AW4Law: Cyberlaw Musings

Viacom Sues Google/YouTube

2007-03-14T02:30:00.000-07:00

Entertainment giant, Viacom (owner of such names as MTV and Nickelodeon) is suing Google for “massive copyright infringement” over the use of copyrighted video material on Google-owned YouTube.com. Viacom is seeking in the region of $1 billion in damages.

In its complaint, Viacom makes some very strong statements, such as

[s]ome entities, rather than taking the lawful path of building businesses that respect intellectual property rights on the Internet, have sought their fortunes by brazenly exploiting the infringing potential of digital technology. YouTube is one such entity.

In the complaint, Viacom also claims that YouTube.com contains over 150,000 video clips of their copyrighed material.

In my opinion, go Viacom!! They are certainly correct in asserting that YouTube.com is infringing the rights of many, many copyright holders and I think this will end up being a landmark case in ensuring that intellectual property rights in digital materials are honored on the Internet. I can't wait to see how the case develops!

You can read more details of Viacom v. YouTube on Findlaw.com.

CAN-SPAM Man in the Can?

2007-01-17T06:56:00.000-08:00

For the first time, a jury has just found guilty a defendant to be charged under the anti-spam CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) 2003.

The defendant, Jeffrey B. Goodin, of Azusa, CA, was charged after sending out "phishing" emails to subscribers of AOL in which he deceived recipients into disclosing personal financial information which was then used to make unauthorized purchases.

Mr. Goodin will be sentenced in L.A. on June 11th.

Let's hope this is the first of many such convictions!

Technorati Tags: phishing, can-spam, can-spam act

Presidential Authority to Intercept Emails, and More

2007-01-16T08:33:00.000-08:00

The Washington Post has published an interesting article today on the federal government's power, or otherwise, to intercept emails and gather other pieces of personal information stored on computers. This article, entitled "The Legal Tangles Of Data Collection" is well worth a read (registration at washingtonpost.com may be required).

E-Discovery and the new Federal Rules

2007-01-16T04:47:00.000-08:00

On December 1, 2006, the Federal Rules of Civil Procedure were amended to cover new developments in the world of discovery of electronically stored information ("e-discovery").

In order to provide a single source of information on the new e-discovery rules, Findlaw has created an Electronic Discovery home page from which you can access all of their e-discovery information, including an ongoing series of articles on the topic and even subscribe to their e-discovery RSS feed.

Technorati Tags: frcp, federal rules of civil procedure, electronic discovery, e-discovery, ediscovery

Trademarked Keywords Don't Lead to Confused Consumers: J.G. Wentworth SSC Ltd v. Settlement Funding LLC

2007-01-08T06:30:00.000-08:00

Another court has ruled in favor of the advertiser in a keyword/trademark violation lawsuit.

In the case, J.G. Wentworth SSC Ltd v. Settlement Funding LLC, No. 06-0597 (E.D. Pa. Jan. 4, 2007) (Opinion in PDF format), the court for the Eastern District of Pennsylvania ruled that the defendant's use of the plaintiff's trademarks as keywords for Google AdWords advertisements and in the keywords meta tags of their web sites did not violate the plaintiff's trademark rights. The court dismissed the case because it believed the defendant's use of the trademarks "create[d] no likelihood of confusion as a matter of law."

However, although the court dismissed the case, in its opinion the court did hold that the "defendant’s participation in Google’s AdWords program and defendant’s incorporation of plaintiff’s marks in its keyword meta tags constitute trademark use under the Lanham Act."

In other words, in contrast to some court rulings, this court ruled that using trademarked terms as AdWords and meta-tag keywords meets the "use in commerce" requirment of a trademark violation despite the fact that the defendant's use of the marks was "invisible to potential consumers" and therefore did not actually directly identify any goods or services.

Interestingly, their very invisibility really underpinned the court's rationale for its finding that there was no likelihood of consumer confusion because the trademarks themselves appeared nowhere in the defendant's advertisements and also did not appear on the defendant's web sites. In addition, the court stated the very nature of search engine results precluded such a finding:

Due to the separate and distinct nature of the links created on any of the search results pages in question, potential consumers have no opportunity to confuse defendant’s services, goods, advertisements, links or websites for those of plaintiff.

The court's opinion (PDF) is (mostly) very readable, even for non-lawyers, and thoroughly recommended.

Technorati Tags: trademarks, adwords, keywords, cyberlaw

Search Engine Patents

2006-12-06T15:25:00.000-08:00

As mentioned on Danny Sullivan's new Search Engine Land blog, the USPTO has just issued new search-related patents to Google, Yahoo and IBM. There have, indeed, been several search engine related patents issued in 2006. Below are just a few of the more interesting ones, including the new Google and Yahoo patents.

Patents Assigned to Yahoo

Patent 7,146,416 - Web site activity monitoring system with tracking by categories and terms: "The present invention relates to a method and apparatus to provide statistical measurements relating to Web site activity served by a server or a set of servers where the activity relates to particular topics, terms or categories."
7,130,819 - Method and computer readable medium for search scoring: "The present invention relates to a method and apparatus for scoring or ranking results of a search. More specifically, the present invention relates to a scoring approach based on transaction and/or click records."
7,051,023 - Systems and methods for generating concept units from search queries: "The present invention provides systems and methods for enhancing search functionality provided to a user. In certain aspects, the present invention automatically decomposes queries into constituent units that are related to concepts in which a user may be interested."
7,028,027 - Associating documents with classifications and ranking documents based on classification weights: "The present invention relates to search engines, and in particular, to associating documents with classification values, and ranking documents that are associated with classifications based on weights associated with the classification values."
7,007,074 - Targeted advertisements using time-dependent key search terms: "An improved advertisement generation system is herein described that takes into account a previous search term for conducting a search, typically with a search engine, and the time at which the search was conducted, when selecting an advertisement to present to a potential consumer."
6,990,628 - Method and apparatus for measuring similarity among electronic documents: "[T]he present invention [provides] a method and system that measures similarity of documents in a hypertext document system, by combining multiple types of indications of similarity of the documents."

