A little over two plus years after the FTC took a pass on jumping into the net neutrality battle, the FCC has decided to carry the net neutrality banner.  The Wall Street Journal reported that the FCC is proposing new rules embracing equal treatment for all types of internet content.  Under the proposed rules, ISPS would be prohibited from blocking or slowing content based on its type or profitability. 

Winners in this battle would be entrepreneurs who look for fast growth in users but typically don't have the capital to invest in a pay to play system.  ISPs would end up on the losing end, giving up some of their autonomy over their content.  Although ISP's have yet to engage in widespread blocking or slowing, they have made use of their control over bandwith in instances such as AT&T's blocking of Skype.  Also in the losing corner would be businesses with a need to move data faster and the resources to pay for priority. 

The net neutrality battle will present an intersting dillemma for an information superhighway that cuts its way through everyone's back yard. 

Criticism of a Vogue magazine cover model isn't exactly ground breaking legal news.  A judge ruling requiring Google to turn over the name of the defaming blogger may be.  ABC News reports that the New York State Supreme Court did not buy a blogger's argument that the Internet is a place for ranting, notwithstanding the facts.  The court forced Google to turn over the name of the blogger. Even though a defamation action by model Liskula Cohen might be an uphill battle, her success in peeking behind the Google shield may keep some unscrupulous bloggers in check. 

Judge Richard Posner of the U.S.Court of Appeals for the Seventh Circuit (and renown legal scholar and blogger) has recently proposed a solution to the decline of newspapers in the U.S. - change the law (specifically copyright law) to prohibit linking, copying small parts of news articles, and paraphrasing online. Such an approach would prohibit me from inserting the following excerpt from Posners blog:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

And from sharing this tidbit from the article where this first came to my attention (MediaShift):

As newsroom staffs continue to shrink and newspapers go out of business at an alarming rate, the difficulty newspapers have experienced in gaining economic traction online has been blamed on blogs and websites that link to content on newspaper sites. According to some, this kind of "free riding" is responsible at least in part for the distress in which newspapers find themselves. A number of proposals have surfaced, in the U.S. and abroad, to change the law to "even the playing field" between new media and old.

Intriguing thought.  With such a law, this post certainly would have been written differently, and MediaShift and the Becker/Posner Blog would not have links back to them.  You would have been stuck reading my average prose instead if the eloquent and succinct blurbs from the professionals.  And many blogs would certainly go away.  Lots of my favorites really are just aggregators of new and developments just with a little of the author's commentary or take on the matter.  Of course the best have lots of original content, like the Becker/Posner Blog.  New models are emerging though.   

Track the developments here:

Newspaper Death Watch 

Why Newspapers are Doomed to Fail 

The Sky is Falling on the Newspaper Industry

Over the years, Google has received countless complaints regarding unauthorized use of images. Earlier this month, Google implemented a feature on its Image Search tool that allows users to filter images by usage rights. Users can use this tool to find images that are available for Internet use and in some cases adaption.

Copyright owners may benefit through the ability to publish their images on-line while retaining control over scope of use and modifications. Once owners choose to make their work available online under these terms, the Google Image Search tool helps people find and use these images.

However, image users should proceed with caution – this tool only identifies which images are available for use. You must make sure your use complies with any license restrictions. Also, you should note that this search feature is not entirely conspicuous – you will need to click on the Advanced Image Search Preferences function which can be accessed through a hyperlink that resides in small text to the right of the Google Image Search box.

Google's practices towards trademark right holders may also be shifting, albeit not voluntarily. On the heels of a setback in the Rescuecom v. Google Case, Rosetta Stone, which publishes and sells foreign language tutorial software, recently announced it filed a lawsuit against Google for trademark infringement resulting from its AdWord (also known as "keywords") program. This suit is the latest in a long line of lawsuits that have been filed to combat this practice.

What this means for you: While Google has made an effort to filter images in its library based upon whether or not they are available for use, you should make an effort to check with the original owner of the image as Google's system is not fool proof. Likewise, as an owner of an image, you should ensure your images are properly tagged with the appropriate license information (if any) when uploading it to the Internet. Finally, with regard to the Rosetta Stone Ltd.v. Google, Inc. case, the outcome remains to be seen. However, if you choose to purchase trademarks as a keyword to trigger search engine advertising, the practice is a potentially risky proposition as it may subject the keyword buyer to a claim for trademark infringement. On the other hand, if you feel a competitor's use of your trademarks as keywords causes consumer confusion and has negatively impacted your business, you may need to actively enforce your rights.

