WebProNews

Tag: Lawsuits

  • eBay Targeted By Class Action Suit Over Automatic Bidding

    eBay Targeted By Class Action Suit Over Automatic Bidding

    eBay is the target of a new class action lawsuit over its automatic bidding (also referred to as “proxy bidding”) feature.

    The suit, led by a seller from Phoenix, alleges breach of contract on eBay’s part, as well as violations of California’s Unfair Competition Law and “tortious interference with the sellers’ prospective economic advantage”.

    eBay explains how automatic bidding works:

    1. When you place a bid, you enter the maximum amount you’re willing to pay for the item. The seller and other bidders don’t know your maximum bid.

    2. We’ll place bids on your behalf using the automatic bid increment amount, which is based on the current high bid. We’ll bid only as much as necessary to make sure that you remain the high bidder, or to meet the reserve price, up to your maximum amount.

    3. If another bidder places the same maximum bid or higher, we’ll notify you so you can place another bid. Your maximum bid is kept confidential until it is exceeded by another bidder.

    To illustrate this, eBay also shares the following example:

    1. The current bid for an item is $10.00. Tom is the high bidder, and has placed a maximum bid of $12.00 on the item. His maximum bid is kept confidential from other members.

    2. Laura views the item and places a maximum bid of $15.00. Laura becomes the high bidder.

    3. Tom’s bid is incremented to his maximum of $12.00. Laura’s bid is now $12.50.

    4. We send Tom an email that he has been outbid. If he doesn’t raise his maximum bid, Laura wins the item.

    Under a section on eBay’s help center labeled “The Fine Print,” eBay says, “In reserve price auctions, if your maximum bid is at least the reserve price, we’ll automatically increase your bid to meet the reserve, and bidding will continue from there.”

    Those who have further questions are directed to contact customer support.

    Here’s the complaint in its entirety (via AuctionBytes):

    Block v eBay Complaint

    The suit was filed on December 30 in the U.S. District Court for California’s Northern District.

  • BuySafe Sues Google, Claiming Patent Violation, Favoritism in Search & More

    Update: A Google spokesperson gave us the following statement: “We believe this suit is without merit, and will defend vigorously against it.”

    Google is being sued by a company called BuySafe, which basically claims Google is ripping off its business, hurting its ability to compete, violating its patent, and is giving special treatment to certain brands in search ranking.

    In the complaint (via Robin Wauters), BuySafe claims to be the “first company to address the concerns of online shoppers by providing third-party certification and transactional guarantees for Internet retailers.”

    “Because there is significant consumer demand for such certification and guarantees, numerous Internet retailers have purchased BuySafe’s services and offer BuySafe’s transactional guarantees without cost to the consumers who make purchases on their websites,” the complaint goes on to say. “It is well-known within the Internet retailer community that BuySafe’s transaction guarantee services are patented.”

    In October, Google launched a pilot program for Google Trusted Stores, providing a similar service.

    “The Google Trusted Store badge is awarded to e-commerce sites that demonstrate a track record of on-time shipping and excellent customer service,” said Tom Fallows, a Group Product Manager on Google’s Commerce team. “When visiting a qualifying store, shoppers can hover over the Google Trusted Store badge and see metrics on the store’s shipping and customer service performance.”

    Fallows happens to be a former executive for a BuySafe customer, which BuySafe alleges had “extensive discussions” with a few of BuySafe’s execs and learned “a great deal” about BuySafe’s business. Not only did Google recruit Fallows in 2010, but according to the complaint, Google has sought a joint venture or partnership with BuySafe as far back as 2006. The complaint alleges that “google exploited those discussions to learn about BuySafe’s business.”

    On top of all of that, the complaint says, Google had employees visit BuySafe.com on numerous occasions to investigate its business, methods and systems, claiming to have discovered a “tremdenous amount of visits to buysafe.com from Google IP addresses since at least 2009.

    BuySafe says the launch of Google’s Trusted Stores has already “drastically” slowed its annual growth rate. It also says:

    In or around October 2011, Google told at least two customers of BuySafe that participants in Google’s Trusted Stores program will have an advantage with respect to the order in which Google’s search results are displayed and promoted within Google search results. Indeed, that advantage is so significant that few, if any, online merchants will have any choice but to use Google’s Trusted Stores program. Upon information and belief, Google has made the same representations to other BuySafe customers and potential customers.

    BuySafe also says Google timed the launch of the Trusted Stores Pilot to “impede BuySafe’s effort to raise additional capital,” which it needs to expand its business.

    This, of course, comes at a time when Google is drawing the watchful government eye with regards to its competitive practices.

    We’ve reached out to Google for comment, and will update accordingly.

  • Facebook Hits Back At Timelines.com

    On Tuesday, Facebook began to roll out their Timeline feature to users. You remember the Timeline, right? The pretty new Profile interface that is supposed to “tell your life story” through Facebook? After announcing the reportedly groundbreaking new feature at the f8 conference, it has only been available to developers until now. The lucky folks of New Zealand are the first to experience Facebook’s next big thing.

    As they make this move, Facebook is also making another move in the realm of legal affairs. Facebook is countersuing Timelines.com over the use of the “Timelines” trademark.

    Back in September, Timelines.com sued Facebook over the used of the “Timeline” phrase. Having trademarks for “Timeline,” the historical scrapbooking site claimed that Facebook’s use of the word would effectively drown their service in customer confusion, leading to their inevitable demise. Facebook was then limited to releasing the Timeline feature to developers. That order has since expired.

    Any thoughts that this thing would result in a relatively quick settlement have been nixed with this countersuit. In the legal documents, Facebook continues their assertion that Facebook’s “Timeline” feature is not infringing on trademarks because the term is too generic. The countersuit also holds that Timelines.com should be stripped of their trademarks because they are “weak” trademarks.

    Facebook argues that “timeline” is a generic term that is used in a descriptive capacity. They proceed to list upwards of ten instances where “timeline” has been used generically in the past. Facebook says that a Google search of “timeline” reveals over 196 million results. They mention the use of “timeline” by various other sites – most importantly Twitter, whose tweet stream has been called the Twitter Timeline for years.

    Given the generic or at least merely descriptive nature of the term “timeline” when used to identify chronologies of events and related information (or tools for their creation), as well as the prior and widespread use of the term by third parties, Counterdefendant does not own exclusive rights in the term “timelines” as used in connection with timeline creation and collection services.

    Facebook asks that Timelines.com be stripped of their trademarks, claiming that they are weak trademarks and that Timelines.com has no right to the generic phrase:

    The TIMELINES Registrations have each been registered for less than five years and thus may be cancelled if the Court finds that the term “timelines” is either generic or merely descriptive of the services identified in the registrations.

    Pursuant to 15 U.S.C. § 1064, the Court should order the cancellation of the TIMELINES Registrations. Further, the Court should order Counterdefendant to expressly abandon its pending TIMELINES Application and enjoin Counterdefendant from seeking the registration of any mark incorporating the term “timelines” as used in connection with Counterdefendant’s timeline creation and collection services in the future.

    Facebook has a point about “timeline” being a fairly generic, descriptive term. Sites have used this word for years. But it’s kind of funny to hear this kind of argument from a company that has filed lawsuits over the words “face” and “book.”

