TechLaw

Skater's Justice

Last month Twitter adopted a new policy on name-squatting and impersonation. Here it is in action, from a post on Twitter co-founder Evan Williams's blog:

Makes the UDRP look so 1998.

Blockshopper Case: Privacy Purchased at Retail

Quite a few stories have been written about BlockShopper's settlement of a trademark infringement lawsuit brought against it by Jones Day, a lawfirm that was (apparently) upset about Blockshopper's use of hyperlinks to biographies of firm partners and associates on its Web site. Familiar online themes of righteous indignation, David v. Goliath, Luddites messing with the Internet here and here, bad lawyer, and bad trademark law dominated the discussion.

Among all this techno-outrage, I didn't see any expressions of concern for the people whose names and faces and home addresses routinely pop up on Blockshopper for no reason other than the fact that they purchased or sold a dwelling. Why does Blockshopper get a free pass on privacy concerns? I think there are real privacy issues here. When I visited the Blockshopper Web site last year and saw a photograph of an apparently single female next to Google map of her new home and an indication of how much she paid for the property, I found it disconcerting and I immediately became concerned for the woman's safety.

I have a hard time expressing precisely why the Blockshopper Web site is worrisome to me. I can't put it into words, but I feel that some social value is being threatened there. Someone is being exploited. "Privacy" might not even be the right word for it. I agree with Bruce Schneier who wrote this morning on the BBC News Web site, "Being constantly scrutinized undermines our social norms; furthermore, it's creepy. Privacy isn't about having something to hide; it's a basic right that has enormous value to our democracy, liberty, and our humanity." That makes sense to me. As a society, we're making tradeoffs among values without enough discussion about the implications of the information infrastructure we are creating.

The foregoing (admittedly trite) remarks lead me to a few totally unsupported and possibly fanciful observations about why Jones Day brought a trademark suit against Blockshopper and why it settled the case the way it did.

First, good lawyers will always try to stretch the law, provided they have a good faith basis to do so, to serve their client. That's called zealous representation. That's the kind of lawyer you or I might want. Okay, so their trademark infringement claim was a weak one. A lawyer's job is like a baseball pitcher's: throw it near the plate and get the batter out. It's the judge's job to call balls and strikes. I wouldn't have called Jones Day's a pitch a strike, but reasonable people -- including the district judge -- are free to differ on that.

Second, if the Blockshopper case was really about privacy (and I think it was), Jones Day might understandably be reluctant to assert that kind of claim. If you look at the firm's list of representative clients you will see many large corporations: advertisers, publishers, financial institutions, database vendors (Experian, Thomson, Dun & Bradstreet to name a few), and health care companies. The interests of all of these companies would be adversely affected by a judicial ruling that individuals have privacy rights that limit the collection, aggregation, and distribution of personal information. If Jones Day were to file a lawsuit like that, it might be very expensive for the firm. Nobody wants to lose a good client, especially in tough economic times. A trademark claim avoids that headache. The settlement obtains a small measure of privacy for Jones Day only, under the guise of trademark rights, but no privacy protections for the rest of Web. We'll just have to sue for ourselves, I guess.

Third, Jones Day got value out of the settlement. They were able to remove their attorneys' photos from the Blockshopper Web site, which I think was their main objective. This gives Jones Day attorneys a measure of privacy they didn't have before. And they were able to force Blockshopper to display the firm's name each time it pulls data out of the Jones Day Web site. That's an exchange of value where it was once a one-way street. Worth something, I think. And then there is, of course, the "don't mess with Jones Day" aspect of the settlement that has been remarked on ad infinitum. This part of the settlement benefits both the firm and its clients.

