Wednesday, December 19, 2007

Who was the true father of the Internet?

Pop quiz: Who said:
It is from this paper that the rumor was started that the Internet was created by the military to withstand nuclear war. This is totally false. Even though this Rand work was based on this premise, the ARPANET and the Internet stemmed from the MIT work of Licklider, Kleinrock and Roberts, and had no relation to Baran's work.
We've been focusing on history lately. On November 29 & 30, in Washington DC was an NSFNET Celebration. It was an oral history project. Lots of the primary folk from the primary organizations (NSF, MERIT, IBM, MCI) were present, retelling the NSFNET Story. It was fascinating. It was, like so many things, like looking a picture in black and white, and then seeing the same picture in color. So much was added to the history. Things like - the "network of network?" - that was NSFNET. NSFNET established the network hierarchy and "tiers." Where NSF's "cooperative agreements" came from and how that created the foundation of future policy struggles. This was not, after all, a simple R&D and transfer of technology project that NSF funded. This was, as the NSFNET Final Report stated, communications infrastructure, vital to the success of our economy and culture.

All this led to significant revisions to CT's history section. Take a look; give feedback!

BTW, the lead-in quote was by Larry Roberts, the head of ARPANET in the late 1960s, who has a pretty decent first hand perspective on why he built the ARPANET (aka Internet) the way that he did.

Friday, November 16, 2007

Caselaw Construing 47 USC 230 Immunity is Surprisingly Scant

At least according to one Arizona Superior Court: Children of America v. Magedson, CV 2007-003720 (AR Superior Court Oct. 31, 2007).

The court's order itself is "surprisingly scant," thus we know little of the facts surrounding this case. What we do know is that once again it involves Jinkees! The Sec. 230 caselaw for this one defendant is surprisingly robust. must have some well paid attorney on retainer that does little more than mash the print button for the proforma Sec. 230 Motion to Dismiss form... merely taking a bit of time to scrawl in the name of the latest plaintiff.

Of course, if the court's law clerks are too busy researching water rights cases, we are glad to refer them to our "surprisingly scant" list of Sec. 230 cases.

Anyway, we here at Cybertelecom are likewise into automation and have developed our proforma blog post for these cases. Here it is:
Some plaintiff [FILL IN BLANK] got irked by what some disgruntled third party wrote about them at "is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals." did not write the disgruntled comment. filed a Rule 12(b)(6) Motion to Dismiss pursuant to 47 USC § 230. The Court granted the motion and dismissed the complaint as against defendant
Of course it never goes proforma, does it.

Plaintiff apparently alleged that either edited or authored the headline of the disgruntled comment - and that headline could be actionable. The court has to take the facts as alleged by plaintiff as true for a motion to dismiss (the court is merely deciding whether there is a potential claim for which relief can be granted -- it is not deciding the merits of the case as to whether in fact relief should be granted - it's like if I sued you in court for being short - while this may be true, it is not a cause of action for which relief can be granted). Therefore the court dismisses the complaint against Ripoffreport for the disgruntled third party comment, but denies the motion to dismiss with regard to the headline. But the Court made clear, if plaintiff cant prove that Ripoffreport authored the disgruntled headline, then plaintiff will face pretty much the same outcome as the rest of the complaint.

So what's cool about all this. I go looking at for a bit of deep research in preparation for this post, and I find a page entitled Want to Sue Ripoff Report? The page states:
If you are considering suing Ripoff Report because of a report which you claim is defamatory, you should be aware that to date, Ripoff Report has never lost such a case. This is because of a federal law called the Communications Decency Act or "CDA", 47 U.S.C. § 230. Because this important law is not well known, we want to take a moment to explain the law, and to also explain that the filing of frivolous lawsuits can have serious consequences for those who file them, both parties and their attorneys. The CDA is part of our federal laws.An excellent Wikipedia article discussing the history of the law can be found here. In short, the CDA provides that when a user writes and posts material on a website such as Ripoff Report, the site itself cannot, in most cases, be held legally responsible for the posted material.
Do the plaintiff's in these cases get to file disgruntled comments about their attorneys who advised them to file these pointless complaints?

Wednesday, November 14, 2007

What's Google Upsidedown???

According to Dylan Stephen Jayne, it's his social security number. Kinda-a-bummer, if true. Dylan certainly thought it was a bummer, so he sue Google - for $5 Billion - for a civil rights violation pursuant to 42 USC s 1983. Dylan Stephen Jayne v Google Internet Search Engine Founders, No 3:07cv1677 (MDPA Sept 27, 2007).

The case was filed by Dylan on September 18. The court dismissed the action on September 27 on its own - it didnt even give Google the chance to respond!

A Sec. 1983 action is a civil rights action that protects us from the government doing bad things:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress . . . .
42 USC 1983. The problem here is that as big as Google is - it's not a state - it's not the government. So whatever "Google" spells upsidedown, there is no cause of action against Google as a state. Dylan has "failed to state a claim for which relief can be granted."

What's really cool? Dylan has managed to get his own Wikipedia page out of this. And Dylan has gotten a fair share of attention in the blogosphere. Stupid Man from Pennsylvania Sues Google for $5 Billion, Gizmodo.

And, er, ah, if anybody out there is wondering, Cybertelecom upsidedown spells "Jagr is a weenie!" and we are pretty sure that Cybertelecom is not a state actor either (So dont sue us Jaromir!).


Monday, November 12, 2007

Fomento de Construcciones y Contratas Believes “FCC” Violates its Trademark

This case is just too great not to review!

Some guy in the United States has a website FCC.COM where he displays information relevant to the Federal Communications Commission. FCC.COM describes itself as “the place for all news and information regarding the Federal Communications Commission.” November 11th’s top FCC related articles included China Vows Major Doping Crackdown [1 vote], Clinton Says Immigrant Licenses Depends on State [1 vote], and Black Fence Sparks Dispute [1 vote] .

Fomento de Construcciones y Contratas in Spain took issue with FCC.COM and brought a claim before WIPO under the Uniform Dispute Resolution Policy. FCC Fomento de Construcciones y Contratas, SA v. “FCC.COM”, Case No. D2007-0770 (WIPO October 7, 2007).

Now Cybertelecom has not done a lot of work around the UDRP, and this does not exactly involved federal Internet law or policy - - but com’on, a domain name dispute involving “FCC.” This I have to review!

