May 2004 Archives

An April 22, 2004. Oversight Hearing Before the Subcommittee on Courts, the Internet, and Intellectual Property, of the Committee on the Judiciary discussed the Federal Trademark Dilution Act, 15 U.S.C. §1125(c): Committee Print to Amend the Federal Trademark Dilution Act

(via beSpacific)

Lots of legit download sites

BBC News: Legal music sites break 100 mark: "In May 2003, there were 20 legal online music sites which offered an average of 200,000 songs. The average site now offers in excess of 500,000 tracks to music fans."

Reuters: Tightening the Reins on Gmail: "California's state Senate approved the first-of-its-kind bill by a vote of 24-8 to restrict how Mountain View, California-based Google's upcoming free "Gmail" service could work once it is available in wide distribution."

SB 1822 (amended):

This bill would allow a provider of
e-mail or instant messaging services to review, examine, or evaluate
the content of a customer's e-mail or instant messages only if the
review is for the automated and contemporaneous display of an
advertisement to the user and other specified conditions are
satisfied. The bill would provide that its provisions do not prevent
a provider of e-mail or instant messaging services from evaluating
the contents of e-mail or instant messages for specified purposes,
including the removal of malicious programs. The bill would specify
that its provisions do not imply consent to the examination of e-mail
or instant messages if consent is otherwise required

Previously: Gmail privacy kerfuffle

Ante Up

Mark A. Lemley: Ex Ante Versus Ex Post Justifications for Intellectual Property

In this paper, I explore the sub rosa development of this ex post theory of IP. I argue that the basis for continued control is the assumption that the value of IP rights will be dissipated if they are used too much. This argument is fundamentally at odds with the public goods nature of information. It stems from a particular sort of myopia about private ordering, in which actions by individual private firms are presumed to be ideal and the traditional role of the market in disciplining errant firms is ignored

Lose Yourself

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AP: Eminem suit against Apple, MTV to proceed

On Monday, U.S. District Judge Anna Diggs Taylor ruled that the suit brought by Eminem's publishing company can proceed against several companies, including MTV parent company Viacom and advertising agency TBWA/Chiat/Day.

Taylor threw out two state law-based claims of unfair competition and unjust enrichment.

Previously: Eminem Sues Apple

Counterfeit Clubs Raids in Shanghai shopping area turn up millions in counterfeit clubs

Chinese anti-counterfeiting enforcement authorities on May 21 conducted a series of simultaneous raids of retail shops and distributors of counterfeit golf clubs and equipment in Shanghai....

The government raids took place after six American golf equipment manufacturers filed complaints with Chinese anti-counterfeiting enforcement authorities.

(via The Trademark Blog)

Adware special report

Over the next week, in place of regular blogging, while my brain eases out of vacation mode back into info-aggregating mode, I will be posting a series of posts about adware, focusing on legislation and litigation, abridged and adapted from a seminar paper.

Prelude: Pop-ups trigger more lawsuits (5/19)
Part 1: Defining Adware (5/20)
Part 2: Litigation summary
Part 3: Regulatory goals
Part 4: Legislation

Defining adware

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Adware is software, installed with some minimal level of user consent, which monitors Internet usage in order to display ads from third parties. These may be distinguished from more malicious programs, "spyware," which are installed exclusively without user consent, either by drive-by downloads or browser hijacking. However, some third-party developers and distributors may bundle adware in drive-by download packages.

This series will focus on the two companies which are the most prominent in developing adware: Claria Corp. (“Claria”) and (“WhenU”). Claria, formerly known as The Gator Corp., distributes an adware program called GAIN and sells advertising on the GAIN Network. WhenU’s adware program is SaveNow. WhenU and Claria have been the most successful at attracting litigation from web site publishers and trademark owners.1

Claria and WhenU distribute adware by offering Internet users a quid pro quo. In exchange for occasionally viewing pop-up ads, consumers get free software that would otherwise cost about $30. Claria offers utilities which allow users to securely store passwords, search the web from a desktop toolbar, receive weather forecasts, manage a calendar and sync a personal computer clock with an atomic clock. WhenU offers a similar array of utilities. In addition, Claria and WhenU will pay third-party software companies for distributing GAIN or SaveNow bundled with other free software. Many internet users find adware installed on their systems as a result of installing peer-to-peer programs. Claria relies heavily on its bundling agreement with Shaman Networks’ KaZaA Media Desktop in order to attract new users.

