Update: Power of the Press

True or false? All publicity is good publicity.

False. The New York Times reports that Vitaly Borker, owner of the DecorMyEyes website who threatened customers to generate publicity that would push his site higher in Google search results, last week was sentenced to four years in prison and $100,000 in restitution and fines. (See prior post.) After The New York Times broke the story in November 2010 Google changed its search algorithm to ensure that “being bad is, and hopefully will always be, bad for business in Google’s search results.”

Perhaps Borker’s lawyer’s leniency argument sounded better in court than it does in the Times article:

Mr. Amorosa also contended that only a tiny fraction of Mr. Borker’s customers were threatened and that his business was otherwise a thriving enterprise. DecorMyEyes had thousands of repeat customers, he said, and millions of dollars in revenue.

“He threatened, horribly, 25 people,” Mr. Amorosa said, suggesting that was a small number, given the scale of the company.

Time-Shifting?

From a former student who always has interesting things to say on Internet law topics:

Say, doesn’t this sound like the Betamax case?  Wouldn’t the “time-shifting” argument held by the Supreme Court still hold?

The Sony decision did not create an absolute right to time-shift. The Court recognized time-shifting to be fair use in that case–by a 5-4 decision, not a slam dunk–in part because the recorded programs had originally been broadcast for users to watch them once, and most Betamax users watched their recorded programs once, shifting only the time at which they watched them. (Another reason the Court ruled for Sony is that the plaintiffs represented only a small portion of copyright holders affected by video recording. Other copyright holders–the sports networks, PBS, Mr. Rogers–did not object to their content being recorded by Betamax users.) YouTube is not perfectly analogous to the old broadcast networks, Sony does not fit perfectly.

Life Imitating Law?

Internet law students who remember Jones v. Dirty World, involving a federal court defamation suit by Cincinnati Bengals cheerleader Sarah Jones against gossip website The Dirty (the Eastern District of Kentucky ruled that it could exercise long-arm jurisdiction over the Arizona-based defendant) may be interested in this news report that Jones has been arrested.  It’s a bizarre twist if the allegations are true.

April 1st Arrived Early

In its ceaseless quest to evade the law The Pirate Bay announced plans to build drone-based airborne servers–what it called Low Orbit Server Stations (LOSS)–destruction of which the site said would be “a real act of war.” TPB is nothing if not amusing. Flying file-sharing drones is not an inherently crazy idea–well, maybe it is inherently crazy, but the Electronic Countermeasures project has created them. Not the same as what The Huffington Post describes as TPB’s “madcap, potentially tongue-in-cheek, but brilliant scheme,” but on the same continuum. It is brilliant–as marketing, not a workable plan to avoid the law.

I think LOSS really stands for Laughing Our Selves Silly.*

*Or other words that start with S.

The Fun Done Gone. Discuss.

To pull students’ noses out of my Internet Law Casebooks and their minds away from exegesis of the Sleekcraft factors in adword-based trademark infringement claims we will discuss No More Innovation for the Fun of It in Tuesday’s pre-midterm Internet law class. Is “[t]he Internet, with corporations sniping at each other and blithely ignoring major privacy violations, [] on the verge of the same fate as the true-blue American industries before it: losing its sense of fun[?]”

One thing you can take to the bank: my exams have not lost their sense of fun.

Revisionist History

Attention all GMailers, GCalenderers, Google+ers, and other Google users: Google’s new privacy policy goes into effect March 1, a/k/a tomorrow. As TechNewsDaily puts it, “all the data Google automatically gathers about you, such as the sites you visit, will be dumped into one virtual bucket with your name on it. While you can’t opt out of the new approach without abandoning Google sites, you can erase your browsing history.” Erasing your browsing history is easy; the linked article explains the steps. I just erased mine, after first checking out the oldest saved information–from 2005. Seven years of searches almost every day, stored under my profile in chronological order. I can’t think of one good reason not to erase it. You have just a few more hours to do so.

Dharun Ravi Trial

The prosecution is in the midst of presenting its case in Dharun Ravi’s trial for invasion of privacy of his Rutgers University roommate Tyler Clementi. Clementi committed suicide shortly after discovering that Ravi spied on him during a sexual encounter. Some observers see Ravi’s trial as critical to defining legal consequences for cyberbullying. Ravi is not facing criminal charges connected to Clementi’s death, but his suicide hangs over these proceedings as the tragic unintended consequence of Ravi’s spying. The video coverage of the trial is sad, a sobering demonstration of immature callousness and its consequences.

Tyler Clementi

The New Yorker’s February 6 edition has a long story about the Fall 2010 suicide of Rutgers University student Tyler Clementi that dispels some of the misconceptions that sprouted in its wake. The trial of Clementi’s roommate  Dharun Ravi began last week and is expected to last about a month. Ravi is charged with 15 counts including invasion of privacy, hindering prosecution, and bias intimidation, which carries a maximum prison sentence of 10 years. Ravi rejected a plea offer that would have imposed a maximum sentence of five years. My conclusion is that Ravi is an insensitive young man who did inexcusable, casually cruel things, but whose attitudes and actions still place him within the fat part of the bell curve  for 16-22 year old boys and men. It is also difficult to explain Clementi’s suicide in light of his behavior and demeanor in the days following the events and hours before he leaped from the George Washington Bridge. After reading the article I know more and understand less about whole story.

I Want My Megaupload Files*

Among the interesting legal issues raised by the U.S. Justice Department’s shutdown of Megaupload.com and criminal prosecution of its managers is whether those who used the site to store non copyright-infringing works will be able to retrieve their data. The government claims Megaupload’s legitimate data-transfer service was a front for systematic copyright-infringement, but there’s no claim that those engaged in legitimate uses were benefiting from or knowingly contributing to unlawful activity. So while the government prepares its case those legitimate users hang in limbo, unable to retrieve their data. The Electronic Frontier Foundation, with the support of Carpathia Hosting, is gathering information from those affected through megaretrieval.com and may initiate legal action to hasten the effort.

*not me personally.