Before we unpack how a company in Spain could claim that a Yankee’s use of FCC.COM for FCC related news violates its Spanish trademark, let’s review the video tape and see who’s registered what:

In literary terms, this is the setting of our conflict. “FCC” are the initials of a US federal agency, the Federal Communications Commission. Punch “FCC” into Google and the Federal Communications Commission is the first search result shown. FCC.COM is the ninth search result shown. After 10 pages of search results (about 100 search results), producing many organizations using the abbreviation “FCC” including Families with Children in China, Farm Credit Canada, and Frontier Community College, no search result for Fomento de Construcciones y Contratas were observed (I set my language preference to any language and my region preference to any region, and I was not logged into Google).

Fomento de Construcciones y Contratas appears to hold more “FCC” second level domain names than anyone else, including the US Federal Communications Commission. Of the five FCC domain names found (there may be more) that Fomento de Construcciones y Contratas registered, only FCC.ES resolved to a webpage. FCC.COM.ES, FCC.INFO, FCC.MOBI, FCC.EU, and FCC.BIZ produced “Server Not Found” error messages when I tried to access them (6 pm EST November 10, 2007).

Now to the conflict. On May 25, 2007, Fomento de Construcciones y Contratas filed a complaint before the WIPO Arbitration and Mediation Center. Apparently the complaint was deficient, and on June 11, Complainant filed an amended complaint. On July 25, Complainant requested a suspension of proceedings on the grounds that the parties were negotiating a resolution. However, on August 27, Respondent said, “negotiations, what negotiations? What are you talking about?” (I paraphrase.)

So back to the conflict. According to the UDRP, for the Complaint to succeed, the Complainant must prove that:

“(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and

(iii) The Domain Name has been registered in bad faith and is being used in bad faith.”

If any one element fails, then the complaint fails.

The three-member review Panel focused on the second and third elements, and therefore waived its hands at the first. The Panel has noted that Complainant’s trademarks incorporate “FCC” (see the logo here) but Complainant has “no registration of the letters FCC simpliciter.” Nevertheless, the Panel concludes,

the Panel is content to deal with this issue solely on the basis of the Complainant’s registered trademarks and finds that the Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights.

The problem, according to the Panel, is that Respondent clearly has a legitimate interest in the domain name. The Respondent has developed a website displaying news and information relevant to the US Federal Communications Commission. A simple review of Respondent’s website makes this clear. Such a review, however, was problematic because Complainant neither included a print out copy of Respondent’s website nor described Respondent’s website in Complainant’s Complaint. And this is a problem, the Panel notes, because even though WIPO panels are reviewing domain name disputes, some WIPO panels “restrict their consideration solely to the papers before them” and never bother to check the Internet. They never go online to check whether there is a legitimate website or other Internet resource associated with these domain names in question. That definitely would present a problem!

Anywho, Respondent successfully demonstrated that he has a legitimate use of the domain FCC.COM and that there was no issue of bad faith (indeed it is an undisputed part of the record that Respondent had never even heard of Complainant). The Complaint therefore fails on the second and third elements.

But it doesn’t end there.

Respondent fires back. Respondent complains of attempted reverse domain name hijacking on the part of Complainant. “Reverse Domain Name Hijacking is defined in paragraph 1 of the Rules as meaning ‘using the Policy in bad faith to attempt to deprive a registered domain name holder of a domain name.’” Respondent characterizes this whole little escapade as a “significant and wholly avoidable trouble and expense” – and the Panel agreed. The Panel breaks from its methodical disposition of the proceeding to expound on

the inexplicable failure on the part of the Complainant to exhibit a print-out of the Respondent’s homepage or, failing that, to include within the body of the Complaint a description of the content of that homepage.

And then,

Anyone examining the Respondent’s website could see that it was a genuine site and that anyone launching a complaint was bound to fail.

The exasperation of the Panel crescendos with

The Complaint makes clear that the Complainant had visited the Respondent’s website. The Complainant mentions the fact that the Respondent’s website features revenue earning advertisements, but does not identify the nature of the advertisements; moreover, the Complainant uses the fact of those revenue earning advertisements (i.e. commercial gain) as a basis for its bad faith claim. The Panel is in no doubt that it was incumbent upon the Complainant in the circumstances of this case, noting in particular the nature of the domain name in question, to provide the Panel with sufficient detail of the Respondent’s website to enable the Panel to make a fair assessment.

The Panel finds that the Complainant’s failure to do so, irrespective of whether or not the failure was intentional (as to which the Panel makes no finding), constitutes an abuse of the Administrative Proceeding. The Reverse Domain Name Hijacking allegation succeeds.


Oh, but the reason why this quibble was interesting is the FCC connection. So, just in case you are wondering, the Panel courteously clarifies - in its only footnote - that even though Complainant’s claim was an abuse of process, if it were the US FCC that had brought the claim, things might - uh - be different:

This is not to say, of course, that the Federal Communications Commission for example would in such a situation necessarily be found liable to a finding of reverse domain name hijacking.

What?! Huh?! Where?! Does the FCC even have a trademark for “FCC?” As far as the FCC is concerned, “trademark issues properly should be addressed by the courts under the trademark protection and unfair competition laws, rather than by the Commission." In Re Toll Free Service Access Codes, Fourth Report and Order and Memorandum Opinion and Order, FCC CC Docket No. 95-155, Para 7 (March 31, 1998). Uh… Yeah… Uh… what the Commish said!


Sunday, November 11, 2007

Proceeds from Cybertelecom

Proceeds from Cybertelecom go to support different stuff :: October's Proceeds went to support the Humane Society of America.
The Humane Society of the United States

Tuesday, November 06, 2007

The Right to Whine :: Global Royalties, Inc., v Xcentric Ventures, LLC, (DAR October 10, 2007)

The Good Samaritan provisions of Sec. 230 the Communications Decency Act hold water over the water – where water means overseas international judgments – and where overseas in this case means the dirt road leading north guarded by Canadian Mounties. Between a Canadian judgment for defamation which involved third party content, and the safeguards of Sec. 230 of the Communications Decency Act, the Good Samaritan wins the smack-down.

