Blogiversary Celebration Part 4: How Internet Law and IP Law Have Evolved

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Photo credit: Gold 10th 3d Number // ShutterStock

Photo credit: Gold 10th 3d Number // ShutterStock

This is the final part of my four-part series celebrating our 10th blogiversary. I asked the following question:

What do you think is the most significant change in intellectual property law or Internet law over the past 10 years? This could be either substantive changes to the law or changes in how lawyers practice in these areas.

Some responses I got:

Anupam Chander: The rise of international disputes on the Internet.

Michael Geist: I would point to public engagement and interest in Internet law issues. While there were early indications of the public’s interest and concern with Internet and IP issues in 2005, the years that followed included the SOPA protests, ACTA movement, and major public interest in domestic reforms in Canada, Europe, Australia, and more. The availability of sources such as your blog played a key role in raising awareness of the issues, increasing the public’s knowledge of the key policy and legal issues, and ultimately helped craft those very laws.

Scott Malouf: How have things changed? We all have to know a lot more about technology, a lot faster.

Michael Risch: I think a growing hostility toward IP rights among the general public has been the biggest change in the last 10 years, though it may have started earlier with peer-to-peer music sharing and people unhappy with over-the-top enforcement by the music industry.

Joel R. Reidenberg:

* Internet Law: Increasing salience of privacy and surveillance issues. However, the law (and issues) seem the same as 10 years ago–i.e. same issues, same debate, different contours and buzz words.

* IP: The sorting out and diminution of file sharing cases. I attribute this to the Napster/Grokster decisions and the resulting growth of iTunes.

* Practice: The emergency of privacy and security practice groups in major firms and the growth in compliance matters

Marty Schwimmer: We no longer care whether or not there is in fact a Law of the Horse. There are obviously fact patterns that exist only online (DMCA disputes, for example) but I don’t think people define their practices in that manner (much, any more).

* * *

Venkat’s Answer: The influence of the internet and the public on over-reaching in disputes and legislation (trademark bullying, takedowns demands, and SOPA/PIPA) may not be the most significant, but definitely interesting. The approach of big, well-funded companies to regulation, whether we’re talking about stepped up lobbying efforts, or Uber’s approach, is also worth noting.

Eric’s Answers

* The end of Cyberlaw 1.0 issues. Some of my key topics I covered extensively in the early days of the blog seem quaintly anachronistic today, such as:

spam. CAN-SPAM was just a year old in February 2005, and I had just published an article on spam. Does anyone still care about spam, or has Gmail’s spam filter essentially resolved the issue? We still blog spam cases occasionally but it’s a pleasant surprise to find a bloggable spam case today.

– adware/spyware. Adware was a Big Deal in the mid-2000, and I covered the adware wars extensively. I declared the end of the adware wars in 2008. In 2014, we blogged one adware case.

– metatags. Keyword metatags are probably the Internet technology that have caused the most judicial confusion and perhaps the most doctrinal harm. Fortunately, the word has gotten out that keyword metatags have become irrelevant. We occasionally still see metatag cases, but usually the metatags are just an incidental player in the dispute.

– initial interest confusion. This legal doctrine was linked to the metatag problem, but the IIC doctrine had a broader footprint and thus was even more troublesome. I can’t recall seeing a case where the IIC doctrine helped the plaintiff since 2011, and someday I hope to write an article definitively declaring the doctrine dead.

– gripe sites. 2005 was the height of battles over gripe sites. We saw a string of victories for gripers (including the Lamparello case) that effectively swung the pendulum in their favor. We still see gripe site suits occasionally (such as this 2014 case), but I much more frequently see griping behavior on social media and consumer review websites.

– keyword advertising. We were just beginning the keyword advertising battles in 2005, but those battles are pretty much over. In the near future, I’ll write a short essay declaring the end of the keyword advertising legal battles.

We can learn a lot by reflecting on the hot legal issues of 2005 and seeing how they’ve diminished a decade later. This is such a common phenomenon that it makes me wonder why we keep freaking out about the latest technological developments du jour. A decade from today, we’ll look back and wonder what the fuss was all about.

* The rise of mobile. For the most part, the legal principles we developed for the web world easily extend to the mobile world. However, consumers’ shifts to mobile is stretching Internet law. First, mobile operating systems have different technical capacities than desktop operating systems, which enables new functionalities we haven’t seen previously. Constant geolocation is the most obvious example. Second, mobile is creating new intermediaries to replace the web intermediaries. For example, mobile sessions don’t start with a Google search like they do on the Internet. Third, more than ever, Internet users via mobile have a wider range of online experiences due to their heterogeneous hardware and software configurations, and it becomes harder for lawyers to spot and resolve problems because a single app vendor could have dozens or hundreds of different configurations in the field, whereas a website often only had one user interface to worry about. This also creates problems for archiving and being able to recreate issues subsequently. Finally, the mobile app programming environment has unleashed a cohort of new entrepreneurs who don’t know the law very well. This means we’re in a bit of a “Wild West”–not because there’s no law, but because some key players aren’t trying very hard (yet) to conform to them. Many of these issues will be resolved in the next decade, but expect more bumps during the transition.

