Technology and Digital Media Lawyer & Attorney : Davis Wright Tremaine Law Firm : Ecommerce, Outsourcing, Web 2.0

From my partner Stuart Dunwoody, an update on Rights of Publicity in Washington State.

Here is a summary of some recent amendments to the Washington Personality Rights Act, RCW 63.60.010 et seq., ("WPRA") the Washington statute governing what generally are known as rights of publicity. The amendments apparently seek to ensure that the Act will apply to any decedent as to whom a personality right claim is brought in Washington, regardless of where the decedent was domiciled at the time of death, where his or her estate was probated, or whether he or she died before the Act was first enacted.

The amendments appear to respond to several recent cases denying claims of personality or publicity rights. In Experience Hendrix LLC v. James Marshall Hendrix Foundation, 240 Fed. Appx. 739, 2007 U.S. App. LEXUS 15028 (9th Cir. 2007).  The Ninth Circuit affirmed the district court's holding that the Hendrix Foundation could not assert a posthumous right of personality as to Jimi Hendrix under the WPRA because Hendrix was domiciled in New York, and not Washington, at the time of his death.  Because New York law does not recognize a posthumous right of publicity, the court concluded that there was no right of publicity as to Hendrix.  In so ruling, the court followed Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002) which similarly held that Princess Diana did have personality rights under the California right of publicity statute because at her death she was a domiciliary of the United Kingdom which does not recognize posthumous personality rights.

• Print
• Comments
• Trackbacks

Eric Goldman over at the Technology and Marketing Law Blog has some interesting trend analysis and useful practice pointers following the DOJ indictment of Lori Drew for CFAA violations.   I strongly agree with his caution about overusing the laundry list when listing prohibitions.  He also echoes the advice we always give our clients, namely that the most likely source of liability is not what is in or not in the legal policies, but rather when your legal policies don't match your actions in operations or enforcement.

Here's an excerpt of Eric's post: 

As a result, the DOJ prosecutors appear to be trying to make the MySpace user agreement do more work than it was designed to do. In that respect, I see this case as part of a broader trend where government enforcement agencies are misreading and misusing website user agreements. Consider two other very recent examples of government folks attaching undue emphasis to restrictions in website user agreements:

* the New Jersey Attorney General's office apparently misread restrictions in JuicyCampus' user agreement to think they should constitute affirmative marketing representations

* Joe Lieberman thinks YouTube should wipe terrorist videos off its site because its community guidelines discourage users from posting violent videos

This disturbing trend prompts me to offer a practice pointer to those of you who draft user agreements. Many user agreements—including MySpace’s—have gotten bloated with lengthy lists of restrictive rules (a manifestation of the rule proliferation phenomenon I blogged about here). It's pretty clear to me that government enforcement actors, either because of their fundamental misunderstanding of contract law or for their own self-aggrandizement, will treat these restrictions as expectations that the conduct won't occur on the site. But because most websites don't proactively enforce the restrictions they announce, this sets up a mismatch between rules and actual behavior—a mismatch that enforcers appear all too happy to exploit.

Therefore, I think it is better practice for contract-drafters to rely more heavily on general restrictive clauses in website user agreement (e.g., "we can kick you off at our convenience") than on overly detailed/specific but underenforced lists of restrictions. I know this stance runs contrary to the prevailing sentiment among most Cyberlawyers, who seem to believe that for every bad user behavior, it's easy enough to add a new contract prohibition that putatively eliminates the problem. But if the contracts are being misread, rule proliferation may be doing more long-term harm than good.

• Print
• Comments
• Trackbacks

The dismissal of Doe v. MySpace, the case that addressed whether Section 230 immunity extended to torts that occurred offline, was upheld by the 5th Circuit.   This means that websites that facilitate connections and transactions that occur between third parties that take place offline are arguably protected by Section 230 immunity.

• Print
• Comments
• Trackbacks

You knew that law enforcement would find some way to indict Lori Drew, the 49 year old Missouri woman who helped create a MySpace page that led to a 13 year old girl committing suicide.   The tragic consequences and public outcry ensured nothing less.  Nevertheless, the theory by which prosecutors indicted Ms. Drew is a dangerous one for Internet users.  Prosecutors argue in the indictment that by providing false information in her MySpace registration, Ms. Drew violated the terms of service of the MySpace service and, therefore, her access was unauthorized.  This, therefore, permitted prosecutors to allege that Ms. Drew's use of the service was a violation of the Computer Fraud and Abuse Act -- the statute most often used to target hackers.  For Internet users, though, such a theory should provide users with great pause.  It is rare that an Internet user has not provided false or incomplete information or violated a service's terms of service.  If any such use could create a Computer Fraud and Abuse Act violation, it could significantly chill Internet use.  The USA Today has a nice article on these risks. 

