Best Of The Trademark Bullies: Village Voice Sues Yelp Over 'Best Of' Lists

from the answer:-none dept

The latest in a long series of stupid trademark bullying lawsuits comes to us courtesy of The Village Voice (who should know better than to file bogus lawsuits). The Voice is suing Yelp for trademark infringement. The Village Voice somehow convinced the USPTO that it deserved a trademark on the phrase "best of [place name]" for certain locations -- such as "Best of Seattle" or "Best of San Francisco." Yelp, quite reasonably, also uses the term of "best of" to describe certain places: Village Voice is claiming that Yelp's infringement is "willful" because it notified the company, and Yelp apparently told them to go away. It's also ridiculously claiming that Yelp's usage has "irreparably harmed" the company. I realize that's standard language used in such lawsuits, but seriously?

The EFF points out that the US Patent and Trademark Office is partly to blame for allowing registrations on such trademarks:

What is going on at the Patent and Trademark Office?  For decades, folks have been complaining (with good reason) that the patent examiners need to do a better job of screening out bogus patent applications. It’s clear that the problem extends to the trademark side as well. The PTO has allowed companies and individuals to register marks in any number of obviously generic and/or descriptive terms, such as “urban homestead” (to refer to urban farms), “gaymer” (to refer to gay gamers), and “B-24” (to refer to model B-24 bombers).

Once a mark is registered, it is all too easy for the owner to become a trademark bully. And while companies like Yelp have the resources to fight back (as we expect it will), small companies and individuals may not. Just as dangerous, the trademark owner may go upstream, to intermediaries like Facebook who have little incentive to do anything other than take down an account or site that’s accused of infringement.

Separately, the EFF asks the most important question: who is actually being deceived here? There is no confusion. No one associates "best of" with the Village Voice. Everyone reads it as a perfectly normal descriptive term, rather than a trademark belonging to any single party.

Filed Under: best of, bullies, trademark, trademark bullies
Companies: village voice, yelp

Washington State Tries To Criminalize Service Providers For User Behavior; Internet Archive Sues

from the section-230,-have-you-read-it? dept

For years, we've talked about the importance of Section 230 in properly applying liability directed at the actual people who break laws, rather than the tools and services they use. Unfortunately, some people fail to make a distinction and love to blame service providers. And... once it gets into areas that make people react emotionally, things get ridiculous. For example, we've written a few times about the misguided attacks on Backpage.com, which only came about because of similar misguided attacks on Craigslist. At issue was that both sites had been used for prostitution and sex trafficking. But, rather than do the sensible thing and work with those platforms -- who both have programs to do exactly this -- to make it easier for law enforcement to find and prosecute those involved in such efforts, grandstanding politicians and activists blamed the service providers, driving the actual activities further underground. Of course, they have never had any real legal argument, and the lawsuits have fallen flat.

However, it appears that some politicians in Washington State decided to pass a state law (SB 6251) which targets service providers. It's one of those laws that it's easy for politicians to get behind without realizing what they're actually doing. They think they're "protecting the children" but they're actually making the problem significantly worse. That's because they're not setting up a better way to track down and stop those actually responsible, but rather are simply telling them to move further underground, where it will be even harder to stop them.

And, of course, in their zeal to "protect the children" the politicians who passed this bill wrote it so broadly that it can create massive problems for tons of legitimate online service providers. The Internet Archive, represented by the EFF, has filed to join a lawsuit (from Backpage) against the law, pointing out that it clearly violates Section 230 of the CDA, which providers the necessary safe harbors for service providers. The overreach of the Washington law is pretty astounding:

SB 6251 would effectively coerce, by threat of felony prosecution, online service providers to become censors of third-party users' content by threatening five years imprisonment and a $10,000 fine per violation against anyone who knowingly publishes, disseminates or displays or anyone who “indirectly” “causes” the publication, dissemination, or display of content that contains an explicit or even “implicit” offer of any sexual contact for “something of value” in Washington if the content includes an image that turns out to be of a minor. Because of its expansive language (i.e., “indirectly” “causes”), the law could be applied not only to online classified ad services like Backpage.com but also to any web site that provides access to third-party content, including user comments, reviews, chats, and discussion forums, and to social networking sites, search engines, Internet service providers, and more. A law that takes such an overbroad approach is of serious concern to the Internet Archive, which aims to serve as a library for the Internet, and accordingly, houses more than 150 billion web pages archived since 1996.