So here’s the dirt. This week’s spat is Global Royalties, Inc., v Xcentric Ventures, LLC, No. 07-956-PHX-FJM (DAR October 10, 2007). Defendant Xcentric Ventures runs a whine-website called Ripoff Report. A disgruntled third party visited defendant’s website and expressed disgruntledness in three separate posts. Plaintiff Global Royalties took offense in the disgruntledness and ended up suing defendant and disgruntled party in Canadian court. Defendant never showed up. The court issued an injunction requiring defendant to remove all of disgruntled party’s posts from its website, prohibiting defendant from posting any further comments about plaintiff, and pushed the dispute to trial court for talk about damages.

Plaintiff brought the judgment South-of-the-Border down to Arizona seeking enforcement, and also called defamation on defendant. The court said, wait a minute, we don’t just enforce Canadian-hockey playing court orders as a matter of course. And as to “defamation,” the comments in question were written by a third party and not defendant, and therefore pursuant to the Good Samaritan clause of the CDA, the defendant is not liable. 47 USC § 230.

Wait a minute, argued plaintiff, defendant never took down the comments as ordered by Dudley Do Right, and therefore plaintiff has “adopted” the disgruntled statements.

Sorry, responded the court, but it is well established that notice to a website owner of some problem with someone whining does not morph the whining into the website’s own speech. This aint the DMCA.

Which led the judge to do a little whining of his own: With no risk or liability for third party content, a website owner has no incentive to take down that content where it flusters some plaintiff. If it was an unintended consequence of the CDA to render plaintiffs helpless against website operators who refuse to remove allegedly defamatory content, the remedy lies with Congress through amendment to the CDA.”

Poor poor helpless plaintiffs (that hire attorneys who haven’t read Sec. 230 case-law).

One of the truly great innovations of the Internet and specifically Web 2.0 is the interactive features that permits disgruntled third party’s to visit review web sites and whine about the failings of their least favorite companies. You can find out how horrible your plumber is, how horrible your teacher is, or how horrible Bruce Willis’ latest movie is (and if you believe every review or comment you read on the Internet, I have a nice investment in Nigeria to recommend to you). International treaties and fear of the Dudley Do-Right cannot thwart this. It’s good to know that your right to whine holds water over the water (even where the water is a frozen hockey pond).


Wednesday, October 10, 2007

A Perfectly Clear Long Arm Jurisdiction Case :: Weldon-Francke v. Fisher, 06CV0386 (14th Texas Court of Appeals Sept. 11, 2007)

I love Internet long-arm jurisdiction cases: they are a mire of how the judiciary deals with a defendant that has made itself available in every forum everywhere all the time all over the globe. No matter how judges grapple with notions of due process, you always are left with the feeling that one party or another got screwed. And it is wonderful to watch old school judges who grew up driving VWs grapple with this new environment, flipping through one failed metaphor after another in an attempt to pigeon-hole what would be “fair” on the Internet. There are no easy or clear cases on the sliding scale of Internet long arm jurisdiction.

Except this one.

When last we visited Internet long arm jurisdiction, we reviewed a case where a Louisiana court concluded that the advertisement on eBay by a Texas residence of a vehicle, which was delivered in Texas, and which broke down in Texas, and where defendant had no further described contacts with Louisiana other than a couple of phone calls to plaintiff, was sufficient to sustain minimum contacts required for long arm jurisdiction (in contrast to most other eBay jurisdiction cases which conclude that minimum contacts are lacking). This time it’s Texas’ turn.

It would be interesting to attempt to do a correlation between what portion of a state’s GDP comes from high technology, and the outcome of cases such as these. I’ll just throw out the wild unsubstantiated thesis that the greater a state’s economy can be attributed to high tech, the more high tech friendly the jurisdiction common law is. Louisiana’s GDP for computer and electronic product manufacturing for 2005 was apparently $88m while Texas’ was $18,164m. Hum!

Today’s case is Weldon-Francke v. Fisher, 06CV0386 (14th Texas Court of Appeals Sept. 11, 2007). Plaintiff* believed that defendant* had done a poor job on a trust, and filed suit in a Texas court. Here are the geographic facts: plaintiff contacted defendant, a New Hampshire attorney, in NH, requesting that defendant draw up a trust for a NH property, the work on the trust was conducted in NH, the trust was delivered to plaintiff in NH, and the bill for the legal work was mailed to a NH address. Let’s see, did I cover all the contacts with the state of Texas? Yip, that was pretty much it.

Eight years after the NH trust was drawn up, plaintiff had some concerns about the trust, hired a Texas lawyer, and that Texas lawyer contacted defendant. Defendant obtained permission from plaintiff to talk to the Texas lawyer, and discussed the trust with the Texas lawyer by phone and in a letter.

In specific jurisdiction cases, a court can have jurisdiction over an out-of-state defendant where the dispute arises from defendant’s contact with the state in which the court resides. In this case, plaintiff attempts to argue that defendant’s contact with Texas was that defendant knew that Plaintiff was a Texan. You can almost hear the appellate court judge holding back laughter in rejecting this (got any good caselaw supporting your argument, counselor?).

Next, plaintiff argues that the phone call and letter eight years later was the basis of jurisdiction. Well, at least there was a contact here. But the court concludes “the undisputed evidence shows that [defendant] engaged in these telephone calls and sent these letters to answer questions and respond to requests from the [Plaintiff] and their Texas counsel regarding her 1998 legal services.” Defendant is responding to plaintiff’s query; defendant did not purposefully avail itself of the forum of Texas. The court goes on to note that defendant was not paid for the work involved in responding to the Texas lawyer, nor was defendant engaging in any new legal representation. This dispute involved the trust from eight years ago which was conducted entirely in NH. The Court tosses out specific jurisdiction.

But this blog is dedicated to Internet law. We have not even mentioned the Internet yet. So here it goes: in a feeble attempt to establish general jurisdiction (continuous and systematic contacts with a forum), plaintiffs say, “oh, and defendant has a website that can be read in Texas.” Note interestingly enough that there is no evidence on the record that plaintiff ever actually viewed or relied upon, while in Texas, defendant’s website – just that defendant has a website. Also note that evidence indicates that defendant had no other contact with Texas.

The court sets forth the sliding scale test for long arm jurisdiction which slides from passive websites that just provide information to interactive websites where visitors can do business. The court notes that defendant’s website does not provide for any level of “exchange of information” or “transaction of business” between visitors and the law firm. The defendant’s website merely provides background and promotional information. “But . . . but,” plaintiff argues, the website “extols the Law Firm’s professional experience in federal estate and gift taxation law. Raise your hand, those of you who think this was a persuasive argument.