* Exceptionalism proliferation. Internet Law has always suffered its own questions about exceptionalism. Whatever questions we had about the appropriateness of cleaving “Internet Law” from the rest of “Law” have been answered by the sheer volume of new Internet-specific law passed over the years. As I’ve mentioned before, in one legislative session a couple of years ago, California legislators introduced over 400 bills containing the word “Internet.” So we study Internet Law in part because there’s just so much of it.

Now, we’re seeing proliferation of exceptionalism within Internet law. Most obviously, we’re seeing social media exceptionalism, where regulators are trying (wholly unsuccessfully) to cleave social media from the rest of the Internet for regulatory purposes. Other exceptionalism examples include mobile apps and online dating sites. For more, see my article on the three waves of Internet exceptionalism.

* Patent skepticism. There have always been skeptics about the patent system. However, in the last 10 years, I think that skepticism has become much more widespread and the skeptics’ influence in policy circles has grown substantially. In my IP class, many of my students now walk into the first day with some skepticism about patents, whereas when I first started teaching IP, I think virtually all of my students assumed patents were unreservedly a good thing. My understanding is that patent skepticism is like a pendulum which waxes and wanes in cycles. I think we’re in a patent down-cycle; eventually the pendulum will swing in the opposite direction again.

* Empirical studies of IP. The last 10 years has seen a dramatic growth in empirical studies of IP. We’re getting the data; now all we need is data-driven policy decisions.

* The emergence of privacy. Privacy is one of the most significant social issues of our time, and the demand for privacy lawyers and professionals has exploded, rivaling–and perhaps eclipsing–the market demand for IP lawyers. In my circles, almost all “licensing” lawyers and many in-house counsel are spending much/most of their practice time on privacy matters. This demand has given rise to a burgeoning cohort of privacy specialists, a trend I don’t see abating any time soon.
____

This is part 4 of a 4 part series celebrating our 10 year blogiversary:

Part 1: Happy 10th Blogiversary!
Part 2: The Blog’s Impact
Part 3: The Blogosphere’s Evolution
Part 4: Changes in Internet and IP Law

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February 13th 2015 spam

No Spam Lawsuit When Plaintiff Asked For The Emails–Beyond v. Kraft

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Beyond Systems initiated this spam lawsuit. Captura de pantalla 2015-02-06 a la(s) 12.31.07 PMThe court characterizes Beyond Systems as (barely) an internet service provider. Beyond was owned by Paul Wagner and its servers were kept at his parents’ Maryland residence. As mentioned by the court, not only did Paul’s company bring various spam lawsuits, but Paul’s brother Jim Wagner owns Hypertouch, Inc., an ISP based in California that is also a frequent spam plaintiff.

Beyond sued Kraft in Maryland alleging that it received emails that violated Maryland and California anti-spam laws. The court said that Beyond could not sue on a chunk of the emails because they overlapped with emails that were the subject of a settlement agreement between Hypertouch and Kraft. As to the remaining emails, the district court first considered whether Beyond Systems was an ISP under California and Maryland law. The court next considered whether Beyond was a “bona fide” ISP. The jury answered the latter question “no.” (Blog post on the district court ruling following the jury trial here: “Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft“.)

Beyond Systems appealed. The court invokes the Latin phrase “Volenti non fit iniuria,” which roughly translates into “to a willing person it is not a wrong.” The court says it’s “overwhelmingly” clear that Beyond consented to the emails and actively sought them out: it created a fake email addresses solely as a “spam trap” for gathering spam; it embedded these addresses in websites so they were discoverable only by bots and scrapers; it increased its storage capacity so that it could receive and house more spam; and it routed spam between California and Maryland so that it could take advantage of both states’ anti-spam laws.

The court’s ruling picks up on concurrence of Judge Gould from an earlier key spam case, Gordon v. Virtumundo. There, the court said that someone could not sue under CAN-SPAM unless they were the provider of an “internet access service” AND were “adversely affected”. While the two judge majority said that the plaintiff in that case did not satisfy either criteria, Judge Gould had a slightly different rationale. He said, as the court did here, that someone who manufactures a claim cannot sue.

__

Ouch. I don’t have much to say beyond what I said about the trial court ruling:

It’s also heartening overall to see the legal system’s ability to sniff out litigation factories. Beyond (and Hypertouch) have filed a lot of lawsuits over spam emails. These are emails that Beyond admitted in this trial were collected purposefully. In fact, taking their argument to its logical conclusion, they would be able to route “the same email . . . to every state that has an anti-spam statute” and then file lawsuits based on these emails in different jurisdictions. They generated a nice quantity of settlements, but ultimately someone decided to put up a fight, and in the ensuing trial, the facts came out. A lot of resources were spent (and settlements paid) along the way, but the system ultimately put an end to the litigation gravy train.

Courts have a variety of tools at their disposal to quash non-meritorious claims, and it is no surprise that the court rejected Beyond’s claims here. I assume defendants have already or will shortly be exploring the fee and cost-shifting opportunities.

