reality.
• My AmigoFish recommendation feed dropped in this episode of the show Dave Winer and Jay Rosen do together called Rebooting the News. In it, Rosen discusses his Church of the Savvy analysis and I found it brilliant. I hope he writes it up soon so I can point to it. He points out that many current practitioners of journalism place their highest value on their own savviness, their own ability to be insiders and to understand the game. It really explains the mechanism for phenomena like the lousy process heavy horse race campaign reporting we get. The reporters don't want to test the campaign claims against reality, they want to talk about whether or not they will play with public and whether they will move the needle. I thank Jay Rosen for giving me a cognitive framework for my disgust with the state of reporting. It doesn't make it better, but it explains why it is this way.
• Bruce Sterling blogs about this article in the New York TImes that covers the shocking news - shocking I say - that some blogs are started and then abandoned. The subtext is unmissable - Look at these blogs that don't even keep going! How can you even compare us to them? When not giving itself a romanticized self-fluffing, the newspaper industry spends its time finding things to point to as being worse than it. Stay classy, New York Times! As much as people revere that paper, it means absolutely nothing to me in my life. I could care less if it stays afloat or sinks.

Web professionals are often expected to be "always on" - always working, absorbing information, and honing new skills. Unless our work and personal lives are carefully balanced, however, the physical and mental effects of an "always on" life can be debilitating.

Scott articulates the "what" and "how" of a burnout pointing to some established research. And, as we've come to expect from A List Apart publications, the article also offers up some great remedies for preventing burnouts. As someone who's been through a couple of burnouts, I can tell you from experience that his remedies are spot-on. Peek into the discussion area for the article and you'll find some more practical remedies. The article alludes to a type of burnout that's caused by your employer/workplace. In other words, burnouts caused by working in a dysfunctional environment; these are very difficult because you don't have much control over how they manifest. However, I suspect that a good number of burnouts in this industry are completely self-induced, especially for folks who are lucky enough to find themselves doing something they love to do in their free time (guilty as charged). While most, if not all, remedies mentioned in the article would still go a long way in fighting symptoms of a self-induced burnout, in my experience they'll never truly fix the source of the issue (i.e. your own personality) and consequently, you'll be prone to relapses.

If you think that your personality is bringing on a burnout, then what you really need to be working on is reprogramming your personality. Here are a few tips that you can try in addition to those provided in Scott's article:

• Acknowledge the Issue

  OK, so Scott talks about this, but I want to stress on it. The source of self-induced burnouts is your own addictive personality, so you need to fix yourself. If you find yourself pulling your mobile device out of your pocket every couple of minutes to refresh your inbox or to glance at the twitter stream, you have issues. You're addicted, and addictions generally have negative consequences. The most sustainable way I've found to fix personality issues around susceptibility to addictions is to truly acknowledge that you're addicted and that you want to do something about it. Once you've truly acknowledged the issue, the other remedies have the potential of permanently fixing self-induced burnouts.

• Work 9 to 5

  Scott talks about how it's becoming impossible to do the 9 to 5 thing these days, but I tend to agree with one of the comments that succumbing to that attitude is one of the root causes of burnouts. The good news is that if you're suffering or on path to a self-induced burnout, then putting a 9 to 5 boundary in place is completely your call. You have no excuses to not enforce it. By putting the boundary in place, you're going to force yourself to make time for yourself, your friends, family and hobbies. At first you may not do anything with this "free time", and that's OK.

• Be Consistent

  Don't cheat. Beating burnout is like going to rehab (OK, never been to one, but from what I hear, it sounds a lot like it) you need to cut off your supply, cold turkey, and then consistently work within the framework of your remedies till you're reprogrammed. It will happen, slowly, but surely. Just do yourself a favor and don't cheat yourself. Not even once.

Having said all this, there is a silver lining here best captured by a Def Leppard lyric, "It's better to burn out, than fade away." So, what's your take? Have you ever had a burnout? Why? How'd you get out of it? Got some tips for us?

Finkel v. Facebook, Inc., 102578-09 (N.Y. Supreme Ct. complaint filed Feb. 24, 2009).

A New York teenager has sued Facebook and four Facebook users (plus their parents) for allegedly defamatory content posted in a private Facebook group called "90 Cents Short of a Dollar."

This case fits neatly with other legal battles over "cyber-bullying" (whatever that means), such as the AutoAdmit lawsuits, the Sandler case and the Lori Drew case. (For another recent and troubling example of cyber-bullying that I read just this morning, see Wolfe v. Fayetteville, Arkansas School Dist., 2009 WL 485400 (W.D. Ark. Feb. 26, 2009)).

