TechLaw

An opinion released a few days ago in the Turnitin.com lawsuit, A.V. v. iParadigms, No. 07-293 (E.D. Va., March 11, 2008), took up several issues of interest to cyberlaw attorneys. The court (1) enforced a clickwrap agreement, (2) declined to enforce terms of use that were viewable by clicking on a hyperlink at the bottom of a Web page, and (3) held that Turnitin.com's service (which consisted of maintaining a database of student papers used to discover and deter plagiarism) was a fair use of the student papers submitted to Turnitin.com.

Turnitin.com's operator, iParadigms, contracts with schools to provide a plagiarism-detection service. Student papers submitted to Turnitin.com are electronically evaluated against a database of papers written by others in order to determine if the submitted paper is original. This case involved a copyright infringement claim brought by four high school students who submitted papers to Turnitin.com. They registered with Turnitin.com and in the process clicked on an "I agree" button to indicate their assent to the Turnitin.com User Agreement. The User Agreement disclaimed any liability in connection with a registrant's use of the Web site.

Clickwrap Agreement Enforced, Against Minors

The court's discussion of the enforceability of the clickwrap contract looked a lot like the dozens of cases already decided in this area. Suffice it to say that the court found that the students had entered into a valid contract when they clicked on the "I Agree" button to indicate assent to the terms of the User Agreement. What was interesting, however, was the court's rejection of the students' claim that, because they were minors at the time they made the contract, the contract was voidable. In Virginia, contracts by minors are voidable when the minor reaches the age of majority. The court parried this doctrine with one of its own: Even an infant cannot take the benefits of a contract without taking the conditions or limitations as well. The court identified several benefits the students took from the Turnitin.com User Agreement:

They received a grade from their teachers, allowing them the opportunity to maintain good standing in the classes in which they were enrolled. Additionally, Plaintiffs gained the benefit of standing to bring the present suit. Plaintiffs cannot use the infancy defense to void their contractual obligations while retaining the benefits of the contract.

Some benefits. The benefit of bringing a lawsuit that the court is tossing, and the benefit of participating in a high school anti-plagiarism exercise. This seems to be an awfully low standard. Any Web site catering to children should be able to cite equally valuable "benefits" from using their online services, so you have to wonder how much use the infancy defense will be to future online plaintiffs.

Browsewrap Language Not Enforceable

Although Turnitin.com won on the clickwrap contract point, it was not able to get an indemnification clause in its Web site terms of use enforced against the students. Turnitin.com's argument, based on Register.com Inc. v. Verio Inc., 356 F.3d 393 (2d Cir. 2004), was that the students assented to the terms by continually using the Turnitin.com Web site. The court disagreed, finding that there was no evidence of assent to the terms. First of all, the agreement that the court did enforce -- the clickwrap agreement -- contained language indicating that that agreement constituted the entire contract between the parties.

Leaving that point aside, the court observed that there was no evidence that the students viewed or read the Web site terms, and no evidence that the students ever clicked on the terms of use hyperlink or were ever directed to do so by Turnitin.com. The court acknowledged prior decisions -- such as Register.com -- where knowledge of Web site terms was imputed to users by repeated visits to the Web site and repeated exposure to the terms. However, the court said here, "in this case ... such imputation is improper because there is no evidence indicating that Plaintiffs were exposed to the terms of the Usage Policy."

The court distinguished Register.com based on the fact that, each time the Register.com Web site was used the site caused a notice of its terms of use to be transmitted to the user. In this case, the court said, "There is no evidence that the terms of the Usage Policy were presented to Plaintiffs beyond the existence of the Usage Policy link the appeared on each page."

Even though Turnitin.com lost on the browsewrap point, it's easy to see how a little more effort on Turnitin.com's part could have produced a favorable outcome.

Student Papers' Inclusion in Database Held Fair Use

Finally, the court took up Turnitin.com's argument that its use of the student's papers was a non-infringing fair use. The court, borrowing heavily from the Ninth Circuit's ruling in Perfect 10 Inc. v. Google Inc., 487 F.3d 701 (9th Cir. 2007), held that it was. Turnitin.com's use of the student papers was "highly transformative," the court found, noting that Turnitin.com took a creative work and transformed it into an anti-plagiarism technology. Further, Turnitin.com made no use of the creative aspects of the students' work, and in fact it used their works to protect the originality of their expression by using it to deter plagiarism. The court also noted that, although Turnitin.com copied the entirety of the students' papers, this copying in no way caused harm to the market value of the papers. All in all, the court concluded, Turnitin.com's use of the students' papers was a fair and lawful one.