Case citation: Beyond Systems, Inc. v. Kraft Foods, et al., 2015 WL 451944 (4th Cir. Feb. 4, 2015)

Related posts:

An End to Spam Litigation Factories?–Gordon v. Virtumundo

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Plaintiff Wins $7,000 Following Bench Trial on Claims Under California Anti-Spam Statute — Balsam v. Trancos

Use of Multiple (Even Random or Garbled) Domain Names to Bypass Spam Filter Does not Violate Cal. Spam Statute — Kleffman v. Vonage

Fourth Circuit Rejects Anti-Spam Lawsuit–Omega World Travel v. Mummagraphics

Domain Name Privacy Protection Services Not Liable for Failure to Disclose Identity of Alleged Spammer — Balsam v. Tucows

Just who is an Internet access service provider under CAN-SPAM?

Advertiser Not Liable for Spam–Hypertouch v. Kennedy-Western University

CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM

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February 7th 2015 spam

Here Are the Brands Whose Follower Counts Were Hit Hardest in Instagram’s Spam Purge

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The great Instagram purge of the past 24 hours hit Justin Bieber hardest—3.5 million lost followers—but some of social media's biggest brands felt the sting of loss, too.

National Geographic, Nike, Adidas and Forever 21 were among the top 100 Instagram accounts that saw their follower counts pummeled after the spam hunt.

The photo- and video-sharing app said last week that it would cull fake and inactive accounts, and it did its best to prepare brands and fans for the worst. Today, Instagram users were lamenting their fallen following with memes and jokes to cover the hurt.

The shock of a diminished audience is just a short-term hit for marketers, who ultimately want to know if their fans are fake, said Eric Brown, head of communications for social influence measurement tool Klout and its parent company, Lithium.

"Purging fake followers is the best thing to happen to social media since promoted tweets. It shows brands that reach is not enough and just a number." Brown said in an e-mail. "Brands need to be highly engaged with their real customers."

After Bieber lost his millions of spammers, he dropped to the No. 2 most popular on the site, now behind Kim Kardashian, who also lost 1.3 million, according to Pixel 64, which has been tracking Instagramageddon.

Even President Barack Obama was hit with a loss of 213,000 followers, 5.7 percent of his Instagram base now 3.5 million strong.

Not even Instagram was safe. Its own account lost the most of any brand—18.9 million followers, a 30 percent drop down to a new total of 45.3 million. 

Here are some of the brands that lost big:

  • National Geographic: 229,000 followers lost. New count: 9.75 million
  • Nike: 257,000 followers lost. New count: 8.75 million
  • 9Gag: 120,000 followers lost. New count: 8.38 million
  • Victoria's Secret: 215,000 followers lost. New count: 7.7 million
  • The Ellen Show: 270,000 followers lost. New count: 7.47 million
  • Forever 21: 245,000 followers lost. New count: 5.33 million
  • Real Madrid Club de Fútbol: 159,000 followers lost. New count: 5.36 million
  • FC Barcelona: 133,000 followers lost. New count: 5.33 million
  • NBA: 196,000 followers lost. New count: 4.15 million
  • GoPro: 94,000 followers lost. New count: 3.64 million
  • Adidas: 101,000 followers lost. New count: 3.6 million
  • Louis Vuitton: 107,000 followers lost. New count: 3.55 million

 






December 20th 2014 Facebook, Mobile, spam, Technology

Instagram Is Now Bigger Than Twitter With 300 Million Monthly Users

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Instagram now has 300 million monthly users, picking up 100 million since March. The photo- and video-sharing app has surpassed Twitter's official user count of 284 million.

Facebook's companion company, bought for $1 billion in 2012, announced the milestone today, as well as the fact that it will start handing out verified accounts, the kind coveted by Twitter's users.

The verified badges will be for public figures and brands, Instagram said. Verified badges, coming within the week, "will make it easier for people to identify and follow the authentic brands they care about," Instagram said today in an email. "When an account is verified, a blue badge will appear next to its name in its profile as well as in search."

Instagram has become the visual cousin to Facebook, attracting younger users at a time when the parent company is seen by some to be losing its youth appeal. Instagram also is expanding its ad business, recently releasing video ads.

Lastly, Instagram said it is purging fake accounts from the site, which means a number of brands could see their follower counts decline. Instagram said this is part of its ongoing anti-spam efforts.






December 11th 2014 Facebook, Mobile, spam, Technology, Twitter

LinkedIn Can’t Shake Publicity Rights Claims Based on Reminder Emails

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This is a lawsuit against LinkedIn alleging that LinkedIn wrongly sent out repeated invites to users’ contacts. In an initial ruling, Judge Koh denied LinkedIn’s request to dismiss on the grounds of standing but dismissed the federal claims for alleged violations of the Stored Communications Act and the Wiretap Act. Screen Shot 2014-11-17 at 10.25.45 AMThe court said that Plaintiffs consented to the initial invitation email but not the second and third emails. (Blog post on the previous ruling here.) The plaintiffs’ second amended complaint drops the federal claims and alleges violations of publicity rights and California’s unfair competition statute. While the court finds some technical deficiencies with plaintiffs’ pleading, it still declines to dismiss the crux of the case.

