It Pays to Specialize

A recent discussion about cybersquatting led to the topic of “popesquatting.” A few years ago Rogers Cadenhead registered the domain name benedictXVI.com before the 2005 papal conclave elected Josef Alois Ratzinger as Pope Benedict XVI. Here’s a link to a Katie Couric interview with a bemused Cadenhead, discussing his good fortune. I wonder if he ever got the mitre.

A Sorry Tale

Jennifer Lea Strange of Rancho Cordova, CA entered a contest sponsored by station KDND to win a hot-selling Nintendo Wii game console for her three children. The contest–called “Hold your wee for a Wii”–required contestants to drink quantities of water to see who could go the longest without urinating. After drinking about two gallons of water, according to witnesses, Strange gave up and finished second, winning tickets to a Justin Timberlake concert. She was found dead a few hours later of water intoxication, according to the preliminary autopsy. During the contest a caller warned the DJs of the risk of death from drinking too much water. “Yeah, we’re aware of that,” said one, and another added with a laugh “Yeah, they signed releases, so we’re not responsible. We’re OK.” Speaking of Strange’s distended belly a DJ said “”Oh, my gosh, look at that belly. That’s full of water. … Come on over, Jennifer, you OK? . . . You going to pass out right now? Too much water?”

Sacramento lawyer personal injury lawyer Roger Dreyer, whom Strange’s family retained to represent them in a wrongful death lawsuit, said the contest was a “negligent act of premeditated recklessness.” KDND fired ten people, including three morning DJs, and announced an investigation into Strange’s death. Responding to Dreyer’s request to pull the station’s operating license the Federal Communications Commission announced that it will conduct its own investigation into Strange’s death. The Sacramento Sheriff’s Office is investigating possible criminal charges.

This whole affair is just depressing: people willing to undergo extreme physical discomfort to win a $250 game console; a radio station making sport of these people for marketing purposes; KDND employees either failing to investigate the possible risks, or just ignoring them; a contestant who goes beyond what her body can take, and dies; everything about this is wrong, wrong, wrong. These accounts coincided with a post I read recently at The Tortellini titled Those Wacky, Tragic Warning Labels; they can be easy to ridicule but some of those product warning labels we make fun of originated in some family’s tragedy.

Cheryl Miller, ‘Hold Your Wee’ Radio Contest Prompts Wrongful Death Suit, The Recorder, 24-Jan-07 (Law.com) (Subscription required); AP, 3 DJs fired after deadly water-drinking contest, MSNBC.com, 17-Jan-07; FCC Head Orders Investigation Into Water Contest, Yahoo!.com, 25-Jan-07; Tape: Disc jockeys joke about water contest risk, CNN.com,

Say “Cheese!”

Speaking of the YouTubeification* of politics, here are two more items. First, someone uploaded to YouTube a ten-second clip of Senator John McCain allegedly napping during last week’s State of the Union address. I thought it showed McCain looking down to read, not sleeping, and according to a New York Times article today, that’s the consensus after a few days discussion among those who discuss such things. The story of the clip’s posting on YouTube had legs and, whether or not it was posted to embarrass McCain and actually captured what it is purported to capture, it signals how the ubiquity of digital cameras and the ease with which video can be posted online are shaping the political discussion.

The second item involves use of digital video and YouTube to affect the legislative process. As reported in The Washington Post, frustrated Democrats in the Virginia General Assembly are recording hearings on controversial bills such as proposals to increase the minimum wage. Last week, after a Republican-controlled subcommittee decided on a voice vote not to bring seven minimum-wage proposals (two sponsored by Republicans) to the full Commerce and Labor Committee, Democrats posted video of the subcommittee hearings on YouTube. The chairman of the House Democratic Caucus is quoted saying “[t]his is an issue of importance to hundreds of thousands of Virginians. Why not have a full and fair hearing?” Republican Vincent F. Callahan, Jr. saw it less charitably: “It’s indicative of a culture of viciousness that is infecting these halls . . . you are going to get shots of someone picking their nose and use it out of context in the fall election.”

*Catch the wave–a Google search for “youtubeification” produced 160 hits; a search for “youtube-ification” produced 269. As we enter the 2008 Presidential campaign season, what’s the over/under on the number of hits for these terms on, say, June 1, 2007, January 1, 2008, and November 1, 2008?

9th Circuit Rejects Kahle Claim

Last week the 9th Circuit Court of Appeals issued its decision in Kahle v Gonzales, rejecting the plaintiffs’ argument that Congress’s transformation of copyright protection from an “opt-in” system to an “opt-out” system requires First Amendment strict scrutiny analysis. The plaintiffs supported their challenge with a theory implied from the Supreme Court’s decision in Eldred v Ashcroft, the 2003 decision rejecting Constitutional challenges to the Sonny Bono Copyright Term Extension Act of 1998. The 9th Circuit ruled that the Supreme Court’s Eldred decision “effectively addressed and denied Plaintiffs’ arguments” and affirmed the district court’s dismissal of their complaint. Christopher Sprigman and Larry Lessig–plaintiffs’ counsel, along with Jennifer Granick–posted comments on the 9th Circuit’s decision here and here.

