by Lee Gesmer | Sep 9, 2005 | Miscellaneous
Amazon.com “One Click” Contributions to Victims of Katrina can be made Here.
The ABA has organized a Hurricane Katrina Disaster Relief page here. This web page states: “The ABA is gathering information from individuals who are willing to provide legal assistance to those in need from the events in the Northern Gulf Coast.”
In considering whether to contribute services consider that a recent survey of Americans shows that lawyers have a lower “prestige” ranking than Members of Congress, and are tied with entertainers and actors. If you think this survey may be flawed, consider the fact that real estate agents and stockbrokers ranked last as proof of concept. It might be best for your mental health not to give this survey too much thought if you plan to speak to a jury in the near future.
by Lee Gesmer | Sep 9, 2005 | DMCA/CDA
Communications Decency Act. Traffic Power.Com has sued Aaron Wall, owner of the Search Engine Optimization Blog, alleging defamation and misappropriation of trade secrets.
Assuming that the offending material was not written by Wall himself (but rather by one of his posters), the defamation claim against him is likely to be barred by the federal Communications Decency Act (CDA), which provides in part:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
If Wall is not the publisher or speaker of the offending words, he cannot be liable for their publication on his blog.
Although the term “interactive computer service” (ISC) is poorly defined, the courts have held that it includes not only traditional ISPs, but also web site hosts such as AOL. It’s hard to see why the definition shouldn’t extend to blog site owners.
Assuming that Wall is found to be an ISC, he’s halfway home. A number of courts have held that the law protects ISCs from defamation claims.
Immunity for trade secret misappropriation is more problematic. The CDA provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” However, the law fails to define “intellectual property.” While the three traditional branches of IP are unquestionably covered by this provision (patents, copyrights and trademarks, all of which are federal IP rights), it’s not clear whether trade secrets, which are a construct of state law and which have elements that lend themselves to both intellectual property analysis and tort analysis, will be treated as “intellectual property.”
Thus, this case has the potential to answer two important questions: are bloggers covered by the CDA, and does liability for trade secret claims fall within the CDA? Stay tuned….
by Lee Gesmer | Aug 19, 2005 | Trademark
Trademarks. Google sells other companies’ trademarks as “keywords” on its Internet search engine. Whenever someone types in one of these keywords, such as GEICO, not only will Google’s search results show links to GEICO’s web site, but Google also will show advertising for other insurance companies under a banner called “Sponsored Links.” For example, when writing this blog, we searched “GEICO” on Google’s site and were shown paid links to two of GEICO’s competitors, USInsuranceonline.com and InsureMe.com.
Understandably, GEICO protested this practice of using its trademarks to direct consumers to its competitors. Given that 80% of Google’s revenues derive from this “AdWord” program (in turn causing Google to become a Wall Street darling, up three-fold in a year), Google refused to cease and desist, at which point GEICO sued for trademark infringement and unfair competition.
After a bench trial (translation: no jury) in federal court in the Eastern District of Virginia in December 2004, the Judge ruled “from the bench” (translation: she delivered her decision orally in court) that GEICO had failed to establish that the use of its trademarks only to direct Google searchers to competitors created consumer confusion (the talisman of a trademark violation). However, she ruled that Google had violated the law when a competitor used GEICO’s name in the heading or the text of the ads. Judges can be very slow, and the Judge’s written opinion was released only last week, over eight months after the trial. For all practical purposes, however, the written decision adds little to what the Judge said in December. In time-honored fashion, both GEICO and Google declared her ruling a victory.
Unfortunately, while the trademark community (yes, there is such a thing) was hoping for clarification as to the reasoning behind the judge’s oral ruling, it may still be mostly in the dark after reading the opinion.
While the opinion excoriates the design and methodology underlying the survey evidence GEICO presented at trial to show confusion (survey evidence is standard stuff in trademark cases – its how a party shows that the public has been “confused,” or not) the Judge relies on the same flawed survey in finding a likelihood of confusion between GEICO’s marks and the Google Sponsored Links in which GEICO’s marks appear in the headings or text. What’s disappointing is the decision’s failure to provide a thoughtful legal analysis of the issue that can be a guide to other online advertisers.
The parties have 30 days to settle this dispute before the trial resumes to determine whether Google or its advertisers are liable for the infringement and the damages, if any, to which GEICO may be entitled. Google faces a big gamble in continuing with the trial – if the Court finds Google liable and awards damages to GEICO, the litigation floodgates will open as other trademark owners sue Google for infringement of their marks. This volume of litigation would put Google’s entire business plan at risk. Common sense suggests that the parties will settle this dispute, with each (need I say it?) claiming victory.
- Read the opinion here.
- An extensive legal analysis of the decision appears on Professor Eric Goldman’s blog, here.
by Lee Gesmer | Jul 21, 2005 | Procedure
Procedure. There are fads in the law, just like everywhere else. Apologies to Michael Lewis, but there can be no doubt that, in the odd and insular world inhabited by litigators, electronic discovery is the new, new thing, and almost everyone is scrambling to catch up. It is what Y2K was from 1997 to January 1, 2000, but unlike Y2K, it’s not going away anytime soon.
It easy to tell what’s hot in litigation: just watch publications like the National Law Journal and the American Lawyer and look for frequent articles on the “hot topics.” Google “electronic discovery” and you get 354,000 hits.
I’ll be writing more about electronic evidence and discovery, but for now it’s worth noting that if you want to learn about this subject one resource stands tall: Kroll Ontrack.
Kroll makes an effort to track and digest every case involving electronic discovery and computer forensics (look here to see this lengthy document, which can be sorted by topic or jurisdiction). Others, such as Lexis, are not far behind.
You can sign up for Kroll’s newsletter here.
And, if that’s not enough, you can order the monograph authored by two Kroll-employed attorneys, Electronic Discovery: What Every Lawyer Should Know. This 250 page book should make for a pleasant weekend of reading if you feel you really need to get up to speed on this topic.
I should note that the Foreword to this monograph was written by Ken Withers, a friend, attorney, former Bostonian, and for many years now Senior Judicial Education Attorney at the Federal Judicial Center in Washington, D.C.
by Lee Gesmer | Jul 21, 2005 | Copyright
Copyright. Sexy: Internet file sharing systems, Grokster, sampling, The Wind Done Gone, fair use, the legal standard for non literal infringement of computer source code.
Not sexy: copyright protection for parts numbering systems.
Yet, believe it or not, from time to time clients do ask whether parts numbering systems are protected.
Lewis Clayton at Paul Weiss has written an article (published in the July 8, 2005 issue of the National Law Journal), discussing several recent cases dealing with parts-numbering systems and the “merger doctrine” under U.S. copyright law.
