Must Universities Shut Down Constitutionally Protected Speech Forums That Also Enable Student Harassment?

This case involves an uproar at University of Mary Washington over Yik Yak, the now-departed social media service that enabled geofenced anonymous comments. Initially, “Within the Yik Yak conversational thread available at UMW, several students expressed — in offensive terms — strong criticism of Feminists United and its members for their opposition to on-campus fraternities.” There were other allegations of student-on-student misogynistic behavior, which made women feel unsafe on campus.

Things escalated when the UMW administration suspended the rugby team, allegedly one of the sources of misogyny. Immediately after that announcement, “a flurry of harassing and threatening Yaks were directed at members of Feminists United, blaming them for the rugby team’s suspension. The Yaks named plaintiffs McKinsey and Musick, along with Feminists United member Grace Mann, and contained threats of physical and sexual violence…. some of the offending Yaks shared her whereabouts so that she could personally be confronted.” The university issued a campus-wide email claiming “that nothing could be done, that is, the University had “no recourse for such cyber bullying.” Instead, she encouraged UMW students to report any threatening online comments to Yik Yak or other platforms where such comments were made.” Reports to Yik Yak had no effect.

The plaintiffs sued the university for Title IX sex discrimination and retaliation, as well as 1983 rights deprivation. The district court dismissed the suit because there was not the required basis to impute liability to UMW. The appeals court partially reverses in a split decision.

The majority says UMW could have controlled this situation:

the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University’s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students….

the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ugh. So much wrong. The majority is saying that UMW could have reduced the harassment by turning off Yik Yak. While that’s true, notice that the majority’s analysis isn’t specific to Yik Yak’s geofencing. The exact same argument could apply to harassing behavior on any other Internet service that students use to harass other students. So, for example, if the rugby team had launched a barrage of harassing tweets against the plaintiffs, the court’s logic dictates that the administration should block Twitter on the campus network. You might say that’s crazy because there are so many non-harassing conversations on Twitter that would also be squelched; but the majority never acknowledges any non-harassing conversations taking place on Yik Yak or that the majority’s blocking expectation would cause UMW to squelch legitimate discourse. That kind of collateral damage to First Amendment-protected conversations seems pretty clearly unconstitutional.

I believe Yik Yak gave universities the option to turn off its service on their campuses. But a public university blocking an online service sets up the possibility that the online service (in addition to its users) can sue the university for First Amendment violations.

I’m also perplexed why Section 230 didn’t play a role here. The plaintiffs are seeking to hold UMW for third party content on Yik Yak in part because UMW provided Internet access to the offenders. This seems to be a textbook case of Section 230.

Compounding its error, the majority says that UMW was supposed to try to unmask the Yik Yak harassers:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers….

the University was obliged to investigate and seek to identify those students who posted the threats and to report the threats to appropriate law enforcement agencies… the threats described in the Complaint appear to constitute criminal conduct. Steps should have been promptly taken by the University to solve the “whodunnits,” in that the only remaining unknowns with respect to those offenses were the identities of the culprits. If UMW or a law enforcement agency had successfully identified the students who posted threatening messages, the offenders could have been disciplined or prosecuted without infringing on the First Amendment

Putting aside the disquieting aspects of expecting universities to affirmatively research the identity of anonymous students, what could the university do? The university doesn’t have subpoena authority, so all it can do is politely ask Yik Yak if it will voluntarily unmask its users. Assuming Yik Yak had no interest in doing so, or its privacy policy prevented such disclosures, the majority’s legal standard expects UMW to engage in a likely-futile quest principally as a CYA endeavor. And once again, note that this not specific to Yik Yak, so if the plaintiffs had been subject to a barrage of harassing tweets from pseudonymous accounts, the majority seems to expect UMW to ask Twitter to unmask tweeters without any legal compulsion to do so.

The majority summarizes: “we cannot conclude that UMW could turn a blind eye to the sexual harassment that pervaded and disrupted its campus solely because the offending conduct took place through cyberspace.” But the majority cited many ways in which the university was not “turning a blind eye” to its problem and instead took numerous steps to redress the harassments (admittedly perhaps not as vigorously as they should have, but far more than a “blind eye”). The university legitimately feared that trying to curtail Yik Yak would expose them to First Amendment liability. The university was thus caught in a dilemma, where any decision they made would lead to a lawsuit. The majority’s analysis exacerbates that dilemma, and name-calling the dilemma-induced paralysis a “blind eye” is tone-deaf.

The majority then considers why the First Amendment doesn’t protect UMW’s decisions. It says true threats aren’t protected by the First Amendment, a true but inapposite statement. At most, only a fraction of the harassing Yik Yak posts would have qualified as “true threats,” which is a high legal standard precisely because it represents an incursion into the First Amendment. And it’s possible that none of the Yik Yak posts were true threats, because many of them made pop culture references.

The dissent makes many good points, including:

  • The Yik Yak harassers may not have been students, and Yik Yak’s geofence around UMW included neighboring areas beyond the campus.
  • “nothing in the Complaint supports the conclusion that the University facilitated access to the forum where the alleged harassment occurred. That is to say, the Complaint does not allege that the University owned or controlled the electronic devices on which the harassers accessed Yik Yak. Further, the Complaint does not allege facts demonstrating that any of the harassing Yaks were posted using the University’s wireless network. The Complaint simply offers no facts connecting the University to the forum in which the harassment occurred (Yik Yak) or alleging that a University-controlled means was used to access that forum (University computers or wireless network).”
  • “even if the University closed any access to Yik Yak via its network (a First Amendment error described above), Yik Yak would still be readily available and easily accessed anywhere on campus via the student’s own electronic devices.”

Universities can and should take substantial efforts to protect their students from harassment, and other anti-social behavior, that interferes with student learning and personal/professional development. But this ruling goes far beyond that, turning universities into quasi-law enforcement agencies that must investigate criminal behavior and censor speech forums (including lots of constitutionally protected speech) in an overinclusive effort to squash some bad content on the forum. All of these heightened expectations put universities in a no-win squeeze where they risk being sued whatever decision they make, and that doesn’t serve anyone’s best interest. As the dissent summarizes:

the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education…Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims.

Case citation: Feminist Majority Foundation v. Hurley, No. 17-2220 (4th Cir. Dec. 19, 2018)

Other materials in the case: the district court ruling, the complaint, and the plaintiffs’ complaint to the OCR.

The post Must Universities Shut Down Constitutionally Protected Speech Forums That Also Enable Student Harassment? appeared first on Technology & Marketing Law Blog.

Announcing COMO Brussels, the Fourth Edition of the “Content Moderation at Scale” Conference Series, Feb. 5

I’m pleased to announce that there will be a fourth edition of the popular content moderation conference series, this time in Brussels. The event is titled “Content Moderation & Removal at Scale” and will be held on February 5, 2019, in the European Parliament. It will follow a similar format as the SCU and DC events. You can register for free.

I plan to attend. As part of my trip, I have two completely open days in Brussels, February 3 and 4. If you would like to get together during those days, please email me.

Details about the prior 3 events:

* * *

Content Moderation and Removal at Scale, Santa Clara University, February 2018

Event page. My roundup post. My photo album.

Videos

Welcome and Introduction (including Sen. Ron Wyden’s opening remarks)

Legal Overview (presentations by Eric Goldman and Daphne Keller)

Overview of Each Company’s Operations (presentations from Automattic, Dropbox, Facebook, Google, Medium, Pinterest, Reddit, Wikipedia, and Yelp). If you only have time to watch one video, this is the one.