Outcome: a passive website which provides background information and no interactivity (and where there is no evidence that plaintiff ever read or relied upon the website) is not sufficient minimum contacts with a state to sustain general long arm jurisdiction.

You would think that this provides a certain level of clarity in the sea of uncertainty over Internet long jurisdiction. Here is the paradigm example of the “passive website” along the sliding scale of jurisdiction. On this ground, we know attempted litigation would be frivolous (right?). But remember, this is an appeal. The lower court had managed to conclude that it had both general and specific jurisdiction over defendant!

I wonder if the lower court judge drives a VW?

- - - - - -

*I cheated and simply referred to the plaintiffs and the defendants in the singular.


Wednesday, October 03, 2007

What's on TV?

There have been a number of news articles and blog posts lately suggesting that this is the TV season that broadcasters finally get the Net - that broadcasters are making their content available online. [US networks to stream online free, FT; Do Broadcasters Finally 'Get' the Internet?, Internet News; NBC Cuts Out Video Middleman - NBCDirect will launch in November, DSLReports] So I decided to do a back of the envelop survey of what is out there. Okay, I admit it, I wanted to see if I could find any live hockey feeds. Well, minor league hockey is available on the B2 Network, but not the NHL. While there is a lot of content out there now, probably the big exception is live sports. [Update: NHL Center Ice provides a season subscription to live Windows Media webcasts of all out-of-market games for ~$169. Of course MLS provides a similar season subscription for $10.]

Survey was conducted September 29 - October 3, 2007. Based on what was readily apparent at websites based on a brief visit. Sampled programs where plugin was already embedded, but did not install new plugins. Please feel free to provide additional information. Listed programs represent a quick sampling of what was found.

I am sure there is lots more out there. Drop me a note and tell me what to add to the list - or any corrections that need to be made. This information will be maintained somewhere on the Cybertelecom website.

In 1961, then FCC Chair Newton Minow made his famous speech:

"But when television is bad, nothing is worse. I invite you to sit down in front of your television set when your station goes on the air and stay there without a book, magazine, newspaper, profit and-loss sheet or rating book to distract you--and keep your eyes glued to that set until the station signs off. I can assure you that you will observe a vast wasteland."
Wonder what he would say about the Internet?

Channel Price Plug-In Screen What's Available (sample) Comment
A&E Free Flash Embedded, Scalable Full Episodes: SWAT, Private Sessions, A Man Called Dog, Dog Views Choice. Clips: Sopranos, Faith of my Family, King of South Beach, Two Coreys, Wedding Wife
ABC - Disney Free - Advertisements Move Media Player

Clips: News. Full Episodes: The Bachelor Brothers and Sisters Dancing with the Stars Desperate Housewives Dirty Sexy Money Fashionista Diaries Grey's Anatomy Lost Men In Trees GH Night Shift October Road Private Practice Ugly Betty Voicemail

Only available in US - Also available on AOL Video
- - Disney Channel DXD Free - Advertisements Flash Scalable but not full screen Select Full Episodes: Hannah Montana, American Dragon, Suite Life of Zack and Cody, Emperor's New School, That's So Raven, Kim Possible, The Replacements, Cory in the House
- - ESPN - ESPN Video beta Free - Advertisements Flash Scalable but not full screen ESPN Clips Also available on AOL Video
Animal Planet

See Discovery Channel


Flash Embedded player Black Carpet, Hell Date, Quickie, Comic View, Rap City, Sunday Best, Coming to BET, 106 & Park, Hip Hop Awards, Socially Offensive Behavior Download difficulties
Bravo Free Flash Embedded and Full Screen Clips
Cartoon Network Free - Advertisements Flash Embedded and Full Screen Select Full Cartoons: Ben 10, Bernard, Camp Lazlo, Class 3000, Code Lyoko, KND, Courage, Cow and Chicken, Dexters Labratory, Ed Edd and Eddy, Fosters Home, Grim Adventures, IMP, Johnny Bravo, My Gym Partners a Monkey, Powerpuff Girls, Storm Hawks, Time Squad, Totally Spies, Robot Jones
Flash Embedded and Full Screen Full Saturday Night Hockey - Clips : News - Features
CBS - Innertube Free - Advertisements Flash Embedded and Full Screen Full Select Episodes: Armed & Famous, As the World Turns, Big Bang Theory, Big Brother, CSIs, Guiding Light, How I Met Your Mother, Jerico, Kid Nation, NCIS, Numb3rs, NCIS, Papdits, Pirate Maker, Power of 10, Rules of Engagement, Shark, Survivor, The Unit, Young and Restless. Clips: Late Late Show, Late Show, Each show appears to have only one or two episodes available - Also available on AOL Video
CNN Free - Advertisements Flash Embedded Clips Popup ads
Comedy Central
Flash Embedded Clips: Jon Stewart, Colbert Report, South Park, Sarah Silverman, Drawn Together Also available on AOL Video
CSPAN Free RTSP - Real and Windows
Full programs We had difficulty downloading programs
Move Media Player
Full Episodes: Wild Bunch, Opposites Attract, Girls Go Cruisin,
Discovery Free & $1.99 downloads Move Media Player
Full Episodes: Dirty Jobs, Meerket Manor, LastOneStanding. Clips. Downloads
Fox - Video Central Free Flash
Clips Full Episodes available on AOL Video
History Channel Free - Advertisements Flash Embedded Clips Full Episodes available on AOL Video
Lifetime TV
Flash Embedded and almost full screen Full Episodes: Blood Ties, Lisa Williams, Gay Straight or Taken, Lovespring Intl, Spotlight 25 - Clips
MSNBC Free - Advertisements Flash
MTV Free - Advertisements Flash Embedded and scales Clips. Full Episodes.
NBC Free - Advertisements
Embedded and Full Screen Full Episodes: 30 Rock, Age of Love, Andy Barker‚ PI, The Black Donnellys, Friday Night Lights, Heroes, Last Comic Standing, Late Night with Conan O'Brien, Miss Teen USA 2007, NBC Primetime Preview, Raines, Victoria Beckham: Coming to America Clips: News, Sports
Nickelodeon $1.99 Downloads Flash Embedded and Full Screen Full Episodes: Avatar, Blues Clues, Danny Phantom, Dora, Fairly OddParents, Invader Zim, Jimmy Neutron, Zoe 101 Also available on AOL Video
PBS Free (sponsors logos visible) Real Player or Windows Media Player Embedded Ad Hoc Clips that are not organized in any coherent manner Some PBS shows are available DOD iTunes

