R.I.P.

The Rev. Jerry Falwell died today. I met him once, in 1986 or so, when he came to my law school to give a talk. While I disagreed (and still do) with most of what he stood for politically, I enjoyed talking with him then and have always had a great deal of respect for him.

A few years ago I served on a dispute resolution panel that awarded the domain name fallwell.com to Dr. Falwell. I dissented from that decision, and later felt vindicated by the Fourth Circuit's subsequent ruling [PDF].

More CDA Immunity Cases

A couple of cases involving service provider immunity under the CDA (47 U.S.C. § 230(c)) came down within the past week. In Chicago Lawyers' Committee v. Craigslist, Inc. (N.D. Ill. Nov. 14, 2006), the court held that the CDA bars Craigslist from being held liable for publishing discriminatory housing ads in violation of the Fair Housing Act, although the court in dicta rejected the "essentially uniform body of case law" including Zeran v. America Online (4th Cir. 1997) that grants broad immunity to websites under § 230(c). In Barrett v. Rosenthal (Cal. Nov. 20, 2006), the court issued a much broader decision affirming broad immunity for service providers.

For more on these decisions, see commentary by Eric Goldman (also here), Susan Crawford (also here), Kurt Opsahl (also here), Eugene Volokh, Evan Brown, and Robert Ambrogi.

E360 Insight v. The Spamhaus Project

I'm following the E360-Spamhaus dispute with great interest, and have been discussing it in my Cyberspace Law seminar at The John Marshall Law School. The case presents some fascinating issues in the areas of spam law, Internet governance, civil procedure, and international law -- and it happens to have a handful of connections with John Marshall.

In the district court, the case was heard by Judge Charles P. Kocoras, who has served on the federal bench for over 25 years and has taught at John Marshall as an adjunct professor for even longer than that. Matthew Neumeier of Jenner & Block, an adjunct professor in John Marshall's Information Technology and Privacy Law program, is representing Spamhaus in its appeal to the Seventh Circuit. Matthew Prince's comments about the case have been widely quoted in the media; he is CEO of Unspam Technologies and also is an adjunct professor in John Marshall's IT law program. And a similar fact scenario (i.e., spam-related accusations as the basis for suspension of a domain name) was used as the problem for John Marshall's annual moot court competition way back in 1996. The best briefs and the bench memorandum prepared for that competition were subsequently published in John Marshall's Journal of Computer & Information Law.

Watch out for the googly eyes!

Google apparently has been sending out cease-and-desist letters complaining about the word "google" used as a generic term for searching the Internet (E-Commerce News; ZDNet News). I don't think we really need "google" (or "googling") as a synonym for "search the web," but I'm amused that the word has taken on so quickly.

On the other hand, "tivo" as a generic term for a DVR (and as a verb meaning "to record on a DVR") is a very helpful addition to the English language. I suspect that TiVo Inc.'s anticompetitive behavior (see my previous blog entry) has probably encouraged users to genericize its mark.

Don't mess with my tivo (generically speaking)

TiVo, which manufactures digital video recorders (DVRs), is involved in a patent dispute with EchoStar, the owner of Dish Network. TiVo alleges that the generic DVRs offered by Dish to its subscribers infringe upon various patents held by TiVo. A federal court yesterday ordered EchoStar to stop selling the allegedly infringing DVRs. The court also gave EchoStar 30 days to disable both the recording and playback capabilities of most of the Dish DVRs currently in subscribers' homes (about 3 million). The district court refused to stay its order, although the Federal Circuit today stepped in to stay the injunction, at least for the time being.

Details are at News.com and Zatz Not Funny; Patently-O has copies of the district court's order and opinion.

Ordering EchoStar to stop offering DVRs (and worse, to break the ones already in use) is simply going to remove Dish as a viable competitor to DirecTV, Comcast, etc., and drive up programming costs for all consumers. We need more competition in this market, not less, and reducing competition in the programming market is ultimately going to hurt TiVo as well. Instead, why not simply require EchoStar to pass along to TiVo the monthly DVR fees that it collects?

Captain Copyright is a stinkybutt poopyhead

In the spirit of my now-static Don't Link website, here is an unauthorized link to a Canadian website that apparently doesn't like being linked to: "Captain Copyright" is a site operated by Access Copyright, the Canadian Copyright Licensing Agency. The site's "Intellectual Property Notice and Disclaimer" prohibits other sites from linking to Captain Copyright if a site's contents, in their opinion, are "damaging or cause harm to the reputation" of Access Copyright. (A similar prohibition appears on the main Access Copyright website.)

Based upon these ridiculous attempts at restricting inbound links (not to mention other outrageous content on the site, as Michael Geist and Laura Murray have noted), I think that Access Copyright is a bunch of doodoo-heads, and Captain Copyright is a stinkybutt poopyhead.

In case I haven't yet annoyed them enough, here's another helpful website with a bit more information on "Captain Copyright and his underage sidekick Trademark Girl."

(A hat tip goes to Wallace J. McLean for alerting me to the Captain's folly.)

Parody for Dummies

I recently ran across this item on Amazon.com: a book entitled Ventriloquism for Dummies (Black Moss Press, 2002). It doesn't appear to be approved or licensed by Wiley, but it does look a lot like Wiley's Dummies books.

(A few bloggers have previously made note of this book, including The Honest Hypocrite and J-Walk. Other bloggers have suggested the title, apparently without realizing it already exists -- see Jonathan's Wacky World and HappySinner's Greenehouse.)

Blogging for dummies

OK, I admit I've been delinquent in posting to this blog; it's just not particularly high on my priority list at the moment. But I couldn't resist posting about this item (via Marty Schwimmer's Trademark Blog):

Jason McCabe Calacanis writes in his blog today that he has received a couple of nastygrams from Wiley Publishing after a member of his blogging network used "for dummies" in the title of a blog post ("Super Bowl guide for dummies"). Seems that Wiley wants some kind of trademark attribution statement every time someone uses the phrase "for dummies," even in a blog item headline.

They won't find it here.

Blogs as lawyer advertising

The Kentucky Attorneys' Advertising Commission apparently has taken the position that every post on a lawyer's blog constitutes an advertisement, requiring the lawyer to submit a copy of the post to the Commission along with a $50 filing fee. See Ben Cowgill's Legal Ethics Blog, Evan Schaeffer's Legal Underground, Dennis Kennedy in Between Lawyers, and David Giacalone in f/k/a. Eugene Volokh says it's "surely unconstitutional."

Wining across state lines

The Supreme Court today handed down Granholm v. Heald, striking down (by a 5-4 majority) state laws that ban direct sales to consumers by out-of-state wineries while permitting direct sales by in-state wineries, on the ground that such laws violate the dormant Commerce Clause.