NJ Recognizes Privacy Right

New Jersey’s intermediate appellate court issued an interesting informational-privacy ruling this week. Reported in the Star-Ledger, and the CourierPost Online, the court held in State of New Jersey v Reid that Shirley Reid’s use of a screen name that hid her identity created a “legitimate and substantial interest in anonymity” that supported Reid’s motion to suppress. Reid was charged with computer-related theft after her employer accused her of breaking into its computer system and changing its shipping address. Attempting to penetrate the anonymous screen name linked to the break-in, police had a Municipal Court administrator issue a subpoena to Comcast. In response Comcast linked the screen name to Reid, who was then charged with the crime. The court held the subpoena was invalid because the crime under investigation was not within that court’s jurisdiction, and thus not issued in connection with a judicial proceeding as required by NJ law.

The appellate court affirmed that this unauthorized search constituted an unlawful search and seizure. Its decision rests on a right to privacy grounded in the New Jersey constitution, which “has been expanded to areas not afforded such protection under the Fourth Amendment.” Reid’s choice of an anonymous screen name manifested a reasonable expectation that only Comcast knew her identity, creating a privacy interest that “is both legitimate and substantial.” The state prosecutor has not decided whether to appeal this ruling to the New Jersey Supreme Court.

Just Asking For It

Emmalee Bauer worked as a sales coordinator for Sheraton Hotels in Des Moines. During work hours she kept a journal. Her supervisor told her not to write on company time. Bauer responded by entering all 300 pages of her handwritten journal onto her work computer’s hard drive. Her journal described how she avoided work by shopping online, playing games, reading message boards–and by entering the journal into the work computer. A supervisor discovered the journal, Bauer was fired for misusing company time, and she filed for unemployment compensation. She didn’t get it. Why? The Administrative Law Judge admitted the journal into evidence in the hearing on Bauer’s claim, and relied on it to support her decision. The judge said the journal showed Bauer’s refusal to work and her “amusement at getting away with it.” AP, Job Lesson No. 1: Don’t Write at Work About How to Avoid Work 23-Jan-07 Law.com Employment Law Practice Center (subscription required)


Keeping the Moat Up

Earlier this week the China Internet Network Information Center issued its annual report, estimating China had 137 million Internet users aged 6 or older who spend at least one hour a week online. That’s about ten percent of China’s population and represents growth of over 23% compared to 2005’s numbers. The next day Chinese Premier Hu Jintao, in a speech to a Communist Party Internet study group, urged creation of more content “that is in good taste” and promotes Chinese culture. The goal, he said, is to “promote civilized running and use of the Internet and purify the Internet environment.” (See stories here and here.)

“Purify”–that’s a loaded word to western ears. China maintains strict control over the Internet within its borders, blocking access to certain foreign websites and running what is, in essence, an intranet. In the words of Jack Goldsmith and Tim Wu in Who Controls the Internet, “physically, the Internet within China looks more and more like a giant office network, centralized by design.” What is paradoxical, from a western perspective, is that China’s political control goes hand-in-hand with dynamic utilization of the Chinese network as a platform for e-commerce. Businesses, online and offline, must accommodate–or, at least, not alienate–China’s control over political expression.

In light of that, the Yahoo story linked above ads an interesting note: Microsoft, Google, Yahoo, and Vodafone Group recently agreed with the Berkman Center for Internet & Society, the EFF, Reporters Without Borders, and other organizations to establish a Code of Conduct to promote freedom of expression and privacy rights around the globe. It is unclear how participation in the Chinese market will square with this code’s objectives.

For posts on global press freedom see here and here

Not On Company Time

The Wall Street Journal reported in a January 16 story titled Web Filters’ New Job: Protect the Network (subscription required) that corporate use of Web-filtering software has evolved from broad-brush blocking employee access to the “sinful six” — pornography, gambling, illegal activities, and hateful, violent, or tasteless content — to more fine-grained control. Companies are using filters to block work-time access to bandwidth-intensive sites (e.g. YouTube), social networking sites (e.g. Facebook, MySpace), shopping sites (the article mentions a London office that allows access to shopping sites during lunch), sporting events (World Cup games) and other sites that don’t serve a corporate purpose. One wonders how a generation that grew up on AIM, MySpace, Facebook, and YouTube will react.

Raising Cost of Online Sales

Every semester I discuss an Internet-sales hypothetical with my Internet law class, in which a consumer in State A purchases goods from a seller in State B, is unhappy with the purchase, and wants to pursue legal claims against the seller. The first question we discuss is “where did the transaction take place?” Some say the transaction takes place in the consumer’s state, some say it takes place in the seller’s state, some say it takes place wherever the retailer’s servers are located, and some say you can’t tell. The law has not provided a definitive answer to this question, nor does it need to. The law has been able to resolve whether State A could exercise long-arm jurisdiction over the seller or whether the seller must collect and remit to State B sales tax on the non-resident consumer’s purchase. Under current U.S. law an online retailer does not, by having an online sales presence alone, automatically subject itself to jurisdiction in every state in which its products are sold.

A proposed law would complicate this question in the European Union. As reported here by TimesOnline, the law would, in any business-to-consumer contract, make the contract subject to the law of the country in which the consumer resides. Critics argue that the law would limit the growth of EU e-commerce and limit consumer choice. Opposing the law, the British Retail Consortium stated that “[t]he sheer cost and uncertainty inherent in such a scenario is so high, that it is simply not credible to assume that companies, and small ones in particular, could engage in such trade.” Consumer advocates contend, on the other hand, that consumers might be wary about purchasing from other countries if they are not protected by their own laws.

I’m curious to see what happens.