Bidding on eBay Live Actions is very safe. All live auctions are run by reputable international auction houses, which are carefully screened by eBay before being authorized to sell to you.

One bidder, who complained that an auction she participated in was spoiled by shill bids, pointed to the above statement in support of her legal claim for damages against eBay. You wouldn't think at first glance that eBay's declaration that its auctions are "safe" would be entitled to immunity under Section 230 of the Communications Decency Act. And you would be right, at least according to a recent opinion by Judge Marilyn Hall Patel in Mazur v. eBay Inc., No. 07-3967 (N.D. Cal., March 4, 2008).

eBay argued unsuccessfully that this case was like Gentry v. eBay, 99 Cal. App.4th 816 (2002), and Doe v. SexSearch.com, 502 F. Supp.2d 719 (N.D. Ohio 2007), a pair of cases in which Web sites turned user-submitted information into CDA-immunized assurances to users. In Gentry, the user rating information was derived from third-party submissions to eBay; in Doe, the Web site's assertion that its users were over 18 years old as also derived from user-generated data (users checked a box indicating they were at least 18 years old). The present case is distinguishable, Judge Patel said, because eBay's safety assurances were made by eBay alone and were not based on any information submitted by users.

The House Judiciary Committee's newly formed Task Force on Competition Policy and Antitrust Laws will hold a hearing March 11 on Net Neutrality and Free Speech on the Internet. The witness list has not yet been announced. The hearing promises to air some of the same issues aired at the Federal Communications Commission's Feb. 25 meeting in Cambridge, Mass. -- charges that large broadband providers have engaged in bandwidth degradation against some types of content and some technologies, such as peer-to-peer file-sharing applications. BNA will be there. If you'd like to join us, get there early.

I'll mail my copy of Lawrence Lessig's The Future of Ideas: The Fate of the Commons in a Connected World to the first person who can identify for me the technology invented by Jamey Harvey, Andrew Fegly, Matt Hulan, and Robert Dekelbaum.

When spoon bender and copyright maximalist Uri Geller recently succeeded, on lack-of-jurisdiction grounds, in having California litigation against him for sending a false DMCA take-down notice to YouTube dismissed, one of the reasons cited by the court was the fact that the plaintiff's claim could be litigated in Pennsylvania where a related action was pending.

Several days after the California court issued its ruling, however, Geller moved to dismiss the Pennsylvania case. Magicians call this "mis-direction," the trick of getting the audience to look in the wrong place at the right time. Scoff if you like about Geller's alleged ability to bend spoons with his mind. He is very good at misdirection.

In Sapient v. Geller, No. 07-2478 (N.D. Cal., Feb. 4, 2008), Judge Vaughn R. Walker sidestepped the knotty question of whether Geller's act of sending a DMCA take-down notice conferred jurisdiction over him where the notice was received. The court decided instead to simply dismiss the case in favor of the Pennsylvania action, where Geller's company, Explorologist Ltd., had filed a copyright infringement claim against Sapient. Judge Walker wrote:

Sapient will be able to raise his Section 512(f) claim against [Geller's company] Explorologist as a counterclaim in the Pennsylvania action. ... And although Geller is not a party to that action, Sapient will be able to bring his claims against Geller using either a regular jurisdiction analysis or the federal long-arm statute.

Needless to say, Sapient is not happy about Geller's trickery. In his answer, filed today, Sapient argued that Geller's motion to dismiss would deprive him of a forum to litigate his false DMCA take-down notice claim:

Explorologist indicated to Chief Judge Vaughn Walker of the Northern District of California that Sapient would not be harmed by dismissal of his claims there because this Court offered an alternative forum. Yet, when advised that Sapient intended to follow Chief Judge Walker's suggestion and amend his answer to join the claims to this action, Explorologist refused to stipulate to that amendment. Then, just hours after opening discussions regarding a stipulated dismissal that would provide for Sapient's claims, Explorologist ran to this Court seeking permission to dismiss. It then insisted, incorrectly, that Sapient should no longer be permitted to amend.