The law expressly states that it is not a defense that the defendant did not know that the image was of a minor. Instead, to avoid prosecution, the defendant must obtain governmental or educational identification for the person(s) depicted in the post (notably, even if that ID does not contain a photograph). This means that service providers – no matter where headquartered or operated – may be asked to review each and every piece of third-party content accessible through their services to determine whether the content is an “implicit” ad for a commercial sex act in Washington, whether it includes a depiction of a person, and, if so, obtain and maintain a record of the person’s ID. These obligations would severely impede the practice of hosting third-party content online.

I'm sure the folks behind this law had the best of intentions. Sex trafficking of underage persons is a very real and horrific problem (even if the numbers bandied about are massively exaggerated). But the real solution is to go after the actual perpetrators, and that means working with service providers to help track them down -- not criminalizing the service providers in a way that kills off lots of legitimate activity as well.

Filed Under: cda, censorship, liability, safe harbors, section 230, washington state
Companies: backpage.com, craigslist, eff, internet archive, village voice

Misguided Senators Propose Plan To Make It Harder For Law Enforcement To Track Down Human Trafficking Online

from the you're-doing-it-wrong dept

We've been covering the bizarre (mostly publicity-motivated) attacks on the Village Voice's Backpage.com site for a while. Those efforts have been ramping up, and every day I seem to get press releases from some ridiculous group that is apparently coordinating this misguided and dangerous attack. It appears that some of the silly publicity stunt is working, with Senators Richard Blumenthal, Mark Kirk, John Cornyn, Sheldon Whitehouse and Marco Rubio all supporting a "resolution" demanding Backpage take down its "adult entertainment" section. We've seen this battle before. Craigslist went through the same ridiculous moral panic a few years ago. And all it did was drive all of this traffic elsewhere -- with a lot of it settling on Backpage. Of course, that effort was led by then Connecticut Attorney General Richard Blumenthal, before he became a Senator -- so it's no surprise that he's involved in this pointeless effort as well.

Here's the thing: we already know how this game plays out. You can browbeat these companies into shutting off this part of their forums against their own will, and many of them will cave. And you'll celebrate victory, but as you do that, everyone will be rapidly exploring alternatives, which most will move to pretty quickly. In other words, such a crackdown won't do a damn thing to stop people from actually being exploited. Even worse, in pressuring that content to scatter, it becomes much more difficult for law enforcement to track down and arrest the real criminals who are abusing the system. But nothing in getting Backpage to turn off this section actually helps to stop such trafficking/prostitution. It just makes life that much more difficult for law enforcement, since they now need to do a lot more work to track down the people abusing these laws. I fail to see how that's a positive result, as the government has insisted.

Filed Under: backpage, publicity stunt, richard blumenthal
Companies: craigslist, village voice

As Expected, Backpage Is Not Liable For Prostitution Ads

from the we-could-have-told-you-that dept

Last year, we wrote about a former child prostitute who sued Village Voice Media for its Backpage classified ads offerings, since this was a tool previously used to sell her. Now there has been a lot of controversy in the last couple of years (mainly from grandstanding politicians) about prostitution ads on Craigslist and Backpage. However, as has been pointed out over and over and over again, the liability belongs on the person actually committing the crime, not the service provider. And, in fact, the law, via Section 230 of the CDA gives service providers immunity.

Still, we were a little worried that since this case was highly emotionally charged, and involved a child prostitute, that the court might make a bad ruling. Instead, it appears that court has made a really strong and useful ruling explaining repeatedly why Backpage is not liable. The girl's lawyers basically tried every trick in the book to get around Section 230 immunity, but the court debunked each and every one. Many of the claims she made are the types of claims we see in the comments from people who don't understand safe harbors (like saying that you lose safe harbors if you make money). Eric Goldman, at the link above, walks one by one through each of the lawyer's attempts to get around Section 230, and explains why the judge rejected it. It's worth reading the whole thing, but here's a snippet:

• Backpage allows keyword searches. Citing several cases, including Jurin and Rosetta Stone, the court says this is irrelevant.
• Backpage created an adult category. The court cites Dart v. Craigslist in concluding this is irrelevant.
• Backpage takes steps to increase its revenues. Backpage allegedly "tout[ed] its website as a 'highly tuned marketing site' and instruct[ed] posters of ads on how to best increase the impact of those ads." The court responds: "to find Backpage to be not immune from suit based on M.A.'s allegations about how it structured its website in order to increase its profits would be to create a for-profit exception to § 230's broad grant of immunity. This the Court may not do."
• Backpage allegedly knew prostitution was advertised on the site. The court cites several cases for the proposition that knowledge is irrelevant to 230's immunity.