    Meanwhile, Facebook says they will continue to roll out Timeline to more areas in the near future. On Timelines.com, the company says that they are “hoping that Facebook will realize that it made a mistake and that it needs to make things right.” It appears that this legal battle is not going to end that easily.

    Facebook counterclaim against Timelines

  • Apple: Amazon Is Guilty Of False Advertising Too

    Apple: Amazon Is Guilty Of False Advertising Too

    Apple has been involved in a beef with Amazon over the use of the term “App Store” since March of this year. Apple’s original trademark lawsuit claimed that they owned the term “App Store,” having applied for the trademark in 2008 after launching the store for their iPhone.

    Amazon battled back, saying that the term “App Store” was simply too generic to be trademarked – that it just describes a store that sells apps. The Amazon App Store for Android launched anyways, much to the chagrin of Apple. In July, a judge denied the injunction and allowed Amazon’s store to remain active.

    Now, Apple has amended the lawsuit to include charges of false advertising, particularly pertaining to the recent launch of Amazon’s new tablet, the Kindle Fire.

    Apple says that Amazon purposefully started “de-emphasizing” the “for Android” part of the “Amazon App Store for Android” in order to bank of the popularity of the Apple App Store.

    Beginning in or about September 2011 Amazon began altering its useof the infringing mark by omitting or de-emphasizing the use of the “for Android” suffix to the “Amazon Appstore” phrase. For example, when Amazon announced in late September 2011 that it would introduce a new hardware product named the Kindle Fire(the “Fire”), Amazon promoted the Fire’s ability to use Amazon’s mobile software download service but omitted the “for Android” phrase when using the APPSTORE mark.

    The brief even provides screenshots to back up their point. In this one, you can see the Kindle Fire being promoted as having the “Amazon Appstore.”

    If you look at the Kindle Fire’s page on Amazon currently, the word “Appstore” doesn’t appear – instead we have “Thousands of popular apps and games.”

    The updated filing also provides an example where Amazon used the “Appstore” phrase on a page selling gift cards, and according to Apple, hid away the “for Android” part in small letters.

    Amazon’s use is also likely to lessen the goodwill associated with Apple’s App Store service and Apple products designed to utilize Apple’s App Store service by associating Apple’s App Store service with the inferior qualities of Amazon’s service

    Amazon’s ongoing unlawful use of the APP STORE mark has irreparably harmed Apple, and Amazon’s threatened expansion and/or alteration of that unlawful use will increase the irreparable harm to Apple.

    Are you buying the false advertising claims? Let us know in the comments.

    App Store 2nd Amended Complaint

  • RIM Faces Lawsuit Over BlackBerry Outage

    Remember that 4 day outage that left BlackBerry owners all over the world without BlackBerry Messenger, email and in some cases, web browsing? Did you think that it was over when RIM apologized and threw free apps at the affected customers?

    Those of you that felt that the free apps weren’t enough to assuage some BlackBerry users have been proven correct, as a suit filed in Quebec is seeking class action status on behalf of “all residents in Canada who have a BlackBerry smartphone and who pay for a monthly data plan” but because of the outage, were unable to access their messages and emails.

    As a quick refresher, the BlackBerry outage began around October 10th, when reports emerged from parts of Europe, Africa and The Middle East that folks were having trouble with some of their services. In a couple of days, that outage had spread to North America. BBM, email, and web browsing were the three things most affected by the outage.

    As services were slowly being restored, co-CEO of RIM Mike Lazaridis took to YouTube and issued a video apology to BlackBerry customers. He said that they had failed on their goal to provide reliable communications and that they had let many people down.

    Shortly after that, RIM announced that they would be giving BlackBerry customers free apps in compensation for the outage. The free apps list included things like SIMS 3, Bejewled, and Speech Translator Pro. All in all, over $100 worth of apps have been offered for free.

    Many were skeptical that this display would be enough to satisfy disgruntled users – that some would want real monetary compensation for the multiple days that they were unable to use the BlackBerry network. This is exactly what this lawsuit is asking for.

    The Respondent has failed to take action to either directly compensate BlackBerry users or to indirectly compensate BlackBerry users by arranging for wireless service providers to refunds their customers and to take full responsibility for these damages

    When you think about it, compensation for 4 days of data services being down doesn’t really amount to much money. I guess for some people, it’s the principle of the thing.

    Time will tell if more suits like this are filed in other countries. Were you affected by the Blackberry outage? Do you feel like RIM did enough with the free apps and apologies? Let us know in the comments.

  • Should Linking Equal Publishing When It Comes To Defamatory Content?

    Let’s imagine this situation:

    A website, let’s call it TheScoop.org, publishes an article that, among other things, says that a high profile businessman named John Robertson is involved in an illegal drug ring. The article contains little to no actual evidence for this claim and relies on “some guy” as their source for the information. I’m sure we can all agree that the high profile businessman would at least have a case for defamation.

    What if the following week, another website called HotBuzz.com writes an article that refers to the article published on TheScoop.org via hyperlink inside the text. Would HotBuzz.com also be guilty of defamation?

    According to the Canadian Supreme Court, probably not.

    Should sites have the ability to link to possibly defamatory content without fear of retribution? How about the right to quote from it and print the exact same defamatory content? Let us know in the comments.

    The Court has just ruled that unless the hyperlink “presents content from the hyperlinked material in a way that actually repeats the defamatory content,” a hyperlink does not equal publication. In effect, as long as you refrain from restating the defamatory content on your own site, feel free to link away.

    This decision comes from a case, Crookes v. Newton, that basically runs parallel to the fictional scenario I described above. The defendant, Newton, published an article about a defamation dispute between local businessman Crookes and a former associate. Newton linked to the supposed defamatory content written by the former associate, and Crookes sued Newton when he refused to take down the links.

    Crookes’ argument was that the hyperlinks created by Newton connected to the defamatory content, and by publishing the links, he was in turn publishing the defamatory content himself.

    The majority of the panelists of the Court held that hyperlinks are basically analogous to footnotes. Even though hyperlinks make the referenced information more easily accessed than a traditional footnote can, it is the same concept.

    Here’s what they had to say about the fact that hyperlinks do not equal publication –

    Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”. Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content. They both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral. Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

    A hyperlink, by itself, should never be seen as “publication” of the content to which it refers. When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

    According to the court, the traditional burden of proof in a defamation case simply involves showing how a defendant conveyed defamatory information to a third party. Usually, the manner in which the defendant conveys the defamatory content to a third party is irrelevant. If this traditional understanding is applied to the Newton v. Crookes case, then Newton is screwed. He undoubtedly became a delivery mechanism to a third party when he hyperlinked to the content.

    The majority of the Court explained how this traditional understanding can’t be applied to hyperlinks –

    Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

    Chalk one up to internet freedom. It appears that the Canadian Supreme Court understands the devastating effect “hyperlink liability” would have on the internet.

    But let’s take a closer look at the last part of the majority decision – Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

    Another Court panelist expounded on that scenario –

    However, a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to. A mere general reference to a website is not enough to find publication.

    Does this leave the door open for a lot of blurred lines and subjective judgment?

    Going back to our fictional scenario, we can imagine that the following link would be alright in the eyes of the Court:

    …here’s TheScoop.org’s take on Robertson, if you are interested.

    And we can surmise that this would be a no-no:

    …and since John Robertson is a big time drug dealer, his opinions would be biased.