The History and Future of Content Moderation (panel featuring Nicole Wong, Charlotte Willner, and Dave Willner; moderated by Kate Klonick)

Session A: Employee/Contractor Hiring, Training and Mental Well-being (panelists from Automattic, Medium, and Pinterest)

Session B: Humans vs. Machines (panelists from Facebook, Wikimedia, and Yelp)

Session C: In-sourcing to Employees vs. Outsourcing to the Community or Vendors (panelists from Nextdoor, Pinterest, Reddit, Wikimedia, and Yelp)

Session D: Transparency and Appeals (panelists from Automattic, Medium, and Patreon)

Speaker Slides

Eric Goldman, US law overview

Daphne Keller, foreign law overview

Adelin Cai, Pinterest

Aaron Schur, Yelp

Techdirt Essays

Eric Goldman, It’s Time to Talk About Internet Companies’ Content Moderation Operations

Kate Klonick, Why The History Of Content Moderation Matters

Kevin Bankston & Liz Woolery, We Need To Shine A Light On Private Online Censorship

Alex Feerst, Implementing Transparency About Content Moderation

Jacob Rogers, International Inconsistencies In Copyright: Why It’s Hard To Know What’s Really Available To The Public

Adelin Cai, Putting Pinners First: How Pinterest Is Building Partnerships For Compassionate Content Moderation

Tarleton Gillespie, Moderation Is The Commodity

Paul Sieminski & Holly Hogan, Why (Allegedly) Defamatory Content On WordPress.com Doesn’t Come Down Without A Court Order

Sarah T. Roberts, Commercial Content Moderation & Worker Wellness: Challenges & Opportunities

Colin Sullivan, Trust Building As A Platform For Creative Businesses

* * *

COMO at Scale, Washington DC, May 2018

Event page. My roundup post.

Videos

Opening Remarks

Foundations: The Legal and Public Policy Framework for Content (Eric Goldman and Tiffany Li)

Under the Hood: UGC Moderation (Part 1) (Match – Tripadvisor – Twitter – Twitch – Vimeo)

Under the Hood: UGC Moderation (Part 2) (Github – Google – Wikimedia – Facebook)

You Make the Call: Audience Interactive (Emma Llanso and Mike Masnick)

Content Moderation and Law Enforcement

What Machines Are, and Aren’t, Good At

Transparency

Concluding Remarks

Presentations

My slides on the U.S. law of content moderation

Slides from GitHubTripAdvisorTwitchTwitter, and Vimeo

Photos

Conference organizer’s Flickr album

My photo album

* * *

COMO III: Content Moderation and the Future of Online Speech, St. Johns University (Manhattan), October 2018

Event page. My photo album. Videos.

The post Announcing COMO Brussels, the Fourth Edition of the “Content Moderation at Scale” Conference Series, Feb. 5 appeared first on Technology & Marketing Law Blog.

2H 2018 Quick Links, Part 6 (IP, E-Commerce, Censorship, & More)

Intellectual Property

* Daniel v. FanDuel (Ind. Oct. 24, 2018): “online fantasy sports operators that condition entry to contests on payment and distribute cash prizes do not violate the Indiana right of publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of “material that has newsworthy value,” an exception under the statute.”

* Washington Post: ‘Everyone signed one’: Trump is aggressive in his use of nondisclosure agreements, even in government

* Massachusetts Finally Passes Non-Compete Bill After Nearly a Decade

* Stephen D. Levandoski, Note, To Seize the Initiative: Assessing Constitutional Due Process Challenges to the Defend Trade Secret Act’s Ex Parte Seizure Provision, 93 N.Y.U. L. Rev. 864 (2018):

In an effort to protect innovation and increase trade secret enforcement, Congress passed the Defend Trade Secrets Act in 2016. The law contains an ex parte seizure provision that provides for the seizure of property in order to prevent the theft or transmission of a trade secret. This Note is the first to argue that the ex parte seizure provision raises serious constitutional due process concerns. It proceeds by framing the seizure provision within its historical and legislative context, identifying infirmities in the provision through the lens of due process, and addressing larger practical and policy implications. The potentially widespread and lasting effects of the seizure provision on employee mobility, innovation, and competition underscore the importance of eliminating the provision or severely limiting its scope.

* Whose injera is it anyway? Apparently the Dutch have patented many aspects of teff, creating all kinds of problems for Ethiopia.

E-Commerce

* Allstate New Jersey Insurance Co v. Amazon.com,  2018 WL 3546197 (D.N.J. July 24, 2018).

Plaintiff mainly argues 1) that under New Jersey law, someone within the distribution chain is a “product seller,” and Amazon, a party within the distribution chain, is thus a “product seller”; and 2) public policy supports holding Amazon liable as a “product seller.” Although it is a close question, Plaintiff’s arguments fail because it has not demonstrated that New Jersey courts would, in fact, extend the definition of “product seller” to a party involved in the distribution chain as Amazon was here. Public policy arguments likewise do not establish that a New Jersey strict liability law is meant to capture Amazon’s actions under the extant facts. Thus, for the reasons that follow, Amazon—in this instance—cannot be held liable as a “product seller” under the PLA …

Amazon may have technically been a part of the chain of distribution, but it never exercised control over the product sufficient to make it a “product seller” under the PLA.

* In 2012, I asked “Will the Floodgates Open Up for ADA Claims Against Websites?” I think we’ve gotten our answer: 800+ lawsuits filed in 2017

* Inside Higher Ed: Fifty colleges sued in barrage of ADA lawsuits over web accessibility

* Sarah Jeong on the rough-and-tumble competitive gaming of Kindle Unlimited

* The Verge: A deep look at the brutal world of competitive gaming among Amazon merchants

* Quartz: Secret Amazon brands are quietly taking over Amazon.com

* WSJ: Just Bought a New Puppy? It Might Be a Rental

Censorship

* Leuthy v. LePage, 2018 WL 4134628 (D. Me. Aug. 29, 2018):

With regard to their First Amendment free speech rights, again based on the Plaintiffs’ allegations, the Facebook users who post messages expressing disagreement with the Governor via the “Paul LePage, Maine’s Governor” page are akin to citizens who might attend a public meeting hosted by him or who organize rallies at Blaine House in that they seek to engage the Governor on issues pertinent to his official duties and to express their viewpoints in a forum and context associated with him and those duties. The cases the Governor cites involving political rallies by incumbent elected officials are distinguishable. In those cases, the prospect of interruption and interference is real. A protester yelling and attempting to drown out the speaking elected official can easily interfere with and even halt the elected official’s speech. See Johanns, 544 U.S. at 574 (Souter, J., dissenting) (“To govern, government has to say something, and a First Amendment heckler’s veto of any forced contribution to raising  the government’s voice in the ‘marketplace of ideas’ would be out of the question.”). In contrast, a Facebook post, which is textual and visible alongside posts by the Governor, his supporters, and others, does not prohibit the Governor from posting whatever and whenever he wants. His words are conveyed and received with the precision and clarity he intends. Based on the allegations in the Complaint, which the Court must accept, the Plaintiffs stated sufficient facts to plausibly allege that the conduct in this case is the Governor’s deletion of posts and banning of citizens from the “Paul LePage, Maine’s Governor” page, and that this conduct does not constitute government speech…..

The Governor does not dispute the Plaintiffs’ claims that his deletion of their posts and banning of them from his page constituted viewpoint discrimination. Given this and the Court’s conclusion that forum analysis does apply, the Court finds that the Plaintiffs plausibly stated a claim for violation of their free speech rights under the First Amendment. …

Based on the allegations in the Plaintiffs’ Complaint, the Court sees the speech as the Plaintiffs’ posts that the Governor deleted, as well as the future speech that they wish to engage in, within the forum of the “Paul LePage, Maine’s Governor” Facebook page. Based on the allegations in the Complaint, the Court is unconvinced that the Governor adopts as his own speech each undeleted post made by someone else on the page. The Court also disagrees with the related notions that allowing a post to remain on a social media page amounts to “listening” or that the Plaintiffs are asserting “a right to be heard.” The Court understands the Plaintiffs to be asserting a right to speak; whether their speech is heard and/or whether the Governor is listening are separate questions. …

The Governor cites no authority for the view that alternative channels for petition render a claim for violation of the Petition Clause nonviable, and the Court found none. The Governor does not analogize the Plaintiffs’ communications via “Paul LePage, Maine’s Governor” to frivolous litigation or to petitions to the President that contain intentional or reckless falsehoods.