• Print
• Comments
• Trackbacks

• Print
• Comments
• Trackbacks

Here's an interesting article in Los Angeles Lawyer by Jonathan Handel, a lawyer at Troy Gould about trademarking movie titles.   Good stuff.

• Print
• Comments
• Trackbacks

Reacting to both legal questions and, probably more accurately, a lot of its users having that old "oogie" feeling that people get from things that are bit too close for comfort, Google has begun testing face blurring technology for its Google Street View product.  According to Cnet,  The technology uses a computer algorithm to scour Google's image database for faces, then blurs them.  There are risks.  Some people will still object to having their houses or other areas that they deem "private" included (Google has already been sued by one couple in Pittsburgh, albeit based on a dubious proposition).   There's also the issue of false positives that blur billboards or works of art with faces and could degrade the product.  There's also the risk of missing some faces that are visible could pose privacy problems and, of course, setting an "industry standard" that could then create a negligence claim for failing to properly implement the algorithm or to properly police the site.  Nevertheless, this seems like a sensible solution of it works. 

• Print
• Comments
• Trackbacks

From Ronnie London in our DC office, a summary of the new FTC Rulemaking on CAN-SPAM

Three years to the day later, the FTC yesterday brought home its long-pending rulemaking that proposed to amend its regulations implementing the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act with respect to, among other things, the definition of who is a "sender" for emails containing multiple parties' ads, and whether to shorten the time companies have to honor opt-out requests. Release of the new regulations and associated commentary provides closure on a set of proposed rules, some of which the FTC first sought input on in 2004, and others it put out for comment (along with some of the 2004 proposals) on May 12, 2005. The final rule adopts some relief for contributors to "multimarketer" emails (i.e., those which advertise or promote several companies’ goods or services), by allowing one of them, if certain circumstances are met, to be the "designated sender" of the email, but does not reduce from ten to three days the amount of time by which senders of commercial emails (all of them, not just those with multiple senders or initiators). The rule changes will be effective 45 days after they appear in the Federal Register.

While the FTC opted not to adopt its proposal to require honoring opt-outs in three days rather than ten days, it adopted new rule provisions on several critical points:

• There is now a more nuanced definition of "sender" for purposes of determining which of multiple parties advertising in a single email are responsible for complying with CAN-SPAM opt-outs. Specifically, under a slightly different configuration from what it initially proposed, the FTC's new rule is that multiple marketers can designate as a single "sender" for purposes of CAN-SPAM compliance a person who: (A) meets the Act’s definition of "sender," i.e., initiates a commercial email in which it advertises or promotes its own goods, services, or Internet website; (B) is identified uniquely in the "from" line of the message; and (C) is in compliance with CAN-SPAM requirements for no false or misleading header info and/or deceptive subject lines, a functioning reply email address or Internet-based opt-out mechanism, honoring opt-outs, and the new rule (described below) that opt-outs cannot be subject to a fee or provision of other info other than email address and opt-out preference. If no single entity satisfies these criteria, then
• Email recipients cannot be required to pay a fee, provide information other than their email addresses and opt-out preferences, or take any steps other than sending a reply email message or visiting a single Internet Web page to opt out of receiving future email from a sender.
• The FTC adopted its proposed rule clarification that, to comply with the CAN-SPAM requirement of including a sender’s "valid physical postal address" in each email, a sender may use its current street address, a P.O. Box it has registered with the U.S. Postal Service, or a private mailbox registered with a commercial mail receiving agency established under U.S. Postal Service regs, provided that in the case of the latter two options, the sender "accurately" registers its P.O. Box or private mailbox under the postal regulations to be considered "valid."
• The FTC adopted a definition of the term "person" to clarify that CAN-SPAM obligations are not limited to natural persons. In doing so, it rejected requests that there should be a blanket exception for emails sent by unincorporated nonprofit entities. However, the FTC noted (i) most emails from nonprofit associations to their members will be transactional or relationships messages that do not trigger CAN-SPAM, and (ii) it lacks jurisdiction to enforce CAN-SPAM against nonprofits (their inclusion in the definition of "person" is thus significant only insofar as it allows state regulators and, more importantly, providers of Internet access service who tend to be plaintiffs in CAN-SPAM suits, to seek relief against nonprofits under CAN-SPAM).
• Rejection of the proposal to change the opt-out period from ten days to three days. These explanations and clarifications also include: i.e In its 2005 rulemaking notice, the FTC clarified that "forward-to-a-friend" email marketing must comply with CAN-SPAMopt-out and disclosures if the entity whose email is forwarded pays, or provides consideration, for the forwarding of the email, but that absent such efforts to procure or induce forwarding, the rules do not apply. In the current commentary, the FTC reaffirms this framework, but notes each forward-to-a-friend scheme presents a fact-specific inquiry to be carefully considered on a case-by-case basis. provided unsolicited newsletter or other periodical via email, and there is no subscription, the situation is materially different than when such content is delivered with the consent of the recipient, such that the emails "likely would not be 'transactional or relationship messages'" in the FTC's view. the periodical consists exclusively of informational content or combines informational and commercial content. If such an email consists only of commercial content (such as a catalog or other content that is purely advertisement or promotion), it is a single-purpose commercial message, because it does not fall within the language quoted above. Similarly, when a sender delivers an., there is no generic carve-out based on the notion that the employer, rather than the employee, receives an email because it is the former that maintains the email account). Under this new rule, the FTC rejected the idea of giving marketers a chance to show an ad or other incentive to remind the party desiring to opt out of the value of the staying on the seller’s emailing list, noting that "subjecting a recipient who wishes to opt out to sales pitches before the opt-out request is completed is an unacceptable encumbrance on a consumer’s ability to opt out of receiving unwanted commercial email."