    But what if we change it slightly, to this:

    …here’s TheScoop.org’s awesome indictment of Robertson, for your reading pleasure.

    Would that constitute “adoption and endorsement” of the linked content?

    The Court specifically says that regurgitating the possibly defamatory content, even after sourcing it with a hyperlink, would constitute defamation. So this wouldn’t fly, according to this Canadian Court’s ruling:

    I’m sure you all remember what TheScoop.org said about John Robertson, that he’s the leader of an underground drug ring and everything.

    The big question out of all of this is what do you think constitutes publication when it comes to defamation online?

    I have a feeling that most of us will agree that linking to an article without republishing any of the defamatory content does not equal defamation. But if an article links to defamatory content and reprints the same content, should that then be considered defamation?

    In the U.S., hyperlinking is not considered publication. Do you think that citing an article should ever be considered publication of the content? Let us know what you think in the comments.

    [Image Courtesy m.photography (Flickr), Hat Tip to Ars Technica.]

  • YouTube And Viacom: Viacom Refuses to Accept the Loss

    Apparently, one of the main rules of corporate level lawsuits is if you at first don’t get your way, try, try again until you find a judge that agrees with your constant complaining. Just ask Viacom and YouTube, or, well, just Viacom if you want to be specific, because YouTube is not the catalyst for bringing this story back into the public’s eye.

    In case you’ve forgotten, when YouTube started its skyrocket ascent, Viacom was displeased with their content being available — for free — on YouTube’s servers, and so, they filed suit to have their content removed. That is an understandable, if not archaic position, one that becomes even more obtuse when you consider YouTube does indeed have a sufficient advertising model in place.

    Because, let’s face it, Viacom’s position is all about getting paid when people view their content.

    Digression aside, in 2010, a judge ruled that YouTube was given “safe harbor” protection, which essentially means as long as YouTube removes the offending content, it’s not YouTube’s fault if one of their users is responsible for uploading it, which makes perfect sense in the rational world. Unfortunately, that’s not the world Viacom resides in. No, being a corporate juggernaut, Viacom’s concern is for one thing and one thing only: profit.

    Because of that, Viacom is working their asses off in an effort to find an appeals judge who agrees with them, and so, here we go again with the appeals process, one that says, “please, judge, make YouTube liable so we can have some of their money.” A snippet from PaidContent.org details Viacom’s position quite nicely:

    What do Viacom and the other plaintiffs want?

    Viacom wants the panel to declare that the judge made an error when he stated that the safe harbor protection applies to YouTube. According to lawyers from Jenner & Block, YouTube forfeited its right to the safe harbor because it did not make an honest effort to stop the clips from being uploaded and instead focused on growing its online video business at the expense of content owners.

    Viacom is also hoping that the influential Second Circuit will provide a precedent that curtails the scope of safe harbors in general. It believes that the 1998 law has become too expansive…

    Apparently, Viacom doesn’t know, or doesn’t care about the amount of content that’s uploaded to YouTube on daily basis. Or maybe Viacom thinks YouTube should be capable of seamlessly inspecting every aspect of the 48 hours worth of video that’s uploaded on a minute-by-minute basis, instead of reacting to it after a complaint has been filed.

    Or, maybe Viacom just wants some of that YouTube money.

    It’s funny, YouTube is a perfectly acceptable platform for Viacom to take advantage of when they release movies trailers, nor do they seem to mind when Internet properties like ClevverTV exploit Viacom properties for pageviews, like so:


    The reason I used both of those trailers is because they both belong to Paramount Pictures, one of Viacom’s stronger properties. However, both of these trailers are featured on ClevverTV’s YouTube channel, meaning they get the page views and not Viacom or Paramount.

    For what it’s worth, Clevver is a property that aims to keep teens hip and informed, and unless they are owned by Viacom, a distinct possibility, but it’s not indicated anywhere on Clevver’s about pages, Viacom’s stance appears hypocritical.

    Apparently, it’s fine to promote their products in the form of trailers and television previews, just don’t upload video from properties Viacom makes money from. It’s also OK if the Clevver brand establishes its popularity via Viacom-owned trailers and other promotional content, however, if they upload a non-promotional clip from MTV’s Teen Wolf, then Viacom wants YouTube to be liable.

    Does that make even make sense? To Viacom’s legal team, apparently so. Is it YouTube’s fault if these videos exist, even though no one has apparently filed the appropriate infringement notice?


    Perhaps Viacom should be more concerned with policing their properties instead of relying on others to do it for them. If they filed the proper infringement paperwork, it’s safe to say YouTube would remove these offending clips, but instead of doing that, Viacom is once again going the litigious route.

  • Winklevoss Twins Continue Losing Streak

    In people crying warm, salty tears into piles of money news, it looks like Cameron and Tyler Winklevoss are going to have to hand over $13 million in legal fees to the law firm Quinn Emanuel Urquhart & Sullivan (QEUS).

    Over the last couple of years, the Winklevii and their never say die attitude pursued Facebook and Mark Zuckerberg until multiple appellate bodies told them enough was enough.

    After accepting a $65 million settlement from their claim that Zuckerberg stole the whole Facebook idea out from under them, the zombie litigators reopened the case in January. They sought more money, claiming that they were misled by Facebook’s own valuations of the company.

    In April, an appellate judge ruled that the Winklevii must accept the original settlement, stating that “at some point, litigation must come to an end.” Does not compute, they said, and filed another motion to have a larger group of appellate judges hear their argument. That was also denied.

    Then they hinted that they would file with the Supreme Court of the United States, but later backed off that idea.

    While all this was going on, they were also going after the QEUS law firm. This is the firm that represented them in the original case against Zuckerberg – you know, the one in The Social Network. The Winklevii claimed malpractice, saying that the law firm violated confidentiality when they revealed the amount of the original settlement in “marketing literature.”

    Apparently, that suit is over as well. The Hollywood Reporter says that an appellate court in New York has refused to hear any further arguments in the matter. They will have to pay QEUS the $13 million in legal fees.

    This ruling was made a while ago by an arbitration panel and then upheld by a NY Supreme Court judge before reaching this stage.

    Let’s just hope that the twins made enough shilling pistachios to cover the fees.

  • RealNetworks Plays The Role Of Internet Bully

    While researching this topic, something occurred to me: who uses RealPlayer anymore to begin with? And so, after a quick jaunt over to RealNetworks Twitter page, I noticed they only have about 3700 followers. By comparison, Winamp, a RealPlayer competitor from those Internet days of yore, has over 7000.

    Apparently, Winamp is still whipping the llama’s ass, if the llama in question is the oft-maligned RealPlayer.

    As you well know, these are small amounts in the grand scheme of Twitter, and it should clue you into just how popular the service is. Granted, they’ve expanded from the days of being known as the streaming video player that brought the word “buffering” to popularity, but even with the new services, they can’t escape their past, something Oh Internet expands on quite nicely.

    Now, as if to add to their sterling reputation, RealNetworks is suing a Dutch webmaster because he had the audacity to link to a free alternative to the RealPlayer, called Real Alternative. The webmaster in question runs a software downloads site, but instead of hosting these files, he simply links to places they can be downloaded.