*  Garcia v. Good For Life by 81, Inc., 2018 BL 250095 (S.D.N.Y. July 12, 2018)

Provisions that prohibit a party from contacting the media can “prevent the spread of information about FLSA actions to other workers (both employees of Defendants and others) who can then use that information to vindicate their statutory rights.” Amaro v. Barbuto, LLC, 2017 WL 476730 (S.D.N.Y. Feb. 2, 2017) (removing a provision that prevented plaintiff from revealing to any “outlet, including newspapers, television stations, and radio stations, inter alia, the fact or existence of this Settlement Agreement, and . . . any aspect of any of the operations and activities of [defendants] as alleged by [plaintiff] in the Action” from the settlement agreement). These provisions impermissibly undermine the FLSA’s remedial purposes by restricting workers from using the media to “publicize both the wrongdoing of the employer and the possibility of success more generally.” Access to the media is particularly important because the plaintiffs in this case are low-wage employees, some of whom do not speak English well – precisely the people who require the protection of the FLSA. The media plays a key role in connecting individuals today – including low-wage, non-English speaking workers living far from their original homes – to matters of interest to them. Those communities may “have much to gain from the diffusion of information about their employment rights” through the media. Barring plaintiffs from contacting the media is thus not a trivial infringement on their ability to spread the word “to other workers” who may then be able to “vindicate their statutory rights.”

*  Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

* “China is building a digital dictatorship to exert control over its 1.4 billion citizens. For some, “social credit” will bring privileges — for others, punishment.”

Miscellaneous

* Betz v. Aidnest, 2018 WL 5307375 (D.D.C. Oct. 26, 2018): “the fact that Aidnest directly targets consumers in the District via its online presence (website, Facebook page, and Twitter account) is insufficient under (a)(4)(i) or (a)(4)(ii), because use of online or web-based resources by District of Columbia residents does not constitute “purposeful availment” by a defendant for the purpose of the minimum contacts test; rather, it is an “unavoidable side-effect of modern internet technology.””

* Minnesota v. Decker, 2018 WL 3748685 (Minn. Aug. 8, 2018). Conviction affirmed for texting a dick pic to a minor. Prior blog post.

* Techdirt:  The View From Somewhere: The Press Needs To Be Anti-Partisan, Not Bi-Partisan

* Harpers: Toward an ethical archive of the web

* Phys.org: Red-light cameras don’t reduce traffic accidents or improve public safety: analysis

* NY Times: Five Times the Internet Was Actually Fun in 2018

The post 2H 2018 Quick Links, Part 6 (IP, E-Commerce, Censorship, & More) appeared first on Technology & Marketing Law Blog.

Twitter’s TOS Upheld Despite Unilateral Amendment Clause—Brittain v. Twitter

This is one of the many Trump-associated lawsuits (#MALGA) by so-called conservatives against Internet companies for allegedly squelching their voices. In this case, Craig Brittain, an erstwhile political candidate, had several campaign-related Twitter accounts suspended (including @CraigRBrittain, @AuditTheMedia, @SenatorBrittain, and @Brittain4Senate), allegedly costing him 500,000 followers. He sued for “$1 billion in damages, a declaration that Twitter interfered in the 2018 federal election, and an injunction preventing Twitter from suspending or otherwise limiting access to accounts.” Twitter invoked the forum selection clause in its TOS and sought to relocate the case from Arizona to its home court in San Francisco.

The court doesn’t discuss TOS formation, saying Brittain “affirmatively assenting to the ‘clickwrap’ agreement” (ugh) and adding: “Brittain does not dispute that he voluntarily agreed to the Terms when he created each Twitter account, that the forum selection clauses are mandatory rather than permissive, and that his claims fall within the scope of the clauses.”

Brittain tried to invalidate the clause because Twitter’s TOS contains a unilateral amendment clause. As I’ve repeatedly indicated, those clauses are dangerous. This time, the court says it’s OK because the clause doesn’t allow retroactive modification (thus distinguishing it from Zappos).

Brittain tried a bizarre argument that the TOS was unconscionable because it didn’t contain an arbitration clause. The court says “Brittain cites no legal authority suggesting that Twitter is required to include an arbitration clause in its Terms.”

Finally, Brittain argued that he is limited to bicycle or public transportation, making it hard for him to file court documents. The court cheerfully notes that “the Northern District of California permits filing by mail, eliminating the need for Brittain to bicycle or use public transportation to file court documents.”

Case citation: Brittain v. Twitter, Inc., 3:19-cv-00114-SK (D. Ariz. Jan 4, 2019). The complaint.

The post Twitter’s TOS Upheld Despite Unilateral Amendment Clause—Brittain v. Twitter appeared first on Technology & Marketing Law Blog.

2H 2018 Quick Links, Part 5 (Privacy, Advertising, Consumer Reviews)

Privacy

* Winston Smith v. Facebook, No. 17-16206 (9th Cir. Dec. 6, 2018): “the connection between a person’s browsing history and his or her own state of health is too tenuous to support Plaintiffs’ contention that the disclosure requirements of HIPAA or section 1798.91 apply.”

* Kash Hill, The Wildly Unregulated Practice of Undercover Cops Friending People on Facebook

* Nieman Lab: More than 1,000 U.S. news sites are still unavailable in Europe, two months after GDPR took effect

* GDPR shifted ad dollars away from targeted ads and into non-targeted ads (yay?), and from Europe to the US.

* Techdirt: Just As Expected: GDPR Has Made Google Even More Dominant In Europe

* San Francisco Chronicle: “Data privacy rules have big beneficiary: lawyers”

* Techdirt: We’re Bad At Regulating Privacy, Because We Don’t Understand Privacy

* Reuters: “Europe’s new data privacy law has put a small army of tech firms that track people online in jeopardy and is strengthening the hand of giants such as Google and Facebook in the $200 billion global digital advertising industry.”

* AP: Google tracks your movements, like it or not

* State v. Ahmed,  2018 Minn. App. LEXIS 490 (Minn. Ct. App. Dec. 17, 2018). Prosecution under Minnesota’s sui generis non-consensual pornography crime even though the photo’s provenance was unknown. “the record here includes no direct evidence that, at the time respondent initially posted the image in question, she actually knew that S.C. did not consent to dissemination or that respondent had actual knowledge of S.C. having asserted an expectation of privacy. But on this record, there is evidence sufficient to establish probable cause that respondent should have known of S.C.’s nonconsent and her expectation of privacy during the time period over which respondent disseminated the image using several social-media accounts.”

For more on prosecutions of nonconsensual pornography cases, see my compilation.

*  U.S. v. Ackell, 2018 WL 5275211 (1st Cir. Oct. 24, 2018). Anti-stalking prosecution based on sextortion not covered by the First Amendment (we inventory this case in the compilation linked above).

Advertising

* Another peak 2018 moment: wannabe Instagram influencers are making unsponsored posts that look like ads, because faking sponsorships makes them MORE CREDIBLE (?!) to readers & future sponsors. ¯\_(ツ)_/¯

* Wired: Inside the Pricey War to Influence Your Instagram Feed

* Christina Sauerborn, Note, Making the FTC 🙂 : an approach to material connections disclosures in the emoji age, 28 Fordham Intell. Prop. Media & Ent. L.J. 571 (2018):

In examining the rise of influencer marketing and emoji’s concurrent surge in popularity, it naturally follows that emoji should be incorporated into the FTC’s required disclosures for sponsored posts across social media platforms. While current disclosure methods the FTC recommends are easily jumbled or lost in other text, using emoji to disclose material connections would streamline disclosure requirements, leveraging an already-popular method of communication to better reach consumers. This Note proposes that the FTC adopt an emoji as a preferred method of disclosure for influencer marketing on social media.

My response: ¯\_(ツ)_/¯. Creating a brand new symbol that consumers recognize is hard, and calling it an emoji doesn’t lessen that challenge. Furthermore, we don’t need Unicode to do this; each platform could create its own ad symbol and even automatically replace or supplement keywords like #ad if they cared. They don’t.

* MediaPost: Facebook Removes Some Targeting Options To Settle Civil Rights Investigation

* Inc.: A Florida town tried to earn a few bucks by (temporarily) changing its name from “Mayo” to “Miracle Whip”–but along the way it had to break the law & fool its citizens.

* The Hustle: The hottest advertising trend of 2018? Billboards.

