The Oscars vs. GoDaddy

from the ah-loopholes dept

Fri, Jun 25th 2010 2:02pm — Mike Masnick

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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Anonymous Coward, 25 Jun 2010 @ 2:12pm

My understanding is that GoDaddy doesn't just "ha[ve] a system for letting domain holders "park" those domains and make money from ads."

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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lavi d (profile), 25 Jun 2010 @ 2:20pm

Synchronicity
The Motion Picture Academy, the Olympics Commission and the NFL Commission all need to be locked in a room together until they can agree to play nicely with all the other people in the world.
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Anonymous Coward, 25 Jun 2010 @ 2:21pm

Re:
For example, teckdirt.com resolves to a GoDaddy parking page, and is registered by Domains by Proxy (GoDaddy's privacy service).

So if TechDirt wanted to do anything about it, they have to go to GoDaddy to start with.
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Anonymous Coward, 25 Jun 2010 @ 2:28pm

Electric Power Company?
Why stop with GoDaddy? Aren't there some power companies making money from selling the power to those domains? Sue them all!
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Mike Masnick (profile), 25 Jun 2010 @ 2:29pm

Re:
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.

And so? GoDaddy is making money from the service of offering the parked page. Not from the IP.
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Mike Masnick (profile), 25 Jun 2010 @ 2:30pm

Re: Re:
So if TechDirt wanted to do anything about it, they have to go to GoDaddy to start with.

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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Anonymous Coward, 25 Jun 2010 @ 2:41pm

Re: Re: Re:
Registrars are, in fact, liable for registration of domains through their proxy services, unless they ID their clients within a reasonable time. It's part of registrars' accreditation agreement with ICANN.

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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Anonymous Coward, 25 Jun 2010 @ 2:44pm

Re: Re:
And for a domain like academyawardz.com, the *only* thing drawing people to that advertising is the goodwill and recognition inherent in the mark.

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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Darrell Soule, 25 Jun 2010 @ 2:45pm

This will come back to bite them in the butt.
So, if they win. I would like to see how hard it will be for Oscars, NFL, etc. to register there own domains. They are just making it harder for them and everyone else to register a LEGAL domain.
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PaulT (profile), 25 Jun 2010 @ 2:48pm

Yet another issue where a copyright/trademark holder is literally asking the impossible.

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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Andrew F (profile), 25 Jun 2010 @ 2:48pm

Re: Re:
The issue in the suit is actually the opposite of what AC brings up -- i.e. that customers let GoDaddy put up parking pages on their behalf.

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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Anonymous Coward, 25 Jun 2010 @ 2:48pm

If they're claiming that the registration alone is a violation, then they've got a hard row to hoe on that argument, but I think they've got a legitimate argument about GoDaddy's parking page practices, and changing that practice by registrars wouldn't affect legitimate domain registration.
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Joe Szilagyi (profile), 25 Jun 2010 @ 2:59pm

For example, here's how the Academy fails
http://www.oscarshotel.com upsets them, but they overlooked http://www.oscarshotel.com.au/ oddly. What is the Aussie firm bought the other?
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PaulT (profile), 25 Jun 2010 @ 3:00pm

Re: Re: Re:
"The argument is, I think, that the only reason you put up a parking page is if you intend to squat. "

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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Anonymous Coward, 25 Jun 2010 @ 3:14pm

Re: Re: Re:
I can't find the complaint anywhere online.

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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Anonymous Coward, 25 Jun 2010 @ 3:16pm

Re:
And yet GoDaddy does have a way of making sure that the advertising on the page is all OSCARS related.
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Anonymous Coward, 25 Jun 2010 @ 3:23pm

Re: Re:
Uh...

Please tell me your joking. It's called an Ad Server. What else would the top results for "Oscars" be?
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Anonymous Coward, 25 Jun 2010 @ 3:29pm

Re: Re: Re:
My point is that it's obvious enough when they want it to be what the primary draw to the website is, and it is that brand recognition/goodwill that registrars capitalize on with their parking advertisements.
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Anonymous Coward, 25 Jun 2010 @ 4:15pm

I dont even care to parse the MPAA's logic. There's a big picture here which they can't be expected to get: in order to have a healthy domain registration system, godaddy has to let people be asshats and squat good stuff, otherwise the beautiful anarchy of the internet is violated and it becomes like every other other hyperlitigated venue for human interaction. Can't we do it differently just once in this case with the internet?
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Anonymous Coward, 25 Jun 2010 @ 4:30pm

Re:
I agree with you in general, but when GoDaddy capitalizes on the squatted marks by selling ads to their competitors, I see no problem with giving GoDaddy the legal smackdown.
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DocMenach (profile), 25 Jun 2010 @ 4:38pm

I am amazed
Wow. This is absolutely incredible. I really can't believe it. Has the AC shill finally figured out how to make capital letters, or is this a new shill?

Though he still hasn't figured out the subject field.
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Anonymous Coward, 25 Jun 2010 @ 5:41pm

I got warned off by the Academy after making a joke about sneaking into the Oscars on my blog.
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Anonymous Coward, 25 Jun 2010 @ 6:27pm

Re: Re: Re: Re:
Yeah, how dare pages which are ENTIRELY advertisements have targeted ads!