A Seattle Judge recently ruled in a class action suit against Microsoft that IP Addresses do not constitute Personal Identifiable Information (PII) for purposes of interpreting restrictions in a user agreement.  The ruling, recently reported by Online Media Daily,  runs counter to decisions and interpretations in both the EU and New Jersey. 

To avoid litigation on this front, companies should consider specifically addressing the disclosure of IP addresses in privacy policies and contracts with use restrictions or permissions.  While some judges may be reluctant to expand the definition of PII, the technological reality that a little information goes a long way in tracking a person will continue to be compelling.

Facebook, the social networking website, will begin allowing vanity URL's this weekend, inviting yet another opportunity for opportunistic domainers to nab your trademarks.Specifically, Facebook has announced that beginning on June 13, 2009, at 12:01 a.m. EDT, users of the Facebook website who signed up prior to June 9, 2009, will be able to assign a personalized, vanity URL to their Facebook profiles and pages. Up to now, only celebrities and others of note could assign a personalized URL to their Facebook profiles.

User names must be at least five characters in length and can only include alphanumeric characters (A to Z, 0-9) or periods.User names will be allocated on a first-come, first-serve basis to users who access www.facebook.com/username/.After selection, user names cannot be changed or transferred.

Trademark owners can protect their marks by submitting information to Facebook via an online form entitled "Preventing the Registration of a Username" which is available here. This form requests a registration number, and information is not yet available on whether use of an unregistered common-law mark can be prevented.The form provides entry of only one mark, so owners of several marks will presumably have to submit one form for each mark to be protected.

Time is short and Facebook expects a rush of requests beginning just after midnight on Friday.As with most of these online trademark matters, an ounce of prevention is worth a pound of cure, and we strongly urge all trademark holders to consider protecting their marks through the procedure outlined above

President Obama recently announced that he intends to nominate Judge Sonia Sotomayor to be a Justice of the U.S. Supreme Court, filling the seat vacated by Justice David Souter. If appointed, she could have a very significant impact on IP and technology issues. In private practice, Sotomayor frequently represented IP holders, and in her years on the bench, she has authored many opinions treating IP and technology related issues.

One such case is Swedenburg v. Kelly, which involved the regulation of internet wine sales. In that case, Sotomayor joined in the opinion of a three judge panel of the 2nd Circuit Court of Appeals holding that states may protect in-state wineries from out-of-state competition. The Supreme Court ultimately reversed that judgment in a 5-4 opinion in Granholm v. Heald. Judge Souter joined the majority in Granholm in holding that states cannot protect their own wineries from out of state competition. This case is particularly important to the technology community because it is the leading U.S. Supreme Court case addressing the application of the rarely invoked Dormant Commerce Clause to state regulation of internet commerce. With all of the automobile dealerships losing their franchises and the restructuring of the auto industry, look for significant legal action in the area of disintermediation.

As a district court judge, Sotomayor also wrote the opinions of the U.S. District Court (SDNY) in the influential copyright case of Tasini v. New York Times. In that case, Sotomayor ruled in favor of the periodical publisher defendants and against the freelance author plaintiffs. Her opinions in this case can be found here and here. Sotomayor's ruling seemed to strain the application of 17 U.S.C. § 201(c) which provides that

"copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as a part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

In this case, the defendants had simply made the plaintiff's articles a part of their content databases that they then licensed to others. Sotomayor was reversed by a three judge panel of the Second Circuit Court of Appeals with its refreshingly succinct analysis: "the District Court is mistaken." The Supreme Court similarly held that the defendants did not have a privilege under §201(c) of the Copyright Act to include the freelance articles in their electronic databases. Justice Ginsburg wrote the opinion, in which Justice Souter joined. It was a 7-2 opinion.