In this case, the plaintiff's school peers said some not-nice things about her in a private Facebook page. The Newsday article has some more color about the sour relationships between Finkel and the defendants. The plaintiff claims that the posts meant that "the plaintiff was a woman of dubious morals, dubious sexual character, having engaged in bestiality, an 'I V drug user' as well as having contracted the H.I.V. virus and AIDS."

With respect to the claim against Facebook, this lawsuit is unquestionably DOA. Frankly, I'm not sure why the plaintiff bothered to sue Facebook. Facebook is completely immunized per 47 USC 230, and this should be an easy dismissal. The complaint didn't even try to do anything fancy to get around 230; in fact, the complaint alleges that Facebook "published" the content, the absolutely wrong allegation to make if you're trying to bypass 230. I think it significantly detracts from the sympathy we might otherwise feel for plaintiff for her to have futilely dragged Facebook into the lawsuit. And, it ensures there will be at least one aggressive defendant in the lawsuit.

With respect to the school peers' liability, this case raises some interesting and complex questions. First, and most obviously, how did the plaintiff get a copy of the private group's postings? This reminds me a little of the Washingtonienne case, although access to Cutler's blog wasn't technologically restricted like it was in Facebook.

Side note: the republication of the private group's posts in this complaint reminds us once again that we always have to be prepared for our digital words to show up on the front page of a national newspaper. In particular, including the transcript to the complaint without a protective order was an aggressive move; I suspect other people reading the transcript for the first time will not be happy.

Second, there were only 6 group members listed on the exhibit, which means the total universe of listeners for any defamatory statement was 5 other folks (the person posting the statement doesn't count). This may severely circumscribe any damages. Third, given that this group of 6 presumably represented a social clique with its own norms and mores, it's entirely possible that the small universe of readers completely understood that superficially factual statement weren't really factual and were never intended to be. In this respect, I'm reminded a little of the DiMeo v. Max case, where the judge adjusted the evaluative standards to reflect the fact that message boards fostered a laxer conversation, and readers understood that. A quick perusal of the posts suggests that all of them clearly were utter nonsense and, I suspect, fully understood by all readers to be inane and meaningless chatter. Finally, the posts apparently never referred to the plaintiff by name, although this may be irrelevant if everyone knew who was being discussed.

The lawsuit also goes after the students' parents. Among other things, to try to establish liability, the complaint alleges that the parents negligently supervised their children. I'd gladly write a $100 check today if the plaintiff or her lawyers could articulate a foolproof way that parents can use to prevent high schoolers from doing stupid things on Facebook (without denying them access to Facebook altogether).

From my perspective, going to court over this matter was not a good decision. Nevertheless, I remain troubled by the examples of mean behavior among students that I'm seeing in the alerts I'm getting. For example, the Wolfe and Sandler cases I mention above are absolutely horrifying. Even though I graduated high school nearly 25 years ago, reading about meanness among high schoolers still gives me the shakes, reminding me how bad high school can be! And it weighs heavily on my mind as a parent. However, I can't imagine any legal solution that will make people be less mean to each other.

In Ecommerce Innovations, L.L.C. v. Does 1-10, No. MC-08-93 (D. Ariz. Feb. 10, 2009) a judge that previously issued an order compelling compliance with the third-party subpoena to Xcentric has refused to reconsider that ruling, finding that the plaintiff had made out a prima facie case of defamation against the anonymous posters and thus was entitled to the identifying information from Xcentric. The court cited e.g., Best Western International v. Doe, 2006 WL 1091695 (D. Ariz. July 25, 2006) and Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007). However, the court also concluded that there were "serious questions" concerning the standard to be applied in discovering the identities of anonymous Internet posters, and whether the evidence in the case meets that standard. Consequently, the court stayed its order compelling compliance in order to allow Xcentric to appeal to the Ninth Circuit.

It will be interesting to see if the Ninth Circuit chooses to take the appeal, and whether, if it does, Judge Kozinski is on the panel. That's a bit of a long shot, considering the number of judges in the Ninth Circuit. But it would certainly heighten interest in the case, at least for followers of CDA Section 230 jurisprudence. Judge Kozinski authored the panel opinion (now superseded by the en banc ruling) in Fair Housing Council v. Roommate.com. Judge Kozinski's panel opinion posed a scenario in which allegations of egregious conduct on the part of a service provider might not fall within the protection of CDA Section 230 immunity. Some have speculated that Judge Kozinski's hypothetical referred to the Ripoff Report site, although the court in yet another Ripoff Report-favorable CDA Section 230 ruling rejected the comparison. See Whitney Information Network, Inc. v. Xcentric Ventures, (M.D. Fla. Feb. 15, 2008).

But of course the more important fact is that if the appeal is filed and then allowed, the Ninth Circuit will have the opportunity to rule on the standard to be applied in cases involving discovery request directed at obtaining the identity of anonymous posters.