• The commentary clarifies that certain types of messages generally tend to be "transactional and relationship" rather than "primarily commercial" and thus do not trigger CAN-SPAM. For example, the FTC states that legally mandated notices such as those under Gramm-Leach Bliley, Truth-in-Lending, etc., likely would be categorized as transactional or relationship. The same would go for debt collection messages (including those sent by a third party on behalf of the creditor), copyright infringement notices (so long as the email does not also contain information on how to obtain a licensed version), and emails containing opinion and research surveys unless the message seeks to advertise or promote a brand, company or product or service.
  • With respect to each of the above, senders should nonetheless consider them on a case-by-case basis to ensure there is nothing in the email that might tip it toward being primarily commercial.
    
  • o In addition, emails offering employee discounts from employers to email accounts the employer has provided its employees were deemed "transactional and relationship" and thus exempt from CAN-SPAM (though employees are "recipients" under CAN-SPAM and the Act and rules apply the same way to them other than with regard to employee discount emails, notwithstanding that the employer provided the email account,

• The commentary also reinforces the FTC's view on how CAN-SPAM applies to "forward-to-a-friend" email marketing campaigns, in which someone either receives a commercial email message and forwards it to another person, or uses a Web-based mechanism to forward a link to or copy of a web page to another person.
  • For purposes of this rule clarification, "consideration" is anything of value such as money, coupons, discounts, awards, additional entries in a sweepstakes, etc., or anything else of worth. However, simply making available the means for forwarding the email such as web-based "click-here-to-forward'' mechanism ordinarily would not rise to the level of procuring or inducing' if it is not also coupled with an offer of payment or other consideration to use the forwarding mechanism.
  • Under the web-based scenario, a seller that transmits a message through an automatic technical process to an email address provided by a forwarder (i.e., a form at the seller’s website that allows visitors to forward information to any third party’s email address(es) from the website), absent more, is exempt from CAN-SPAM under the exception provided for such "routine conveyances" in the Act. A company's use of language exhorting consumers to forward a message does not, absent more, trigger CAN-SPAM obligations for the seller. However, if consideration is provided for such use of the website, including even "things of minimal value" or "de minimis" consideration, as well as paying (either directly or indirectly) for driving traffic to a website, CAN-SPAM rules apply.
  • The same consideration-based approach applies to email (i.e., non-web) forward-to-a-friend activity, including the same treatment of "things of minimal value," de minimis consideration, and payment for driving traffic to a site.
  • The FTC clarifies (for the first time here – it overlooked this when proposing the rules) that the consumer forwarder in the above circumstances, while as a strictly technical matter could be viewed as a sender under CAN-SPAM, is not who the statute and rules were intended to regulate, and accordingly does not become subject to the rules for such forwarding, even if compensated.

• The commentary also attempts to bring some clarity to when "sender" information in an email header is deceptive. Specifically, whereas the statute simply states that "a ‘from’ line … that accurately identifies any person who initiated the message [is not] materially false or misleading," the FTC states "this does not mean that the ‘from’ line necessarily must contain the initiator’s formal or full legal name, but it does mean that it must give the recipient enough information to know who is sending the message," and that emails must be considered "from the[ ] recipients’ perspective" so that if a "reasonable recipient" would be "confused" by the from line, "the sender is not providing sufficient information." However, this "clarification" is not materially different from what the FTC has offered in the past.