Finally, it is indeed regrettable that a weak and possibly insincere trademark claim has been used to increase, in this instance, the cost of hyperlinking on the Web. I put it in the same category as abusive DMCA claims, trumped-up libel claims to out anonymous bloggers, and patent trolls attempting to cash in on technology Tim Berners-Lee gave the world for free. All bad. But spats over hyperlinking go back to the earliest days of the commercial Web (remember Washington Post v. Total News?). I'm surprised there are not more of these suits. In any event, blame here should be shared by Blockshopper. They should have hung in there and fought the case.

Boucher Court: No Right to Refuse to Produce Encrypted Data

Late last week a federal court in Vermont decided that a criminal defendant's compelled act of producing unencrypted contents of an encrypted laptop is not protected by the Fifth Amendment's privilege against compelled self-incrimination. The closely watched case of United States v. Boucher is a throwback to cyberlaw's Cryptozoic Era, the days of Clipper Chip, CALEA, United States v. Bernstein, the shadowy legal status of PGP, and crypto export regs. The court's resolution of this issue is not going to satisfy everyone, especially persons who believe that encrypting their laptops is a good protection against suspicionless border searches.

However, the court's ruling neatly solves the government's problem with gaining access to the growing amount of encrypted data the is being created in response to privacy, data breach, and identity theft concerns. As I read this opinion, so long as the government has a general idea of what might be hidden among the encrypted data, and it can point at the computer housing it, there is no Fifth Amendment impediment to a demand for production of that data in an unencrypted format.

Following his arrest for transportation of child pornography and seizure of the laptop containing the evidence against him, Boucher claimed that his refusal to tell police the password protecting an encrypted portion of the laptop's hard drive is protected by the Fifth Amendment's privilege against compelled self-incrimination.

A magistrate judge agreed with Boucher in United States v. Boucher, No. 2:06-mj-91 (D. Vt. Nov. 29, 2007), and it quashed a grand jury subpoena directing Boucher to divulge the password. The magistrate concluded that the act of entering the laptop password was a testimonial act under the privilege. The legal ins and outs of the case are dissected by Prof. Orin Kerr in this Volokh Conspiracy post, and I commend anyone who wants to understand this area of the law better to go there and read it.

Last week, the district court reversed that ruling, though "reversed" is probably not the correct word, since the district court decided a slightly different issue than the magistrate. This is because, on appeal, the government changed its legal approach to the case. Rather than demanding that Boucher give authorities his password, it instead demanded that Boucher turn over the contents of his encrypted hard drive in an unencrypted format. Looking at the case this way, the district court decided that the Fifth Amendment did not give Boucher a constitutional right to refuse.

Any evidence of child pornography on the defendant's laptop is not protected by the Fifth Amendment because this evidence was voluntarily created by the defendant. The question faced by the district court was whether the act of producing the contents of the laptop was itself a compelled communication of incriminating facts. Courts have held that compelled production of incriminating documents would not violate the Fifth Amendment in two situations: (1) if the existence and location of the evidence was previously unknown to the police or (2) if the act of production would implicitly authenticate the evidence. The district court decided that neither circumstance was present in this case. The government already knew that unencrypted portions of the laptop's hard drive contained child pornography. And, as for the second circumstance, the government promised the court that it would not use Boucher's act of producing the contents of the laptop to prove that the child pornography it contained belonged to him.

The court said that the encrypted portions of Boucher's laptop were similar to the daily calendar at issue in In re Grand Jury Subpoena, 1 F3d 87 (2d Cir. 1993). In that case, the government subpoenaed the original of the defendant's daily calendar, at a time when it already had a copy of that document. The Second Circuit ruled that the Fifth Amendment would not be violated by compelling production of the original, since the existence and location of the calendar were a foregone conclusion and the defendant had already testified about his possession and use of it.

The court reasoned that the compelling Boucher to produce the vast expanse of unknown, encrypted data on his laptop "adds little or nothing to the sum total of the Government's information" (quoting the Supreme Court's opinion in Fisher v. United States, 425 U.S. 391 (1976) about him, so it was not therefore protected by the Fifth Amendment privilege. No doubt many will find this to be a weak spot in the court's opinion. The Second Circuit may weigh in too; the defendant has already filed an interlocutory appeal to that court.