* Vox: 400 people got a Domino’s tattoo for free pizza. Why do brands promote these body-altering stunts? See my 2005 contracts law exam.

* Ad Law Access: “NAD determined that the shopping guide did not constitute “national advertising” for a few key reasons. First, the content was created by writers who did not know whether or not the company would receive any affiliate revenue based on purchases of the recommended products. Second, neither the retailers nor the brands mentioned in the guides had any input in what was said about the products. And, third, the links were added to the shopping guide after the content was written. “In sum,” the NAD wrote, “the content was created independently of and prior to the addition of affiliate links to the article.” Thus, the statements in the shopping guide weren’t ads and BuzzFeed wasn’t responsible for substantiating claims about the products that were reviewed.

This decision provides a roadmap for other companies that use affiliate links. Simply calling something “editorial” is not going to be enough to escape scrutiny under advertising laws. Instead, companies must have procedures in place to ensure that there is a clear separation between editorial decisions and revenue and that the companies whose products are being reviewed cannot influence the content. It’s also important to clearly disclose the affiliate relationship, as BuzzFeed did here. The NAD’s decision suggests that if companies get this wrong, they may be required to substantiate any claims they make about the products they review.”

Consumer Reviews

* Amato v. Bermudez,  2018 WL 3689494 (Cal. App. Ct. Aug. 3, 2018):

Under the broadly construed anti-SLAPP statute, consumer reviews of businesses open to the public are routinely viewed as matters of public interest….  the trial court correctly concluded that defendants’ criticisms of Amato’s business and his business practices, posted on publicly accessible commercial sites, were matters of interest to members of a significant subset of the general public which could directly impact potential consumers considering patronizing CFR, and thus were protected by the anti-SLAPP statute…

Courts and commentators have recognized that readers of online message boards, blogs and reviews expect to see strongly worded opinions, not objective facts…. Defendants’ criticisms of Amato’s management or programming methods, and his inability to coach or instruct (including the photo), are clearly statements of opinion.

* FTC: First Consumer Review Fairness Act case takes on promoter’s “big bucks on Amazon” claim. The CRFA claim is added onto an enforcement action motivated by other concerns. This will probably be the FTC’s modus operandi for other FTC enforcement actions of the CRFA. More background on the CRFA.

* Recode: Glassdoor CEO Robert Hohman explains why reviews with sexual harassment allegations don’t get removed

* Clay Calvert, Gag Clauses and the Right to Gripe: The Consumer Review Fairness Act of 2016 & State Efforts to Protect Online Reviews From Contractual Censorship, 24 Widener L. Rev. 203 (2018).

The post 2H 2018 Quick Links, Part 5 (Privacy, Advertising, Consumer Reviews) appeared first on Technology & Marketing Law Blog.

2H 2018 Quick Links, Part 4 (Trespass, Contracts)

Trespass

* Ryanair v. Expedia, 2018 WL 3727599 (W.D. Wash. Aug. 6, 2018). CFAA can apply when a US company scrapes data from an international website.

* Jackie’s Enterprises, Inc. v. Belleville 2018 N.Y. Slip Op. 07225 (N.Y. App. Div. Oct. 25, 2018):

Generally, the factual allegations underlying plaintiff’s trespass to chattels and/or conversion claim are that defendants unlawfully canceled shipments of goods, attempted to divert goods, supplies and mail from plaintiff’s possession, unlawfully accessed plaintiff’s Facebook and Yelp! online accounts and web pages and unlawfully attempted to gain access to and control of plaintiff’s credit card processing service account. Assuming that a cause of action for trespass or conversion even applies to intangible items such as websites, as noted above, plaintiff had no possessory interest in the online accounts and web pages because the seizure order permitted Belleville to lawfully gain control of them. Additionally, defendants did not actually interfere with plaintiff’s control of the credit card processing service account. Regarding orders and deliveries, plaintiff was required to point to “specific identifiable” property that defendants interfered with or over which defendants allegedly exercised control. Setting aside general allegations in the complaint and Keto’s affidavit, plaintiff only specifically referred to defendants interfering with deliveries from one particular supplier, but Keto averred that she ultimately received the delivery in her new location with no appreciable delay and no alleged damage. For the remainder of the alleged orders or deliveries, plaintiff failed to sufficiently identify them, or assert that defendants either actually interfered with them or were not lawfully authorized to do so by the seizure order. Thus, Supreme Court properly dismissed the cause of action sounding in trespass to chattels or conversion. Accordingly, the court properly dismissed the entire complaint.

* Andrew Sellars, Twenty Years of Web Scraping and the Computer Fraud and Abuse Act, 24 B.U. J. Sci. & Tech. L. 372 (2018). The abstract:

“Web scraping” is a ubiquitous technique for extracting data from the World Wide Web, done through a computer script that will send tailored queries to websites to retrieve specific pieces of content. The technique has proliferated under the ever-expanding shadow of the Computer Fraud and Abuse Act (CFAA), which, among other things, prohibits obtaining information from a computer by accessing the computer without authorization or exceeding one’s authorized access. Unsurprisingly, many litigants have now turned to the CFAA in attempt to police against unwanted web scraping. Yet despite the rise in both web scraping and lawsuits about web scraping, practical advice about the legality of web scraping is hard to come by, and rarely extends beyond a rough combination of “try not to get caught” and “talk to a lawyer.” Most often the legal status of scraping is characterized as something just shy of unknowable, or a matter entirely left to the whims of courts, plaintiffs, or prosecutors. Uncertainty does indeed exist in the caselaw, and may stem in part from how courts approach the act of web scraping on a technical level. In the way that courts describe the act of web scraping, they misstate some of the qualities of scraping to suggest that the technique is inherently more invasive or burdensome. The first goal of this piece is to clarify how web scrapers operate, and explain why one should not think of web scraping as being inherently more burdensome or invasive than humans browsing the web. The second goal of this piece is to more fully articulate how courts approach the all-important question of whether a web scraper accesses a website without authorization under the CFAA. I aim to suggest here that there is a fair amount of madness in the caselaw, but not without some method. Specifically, this piece breaks down the twenty years of web scraping litigation (and the sixty-one opinions that this litigation has generated) into four rough phases of thinking around the critical access question. The first runs through the first decade of scraping litigation, and is marked with cases that adopt an expansive interpretation of the CFAA, with the potential to extend to all scrapers so long as a website can point to some mechanism that signaled access was unauthorized. The second, starting in the late 2000s, was marked by a narrowing of the CFAA and a focus more on the code-based controls of scraping, a move that tended to benefit scrapers. In the third phase courts have receded back to a broad view of the CFAA, brought about by the development of a “revocation” theory of unauthorized access. And most recently, spurred in part by the same policy concerns that led courts to initially constrain the CFAA in the first place, courts have begun to rethink this result. The conclusion of this piece identifies the broader questions about the CFAA and web scraping that courts must contend with in order to bring more harmony and comprehension to this area of law. They include how to deal with conflicting instructions on authorization coming different channels on the same website, how the analysis should interact with existing technical protocols that regulate web scraping, including the Robots Exclusion Standard, and what other factors beyond the wishes of the website host should govern application of the CFAA to unwanted web scraping.

Contracts

*  Thomas v. Facebook, Inc., 2018 WL 3915585 (E.D. Cal. Aug. 15, 2018):

Plaintiff has not satisfied her “heavy burden” of showing that the forum selection clause in Facebook’s SRR was fraudulent or overreaching, that its enforcement would deprive her of day in court, that it contravenes public policy, or that it otherwise does not comport with fundamental fairness. On the contrary, Plaintiff offers no explanation for why this Court should not enforce the forum selection clause contained in Facebook’s SRR, nor is the Court aware of any legal reason why that clause should not be enforced.

* Biltz v. Google, Inc., 2018 WL 3340567 (D. Hawaii July 6, 2018).

In a transparent effort to evade the contractual forum selection clause that he acknowledges binds him, Brian Evans has enlisted the aid of his colleague, Mark Biltz, to stand in his shoes as Plaintiff. According to Biltz, he is not bound to litigate this action in Santa Clara County, California because unlike Evans, he did not agree to the YouTube Terms of Service agreement or Google’s advertising program’s terms, and his claims are, in any event, based on an oral, not written, contract that has no forum selection provisions.

