Top Internet Law Developments of 2010
This post will recap some of the major Internet legal developments of 2010. I start with my top 5:
- 5. Google pulls out of China. China's native search engines rejoice, but is this really a win for China's long-term prospects? Meanwhile, I keep hoping Google will do the same in the EU too, given how much the EU regulators hate Google.
- 4. COICA and the pre-enactment COICA workaround, ICE's lawless seizures of supposedly pirate-oriented domain names. This shows that, once again, domain name censorship is irresistible to government regulators.
- 3. Righthaven goes on a litigation frenzy on behalf of newspapers. Which do you think will happen first: bloggers stop discussing newspaper articles for fear of being sued, or newspapers going out of business? What's amazing is that newspapers don't realize that the first will accelerate the second.
- 2. Oracle gets $1.4B+ from SAP for competitive scraping. Oracle hit a grand slam with the damages in this case, ranking highly on several all-time-largest-awards charts.
And the top cyberlaw story of the year goes to...
- 1. WikiLeaks. WikiLeaks finally forces us to confront many of the cyberspace governance issues we were debating in 1996. I'm sad to say that our government, and many private businesses, failed the test.
Other Key Developments
Other interesting legal developments are included in this section.
Tiffany v. eBay
The Second Circuit thumps Tiffany's pathetic arguments and gives eBay a clean bill of trademark health. However, this ruling just preserved the status quo, so for my money, the much more important secondary trademark rulings involved providing other services to alleged counterfeiters. See Gucci v. Frontline, potentially exposing credit cards and other payment service providers to secondary liability for providing payment services to alleged counterfeiters, and Roger Cleveland Golf v. Price, potentially exposing SEOs/web designers to secondary liability as well.
Viacom v. YouTube and Arista v. Limewire
These companion cases told us what we already knew: YouTube + 512(c) defense = good, P2P file sharing software vendor - DMCA safe harbor = bad.
Sony v. Tenenbaum
I'm still waiting to see if this case is a blip or a watershed. It has the potential to make every copyright statutory damages case into a constitutional due process inquiry.
Legally, it was a good year for Google. Google got a favorable trademark ruling in the ECJ. Google got a decisive win in its Rosetta Stone AdWords trademark case (and, as mentioned before, the YouTube case as well). Most of the other trademark plaintiffs lost or simply gave up.
Legally, it was a lousy year for Google. Everyone in the world seems to be considering if they can run Google's algorithms better than it can: EU antitrust regulators, French antitrust regulators, the Texas attorney general, private plaintiffs, The New York Times, and so many more. Google got trapped in a dangerous antitrust litigation in the unfavorable venue of the Ohio state court. Google Street View has been a legal train wreck world-wide. The Department of Justice busted up a possible hiring cartel among Silicon Valley companies, and Google almost immediately handed out 10 percent pay raises for everyone. Buzz was a lousy product with a horrible launch, and it led to a multi-million dollar litigation kicker.
Perfect 10 v. Google. Google gets yet another win in this case, this time on 512(d)—one of the few cases interpreting the 512(d) safe harbor for linking to infringing content.
It was a quiet year for 47 USC 230 litigation. From my perspective, quiet is good! The biggest defense win of the year: Milgram v. Orbitz. The biggest plaintiff win of the year: Swift v. Zynga.
Ninth Circuit Cases
Notice I didn't put any of the Ninth Circuit Internet law jurisprudence on the list. There were plenty of interesting rulings this year:
- Krottner v. Starbucks
- MDY v. Blizzard
- Vernor v. Autodesk
- DSPT Intl. v. Nahum
- The Freecycle naked licensing case
- Advertise.com v. AOL
- Toyota v. Tabari
- VISA v. JSL
- CRS Recovery v. Laxton
- Office Depot v. Zuccarini
However, I have lost all faith that three-judge panel decisions by the Ninth Circuit have any binding precedential on other panels, so every case is effectively a one-off.