    Naturally, RealNetworks’ complaint has to do with trademarks and copyrights, but the question is, if they are truly worried about that, why not go after the developers of the Real Alternative instead of some webmaster who doesn’t have the same resources to defend himself?

    Obviously, the answer lies in the question.

    Instead of going after companies like CNet’s Download.com, a site that apparently hosts the program in question and Google, who has more links for “Real Alternative” than the webmaster being sued, undoubtedly, RealNetworks goes after the little guy, much like a bully who picks on the weaker of the bunch.

    Apparently, going after the little guy is safer than getting your collective ass handed to you by Google’s legal team. That being said, we’re throwing down the gauntlet at WebProNews. This is us linking to a site that links to Real Alternative downloads, essentially the same thing the Dutch webmaster did. This should also give some insight into the lead image, which is defiance in the face of RealNetworks’ bullying strategy.

    RealNetworks’ problem is with the developers of Real Alternative, not the people who link to the download. Considering the fact that RealNetworks have been around since 1995, you’d think they’d have a little bit more Internet/business savvy than…

    Sorry, that last part of the article hasn’t downloaded yet because of buffering issues.

  • Teens Post Sexy Pics On Myspace, Judge Says It’s OK

    In the last year or so, we’ve seen multiple instances of minors being charged with crimes for sexting. Apparently, to some prosecutors, these racy pics constitute child pornography – even if the nude photos that the minors posses are photos of their own naked bodies.

    But what about sexually suggestive photos posted on social media sites? Can schools punish teens for things they post in their own time?

    A U.S. District Judge says no, as it violates a teen’s first amendment rights.

    Back in 2009, two female students at a Fort Wayne Indiana high school were disciplined after photos emerged that they had posted on MySpace. The girls, aged 15 and 16, took photos at a sleepover that displayed “sexually suggestive poses with various props.” For instance, one photo saw the girls dressed in lingerie, pretending to lick penis-shaped lollipops.

    The girls put these photos on MySpace, and according to the AP, their privacy settings only allowed friends to see them. Somehow, a parent at the school came across the photos and brought them to the district superintendent. The parent said that the photos were causing “divisiveness” among the school volleyball team, of which the girls were members.

    Apparently, the photos also made their way around the school.

    Here is the punishment that followed: The principal suspended the two girls from the volleyball team, the choir and the cheerleading team. He also ordered the girls to complete three counseling sessions and made them apologize to an all-male coaching board.

    With the help of the Indiana ACLU, the two teens filed a lawsuit against the school district in October of 2009.

    And now, the District Judge has ruled that the school violated the girls’ first amendment rights by disciplining them for the racy photos. From the ACLU of Indiana –

    The American Civil Liberties Union of Indiana represented the students in their case against the school corporation, arguing that the conduct of the students had no substantial disruptive effect on the school. The court concluded that the discipline violated the First Amendment rights of free speech. The court also enjoined application of the school policy under which the students could be punished because they brought “discredit or dishonor” upon themselves or the school. The court said the policy was vague and overbroad.

    The Judge ruled that the photos could not be ruled “obscene.” He said they were “silly” but were intended to be humorous.

    If the girls would’ve taken nude photos, it might have been an entirely dfferent situation. For one, the pics probably wouldn’t have stayed on the site for very long, as MySpace like other social sites ban nudity.

    Would the nude pics have been considered free speech in the context of the school code? It’s possible that criminal charges could have stemmed from nudes, just like the sexting cases. But could the school take disciplinary action over actions done off school property on the students’ own time?

    According to the AP,

    The U.S. Supreme Court has ruled that students can be disciplined for activities that happen outside of school, so long as the school can prove the activities were disruptive or posed a danger and that it was foreseeable the activities would find their way to campus.

    So I guess the answer is yes, they could be disciplined. It looks like the key part of the Indiana case was the term “disruptive.” Apparently, lingerie pics with candy penises aren’t thought of as disruptive, but nude pics probably would be.

    The question remains, however, where is the line drawn? What constitutes “obscene” and “disruptive?” What do you think? Let us know in the comments.

  • Winklevoss Twins Give Up, Will Not File With Supreme Court

    Well, folks, our national nightmare may be over.

    Cameron and Tyler Winklevoss, aka The Winkelvii, have decided to take the money and run. “After careful consideration,” they said in a filing yesterday, “they have determined that they will not file a petition” with the Supreme Court.

    And so the super-wealthy will now stop pestering the super-wealthy in order to try and become more super-wealthy. Sounds good.

    This news comes as a little bit of a surprise, as the Winklevii had proven up until now that they were willing to take their case in front of anyone that would listen. Back in January of this year, they officially revived the lawsuit against Facebook’s Mark Zuckerberg. They claimed that the settlement that was agreed upon previously ($20 million in cash and $45 million in stock) was not good enough. They said that the settlement was invalid because Zuckerberg had failed to disclose higher valuations of his company.

    They took their case to the 9th U.S. Circuit Court of Appeals, who decided that the original settlement must be upheld. The chief justice in the case said at the time that “at some point, litigation must come to an end; the point has now been reached.” We thought that was the end.

    But oh how naive we were to the Winklevii resolve! Unsatisfied with the Court of Appeals’ ruling, they demanded that the same court rehear their plea, this time with the full court present instead of the three-judge panel used to make the first ruling.

    And the court again rejected their request.

    At that point, the Winklevii announced that they would be filing a petition of certiorari with the highest court in the land. And we all began to speculate with abject horror whether or not the Supreme Court would choose to hear the case.

    But it looks like we may never get to see the beautiful bronzed Olympians in front of the court. Facebook’s Andrew Noyes had this to say about the Winklevii’s decision:

    “We’ve considered this case closed for a long time, and we’re pleased to see the other party now agrees.”

    He also retweeted this –

    @anoyes
    Andrew Noyes    Lol RT @omarg: Winklevoss twins drop their Facebook lawsuit, go back to pitiable, loser lives of being attractive, athletic millionaires. 12 hours ago via TweetDeck · powered by @socialditto

    Unfortunately, the Winklevii have yet to tweet about their decision. It’s a shame, as everyone around here thoroughly enjoyed their excellent use of the hashtag.

  • Tobey Maguire, Poker Star, Sued Over Illegal Game

    Tobey Maguire, Poker Star, Sued Over Illegal Game

    It seems as though there may be two morals to this story: First, when you play for high stakes, make sure you know where your play-partners got their “stakes.” And secondly, just don’t play poker with Tobey Maguire – he’s a shark.

    According to RadarOnline, Maguire is just one of many Hollywood elite being sued in connection with a extremely high-stakes underground poker ring.

    According to the court filings, the games were part of what they call “clandestine Texas Hold’em poker games” that were held at swanky locales like the Four Seasons in L.A., the Beverly Hills Hotel and occasionally at the private residences of the players. The lawsuit also says that they used “professional-type” poker tables and hired dealers.” I would sure hope so, as a high-stakes game on a foldout table with two decks you have to shuffle yourself seems like it would suck.

    Private poker games for money are technically illegal in California, but it is rarely a prosecuted offense. Nobody involved is under criminal investigation as a result of the games.