The sign-up process: The court walks through the sign-up process in detail. Shockingly, LinkedIn does not have a check-the-box implementation for its sign-up process. Rather than forcing users to check the box as a condition of proceeding, LinkedIn merely includes an asterisk next to a “join linkedin” button that directs the user to a line at the bottom of the page that then link to the relevant policies.* After confirming that the user wishes to “grow their network on LinkedIn,” the user is then directed to the third party email provider page (e.g., Google, Microsoft, and even AOL) where the user then enters in their email password. The court’s run-down of the process vis-a-vis various other platforms is interesting, as the platforms vary in their presentation and amount of control they say they provide to users. sign upThe user enters their password and then can connect with those of their contacts who already have LinkedIn accounts and can also urge those who do not have accounts to sign-up and ultimately connect with them on LinkedIn.

[* Note: we have repeatedly blogged about cases where large, established companies have a less-than-airtight sign-up process, which results in all sorts of entirely avoidable legal issues. Zappos was one of the more prominent examples, but there have been others. I didn’t check to see if they revised their sign-up process, but if not, that is something LinkedIn should take care of ASAP.]

Reminder emails: The court also describes the reminder emails in detail. The first email is an “invitation to connect”; the body says “I’d like to add you to my professional network on LinkedIn.” If this email does not result in the recipient joining, a reminder email is sent. This is titled “reminder about your invitation from [user’s name].” Finally, LinkedIn sends a second reminder. For some reason, the second reminder email includes the user’s profile picture.

The plaintiffs describe the difficulty in stopping these reminder emails. Apparently, you have to “individually open up each invitation from within his or her LinkedIn account . . and click a button that allows the user to withdraw that single invitation.” Plaintiffs further point to the complaints users have raised (for example):

at this point I’m finding LinkedIn more of a problem in terms of hurting my reputation rather than helping it.

Ouch. Plaintiffs also point to the various representations LinkedIn made about “respecting users’ privacy” and that LinkedIn would “not email anyone without your permission.” Finally, Plaintiffs pointed to statements in LinkedIn’s filings and corporate materials to the effect that this type of network-based emails along with reminders continue to be an important way for LinkedIn to grow its user base.

LinkedIn raised three defenses, none of which resolve the lawsuit.

Statutory damages under section 3344: First, LinkedIn argued that plaintiffs were not entitled to statutory damages under California’s publicity rights statute because they did not allege emotional damages. The court agrees, and says that while economic damages and reputational harm are available as actual damages, the statutory damage provision was aimed to provide relief to non-celebrity plaintiffs who suffered mental harm from commercial misappropriation of their name. While emotional injury that results from reputational harm is sufficient, plaintiffs did not allege emotional injury. Because plaintiffs only asked for statutory damages and did not allege emotional injury, the court dismisses this claim, but grants leave to amend.

CDA 230: LinkedIn also raised a Section 230 argument, saying that the emails were third party (i.e., users’) content. The court disagrees, crediting plaintiffs’ allegation that LinkedIn was responsible for the content, layout, and design of the reminder emails and cannot take refuge in Section 230. The court focuses on the fact that LinkedIn decided how many emails to send and things like whether or not to include the users’ picture in the email. According to the court, the textual differences in the second and third email also point in the direction that LinkedIn ultimately controlled the content (or, as the court intimates without saying directly, made material changes to content provided by the user).

First Amendment: The court also rejects LinkedIn’s First Amendment defense. First, LinkedIn argued that the reminder emails are non-commercial speech, subject to the full protections of the First Amendment. The court disagrees. Second, LinkedIn argued that even assuming the emails are commercial speech, plaintiffs can only state a right of publicity claim when their likeness is used to promote an “unrelated product”. The court says neither the publicity rights statute nor common law contain such a limitation. Finally, LinkedIn argued it’s entitled to the “adjunct use” rule, where the commercial promotion is incidental to the protected expression. No luck on this score either.

[Finally, the court also rejects the “incidental use” argument, which seems vaguely similar to a fair use argument.]

__

LinkedIn is doing its best to whittle down this lawsuit, and perhaps it may still succeed, but the court’s order seems to indicate that there’s a cognizable claim buried in there. Auto-posts and emails sent on behalf of users that they can’t control are terrible behavior on the part of networks. Not giving users granular control over these emails just feels like LinkedIn was trying to get cutesy.

Publicity rights in California have turned into a sleeper hit for plaintiffs. (See, e.g., Fraley.) It’s interesting to see the positions reversed here, with the defendant seeking support in an argument premised on plaintiffs’ failure to allege emotional damages. Usually defendants are taking plaintiffs to task for not alleging and having support for economic damages. I’m not sure what to make of the statutory damages provision of section 3344. It would seem trivially easy for plaintiffs to allege that they suffered emotional harm as a result of seeing their network reputation suffer, and the court even alludes to the fact that emotional injury that results from reputational harm is sufficient.