Embedded and Full Screen Classic Movies. Clips.
Flash Embedded (Full Screen failed) Full Episodes: Charmed, Closer, Saving Grace - only a few episodes available We experienced download problems which crashed our browser
TV Land Free - Advertisements Flash Embedded Clips. Full Episodes: Andy Griffith Show, Gunsmoke (a few episodes)
Univision Free Flash Embedded Clips
VH1 Free - Advertisements Flash Embedded and Scales Clips, Shows
Weather Channel Free - Advertisements Flash Embedded and Scales Clips
NBA Free - Advertisements Flash Embedded Clips Dowloaded with difficulty
NFL Free - Advertisements Flash Embedded and Full Screen Clips
MLB Subscription Based

Every out-of-market game.
NHL - Versus Free - Advertisements - Flash Embedded NHL Clips - Versus Clips - See CBC
Hockey Minor League AHL $6 per game Windows Media Player
Minor League B2 Networks - Full Games
AOL Video Free and $1.99 and other downloads
Embedded and Full Screen 20th Century Fox, A&E, ABC, AOL, AXN, Biography Channel, CBS, CMT, Comedy Central, FOX, FX, History Channel, In2TV, MTV, Nickelodeon, QVC, Sony, Speed, Spike, TBS, TNT, VH1, WB ,

YouTube Free Flash Embedde and Full Screen Amateur Video
Google Video Free Flash

Embedded and Full Screen

Clips and Full Episodes Difficult to find what is there
Yahoo Video Free Flash

Embedded and Full Screen

Videos and Clips


Amateur Video
Joost Paid downloads Proprietary Download
Wide variety of content Unable to sample video
Amazon Unbox Free and paid downloads Flash Embedded and scalable A&E, ABC, Adult Swim, Animal Planet, BBC, Biography Channel, Bravo, Cartoon Network, CBS, Comedy Central, CMT, CW, Discovery Channel, E!, FOX, FOX Sports, FX, History Channel, MTV, National Geographic, NBC, NHL, Nickelodian, PBS, Scifi Channel, Sony, Speed, Spike, TNT, TV Land, USA Network, VH1 Note that a downloaded video was not tested


Thursday, September 20, 2007

26¢ Emails – Regulated by the FCC

Have your received the email alerts about the FCC charging a modem tax? Or about the US Postal Service starting to charge for stamps for email? These are of course hoaxes. One great hoax I remember had to do with a member of Congress Schnell (German for “Fast”) who introduced a legislative proposal 602P (legislative proposals are either “S” for Senate or “HR” for House of Representatives – there’s no “P”) proposing a 5¢ email tax. According the official USPS website,

Some rumors refuse to die-no matter how many times they have been put to rest. . . The fictional Congressman Schnell is making the Internet chat room circuit again, proposing a 5-cents surcharge on e-mail messages. This was a hoax when it first circulated several years ago, and is still a hoax today. There is no Congressman Schnell, and there has never been a Bill 602P. In addition, the USPS has already said it would not support this type of legislation.

And if you don’t believe the USPS, then you should believe the Dept of Energy (after all, they are charge of nuclear power).

Of course, the punch line is that the fee was not 5¢, it was 26¢! And it wasn’t proposed by Schnell - it was proposed by the US Postal Service itself.

Time to use the Way-Back Machine. The time is 1977. The country is in a tailspin. Saturday Night Live is singing carols about killing Gary Gilmore for Christmas. President Carter takes the Oval Office, and pardons Vietnam War draft evaders. The Clash releases their debut album. And the USPS is scared.

The USPS has learned about this thing called electronic mail and electronic transactions. It occurs to the USPS that if everyone were to use these electronic thingies, First Class mail would get wiped out and so would all that revenue. After some careful strategic planning, the USPS launched an attack on email with a classic pincer movement: on the left flank, the USPS initiated its own email service known as E-COM; on the rank flank, the USPS considered banning all private email service.

E-COM was a simple concept. The USPS would set up a network where a message would originate electronically. It would then be sent to one of a handful of participating postal offices that had terminals, where it would be printed out. The hard copy of the message would then be delivered to its destination – essentially in the same manner and with the same speed as first class mail. USPS launched this service in 1981.

Before E-COM could get off the ground, however, it was mired in controversy. The US Postal Commission, the Department of Justice, private companies, and even the FCC, objected. The first objection was that it was against government policy for a government agency to compete with the private sector. Private commercial email services were nascent and promising, and did not think much of a government monopoly using its government bankrole to pay for a competing email service. The FCC made a particularly interesting objection. The FCC said, “we have jurisdiction over all wireline and wireless services. That jurisdiction has been interpreted broadly. And there is no dispute that the transmission of a message over a communications network is communications, under the Communications Act, and under our jurisdiction.” “Not only that,” the FCC was heard to say, “but its common carriage.” Using an actual quote, the FCC stated:

With respect to the relevant judicial decisions defining the nature of common carriage, we note that none of the parties to this proceeding appears to dispute that ECOM service would constitute a common carrier offering if it were to be provided by an entity other than the Postal Service. [Oh really?!?!?!] We also conclude independently that ECOM is a quasi-public offering of a for-profit service which affords the public an opportunity to transmit messages of its own design and choosing. Based on those judicially defined criteria, we find that, in offering ECOM, the Postal Service is engaging in a common carrier activity.

In re Request for declaratory ruling and investigation by Graphnet Systems, Inc., concerning the proposed E-COM service, FCC Docket No. 79-6 (Sept 4, 1979).

In other words, before E-COM could get launched, the FCC said, “if you are going to do this, then you are under our jurisdiction, and you are going to have to file a tariff for the offering of your common carriage service” (do you hear that?!? The FCC said that email, whether from the USPS or privately offered, is a form of common carriage – they don’t say that anymore).

Well, the USPS would not accept “no” for an answer, tinkered with its network in order to weasel out of FCC jurisdiction, and launched E-COM in 1981. A message was priced at 26¢ - and for each email message, the USPS was said to lose around $5. They had apparently estimated that the service would be a raging success; it was not and, with the low message volume, the cost per message was rather high. And by the way, if you used the service you had to send at minimum 200 messages. The service was one directional; if you got an error message, you would receive it in the mail two days later. When the E-COM messages were printed out, it would take two days more to be delivered. And it cost the same as First Class mail.

