The Oscars vs. GoDaddy
from the ah-loopholes dept
The Motion Picture Academy is somewhat infamous for its over-aggressive IP claims around the "Oscar" awards. It's even sued a blog that was helping to promote the event. Apparently, just suing one website wasn't enough, so back in May it sued domain registrar GoDaddy for allowing a bunch of domains to be registered.Now, in a reasonable world, where liability is properly applied, GoDaddy would never be liable for actions of its users. But, unfortunately, one of the very few areas that DMCA and Section 230 safeharbors do not cover is trademark law. So, the Academy may actually be able to get away with blaming GoDaddy for not magically blocking anyone from registering any domain that might, possibly, maybe be about the Oscar Awards:
Suing under the Anticybersquatting Consumer Protection Act, the Academy disputes more than a 100 domain names, including 2011oscars.com, academyawardz.com, jaylenososcars.com, betacademyawards.com, oscarsunplugged.com, oscarshotels.com, oscarstravel.com, oscarsliveblogging.com ... etc. Damages could total as much as $10 million.On top of the basics of blaming GoDaddy for allowing such domains to be registered, the Academy seems to directly be taking issue with the fact that GoDaddy has a system for letting domain holders "park" those domains and make money from ads. The Academy tries to spin this as GoDaddy purposely "profiting" off of its intellectual property, but that's ridiculous. GoDaddy is just offering a general domain parking ad system. It's making money off of any parked domains. It has nothing to do with their intellectual property. And, frankly, if these domains were really so valuable to the Academy, why didn't they register them in the first place?
To make the whole thing even more ridiculous, the Academy claims that a GoDaddy patent application shows that it knows that it needs to filter out ads on certain types of domains. But just because you develop a system to do so, it doesn't mean you are legally required to abide by it.
The whole thing is, frankly, absurd. If the Academy has a problem with certain domains, it should go after those who actually registered them. Not the registrar. If this lawsuit actually gets anywhere, it could create a real chill for registrars, who will then feel the need to review and block certain registrations, even if they would be perfectly legal.
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Filed Under: oscars, registration, third party liability, trademark
Companies: godaddy, motion picture academy
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GoDaddy automatically puts up its own parking page from which it makes money, and requires the domain owner to opt out. The domain owner might not even get a cut of the money unless it opts in to do so.
"The Academy tries to spin this as GoDaddy purposely "profiting" off of its intellectual property, but that's ridiculous."
There's definitely some spin going on here, but I think it's from TechDirt on this one.
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So if TechDirt wanted to do anything about it, they have to go to GoDaddy to start with.
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Please tell me you're not a lawyer.
You must realize that just because a site uses a proxy service it doesn't make the proxy liable. If we wanted to go after that domain (and, to make it clear, we don't), we could file a "doe" lawsuit, and then get a court order to reveal the registrant.
Not the same as targeting GoDaddy itself.
But you knew that, right?
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But of course you wouldn't snarkily mock somebody's legal analysis without knowing the applicable law, right?
At any rate, filing a "doe" lawsuit would not only be ridiculous overkill (as opposed to just asking GoDaddy for the information), but under such a situation I suspect you would be ultimately getting the info via a subpoena to GoDaddy, so my point remains that you would have to go to GoDaddy.
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Re: Re: Re: Re: Sorry to be a kill joy ... but
The Motion Picture Academy went after anyone who "DARED" to haze them, compete with them, report on them, or do the fair use thang ("a" is intentional). They are attempting to scorced earth anyone who mentions them online, or intimidate anyone who supports them online. They are losing ground to competition from external sources. They are focusing on the wrong sources. On earth there are 3,500 plus tv, cable, and local stations now. There are 500 plus multi-player games online. There are 15 million sources of music if you do a web search for "promotional music". The list goes on ... This entire lawsuit is about loss of control, and quashing cometition.
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Who's saying they didn't? And since they did, you're saying they're not liable, eh? I guess you agree with Mike then, even if for the wrong reasons. Congratulations.
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If they promptly ID'd their customers in the AMPAS case (I don't if they did or were asked), that only means they can't be held responsible (by their agreement with ICANN rules) for their client's actions.
