Entries by Steve Cosentino (15)
Pennsylvania Case Could Give Second Life to Click-Wrap Licensees
Software Licensing Trends
In the morass of licensing transactions from 2007 we have noticed some trends that will be relevant to your software license negotiations in 2008.
- Increased use of the vendor hosted software model. A few years ago, it seemed like the vast majority of software licensing transactions that passed across our desks were traditional software on a disk or downloaded software hosted on the servers of the customer. This year, we saw a significant increase in vendor hosted applications, often referred to as ASP or Application Service Provider
Net Harassment - Creative Remedies
Several recent cases and events have focused significant attention on the use of the Internet for defamatory and harassing activities. In the New York divorce case of Garrido v. Krasnansky a court has ordered that a husband stop posting inflammatory remarks about his wife on his blog. First Amendment advocates are up in arms because the order comes not in the context of a defamation case but as part of a motion in a divorce proceeding. The wife's defamation case would not be a slam dunk. The husband has tried to avoid a defamation claim by calling his postings a "fictional" account of his failed marriage. Of course the traditional truth defense presents a high hurdle as well.
Meanwhile, on the other end of the country, an LA federal grand jury is issuing subpoenas in a case involving MySpace postings and a Missouri teenager who committed suicide after rejection by a person she thought was a sixteen year old boy. The poster was actually the mother of a former friend. Prosecutors in Missouri declined to take action against the mother. LA authorities are proceeding under a theory that the mother may have defrauded the social networking community on MySpace.
Cases like these may raise interesting issues for ISP and web site immunity. Section 230 of the Communications Decency Act provides immunity against an ISP being held to be a "publisher or a speaker," clearly focusing on defamation. Does aiding a harassment claim in a divorce fall outside of those protections or chip away at them in some form? Does a harassment claim on a social networking cite fall outside of 230? Does a criminal prosecution protecting a site against fraud frustrate any attempt to tear down immunity by the party truly harmed by the
Eighth Circuit Sox It to Fantasy Baseball Foes
On October 16, 2007, the Eighth Circuit ruled that the First Amendment protected the use of player names and statistics on fantasy baseball sites established by C.B.C. Distribution and Marketing, Inc. C.B.C. brought a declaratory judgement action against Major League Baseball Advanced Media, L.P. to permit the unlicensed use of names and statistics of major league baseball players in connection with fantasy baseball products available on-line. The district court granted summary judgment in favor of C.B.C and the Eighth Circuit Court of Appeals completed the sweep by affirming the district court in C.B.C. Distribution and Marketing Inc., v. Major League Baseball Advanced Media, L.P.
In affirming the district court, the 8th Circuit seemed to espouse the broader proposition that the use of information in the public domain is protected by the First Amendment. "First, the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone." The court also countered arguments that the use of statistics wasn't speech at all. One particularly interesting argument by the Court related to the protection of economic interests under the right of publicity, stating that "major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements." Sounds like the court followed the Red Sox media hyped romp through the playoffs to the exclusion of the 8th Circuit's own small market Kansas City Royals team. (Image licensed from Jeffrey Beall under Creative Commons)
Steve Cosentino
in Right of Publicity
|
Post a Comment
Wayback To Where You Once Belonged
Every once in a while, it's not an entirely bad thing when lawyers get sued, just to keep them honest. The case of Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey is one lawsuit that I was glad to see dismissed on summary judgment by the United States District Court for the Eastern District of Pennsylvania. Users of the popular internet archive tool the Wayback Machine , will breathe a sigh of relief. The dispute began in early July 2005, when Healthcare Advocates filed suit against the law firm of Harding, Earley, Follmer & Frailey alleging, among other things, that the law firm violated the Digital Millennium Copyright Act, protections against circumvention of a technological measure. (Section 1201(a) of the Digital Millennium Copyright Act provides "no person shall circumvent a technological measure that effectively controls access to a work protected under this title.")
In the Healthcare Advocates case, Healthcare Advocates had provided the Wayback Machine with the robots.txt code, which allowed a site to opt out of inclusion in the Wayback Machine. The Healthcare Advocates information
Advertisers Wasatch Out - Utah Passes Anti-Adword Law
The use of trademark keyword advertising seems to have reached a pretty decent equilibrium in the online marketing world. Sure, many advertisers piggyback off of the interest associated with other marks, but sponsored link adwords have evolved into a genuine tool with little likelihood of confusing consumers as to origin. Google has been vindicated a number of times in the past on this practice.
That equilibrium could be upset by the Trademark Protection Act recently passed by the Utah Senate and enacted into law. The law allows owners of trademarks and, potentially, domain names to register a mark and have a cause of action if that mark is used to trigger an advertisement of another business, good or service. Given the reach of the Internet, the bill certainly faces the possibility that a court could declare it unconstitutional on dormant commerce clause grounds. Until then, the law further clouds the picture for key word advertisers. And, as Professor Eric Goldman points out in his blog, recent validations of the scope of Section 230 preemption could serve to protect Google and other online intermediaries. This could again leave advertisers with most of the risk.
