Blog Ipsa Loquitur

Note from Dominic: this post was written by my good friend Raphael Majma, who is also a lawyer. Locate him on the Twitter and thank him for the post.

Over the last few days, I’ve been keeping my eye on Twitter. No, not to do a vanity check up on my follower numbers, but to search for “Marvel,” “Iron Man,” and “Spider-Man.” When I search for a few Marvel Comics related keywords, a strange thing happens:

There are two things we have to understand: Promoted Tweets and Search terms as copyright infringement. Promoted Tweets start off like any other Tweet, except advertisers pay for them to gain better placement on a user’s Twitter page or in their search results. In the case of the latter, advertisers can purchase the rights to certain search terms. If this sounds familiar to you, then you’ve probably read Rescuecom v. Google.

Twitter and Google both allow users to search for information. In addition to the user’s search results, Google also provides ancillary “context-based” advertising. In simpler terms, the stuff on the side of your screen that you never click on. One of Rescuecom’s competitors bought ad space from Google that would direct people looking for “Rescuecom” to the competitor’s site. Even though it was attached to a “Sponsored Link” tag, Rescuecom argued this was misleading and filed suit against Google for allowing competitors to purchase trademarked keywords.

To know why Rescuecom made such a stink, you’ll need to know a little bit about trademark law. In the simplest possible terms, trademarks protect brands. These brands are given protection depending on a number of factors, including use of the brand in commerce. When a brand is improperly used by a competitor, which means a number of things including misleading the consumer base, the brand owner can file suit.

The court ultimately decided that Google’s use of Rescuecoms trademarked keywords was an improper use of a trademark in commerce. The court’s decision was based on the fact that Google used and sold the Rescuecom trademark as a part of their advertising services. It’s not that it appeared as a searchable term, it’s that the term was suggested to and sold to competitors.

So what does this mean for DC? It all depends on how you view Twitter. Twitter isn’t a search engine and doesn’t actively refer you to competitor products. In fact, as of writing this my most recent check of “Spider-Man” on Twitter brings this up:

There’s no question in my mind that this constitutes a use in commerce. Spider-Man is pretty clearly trademarked by Marvel comics and DC is using that term to give their new comic initiative a boost. But does this mislead anyone? Is there a misappropriation when it leads to comments by Twitterers that offer no confusion outside of why on Earth someone would play Spider-Man 3?

In an interesting turn of events, as reported by the folks over at BleedingCool, Marvel has gotten in on the fun and has purportedly purchased DC related keywords on Youtube. You’ll have to see where the keywords showed up to believe it.

A lawyer for one of the defendants charged in the feds’ big ‘Anonymous’ case compared distributed denial of service (DDoS) attacks to civil rights era sit-ins and that time President Barack Obama told supporters to call their member of Congress, overwhelming switchboards.

Stanley Cohen, representing 20-year-old Mercedes Haefer on a pro-bono basis, told TPM that he got involved in the case because he didn’t like the way the feds were dealing with Anonymous.

DDoS attacks are kind of funny examples. A regular DoS attack leverages technology to let one person be a sit-in. That’s like being the only guy at a sit-in, but bringing a bunch of mannequins to clog up the business. That’s less an “exercise of free speech” and more “being that guy with a big backpack the waitress keeps tripping over.”

But a DDoS is more analogous to a bunch of people denying easy access to a lunch counter; at least until you start considering federal laws prohibiting unauthorized access to computer systems. The other thing to recall is that the people protesting at those lunch counters were convicted of trespassing and unauthorized blackness or whatever the stupid Jim Crow laws prohibited.

With the benefit of hindsight and an enlightened 21st Century perspective, we see now that the protesters were morally superior. But in Alabama in the 1950s, the guys behind the analog denial of service attacks went to jail.