According to the docket in the underlying litigation (Ecommerce Innovations, Inc. v. Does 1-10,Case No. CV08-04596 (C.D. Cal.), as of March 2, Xcentric had not filed its appeal in the Ninth Circuit.

Sen. Joe Lieberman (I-Connecticut), who helms the Senate's government affairs committee, is annoyed enough that he bypassed the administrators of the system and sent a letter Friday straight to the Judicial Conference of the United States.

He's asking Judge Lee H. Rosenthal to explain why in the age of Google the Public Access to Court Electronic Records, or PACER, system isn't free for citizens. He'd also like to know why federal courts still aren't blacking out sensitive information in court documents as required in the 2002 E-Government Act (a piece of legislation dear to Lieberman).

He writes:

Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination ...

If the complaints sound familiar, perhaps you know of public.resource.org's Carl Malamud who's been running a virtual one-man campaign against the clunky and costly PACER system. It's just part of his campaign to "open-source the nation's operating system."

He's also been vigilantly searching through court documents and using automated tools and has found that some judicial districts routinely fail to redact information that would be very handy for identity thieves to have. He's also found just plainly embarrassing and invasive information like medical records of patients not even involved in litigation.

Malamud is running a campaign to become the nation's public printer, and from the looks of this letter, he's already got one senator's attention.

See Also:

• Online Rebel Publishes Millions of Dollars in U.S. Court Records ...
• Rogue Archivist Campaigns to Be Obama's Printer
• Contrarian Libertarian
• Death to Sleepy Stock Data

Associated Press v. All Headline News Corp., 08 Civ 323 (SDNY Feb. 17, 2009)

We've seen a lot of ruffled feathers over Internet republication of news headlines, ledes and snippets--the most recent being the GateHouse lawsuit and settlement, but we can easily go back at least a dozen years to the old Shetland Times lawsuit to find similar issues. Some of the teeth gnashing is due in part to the ambiguity and paucity of directly applicable law, so any new judicial ruling, even an opinion on a motion to dismiss, is noteworthy..

According to the opinion (which is a little cryptic), All Headline News either rewrites AP stories or copies stories in full, strips out the source identification in some cases, and republishes its version of the stories to a network of paying customers. To the extent All Headline News is a syndication service of real-time news, it appears to be at least a partial competitor of AP. AP alleged a number of claims against All Headline News, and this ruling addresses All Headline News' motion to dismiss the following complaints:

* Hot News. After concluding that All Headline News was subject to NY's law, it held that a hot news claim was properly pled. This makes sense in light of both the original INS v. AP case from 1918 (which addressed a not-dissimilar set of facts) and the more recent 1997 2nd Circuit Motorola case, which held that sports scores might be protectable under a hot news doctrine. While we have not seen a lot of viable hot news claims in the past dozen years, the hot news doctrine remains important because it exists independent of copyright. Accordingly, the republication of headlines and ledes could be a hot news misappropriation even if it isn't a copyright infringement. Because of the early procedural posture, the hot news claim might still fail, but the hot news doctrine's survival of the motion to dismiss isn't a favorable development for news aggregators and republishers.

* Copyright Management Information (17 USC 1202). We haven't seen much action under this portion of the DMCA, which protects against the removal or modification of "copyright management information" (such as a byline) from copyrighted works. It hasn't been extensively litigated, and the courts have interpreted the statute narrowly. Despite that, the court does not dismiss the claim. It will be interested to see if the AP can have any success with this claim given the narrow precedent supporting it.

* Trademark Infringement. The court dismisses the trademark infringement claim. The AP's pleading of both CMI violations and trademark infringement points to an interesting conundrum for content publishers/aggregators. Remove the source attribution and you create a potential 1202 problem. Preserve the source attribution and you might be committing trademark infringement. The court overcomes the damned-if-you-do/damned-if-you-don't situation by implying that citing your sources can't be a trademark infringement.

* Unfair Competition. The court dismisses the 43(a) false advertising claims but preserves the common law unfair competition claim.

Implications. if, in fact, All Headline News is paraphrasing or plagiarising AP stories to operate a competing business, this is a materially different factual scenario than the aggregation and republication of headlines/ledes/snippets that has been the primary focus of Internet legal angst for the past few years. Nevertheless, revitalized doctrines of hot news and 1202 copyright management information both pose significant risks to these aggregation and republication activities independent of the copyright analysis. At minimum, this is a good reminder that focusing purely on copyright infringement claims misses other important considerations.

HT: Marty Schwimmer

Heartbrand Beef, Inc. v. Lobel's of New York, LLC, 2009 WL 311087 (S.D.Tex. Feb. 5, 2009). The Justia page.

