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March 6, 2004

Surprise Domain Name Decision [5:06 pm]

At least to me — Slashdot points to this article, Canton woman wins Web free speech case

Anyone who has thought about developing a Web site to gripe about a company owes Michelle Grosse some thanks.

The U.S. 6th Circuit Court of Appeals in Cincinnati ruled Friday that the Canton woman did not violate the law when she used the name of Lucas Nursery and Landscaping Inc. for a Web site she created to complain about the Canton nursery.

The opinion: Lucas Nursery and Landscaping, Inc. v. Michelle Grosse [pdf]

The paradigmatic harm that the ACPA was enacted to eradicate — the practice of cybersquatters registering several hundred domain names in an effort to sell them to the legitimate owners of the mark — is simply not present in any of Grosse’s actions. In its report on the ACPA, the Senate Judiciary Committee distilled the crucial elements of bad faith to mean an “intent to trade on the goodwill of another’s mark.”

[...] None of these factors militates against Grosse. There is no dispute that Lucas Nursery did not have an online location, and hence Grosse’s creation of a web site to complain about Lucas Nursery’s services could not have been intended “to divert consumers from the mark owners’s online location.” Nor is there any evidence that Grosse ever sought to mislead consumers with regard to the site’s sponsorship. The web site explicitly stated that the site was established by Grosse for the purposes of relaying her experience with Lucas Nursery. Moreover, Grosse never offered to sell the site to Lucas Nursery. She also did not provide misleading contact information when she registered the domain name. Finally, she has not acquired any additional domain names, which would be indicative of either an intent to sell such names to those entities whose trademarks were identical or similar, or exploit them for other uses.

[...] [S]he does not fall within the factor that we consider central to a finding of bad faith. She did not register multiple web sites; she only registered one. Further, it is not clear to this Court that the presence of simply one factor that indicates a bad faith intent to profit, without more, can satisfy an imposition of liability within the meaning of the ACPA. The role of the reviewing court is not simply to add factors and place them in particular categories, without making some sense of what motivates the conduct at issue. The factors are given to courts as a guide, not as a substitute for careful thinking about whether the conduct at issue is motivated by a bad faith intent to profit. Perhaps most important to our conclusion are, Grosse’s actions, which seem to have been undertaken in the spirit of informing fellow consumers about the practices of a landscaping company that she believed had performed inferior work on her yard. One of the ACPA’s main objectives is the protection of consumers from slick internet peddlers who trade on the names and reputations of established brands. The practice of informing fellow consumers of one’s experience with a particular service provider is surely not inconsistent with this ideal.

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Treaties As Extensions To IP Law [2:53 pm]

This general strategy of expanding IP through treaty (followed by arguments to adjust domestic laws to ensure consistency) has been discussed before in general — Slashdot has a specific case to cite today: Australia-U.S. Trade Agreement Contains DMCA-like Provisions

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Ellison v. AOL Remanded, Reversed, etc. [2:43 pm]

Slashdot reports that the Ninth Circuit has declared that AOL cannot be construed as a safe harbor under the DMCA without further trying of the facts - here’s the decision: Harlan Ellison v. Stephen Robertson and AOL, Inc.

We hold that the district court erred in granting AOL’s motion for summary judgment. We affirm the district court’s holdings as to vicarious and contributory infringement, but we reverse the district court’s application of the safe harbor limitation from liability. There are triable issues of material fact concerning whether AOL meets the threshold requirements, set forth in § 512(i), to assert the safe harbor limitations of liability of §§ 512(a-d). If after remand a jury finds AOL to be eligible under § 512(i) to assert the safe harbor limitations of §§ 512(a-d), the parties need not relitigate whether AOL qualifies for the limitation of liability provided by § 512(a); the district court’s resolution of that issue at the summary judgment stage is sound. We affirm in part, reverse in part, and remand.

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GrokLaw Responds To Enderle’s Allegations [2:27 pm]

Surprise! Once again, Rob Enderle demonstrates that he’ll be attack dog (or something more coarse) for the Microsoft axis (what I was alluding to in the OS/2 comment earlier).

GrokLaw has responded, and ZDnet published the letter: Letter to the Editor: No IBM-Groklaw connection (See GrokLaw’s entry)

I don’t have any connection to IBM professionally or personally. I never have had any such connection. I have never even been inside an IBM building. They haven’t given me any financial support of any kind. Not a dime. Not a promise. Not a grant. Not a PIPE deal. Not an envelope of money under the table from a cousin. Not a Thinkpad. Nothing. IBM does not sponsor Groklaw.

[...] Groklaw is a labor of love. SCO seems to find it hard to believe that I would do this as a volunteer. But I do. They don’t understand wanting to pool knowledge period, being a bit old-fashioned in their thinking. Groklaw is my thank you to the GNU/Linux developers who gave the world an operating system that I enjoy using, because of the freedoms that come with the software. Groklaw is also an idea, an innovative attempt to use a kind of open source method for group legal research, something the Internet makes possible, and it’s been an enjoyable experiment and a successful one.

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Ed Felten on the EFF Compulsory Licensing Proposal [2:22 pm]

Implementing EFF’s Alternative Music License [via Copyfight]

It seems to me that if the EFF plan is going to happen, it will start with a deal between the RIAA and a university, in which the university creates a fund to pay out to copyright holders, in exchange for (a) free rein to do anything at all with copyrighted music within the campus (but not to distribute it outside the campus), and (b) permission for anyone, either on the campus or off, to transmit music to people on campus.

The university could help ensure compliance by blocking P2P traffic that would otherwise lead to outgoing transfers of music. (As always, the blocking would be easily circumvented by those who wanted to do so. Its only purpose would be to let well-intentioned people share music within the campus without accidentally making it available to outsiders.)

This is a much better deal for universities than a Penn State-style transaction, in which a university buys its students subscriptions to a limited music service. An EFF-style license allows unlimited use of music in courses, and it allows students and faculty to experiment with new uses of music. It also allows cross-university sharing and collaboration on music projects, if multiple universities join.

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Capitalis Pirata Font [2:15 pm]

[From March 2004 Fast Company] Plazm has a free font download: Capitalis Pirata - letters made from corporate logos:

Download your FREE version of Capitalis Pirata now. Corporate pirates, this is the tool for you!

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