Now, where is the opinion? It's not on the court's ECF site yet, but it is available on Lexis and WestLaw. I've also provided a copy here, for which I apologize in advance. It's not in very good shape.

Google AdWords Beats Trademark Claim in France, But Loses on Two Other Issues

[UPDATE: After posting the message below, it dawned on me that there is a connection between Google's troubles in Italy and cases it has litigated in France. According to one report, the Italian prosecutor is seeking to hold Google liable as a publisher of the materials uploaded to Google Video. In Jean-Yves L. v. YouTube et al, a 2008 ruling involving copyrighted videos that had been uploaded to YouTube without permission, the court ruled that Google was a Web host, not a publisher. The ruling was a victory for Google because, in France and in other European countries, a publisher is strictly liable for content on its site. But the law is by no means settled on the proper categorization of user-generated content sites, in France or in Italy.]

Widespread publicity today (here, here, and here) about the legal troubles of Google officials over the posting of distasteful video on Google Video is yet another reminder that the U.S. legal system is, well, the U.S. legal system. Online, we have safe harbors for third-party content, our privacy laws are forgiving or non-existent, and we have the First Amendment to protect even the coarsest utterance. Things are done differently elsewhere. Google's Italian troubles are merely the latest evidence of this obvious-to-all state of affairs.

Rather than beat that horse, I am going to devote the rest of this post to a different overseas dispute involving Google that got a lot more interesting last month.

Most attorneys know that Google is continuing to attract lawsuits in France over Google Adwords, an advertising product that allows advertisers to purchase a prominent page placement in search results for queries on their competitors' trademarks. Recently, a Paris court sided with Google on the trademark infringement issue, creating a split of authority in France. Unfortunately for the search giant, however, the court also ruled that Google violated a French duty of loyalty and good faith by failing to put in place means to verify that advertisers on Google AdWords had authorizations to use other companies' marks as search keywords. The same court also found Google liable for deceptive advertising, because the sponsored links returned by Google were displayed similarly to the natural search results.

BNA's Paris correspondent spoke to a couple of French online law experts about the latest in l'affaire Google. Here is his story:

Paris Court Enters `Huge' Award Against Google France in Keywords Case

PARIS—In a new twist to les difficult s juridiques de Google, the Paris Court of First Instance (TGI) Jan. 7 ordered Google Inc. to pay €410,000 ($523,000) in damages and costs for business tort and deceptive advertising, according to court papers and legal experts.

In the ruling, Voyageurs du Monde, Terres d'Aventure v. Google, TGI Paris, 1/7/09, the court rejected the plaintiffs' argument that Google France, Google Ireland, and Google Inc. violated their registered trademarks by allowing them to appear, in search results, next to sponsored hyperlinks to competitors' sites.

Nevertheless, the court found Google had caused commercial harm to the plaintiffs, in violation of France's civil code and its 2004 law to support confidence in electronic communication (LCEN). The court ordered the search-engine company to pay €200,000 ($255,000) to plaintiffs Voyageurs du Monde and €150,000 ($192,000) to Terre D'Aventure, in damages and interest. It also ordered Google to pay €60,000 ($62,000) in court costs.

Though modest by U.S. standards, the awards were seen here as a severe slap to Google. "It's a huge sum by French standards," Bradley Joslove, a Paris-based attorney who heads the Franklin law firm's new technologies department and co-manages its commercial law section, told BNA.

In a statement, Google said it has already appealed the case to the Paris Court of Appeal.

"Google's terms and conditions make clear that advertisers are responsible for their choice of keywords and warn against their unauthorized use. Google believes that our advertising services comply with French and European law on online advertising," the company said.

Search Calls Up Links to Competitors.