Explorologist is also under pressure to produce Geller for a deposition in the Pennsylvania action which, by all indications, it does not want to do. On the merits, Explorologist's copyright claim looks like an uphill battle. He is attempting to invoke British, not U.S., copyright law regarding three seconds of copyrighted video contained in a larger video production that sought to debunk Geller's claim to psychic abilities. A mind-bending feat, if he can pull it off.

The Pennsylvania court has ordered all parties to appear in person in Philadephia on March 18 to sort the matter out.

The connection between money and Congress' willingness to grant telecom companies immunity from a slew of civil claims challenging their complicity in the government's post-9/11 warrantless eavesdropping activities is explored in a report published yesterday by the Center for Responsive Politics.

CRP, a non-profit, non-partisan research group that tracks the relationship between money and politics, pointed out that 68 senators who voted in favor of telecom company immunity collected an average of $21,200 from the telecoms during 2005-2007, while 29 who voted against immunity received an average of $13,000 in campaign contributions. Over in the House, the leading opponent of telecom immunity, John Conyers (D-Mich.), received just $4,000 during the current election cycle.

Many years ago, when I first started writing about technology policymaking, it was explained to me by an elections law expert that campaign contributions nearly always dictate the outcome of federal legislation on issues where the public is not engaged. Intellectual property, telecommunications and (to a lesser extent) privacy, policymaking are leading examples in the cyberlaw area. Legislative solutions always advance the needs of large campaign contributors. What can we do to stop piracy? How can be make sure that our communications infrastructure providers are adequately incentivized to provide this valuable service? Why should we withhold from businesses useful information about their customers and prospective customers?

On the other hand, no amount of money is going to effectively sway federal legislators on topics like abortion, immigration, or national defense. Political careers are made or ruined on these issues. Voters, not campaign contributors, rule. Campaign contributions like those documented by CRP are going to be conclusive until privacy becomes an issue that determines which way a person will vote. I'll leave it for others to say whether this is a good or a bad state of affairs, but this is reality in Washington. As you can see from Congress' slow march toward legal immunity for telecom companies, the voting public is not there yet when it comes to privacy and electronic surveillance.

In the end, Utah's on-again, off-again attempt to repeal a 2007 law that gave trademark owners a cause of action against rivals and search engines for deploying electronic advertising triggered by a trademark turned out to be no more than the latest skirmish between long-time combatants on this issue.

The Utah Senate passed S.B. 151, a bill repealing restrictions on trademark-triggered electronic advertising, on Feb. 6. On March 4, just when it appeared that the Utah House would approve the S.B. 151, a substitute measure was offered and approved. Backers of the substitute measure were seeking to preserve Utah's restrictions on trademark-triggered advertising. Their bill limited the trademark owners' cause of action to suits against direct competitors; additionally, the House-passed bill made changes to address commerce clause concerns and to require advertisers to conspicuously display the phrase "Paid Advertisement" alongside search-triggered advertising.

The competing bills were sent to a conference committee March 5, the final day of the legislative session. Forces seeking to preserve some sort of restriction on trademark-triggered advertising were defeated in the conference committee. The original Senate measure, sponsored by Sen. Dan R. Eastman, eventually emerged from the conference, and both houses quickly approved it. S.B. 151 now awaits the governor's signature.

BNA asked its Utah correspondent Tripp Baltz to find out what happened. Tripp talked to nearly everybody involved in the matter and, while I am not going to give away his story before we publish it, I will say that Utah's struggle to do something about trademark-triggered advertising is longstanding and heartfelt. And it didn't end on March 5.

For the tech industry, lobbyists from Google, Microsoft, Yahoo! and America Online have been working in Utah ever since the state passed the country's first anti-adware legislation in 2004. From what we hear, the tech industry leaned very hard on Sen. Eastman to get S.B. 151 introduced and passed in the Senate. They might have prevailed on Sen. Eastman with reasoned policy arguments, and they might have suggested that Utah's current law was ripe for constitutional challenge.