Sotomayor wrote the opinion of the U.S. District Court for the Southern District of New York in Castle Rock v. Carol Publishing Group. In that case, Sotomayor applied a fair use analysis in a copyright infringement case where the defendant had published a 132 page book titled "SAT: The Seinfeld Aptitude Test" which contained trivia questions about the television program. The plaintiff, which owned the copyrights in the television program Seinfeld filed suit alleging copyright infringement, and the defendant asserted the affirmative defense fair use. Sotomayor applied a "potential market" analysis in ultimately concluding that the market for works such as those created by the defendant is one that should properly be left to the Plaintiff's exclusive control. This case, and the cases that Sotomayor relied upon for her "potential market" analysis have been often criticized by leading authorities on copyright law, including Judge Richard Posner in his opinion in Ty v. PIL.

Sotomayor also wrote the opinion of the U.S. Court of Appeals for the Second Circuit in Sprecht v. Netscape, which addressed the issue of online contract formation. In Sprecht, the Court held that the plaintiffs were not bound by license terms applicable to free software where they would not have learned of the existence of those terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button. The Sprecht case has been recognized as a solid, common sense application of existing legal doctrine to the new territory of online contract formation.

A link to the PWC report is here.  Summary of relevant findings:

• median damage award has remained steady over the years when adjusted for inflation.
• Significant difference in success rates and size of awards between bench trials and jury cases is driving more jury trials.
• Primary measure of damages: reasonable royalty.
• Overall success rate in recent years has hovered at 40%, with one third of those being resolved on summary judgement.
• About one third of all judgements/decision are appealed, and of those about two thirds get modified or reversed.

In 2006, the Second Circuit ruled in a case called 1-800 Contacts v. WhenU, that an adware program that detected visits to corporate web sites via their URLs, and triggered competitor's ads in a separate popup window, did not make any "use in commerce" of the trademarks embodied in those URL's, and that therefore the conduct was not actionable under the Lanham Act.

That ruling was applied in a number of other cases by lower courts in the Second as standing for the proposition that any "internal" computer use of a trademark is not actionable as a "use in commerce," and hence the use by Google's Adword program was held to be not actionable.

The Second Circuit clarified that conclusionlast week in this opinion, where it distinguished use of the URL to trigger a pop-up, and use of the trademark to trigger a competitor's sponsored ad, holding the latter to, in fact, be a "use in commerce." With that ruling,the only remaining issue in the case is whether the resulting triggered ad caused any customer confusion. That being a fact issue, the case is of Rescuecom v. Google is now proceeding to trial.

The case is a huge break for trademark holders in the U.S.who loathe the use of their valuable trademarks to trigger the ads of their competitors, and breathes new life into their claims against Google. The use of trademarks to trigger sponsored ads has been held unlawful in other countries, and Google's current policy allows the practice only in the US and Canada.

Earlier this year, Tim referred to the Jones Day/Blockshopper trademark dispute.  I have been invited to expound on this topic.

Last year, a fledgling real estate news site called BlockShopper started publishing information about the home purchases of lawyers from the New York law firm Jones Day. This site would post information about how much money certain lawyers spent on their homes, the area in which the homes were located and include a link to the bio for the lawyers from the Jones Day website.

Jones Day, for some unpublicized reason, was very displeased by these links. The information published by BlockShopper is available through public documents, but the Internet inspires companies to organize publicly available information and make it easily accessible to people who would not otherwise bother to look for such stories. Jones Day was probably less than thrilled about having its attorneys' home purchases broadcast in this manner and sued BlockShopper for trademark infringement and dilution.

BlockShopper was engaging in the standard practice of linking to publicly available websites. The crux of any trademark infringement case is consumer confusion and whether the use of a third party’s trademark will mistakenly cause people to believe there is an association between the trademark user and the trademark owner. Jones Day's argued that BlockShopper's link would mislead users into believing that Jones Day is somehow associated with BlockShopper. The idea that visitors of a real estate news site would somehow be confused by links to the Jones Day website seem rather implausible. Nonetheless, the judge refused to dismiss Jones Day’s case and in the end, BlockShopper agreed to settlement terms which require BlockShopper to change the way it creates links.

It is easy to see why BlockShopper agreed to back down. This small company had spent hundreds of thousands of dollars in legal fees and faced an unsympathetic judge who supposedly pressured BlockShopper to compromise by saying, "Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?" As a result, BlockShopper was forced to agree to not use embedded links to the Jones Day website in any words or names.