New Link in the GPL Sausage
This week, the Free Software Foundation issued its latest draft of the GNU-3 open source license. The prior draft, released in January of 2006 was widely criticized, including major objections by Linux founder Linus Torvalds over digital rights management ("DRM"). The second version attempted to soften the license's effect on DRM but continued to require developers to provide encryption or authorization keys to those wanting use modified versions of the code. The new version appears to have soothed some of these concerns, and has also softened contentious language addressing patented software that relates to open source distributions. The new version does
Deeplinking Rewind
Another lure was dropped in the sea of deeplinking cases this month when a federal judge in Texas enjoined an internet site from providing deep links to motorcycle racing podcasts. The injunction involved SFX Motor Sports and www.supercrosslive.com, an internet site that provides services to the supercross racing community. The site's operator, Robert Davis, used his site to link to audiocasts copyrighted by SFX Motor Sports. The hyperlinks attached directly to the audio files, bypassing the SFX homepage and its advertising content.
SPAM Overboard
This December, the US House of Representatives approved Senate Bill 1608 also called the "Undertaking Spam, Spyware, And Fraud Enforcement with Enforcers beyond Borders Act" or US SAFE WEB Act. The bill provides the Federal government with additional tools for the enforcement arsenal for spammers acting from outside the U.S. 
OK Anti-Spam Statute Canned by Federal Court
In a recent decision in the case of Omega World Travel, Inc. v. Mummagraphics, Inc., the Fourth Circuit federal court upheld a district court decision finding that the federal CAN-SPAM act preempted Oklahoma's anti-spam statute. The CAN-SPAM Act preempts state laws regulating commercial email unless the state law focuses on deception or falsity. The Mummagraphics court found that the Oklahoma statute was broad enough to encompass immaterial inaccuracies in email information and thus impermissibility exceed the scope of the deception or falsity exception. This runs counter to a 2005 decision which found that the CAN-SPAM act did
Techno Tip - Getting Around the Private Domain Name Registration
Frequently, WHOIS searches on existing domain names are leading us to dead ends because of the proliferation of private domain name registrations such as those offered by Domains by Proxy and the Network Solutions private domain name service. A subpoena to the registrar often triggers a private notice to the true domain owner allowing them time to attempt to quash the subpoena or move on to a new domain. One potential end-run to this problem may be to file a complaint against the private registration service directly. Assuming that there
Amazon Shelves Right of Publicity Claim
In a case that could have addressed unresolved issues about preemption under the Communications Decency Act and the nature of right of publicity as a IP claim, the Eleventh Circuit court instead crafted an interesting analogy that has the potential for future development in E-Commerce cases. In Almeida v. Amazon.com, Inc., the plaintiff sued Amazon.com, alleging violation of the right of publicity where Amazon published a book cover on a product page that included plaintiff's photo. Because there was doubt as to whether the original licensing rights were sufficient to cover the addition published, Almedia claimed that the use of the photograph was unauthorized.
Healthy Grade for Online User Agreements
In a recent 10th Circuit decision, Health Grades, Inc. v. Decatur Memorial Hospital, the court found abuse of discretion in a lower court's failure to entertain evidence of frequent website use and consent to an online user agreement when looking at the issue of personal jurisdiction. This copyright case involved the hospital's refusal to pay license fees with respect to ranking information posted on the Health Grades site. The information was subject to an online user agreement. The 10th Circuit panel ruled that the lower court erred in dismissing the
Googlebotics - New Technology and Fair Use
The recent decision by the California Central District Court in Perfect 10 v. Google, currently under appeal, illustrates the difficulty courts have in applying decades old copyright law to the current technical environment. In the Perfect 10 case, an on-line purveyor of images of nude models sued Google for its practice of using thumbnails acquired by its Googlebot Web crawler and including them on image search results pages.
Much of the discussion in the case focused on whether Google's use of the thumbnail photos constituted "Fair Use" under US Copyright law. Prior decisions in Field v. Google and Kelly v. Arriba Soft, went Google's way on fair use issues. The Perfect 10 court, however, in part granted a preliminary injunction against Google.
The Switzernet
The concept of Net neutrality has been a hot topic lately, particularly with the recent Senate Commerce Committee failure to approve a Net neutrality amendment. Notwithstanding the excitement generated by the support of actress Alyssa Milano, perhaps this is an issue that needs further study.
On one hand, we haven't yet seen discriminatory practices from those charged with passing information along on the Net. The idea of adding significant regulation to the Internet runs counter to the freedom of exchange that has allowed the Net to prosper.
