Veronica Jackson at the Consumer Finance Law Blog reports on the recent case of Hammond v. The Bank of New York Mellon Corp., No. 08-6060, 2010 WL 2643307 (S.D.N.Y. June 25, 2010). In Hammond, the Southern District of New York held that plaintiffs who sue based on a potential risk of identity theft, instead of actual identity theft and demonstrated damages, lack standing to sue. While this decision is controversial amongst privacy and security advocates, it does lean toward recognition of the need for some sort of floodgate in a world where information circulates quickly and in high volume. It will certainly be interesting to see how this case plays into other privacy issues where damages are not so evident. In a non-financial privacy claim - does the standing rule still apply? Identity theft damages are fairly concrete in comparison to the variety of other issues involving the disclosure of non-financial data.
The 9th circuit held recently that a lower standard would apply for releasing the name of an anonymous internet poster. The Cahill standard of requiring enough facts to prove a hypothetical summary judgmentnt motion was found to be too stringent for commercial speech. Evan Brown over at Internet Cases recently posted a good summary of of the case on his blog. While the important protections that anonymity provide in the context of free speech is certainly important, attorneys wrestling with the difficulty of combating commercial defamation will find this case to be an important tool in the small library of cases in this area.
After a recent high profile settlement by the FTC against Twitter for security lapses, we expected to see a wave of panic in websites that might have potential security holes or expose "private" postings through the failure to properly handle web crawlers and other mechanisms that peek under the home page. With all of the hubub about Facebook's privacy settings, it will be interesting to see whether the Twitter settlement is used as a shield in favor of user self protection or a sword to poke holes in Facebook's privacy protections. Evidently, the FTC felt that Twitter's privacy settings offered user protection that was important enough to warrant a settlement on the issue when those privacy settings were compromised.
On a side note, it will be interesting to see how Twitter changes 20 years from now when its ban on being "misleading" ends.
In the recent Supreme Court decision Ontario v. Quon,the court held that the government's search of text messages on government owned pager equipment did not violate the 4th Amendment or privacy rights of a police officer. No surprise there. The court declined to rule specifically on expectation of privacy. However the court did provide some fodder for making expectation of privacy arguments in the communications technology context, stating "The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer . . . A broad holding concerning employees' privacy expectations vis-a-vis employer provided technological equipment might have implications for future cases that cannot be predicted."
Evan Brown recently reported about the Zynga case, an attempt to gather information about potential infringers of the Mafia Wars trademark. Although there is certainly some merit to limiting overly broad discovery requests, seems natural that the free speech concerns about protecting anonymity on the internet for discussion sites does not apply in the context of a commercial game. That should tilt things towards Zanga and their discovery requests, notwithstanding the fact that their trademark is descriptive and a bit oxymoronic.
Raymond Nimmer recently posted a good short summaryof the differences between open source licenses and commercial licenses. Some of his points make great sense in the practical world of dealing with open source in the context of software licensing transactions. For example, his discussion of open source "creeping in" is often a significant concern that becomes a very interesting topic once an open source rep is added to negotiations. Even in a proprietary software model, the introduction of an open source rep often results in some uneasiness and a "we'll get back to you on that." I'm looking forward to comments eluded to about the viral affect, an area of significant concern that may or may not be overblown.
The advent of social media Web sites like Facebook, Twitter, YouTube and LinkedIn provides the opportunity for authentic interaction and engagement with customers. Accordingly, it is no surprise that these Web sites and others are now being used as marketing tools by companies large and small to help them achieve their strategic goals. But with every technological development and opportunity, new legal and business risks present themselves. Understanding and minimizing these risks will help you maximize the opportunities.
How exactly are companies leveraging social media? Typical methods include
Protectcode has published a handy comparison chart showing the basic differences between the six most popular open source licenses being used today. Those licenses are:
GNU General Public License (GPL) 2.0
GNU General Public License (GPL) 3.0
GNU Lesser General Public License (LGPL) 2.1
New BSD License
Mozilla Public License (MPL) 1.1
Apache License 2.0
The recent Missouri Court of Appeals case of Major v. McCallisterheld that the browse-wrap agreement (which was presented to the user at every page, and presented again when submitting the information to complete the purchase) was enforceable where the purchaser was given notice that by clicking through, she agreed to the terms and conditions. Earlier cases, such as Sprecht v. Netscapehad reached a contrary conclusion, but under somewhat different facts. There have been a few other cases that have addressed the issue, and we suspect that although the trend will likely follow the idea that consumers should increasingly have the expectation that those T's and C's are lurking at the bottom of the page, the best practice for website operators remains a clear indication of assent through a well designed and executed click-through agreement.
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:
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