Blockbuster may not be able to rely on the what I learned in Kindergarten defense when it answers charges it illegally shared a plaintiff’s movie preferences with third parties. In a suit filed in Texas earlier this month, Cathryn Harris sued Blockbuster for sharing her rental history on Facebook.

The suit, which is currently seeking class action status, claims Blockbuster’s actions of feeding renters video choices to a news feed violate the Videotape Privacy Protection Act, (“VPPA”) which states in relevant part that a video tape service provider is liable under the VPPA if that provider knowingly discloses personally identifiable information without the renter’s “informed, written consent.” Harris contends the online “opt out” options she was given did not constitute her informed written consent as intended by the VPPA.

The sharing comes as a result of Blockbuster’s participation in the Beacon advertising program, which has received considerable attention and criticism from consumer activist groups and corporations over the past 18 months. Beacon is a form of “social advertising” that allows Facebook friends to see your purchases (as well as other transactions you make) through news feeds. After considerable controversy, Facebook changed the “opt out” provision to an “opt in” provision, so that users would not inadvertently share their personal information simply by accepting the use agreement. Even so, last year, Coca-Cola announced it would not be participating in the program, as did Overstock.com and several other companies, citing privacy concerns. For instance, research showed that participating companies were sending information to Facebook even for buyers who were not Facebook members. Although Facebook claims it deletes such information if and when it is received, many partner sites determined the program contained too many privacy problems for them to feel comfortable participating.

The VPPA was enacted in 1987. It is rarely cited and was clearly not created with the sort of digital transmission of private information in mind that happens today. In fact, the VPPA was enacted after Robert Bork’s video rental history was published during his Supreme Court nomination hearings.

Practice Note: Privacy policies are tricky things. Clients should be advised to create policies that they can follow. Any updates to a privacy policy, particularly ones that will change the way a user’s information is shared, should be highlighted in bold.

Jacobsen v. Katzer, No. C06-01905 JSW, 2007 U.S. Dist. LEXIS 63568 (N.D. Ca. August 17, 2007)

This little case about model railroad software addresses a debated issue in the open source community: on what basis can open source creators sue people who misuse their work. This case seems to suggest breach of contract is an available remedy, but not copyright infringement. The case also deals with copyright law preemption.

Plaintiff developed model train software made available on this online community. Plaintiff’s work was subject to a standard open source software license permitting members of the public to make copies, distribute and make derivative works, providing they gave credit to the creators. Plaintiff alleged that defendants used plaintiff’s software to develop and fraudulently patent their own software for model train enthusiasts. Plaintiff sued on a number of counts and moved for a preliminary injunction to enjoin defendants from willfully infringing plaintiff’s copyrighted materials.

The court first held that plaintiff’s claims of unfair competition and unjust enrichment were preempted by federal copyright law, as both counts dealt “exclusively” with the misappropriation of plaintiff’s copyrighted files, a subject matter within the Copyright Act. To survive preemption the state claims must protect different rights than copyright rights. The state claims here did not add the required “extra element” to change the nature of the action or the rights secured under copyright law.

The court then denied plaintiff’s injunction, stating that plaintiff’s claims sounded in contract, not copyright. The court held that, implicit in a non-exclusive license like this one was a promise not to sue for copyright infringement. That is not to say that a licensor may never sue for copyright infringement, but they may only do so when the licensee exceeds the scope of the license. In this case, the license, like all open source licenses, was intentionally broad, closing the door to a copyright claim.

The Internet Optimization Bureau, an official sounding organization bearing a government-like seal, has been fowarding invoices to unsuspecting domain name owners, directing them to pay upwards of $300.00 to maintain a service these holders never bought in the first place.

The scam seeks to target people who fear that their domain name will be canceled if they don’t renew. The company has used several unfair business practices, including using a government style seal, not properly disclosing that what they are sending is an advertisement, referring to the ad as an “invoice,” and directing it to accounts payable. According to a spokesperson at the FTC, these phony invoices scam great numbers of consumers. This law firm was recently sent 3 separate “invoices” to pay for domain name maintenance that was never purchased in the first place. To download a copy of the invoice, please click here

Under federal and state law, there are specific provisions that address and proscribe using, distributing, or selling a written communication that simulates or is represented falsely to be a document authorized, issued, or approved by a court, an official, a governmental agency, or any other governmental authority, or that creates a false impression about the communication’s source, authorization, or approval. This document has been forwarded to the state attorney general and to the FTC for possible prosecution.

Interestingly, soon after receiving the invoice, this firm received a second communication, rescinding the “invoice,” most likely because it realized it was trying to scam a law firm. To download a copy of this correspondence, click here.