It's nice to see, yet again, a court recognize that liability should be properly applied, and we shouldn't blame 3rd party service providers for the actions of their users.

Filed Under: ads, backpage, liability, prostitution, section 230
Companies: backpage, village voice

Backpages Points Out That It Shouldn't Be Liable For Actions Of Its Users

from the again dept

This is a few weeks old, but Michael Scott points us to the story of how Backpages is asking a court to dismiss the lawsuit filed against it by a teen who was sold as a prostitute on the site. We covered the lawsuit when it was first filed, and had a rather frustrating discussion in the comments with people who simply couldn't understand the difference between blaming those actually responsible and blaming the tools those people used. We've discussed how the attempts to blame tool providers often helps those who are involved in child trafficking. It attacks the sites that work with law enforcement and help them identify those actually responsible, and instead drives traffickers to seek out other sites that don't work with law enforcement. In this case, the teen tries to claim that Backpages (owned by Village Voice Media) isn't protected by Section 230 because it "helped develop the ads":

"The website is a highly tuned marketing site with search tools, adult sex focused categories, and directions and features offered regarding how to increase the impact of your ads for a fee," M.A. argues. "Defendants advertise its website to increase page views of the ads; defendants removes spam from its website to increase page views of placed ad," M.A. adds. "All of these acts make defendants the creators and developers of the posted advertisements."

I don't see how any of those things overrides Section 230 safe harbors. It seems like a huge stretch to claim that advertising your service somehow makes you responsible for the content and the uses. Also, the fact that the site removes spam is totally meaningless, as the various Section 230 cases have shown time and time again that removing other content does not remove Section 230 safe harbors (if it did, no one would ever remove anything). Still, given the highly emotionally charged nature of this case, it wouldn't surprise me if a court ruled the other way, though the end result of that would be quite damaging -- especially to the people who many think this lawsuit is designed to protect.

Filed Under: liability, section 230
Companies: backpages, village voice

Backpage Tells Attorneys General That They Won't Give In To Censorship Demand

from the good-for-them dept

On Tuesday, we wrote about how a group of grandstanding state attorneys general had moved on from blaming Craigslist for the actions of its users, now that they had successfully censored that site, and began demanding similar censorship for Backpage.com, the online classifieds from Village Voice Media. As a few people have sent in, Backpage does not seem interested in backing down, posting a public response and pointing out that they are operating perfectly in accordance with the law, that even the AGs admit that Backpage cooperates with law enforcement, and that the AGs would be better served going after those actually involved in the activities, rather than blaming third parties:

While no system is perfect, even the AGs acknowledge Backpage.com's good-faith cooperation with law enforcement.

In the last two years, Backpage.com users have posted 58 million ads and only 6 million in the adult services section. Federal and state authorities have called on Backpage.com to testify in just five cases involving alleged abuse of underage persons. Backpage.com continues to respond to valid subpoenas from law enforcement officials whose job it is to investigate, apprehend and prosecute criminals who wrongfully post illegal ads and victimize others.

Backpage.com is disappointed that the AGs have determined to shift blame from criminal predators to a legal business operator in an apparent attempt to capitalize on political opportunity during the election season.

They also note: "Censorship will not create public safety nor will it rid the world of exploitation."

Of course, rather than recognizing any of this and maybe backing down, Connecticut Attorney General (and Senate candidate) Richard Blumenthal responded in typically misleading fashion:

"I am deeply disappointed by this unfortunate and unfounded resistance to taking common-sense steps toward protecting women and children. I am hopeful that the company will reconsider its resistance and do the right thing. I will consult with my fellow attorneys general and consider possible next steps."

