Laws of .com

Volume VI, Issue 17: October 30, 2008

Canadian Court Rules Linking Not Republication in Defamation Case

Woman Arrested in Connection with Virtual Killing

Yahoo Sued By American Airlines over Trade-Mark Search Terms

Google Faces Class Action Lawsuit over TypoSquatting

Canadian Proposed Podcasting Royalty Fight Not Over

eBay Buyer Feedback Alleged to be Libelous

Canadian Court Rules Linking Not Republication in Defamation Case

The Supreme Court of British Columbia has ruled that posting hyperlinks to websites containing defamatory material does not constitute publication.

The defendant Jon Newton operates a website called www.p2pnet.net (“p2pnet”), which contains commentary on issues surrounding the Internet as well as other subjects. Newton posted hyperlinks on p2pnet to websites containing materials which were allegedly defamatory against Wayne Crookes, a former Green Party organizer. Newton did not write the articles, he did not quote any of the allegedly defamatory words from the articles, and he expressed no views about Crookes.

In deciding that the mere creation of a hyperlink in a website does not lead to publication, Justice Kelleher analogized hyperlinks to footnotes. While a footnote may lead readers to further material, that does not make the author who provided the footnote a publisher of what the reader finds when the footnote is followed. Similarly, the purpose of a hyperlink is to direct the reader to additional material from a different source. The only difference between footnotes and hyperlinks is the ease with which a hyperlink allows the reader to instantly access the additional material. Such ease of access does not amount to republication of the content on the originating site.

For a copy of the decision (Supreme Court of British Columbia), visit:
Crookes v. Wikimedia Foundation Inc.

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Woman Arrested in Connection with Virtual Killing

A Japanese woman was recently arrested in connection with the killing of her virtual husband’s digital persona, which was prompted by the virtual husband’s divorce from the woman’s character in the virtual game world “Maple Story”. The woman is suspected of using the man’s identification and password to illegally gain access to and manipulate data to effect the virtual murder. The woman was apparently angry because her virtual character was divorced without warning. Similar to the virtual world “Second Life”, players in Maple Story represent themselves through digital character images called “avatars”, which engage in relationships and social activities as well as various game-specific activities. If charged and convicted, the woman could face a fine of up to $5,000 or imprisonment for a term of up to five years.

For additional information, visit:
http://news.yahoo.com/s/ap/20081023/ap_on_re_as/as_japan_avatar_murder

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Yahoo Sued By American Airlines over Trade-Mark Search Terms

American Airlines (“AA”) has filed suit against Yahoo Inc. over the search provider’s use of AA’s trade-marks such as “AAdvantage” and “American Airline”. AA’s complaint against these search engines is that, when users search for AA’s trade-marks, they are presented with links to competitors who pay the search engines for directing people to their websites. Yahoo takes the position that its trade-mark policy, which allows advertisers to use another’s trade-marked terms if it does so "without creating a likelihood of consumer confusion”, is correct and defensible.

Earlier this year, AA settled a similar claim against Google Inc. While the terms of the settlement with Google have not been disclosed, it is clear that searches for AA’s trade-marks on Google’s portal no longer produces ads on the right side of the search results screen.

For additional information, visit:
http://tech.yahoo.com/news/ap/20081021/ap_on_hi_te/american_airlines_yahoo

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Google Faces Class Action Lawsuit over TypoSquatting

Benjamin Edelman, a professor at Harvard Business School, has filed a class action lawsuit for trade-mark infringement against Google and several large “typosquatting” companies. The class action was filed on behalf of American trade-mark holders whose websites have been targeted by typosquatting websites. A typosquatting website has an address almost identical to the website that an Internet user wants to visit. It generates traffic by relying on mistakes, such as typographical errors, made by the Internet user when inputting the intended website address into a web browser. Should a user accidentally enter an incorrect website address, they may be led to the typosquatting website.

Typosquatters make money by selling space on their websites to advertising networks, such as Google, who in turn recruit advertisers. Professor Edelman alleges that when the Internet user clicks on Google-supplied ads on the typosquatting site, the advertiser pays Google money and Google in turn pays the owner of the typosquatting website. Professor Edelman estimates that if each typosquatting website earns USD$25 from Google each year, Google might charge advertisers between USD $32 and USD $50 per year to place ads on just one of these websites.

For additional information, visit:
http://en.wikipedia.org/wiki/Typosquatting
http://www.thecrimson.com/article.aspx?ref=524698

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Canadian Proposed Podcasting Royalty Fight Not Over

The Copyright Board of Canada (the “Board”) issued a new decision on October 24, 2008 in regards to Tariff 22 (the “Tariff”) and the prospect of royalty collection from thousands of websites and web-related broadcasters in Canada. The Tariff, which targets Internet-based radio stations, electronic gaming sites and non-commercial radio station webcasts, establishes royalty rates from 5.3 per cent of revenues for deemed high users of music to 0.8 per cent of revenues for deemed low users of music.

The Society of Composers, Authors and Music Publisher (“SOCAN”), the driving force behind collecting music royalties in Canada, argued that the Tariff should also include the broad range of websites that make use of music, but not as their main activity. Such websites include social networking sites and other commercial sites that may have background music. Ultimately, the Board rejected imposing the Tariff on such sites because it would be disruptive and unfair to set a tariff that would apply to hundreds of thousands of users whose use of music is very modest, and because of the absence of reliable evidence on which to base a tariff.

However, the Board hinted that it may consider switching from user-based tariffs to use-based tariffs. This would mean that the Board would be entitled to collect royalties based on the number of times a song is played rather than on the category of user.

For additional information, visit:
http://www.thestar.com/sciencetech/article/524978

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eBay Buyer Feedback Alleged to be Libelous

The online retailer eBay provides its users with a feedback mechanism that allows them to post comments about buyers. Using this feature, a British eBay buyer recently posted a negative review of a seller over a cellular telephone he purchased using the eBay platform. When the buyer received the phone, it was the wrong model and it was chipped. This information got posted as feedback about the seller, who then demanded that the buyer remove the comment or face court action.

The seller claims that the negative comment has damaged his business. In addition, the seller argues that the posting should be removed since he returned the buyer’s money. The buyer has indicated he is willing to go to court to fight for his right to comment.

While this particular lawsuit seems doomed to fail based on the fact that the review seemed to be both factual and true, it serves as a cautionary tale to the many Internet users that post feedback about businesses on the Internet. It should be noted that eBay has a feedback dispute resolution mechanism that was not resorted to in this case.

For additional information, visit:
http://www.timesonline.co.uk/tol/news/uk/article5009293.ece

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