For some reason, E-COM was a failure (one Senator called it a turkey). Three years after service was initiated, USPS terminated the service and tried to sell it off.

Some what’s the punch line? Congressman Schnell was going to undercut the USPS offering by 21¢ - and deliver you messages two day faster! Vote Schnell!


Wednesday, September 19, 2007

The Sliding Scale Jurisdiction Test : Sliding toward Jurisdiction : Crummey v. Morgan, et al, 2007 CW 0087 (LA App 1st Cir. Aug. 8 2007)

Judges face hard choices. Do they rule in favor of a defendant or do they rule in favor of a plaintiff. Sometimes the law is well settled, and the role of Judge is easy; just follow precedent (in other words, just decide the same way every judge has before). Sometimes old law confronts new facts that confound judges. When adrift in a sea of uncertainty, judges reach deep in their armory of judicial tools and pull out old faithful: the sliding scale.

Sliding scales help sort out uncertainty. On the one extreme of the slide, cases go one way. On the other extreme, cases go the other way. In the middle, differing factual scenarios are resolved on a case-by-case basis. In other words, the judges fudge it, doing their best to see which way the facts tip – and then the decision slides to the outcome. Another way to describe this is that the judge must balance the differing factors and determine whether on the whole the facts weigh in favor of one party over another. The sea of uncertainty is gray and fuzzy.

When the sliding scale works, time gives the judiciary the opportunity to hammer out differing factual scenarios and create well settled precedent. When the sliding scale tumbles, there is little guidance, and the judiciary becomes overwhelmed with parties seeking elucidation of their predicament. See FCC Computer I.

Jurisdiction in Internet litigation is one of those seas of uncertainties. Old law resolves whether a person in one state can sue another person in another state. As articulated in the classic case International Shoe v Washington, a defendant Beta must have certain minimum contacts with the state Alpha in order to be haled into court in the state of Alpha. In applying this well settled law, the court asks questions such as whether the defendant from Beta purposefully availed itself of the privilege of conducting business in the state of Alpha and invoked the benefits of doing business in Alpha. This purposeful availment of Alpha must be of a nature that the defendant could reasonably be expected to be haled into court in Alpha.

Now comes a tsunami in the sea of uncertainty. If a party goes online, their activity online is accessible to any willing plaintiff anywhere. If I blog, can I really anticipate getting haled into court in Demoine? If I sell 1000 hockey T Shirts to Georgia, have I established minimum contacts with George? What if I sell one T Shirt on eBay to Louisiana?

Faced with this conundrum, the judiciary has created a sliding scale. At the one end of this scale is purely passive sites which simply provide information and offer no level of interactivity (and if you can find any of these “purely passive” sites any more, it belongs in a museum). At the other end of the scale is the fully interactive site such as an ecommerce site where the visitor can interact with an inventory, establish a relationship with the website’s company, purchase goods and services, find the status of those goods pending delivery, and provide a review of how good the product was. In between we have the fudge. If I set up an ecommerce business and sell 1 million books to Salem, Massachusetts, seems like I am purposefully availing myself of that jurisdiction. But if I put up one book for sale for whoever wants it on Craiglist, did I really intend to do business with puritans? The sliding scale is in place because there is a certain degree of ambiguity involved.

According a Louisiana Appellate Court, the analysis does in fact slide – it slides straight towards finding jurisdiction (perhaps the sea of uncertainty froze over). In the recent case Crummey v. Morgan, et al, 2007 CW 0087 (LA App 1st Cir. Aug. 8 2007), defendants placed an ad on eBay to sell an RV. Plaintiff reviewed that ad, purchased the RV, picked it up in Texas, and attempted to drive it home. The court makes a lot of the fact that plaintiff in Louisiana called defendant in Texas to ask questions about the RV and put down a deposit on the RV from Louisiana. Plaintiff picked the RV up in Princeton, Texas and, 40 miles after picking it up, it apparently stopped working. Interestingly enough, the court, which made meticulous note of each phone call and payment plaintiff made from Louisiana, fails to note where the RV was when it went kaput; but according to Google it is much more than 40 miles from Princeton to the Louisiana border, so presumably the gremlins emerged while still in Texas. The court provides no further contacts of defendant with the state of Louisiana.

The Louisiana Court reviewed International Shoe and precedent for the sliding scale. However, when it got to its analysis, the court started by saying eBay is not a mere passive site because sellers can receive payment from buyers – in other words, the court positions the one extreme of the scale as a strawman, and knocks it down. And if it is not the strawman, then it must be the alternative.

The court places a stake in the ground of what it means by “passive” by citing Quality Design and Construction, Inc. v Tuft Coat Mfg., Inc., 05-1712, 939 So2d 429 (La App 1st Cir 7/12/06). Here the court defined a “passive site” as one that is informational only. At this extreme, according to the court, one cannot purchase goods. But what is surprising (shocking?) is that according to the court, one cannot even “download repeated or regular information from the website.” Now that’s passive! Although, apparently, in the Tuft’s case cited by the court, somehow buyers could use the information on the Tufts website to have their names added to the Tufts website and purchase goods from Tufts. It is an unusual stake in the ground – the court seeks to establish that a passive website is one where you can do virtually nothing at all – and yet uses as an example a company in the regular business of selling goods interstate.

Now let’s turn to our defendant who (according to the facts recited by this court) sold one thing once over eBay. The rationale of the court that the sliding scale favors jurisdiction is

  • Defendant’s use of the eBay website is not “merely passive;”
  • The use of eBay permitted defendants’ product to be marketed in Louisiana (and the North Pole for that matter); and
  • Plaintiff called defendant, entered into the contract, and paid the down deposit from Louisiana.

Therefore, “Defendants used a variety of means of electronic communication to advertise, puff, negotiate, and accept payment for its product directed to a Louisiana consumer. Thus sufficient minimum contacts effectuated by electronic communications have been established to maintain personal jurisdiction.

In the same paragraph, in the next words, the Court goes on and declares something that has no relevance to the jurisdictional analysis:

To hold to the contrary would have a chilling effect on ecommerce in that buyers wary of being haled into the home courts of out of state sellers will refrain from purchasing goods on eBay and other similar internet websites should the merchandise they considered purchasing be defective or otherwise not conform to the advertised online representations.