Heartbrand sells Akaushi beef, a special and very expensive Japanese variety of beef. Heartbrand brought an enforcement action against several defendants, including Yahoo for selling a retailer, Lobel's, the first ad position for the keyword "Akaushi." Lobel's sells very expensive beef but not Akaushi beef. Heartbrand alleged that Yahoo's display of the ad constituted Lanham Act false designation of origin and common law unfair competition. I suspect that other plaintiffs have alleged that the search engine makes a false designation of origin by presenting keyword ads, but I can't recall an actual ruling on this issue before.

From my perspective, the natural analytical approach would be to assume the advertiser makes the false designation of origin and then consider Yahoo's liability under some kind of "contributory" or "derivative" false designation claim (if such a thing exists). However, stated this way, the claim then should be preempted by 47 USC 230; other cases have concluded that 47 USC 230 preempts non-trademark portions of the Lanham Act. See, e.g., Kruska v. Perverted Justice Foundation Inc. But see Doe v. Friendfinder.

The court sidesteps this direct-v.-contributory issue entirely, even though it acknowledges that Heartbrand's claim doesn't make sense because "Yahoo! obviously does not fit into these classic models [of false designation of origin] because Yahoo! is not in the business of selling beef." Instead, the court rejects the false designation claim because (1) Yahoo doesn't make any "statement" (the advertiser does), and (2) even if Yahoo does make a statement, it's not designating the origin of Yahoo's offerings.

This case reminded me of the Overstock v. SmartBargains opinion from last August, where the Utah Supreme Court said that trademark-triggered competitive pop-up ads do not constitute common law unfair competition or tortious interference. (Note that in that case, the defendant was the ad buyer, not the ad seller, so there is a significant factual difference). In both the Overstock case and this one, the courts rejected plaintiffs' efforts to fit their claims in doctrines that are ancillary to the more traditional trademark infringement claim. In that respect, this case helps channel the lawsuits back to trademark infringement and might help curb claim sprawl.

Ryan Gile has also blogged on the case.

UPDATE: Rebecca weighs in.

Higher Balance, LLC v. Quantum Future Group, Inc., 2008 WL 5281487 (D.Or. Dec. 18, 2008). The defendants' (lengthy) celebratory blog post.

If you're a 47 USC 230 junkie like me, there are few better Christmas gifts than a nice defense-side 47 USC 230 win. So just when I thought I was done blogging for the holidays, this goodie appears in my satchel. Ho ho ho!

Maybe I'm overcome by the holiday feeling, but I naively assume that a company selling products to help "customers relieve stress, reduce anxiety, and achieve emotional balance and spiritual enlightenment though meditation techniques wouldn't need to use tough litigation tactics. But this lawsuit belies my utopianism. Can't we all just get in touch with our chakras?

The plaintiff is in the stress-relieving business. The defendants all have some connection to SOTT.net, a/k/a "Sign of the Times," a website that describes itself as "The World for People Who Think." Depending on your definition of "think," they should have either a very large or very small audience, but a few moments poking around the site left me baffled about their editorial focus. (Pictures like this one are interesting and slightly disturbing, but I don't quite understand the message). Their "quick guide" isn't very quick and doesn't do much to guide me, but I get a vague sense that the site may occasionally dabble in conspiracy theories.

OK, back to the lawsuit. Laura Knight-Jadczyk is the key defendant in this lawsuit. In response to some anonymous postings on an SOTT.net message board, Laura allegedly posted disparaging comments about the plaintiff (HBI) to the website, including alleged assertions (quoting from the court's opinion) "that HBI is a front for pedophilia;' HBI is a cointelpro organization; HBI markets nothing more than an act of falling into confluence with a psychopathic reality; and HBI is conning the public." Other SOTT.net forum moderators also posted some allegedly defamatory material. The plaintiff sued Laura plus:

* her employer, QFG
* QFS, a think-tank operated by QFG
* the SOTT.net website. Laura pays the website's expenses and the domain name is owned by her husband

The plaintiff alleged that these parties fund each other's activities and share a common physical location. The plaintiff does not appear to have sued the anonymous posters who contributed to the allegedly defamatory discourse.

This opinion rules on the defendants' joint anti-SLAPP motion. The court grants the motion for Laura because the assertions were her protected opinions and for the other defendants per 47 USC 230.

The court establishes the defendants' two required elements of Oregon's anti-SLAPP statute:

* "Website forum pages allowing users to read and post comments free of charge constitute a public forum under the anti-SLAPP statute."

* "There is no doubt that the statements here were made in connection with an issue of public interest, specifically, the quality of HBI's products and services developed by Pepin [HBI's co-founder]."

With these two points established, the burden shifts to the plaintiff to establish its prima facie ca