    @AndrewBreitbart
    AndrewBreitbart    Glad to hear Damon, Affleck & Dicaprio poker ring proceeds going to economic justice & environmental causes, in addition to taxable profits. 3 hours ago via Mobile Web · powered by @socialditto

    @adamcbest
    Adam Cowling Best    Tobey Maguire won a million a month on underground poker. Games made Teddy KGB’s place look like daycare. http://bit.ly/jhLhZE 1 hour ago via Visibli · powered by @socialditto

    @mrobin032009
    Monika Melsha    They are killing off Spiderman…he must have been spooked 😉 “@GRLitman: Poker, a ponzi scheme, and Tobey Maguire. http://t.co/C0CCtMC“ 49 minutes ago via Twitter for Android · powered by @socialditto

    So at the heart of the civil suit against Maguire is one of the game’s players, Ruderman Capital CEO Brad Ruderman. Ruderman was recently convicted on counts of both wire fraud and investment adviser fraud for organizing a Ponzi scheme that swindled millions out of his investors. Apparently, the FBI investigation into Ruderman found that he lost over $25 million of investor funds during these poker games. So not only is he a fraud, but he apparently sucks at cards. Swell.

    The lawsuit alleges that Tobey Maguire received just over $300,000 of investor money as winnings from Ruderman. It’s unclear whether Maguire or any of the other players knew anything about Ruderman’s finances.

    From the lawsuit –

    The trustee is informed and believes that the Defendant (Maguire) did not have any contractual or other relationship with the Debtor, that the Defendant was not a member of, investor in, or creditor of, the Debtor, and that the Defendant improperly received funds of the Debtor. The trustee is further informed and believes that the Defendant received funds from the Debtor as payments for the personal gambling debts of Ruderman. The payment of the personal gambling debts of Ruderman was not an authorized or legal use of the fund of the Debtor, and was paid from funds of investors in, and members of, the Debtor.

    Now the investors who lost their money want some of it back. And they are going after Maguire.

    Here’s the other big news from all this – Maguire wasn’t the only A-lister involved in these games that had “armed guards in bulletproof vests” manning the doors. Matt Damon, Ben Affleck and Leonardo DiCaprio also played in the $100,000 buy-in hold’em games.

    Forget all the civil suit stuff, I’m sure you want to know how the various stars played poker. Were they any good?

    Apparently Tobey Maguire is excellent. According to Radar’s sources, he won around $1 million a month for a period of a couple years. Players were also impressed with Ben Affleck’s poker talent. But Damon and DiCaprio? Not so much. Apparently DiCaprio was a tightwad as well. Never would’ve guessed that.

    It’s good to know that controversy can still come to good ol’ fashioned bricks and mortar poker games, not just all the online poker. $100,000 buy in? Try that on Full Tilt.

    [Image Courtesy]

  • Apple iCloud Sued by iCloud Communications

    A week ago today Apple’s iCloud was unveiled at their Worldwide Developers Conference which, according to Steve Jobs, will serve as the “center of your digital life.” Before it was even revealed at WWDC, the cloud service had already drawn an antitrust complaint. And now you can add a trademark lawsuit to the list.

    iCloud Communications is a VoIP company based in Phoenix, AZ. According to their website, they have provided local and long-distance telephone service since 1985. In their court filing, however, they list 2005 as their date of origin –

    iCloud Communications was formed in 2005 and is a provider of, among other “cloud computing” products and services, computer telephony (telecommunication)hardware and software for the electronic transmission of email, text, audio, video, photos,information, data, video conferencing, virtual video conferencing and other content via the internet and wireless data networks.

    iCloud Communication says in their suit that they have spent “tens of thousands” of dollars annually on advertising to promote the marks iCloud, and iCloud Communication. They allege that by launching their cloud services with the same name and blitzing the media with advertising and coverage of their iCloud, Apple has done damage to iCloud Communications. They say that the “general public have quickly come to associate the mark ‘iCloud’ with Apple, rather than iCloud Communications.

    They state that Apple’s continued use of “iCloud” has and will continue to result in irreparable harm –


    Apple’s announcement of and the launch of its advertising campaign for its iCloud service have so thoroughly swamped the reputation of iCloud Communications and the goodwill it had built up over the years in the iCloud Marks that is likely to cause—and has actually cause—confusion among consumers of cloud computing services and members of the general public as to the source of the parties’ goods and services. In fact, iCloud Communications has received numerous inquiries from both existing and prospective customers regarding whether it is now owned or affiliated with Apple

    Additionally, it is likely that consumers will be given the misimpression that Apple, not iCloud Communications, is the source of the services offered under the iCloud Marks and/or that iCloud Communications is an unauthorized user of and is infringing upon Apple’s trademark rights. Such misimpressions will damage iCloud Communications’ reputation.

    The loss of and damage to the goodwill in the iCloud Marks, the damage to iCloud Communication’s reputation and confusion among consumers is likely to continue—and, in fact, intensify—unless Apple is enjoined from its use of the mark “iCloud.”

    iCloud Communications doesn’t have a registered trademark for the term “iCloud” filed with the U.S. Patent and Trademark Office. If you search the USPTO database, you’ll find that 11 of the 13 claims to the term “iCloud” are in fact filed by Apple. One is filed by an individual and the other by a Swedish corporation.

    The suit addresses this Swedish company, saying that the company’s continued use of iCloud in their services once Apple purchased their trademark invalidates it altogether –

    Apple also went through the motions of purchasing a U. S. trademark registration for “iCloud,” Reg. No. 3,744,821, from a Swedish consulting company whose use of the mark post-dates that of iCloud Communications by two years. Moreover, upon information and belief, the Swedish company has continued offering the same services to the same customers under a similar mark. Thus, Apple’s acquisition of the mark iCloud appears to have been “in gross” and is, therefore, invalid

    iCloud Communications claims common law rights to the trademark within the state of Arizona. They maintain that since they’ve established the name within their geographic area, they lay claim to its use. They say that Apple is infringing upon their established business.

    This isn’t the first suit that has sprung up out due to the names of Apple products, and it will probably not be the last. What do you think will happen? Will Apple settle?

    iCloud Complaint

  • Mark Zuckerberg is a Better Writer Than Paul Ceglia

    In the case of the guy who says he owns 84% of Facebook, recent developments have come in the form of a motion for expedited discovery. Last week we told you about the “Declaration of Mark Elliot Zuckerberg in Support of Defendant’s Motion for Expedited Discovery,” where the Facebook CEO once again indicated that he did not sign the purported contracts with Paul Ceglia, who claims to own a substantial part of the social network.

    The crux of Ceglia’s argument revolves around alleged emails sent by Zuckerberg that entitle him to a large chunk of the company. These emails surfaced in April, many months after Ceglia initially came forward with the claim.

    Naturally, the position of Zuckerberg is that the emails aren’t authentic, and that they were faked by Ceglia. As part of the recent motion for expedited discovery, a linguist has filed a supporting declaration that claims the questioned emails were not written by Mark Zuckerberg, and he can prove it with grammar and syntax.

    Professor Emeritus and former Linguistics Department Chair at California State University Fresno Gerald McMenamin analyzed the questioned emails provided by Ceglia with actual email writings by Mark Zuckerberg. He compared 11 different “style markers,” various instances of punctuation, spelling and syntax, and came to the conclusion that “it is probable that Mr. Zuckerberg is not the author of the question writings.”

    It is important to note that no single marker of these nine differing features is idiosyncratic to these writers. However, these nine contrasting markers constitute a unique set of markers. It would be improbable to find a single writer who simultaneously demonstrates both the questioned set and the known set.