• all Thus, under the new rule, only the "designated sender" meeting the above criteria -
• Conversely, the new rule does not eliminate the possibility that an email can have more than one "sender," so that if marketers fail to use (or to use properly) the above criteria to establish a single sender, each of the multiple senders is obligated to comply with CAN-SPAM, including providing a physical postal address and honoring any opt-out requests.
• Example
• The designated "sender" for purposes of a multi-marketer email must (in addition to meeting the other requirements) include its non-deceptive name, trade name, product, or service in the "from" line (see below for clarification of "non-deceptive" sender names).
• Also, designated senders must be identified in the "from" line as the sole sender of the email -- if two or more senders appear in the from line, this "multimarketer" relief is unavailable.
• Further, in such multimarketer email scenarios, if the designated "sender" receives proposed email addresses from the non-designated sender(s),
• i.e ., other advertisers included in the email, the designated sender must scrub that list against its own opt-out list before sending the message to the addresses on that list. (The FTC does not say whether non-designated senders must scrub against their own opt-out lists before providing email addresses to the designated sender, but the safe course would appear to be for the non-designated sender to do so, content in the knowledge that, if done properly, if the multi-marketer email draws opt-outs, at least they will bind only the designated sender). : Where A, B, and C advertise in a single email message (and each is an "initiator" under the Act), if A’s name appears in the "from" line, A is considered the "sender" even though B and C promote their goods, services, or Internet website in the email, may control portions of or all of its content, and may supply email addresses for A to use to send the message. In such a scenario, neither B nor C are "senders," unless A did not comply with the false/misleading/deceptive header/subject and opt-out rules. but not the other marketers using the same email message - is required to facilitate and honor opt-out requests made by recipients of the email, and to post a valid physical postal address. entities who satisfy the statutory definition will be considered senders for purposes of the email.

• Print
• Comments
• Trackbacks

Despite the early success of Hulu, Hulu has created a Huludotcom channel on YouTube to drive traffic to the Hulu webstie.  This is fascinating evidence of the power of the YouTube website and community as well as the synergy that can be created across multiple platforms and multiple sources.  What's interesting about this, however, is that by many accounts users of YouTube tend not to surf YouTube, but rather search for specific content or are directed there by links form bloggers or friends.  It, therefore, begs the question of how much traffic will actually get pushed to Hulu.  ArsTechnica has more

• Print
• Comments
• Trackbacks

Two leading advocacy groups filed a complaint today with the Federal Trade Commission in an attempt to force the FTC to take a "proactive stance."  Joining the Center for Digital Democracy in the complaint is the U.S. Public Interest Research Group. Those groups currently are pursuing an FTC complaint about behavioral targeting generally. They argue that marketers should not track people's Web-surfing activity for the purpose of compiling profiles about them without first obtaining their consent.  The Federal Communications Commission already prohibits marketers from sending text message ads to consumers without their opt-in consent, but some other types of nascent mobile ads--such as wireless application protocol banners or search ads--are not similarly restricted.  the Center for Digital Democracy hopes to influence policy now, while the mobile ad market is still in its infancy. Specifically, its complaint calls on the FTC to create a task force that will include consumer representatives and industry leaders to craft a marketing regime that gives priority to privacy.  Although, to me, this is just an empty gesture to get attention, it reinforces once again the nervousness regarding behavioral advertising. 

• Print
• Comments
• Trackbacks

Cnet reports on comments made at Digital Hollywood by the Washington Post Executive Editor of their online division.  Essentially, Jim Brady said (and confirmed after) that he thought the best way to elevate discourse in the comments sections was to force individuals to identify themselves in order to post.  Like spam, griefers and other abusers of the comment sections have created problems for major media organizations.  The media organizations either have to block comments or overfilter -- in which case they get accused of being elitist -- or they open up the comments to very few restrictions -- in which case the quality of the discourse goes down and people revert to name calling and other sorts of ugliness.  I come down on the side of hoping that media organizations will do everything they can to preserve the open and anonymous nature of commenting, but as someone who avoids reading and making comments in many cases because of the level of discourse, I hope we can find a solution that will work.