The evident gamesmanship gets Biltz (and Evans) nowhere. The gravamen of this action is that Google owes Biltz unpaid royalties for an internet video entitled, “At Fenway,” that Biltz produced, Evans starred in, and which Evans uploaded to Google’s YouTube platform in March 2013. There is no dispute that the YouTube Terms of Service agreement in effect now, and then, requires any claim arising out of YouTube’s services to be brought in Santa Clara County, California. Whether the agreement’s signator was Evans, Biltz, both, or neither, it matters not. They could not have availed themselves of YouTube’s services without subjecting themselves to the same terms of service as every other user. The claims arising out of YouTube’s services, which include all of the claims here, must be brought in California.

* Daniel v. eBay, Inc., 2018 WL 3597654 (D.D.C. July 26, 2018). The court rejects eBay’s request to arbitrate the buyer’s claim over a counterfeit sale. The buyer signed up in 1999, when eBay’s user agreement didn’t have an arbitration clause but did have a unilateral amendment clause. eBay added the arbitration clause in 2012 and amended the agreement again in 2015, in both cases notifying its users about the changes. The court says the buyer didn’t get sufficient notice. Posting the new terms to the web wasn’t good enough, and a form email to all users didn’t prove that the buyer had received it. This is a troubling ruling, and I hope it doesn’t take root as precedent.

* Lopez v. Terra’s Kitchen, LLC, 2018 WL 4489588 (S.D. Cal. Sept. 19, 2018): “The Court finds that the agreement at issue in this case is a browsewrap [Eric’s comment: ugh] agreement because the consumer assents to the Terms & Conditions simply by using the website or purchasing a subscription, without visiting the Terms & Conditions page or even acknowledging that use of the website constitutes assent to the Terms & Conditions….the hyperlink to Defendant’s Terms & Conditions appears in the bottom left-hand corner of the website footer of Defendant’s webpages, below a grouping of 21 other hyperlinks, arranged in five columns, that cover topics like “Careers,” “Buy a Gift Card,” “Mediterranean Diet,” and “Newsroom.”…Here, the Terms & Conditions hyperlink is more or less buried at the bottom of Defendant’s webpage. Under Nguyen, without more, this is insufficient to give rise to inquiry notice.”

* Wickberg v. Lyft, 1:18-cv-12094-RGS (D. Mass. Dec. 19, 2018). Lyft’s TOS for drivers requires arbitration. Drivers saw the following screen as part of signing up:

Relying heavily on Cullinane v. Uber, the court deems this a “clickwrap” (ugh):

Lyft’s screen required Wickberg to click a box stating that he “agree[d] to Lyft’s terms of services” before he could continue with the registration process. And although, as Wickberg asserts, “Lyft’s terms of service” appeared towards the bottom in a smaller font and without a typical blue-colored hyperlink, the phrase was pink and distinguishable on the screen…. Wickberg affirmatively adopted those terms by clicking “I agree.”

[Personal self-congratulatory note: my Fall 2018 Internet Law final exam asked students to discuss if a pink hyperlink had the same legal effect as a blue hyperlink. 💯]

The plaintiff said he couldn’t remember clicking on the TOS. The court responds: “the relevant inquiry is not whether he actually viewed the terms but whether they were reasonably communicated to him.”

The court distinguishes two other Lyft losses based on different state law (ugh):

In Applebaum v. Lyft, Inc., a court in the Southern District of New York invalidated an online Lyft agreement because “the text is difficult to read: ‘I agree to Lyft’s Terms of Service’ is in the smallest font on the screen, dwarfed by the jumbo-sized pink ‘Next’ bar at the bottom of the screen and the bold header ‘Add Phone Number’ at the top.” Similarly, in Talbot v. Lyft, Inc., a California state court invalidated a Lyft agreement identical to the one at issue here because “nothing supports the conclusion that (i) the pink words ‘Terms of service’ were a hyperlink or that (ii) they linked to the contract that governed the working relationship between Lyft and drivers.” I find these cases unpersuasive, as they apply New York and California law, and not the law of Massachusetts.

So the court enforces the Lyft TOS and sends the case to arbitration. The correct result IMO.

The post 2H 2018 Quick Links, Part 4 (Trespass, Contracts) appeared first on Technology & Marketing Law Blog.

Announcing the Fourth Edition of Advertising & Marketing Law: Cases & Materials by Tushnet & Goldman

Rebecca Tushnet and I are pleased to announce the publication of the fourth edition of our casebook, Advertising & Marketing Law: Cases & Materials. It is available for purchase in the following formats:

* A DRM-free PDF file. Price: $12
* A DRM-free ePub file for mobile devices. Price: $12
* In Kindle. Price: $9.99
* A print-on-demand book from Amazon. Because of the book’s length, we publish the hard copy in two volumes: Volume 1(covering chapters 1-8) and Volume 2 (covering chapters 9-17). Price is $20 for each volume ($40 for the set) plus shipping and tax. The hard copy 4th edition is cheaper than the 3rd edition by 10%, plus the book should now qualify for free Amazon shipping, Also, we offer a free PDF or ePub file to buyers of the hard copy version; all they have to do is email me a copy of their receipt showing which edition they bought, and I’ll promptly email the electronic file.

As usual, if you are a professor, or are hoping to teach the course, and would like a free evaluation copy, please email me (egoldman@gmail.com).

A sample chapter, Chapter 13 (on publicity rights and endorsements), is available as a free download.

We’ve discussed the book’s background and our goals as authors in this essay.

What Does the Book Cover?

Preface
Chapter 1: Overview
Chapter 2: What is an Advertisement?
Chapter 3: False Advertising Overview
Chapter 4: Deception
Chapter 5: Omissions and Disclosures
Chapter 6: Special Topics in Competitor Lawsuits
Chapter 7: Consumer Class Actions
Chapter 8: False Advertising Practice and Remedies
Chapter 9: Other Business Torts
Chapter 10: Copyrights
Chapter 11: Brand Protection and Usage
Chapter 12: Competitive Restrictions
Chapter 13: Featuring People in Ads
Chapter 14: Privacy
Chapter 15: Promotions
Chapter 16: The Advertising Industry Ecosystem–Intermediaries and Their Regulation
Chapter 17: Case Studies
Chapter 18 (online only): Case Studies in Atypical Advertising Regulation

What Changed from the Third to the Fourth Edition?

Print-on-demand through KDP. In 2018, Amazon shut down CreateSpace and moved everything to KDP. On balance, this transition probably will be a good thing. Among other things, it creates the possibility of free shipping for the hard copies. However, for this edition, the switch to KDP created several new administrative and format hassles. This is one of the principal reasons why it took from summer (when Prof. Tushnet and I finished our substantive changes) until now to get the book completely online. Despite the time it’s taken to get this far, there may be a few remaining formatting quirks that were just too time-consuming to fix. Apologies in advance.

New size. One of the biggest KDP formatting challenges we encountered was due to the book’s 6×9 size, which created multiple unresolvable problems in KDP. As a result, we switched the book over to an 8.5×11 format, which resolved all of KDP’s technical issues. However, this means that if you saw the Fourth Edition’s PDF in its 6×9 size, all of the page numbers have since changed.

New chapter. We’ve added a Chapter 18, Case Studies in Atypical Advertising Regulation. It covers two main topics: ads involving housing discrimination, and political advertising. Because of the niche nature of those topics, we decided to publish it only online. It’s freely downloadable from SSRN.

Substantive changes. Much of the book follows the same structure as the third edition, but we made many incremental changes. Examples include new coverage of GDPR, revamped coverage of constitutional limits on disclosures, more notes on international issues, and pervasive updating/freshening (e.g., some examples written in 2010-11, when we wrote the first edition, have been updated to more modern 2018 examples). We also refocused Chapter 17 on FDA regulation of food and drugs, where it previously had been intended to cover a wider range of topics.