    Based on the contrastingly-distinct style markers which the questioned excerpts and the known-Zuckerberg writings demonstrate, as well as the presence of no more than two minimally-significant similarities between [the two], I conclude that the known writings of Mr. Zuckerberg demonstrate a sufficiently significant set of differences vis-a-vis the questioned writings to constitute evidence that Mr. Zuckerberg is not the author of the excerpted question references.

    So this leaves a couple of options. First, if the emails are actually from Zuckerberg, it would mean that he is a wildly inconsistent writer. Second, Paul Ceglia, when crafting the fake emails, could have thought that specific idiosyncrasies would make them appear more authentic (incredibly incorrect, if this is the case). Lastly, Paul Ceglia is just a bad writer.

    I say this, because the specific differences all have actual Zuckerberg writing properly, with carefully chosen punctuation and word usage. Questionable Zuckerberg writes more haphazardly.

    First, the questioned emails have poor apostrophe usage.  For example, they leave out contraction apostrophes in words like “doesnt.”  Possessive apostrophes are also missing, as in words like “parents” when used possessively.  The questioned emails also say “sites” when using it to mean both “site is” and that the site is possessive.  In the known Zuckerberg emails, he properly places all apostrophes.

    The questioned emails also have multiple instances of run-on sentences, while the known Zuckerberg writings do not.  The questioned emails also fail to use commas to separate if/then clauses, while the known emails properly use this comma 85% of the time.  When it comes to spelling and capitalization, the questioned emails say “back end,” “internet” and “can not.”  The known Zuckerberg emails say “backend,” “Internet” and “cannot.”

    Other differences include sentence opening words – the questioned emails use a completely different and more formal set like “Further,” “Additionally” and “Thus.”  Zuck’s real emails begin sentences with “Okay” and “Anyhow.”

    Among all the differences, there are two similarities, however. Both sets of emails use “Thanks!” as a concluding phrase. Both also begin various sentences with “Sorry.”

    Since Ceglia’s entire lawsuit is contingent upon the validity of these emails, this could be a huge blow to it. Putting the actual case aside, this is fun because the word nerd in me just loves a language breakdown and analysis. Plus, it’s interesting to know that Zuckerberg is a very formal email writer. Whoever wrote those disputed emails is not.

  • Hurt Locker BitTorrent Lawsuit Breaks Record

    Just two weeks ago, a lawsuit targeting the Sylvester Stallone action flick The Expendables set the record for largest file-sharing suit ever. It targeted roughly 23,000 BitTorrent users who downloaded the movie between February and March of this year. That record has already been broken.

    Last year Voltage Pictures, makers of the Academy-award-winning The Hurt Locker, joined up with U.S. Copyright Group to sue 5,000 file sharers. Now, according to documents obtained by TorrentFreak, they have expanded the scope of their lawsuit to now include 24,583 BitTorrent users.

    The modus operandi, per say, of the U.S. Copyright Group involves targeting a large number of said “infringers,” hitting them with enormous punitive figures, and offering them smaller settlements. Hopefully some bite.

    The Expendables case was a substantial case not only for the large volume of accused persons, but because of the ruling the judge made regarding the subpoena of ISPs. Just a week before The Expendables case, a judge ruled in another case that IP addresses do not equal people. A Canadian porn producer wanted the right to subpoena ISPs for the names of the IP address they had procured while digging for “copyright infringers.” THe judge denied this request.

    But the judge in The Expendables case made the exact opposite ruling, allowing U.S. Copyright group to move forward with the ISP subpoenas.

    It seems that not everyone is on the same page.

    A little more on those documents:

    In a status report obtained by TorrentFreak, Voltage Pictures lawyers give the U.S. District Court of Columbia an overview of the massive list of alleged BitTorrent downloaders they filed complaints against. This report reveals that most defendants are subscribers of Comcast (10,532), followed by Verizon (5,239), Charter (2,699) and Time Warner (1,750).

    The report also provides details on the agreements the lawyers have struck with various ISPs regarding the release of subscribers’ personal information. There is currently no agreement with Comcast, while Charter has promised to look up 150 IP-addresses a month and Verizon 100 a month for all ongoing BitTorrent lawsuits.

    100 a month? So this could drag on for eternity, then?

    Who knows? It is rarely the goal of the plaintiffs in these cases to actually pull a BitTorrent user into court. But small settlements that are paid to call off the litigation dogs can add up. As TorrentFreak points out, if just 10,000 of the 25,000 defendants settle for $2,000 or so, that could bring in a settlement that totals more than The Hurt Locker grossed at the U.S. box office.

  • Winklevoss Twins to File with Supreme Court

    It looks like Cameron and Tyler Winklevoss plan to take their case to the highest power in the land. In a press release, the Winklevii announced that they plan to file a Petition for Certiorari with the United States Supreme Court.

    It might be worth it to take a brief look at how the famous twins got to this point – submitting a writ to the top court in the country.

    Zombie litigators Cameron and Tyler Winklevoss decided in January of this year that their agreed-upon settlement of $65 million dollars with Mark Zuckerberg and Facebook was inadequate. The settlement, consisting of $20 million in cash and $45 in stock, was awarded to the twins based on their claim that Zuckerberg stole the idea of Facebook from them while they were all students at Harvard University. I know, I know – you’ve seen the movie.

    So the Winklevii say that the $65 million settlement was based on fraudulent valuations of Facebook’s value, and that the settlement should be much more. They asked the Ninth Circuit Court of Appeals in San Fransisco to release them from the settlement so that they could attempt to extract more from Zuckerberg.

    In April, that appeals court reached the decision that the Winklevii must honor the agreement and cannot pursue the matter further. The judge in the case said in his statement that “at some point, litigation must come to an end.” Upon hearing this news, the Winklevii decided to take their $65 million and be happy pursue further litigation.

    Just a week later, the Winklevii asked the same Federal Appeals Court to rehear their claim. Apparently, the first decision was made by a panel of only 3 judges. The Winklevii requested that their case be heard by the entire 11 judge panel.

    After that request, Tyler Winklevoss created some interesting hashtags on Twitter and a Taiwanese animation company blew the twins out of their canoe with canon fire from Zuckerberg’s warship.

    Yesterday afternoon, the court of appeals rejected their request to rehear the case with a full panel.

    Well, today it seems as though the Winklevii are going to attempt to take their case to the last appeals court they have left – the Supreme Court. They say they will file a Petition of Certiorari, which is basically a request for the Supreme Court to review a lower court’s judgment.

    From the statement:

    The first is the Court’s holding that a party who is defrauded into entering into a settlement agreement cannot challenge the contract on the ground of fraud. Federal and state courts have long held that a settlement founded on fraud must be set aside. The Court’s decision conflicts with that body of precedent.

    The second issue is the Court’s holding that a routine agreement to hold statements made in a mediation confidential bars proof that Facebook committed securities fraud in the mediation. Numerous federal precedents, and the text of the 1934 Securities Exchange Act, hold that an agreement to directly or indirectly waive rights under federal antifraud provisions of the securities laws is void. The Panel’s decision conflicts with that body of precedent.”

