Consumer Law & Policy Blog

Video Professor sues anonymous griping posters, demands their identities

by Greg Beck

Video Professor, a company that uses infomercials to sell computer-training lessons, sued 100 anonymous "John Doe" posters who expressed their opinions about the company on various online forums, including infomercialratings.com. The company's lawsuit claims that the griping posters violated federal trademark laws by saying negative things about the company, and committed defamation and several violations of state law. After filing suit, the company sent subpoenas to the operator of the websites, demanding the release of the posters' identifying information and the IP addresses from which they made the posts. Here's the complaint and the company's motion to subpoena the anonymous posters' identity.  The challenged posts are here and here. 

The Internet has become the preeminent forum for consumers to share information about products and services online. Courts have recognized that the First Amendment protects the right to post criticism anonymously, noting the risk that critical opinions would be chilled if the identity of anonymous critics could too easily be revealed. Indeed, Video Professor's own website advises consumers to search for customer reviews online:

[I]f you decide to use a lesser-known merchant, there are a few things you can do to check out the seller and make sure he’s legit. For one, you can visit the Federal Trade Commission’s Web site for links to consumer protection resources, including lists of complaints lodged against businesses. You also have the option of searching the business section of a major search engine, where you can view company profiles and customer reviews of that company’s products and services. Last but not least, you can request that a seller send you a catalog or other information about his or her company.

My colleague Paul Levy sent a letter to Video Professor today objecting to the subpoena.

Harvard bookstore claims copyright on prices

Can a store claim copyright on its prices to discourage comparison shopping? Harvard Coop thinks so. The bookstore invoked intellectual property rights in its prices to kick out a student who was taking notes on the price of books. The student wanted to compare the Coop's prices with prices available online.

Although simple facts, like the prices of products, are not copyrightable, that does not stop companies from claiming otherwise.

via Techdirt

Hoax or Spam Scam?

Earlier today I received an email which had been forwarded numerous times that read as follows:

Hello everyone!

The Ericsson company is distributing free computer lap tops in an attempt to match Nokia that has already done so. Ericsson hopes to increase its popularity this way. For this reason, they are giving away the WAP Laptops. All you need to qualify is to send this email to 8 people you know.

Within 2 weeks, you will receive Ericsson T18. But if you can send it to 20 people or more, you will receive Ericsson R320.

There are people within our building who have received their laptops so I thought I would share this information with you in hopes that you get one before they give them all out.

Make sure you send a copy to: [deleted].

Of course it doesn't make much sense that a company would give away free computers.  A little research turned up this web site reporting that the email is in fact a hoax and Ericsson itself has asked people not to forward the emails.  But I wonder: is it only a hoax or is this a clever attempt to generate lists of email addresses that can then be sold to spammers?  Recipients of the message who take it seriously can be expected to use real email addresses for their friends and the instruction to send a copy to the address I deleted above makes it possible for someone at that address to receive those addresses.    Anyone know?

Comparing Search Engine Privacy Policies

CNET compared the privacy policies of the major search engines and found that, on the whole, they are becoming more responsive to their users' privacy concerns. However, of the five largest search engines, only Ask.com said it would not keep records of its users' searches. For its part, Google recently announced that it would anonymize its users' search records after 18 months.

Protecting the Online Privacy of Children

Here is the abstract of an article on coordinating law and technology to protect the online privacy of children : 

At least two-thirds of children between the ages of 10
and 13 surf the Internet, MySpace has recorded more webpage views
than Ebay and Google combined, and the American Medical
Association has begun to advise parents about maintaining the
safety of their children online. The Internet brings rich content
to children and expands their horizons, but at the same time
creates dangers and risks to their privacy and well-being. In
2006, Xanga.com was fined $1 million by the Federal Trade
Commission for collecting information from children without
parental consent, in violation of the Children's Online Privacy
Protection Act (COPPA). The FTC has predicted since its COPPA
regulations in 2000 that technology would provide the answer to
protecting children online, yet no technology has emerged.
Clearly, Internet and communications technology have progressed
rapidly and significantly in over seven years, yet protection of
children's privacy seems to have been left behind. The authors
argue that it is possible, through the co-ordination of law and
technology, to facilitate a parent's protection of his or her
child in the online environment. The article briefly describes
POCKET (Parental Consent for Kids' Electronic Transactions), a
technology developed by the authors under a National Science
Foundation Cybertrust grant, to help protect children's privacy
online. The article concludes that the technology to protect
children that seemed so near when COPPA was initially adopted
should not be abandoned for less effective regulatory standards.