Users can install GAIN and SaveNow much more easily than they can remove these programs. When installed as a component as other programs, neither GAIN nor SaveNow appear in the Windows “Add/Remove Program” feature. Instead, the ad server is installed as a component of its host application. In order to be able to remove these programs users must be aware of which application is sponsored by the adware. The adware programs are intentionally difficult to uninstall. In order to fully remove its software from a computer, Claria requires affirmative consent, so as to protect users from “unintentional, unauthorized or automated uninstallation of your GAIN Publishing software.”

More insecure e-voting Count Crisis?

A scathing internal review of the iVotronic touch-screen voting machines used in Miami-Dade and Broward, Fla., counties, written by a Miami-Dade County elections official, has raised fresh doubts about how accurately the electronic machines count the vote.

The New Surveillance

Snoia Katyal (Fordham Law School): The New Surveillance

A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously.

Privacy theories

In the Yale Law Journal, James Q. Whitman contemplates the two dominant Western theories for privacy: dignity and liberty

Pop-ups trigger more lawsuits

L.L. Bean filed suits against companies who advertise on Claria, including Nordstrom, JC Penney, Atkins Nutritionals and Gevalia Kaffee, a division of Kraft Foods. ClickZ: L.L. Bean Sues Other Marketers for Claria Pop-Ups

In the complaints, L.L. Bean accuses the defendants of infringing on its trademark by confusing consumers, engaging in unfair competition, using false advertising, diluting its trademark, and enriching themselves unjustly. The company also claims its Web site was trespassed upon and effectively altered, because of the pop-up ads. L.L. Bean cites federal, state and common law.
L.L. Bean is also a party to a pending consolidated suit against Claria.

Like Claria, WhenU, another adware vendor, has been targeted in lawsuits by website publishers. Last year, three courts decided cases against WhenU. Two decided in favor of WhenU (U-Haul v. WhenU and Wells Fargo v. WhenU). One granted a preliminary injunction against WhenU and advertiser VisionDirect on trademark grounds.

The two rulings which favored WhenU were suits only against WhenU. Neither court found that the WhenU software did not constitute a use in commerce of trademarks, so WhenU could not be infringing. Unlike search engine keywords, WhenU does not sell ads individual websites or search terms. Instead, advertisers can only buy placement over a wide range of websites and search keywords within a particular category, with no guarantee that ads will pop-up on any particular website. The U-Haul court focuses on the fact that WhenU does not sell placement on particular URLs. Rather than selling placement or keying ads to particular URLs, WhenU includes a URL in its directory for a “pure machine-linking function.”

1-800 Contacts sued both WhenU and advertiser VisionDirect. 1-800 Contacts succeeded because the actions of VisionDirect (buying advertising on WhenU and registering the domain name show that the company intended to Although WhenU's SaveNow program is neither engineered nor intended to be used as a way to sell ads keyed to a particular trademark, VisionDirect nonetheless bought ads from WhenU with at least the hope that it might be able to use such ads to capitalize on the 1-800 Contacts reputation. Beyond just buying ads on WhenU, VisionDirect, demonstrated clear bad faith intent to use the 1-800 Contracts mark to divert business to its own website by registering the domain name

Will advertisers be subject to lawsuits merely for purchasing contextual advertising on services like Claria's GAIN or WhenU's SaveNow? Absent an obvious showing of bad faith, is contextual advertising an actual cause of consumer confusion, or merely consumer-serving comparative advertising? Should web site publishers use litigation to prevent competitors from advertising "over" their sites to adware users?

This week is adware week here at IPTAblog, where we'll be looking at the adware problem. In other words, I'll be repurposing parts of a paper for the blog.

Future of Music

Get Your CAN-SPAM On

GigaLaw: CAN-SPAM Library. Legislative history, litigation, FTC action, research studies and analytical papers all about everyone's favorite Federal anti-spam law.

Surf the web, tax-free

AP: Senate Keeps Web Access Tax-Free 

The Senate voted overwhelmingly to restore a ban on taxing Internet connections for four years, stopping short of the permanent ban approved by the House.

The two chambers will try to work out their differences over an issue that pits a U.S. telecommunications industry trying to expand a range of services against state and local governments worried they could lose billions of dollars in tax revenue.