    Of course the Supreme Court doesn’t have to reopen the case as they have autonomy regarding what cases they choose to hear. But I have a feeling that this Winklevoss thing isn’t quite over. And like a member of the undead that still retains part of its melon, the Winklevii are not at the end of the road. They’ve got one more try. And I know we are all hoping that they can finally get their (430th) day in court.

    [Image: Shaun of the Dead]

  • LimeWire and RIAA Settle for $105 Million

    Late last night, the legal battles between LimeWire and the Recording Industry Association of America have reportedly ended. The P2P client will pay record labels $105 million in damages stemming from illegal file sharing.

    This out-of-court settlement with 13 different record labels comes just days after the trial got underway. The RIAA has been seeking to take LimeWire down since the mid 2000’s. They have always claimed that the LimeWire client, in allowing users to download digital music, has perpetrated “massive scale infringement.”

    Last May Federal District Court Judge Kimba Wood found LimeWire and its CEO Mark Gorton guilty of copyright infringment. In the fall, the RIAA won and injunction against LimeWire that forced the sharing service to shut ‘er down. In December 2010, LimeWire went down for good.

    The $105 million settlement that was reached last night is a far cry from the original damages claimed by the RIAA. In a mind-boggling claim, the RIAA said that damages caused by LimeWire could total $75 trillion. Let’s put that in long form, just to remember what that looks like:

    $75,000,000,000,000.

    Judge Kimba Wood scoffed at that outrageously comical figure, saying:

    “If plaintiffs were able to pursue a statutory damage theory predicated on the number of direct infringers per work, defendants’ damages could reach into the trillions…As defendants note, plaintiffs are suggesting an award that is ‘more money than the entire music recording industry has made since Edison’s invention of the phonograph in 1877.’”

    The figure was later dropped to just over $1 billion in damages. This settlement is obviously significantly lower than either of those figures.

    From RIAA Chairman and CEO Mitch Bainwol:

    We are pleased to have reached a large monetary settlement following the court’s finding that both LimeWire and its founder Mark Gorton personally liable for copyright infringement. As the court heard during the last two weeks, LimeWire wreaked enormous damage on the music community, helping contribute to thousands of lost jobs and fewer opportunities for aspiring artists.

    The significant settlement underscores the Supreme Court’s unanimous ruling in the Grokster case — designing and operating services to profit from the theft of the world’s greatest music comes with a stiff price. The resolution of this case is another milestone in the continuing evolution of online music to a legitimate marketplace that appropriately rewards creators. This hard fought victory is reason for celebration by the entire music community, its fans and the legal services that play by the rules.

    Mark Gorton said that he was “pleased that this case has concluded,” as quoted in The Guardian.

    Last week, just as the LimeWire / RIAA trial was getting underway, CNET and parent company CBS were sued by “eccentric billionaire” Alki David for providing LimeWire and other P2P clients as downloads. The suit claims that in providing the software, CNET is complicit in illegal file sharing.

    Although the service went offline in December of last year, I feel this signals actual closure to the saga. RIP, LimeWire.

  • Huge BitTorrent Lawsuit Targets 23,000 “Expendables” Downloaders

    United States Federal Judges are sending mixed messages when it comes to the legality of forcing ISPs to fork over customer information.

    Days after one District Court Judge rules against the right to subpoena ISPs, another has granted a motion allowing copyright infringement litigators the power to do just that.

    C’mon guys, you’ve gotta have a team meeting or something.

    U.S. Copyright group has won a motion to subpoena ISPs to find out the identities of over 23,000 people who downloaded the dream-team-of-ass-kicking action movie The Expendables. The subpoenas would ask Alltel, AT&T, Atlantic, BellSouth, Comcast, Insight, Road Runner, Sprint, Verizon and more to turn over the identities of specific IP addresses attached to P2P sharers in February and March of this year. Straight from the ruling itself:

    It is hereby ORDERED that Plaintiff’s Motion for Leave to Take Discovery Prior to the Rule 26(f) Conference is GRANTED. ORDERED that Plaintiff is allowed to serve immediate discovery on the internet service providers (ISPs) listed in Exhibit C to Plaintiff’s Motion to obtain the identity of each Doe Defendant, including those Doe Defendants for which Plaintiff has already identified an Internet Protocol (IP) address and those Doe Defendants for which Plaintiff identifies IP addresses during the course of this litigation, by serving a Rule 45 subpoena that seeks information sufficient to identify each Defendant, including name, current (and permanent) addresses, telephone numbers, email addresses, and Media Access Control addresses, and the ISPs shall respond to such subpoenas.

    U.S. Copyright group has become quite famous recently for their suits on behalf of independent film makers. They monitor BitTorrent use of specific films, take down IP addresses then sue to subpoena ISPs to release information on the customers tied to those IP addresses. Many times they will offer settlements of $1,000 to $3,000 to those involved in P2P sharing of the films.

    So this ruling is an obvious victory for copyright infringement litigators. But this ruling is not the only one this week that pertains to ISP subpoenas. Earlier, U.S. District Court Judge Harold Baker denied a similar request, labeling it a “fishing expedition.”

    This time it was VPR, a Canadian porn producer that was targeting 1017 people. Bakers ruling explained that knowing the IP address where downloading is occurring is not the same thing as knowing the person responsible for the downloading.

    Since often times people steal wi-fi from their neighbors and multiple people in households use the same IP, it is not a particularly solid method to prove guilt.

    That ruling is in direct conflict with today’s Expendables ruling. It is clear that two federal judges looked at the exact same issue and came to completely different conclusions. I wonder if appeals tactics could already site precedence that IP addresses do not equal people.

    This latest ruling OK’s the biggest torrent case ever. The second largest targets 15,500 downloaders of various pornos. The judge in that case has yet to rule on the subpoena issue.

    Hat tip to Wired.

  • Who is Responsible for Illegal P2P Downloading?

    Who is Responsible for Illegal P2P Downloading?

    Don’t hate the player, don’t hate the game – hate the messenger?

    In the latest round of who-can-we-sue, disgruntled “victims” of file sharing have taken aim at CBS’s CNET, specifically their software downloading site cnet.download.com.

    Entrepreneur, FilmOn Founder and “eccentric billionaire” Alki David has filed a lawsuit against CNET alleging that they aided in copyright infringement by distributing P2P clients, most notably LimeWire but also Morpheus, iMesh and FrostWire.  Of course, LimeWire is already in its own mess.

    Joining Mr. David as plaintiffs are a number of rappers and R&B artists that include members of 2 Live Crew, Pretty Ricky and Ying Yang Twins.  Fifteen plaintiffs are listed in all.

    Whose fault is copyright infringement, if anybody’s? Is it the person who shares the files, the makers of the client, or in this case do you agree that CNET shares some responsibility? Tell us what you think.

    Part one of the argument is that CNET is guilty of copyright infringement because they allowed users to download software that was used for copyright infringement.

    The CBS defendants have been the main distributor of Lime Wire software and have promoted this and other P2P systems in order to directly profit from wide-scale copyright infringement…the CBS Defendants’ business model has been so dependent upon P2P and file sharing applications that entire pages of Download.com are designed specifically to list and categorize these software offerings.

    So, blame Dick’s Sporting Goods for selling the hockey stick that was used to bludgeon someone to death with.  Got it.  Maybe we should sue Google for providing search results linking to CNET.  Actually, let’s just sue the internet.  Let’s sue Al Gore.

