Archive for the ‘Internet Service Providers’ Category
May 3, 2013
Daniel J. Gervais (Vanderbilt University – Law School), Martin L. Holmes (Parker Poe Adams & Bernstein L.L.P.), Paul W. Kruse (Bone McAllester Norton PLLC), Glenn Perdue (Kraft Analytics, LLC) and Caprice L. Roberts (Savannah Law School) have published “Is Profiting from the Online Use of Another’s Property Unjust? The Use of Brand Names as Paid Search Keywords”, IDEA: The IP Law Review, Vol. 53, p. 131, 2013. The abstract reads:
This article begins with a basic question: Is Google’s profiting from the use of another’s brand in its AdWords program unjust? Answering that question will profoundly affect the online economy. Indeed, many services, including most of those offered by Google, are funded by advertising revenue, a large portion of which comes from the sale of third-party brand names. Academic articles and court opinions thus far have applied trademark law when evaluating liability. The consensus view, including the Fourth Circuit’s recent Rosetta Stone opinion, finds no infringement by Google — third-party purchasers of AdWords may be liable for dilution or infringement claims — even though Google profits from every sale while brand owners often suffer a prejudice from the sale and use of their brand name. If one agrees that this misuse is a wrong that must be remedied, are there other avenues to explore beyond the strictures of trademark law? The law usually takes a dim view of one who uses a third party’s property without authorization and yet in the case of AdWords, it has not — at least not up to now.
This inconsistency arises from a failure to reach beyond the limits of trademark law in search of a remedy. After evaluating several legal and equitable bases for a remedy and surveying the preemption question as it interfaces with trademark law, the authors advance unjust enrichment as the best legal basis of liability and remedy for the unauthorized, profitable and therefore wrongful use of another’s property. Such a remedy would impose reasonable limits on the use of brand names in AdWords.
A copy of the paper is available for download via SSRN here.
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Tags:AdWords, Brand, Google, Google Analytics, Law, Rosetta Stone, Search, Search Engines
Posted in AdWords, dilution, Google, internet, internet law, Internet Service Providers, keywords, restitution, third-party brand names, trademark infringement, unjust enrichment | Leave a Comment »
February 4, 2013
Catherine R. Gellis (Digital Age Defense) has published “2012 State of the Law Regarding Internet Intermediary Liability for User-Generated Content“, Business Lawyer, Vol. 68, No. 1, 2012 which contains a summary of key cases regarding 47 U.S.C. Section 230 and 17 U.S.C. Section 512.
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Tags:Blog, Communications Decency Act, Digital Millennium Copyright Act, Internet service provider, Law, Section 230 of the Communications Decency Act, United States, User-generated content
Posted in 17 U.S.C. Section 512, 47 U.S.C. Section 230, blawging, Blawgosphere, blawgs, blog, communications, hyperlinking, intermediaries, intermediary liability, internet, internet defamation, internet jurisdiction, internet law, Internet Service Providers, Online Defamation, Section 230, user-generated content, website | Leave a Comment »
January 10, 2013
Mohamed Ali Saeh (Queensland University of Technology – Faculty of Law) has posted “Online Defamation and Intermediaries’ Liability: International”. The abstract reads:
The Internet technology and the increasing popular World Wide Web have brought enormous benefits to our lives, with their emphasis on free and easy communication. It has become simple for people to buy books, make electronic payment for tickets or goods and even work online. Additionally, information can now be shared a more expedient way amongst a greater number of individuals than even before. As a consequence of this technological advance, it often becomes impossible to identify the source of material made available online and whether that material is subject to copyright infringement, trade mark infringement, and online defamation or is an obscene publication.
In recent years, the Internet technology and the increasing popular World Wide Web have brought enormous benefits to our lives, with their emphasis on free and easy communication. It has become simple for people to buy books, make electronic payment for tickets or goods and even work online. Additionally, information can now be shared a more expedient way amongst a greater number of individuals than even before. As a consequence of this technological advance, it often becomes impossible to identify the source of material made available online and whether that material is subject to copyright infringement, trade mark infringement, and online defamation or is an obscene publication.