If You Are Teaching (Or Want to Teach) Advertising Law

For more on why you should consider teaching an advertising law course, see this post. In addition to a complimentary book copy, we can get you (1) access to the Georgetown Intellectual Property Teaching Resources database, with digitized props galore; and (2) our PowerPoint slide decks and lecture notes plus other materials, such as the various exercises we’ve used. If you want to create a new course, we can help you prepare your draft syllabus and course proposal. Email me! You can see more stuff, including syllabi and old exams, on my Advertising Law course page.

The post Announcing the Fourth Edition of Advertising & Marketing Law: Cases & Materials by Tushnet & Goldman appeared first on Technology & Marketing Law Blog.

2H 2018 Quick Links, Part 3 (Keyword Advertising)

* St. George Executive Shuttle LLC v. Western Trails Charter & Tours LLC, 2018 WL 3350348 (D. Utah July 9, 2018). This is a competitive keyword advertising lawsuit involving the purported trademark “St. George Shuttle” (St. George is a city in Utah). The court denies the defendant’s motion to dismiss as premature. What are the odds the court will void the plaintiff’s “trademark” before this lawsuit is over?

* LegalForce RAPC Worldwide v. Swyers,  3:17-cv-07318-MMC (ND Cal. July 17, 2018).

Plaintiffs allege that TTC and Trademark LLC “are among the largest purchasers of online advertising (including Google and Bing) for trademark filing-related search terms/keywords”, and that said entities “purchase[ ] advertisements whenever consumers perform online search[es] of terms related to the practice of trademark filing, including ‘trademark attorney’ and ‘trademark lawyers'[,] with copy that misleads consumers into believing that they will be represented by attorneys or at least will provide the services by lawful means”. According to plaintiffs, TTC and Trademark LLC also “make[ ] false comparisons directly by purchasing keywords that include the term ‘Trademarkia,’ the website through which [LegalForce RAPC] perform[s] only attorney-led trademark filing services, and falsely comparing it with the unauthorized practice of law services of TTC [and Trademark LLC].” (see also FAC ¶ 32.e (alleging TTC and Trademark LLC “use[ ] advertising links that appear to be describing an attorney-led service by bidding on Google Adword keywords such as ‘trademark attorney’ as a bait to attract consumers to click on them, but then direct[ ] these same consumers to [their respective] trademark services provided by nonattorneys”).)

The TTC Defendants and the Trademark Defendants argue plaintiffs have not complied with Rule 9(b). Again, plaintiffs do not argue they have so complied, but, rather, argue Rule 9(b) does not apply, which argument, the Court, for the reasons stated above, finds unpersuasive. Further, plaintiffs have not complied with Rule 9(b), as they fail to identify the “copy” in the “advertisements . . . that misleads consumers”, fail to identify the content of any statement that “falsely compar[es]” LegalForce RAPC’s services with those of TTC and/or Trademark LLC, fail to identify who published the advertisements and made the challenged statements therein, and fail to state when such acts occurred.

Further, to the extent the claim is based on a theory that consumers who, after performing an internet search using terms such as “trademark attorney, “trademark lawyers,” or “Trademarkia” in an effort to locate an attorney, ended up viewing TTC’s website, such a claim, to be cognizable under the Lanham Act, would require a showing that TTC’s website was “likely to mislead consumers” into believing TTC was affiliated with an attorney. See TrafficSchool.com, 653 F.3d at 827-28 (holding defendant website known as “DMV.org” was designed in manner “likely to mislead consumers into thinking [defendant] was affiliated with a government agency”). Here, however, plaintiffs fail to allege sufficient facts to support a finding that such consumers would be likely to believe they were viewing a website operated by attorneys, particularly, given plaintiffs’ acknowledgement that TTC’s website states TTC “is not a law firm and,” that “its trademark filing service is not a legal service,” and that it “may not perform services performed by an attorney.”

Accordingly, to the extent the Lanham Act claim is based on the use of keywords, the claim is subject to dismissal.

* Lasoff v. Amazon.com, Inc., 2018 WL 3720029 (9th Cir. Aug. 6, 2018):

We first turn to the infringement claim. The district court determined that Mr. Lasoff owns a valid and protectable trademark in the term “Ingrass.” Mr. Lasoff argues that Amazon infringed that trademark by purchasing the term Ingrass as part of its keyword advertising program. But we have held that Amazon is permitted to use a trademarked search term to direct consumers to competing products, as long as the search results are clearly labeled. Mr. Lasoff did not provide any evidence that the search results here were not clearly labeled.

At oral argument, Mr. Lasoff argued that Multi Time Machine is distinguishable because it involved competing watches, while Mr. Lasoff’s product is artificial turf. He argued that consumers are more easily confused in the turf market because the products are more similar than the items for sale in the watch market. We disagree. The question is whether consumers are confused by the search results, and those results display the trademarked product names. The display of names in a set of search results is not made more or less confusing simply because the underlying products might be watches or turf.

Mr. Lasoff argued more generally that the law should be different and that most people he talked with agreed with him that what Amazon did was improper. We are not sure that his assertion is correct, but that is an argument that would need to be addressed to Congress. Mr. Lasoff would like to ask a jury to decide what the law should be, but that is not the function of a jury. A jury determines facts, based on the law as it is instructed by the court. Amazon’s use of “Ingrass” in search engine advertising did not violate Mr. Lasoff’s trademark under the law, and a jury could not change that.

Mr. Lasoff also argued that disputed facts should have precluded summary judgment. He noted that, before the district court, he contested the extent of Amazon’s control over its keyword advertising program. According to Mr. Lasoff, this control was relevant to the question of whether Amazon’s use of the Ingrass trademark was a “use[ ] in commerce” for purposes of the Lanham Act. He also noted that he contested Amazon’s argument that it was not liable because the keyword advertising program was “fully automated.” But the district court decided both of those issues in Mr. Lasoff’s favor. Thus, Mr. Lasoff failed to establish the materiality of any purportedly disputed fact.

Finally, we turn to the false advertising claim. Mr. Lasoff’s false advertising claim fails because it was duplicative of his infringement claim. False advertising and infringement are two distinct bases of liability. False advertising claims are based on “false representations in advertising concerning the qualities of goods or services.” Here, Amazon did not make any statements about the quality of Mr. Lasoff’s products.

Prior blog post.

* Boost Beauty, LLC v. Woo Signatures, LLC, 2018 WL 5099258 (C.D. Cal. Oct. 15, 2018). The following allegation survived a motion to dismiss:

Plaintiff clearly alleges that it owns the trademark “BoostLash®” and that defendants “purchased the Google AdWords ‘Boost’ and ‘Lash,’ and used the words ‘Boost’ and ‘Lash’ together with a space added in between as ‘Boost Lash’ as a search engine advertisement to drive traffic to their website, and sold a same, but competing, product.” In so doing, plaintiff claims that defendants “used, and are using in commerce the confusingly similar ‘Boost Lash’ mark in connection with the promotion, marketing, advertising of eye-lash enhancement products in a manner which is likely to cause confusion.” Plaintiff claims that defendants are confusing consumers into thinking that defendants’ product is associated with plaintiff’s.

* Engineered Tax Services, Inc. v. Scarpello Consulting, Inc., 2018 WL 3899223 (S.D. Fla. July 31, 2018). Competitive keyword ad lawsuit fails when the court concludes that “Engineered Tax Services” is descriptive and the putatitve owner didn’t show sufficient secondary meaning.

The post 2H 2018 Quick Links, Part 3 (Keyword Advertising) appeared first on Technology & Marketing Law Blog.

2H 2018 Quick Links, Part 2 (Trademarks)

*  Chanel, Inc. v. Wgaca,  2018 U.S. Dist. LEXIS 158077 (SDNY Sept. 14, 2018):

Chanel’s amended complaint plausibly alleges that WGACA’s use of the hashtag #WGACACHANEL infringes Chanel’s trademarks. It alleges that WGACA conjoined its acronym with the Chanel trademark to create the impression that WGACA is affiliated with Chanel or is an authorized Chanel retailer…. WGACA’s Chanelbranded items would be readily identifiable as Chanel without the #WGACACHANEL hashtag and the multiple uses of Chanel’s name and trademark in the hashtags….; the hashtag #WCAGACHANEL and WGACA’s guarantees of authentication of themselves may be taken as suggesting sponsorship or endorsement by Chanel.