    All ranting aside, the fact remains that while CNET was distributing LimeWire, is was a legal product. Limewire does not inherently have to be used for “copyright infringement.” File sharing does not necessarily equal copyright infringement.  Of course, P2P clients are used for the sharing of copyrighted files – nobody can deny that.

    But I simply don’t know if we should sue the tackle shop for selling the bobber used to snag and keep the fish from the catch-and-release pond. Should we?

    But I digress.  The second part of the argument is that along with hosting downloads, CNET also wrote reviews for products like LimeWire, thus instructing users specifically how to break the law.

    The CBS Defendants have not just distributed and profited from software applications used to infringe copyrights on a massive scale.  They also furnished articles and other content that explained how users could use P2P software to infringe.

    On cnet.com, Download.com and other website, the CBS Defendants offered videos, articles and other media that instructed how to use P2P software to locate pirated copies of copyrighted works and remove electronic protections placed on digital music file sin order to prevent infringement.

    Or as I call it, the Anarchist Cookbook argument.

    Part 54 of the lawsuit provides my personal favorite complaint, simply for its leave-no-stone-unturned approach:

    As part of their review process, the CBS Defendants tested the software that they reviewed and, in the case of P2P clients, infringed copyrights to do so.  In a video that Download.com posted to its website, the CBS Defendants again reviewed LimeWire, but this time demonstrated how it worked to Download.com users.  The message of the video is clear: LimeWire is really great at infringing copyrights.

    The lawsuit seeks damages as well as an injunction barring CNET from offering P2P client downloads.

    Here’s a video of Alki David ranting against CBS, thanks to Ars Technica.  David says that CBS “finds itself publicly exposed as an irresponsible hypocrite, that has ruined the lives of hundreds of thousands of people in the creative community and created copyright infringement damages into the trillions of dollars.”

    “Hypocrite” is most likely a reference to past legal dealings between CBS and David’s site FilmOn. Last fall CBS along with Fox, NBC and ABC won a restraining order against U.K. based FilmOn in the U.S. The networks argued that because FilmOn was rebroadcasting their content over the internet, they were in violation of copyright law. Although the merits of Alki David’s lawsuit against CBS deserve a fair debate, it is not a stretch to see this current lawsuit as some sort of retaliation for previous actions.

    CBS has responded to the lawsuit, saying:

    “This latest move by Mr. David is a desperate attempt to distract copyright holders like us from continuing our rightful claims. His lawsuit against CBS affiliates is riddled with inaccuracies, and we are confident that we will prevail, just as we did in the injunction hearing involving his company.”

    Also, does anyone see the awesome irony in Dentron Bendross of 2 Live Crew suing someone for copyright infringement, considering his group was part of one of the more famous fair use lawsuits ever?

    Oh well.  It shouldn’t be too hard to discern where I land on the issue.  But what do you think? Let us know in the comments.

    CNET Limewire Torrent Freak Report

  • Facebook Sued by Minor Over “Social Ads”

    Facebook Sued by Minor Over “Social Ads”

    A young boy in Brooklyn is suing social media giant Facebook for using him to endorse a product against his will, according to Bloomberg.

    The suit, filed on Justin Nastro’s behalf by his father Frank, complains that Facebook fails to solicit parental permission to use minors’ likeness for the endorsement of products and companies.

    This, of course, refers to the “social ads” that Facebook has implemented for awhile now.  If you “like” a brand or product, say Coca-Cola, then you in turn become an endorser of that brand on Facebook.  Ads can appear on friends’ home page asking them to like Coca-Cola with your name attached.  “Like Coca-Cola!  Josh Wolford Likes This.”

    Also, as the complaint points out, you can hide your likes from the news feed, but not from being shown up on that specific product’s page.

    “Users can prevent their endorsements from being shared with their friends by limiting who can see their posts through their privacy settings,” according to the complaint. “There is, however, no mechanism in place by which a user can prevent their name and likeness from appearing on a Facebook page if they have ‘liked’ it.”

    The lawsuit was filed in New York, where a civils rights law states that a person’s image can not be used for advertising without permission.  This is the law that this particular suit is hoping to bank on.  The suit seeks class-action status and damages for any revenue procured by Facebook by the “unlawful” use of minors’ names and images in endorsements.

    “We believe this suit is completely without merit and we will fight it vigorously,” a Facebook spokesperson told The Huffington Post.

    If the Nastros’ appearance in ads ruffles their feathers now, just imagine what they would think of “sponsored stories.”  This newest test by Facebook takes a user’s activity and turns it into a story that is sponsored by an ad.  For instance, if my status read: “Just ate an entire Papa John’s pizza with John Winters…lord I’m full.”  A sponsored story might appear saying, “Josh Wolford just ate an entire Papa John’s pizza with John Winters” and contain a link to the Papa John’s page within the story.  Google+Reader”>Inside Facebook has a visual of this:

    These sponsored stories may become the norm, as IF reported yesterday that the 10-day 2 billion impression test results show that they had a 46% higher click through rate than Facebook’s regular old ads.

    This marks one of many lawsuits filed against Facebook recently.  “One man litigation explosion” Larry Klayman sued the company for their hesitation on removing an inflammatory page titled “Third Palestinian Intifada.”  Just recently AOL news writer David Fagin sued Facebook for $1 for labeling him as a spammer and blocking his activity.

    And, of course, zombie litigators the Winklevii refuse to let their suit die.

  • Google Offers Sued by Walker Digital

    Google Offers Sued by Walker Digital

    Yesterday Google Offers, Google’s foray into the deals marketplace, went semi-live with its beta version. Currently, deals are not yet being offered through the program, but users are able to sign up for email alerts for when the service begins dispensing deals. The beta version is only available for 6 areas right now, including Portland, NYC and San Francisco.

    Just hours after Google Offers Beta was announced, it was struck with a lawsuit late last night by Walker Digital. Walker Digital is a Delaware based information technology company most widely known as the people behind priceline.com. The company is active in development for the retail, gaming, vending and security industries among others and holds over 450 international and U.S. Patents.

    Walker Digital and its founder Jay Walker have routinely been cited as examples for why patent law and the methods for issuing patents need to be revised. Many believe that the company is the embodiment of a “patent troll” and that they simply exist to claim patents for mainstream, generic ideas so that they can sue large companies for patent infringement.

    Earlier this month, Walker Digital filed a rash of suits against industry giants like Facebook, Google, Apple and Microsoft for violation of intellectual property rights. In total, 15 suits were filed against a number of companies in excess of 100.

    Their latest lawsuit hits out at Google Offers. Separate but connected suits filed also list Amazon, BuyWithMe, Dealon and Groupon as defendants. Thanks to Gametime IP for detailing the four patents that were apparently infringed upon:

    • 7,039,603: “Settlement systems and methods wherein a buyer takes possession at a retailer of a product.”
    • 6,249,772: “Systems and methods wherein a buyer purchases a product at a first price and acquires.”
    • 6,754,636: “Purchasing systems and methods wherein a buyer takes possession at a retailer of a product.”
    • 7,689,468: “Purchasing, redemption and settlement systems and methods wherein a buyer takes possession at a retailer.”

    The specific patents were filed in 1996 and 1997 and began to issue starting in 2001.

    You can read the whole complaint below:

    Walker Digital v Google