As with all privacy lawsuits, this one is no different in citing to defendant’s flowery marketing assurances—there’s always plenty to choose from.

I don’t think there’s much to say about the First Amendment rulings. The First Amendment defenses did not seem particularly strong to begin with, and I’m surprised the court gave it as much attention as it did. As for the Section 230 defense I agree with Eric’s comments below–it smacked of desperation, or an after-the-fact justification that was not considered at the design phase.

Eric’s Comment: I hate to Section 230 losses but I can see why Judge Koh ruled as she did. She explains about the first and second reminder emails:

Contrary to Defendant’s assertions, then, the first reminder email appears to transform the substance of the initial invitation email from “Do you want to connect with me?” to “You never responded to the user’s first invitation so let us ask you again, do you want to connect with her?” The second reminder email is arguably more transformative still, as the substance changes from “Do you want to connect with me?” to “You never responded to the user’s first invitation or to our reminder concerning that invitation, so let us ask you for a third time, do you want to connect with her?”20 It is precisely this changed character of the reminder emails—from invitation at first to potentially annoying by the end—that the Court found could contribute to the additional harm the reminder emails allegedly caused.

As she summarizes later:

Plaintiffs allege that LinkedIn generated the text, layout, and design of the reminder emails and deprived Plaintiffs any opportunity to edit those emails, which Plaintiffs had no knowledge were being circulated on their behalf.

Perhaps LinkedIn prospectively thought it could rely upon Section 230 for these circumstances, but I doubt it. Instead, I suspect the Section 230 defense emerged only in desperation.

Case citation: Perkins v. LinkedIn, 13-CV-04303-LHK (N.D. Cal. Nov. 13, 2014)

Related Posts:

Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights

Path May Be Liable for Text-Spamming Users’ Contact Lists

Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

Wiretap Claims Against Gmail Scanning Survive Motion to Dismiss — In re: Google Inc. Gmail Litigation

Court Rules That Kids Can Be Bound By Facebook’s Member Agreement

Facebook Sponsored Stories Settlement Approved – Fraley v. Facebook

Judge Seeborg Rejects Sponsored Stories Settlement For Now — Fraley v. Facebook

Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook

Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram

Privacy Plaintiffs Lose Because They Didn’t Rely on Apple’s Privacy Representations — In re iPhone App Litigation

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November 18th 2014 Marketing, spam

California Anti-Spam Law Doesn’t Require Sender’s Name In The ‘From’ Line or Domain Name

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While spam litigation generally has diminished, plaintiffs continue to push claims under California’s anti-spam statute. Federal court decisions were mixed on what types of California’s anti-spam claims are preempted by CAN-SPAM (whether plaintiffs had to allege fraud or merely misleading statements). shutterstock_148273682-But there were a few plaintiff-favorable rulings in California state court. The Hypertouch v. Valueclick case found a narrow scope of preemption, envisioning a greater range of anti-spam claims in state courts. Kleffman v. Vonage, which held that garbled domain names even if intended to defeat anti-spam filters were not necessarily misleading, was helpful, but did not stem the tide entirely. In Kleffman, the court noted that the domain names in question could all be traced to Vonage’s marketing agent if someone were to take the trouble to do a WHOIS hookup. Finally, Balsam v. Trancos struck a clear blow for the anti-spam community and held that a domain name which could only be traced to a non-entity/domain name and its PO Box was not “fairly traceable,” so commercial emails sent from these types of domains were misleading.

In this case, the emails advertised free hair care or beauty products and were sent from random domains, with individual senders such as “Proactive Special Offer,” “Wen Hair Care” and “Proactiv Bonus Gift”. The subject lines purportedly advised recipients that they were entitled to a “free or complimentary gift” without mentioning that these were merely gifts contingent upon making certain purposes. The emails were sent by Guthy-Renker. Although not identified in the domain name or the from line, Guthy’s name was in the body of the email. Similarly, the body of the email made clear that the gifts in question were not just free gifts but were contingent upon certain purposes. (Exhibit A included an email bearing the subject line “Exclusive WEN Deal: Complimentary Shipping, ” and it originated “From: Wen Hair Care (mavk@r.andedox.info)”.)

Misrepresented header information: The court surveys the cases and says that plaintiffs’ arguments regarding alleged concealment of the sender’s identity missed the mark because here the body of the email identifies Guthy as the sender:

The emails were advertisements for Guthy’s various consumer brands. The emails provided a hyperlink to Guthy’s website, and provided an unsubscribe notice as well as a physical address in Palm Desert, California. Plaintiff cannot plausibly allege that Guthy attempted to conceal its identity, as the clear purpose of the emails was to drive traffic to Guthy’s website.

The court does not cite to Mummagraphics, one of the earliest spam cases, which came to a similar conclusion.

Misleading subject line: Here, the parties disagreed as to whether an email which in its entirety paints a complete picture but has a halfway accurate subject line violates the statute. The court rejects plaintiff’s argument and says that a reasonable sender and recipient would not view the email as misleading. The court disagrees with the Hypertouch case on this point. In Hypertouch, the court says that a misleading nature of the subject line cannot be cured by text in the body of the email.