*  Natural Thoughts, Inc. v. Performance Touch, LLC, 2018 WL 3618315 (S.D. Cal. July 30, 2018):

Plaintiff’s Complaint alleges Defendants use their website “to market and sell their professional massage and spa products online to consumers and businesses.” As detailed in the factual background above, Plaintiff further alleges that, prior to a computer user’s complete entry of certain words/ terms in Defendants’ website’s search bar, Defendants cause the BIOTONE Marks to appear in an autopopulated dropdown list for the user to select and search on Defendants’ website. When a user selects one of the auto-populated BIOTONE Marks options, such as “biotone dual purpose,” “the link instead directs the user to a page listing Bon Vital products” and displaying the statement “SEARCH RESULTS FOR BIOTONE DUAL PURPOSE.” The Court finds these allegations sufficient to plead commercial use.

* Coachella Music Festival, LLC v. Simms, 2017 WL 6888499 (C.D. Cal. Dec. 13, 2017)

When a term appears in the metatags of a webpage, the webpage is more likely to appear near the top of a list of search results….using infringing terms in metatags can still result in “initial interest confusion.” A user initially interested in the trademark owner’s product who discovers the infringing product in a list of search results will realize the two products are not affiliated, but may be intrigued and simply decide to use the infringing product instead. Accordingly, the owner of the infringing mark may still improperly benefit from the trademark owner’s goodwill and reputation.

Here, if Simms uses the term “Coachella” in the metatags of his website, it may result in initial interest confusion. The user originally interested in Coachella who conducts a search and discovers the Filmchella website will likely realize Filmchella and Coachella are not the same event. But the user may nonetheless be intrigued by Filmchella and decide to attend the event anyway. In that sense, Simms would improperly benefit from Coachella’s goodwill and reputation.

Does anyone in this case know anything about metatags???

* Worldwide Media Inc. v. Twitter, Inc., 2018 WL 5304852 (N.D. Cal. Oct. 24, 2018). Twitter isn’t liable for trademark infringement for a hacked account that it doesn’t suspend quickly enough.

* Evoqua Water Technologies LLC v. M.W. Watermark LLC, 2018 WL 5784073 (W.D. Mich. Nov. 5, 2018): “Evoqua contends that the orders for all six DryMate dryers are sufficient to demonstrate infringement under a theory of “initial-interest confusion,” citing Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 549 (6th Cir. 2005). Evoqua never presented any evidence of initial-interest confusion, however. Moreover, in Gibson, the Sixth Circuit made clear that the core question in initial-interest cases is the same as in other contexts, i.e., “whether the consumer might be misled about the source of the relevant product or service.””

* Bains v. Taylor, 2018 WL 6787633 (Wash. Ct. App. Dec. 24, 2018). The defendant was covered by the following injunction:

Mark Taylor, or anyone working on behalf of Defendant Mark Taylor, shall not activate, update or otherwise post, any information about Plaintiff Raj Bains on a website that deceives the public into thinking that it is a website owned by, operated by, or endorsed by Plaintiff Raj Bains or any business he operates, including the Bains Law Office. This includes, but is not limited to, the websites bainslawoffice.com, bainslawoffices.com, bainslawfirm.com, and any derivations thereof.

The court says:

While Taylor did activate, update, and post information on his website “attorneyrajbainssuspension.com” these actions did not violate the plain language of the agreed final order for two reasons. First, while the order prohibits Taylor from posting on a list of websites including “bainslawoffice.com,” “bainslawoffices.com” and “bainslawfirm.com,” the website “attorneyrajbainssuspension.com” does not fall within this list and is not a reasonable derivation of that list. Thus, the agreed final order does not prohibit Taylor from posting on “attorneyrajbainssuspension.com.”
Moreover, even if the agreed final order did prohibit Taylor from posting information on attorneyrajbainssuspension.com, the order only prohibits posting if the posts “deceived the public into thinking it is a website” owned, operated, or endorsed by Bain. The homepage for Taylor’s website attorneyrajbainssuspension.com contains an express disclaimer stating: “This website is not authorized, endorsed, licensed, approved, recommended, published, maintained, edited or managed by Raj (Kulraj Singh) Bains or any of his affiliates, agents, or representatives.” There is no evidence that the public would be deceived into thinking the website was in any way owned, operated, or endorsed by Bains

* Sen v. Amazon.com, Inc., 2018 WL 4680018 (S.D. Cal. Sept. 28, 2018): ” “Nanner’s” use of Plaintiff’s “Baiden” trademark in her review, and by extension Defendant’s publishing of such a review, was a permissible nominative fair use.”

Also, “Plaintiff’s allegation concern a review posted by an Amazon user, “Nanner,” who acted as an independent content provider when she posted her review of Plaintiff’s “Baiden Mitten” product. Plaintiff wishes to hold Defendant liable for failing to remove a review–published by an independent third-party user–which she alleges has infringed her trademark. This is the precisely the type of claim Congress sought to shield “interactive computer services” from with the passage of the CDA.”

For more on this case, see my post from 2013.

* Carter v. Oath Holdings Inc., 2018 WL 5819458 (N.D. Cal. Nov. 5, 2018): “Plaintiff pled conclusory allegations regarding Defendant’s “creation” of image hyperlinks, allegations that lack any factual support and are contradicted by judicially noticeable facts regarding how search engines work. Plaintiff also again fails to allege any facts regarding likelihood of confusion.”

*  Youngevity International v. Smith, 2018 WL 6305763 (S.D. Cal. Nov. 30, 2018):

Plaintiffs argue that Defendants’ use of Youngevity’s trademark results in initial interest confusion. The Ninth Circuit has recognized that initial interest confusion can give rise to trademark infringement. See Brookfield Commc’ns, Inc., 174 F.3d at 1062–63. Plaintiffs contend that by using the Youngevity mark, Defendants have lured customers and distributors to meetings held at Defendants’ offices and to visit their websites on which they promote Wakaya’s products under false pretenses that they are authorized by Youngevity. Defendants raise two arguments in response. First, they point to the fact that after March 2016, Defendants used a disclaimer on their website stating that Defendant TNT was not an authorized Youngevity representative. However, Plaintiffs have submitted sufficient evidence demonstrating the extensive use of the mark which creates at least a genuine issue as to whether the disclaimer is effective.

Second, Defendants argue that Plaintiffs have not met their burden because they have failed to demonstrate that any consumers that intended on purchasing Youngevity products were diverted to purchasing Wakaya products. The lack of such evidence does not defeat the claim. The Ninth Circuit has recognized that “the use of another’s trademark in a matter calculated ‘to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion, may be still an infringement.’ ” Brookfield Commc’ns, Inc., 174 F.3d at 1062 (quoting Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1405 (9th Cir. 1997)). Thus, in light of the evidence demonstrating extensive use of the trademark on the one hand, and evidence of the disclaimer on the other, the Court finds that there is a genuine issue of material fact as to whether Defendants’ use of the trademark suggests sponsorship or endorsement by Youngevity. Given the highly factual nature of this claim, the Court finds that this is an issue more appropriately reserved for a jury.

So hard to believe a court is still citing Brookfield’s definition of initial interest confusion 20 years later despite the many, many Ninth Circuit clarifications since then.

* 45 vanity TLDs have not been renewed by their registry operators.

The post 2H 2018 Quick Links, Part 2 (Trademarks) appeared first on Technology & Marketing Law Blog.

2H 2018 Quick Links, Part 1 (Copyright)

* Capitol Records LLC v. ReDigi, Inc., No. 16‐2321 (2d Cir. Dec. 12, 2018): “ReDigi version 1.0’s process for enabling the resale of digital files thus inevitably involves the creation of new phonorecords by  reproduction, even if the standalone digital file is deemed to be a 2 phonorecord.  As for the argument that, as ReDigi copies a packet of data, it deletes the equivalent packet in the user’s device so that the amount of data extant in the transfer process remains constant, this does not rebut or nullify the fact that the eventual receipt and storage of that file in ReDigi’s server, as well as in the new purchaser’s device (at his option), does involve the making of new phonorecords.”