The article, titled "Pocket Protection," is by  France Belanger, Michael Hsiao, Jung-Min Park, all of Virginia Polytechnic Institute & State University, and is available at http://ssrn.com/abstract=1000427

Ninth Circuit Says Company Can't Change Contract Terms Without Notice

It may seem obvious to any first-year law student that one party to a contract can't change the terms of that contract without notifying the other. But the Ninth Circuit in Douglas v. US District Court ex rel Talk America, No. 06-75424 (9th Cir. July 18, 2007), had to remind the district court of this basic principle. In Douglas, Talk America had posted revised contract terms on its website, which included a mandatory arbitration clause for its customers. When Douglas, a Talk America customer, filed a class action lawsuit against the company, the company moved to compel arbitration based on the revised contract, and the district court granted the motion. Douglas petitioned the Ninth Circuit for mandamus. In granting the petition, the Ninth Circuit held that "[p]arties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side." The district court's decision, according to the Ninth Circuit, "reflect[ed] fundamental misapplications of contract law."

An unfortunately large number of companies try to get around this principle of contract law by requiring their customers to agree in advance that they will periodically review their contracts on the company's website for possible changes. One example is the service agreement that Network Solutions requires customers to agree to before signing up for its domain-registration and web-hosting services. When pasted into Microsoft Word, the agreement is 102 pages of single-spaced legalese. On page 8 is this provision:

Companies Claim Right to Interfere with eBay Auctions for Charging Too Little

by Greg Beck

I predicted here that companies would soon rely on the Supreme Court’s decision in Leegin Creative Leather Products v. PSKS to justify interfering with competition from less expensive products sold online. It did not take long for that prediction to come true. Although interference with eBay sales is nothing new (see here and here), companies in two recently filed federal cases explicitly invoke Leegin as a justification for terminating the eBay auctions of competitors that charge lower prices online. These cases not only show Leegin’s likely effect on Internet sales, but are also, unfortunately, fairly typical examples of the sort of anticompetitive actions companies take to fight lower-priced competition online.

Google and Privacy

Privacy advocates have lately been concerned about Google for a number of reasons.  Google reportedly retains records of user searches for eighteen months, has access to the emails of those using its gmail service, and can tell which addresses its users have searched for on Google maps, among other things.  Google's intended acquisition of Doubleclick has prompted EPIC, US PIRG and CDD to file a complaint with the FTC seeking an investigation into the privacy consequences of the acquisition (you can read the initial complaint here and supplementary materials here; EPIC has a page of information about the deal here).   

Google itself says quite a bit about privacy.  Highlights of its privacy policy appear here and from there you can jump to the full privacy policy.  Among the highlights is this quote: "We make good faith efforts to provide you access to your personal information upon request and to let you correct such data if it is inaccurate and delete it, when reasonably possible."  So on June 28, I sent Google the following email through its web site:

I have reviewed Google's Privacy Policy.  I would like to know what specific information, if any, Google retains about me.  For example, I would like to see a list of the search requests I have made that Google retains. 

Thank you.

I haven't yet heard back.  Google's web page through which I sent the email says "We'll review your note and follow up with you only if we require more info or we have additional info to share."  Consequently, I'm not sure if I will in fact hear back from them. 

How the Leegin Decision Will Hurt Consumers on the Internet

by Greg Beck

In Leegin Creative Leather Products v. PSKS, the Supreme Court last week overturned the nearly century-old rule in Dr. Miles Medical Co. v. John D. Park & Sons Co. that an agreement between a manufacturer and a distributor to set minimum prices is a per se violation of antitrust law. In doing so, the five-justice majority was persuaded by the amici curiae brief of twenty three economists, who argued that, at least in some cases, the availability of less expensive products on the Internet may be bad for consumers. The Supreme Court found persuasive the economists' argument that minimum-price agreements can help avoid the so-called "free-rider problem," which comes up when consumers shop at traditional retailers to make their decisions about what to buy but then use the Internet to find the cheapest available price. As the economists wrote:

Scam-Baiters Scam E-Mail Scammers

For those who would like to see e-mail scammers trapped in their own cons, Monday's Times had an article on people who do just that, headlined "A Web Cadre Turns the Tables on African Scam Artists."