According to the article 19 of the Universal Declaration of Human Rights (UDHR) 1948, “everyone has the right to freedom to hold opinions without interference, and to seek, receive and import information and ideas though any media regardless of frontiers.” This right is known as “Freedom of expression”. Furthermore, the United Nations, Human Rights Commission expressed that the internet should be used “not only as a means of exchanging and disseminating information, but as a tool to improve the enjoyment of human rights such as freedom of expression”
Although the internet facilitates quick communications between people, it also provides an opportunity for dishonest users to do lasting damage to another’s reputation. This cyber damage not occurs on a wide scale, but also in the inexpensive and most expedient way. As it has been said “sticks and stones can break your bones and even words can hurt you.” The Cyber defamation is intentional infringement to another person’s right to his or her good name. As this type of offence occurs on the internet, it can be seen, heard or read on computers by millions of users worldwide. The victim may be subject to immeasurable moral damage because the information might be incorrect and people might believe it. Therefore, the question raised hear is to determine who is responsible for this online offence such as uploading a file or pictures that contain a defamatory material or sending emails contain such material. Of course, the primary publishers who disseminate the defamatory material will be liable, such as senders of an e-mail messages or web site content providers. However, the issue here is the potential responsibility of the mediator. For instance, Internet service providers (ISPs) and bulletin board operators should be held liable in certain circumstances, because they are able to remove or block offending material. Most countries have attempted to apply and adjust their existing domestic laws to extend to online defamation. However, the issue of potential liability of intermediaries, especially in so far as online defamation is concerned, will require legislative and jurisdictional cooperation to find clear and effective solutions.
Download a pdf copy of the paper via SSRN here.
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Posted in cyberlibel, cyberspace, intellectual property, intermediaries, International, international dispute resolution, international law, international litigation, internet defamation, internet law, Internet Service Providers, ISP, Online Defamation, online reputation, Universal Declaration of Human Rights (UDHR) | Leave a Comment »
September 28, 2012
Lili Levi (University of Miami – School of Law) has published “The Problem of Trans-National Libel”, American Journal of Comparative Law, Vol. LX, No. 2, Spring 2012/ University of Miami Legal Studies Research Paper No. 2012-25. Here’s the abstract:
Forum shopping in trans-national libel cases “libel tourism” has a chilling effect on journalism) academic scholarship) and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2070) the United States passed the SPEECH Act) which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain) consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which the SPEECH Act and the Draft Defamation Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability journalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover) even if Parliament approves reform legislation discouraging libel tourism) such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain’s proposed libel reform legislation and calls for foreign courts) when assessing the significance of contacts to the forum in cases affecting the United States) to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition) the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct.
A copy of the article is available for download via SSRN here.
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Tags:Britain, Defamation, Government, Law, Libel tourism, Philippine, United Nations Human Rights Committee, United States
Posted in cyberlaw, cyberlibel, cyberspace, defamation, Defamation Act 2011, Defamation Law, First Amendment, free speech, Freedom of expression, freedom of speech, internet, internet defamation, internet jurisdiction, internet law, Internet Service Providers, libel, Libel Tourism, libel tourist, SPEECH Act, Transnational, Transnational Law, transnational litigation, United Kingdom, United States | Leave a Comment »
September 19, 2012
Melissa De Zwart (Adelaide Law School, The University of Adelaide) has published “Don’t Shoot the Messenger: Wikileaks and the Future of the Internet”, (2012), Telecommunications Journal Of Australia, Swinburne University of Technology 62 (4) p. 60. [registration required]. The abstract reads:
This article identifies some of the motivations behind, and the activities of, WikiLeaks. It then analyses the broader implications of the actions taken to withdraw funding support from WikiLeaks through the so-called ‘Banking Blockade.’ This article then considers the impact of the Banking Blockade which effectively dried up donations to WikiLeaks in 2010. It assesses what this means for the future of the Internet itself as an increasingly privatised domain, where the power of contract can overcome protections offered by the general law.
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Tags:Australia, Denial-of-service attack, Julian Assange, MasterCard, United States, University of Adelaide, Visa, WikiLeaks
Posted in cybercrime, cyberlaw, internet, internet law, Internet Service Providers, Julian Assange, WikiLeaks | 1 Comment »
Antonin I. Pribetic
