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Google has lost a domain name arbitration against the owner of Oogle.com.  According to a report by the Domain Name Wire, Google charged the registrant of Oogle.com with cybersquatting.  Google was not happy that the domain name, which someone intending to visit its popular search engine could easily type in by mistake, points to porn sites.  It didn’t help either that Oogle.com was being offered for sale on a common domain name auction site for $300,000.  In his defense, the registrant argued that he registered the name before the Google mark was registered and gained popularity, although there is a dispute about whether a Whois search corroborates that.  The registrant also swore in a declaration that he registered the domain name because he was acquainted with a programmer who used the handle “Oogle” or “Criminal Oogle.”

The National Arbitration Forum panel expressed “extreme suspicions” about the registrant’s explanation, but ultimately found that Google failed to prove bad faith registration of the domain, which is required to obtain an order canceling or transferring a domain name.  So, the registrant can keep his name for now.  The panel did suggest that discovery in a legal proceeding could uncover evidence of bad faith.  Read the full decision here.

LegalTXT Lesson: Domain names can be valuable for branding purposes, so it’s important to brainstorm about  what typo-variations of your registered domain that you should also register.  At the same time, there are endless ways a domain name can be mis-typed, so one can only do so much (plus, being overzealous in registering domain names could in turn expose you to cybersquatting claims).  Still, considerable thought should be given to registering obvious typos, especially those with a salacious ring to it — like oogle, which does not require much imagination to associate with “adult” content.

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Netflix did not violate ADA because websites are not public accommodations under Ninth Circuit law — Cullen v. Netflix, Inc., 2012 WL 2906245 (N.D. Cal. July 13, 2012)

Several weeks ago,  I posted a blog entry about a Massachusetts case holding that Netflix violated the Americans With Disabilities Act (ADA) by failing to close-caption all of its streamed video content.  A California federal court recently ruled the opposite way.

As in the Massachusetts case, Cullen is based on the limited availability of closed-caption content in Netflix’s streaming library.  Cullen, the plaintiff, alleged in his class action lawsuit that Netflix failed to make good on promises to expand the number of closed-captioned titles it would offer to subscribers of its streaming service.  Cullen originally included an ADA claim in his lawsuit, but dropped the claim after being assured by the National Association of the Deaf and the Civil Rights Division of the Department of Justice that the ADA claim would be pursued in a separate case (i.e., the Massachusetts case that I previously blogged about).  Instead, the ADA issue comes up in a roundabout way–Cullen asserted a claim for violation of California’s Unruh Civil Rights Act.  The claim was based in part on ADA violations because a violation of the ADA is by definition a violation of the Unruh Act.  The court therefore analyzed whether the ADA was violated.

The court took note of the recent Massachusetts decision.  However, under Ninth Circuit law, a “place of public accommodation” under the ADA is limited to “an actual physical place.”   The court cites a string of precedent flowing from the Ninth Circuit’s decision in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000), holding that websites are not places of public accommodations under the ADA because they are not actual physical places.  Based on those cases, the court ruled that the Netflix website is not a place of public accommodation.  That meant that Cullen’s Unruh Act claim did not survive to the extent it relied on violations of the ADA.

Cullen also alleged violations of the Unruh Act independent of the ADA, as well as violations of other California statutes, but none of them fared well.  The court granted Netflix’s motion dismiss but gave Cullen a chance to amend his complaint.

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Twitter will appeal the recent decision of a New York court ordering it to turn over the tweets of an Occupy protester being prosecuted for disorderly conduct.  Twitter’s legal counsel, Benjamin Lee (@BenL) , announced the decision in a tweet (how appropos).  Read the Wall Street Journal story here.  We’ll follow the appeal.

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DMCA safe harbor provision applies to copyright infringement claims brought under state common law — UMG Recordings, Inc. v. Escape Media Group, Inc., 2012 WL 2847859 (N.Y. Sup. Ct. July 10, 2012)

A New York court ruled that the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA) apply to copyright infringement claims brought under state copyright law.  UMG Recordings (UMG), a division of Universal Music Group, sued the owners of the online music service Grooveshark for violation of copyrights in sound recordings created before February 15, 1972.  Why that specific date?  We’ll find out shortly.  According to UMG, Grooveshark allows its users to upload digital copies of songs through its website.  Grooveshark then copies the songs to its servers, from which users of the website can retrieve and access the songs by running a search by song title or artist.

Grooveshark argued that it qualified for the “safe harbor” provision of the DMCA that protects a service provider from copyright infringement claims based on its storage of the offending materials at the direction of a user.  UMG countered that the safe harbor applies only to copyrights created under and protected by the U.S. Copyright Act.  The claims at issue, however, were based on New York State common law, not the federal Copyright Act.  And while the Copyright Act preempts state law in certain instances, common law copyrights created before February 15, 1972 are not federally preempted until 2067.

The court doesn’t buy UMG’s argument.  The court found no indication in the text of the DMCA that Congress intended to limit the applicability of the safe harbors to just recordings made after February 15, 1972.  The terms “copyright owner” and “infringing” in the DMCA safe harbor provisions were no less applicable to common law copyright than to statutory copyright. Therefore, the court refused to dismiss the safe harbor defense.

 

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Section 230 of the CDA protects online news website from defamatory comment posted by anonymous person — Hadley v. Gatehouse Media Freeport Holdings, Inc.,2012 WL 2866463 (N.D. Ill. July 10, 2012)

This is a pretty straightforward Section 230 case.  Gatehouse Media Freeport Holdings, Inc. publishes The Journal-Standard.  Like many modern newspapers, The Journal-Standard is available in print and online.  The Journal-Standard published an article about Bill Hadley, a candidate for political office.  An anonymous person using the name “Fuboy” posted an online comment to the article saying that “Hadley is a Sandusky waiting to be exposed.  Check out the view he has of Empire from his front door.”  Hadley sued Gatehouse Media for defamation.

Gatehouse Media got the lawsuit dismissed based on Section 230(c)(1) of the Communications Decency Act of 1996, which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1).  As a website host that allows readers to post comments, Gatehouse Media was an “interactive computer service.”  A user who posts comments on the newspaper’s website is “another information content provider.”  That means Gatehouse Media is not considered the publisher or speaker of the allegedly defamatory comment directed at Hadley.

Hadley hypothesized that Gatehouse Media could have invented a fictitious person named “Fuboy” to post the comment anonymously.  There being no evidence, the court disregarded the argument as “sheer speculation.”

LegalTXT Lesson: Section 230 is a powerful shield against defamation in the digital age, and a much needed one given the ease with which anyone with a computer and an Internet connection can post outlandish remarks under the cover of anonymity on a website hosted by a member of the mainstreammedia.