This result sends a negative signal about the Internet where linking is, for the most part, unfettered. Ultimately, Jones Day was able to control how an online publisher builds and formats hyperlinks. Companies may now believe they can force sites to change their linking practices by suing web publishers for trademark infringement. Based on what Jones Day was able to accomplish, it's not hard to imagine that this precedent could be expanded in order to force web publishing companies to adopt different linking protocols to accommodate different organizations. The Jones Day-BlockShopper settlement may have opened the door to allow similarly situated plaintiffs to control how and to whom web publishers can link.

Unfortunately, even if you have the law on your side, your legal budget may determine whether you choose to link to a trademark owner’s site, or use a mark in a headline or post. We will monitor this development to see if this trend of permissions-based linking systems continues and grows.

You know that Alanis Morissette song, "Ironic," well it seems to me that it has tarnished an entire generation's understanding of irony:

And isn't it ironic... don't you think

It's like rain on your wedding day
It's a free ride when you've already paid
It's the good advice that you just didn't take
Who would've thought... it figures

Of course, none of those things are particularly ironic, unless perhaps the bride and groom happened to be meteorologists and had chosen Death Valley as the location for their wedding to ensure sunshine. Instead, the song is simply about a series of bummers. So how do we teach the Morissette Generation about irony?

Enter Guidance Software, Inc. to the rescue. Guidance bills itself as the leading provider of E-Discovery services and software solutions to assist in ferretting out emails and electronic evidence in the litigation process. So where's the irony? You guessed it - Guidance has been accused of failing to produce smoking gun emails and electronic evidence in litigation against it filed by a former employee.  An arbitrator involved in the dispute went so far as to accuse Guidance of gross negligence and bad faith. See the story in the Washington Post here (subscription required) or at Salon here.

Image courtesy of Wendy

We've blogged here before about Wikipedia, and how it is sometimes relied on by courts, yet shunned in schools.  In an ironic coincidence, Wikipedia has announced plans to possibly limit the ability of unknown editors to make changes to or add entries, just as Britannica has announced that it is introducing functionality to allow users to enhance it's online content.  Next headline: "Britannica Banned in Schools!"?  

Earlier this fall, we blogged about a potential seizure of 141 domain names by the State of Kentucky. A three-judge panel of the Kentucky Court of Appeals recently issued an order prohibiting the enforcement of the seizure order.  The original seizure order was based on the premise that domain names, when used in the Internet gambling context, are gambling devices subject to forfeiture.  The panel disagreed with that characterization.

Tamar Weinberg at techipedia has published her list of the Best Internet Marketing Posts of 2008, and it really is treasure trove of great information.  Lots of current advice on best practices, tips and trends relating to everything from search engine optimization to twitter to reputation management.  Now you just need a week sabbatical to read all of this wonderful stuff! 

This time of year lots of folks come out with their “Top Ten” lists, “Year in Review”, “Look Ahead” or “Look Back” lists. We’ve even done it here at the TechKnowledgyBlog. But not this year. Instead, here is a list of the better Year in Review type lists we’ve seen over the last few weeks. 2008 certainly was a noteworthy year in many ways. Lots of recurring themes: cloud computing, the migration of computers to hand-held devices, mainstreaming of open source, expectations for technology from the new administration, and impact of weak demand for commodity computing components and software. Enjoy.

The Year in Review: Technology, from The Independent.

Ten Emerging Technologies of 2008 – Most Likely to Change the Way We Live, from MIT Technology Review.

Networking Predictions for the New Year, from CNET

It Was a Good Year for Computers, from the Washington Post.

Year in Review 2008: Top tech trends, (part one) from ENN.

Year in Review 2008: Top tech trends, (part two) from ENN

The Year in Review, The Trends Ahead, from Enterprise Systems.

Just The Best Tech Lists of 2008, from PC World. PC World says: “Who doesn't love lists that neatly package the best games or coolest gadgets? That why we put together the ultimate tech-related lists of 2008.”

Dave Barry’s Year in Review: Bailing out of 2008. O.K. this has nothing to do with Technology, but Dave Barry is funny. Excerpt:

How weird a year was it?

Here's how weird:

• O.J. actually got convicted of something.
• Gasoline hit $4 a gallon -- and those were the "good" times.
• On several occasions, "Saturday Night Live" was funny.
• There were a few days there in October when you could not completely rule out the possibility that the next Treasury Secretary would be Joe the Plumber.
• Finally, and most weirdly, for the first time in history, the voters elected a president who -- despite the skeptics who said such a thing would never happen in the United States -- was neither a Bush nor a Clinton.