__

It’s almost 2015. I’m surprised people are sending spam emails. I’m equally surprised people are suing over these emails. As we’ve noted, much of the focus has shifted to text-message-spam and the TCPA.

The key question is whether an email is materially misleading. The federal CAN-SPAM cases set this as a standard. Given CAN-SPAM’s preemption of state statutes, this is a boundary the state cases should keep in mind as well. My instinct is that correct result as to the subject line is that the email is rendered not materially misleading by statements in the body of the email. The domain name/sender issue is slightly more difficult. The argument that the from line must identify an actual person borders on frivolous, and this case correctly rejects it. The trial court had a nice quote that plaintiffs’ argument that the “from line” had to identify an actual person:

is akin to complaining that an email from ‘Buick’ is falsely labeled because . . . the sender should read ‘General Motors Corporation’.

As to the traceability of the domain name itself, I would think that as long as the email in question is traceable to someone or some entity, this should be sufficient. (See Kleffman.) What the anti-spam plaintiffs rightly get at is that someone should be identifiable–after all they need some place to direct their wrath? Whether this means you can look up the WHOIS for the domain name to identify the sender, or identify the brand in the body of the email, either of these should render the email not misleading as to its source. This was the holding from Mummagraphics and Kleffman. (This assumes that CAN-SPAM leaves room to bring a state law claim based on a failure to disclose information: the identity of the sender. It’s also worth noting that the text of the statute speaks to “falsified, misrepresented, or forged header information” and doesn’t leave much room for plaintiffs’ arguments that email headers must identify senders.)

At the fringe, these decisions raise the issue of whether a commercial entity has the right to email anonymously. I doubt this issue will ever be squarely presented, and as I’ve mentioned before, First Amendment challenges to anti-spam statutes don’t tend to fare very well.

This case is worth watching. Balsam v. Trancos had zero participation by amicus (surprisingly) and I hope the same thing doesn’t happen here.

case citation: Rosolowski v. Guthy-Renker LLC, B250951 (Cal. Ct. App. Oct. 29, 2014)

related posts:

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawyer’s Suit Over “Professional Recognition” Spam Flops

Path May Be Liable for Text-Spamming Users’ Contact Lists

CAN-SPAM Preemption Doesn’t Apply To Fraud…And More

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft

Independent Contractor Relationship Between Sender and Advertiser Dooms Spam Claims – Kramer v. NCS

CAN-SPAM Violations For Private WHOIS Information and Putting Disclosures in Remotely Served Images – ZooBuh v. Better Broadcasting

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer–Twitter v. Skootle

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

California Appeals Court Says Emails That Don’t Identify Sender Violate State Spam Statute – Balsam v. Trancos

Old School Spam Plaintiff Rebuffed in the Ninth Circuit

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing — Hafke v. Rossdale Group, LLC

Spam Claims Covered by Contract’s Indemnity Clause–Commonwealth Marketing Group v. IMG Assocs.

In Facebook’s Lawsuit Against Alleged Spammer, Court Denies MaxBounty’s Motion to Dismiss

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus — e360 v. Spamhaus

Court Rejects First Amendment Challenge to CAN-SPAM Indictment — US v. Smallwood

Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v. Thelaw.net

Court Says CAN-SPAM Plaintiff Can’t Take Second Bite at the Apple — Melaleuca v. Hansen

Claims that Emails were not Labeled as Ads and did not Disclose Tracking Preempted by CAN-SPAM — Martin v. CCH

N.D. Cal.: Facebook Posts are Electronic Mail Messages, Subject to CAN-SPAM — Facebook v. Maxbounty

CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM – Hypertouch v. Valueclick

Lawyer-Spam Plaintiff Loses in the Sixth Circuit Over Allegedly Misleading DISH Network Emails — Ferron v. Echostar

Domain Name Privacy Protection Services Not Liable for Failure to Disclose Identity of Alleged Spammer — Balsam v. Tucows

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November 11th 2014 spam

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

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Screen Shot 2014-10-07 at 8.54.54 AMShopkick is a rewards-based app that shoppers use on their phone while they are in-store shopping. I’m not precisely sure how it works (you get points for trying on items or walking in certain parts of the store?) but it did not seem to have crowd-buying component to it. Apparently, Shopkick allowed its users to send text messages giving their friends “points” on Shopkick and encouraging them to try the app. It’s unclear if the users must individually send such messages, or if the messages are sent out to all contacts en masse.

A recipient brought claims under the TCPA. The court initially dismissed the complaint because it failed to allege use of an automatic telephone dialing system. The amended complaint withstands a renewed motion to dismiss. The court says that plaintiffs face inherent difficulties in figuring out whether defendant uses an ATDS (plaintiff has no idea what equipment defendant may be using). Here, the allegations (uploading numbers from a contact list and sending out messages en masse) raise a possible inference that such equipment is being used. Courts have taken different approaches to this issue, with some saying that anything could be an ATDS, and with others vaguely saying that something that sends out messages in some orchestrated fashion would likely have ATDS capacity. In any event, the court denies the motion on the ATDS issue.