Practice Pointer: Warn clients that they may receive such phony communications, either in the form of an Internet Renewal/Domain Name Renewal, or in the form of a Trademark Maintenance Service. Our policy is to have clienst forward any and all communications requesting money for trademark work or internet work directly to the firm for review. In 100% of the cases, they have been money scams.

U.S. District Court Judge Amy St. Eve has, at the request of the FTC, frozen the assets of Clevelink Trading and Real World Media after receiving complaints that the companies were driving traffic to their sites in violation of the recently enacted CAN-SPAM Act.

The FTC alleges that the spam sent out by Defendants contained a “date lonely wife” subject line and a brief message containing a hyperlink to Defendants’ website. The methods used by the Defendants to send the messages violated a number of provisions of the CAN-SPAM Act, including a provision requiring marketers to adequately label messages containing adult sexual content.

The FTC alleges that the Defendants operate close to 200 websites, many of which falsely claim to be registered with other entities around the world. In addition, defendants use offshore payment processors, have foreign bank accounts, route the messages through other people’s computers (to throw off enforcers), have false contact email addresses, and don’t allow people to unsubscribe. Perhaps most importantly for some consumers, there were no lonely housewives to date at all. That’s just plain wrong.

Practice Pointer: The CAN-SPAM Act, which went into effect January 1, 2004, covers email transmission where the primary purpose of the email is commercial in nature. Operators of websites should familiarize themselves with the basic provisions of the Act. In its most basic form, the Act bans the use of false or misleading headers, prohibits deceptive subject lines, and requires that commercial emails have an “opt-out” mechanism so consumers do not have to receive future emails.

Google News, one of the more recent additions to the Google family of specialty sites has been sued in the District of Columbia by Agence France Presse (AFP), the French equivalent of the Associated Press. In the suit, AFP claims that Google News is “reproducing and publicly displaying AFP’s photographs, headlines, and story leads on Defendant’s news aggregation Web site.” In addtion, the suit claims that Google also is stripping from the lead stories AFP’s copyright information.

Pivotal to this case will be the question of whether — in the new digital age — publishers of content have any duties beyond those noted in the Copyright Act to keep information on their web sites from being indexed by news web crawlers, like the ones at Google. According to Google, technology is available to block the web crawlers used by Google. AFP claims that a copyright statement is sufficient to ward off would-be infringers, and that it has not responsibility to purchase technology to keep out Google.

Other issues that will no doubt come up in the case include whether the headlines that Google is taking constitute the heart of AFP’s creative authorship. On the one hand, headlines typically constitute only a few words compared to the total article. On the other, many copy editors work very carefully to craft headlines that will attract the reader and accordingly, can come up with some unique presentations. Then again, many news organizations use a technology called Real Simple Syndication, which automatically pushes headlines to users. Such widespread use of this type of technology suggests that the market for purchasing the article may not be depleted by the taking of the headlines.

One hopes that Google’s litigation budget is not yet maxxed out. Google also recently launched a service called Google Books. According to Internetnews.com, Google Books indexes the content entire books such that a search query might trigger a quote from one of them. Shakespeare, perhaps or other books in the public domain may be fair game; still, wethinks we smell something smouldering.

The Sixth Circuit Court of Appeals affirmed a lower court decision that transferred ownership of the domain name foradodge.com to Daimler-Chrysler, finding that the original registrant of the domain had a bad faith intent to profit from the mark, which was confusingly similar to Dodge’s advertised phone number 1-800-4-A-DODGE.

The case, Daimler-Chrysler v. The Net, Inc. Case No. 03-1950, 04a0368 p.06 (6th Cir. Oct 28, 2004), was on appeal from the defendant who challenged the holding of the lower court that 1) plaintiffs had established trademark rights in FORADODGE, and 2) that defendant had acted in bad faith in registering the domain name in the first place.

As to the first point, the defendant argued that the plaintiff merely used the mark 4-a-dodge as a phone number, and not as a trademark, contrasting it with marks such as 1-800-flowers, which is the actual business name. The Sixth Circuit disagreed, finding that the test is not merely whether the mark is used as a trademark, but whether consumers would believe that the 4ADODGE website, which incorporated the DODGE trademark , was related to or sponsored by Daimler-Chrysler. The Court dismissed slight differences in the spelling of the domain as immaterial.

The Court also rejected the defendant’s second claim that he had not registered the domain in bad faith. The defendant claimed that he was planning to use the website to help consumers circumvent or //dodge// certain realities of life, such as paying taxes and parking tickets. The Court didn’t buy it, finding that the defendant qualified for all but one of the nine-factor test for a showing of bad faith.