• Print
• Comments (1)
• Trackbacks

• The web is still a hit driven business just like television and the rest of old media (and the success-failure rate is probably even worse). 
• Because of the flexibility of the medium and the ability to get instant and accurate metrics, the web piece of a multi-platform content roll out can be the most profitable element
• Consistent with what I've heard at other conferences, large media organizations are using user generated content channels to scout for talent
• For producers who started as independents, but were purchased by a large media or entertainment organizations, there are often growing pains when dealing with the "bureaucracy" of the large organization.  In particular, some of the panelists felt that being part of a large organization inhibited their ability to produce comedy
• One of the most exciting things about web productions is that participants are experimenting with deal structures and, therefore, the parties can reallocate the risk and try new productions.  One panelist said, these changing deal structures had the possibility of making entertainment and media more inclusive because it allowed productions to get made that couldn't be made otherwise.
• An excellent question posed by the moderator that wasn't answered adequately, in my view, was whether or not large media and entertainment companies could survive with their large overheads and mass advertising models in a world where entertainment continued to target narrower and narrower niches.
• The importance of trusted sources that can filter and recommend content and the importance of brand evangelizers and self promotion of content can't be overstated

• Print
• Comments
• Trackbacks

Our brother blog, the Broadcast Law Blog, has a nice summary of the FCC holding that the 700 Club and TMZ are not subject to the Equal Time rules because they are bona fide news organizations.  Admittedly this is not technically a digital media issue, but I think it's interesting for two reasons.  First, it shows just how pervasive the celebrity culture has become (it even made the front of Atlantic Magazine) and, in some ways, legitimizes the Perez Hiltons and other gossip websites.  Second, I think it may suggest interesting frameworks for determining how to apply the journalist's privilege and other media protections to digital media and Internet organizations -- currently an issue that continues to confound most people.

• Print
• Comments
• Trackbacks

Amazon.com sued New York state and its taxation department today to contest the constitutionality of a new state law requiring out-of-state Internet retailers to collect New York state taxes.  The law, which took effect April 23, requires that out-of-state Web retailers collect sales taxes from customers in the state if the retailers have New York-based representatives soliciting business on their behalf. The state considers Amazon and other retailers to be subject to this law because they have "affiliate" marketing arrangements.   Amazon alleges the law violates several aspects of the U.S. Constitution because it is "impermissibly vague and overbroad" in its requirement that Amazon, which has no physical presence or employees based in New York, to collect sales taxes.

• Print
• Comments
• Trackbacks

Fascinating summary of four cases discussing the enforceability of click-through licenses and other contracts over at the E-Commerce and Tech Law Blog.  The gist of the cases is that if you're EULA is well drafted and someone clicks-through the agreement, it's likely to be enforceable (even if you're a company that most people would want to "get").  On the other hand, if the terms of the contract aren't available, the contract is contradicted by the sales person, or the customer is rushed through the process, courts may not enforce what would otherwise be an enforceable contract.  The fact situations of the cases are amusing in their errors (the contract wasn't included in the box, a kiosk that was supposed to link to the terms of the contracct wasn't connected to the Internet, the button for "assent" to the contract was labeled "print", etc.), but they reflect a consistency in the jurisprudence on the effectiveness of electronic contracting, namely that EULAs, click-throughs and other electronic contracts aren't enforced only when someone tries to get cute a la Douglas.  If a company will just enact a simple on line contracting policy and be consistent in its enforcement, it is unlikely that a contract will be unenforceable.

• Print
• Comments
• Trackbacks

• Print
• Comments
• Trackbacks

"Interesting" case filed in the Northern District of Florida earlier this month.  Professor Moulton of the University of Florida and Faulkner Press, the publisher of his e-textbooks filed a copyright infringement lawsuit against Class Notes ("Einstein's Notes").  Professor Moulton alleges that Einstein's Notes, one of these organizations that essentially sells crib notes for college classes "slavishly" copied the film study questions and exam practice questions prepared by Professor Moulton and marketed by Faulkner Presss.  Setting aside the self-importance one must have to both file a copyright registration on one's lectures and license the rights to the lectures to a publisher, so far we have a garden variety copyright infringement lawsuit -- albeit in an unusual environment.  The complaint takes it one step further, however, and argues that the typed lecture notes included as part of the Einstein's Notes packet are a derivative work of Professor Moulton's lectures.  In other words, Professor Moulton alleges that a student's notes of a professor's lecture constitutes copyright infringement (although Professor Moulton's attorney suggests that this would be protected by fair use).  This is even more interesting in this case because Professor Moulton suggests that fixation of the lecture occurred through his notes in his lecture that he made to his transparency.  Setting aside the attempt of Professor Moulton to get rid of a bottom feeder trying to facilitate cheating students, the concepts underlying the lawsuit would have significant consequences for any note taking -- everything from Cliff's Notes to commentary on public discourse.  The complaint is here. 

• Print
• Comments
• Trackbacks

• Print
• Comments
• Trackbacks