Shopkick also brought a motion to disqualify both plaintiffs and plaintiffs’ counsel. An earlier motion to disqualify raised the issue that the person who sent the text message and the recipient would be at odds, because Shopkick could point the finger at the end user who initiated transmission of the message, but the court’s most recent order does not mention defendant making this argument. Ultimately, the court says that adequacy of representation is more appropriately raised down the road (at the class certification stage).

__

It cannot be said often enough that text-based marketing is a bad idea. Don’t do it! This case illustrates how easy it is for plaintiffs to allege the elements of a TCPA violation. The message is unwanted (by definition, to a potential plaintiff, it always is). All that is left is that defendant used an auto dialer, and this case indicates that the pleading standard is a pretty low bar.

It’s unclear if this is a “refer a friend” case or if Shopkick “commandeered” the contacts, as plaintiffs allege. To the extent it’s the former, it does raise an interesting issue of whether Shopkick should be held liable for its users’ conduct of initiating messages. The answer should be no. Interestingly, Shopkick’s initial motion to disqualify raised the issue that users may have divergent interests, but I don’t think anyone seriously thinks Shopkick would try to really throw its users under the bus (i.e., seek indemnification from users).

Perhaps Shopkick thought it would be able to argue that the messages were not truly marketing messages, since they were just individual encouragement by users encouraging others to sign up? Courts have not accepted this argument. Compare the messages here with the messages in cases such as Voxernet or more recently in WhisperText (dismissing claims but granting leave to amend). At least in those cases there’s an argument to be made that the messages are sent to alert the recipient of the app so the sender and recipient can communicate via the app.

I’m somewhat sympathetic to plaintiffs here, assuming their version of the facts is accurate. However, the lawsuit is representative of a broader trend. Cases (including Satterfield v. Simon & Schuster) set a low bar for what it takes to plead a text spam complaint. (Perhaps Congress was sloppy in its initial drafting or the statute is outmoded.) A predictable torrent of lawsuits followed. There are a few cases pending winding their way through appeals and proceedings in front of the FCC that could inject some much needed common sense into text spam litigation, but my sense is that it will need a legislative fix.

Case citation: Huricks v. Shopkick, C-14-2464 MMC (N.D. Cal. Oct. 1, 2014)

Related posts:

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Path May Be Liable for Text-Spamming Users’ Contact Lists

Yahoo! Scores Significant Win in Email-to-SMS Lawsuit

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Telephone Consumer Protection Act Case Update – Summer 2013 Edition

Telephone Consumer Protection Act Case Update – February 2013 Edition

California Supreme Court: Retail Privacy Statute Doesn’t Apply to Download Transactions – Apple v Superior Court (Krescent)

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Q3 2012 Quick Links, Part 3 (Advertising, Privacy, Consumer Protection)

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October 9th 2014 Marketing, spam

Your On-Page SEO is Missing a Few Factors

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250-scamsOh boy, here’s another example of Internet marketing spam / scam that I received as a blog comment…

Hello Web Admin, I noticed that your On-Page SEO is is missing a few factors, for one you do not use all three H tags in your post, also I notice that you are not using bold or italics properly in your SEO optimization. On-Page SEO means more now than ever since the new Google update: Panda. No longer are backlinks and simply pinging or sending out a RSS feed the key to getting Google PageRank or Alexa Rankings, You now NEED On-Page SEO. So what is good On-Page SEO?First your keyword must appear in the title.Then it must appear in the URL.You have to optimize your keyword and make sure that it has a nice keyword density of 3-5% in your article with relevant LSI (Latent Semantic Indexing). Then you should spread all H1,H2,H3 tags in your article.Your Keyword should appear in your first paragraph and in the last sentence of the page. You should have relevant usage of Bold and italics of your keyword.There should be one internal link to a page on your blog and you should have one image with an alt tag that has your keyword….wait there’s even more Now what if i told you there was a simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY, just watch this 4minute video for more information at. Seo Plugin

Let’s dissect this…

  1. Here’s the author info:
    • seo plugin
    • 0 approved
    • SeoOptimizationxxx.com/x
    • nhsfkpqf@gmail.com
    • 23.231.7.41

    GREAT name and email address for a ‘professional’ SEO service, eh?

    Those are the easiest first clues to to spam blog comments.

  2. Then, this scammer doesn’t know how to use a blog comment form to save his (or her) life, or the English language for that matter.Yes, you can read through the text and make sense of what he is saying, but that doesn’t negate the fact that the scammer isn’t actually an SEO professional… or a professional who is competent in the English language.

  3. The advice is completely bogus, i.e. ‘nice keyword density of 3-5%’. Duh. As always, my advice is to write for humans, not search engines. The search engines ‘get it’ when you blog regularly about a consistent theme. They also ‘get it’ when you try to write to an algorithm… to the point that you will be penalized for trying to manipulate your rankings.

  4. There is no such thing as a ‘simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY’.

Nope, sorry, I hate to burst your bubble, but there is not such thing as a plugin that does ‘all the on-page SEO.

