01 Maylinks for 2009-05-01

29 AprStubHub and Section 230 Immunity

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.

23 AprWebsite Terms Allowing Unilateral Changes Illusory and Unenforceable

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:

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.”

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.

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.

The case is Harris v. Blockbuster.

21 Aprlinks for 2009-04-21

03 AprCopyright and Trademark Double-Header

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.”

31 MarNews in United States v. Arnold

I just found something on PACER I have not seen reported anywhere.

U.S. v. Arnold is the 9th Cir. case which relied on the border search exception and reversed the C.D.Cal’s suppression of a laptop search at LAX without reasonable suspicion.

Petition for rehearing / en banc was denied a while back and cert was recently denied on Feb. 23, 2009.

I just came across this motion to depublish the opinion (which was denied without opinion on Mar. 16, 2009).

The shocking news is contained in the motion to depublish:

Two days after Arnold was informed by counsel that cert was denied, he committed suicide.

26 MarTwentieth Century Fox Film Corp. v. iCraveTV, 53 U.S.P.Q.2d 1831 (W.D. Pa. 2000).

I still hate it when I cannot easily find an opinion online: Twentieth Century Fox Film Corp. v. iCraveTV, 53 U.S.P.Q.2d 1831 (W.D. Pa. 2000).

26 MarThe end of the laches defense in trademark cases?

The Ninth Circuit released its opinion in Internet Specialties v. Milon-DiGiorgio on March 17, 2009.

Plaintiff ISP used the mark ISWEST and Defendant ISP used the mark ISPWEST. Plaintiff knew of Defendant’s existence since at least 1998, but did not send a cease and desist letter or bring a lawsuit until six years later, after Defendant had expanded into offering DSL service in addition to its prior dial-up offerings. The majority and the dissent agree that the two companies offered similar enough services that Plaintiff should have recognized the likelihood of confusion in 1998, when it became aware that ISPWest was providing Internet access, e-mail, and web-hosting; that Plaintiff was not entitled to wait until ISPWest’s business grew large enough to constitute a real threat; that Plaintiff was not diligent and did not file suit within the analogous 4-year statute of limitations period and therefore, a presumption in favor of laches applies; and that Plaintiff’s delay in bringing suit was unreasonable, so laches bars equitable remedies unless there was no prejudice to ISPWest as a result of the delay.

The majority and the dissent finally part ways on this issue of prejudice, with the majority holding that ISPWest was not prejudiced because it did not “build a valuable business around its trademark during the time that the plaintiff delayed the exercise of its legal rights.” The majority and dissent acknowledge that ISPWest grew its business substantially during the relevant time period and spent significant sums advertising, but the majority finds these efforts were not focused “around its trademark” because the mark was rarely used in that advertising. The dissent instead focuses on the fact that customers went to the ispwest domain to access services and had @ispwest.com email addresses.

I think the majority fails to adequately appreciate the association customers will develop around the ISPWEST mark when it is primary part of their email address, and as the dissent argues, the extent to which it creates a public interest that weighs against an injunction. One’s email address is something you have to remember to share with friends and that appears on one’s business card, etc. The majority looks for brand awareness or public association with the mark rather than being satisfied with the customers’ awareness or association. Even if that standard is appropriate, the public may well have gained such an association by interacting with the 13,000 customers whose email address bore the ISPWEST mark. The public may be able to gain this awareness without being subjected to advertising using the mark, something the majority seems not to consider. The dissent finishes with a solemn warning:

The majority’s evisceration of laches means that a big company can lurk in the tall grass while its little prey gradually fattens itself by dint of great effort and expense. Then, when the small competitor has succeeded, the big company can shake it down for a cut of its hard-won success, or destroy the name under which it innocently did business for years. That is trademark law as protection racket, rather than trademark law as prevention of consumer confusion.

04 MarNew whitehouse.gov video requires proprietary Adobe Flash player

Privacy activists rightly complained about whitehouse.gov’s use of YouTube videos for President Obama’s weekly addresses, as it allowed a private third-party company to use cookies to track visitors to a government web site. The whitehouse.gov site appears to have responded to these complaints but in so doing has adopted a flash format that is not playable using free software. See below for how it renders on a Debian Lenny GNU/Linux system using Iceweasel and gnash: Whitehouse.gov Video Fail The whitehouse.gov site should take one more step towards openness and privacy-preservation by using an open audio-video format such as Ogg-Theora for all its weekly addresses.

02 MarPerfomance Rights Bill

It’s puzzling how we do something totally different in the mid-90s with respect to webcasters, satellite radio providers and cable companies and then now we need to “harmonize” and achieve “platform parity” with the broadcast radio world not by moving to the broadcast radio standard that’s been in place for 80 years but instead by moving the broadcast radio world over to the new approach. Given the meager success (failures?) of webcasting and satellite radio, I’d want to study that idea a little more.