That’s the title of my Slaw post for today.  It reads as follows:

Frustrated consumers and lawyers alike often threaten to take complaints to the press in an attempt to get satisfaction for an alleged wrong. After all, the “headline risk” of being perceived in a bad light by the public can sometimes be a sobering reality check on whether the entity is not treating a consumer fairly, or whether the complianant is just off base.

Earlier this week, this video was placed on Youtube – was viewed over 150,000 times in its first 2 days – and resulted in United coming to the table to resolve it.

According to the story/song, the Halifax based band “Sons of Maxwell” was travelling from Halifax to Nebraska. At a stopover in Chicago, they witnessed baggage handlers throwing their guitar – which resulted in severe damage to an expensive instrument. The airline didn’t deny what happened, but after being denied any compensation after many months of trying – they told the airline they would make a video of it.

It seems to have worked, and no doubt has been great publicity for the band. (The video is actually quite amusing.)

So is this the next tool in the legal arsenal? Or a new business model – music video advocacy? Hopefully we won’t see lawyer music videos on Youtube as an extension of the courthouse step press conference.

Read more detail and commentary about this on Boing Boing and the Los Angeles Times. It even made CNN.

For the London Free Press – August 18, 2008

Read this on Canoe

In a decision that has been termed a “crucial victory” and a “knockout decision,” a New York District Judge ruled that EBay was not responsible for policing and enforcing trade-mark infringement of goods posted for sale on the website. That decision is a radical departure from recent European decisions in France and Germany. The District Court Judge ruled that plaintiff Tiffany & Co. was responsible for policing and protecting its own trademark.

Therefore, host sites such as EBay are not responsible to police and review all goods placed for sale on its site.

As recently as June of this year, European courts have ruled in a drastically different way. In France, a French Tribunal ruled that EBay failed to effectively protect trade-marks such as Dior and Louis Vuitton, proved by the existence of numerous counterfeit items on EBay’s French website. In this case, EBay was ordered to pay an astounding US$61 million in damages.

In April, a German court set the European precedent when it ruled that EBay must protect against the sale of fake Rolex watches posted for sale on its website. The prevailing European attitude seems then to be that EBay must take responsibility for protecting trade-marked products and effectively stomp out the sale of counterfeit goods.

The New York District Court however did not agree with that logic. Although EBay does remove counterfeit items once it is notified by Tiffany & Co. that trade-mark infringement has occurred, the U.S. District Judge ruled:

“. . . the law is clear: it is the trade-mark owner’s burden to police its mark, and companies like EBay cannot be held liable for trade-mark infringement based solely on their generalized knowledge that trade-mark infringement might be occurring on their websites.”

Therefore, in the U.S., EBay cannot be held “pre-emptively” responsible for trade-mark infringement just because some of its sellers are advertising and selling fake goods. Prevalent public policy in the U.S., now recognized by the courts, instead puts the responsibility onto the trade-mark owner, most often the giant manufacturers.

EBay was also found to have acted responsibly in the past when faced with issues of trade-mark infringement. When trade-mark owners had issued concerns about possible infringement, EBay took all possible steps to remove the goods from its site. It also provides trade-mark holders with the software tools to search for possible counterfeit items.

Although this is a step in the right direction for trade-mark law, in the closely related area of copyright law, the decision has yet to appear as bright-lined. In the on-going litigation surrounding the lawsuit of Google/YouTube by Viacom for copyright infringement, the courts have yet to reach a definitive answer.

The potential of host-site liability for copyright infringement is therefore still undecided.

Tiffany has announced that it will appeal this decision. Hopefully the appeal court will agree with the trial court.

And hopefully the court deciding the Google/YouTube copyright issue will look back to the reasoning in the EBay case and see that holding host-site responsible for copyright infringement review and enforcement makes as little sense as it did for trade-mark infringement.

For the London Free Press – August 11, 2008

Read this on Canoe

An American judge’s recent order requiring YouTube to release information to Viacom in a US$1-billion lawsuit had many privacy advocates in an uproar – and rightly so.

U.S. District Court Judge Louis Stanton recently ordered Google to hand over all YouTube viewership records.

Viacom sought this order to determine whether pirated content is more popular than non-pirated content, which would indicate that YouTube has a financial interest in allowing this practice and encouraging the violation of copyright laws.

YouTube is owned by Google. Viacom is suing Google for not protecting copyrighted materials. The lawsuit deals with copyright and materials published on YouTube, a controversial subject to begin with.

Many privacy advocates publicly displayed their rage and frustration against the order. In a July 3 commentary, the Washington Post’s Michael Arrington writes, “Judge Stanton is a moron. And Google simply cannot hand this data over without facing a class action lawsuit of staggering proportions.”

Though other privacy advocates have not been as blunt, they have voiced their opinion in the media, including on YouTube’s website.

The reason for their frustration is that although Viacom is to use the information for the sole purpose of litigation, there is no assurance it would not use the information for other improper and unintended purposes.

The information to be handed over to Viacom included viewers’ login IDs and IP addresses, which could be used to identify those individuals, their searches and what they have viewed online.

Many advocates have suggested that there are other ways to satisfy the needs of the lawsuit without releasing the information and that those options should have been explored before the order was granted.

One option would have been to take information out of the data that could be used to identify YouTube users. The loud outcry by many privacy advocates may have had an influence on Google and Viacom’s decision to agree to this approach. In short, the agreement is that the information handed over to Viacom will not be usable to identify YouTube users either directly or by reverse-engineering.

Not everyone is of the view that the Google-Viacom agreement will resolve the privacy issues raised by the order. Some privacy advocates are still frustrated and believe the database cannot be made truly anonymous and that some private user information is bound to be released to Viacom.

Though Stanton’s order was granted in an American court, Canadian YouTube users are affected by this decision.

Ontario Information and Privacy Commissioner Ann Cavoukian publicly urged Google to appeal Stanton’s ruling. She is of the view that users cannot be fully protected from the improper use of the information.

“It is not acceptable to allow copyright enforcement to come at the expense of users’ privacy,” she said.

There are two important lessons here. First, litigators and courts need to consider privacy issues when dealing with third-party information and limit its use as much as possible. Second, businesses should keep as little personal information as possible for as short a time as possible.