REAL bloggers do their own on-page SEO by crafting titles, tags, heading tags, image alts, slugs and everything else manually to stay in Google’s good graces.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

sig-ros

July 30th 2014 affiliate marketing, SEO, spam

The ‘Noticed something about your WordPress Site’ Scam

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250-scamsThat’s a catchy subject line for an email, isn’t it?

Can’t blame you if you opened it like I did.

I’ve recently received a number of emails coming through contact forms on my various sites, each with a subject along the lines of… “Noticed something about your WordPress Site”.

Here is the full text of one those emails…

Subject: Noticed something about your WordPress Site

Message Body:
I realized while I was on your website that you have a WordPress website. At first it seemed a bit sluggish and was a little slow to load. I also had this problem a while ago with one of my WordPress sites. Webhosts like Godaddy, Host Gator, Blue Host, etc often overcrowd their shared hosting plans which can be bad for your website, have you ever looked into this?

There’s a guide right on wordpress maintained by a member that shows you how to check for this in two easy steps. The guide is at:

*********.wordpress.com

If you have a moment, it’s always a good idea to follow the two steps in that guide to test your current host. Your hosting is one of the most important factors for a WordPress based website. Good luck with your website!

The site that is linked to in each case looks much like this:

fake-affiliate

The copy makes valid points about overcrowding, site speed and WordPress Administration panel loading speed.

So, I checked my http://windingway.com site which is hosted on Bluehost and this is what I found regarding the number of sites hosted at the same IP address…

winding-way-you-get-signal

Oh MY!!!

They found over 1000 domains hosted on the same web server / IP address as windingway.com.

BUT, when I did the site load test, this was the result…

winding-way-pingdom

So, what was the ‘something’ problem that they noticed about my WordPress site(s)?

The REAL problem is that the people sending those emails are affiliate scammers and spammers…

They didn’t notice anything about my websites other than they are WordPress sites.

Although I received similar emails pertaining to each of my domains, only ONE domain is hosted on BlueHost – the others are on my own dedicated server. It’s easy enough to find out where a site is hosted by going to Whois.net.

Not that they would bother… they just look for contact forms and paste in their spam messages with the hope that someone will buy the hosting they recommend through their affiliate link.

If you DO get an email like that, just mark it as ‘spam’.

We do NOT want to reward affiliates with commissions that they achieve through scamming and spamming.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

sig-ros

July 26th 2014 affiliate marketing, spam

TCPA Claim Against Taco Bell Fails For Lack of Agency

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I mentioned before that a court said Taco Bell wasn’t liable for texts sent on its behalf because the plaintiff didn’t adequately allege the sender was Taco Bell’s agent (See “Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell“). shutterstock_148273682-That ruling was appealed to the Ninth Circuit, and the Ninth Circuit similarly rejected plaintiff’s claims that the main Taco Bell entity (the franchisor) should be held liable for a message sent out on behalf of one of its franchisee-associations:

Ms. Thomas did not present any evidence to the Court that Taco Bell directed or supervised the manner and means of the text message campaign conducted by the Association and its two agents, ESW and Ipsh. She presented no evidence to the Court that Taco Bell created or developed the text message. Nor did she present any evidence to the Court that Taco Bell played any role in the decision to distribute the message by way of a blast text. All of this control over the manner and means of the text message campaign was exercised by the Association, ESW, and Ipsh, and Ms. Thomas has not presented any evidence to the Court demonstrating that Taco Bell controlled the actions of these entities with respect to the campaign. Taco Bell, simply put, had nothing to do with it.

However, although the court affirmed the trial court’s rejection of the claims against the main Taco Bell entity, the Ninth Circuit held that the basis for holding Taco Bell should not be limited to traditional agency principles–it should also include apparent authority and ratification. On this issue, the court agreed with the FCC, which had earlier ruled that traditional agency is not the only route to holding a third party (non-sender) liable for text messages. A few observations about the case:

  • it’s a bummer the court chose to issue an unpublished opinion–the case involved consequential issues, and the court was covering new ground
  • it’s possible the factual scenario presented by a franchisee advertisement is unique–how will this track to traditional advertiser/sender relationships (will the typical advertiser agreement provide the requisite degree of control (over the “manner and means” of advertising) to satisfy agency principles)?
  • it’s worth contrasting this case with Satterfield, the original 9th Circuit case that started it all–that case did not delve into agency issues, although it involved an attempt to hold a third party (Simon & Schuster) liable
  • the apparent authority and ratification prongs that the court says can be additional routes to third party liability are murky and the court does not specify what exactly they mean in this context

On the one hand, this is a defense-favorable ruling in its result. On the other hand, future plaintiffs will welcome this ruling in its expansion of avenues to liability (the effect of the ruling will perhaps be tempered by its unpublished status).

Case citationThomas v. Taco Bell Corp., No. 12-56458, 2014 WL 2959160 (9th Cir. Jul. 2, 2014)

Related posts:

* TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

* Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

* Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

* Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

* Group Text Services Grapple with TCPA Class Actions

* Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

* Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

* Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

* Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

* Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

July 22nd 2014 spam