Patents Assigned to Google

7,146,358 - Systems and methods for using anchor text as parallel corpora for cross-language information retrieval: "Systems and methods consistent with the present invention [provide] mechanisms for translating search queries that exploit anchor text in one language that refer to documents in another language to produce good quality, less noisy query translations."
7,136,875 - Serving advertisements based on content: "The present invention allows advertisers to put targeted ads on any page on the web (or some other document of any media type). The present invention may do so by (i) obtaining content that includes available spots for ads, (ii) determining ads relevant to content, and/or (iii) combining content with ads determined to be relevant to the content."
7,136,854 - Methods and apparatus for providing search results in response to an ambiguous search query: "Methods and apparatus consistent with the invention allow a user to submit an ambiguous search query and to receive relevant search results."
7,096,214 - System and method for supporting editorial opinion in the ranking of search results: "A system and method, consistent with the present invention [provides] a mechanism that enhances the ranking of search results by integrating editorial opinion."
7,031,961 - System and method for searching and recommending objects from a categorically organized information repository: "The invention relates to the field of information searching and browsing, and more particularly to a system and method for enhancing searches and recommending documents in a collection through the use of bookmarks shared among a community of users."
7,027,987 - Voice interface for a search engine: "[T]he present invention provid[es] a voice interface for search engines that is capable of returning highly relevant results."

Technorati Tags: patents, intellectual property, search engines

Google Donating to Stanford CIS

2006-12-01T08:55:00.000-08:00

According to an article in the San Jose Business Journal, Google has pledged to donate $2 million to the Center for Internet & Society at Stanford Law School.

The quotes in the article imply that this money will be used for issues related to intellectual property and copyright in particular. Given that Google seems to be having quite a few issues regarding copyright and trademarks at the moment, (e.g. the Google News copyright decision in Belgium, reports that that Google has put aside a large pot of money to cover copyright issues arising from its acquisition of YouTube, issues arising from its indexing of print publications, being sued in France over a video download/copyright infringement, etc.) this seems very appropriate.

Technorati Tags: google, stanford

CDA, Craigslist & Defamation

2006-11-29T16:33:00.000-08:00

There have been two recent cases in the U.S. involving the Communications Decency Act ("CDA"), one of which is of particular interest to Internet marketers. The two cases in question are Chicago Lawyers' Committee for Civil Rights Under the Law, Inc v. Craigslist, Inc. and Stephen J. Barrett, et al. v. Ilena Rosenthal.

Chicago Lawyers' Committee For Civil Rights Under The Law, Inc. v. Craigslist, Inc., Case No. 06 C 0657 (N.D. Ill., November 14, 2006).

In this case, which was heard in the Federal District Court for the Northern District of Illinois, the Court basically held that the Communications Decency Act ("CDA") immunizes the defendant, Craigslist, Inc. ("Craigslist") from liability for publishing housing ads authored by third parties that allegedly violated the Fair Housing Act, 42 U.S.C. § 3604(c) ("FHA"). The Court determined that the immunity given to ISPs in Section 230(c)(1) of the act, whereby they cannot "be treated as the publisher or speaker of any information provided by another information content provider" also applied to Craigslist. Thus, because the allegedly illegal ads were authored by third parties, Craigslist could not be liable for having published them, even if they violated the FHA.

The Court also held that this immunity (under section 230(c)(1) of the CDA) only extends to claims seeking to hold an ISP liable as a publisher for content authored by third parties, and not to all claims arising out of the ISP's role in giving the public access to such content.

Stephen J. Barrett, et al. v. Ilena Rosenthal, S122953, ___ Cal.3d ____ (Cal. Sup. Ct., November 20, 2006).

In this case, reversing the Court of Appeals, the California Supreme Court basically held that Section 230 of the Communications Decency Act immunizes a person from defamation claims when republishing defamatory statements in online newsgroups, even if that person had notice that the statements in question were defamatory in nature. [Supreme Court Opinion (PDF) (Word)] This ruling against liability for republication of defamatory material is in contrast to the traditional rules of defamation with regard to republication of material and also is in stark contrast to EU law.The background to this case is as follows. The case revolved around the actions of one Ilena Rosenthal who posted an email from a third party, regarding a Dr. Barrett, to an online newsgroup. Dr. Barrett sued for defamation but the case was initially dismissed. The California Court of Appeal overruled the dismissal but, in this case, the California Supreme Court reversed the appellate court's ruling, holding that Rosenthal was not liable.

As in the Craigslist case, the California Supreme Court held that the immunity given under Section 230 of the CDA also applies to "users" of such services. The term "users" was held to include people who use interactive computer services to access the Internet and who post or republish defamatory material authord by third parties on the Internet by such means. As the Court stated, "by declaring that no 'user' may be treated as a 'publisher' of third party content, Congress has comprehensively immunized republication by individual Internet users."Struan Robertson, editor of out-law.com also highlighted how this case is inconsistent with U.S. copyright law: "[u]nder US law, you can sue your defamer but you can't force a third party to take the offending comments off-line. This is inconsistent with US law on copyright, where a statutory notice-and-takedown procedure gives effective remedies to rights holders."

Technorati Tags: cda, defamation, craigslist, cyberlaw