Google's AdWords service lets advertisers create advertisements and choose keywords related to their business. When people do a Google search using one of the keywords, the ad can appear next to search results. AdWords can also suggest keywords to advertisers.

The ruling noted that when Web users Googled the trademarked terms "Voyageur du monde" and "Terres aventure" they would get search results that included advertisements for direct competitors of those companies.

Plaintiffs argued that this constituted trademark infringement. The TGI did not agree, diverging in particular from a 2006 ruling by the Paris Court of Appeals, which upheld a lower court decision in favor of plaintiff Louis Vuitton (Louis Vuitton Malletier v. Societe Google Inc., No. R.G. 04/05745 (Tribunal de Grande Instance de Paris, Feb. 4, 2005) (10 ECLR 296, 3/23/05).

In that case, the lower court found that Google's AdWords advertising system infringed on several LVMH trademarks, caused unfair competition, and falsely advertised potentially counterfeit products sold by unlicensed rivals finding AdWords.

The Paris TGI agreed with Google that advertisers are responsible for determining whether they have legal authorization to use trademark terms as keywords. However, it ruled Google had failed, in violation of article 1382 of the civil code, to put in place means to verify that advertisers on Google AdWords had authorizations to use protected trademarks, corporate names or domain names as keywords.

"The court said Google, as an advertising agency, committed business tort by not verifying that what advertisers put up is legal. It said Google had an 'affirmative obligation' to do this," said Joslove, explaining that "French law emphasizes rules of loyalty and good faith."

David Taylor, a Paris-based partner at Lovells LLP specializing in intellectual property, media, and technology, questioned the court's argument that Google should have taken all available technical measures to filter the requests generating the display of infringing hyperlinks made on AdWords.

"[It] places an unreasonable burden on Google as a platform and the burden should be more on the advertisers themselves. All the trademarks in question were blocked by Google at the beginning of the case," said Taylor, who noted that Google is a client of his.

Deceptive Advertising.

The TGI also ruled that Google violated France's 2004 Loi sur la Confiance dans l'Economie Nume´rique, No. 2004-575 (June 21, 2004)(LCEN) because AdWords commercial links were deceptive advertising in that they failed to make clear they were advertisements.

"The ambiguity and risk of confusion apparently stemmed from the fact that the commercial links were displayed in a similar manner to the natural search results, i.e., with the same color, same typography and font size," said Taylor. "Contrary to previous decisions against Google, [in the TGI ruling] the term `commercial links' was not considered to be misleading," he said.

`Moving Goalposts.'

Both Joslove and Taylor said this latest case adds to confusion over Google AdWords' status in France.

"France is far and away the most active European jurisdiction on these [Google AdWord] cases. There have been many suits against AdWords in France. Almost invariably Google loses, but never on the same legal grounds," said Joslove. "Google and other platform providers are having to deal with moving goalposts in France and this is unwanted as it can only create legal uncertainty," Taylor said.

Both attorneys said clarification will have to wait for a decision by the European Court of Justice relating to the Louis Vuitton decision.

Google made a final appeal of that case to the Cassation Court, France's highest court of appeal, which in turn, in May 2008, asked the Luxembourg-based European Court of Justice for definitive rulings to help make its decision (13 ECLR 798, 6/11/08).

Joslove said the Cassation Court asked the ECJ to rule on three questions, whether Google is an advertising company, whether the AdWords system infringes on trademarks, and whether Google is a hosting services provider and thus protected under the EU Electronic Commerce Directive.

"Under the directive, a hosting services provider is only liable for a violation after it has been notified of the violation," Joslove noted. However, Joslove warned, the ECJ might not have the last word. "It will depend on how the Court of Justice words its decision. The best scenario for Google is for the Court of Justice to find that [operations like Google] are hosting services providers," he said.

"But even then the French courts could say, 'fine, but Google is also an advertiser.' French courts are already finding that Google does a lot more than just hosting," Joslove said.

The ruling is available here in French at the Legalis site.