They can still be held responsible for their own. To the extent that solely consists of helping with the registration of the domain names, they are pure as the driven snow. To the extent that includes exploiting the goodwill of the marks at issue by targeting ads to make money of people searching for those marks, they are not.
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You said "unless they ID their clients within a reasonable time", which they did. So now you're contradicting yourself, and that tells me that you're full of it.
If they promptly ID'd their customers in the AMPAS case (I don't if they did or were asked), that only means they can't be held responsible (by their agreement with ICANN rules) for their client's actions.
There you go again, contradicting yourself.
They can still be held responsible for their own. To the extent that solely consists of helping with the registration of the domain names, they are pure as the driven snow. To the extent that includes exploiting the goodwill of the marks at issue by targeting ads to make money of people searching for those marks, they are not.
I guess that means they're off the hook then because they had nothing to do with the selection of the supposedly infringing domain names.
You know, your arguments would be a lot more effective if you didn't make counterarguments against yourself.
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If you're going to accuse me of contradicting myself, please contrast one statement with another that supposedly contradicts it instead of just quoting a statement and saying "contradiction!"
Mike didn't put any qualifiers in his statement that registrars are not liable for what their clients do under their proxy registration services. That is simply false.
"I guess that means they're off the hook then because they had nothing to do with the selection of the supposedly infringing domain names."
That does not follow at all from my previous statement (which you quoted). You can "exploiting the goodwill of the marks at issue by targeting ads to make money of people searching for those marks" without selecting the domain name for registration.
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Nor did I say you did. You did, however, say they weren't liable if they ID'd their clients, which would apply to this case, and yet you still say they're liable. If you can't see the contradiction there then you're either beyond by ability to explain it to you or are being deliberately obtuse.
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That does not mean they escape liability for their *own* action (or that they couldn't be liable for their client's actions for some other reason unrelated to their agreement with ICANN).
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And so? GoDaddy is making money from the service of offering the parked page. Not from the IP.
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How is it different than any other typical cybersquatting case? Or do you think "cybersquatting" in general doesn't derive benefits from others trademarks?
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Because GoDaddy isn't squatting the domain, a user is.
It's like suing a real estate agent for what the property owner does.
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remove godaddy, there is no money. so they are key to the process.
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If a real estate agent runs a brothel/crack house/speakeasy out of a property its client bought, they can't put all the blame on the client, and neither can GoDaddy.
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So you're accusing GoDaddy of running a "brothel/crack house/speakeasy"? Have you got any proof of that, or are you just demonstrating, once again, how sleazy you 'IP supporters" can be?
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No. I'm using what's called an "analogy."
I'm analogizing a real estate agent using his/her client's property for illegal purposes to a registrar using its client's domain name for infringing purposes.
Any further questions I can help you out with?
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You said the neither GoDaddy nor a real estate agent can run a brothel/crack house/speakeasy and blame their client. Oh, I see. You didn't say that they actually were, just that they couldn't. You only implied otherwise. Kind of like if I said that IP supporters shouldn't be allowed to go around raping babies. I'm not saying that they are, just that they shouldn't. That's really a really sleazy tactic, but about what I'd expect from the likes of an IP supporter such as yourself.
Any further questions I can help you out with?
Doubtful, since I wouldn't believe much of anything you said.
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Ahhh, the old "I was only joking" defense. I suppose that's only appropriate, considering what a joke the whole idea of "intellectual property" is.
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The argument is, I think, that the only reason you put up a parking page is if you intend to squat. By opting into this program, these customers are expressly telling GoDaddy that they registered a domain name for the sole purpose of squatting, rather than building their own content. It's the equivalent of sending an e-mail to YouTube with the URL of a video you uploaded and an admission that the video infringes on someone's copyright. Even though the e-mail is being sent by you, and not the rightholder, there's an argument that YouTube should take it down now that they know.
The obvious response to this analogy is that the fact that someone is squatting doesn't mean they're infringing on anyone's trademark. It's possible, even likely, that they're squatting on a non-infringing domain name. Still, squatting is (almost) inherently a sketchy activity, and that's why the lawyers are circling around GoDaddy.