Slip at 12. I wont bother responding to this; the dissenting judges does a marvelously sufficient job:

Lastly, while the majority is concerned that a contrary holding would have a chilling effect on ecommerce buyers wary of being haled into the home courts of out of state sellers, perhaps greater significance lies in how the majority’s holding will affect ecommerce itself on eBay or other internet auction websites. The logical inference from the majority’s holding is that any person or entity placing an item for sale on eBay, bought by any person in any foreign forum, is subject to the personal jurisdiction of that foreign forum. The mere existence of such a rule in ecommerce would clearly inhibit such transactions - more so than any chilling effect on buyers wary of being haled into the home courts of out of state sellers.

While the plaintiff in this case will certainly be inconvenienced by having to go to Texas to assert his claim against the defendants, the plaintiff bought the RV without inspection knowing that it was in Texas. The plaintiff specifically chose to go to Texas to retrieve the RV and the sale of the RV was finalized in Texas. To summon the defendants from Texas into a Louisiana court on this matter and to assert personal jurisdiction over them, when they lack sufficient minimum contacts with this state, offends due process.

Dissent at 10.

The dissent reviews a plethora of eBay jurisdictions cases where other courts - a lot of other courts - found that a single sale on eBay is insufficient to establish jurisdiction. Before the sea of uncertainty, it had been well settled that a single phone call or a fortuitous contact with a state was insufficient to establish long arm jurisdiction. In the eBay cases, as in this case, defendants place for sale something with no intent to market or sell that thing in any particular state. The only intent of the defendant was to sell to the highest bidder. The state where the purchaser happened to be was, entirely, fortuitous. Thus, according to the dissent, it cannot be said that “defendant purposefully availed itself of the privilege of conducting activities with Louisiana, thus invoking the benefits and protections of its laws.” Dissent at 6.

The problem with the slippery slide is that factors can get weighed that actually have no part of the test. In this case, it seems clear that the court took great offense at defendant. The court makes clear that (1) defendants had represented on their eBay page that “everything works great on this RV and will provide comfort and dependability for years to come. This RV will go to Alaska and back without problems,” Slip at 3; (2) Plaintiffs had called for assurance that the RV was in good working order and inspected the RV as much as possible without taking it on the highway, and (3) not more than 40 miles on the road, “the vehicle quit running. Crummey also determined that the dashboard air conditioner did not work and that the RV s generator would not run continuously.” The court’s opinion of defendants may or not be valid, but the resolution of whether defendants were engaged in some level of fraud is not the same as the resolution of whether the court has jurisdiction over defendant.

Let’s spin the Wheel of Morality and learn the lesson of today’s post! “Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn.” [Whirl, Click, Click, Clock]. “One should not play on sliding scales near seas of uncertainty.”


Sunday, September 09, 2007

The Communications Decency Act is Dead; Long Live the Communications Decency Act! :: Zango v. Kaspersky Labs :: Good Samaritans

The Communications Decency Act (CDA) was Congress’ first attempt to censor the Internet. This new law plummeted to earth in a flame of glory, struck down as unconstitutional by a unanimous Supreme Court.

And by struck down, we mean, of course, the legislation is alive and well, having tremendous impact over the evolution of the Internet, and who gets sued for what.

The CDA was tremendously unpopular – by those few at the time who had a clue about the Internet and technology. Of course, back in 1995 the Internet was still essentially a military secret that most Americans (including members of Congress) knew little about. Sen. Exon, the sponsor of the CDA, stood on the Senate floor, holding a folder filled with pornography from the Internet for any Member of Congress to peruse. Of course, he reportedly had no idea where the material came from, whether it came from a US server or one from the land of Foo. He also had no idea how to access or download the material; news reports indicated that he had never himself been online.

Members of Congress were, at that early era, confronted with a choice: they could defend the liberty and freedom of cyberspace (for all 12 of their constituents who happened to be online at that time) or they could take a stand against smut! The choice was simple: Members of Congress had to be seen as standing against the barbarian pornographers and voting for the CDA.

There were, however, a few members of congress who had a clue (and by clue, I mean, they represented some part of the country like Berkley or Silicon Valley – and their constituents suggested to them that the CDA was dumb). A compromised was therefore worked out between the CDA and its opponents; the CDA would pass (as a part of the Telecommunications Act of 1996) but it would be amended with things like (1) the Good Samaritan provision which protected internet service providers from liability for third party content, (2) it would be the policy of the USA to keep the Internet “unfettered from state and federal legislation” (whatever “unfettered” might mean); and (3) any good soldier fighting the battle against the barbarian pornographers would likewise be immune from liability.

The DOA CDA got reincarnated as the Good Samaritan provisions. Interactive services have been protected from liability from third party remarks over and over again. The immunity has been interpreted broadly, even though ambitious litigants have tried attempt after attempt at getting big bucks out of service providers.

The Good Samaritan provisions have been vital for the Internet we know today. It has allowed ISPs to advance business plans without exposed liability. It has permitted Web2.0. It has permitted blogs, and wikis, and third-party reviews, and comments. It has permitted interactive services filled with third party content, for which the provider of the service has not be held liable.

Which brings us to today’s lucky contestant. According to the videotape (Zango v Kaspersky Lab, Inc., Case No. C07-0807-JCC (WDWA Aug 28, 2007)), plaintiff Zango is a company that provides free stuff online. Defendant Kaspersky Lab sells malware detection and protection software, that identified Zango’s free stuff as “potentially harmful or malicious” and blocks its use. Zango took offense at being labeled “potentially harmful” and sued.

Defendant Kaspersky said, “not so fast, the unconstitutional ill-fated CDA protects me from liability.” 47 USC § 230(c)(2)(B) says that an interactive computer service that provides a means of avoiding objectionable stuff is not liable on account of that good deed. Try as it may, plaintiff did not persuade the court that 230(c)(2) did not apply to Kaspersky. The court noted that this level of immunity has been interpreted very broadly, and concluded “There is no question that [defendant] Kaspersky USA considers [plaintiff's] software to be objectionable.”

Congressed made clear that it likes service providers that seek to protect us from the barbarians at the gate – whoever or whatever those barbarians might be. The CDA might be dead, but the immunity of Sec. 230 lives on. Defendant motion for summary judgment is granted and the case against it was dismissed.

Let’s spin the Wheel of Morality and learn the lesson of today’s post! “Wheel of Morality, turn, turn, turn - Tell us what lesson we should learn.” [Whirl, Click, Click, Clock]. “Senator Exon was the Father of Web 2.0!”