Interesting footnote: “We recognize that the use of computers with digital files of protected matter will often result in the creation of innocuous copies which we would be loath to consider infringements because doing so would effectively bar society from using invaluable computer technology in relation to protected works. We believe this precedent will not have that undesirable effect for reasons discussed below in the section on fair use. What we consider here is that the making of unauthorized reproductions in pursuit of an objective to distribute protected matter in competition with the rights holder. The production of innocuous, unauthorized reproductions through the unavoidable function of a computer, when done for purposes that do not involve competing with the rights holder in its exclusive market, is outside the scope of this dispute.”

Another interesting footnote: “To the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use.”

* UMG Recordings v. Grande Communications Network, 2018 WL 6624207 (W.D. Tex. Dec. 18, 2018):

Notwithstanding the terms of the AUP in place until October 2016, the reality was, in Grande’s own words, it would not terminate a user for infringement “regardless of the source of any notice,” “regardless of the content of any notice,” and “regardless of the volume of notices … for a given customer.”  This amounts to absolutely no implementation of the policy Grande had allegedly adopted. And, as in BMG, the policy that was actually in effect for this time was that Grande was determined never to terminate a subscriber, no matter what information Grande received about that customer allegedly infringing a copyright. It is hard to imagine a case in which it is more clear that the DMCA safe harbor is not available.

Prior blog post.

* Gray v. Perry, 2:15-cv-05642-CAS-JC (C.D. Cal. Aug. 13, 2018)

The Court acknowledges that the mere existence of copyrighted materials on YouTube and Myspace would not justify an inference of access…. But the Court is persuaded that plaintiffs have shown more than just mere posting of “Joyful Noise” on the internet. Due to the millions of views and plays of “Joyful Noise” on YouTube and Myspace, both readily accessible websites, and the success and popularity of “Joyful Noise” in the Christian hip-hop/rap industry, a reasonable jury could conclude that there is more than a “bare possibility” that defendants—who are experienced professional songwriters—had the opportunity to hear “Joyful Noise…. they have demonstrated a triable issue of fact as to access because “Joyful Noise” achieved critical success, including a Grammy nomination, and was readily available and viewed millions of times on YouTube and Myspace. Defendants’ concerns about the meaningfulness of the YouTube and Myspace view counts, the distinctiveness of the Christian music market, and the lack of commercial activity are questions of fact to be resolved by the jury

* ABS Entertainment Inc v CBS Corporation, No. 16-55917 (9th Cir. 2018):

a remastered sound recording is not eligible for independent copyright protection as a derivative work unless its essential character and identity reflect a level of independent sound recording authorship that makes it a variation distinguishable from the underlying work…. If an allegedly derivative sound recording does not add or remove any sounds from the underlying sound recording, does not change the sequence of the sounds, and does not remix or otherwise alter the sounds in sequence or character, the recording is likely to be nothing more than a copy of the underlying sound recording and is presumptively devoid of the original sound recording authorship required for copyright protection. Such a work lacks originality. This presumption may, of course, be overcome, by showing that the work contains independent creative content, recognizable contributions of sound recording authorship or variations in defining aspects that give a derivative sound recording a new and different essential character and identity….

Here, there is no dispute that all of the sounds contained in the remastered sound recordings—the vocals, instruments, inflection, dynamics, rhythms, and sequences—were initially fixed in a studio before 1972. There is also no dispute that the remastering engineers did not add or remove any sounds and did not edit or resequence the fixed performances. For these reasons, the remasters presumptively lacked the originality necessary to support copyright protection as derivative works.

* Techdirt: The Wonky Donkey: How Infringement Helped Create A Best Seller… Which Would Be Impossible Under Article 13

* Techdirt: YouTube’s $100 Million Upload Filter Failures Demonstrate What A Disaster Article 13 Will Be For The Internet

* Philpot v. LM Communications, 5:17-cv-00173-CHB-EBA  (ED Ky. July 10, 2018). Republishing a Creative Common-licensed photo from Wikipedia, without providing the required attribution, constituted copyright infringement.

* Stern v. Lavender,  2018 WL 3520497 (SDNY July 20, 2018). The court dismisses a 512(f) counterclaim:

The evidence here uniformly supports plaintiffs’ defense of good faith. And critically here, the Lavenders have not supplied a factual basis on which to find the opposite: that plaintiffs, in pursuing takedown notices, made a knowing material misrepresentation. Plaintiffs’ claim of copyright infringement in connection with the Lavenders’ offer to sell Last Sitting photographs and Modified Prints was clearly colorable. It tracks the infringement claims that will proceed to trial in this lawsuit. And while the facts as to whether the late Stern had given away certain items and authorized certain posthumous actions are disputed, the Trust had sound reason to conclude that he had not done so and that the Lavenders do not own the objects they were offering for sale. If so, the Lavenders’ display of photographs of those objects incident to the offer of them of sale would necessarily violate plaintiffs’ copyright (as those displays would no longer be fair use because they would not be in service of lawful sales). For the Trust to assert this position did not evince bad faith or entail the making of a material misrepresentation. Further, as to the “reason code” that plaintiffs’ counsel came to use, counsel’s written exchange with eBay reflects that counsel accurately recited plaintiffs’ theory of infringement to eBay, and then relied on eBay’s instructions as to the code to use.

* Johnson v. New Destiny Christian Center Church (M.D. Fla. July 31, 2018). Court awards $12.5k for malicious prosecution of copyright case based on defendant’s “lack of sleep, diminished enjoyment in various hobbies, and overall worry about the litigation & its consequences on her life”

* Mometrix Media, LLC v. LCR Publishing, LLC, 2018 WL 3625765 (Tex. Ct. App. July 31, 2018), replaced by 2018 WL 6072357 (Nov. 21, 2018)

Because Mometrix raised the issue of preemption under section 512(f) for the first time in its reply brief in this Court, the record is insufficiently developed for us to make this determination because it lacks evidence relevant to whether CreateSpace or Amazon stores information at the direction of users. See Distribuidora (observing that complaint did not state enough facts for court to determine whether iTunes stored music at direction of users); Rusk State Hosp., 392 S.W.3d at 96 (noting that plaintiff may not have had opportunity to amend pleadings or develop record when jurisdiction is not raised in trial court). There is no evidence conclusively establishing the relationship between CreateSpace and Amazon or whether CreateSpace is Amazon’s agent for purposes of making material available on Amazon’s website, see Mavrix Photographs, 873 F.3d at 1057; no evidence of whether or to what extent either CreateSpace or Amazon plays a role in making material accessible on Amazon’s site, see id. at 1056; and no evidence concerning whether and to what extent CreateSpace or Amazon processes the content or otherwise exercises discretion in organizing, making available for purchase, or promoting LCR’s publications, see Viacom, 676 F.3d at 40; Distribuidora de Discos Karen, 2015 U.S. Dist. LEXIS 42636, at *20; cf. Rock River, 2011 U.S. Dist. LEXIS 46023, at **50 (noting that it was “undisputed that Apple, and not its users, decides what is available for purchase on iTunes” and concluding that complaint at issue was “not a take-down letter as described in section 512(c) because it [did] not address claimed infringement ‘by reason of the storage at the direction of a user’ ”(quoting 17 U.S.C. 512(c)(1))). Consequently, the record does not contain enough evidence for this Court to determine whether section 512(c) applies to this case. It follows that the record is insufficiently developed for this Court to determine whether LCR’s claim for tortious interference is equivalent to a claim under section 512(f) and whether exclusive federal jurisdiction precludes jurisdiction in the trial court and in this Court.

* Otto v. Hearst, Case 1:17-cv-04712-GHW-JLC  (SDNY Dec. 10, 2018): “Stealing a copyrighted photograph to illustrate a news article, without adding new understanding or meaning to the work, does not transform its purpose—regardless of whether that photograph was created for commercial or personal use.”

* Variety: How Hollywood Is Racing to Catch Up With Netflix

The post 2H 2018 Quick Links, Part 1 (Copyright) appeared first on Technology & Marketing Law Blog.