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This is demonstrably and utterly false. I've parked numerous domains for sites I'm considering developing and/or have purchased the domain so I can design using the domain name as a springboard. The reason I park it? So I can earn a small amount of cash while the site is built (which may be years or even never, knowing the speed I work at on those types of things), and I know that I have control of the domain should I wish to use it.
Or, was I squatting when I parked a domain for the purposes of promoting an ebook I was planning on writing but has not yet been completed? I've literally had domains that I've bought, left parked for 4 years, then cancelled because the purpose I'd planned for them was now not going to happen. This is not suspicious activity.
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If they're *not* making an argument for liability based on GoDaddy's own actions, then they're making their case harder than it needs to be.
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Synchronicity
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Electric Power Company?
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This will come back to bite them in the butt.
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Re: This will come back to bite them in the butt.
If we agree that the kid can have a domain called iamoscar.com, the if I name my kid NFL, or Olympic or whatever s/he can have thier own domains too!
Starting to see where it all ends?
Ain't the world fun! And isn't trademark law fun? I'm sure I'm going to mistake oscardatingsex.com with the academy awards, now am I?
Hold on a second..........
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Why's that? Well, let's look at 2 of the domain names in question. The first, betacademyawards.com, could be a site dedicated to an awards ceremony within the casino industry or an academy associated with the BET network.
The second, oscarstravel.com, could be anything. The implication here is that's it's going to be a site that arranges travel to the Oscars (in which case, why would they want it banned anyway), but it could also be for a site called "Oscar's Travel", an online portal for a small travel agency or a blog covering the travel habits of a guy named Oscar.
The point is that GoDaddy have absolutely no way of knowing the intended purpose of these domains until a website is created and hosted. Until then, it's literally impossible for them to know what's going to happen.
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For example, here's how the Academy fails
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Please tell me your joking. It's called an Ad Server. What else would the top results for "Oscars" be?
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GoDaddy doesn't pick and choose the pages which it gives ads to. It does the exact same thing for each and every parked domain.
Admit it. You have no argument. At best, you're accusing GoDaddy of a FAILURE to discriminate AGAINST high traffic pages.
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If amazzon.com or wallmart.com JUST SO HAPPEN to be high traffic pages (who could have known, right?), then GoDaddy should not be actively profiting from the infringing registration.
As far as me "having no argument," the United States District Court for the Southern District of Florida disagrees. http://domainnamewire.com/wp-content/moniker-motion-to-dismiss-order.pdf
Basically, if you, as a registrar, knowingly work together with the registrants of an infringing domain names to make money off of infringement (i.e., targeting ads to the customers of the trademark owners), you are opening yourself up to liability.
The fact that you also work with law abiding domain registrants to make money of legit domains doesn't absolve you.
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2) GoDaddy does this for every single parked domain.
3) GoDaddy does not discriminate or distinguish between a low traffic domain and a high traffic domain.
4) GoDaddy does not arbitrarily block domain registrations.
GoDaddy does not "capitalize" on any squatted marks. It provides a COMPLETELY level playing field whether you're "www.goaijbklakwerasldfa.com" or "www.giggle.com", and it's the USERS that have registered the domains.
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If I sell guns to everyone, without discrimination, then I'll go to jail, because you can't sell guns to 8 year olds.
If I make copies of DVDs without discrimination, then I can get in trouble, because some of those DVDs are protected by copyright.
Doing something for the law abiders and the non law abiders equally doesn't magically make working with the non law abiders ok, no matter what you do.
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Allowing users to park domain names is not illegal. Allowing users to park domains that may or may not infringe upon intellectual property is not illegal. Providing web ad space is also not illegal.
Selling guns to minors is illegal.
Selling bootleg DVDs is illegal.
See a difference yet?
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I'm not sure what you mean by "providing web ad space," but if you're working in concert to advertise a trademark owner's competitors using the drawing power of that competitor's trademark, then what you're doing may very well be illegal.
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I am amazed
Though he still hasn't figured out the subject field.
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Re: I am amazed
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Parking Domains with the purpose of selling them with inflated prices should be illegal
I don't get it, scalping tickets is illegal, and both tickets and domain names are limited and subject to availability, so how is this any different?
The government needs to start prosecuting these people.
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