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Fehrs v. StubHub, Inc., No. 0801-00515 (Ore. Cir. Ct. Sep. 9, 2008) found that StubHub was immune from a state law claim regarding ticket scalping. StubHub was not so lucky in NPS LLC v. StubHub, Inc., 2009 WL 995483 (Mass. Super. Jan. 26, 2009) where commentators at the Berkman Center and Mass Law Blog have been noting that the court appears to have held that “knowing participation” amounts to “material contribution.” The court’s discussion of 230 is brief, but it’s an interesting follow-on to Roommates.com.

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As part of the fallout from Facebook’s rollout of its Beacon ad service, some users of Blockbuster’s site sued Beacon-partner, Blockbuster, in the Northern District of Texas, for among other things, violations of the Video Privacy Protection Act. Blockbuster moved to compel arbitration of the dispute, relying on the Terms and Conditions on its site. On April 15, 2009, the district court denied Blockbuster’s motion to compel arbitration, holding that:

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there is nothing in the Terms and Conditions that prevents Blockbuster from unilaterally changing any part of the contract other than providing that such changes will not take effect until posted on the website. There [is] likewise… “nothing to suggest that once published the amendment would be inapplicable to disputes arising, or arising out of events occurring, before such publication.”

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The court relied largely on the Fifth Circuit’s recent decision in Morrison v. Amway Corp., 517 F.3d 248 (5th Cir. 2008) (holding a similar arbitration provision illusory). The court’s decision here is reminiscent of the Ninth Circuit’s decision in Douglas v. District Court from 2007, where the court addressed whether a service provider may change the terms of its service contract by posting a revised contract on its website without providing additional notice. The Ninth Circuit held there that merely posting a revised contract to one’s website was inadequate notice and the service provider’s customers were not bound by the revised terms.

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This is an encouraging trend for website visitors who are increasingly offered extremely one-sided terms on a take-it-or-leave-it basis and then find themselves purportedly subject to terms that can be unilaterally changed with only website notice. At least in these instances, courts are demanding more from website operators.

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The case is Harris v. Blockbuster.

• 50 great examples of infographics – FrancescoMugnai.com
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Big day for interesting judicial opinions:
Golan v. Holder, (D. Colo. Apr. 3, 2009).

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation’s own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs’ vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech. Accordingly—to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain—Section 514 is substantially broader than necessary to achieve the Government’s interest.

Rescuecom Corp. v. Google Inc., (2d Cir. Apr. 3, 2009) (vacating and remanding district court’s decision and finding instead that “The Complaint’s allegations that Google’s recommendation and sale of Rescuecom’s mark to Google’s advertisers, so as to trigger the appearance of their advertisements and links in a manner likely to cause consumer confusion when a Google user launches a search of Rescuecom’s trademark, properly alleges a claim under the Lanham Act.”).

The remarkable thing about the Rescuecom opinion is the 19-page dicta “Appendix” that concludes, “It would be helpful for Congress to study and clear up this ambiguity.”