Thursday, August 16, 2007

In Which It Is Asked, Is It Possible to be Online and Not Be “Commercial”? Aitken v. Communications Workers of America

Pop quiz: What does the word “commercial” mean on the Internet? Chose one:

[A] Whatever a judge chooses it to mean – neither more nor less.

[B] The sale of goods or services.

[C] A link to someone elses’s website, with whom you have no relationship, which happens to sell t-shirts.

[D] A protest by a Union against a corporation where the Union impersonates officers of the corporation.

According to the CAN SPAM ACT, the definition of commercial, in terms of commercial emails, is those emails “the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” 15 U.S.C. § 7702(2)(A).

Before we unpack the full extent of the word “commercial,” let’s go to the way-back machine to a time when words – as Humpty Dumpty informed Alice – mean exactly and precisely what Humpty Dumpty chooses them to mean, nothing more and nothing less.

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'

- Alice in Wonderland

We find ourselves in 1998, in a litigation known as Jews for Jesus v. Brodsky, 993 F.Supp. 282 (D.N.J.), aff'd 159 F.3d 1351 (3rd Cir. 1998). In this case, the defendant registered a website where the defendant made arguments antithetical to the mission of the group Jews For Jesus. The question before the court was whether the defendant had infringed on plaintiff’s trademark by registering and using the domain name In order to find that defendant was guilty of nefarious doings, the court would have to find that defendant had used plaintiff’s trademark in commerce. The court found that requirement was satisfied by the fact that defendant Brodsky linked to a third party’s website that sold t-shirts. I believe this constitutes a “Wow! That’s so cool! Who’d a thunk that linking to someone else’s website that sells shirts magically transforms your website, where you sell nothin’ a t’all, into a commercial website.” Apparently, in the Third Circuit, the word “commercial” meant exactly and precisely nothing at all.

Now we come to this month’s exploration of the word “commercial.” But wait, before we manage to depart from 1998, we recall Senator Dan Coats who was still recovering from his sponsored legislation, the Communications Decency Act, being unanimously declared unconstitutional. Sen. Coats’ solution was to listen to the Supreme Court and come back with a new law, the Children’s Online Protection Act (COPA), which comported with the views of the Supreme Court. One of the reasons that COPA was a solution to the perceived problem was that COPA would only be aimed at “commercial” websites. This was good because now “non-profit” websites would be outside of the cross-hairs of the censors at the Department of Justice. Of course, here “non-profit” is taken to mean exactly and precisely “not commercial.” Funny thing is, the defendant in this month’s case will make exactly the same argument.

This month’s case involves a squabble between Verizon and the Communications Workers of America (CWA). Aitken v. Communications Works of America, No. 1:06cv1161 (EDVA July 12, 2007) PDF. Some members of the CWA got a cute idea – they created free Yahoo! email accounts using the names of some Verizon officers and sent out a batch of fake emails that “disparaged Verizon.” The question before the court is whether the falsified email headers constitute a violation of the relatively new CAN SPAM Act. As the CAN SPAM Act only covers commercial speech, the court must find that the emails in question were “commercial.”

First, how exactly did the members of the CWA impersonating Verizon officials “disparage” Verizon in these emails? They did this by telling the recipients of the benefits of union membership, attempting to convince these non-union members to sign up.

Now that MCI has been purchased by Verizon, the company is doing all it can to

keep you and other former MCI employees from gaining Union benefits and

wages that your co-workers at Verizon receive.

Unionized Verizon workers are members of CWA or IBEW and:

• earn a lot more money

• have a better health plan and pay less for it

• have an excellent defined benefits pension plan and 401(k) plan

• have excellent job security

. . .

It doesn’t have to be this way for former MCI employees. CWA is committed to helping former MCI employees gain the respect and dignity you deserve. When we join together, we can win.

It may sound to you like the union was engaged in a commercial solicitation, attempting to persuade individuals to pay union membership dues in exchange for union representation. But according to the CWA this is not exactly and precisely what “commercial” means. Defendant’s argue that (a) unions are non-profits and therefore do not engage in commercial activity, and (b) the emails did not attempt to solicit union membership (they just proclaimed how wonderful union membership is).

As to the first, the court clarifies that defendants have confused “commercial” and “profit.”

[W]ell-established First Amendment law makes clear that the commercial status of speech is not determined by the speaker’s profit motive. See Board of Trustees of State University of New York v. Fox, 492 U.S. 469, 482 (1989) (“[S]ome of our most valued forms of fully protected speech are uttered for a profit.”); Rubin v. Coors Brewing Co., 514 U.S. 476, 494(1995) (Stevens, J., dissenting) (“[E]conomic motivation or impact alone cannot make speech less deserving of constitutional protection, or else all authors or artists who sell their works would be correspondingly disadvantaged.”); Adventure Communications, Inc. v. Kentucky Registry of Election Finance, 191 F.3d 429, 440-442 (4th Cir. 1999) (“In and of itself, profit motive on the speaker’s part does not transform noncommerical speech into commercial speech.”) (internal citations omitted). In sum, speech is neither per se commercial merely because of the presence of a profit motive, nor per se noncommercial merely because the speaker does not intend to make a profit. . . . Instead, whether speech is commercial depends on whether it “proposes a commercial transaction” or promotes specific products or services.

The CWA proposed a commercial transaction of exchanging union representation for union dues.

The response of the CWA to this was, “did not!” To which the court responded, “did!” CWA’s argument was that these were merely preliminary emails that informed of the benefit of union membership without a primary purpose of soliciting employees to join. To this the Court rejoined,

[A] communication need not be an attempt to consummate a transaction immediately in order to be commercial in nature; advocating the benefits of the speaker’s commercial product or service in hopes of later “sealing the deal” is sufficient. See, e.g., Rushman v. City of Milwaukee, 959 F. Supp. 1040, 1043 (E.D. Wis. 1997) (“[S]tatements encouraging a future economic transaction” are commercial speech). Thus, given that CWA representation is a commercial service, defendants’ promotion of CWA representation in the emails is not excluded from the Act merely because it did not seek to enroll the email recipients immediately.


Let’s spin the Wheel-of-Morality in order to find out the lesson to today’s post [Whirrrrrl, click, click, click]. And today’s lesson -- “Humpty Dumpty was pushed!”