The other side of the debate was represented most vociferously by 1-800 Contacts of Draper, Utah, and -- behind the scenes -- by Rep. Stephen H. Urquhart, the sponsor and chief defender of Utah's 2004 anti-adware legislation. Both of these folks walked away with nothing March 5. It seems unlikely they will not be heard from again.

Utah politics aside, 1-800 Contacts has also been active in the courts, most notably in the case of 1-800 Contacts, Inc. v. WhenU.com Inc., 414 F.3d 400 (2d Cir. 2005), in which the Second Circuit held that Whenu.com's trademark-triggered display of pop-up ads for rival goods was not an actionable use of the mark. More recently, 1-800 Contacts sued a rival contact lens vendor for purchasing search engine keywords containing its trademarks. See 1-800 CONTACTS Inc. v. LensWorld.com Inc., D. Utah, No. 08–15, complaint filed 1/8/08.

Counsel for 1-800 Contacts told Tripp that American Airlines and American Blinds -- two other companies that have pressed their case against trademark-triggered advertising in court -- also urged legislators to support the House-passed version of S.B. 151.

Strike the possibility of being haled into a far-flung jurisdiction from the list of reasons why attorneys should not promote their practices with adware. An odd decision from North Carolina held recently that attorneys who advertised their practices with adware were not subject to the court's jurisdiction merely because the advertisements were displayed on the computer screen of an irate North Carolina resident.

The plaintiff contended that the defendants hired "some Internet firm" to plant "a bug or virus or worm" on his computer, thus damaging the computer and invading his privacy. The plaintiff took down the names of the attorneys displayed on his computer, and he sued them.

None of the numerous attorney defendants admitted to marketing their services in such a crass fashion, but all of them declared that they were not licensed to practice law in North Carolina and they were not attempting to market their services there.

"It makes absolutely no sense that [the defendants], all of whom operate law or dental practices in states far removed from North Carolina, would have any interest in soliciting [the plaintiff], or any other North Carolina resident," the court said. The court held that jurisdiction over the attorneys was not proper under the state long-arm statute, because they were not soliciting or providing services in the state. Even if jurisdiction was proper under the long-arm, it added, the attorneys did not purposefully direct their activities toward North Carolina, so federal due process would not permit North Carolina courts to assert jurisdiction over them.

The case is Burgess v. Vitola, No. 07 CVS 4679 (N.C. Super.Ct., Buncombe Cty., Feb. 26, 2008)

Earlier today I was foolish enough to predict that the Utah legislature was on the verge of repealing a law  giving Utah-registered trademark owners a cause of action against anyone that used a registered mark to trigger advertising for someone other than the mark owner. The repealer (S.B. 151) had already been approved unanimously by the Utah Senate and was awaiting a final reading in the Utah House.

However, late today S.B. 151 stumbled just short of the finish line. The House passed a substitute measure that appears to preserve the basic thrust of the Utah electronic trademark law, namely to give registered mark owners a means of halting the use of their marks to trigger competitive online advertising. The substitute bill limits the current cause of action to (1) advertisers and advertising companies who have the ability to know in which states their ads are displayed, (2) advertisers who are direct competitors of the mark owner, and (3)  advertisers who fail to prominently display the phrase "Paid Advertisement" with the ad copy.

Still later today, the Senate refused to go along with the House amendments. Tomorrow, March 5, is the final day of the legislative session.

As you can see from the table below, March 4 was a busy one for S.B. 151.

S.B. 151 Second Substitute  Trademark Protection Act Amendments (Eastman, D.)

Prof. Eric Goldman at the Santa Clara University School of Law reported today that the Utah legislature is in the last throes of an embarrassing public retreat from a 2007 law that created an electronic trademark registration barring the use of a registered mark to trigger Internet advertisement for a competitor.

Under the law (S.B. 236), which was never implemented, entities may not cause “the delivery or display” of an advertisement for a business, good or service of the same class as the holder of the registered mark or if the ad is likely to “cause confusion” between the business, good or service of the registered mark and the one being advertised.

The Utah Senate approved the repeal measure (S.B. 151) on Feb. 6. S.B. 151 is set for a third and final reading in the Utah House today, so it seems likely to be passed by the time the state legislature adjourns tomorrow at midnight.