I kind of love this whole thing. From Silicon Filter:

Earlier this year, Google alleged that Microsoft’s Bing search engine was copying its search results. To prove this, Google inserted fake search results for nonsense words like hiybbprqag, indoswiftjobinproductionand mbzrxpgjys into its index and, indeed, the fake search results later appeared on Bing. Google then went public with the findings of its sting operation and publicly accused Microsoft of piggybacking on its search results.

Besides the new definition for “hiybbprqag,” [Google Employee Andy] Arnt also found that Bing now defines the search for “more evil than satan himself” as 10^100 – a Googol, the word the Google founders used as the basis of their company’s name.

Of course, “more evil than satan himself” was the very first Google Bomb: it predates the term Google Bomb. It happened just after Google’s first birthday, whereupon the infant search engine soon found itself directing the ‘more evil’ query to Microsoft.com, naturally. Turnabout is fair play and fairly overplayed. There’s only one way to resolve a nerd fight – lightsabers at twenty paces!

The 4th Circuit Court of Appeals has just dismissed a lawsuit brought against the Patient Protection and Affordable Care Act. You can read the full opinion on the court’s web site (PDF link). The court ruled that the plaintiff, the Commonwealth of Virginia, had no standing to challenge the law, and so dismissed the lawsuit.

For a super short summary of standing, imagine me suing Michael Jackson’s doctor for malpractice; that lawsuit would be swiftly dismissed for lack of standing. Standing is a judicial concept meaning something like ‘plaintiff has suffered or will imminently suffer an injury caused by the defendant, over something a court can redress.” So while I might be sad that the King of Pop is dead, I’m not really injured in the kind of way his family and employers are; even if sadness were an injury (it’s not), the court can’t really do anything about it. Without standing, the lawsuit is dismissed.

Some news outlets are reporting this as big news, but it’s really rather inconsequential. Two of the circuits have already split on the issue of the Constitutionality of the PPACA, so the Supreme Court is almost certain to resolve the discrepancy.

How does a discrepancy arrive in the interpretation of federal law, you ask? Why, Dear Reader, I’m so glad you did. There are 11 subdivisions of the federal court system, called circuits. They’re laid out this way for historical reasons that make their boundaries look pretty random today. You can also tell that when they were drawing up the 9th Circuit, there probably weren’t a lot of folks in California yet, because that circuit is huge. Each of these circuits has its own districts courts and courts of appeals, and judicial precedent from one of the circuits doesn’t bind the other.

When the circuits have all agreed about an interpretation of a federal law, the Supreme Court won’t necessarily weigh in. But when there’s a disagreement, the Supreme Court usually steps in to ensure uniform application of federal law. Given the ambitious size and scale of the PPACA, I can’t imagine the Supreme Court would decline to hear the case.

Everyone clicks “I accept” on those terms of service or end user license agreements when registering for a web site or installing software. I’m a lawyer, and frankly, I think you’re nuts if you bother to read them. They’re often poorly-written, they often contain clauses that allow one party (not you) to change the terms at any time, and there’s no opportunity to meaningfully bargain over the terms of the contract.

But they are legally binding, by and large. It’d be kind of nice if these contracts weren’t virtually unreadable. Earlier this week, Gregg Bernstein, a master’s student at Savannah College of Art and Design, unveiled a new format for these agreements. While it doesn’t (and can’t) address the problems of being a daily one-sided affair, Gregg’s new design is immeasurably better than the status quo.

Read his thesis at I agree to _____. And for Pete’s sake, somebody give this guy a job.

From the Christian Science Monitor: the US government is suing banks for making lousy loans!

A U.S. regulator sued 17 large banks and financial institutions Friday over losses on about $200 billion of subprime bonds, which may hamper a broader government settlement of the mortgage mess left over from the housing crisis.

The lawsuits by the Federal Housing Finance Agency, which oversees Fannie Mae and Freddie Mac, surprised investors, dragging down bank shares and could add billions of dollars of legal costs at perhaps the worst possible time for the industry.

Ahem. bahahahaha