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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Anonymous Coward, 25 Jun 2010 @ 6:33pm

Re: Re:
1) GoDaddy provides targeted ad pages to parked domains.
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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Anonymous Coward, 25 Jun 2010 @ 6:35pm

Re: Re: Re:
How is it different?

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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Anonymous Coward, 25 Jun 2010 @ 9:28pm

Re: Re: Re: Re:
godaddy is a partner in the process. basic conspiracy theory, left and right hand do not have to know exactly the goal, providing they work together in furtherance of the conspiracy.

remove godaddy, there is no money. so they are key to the process.
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Hephaestus (profile), 25 Jun 2010 @ 11:09pm

Re: Re: Re: Re: Sorry to be a kill joy ... but
The real problem is you are both Idiots. You are arguing about registration of domain names. Not the actual problem.

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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Anonymous Coward, 26 Jun 2010 @ 5:23am

Re: I am amazed
the posts are not me, sorry.
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Anonymous Coward, 26 Jun 2010 @ 7:36pm

Re: Re: Re: Re:
Registrars are, in fact, liable for registration of domains through their proxy services, unless they ID their clients within a reasonable time.

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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Anonymous Coward, 26 Jun 2010 @ 10:31pm

Re: Re: Re: Re: Re: Sorry to be a kill joy ... but
You can talk about whatever unrelated issue you want, but I don't think that makes us idiots for discussing the actual topic of the article.
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Anonymous Coward, 26 Jun 2010 @ 10:33pm

Re: Re: Re: Re:
GoDaddy is putting up the ads and making money off the domain/website.

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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Anonymous Coward, 26 Jun 2010 @ 10:49pm

Re: Re: Re: Re: Re:
I am not accusing GoDaddy of failing to discriminate against "high traffic" pages. If genericdomainname.com were a high traffic page, they should feel free to put whatever ads they want on there (subject to their agreement with the registrant).

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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Anonymous Coward, 26 Jun 2010 @ 10:54pm

Re: Re: Re:
Why do you think providing a "level playing field" is some sort of defense?

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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Anonymous Coward, 26 Jun 2010 @ 10:58pm

Re: Re: Re: Re: Re:
I don't agree with Mike about registrars not being liable for their proxy services because he was wrong, as I pointed out.

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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Hoeppner, 27 Jun 2010 @ 6:10am

I find the patent part slightly funny.
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TtfnJohn (profile), 27 Jun 2010 @ 2:01pm

Re: This will come back to bite them in the butt.
OK, so what if I have a kid named Oscar? Not the most common name but not unheard of.

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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Anonymous Coward, 27 Jun 2010 @ 3:52pm

Re: Re: Re: Re:
Uh...

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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Etch, 28 Jun 2010 @ 4:11am

Parking Domains with the purpose of selling them with inflated prices should be illegal
Domain names are limited, and as a website developer I'm often very limited when it comes to availability of domain names when creating a website because all the good names are always taken by some asshole who hijacked the domain name (along with all its variations) and squatted on it with the purpose of reselling it for thousands of dollars! These people are parasites and need to go find a real job.
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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Anonymous Coward, 28 Jun 2010 @ 8:57am

Re: Re: Re: Re: Re:
Straw man. GoDaddy does not merely "allow" users to park domains.

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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Anonymous Coward, 28 Jun 2010 @ 10:50am

Re: Re: Re: Re: Re:
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.

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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Anonymous Coward, 28 Jun 2010 @ 10:59am

Re: Re: Re: Re: Re: Re:
I don't agree with Mike about registrars not being liable for their proxy services because he was wrong, as I pointed out.

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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Anonymous Coward, 28 Jun 2010 @ 5:16pm

Re: Re: Re: Re: Re: Re: Re:
How am I contradicting myself? I have never said that all registrars are always liable for all actions of all clients of their proxy services under all circumstances.

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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Anonymous Coward, 28 Jun 2010 @ 5:19pm

Re: Re: Re: Re: Re: Re:
"So you're accusing GoDaddy of running a "brothel/crack house/speakeasy"? "

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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Anonymous Coward, 28 Jun 2010 @ 11:58pm

Re: Re: Re: Re: Re: Re: Re:
No. I'm using what's called an "analogy."

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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Anonymous Coward, 29 Jun 2010 @ 12:06am

Re: Re: Re: Re: Re: Re: Re: Re:
I have never said that all registrars are always liable for all actions of all clients of their proxy services under all circumstances.

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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Anonymous Coward, 29 Jun 2010 @ 12:59am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, I said they *are* liable for their client's actions under their agreement with ICANN, unless they promptly ID them.

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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Anonymous Coward, 29 Jun 2010 @ 1:07am

Re: Re: Re: Re: Re: Re: Re: Re:
Wow. I was being facetious before, but I guess not everyone is familiar with analogies and how they work.
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Anonymous Coward, 29 Jun 2010 @ 10:48am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Wow. I was being facetious before...

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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none, 14 Aug 2012 @ 10:11am

Lawfrim
Hey, does anyone know what lawfirm is taking the case?
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