Notice that he does not respond to any of the actual points raised. He does not respond to the fact that shutting down these services won't do anything to help protect women and children and will almost certainly make the problem worse. He just pretends that the world is the exact opposite of what it is. It's as if Richard Blumenthal thinks that everyone out there is incredibly dumb and believes the world works as he says it does, rather than how it actually works.

Filed Under: backpage, classifieds, grandstanding, legality, richard blumenthal
Companies: backpage, village voice

State AGs Now Targeting Backpage After Forcing Craigslist To Stop Helping Them Pursue Lawbreakers

from the how-backwards-can-you-get? dept

We've already explain how the political grandstanding campaign against Craigslist, that got the company to shut down its "adult services" section based on no legal reason, does plenty to harm the people the various state attorneys general think they're "helping." Craigslist has been highly active in working with police to use the site to find and arrest those actually responsible for dangerous exploitation of children. But by shutting off that tool, the ads simply migrate to sites that are more underground and less willing to work with law enforcement. Apparently, though, the AGs are stuck on the political headlines, and don't care at all for anyone's actual safety.

So they've moved on to their next target: 21 state attorneys general have kicked off a grandstanding campaign against Backpage, the online classifieds arm of Village Voice Media (the same company that was just sued over the same issue). Once again, Backpage is one of the companies that has worked closely with law enforcement -- and the AGs even admit that in their announcement demanding the company shut down the tool.

This is incredibly dumb and frustrating. In the pursuit of headlines falsely claiming that they're "protecting" children, these AGs are only serving to attack the companies who help them track down those actually responsible for child exploitation and child prostitution. All they're doing is making the problem worse. Those who are exploiting these kids in the worst possible way won't stop doing it -- they'll just use other means to do so, in a way that's harder for police to track them down and to capture them.

Filed Under: grandstanding
Companies: backpage, craigslist, village voice

Former Child Prostitute Sues Village Voice For 'Aiding & Abetting' Via Sex Ads

from the section-230-challenge dept

With so much attention being paid to Craigslist over its "adult services" section, one thing that Craigslist often pointed out was that many other classifieds services allowed much worse -- with the Village Voice's Backpages.com often being used as a prime example. And while we haven't heard of state attorneys general getting ready to go after Backpages, apparently a former child who was sold as a prostitute is going to try. The girl, still a minor, going by the name M.A. is suing the Village Voice and specifically claiming that Section 230 of the CDA doesn't apply: The "pimp" who sold her via ads on Backpages has already plead guilty to a variety of charges involving prostitution and child pornography (for taking pornographic pictures of M.A. to put on Backpages).

As for getting around Section 230, the lawsuit points out that Section 230 includes an "exemption" for the exploitation of children. Perhaps I'm wrong (Section 230 experts, feel free to chime in), but I'm not sure this is quite true. Section 230 does state that nothing in Section 230 should be construed to "impair the enforcement" of laws related to sexual exploitation of children, but that doesn't mean that it makes service providers automatically liable if their services are used in that nature. And I don't see how what Backpages did "impaired the enforcement" of the law so it's not clear how that exemption really applies here.

Either way, this makes for an interesting test of Section 230 -- on a highly emotional issue. No one denies that what happened to M.A. sounds horrific and those involved should be punished to the fullest extent of the law (and, it's certainly good to hear that the main person involved has plead guilty and hopefully won't be able to do this to others). That it happened at all is horrifying and sickening. But does it make sense to blame a service provider who served as the bulletin board? That may be a bit extreme and risks adding significant liability to anyone who allows any sort of user-generated system.

Filed Under: section 230
Companies: backpages, village voice

Don't Click On This Link Unless You Don't Mind A Grand Jury Knowing What You Read

from the privacy?-schmivacy dept

Apparently two executives from Village Voice Media (publishers of The Village Voice and other independent newspapers) were arrested yesterday for revealing grand jury information that was supposed to be private. Specifically, they had published an article in one of its publications, the Phoenix New Times, accusing a grand jury of unconstitutional behavior in issuing a subpoena for all sorts of information about the Phoenix New Times and its readership. Now, before you click on the link to the article, it's worth noting that the subpoena in question demands that the newspaper hand over incredibly detailed log information on every visitor to that website since January 2004. This is because someone is upset about four articles dealing with a local sheriff. Yet, though the supposed problem is with the four articles, the subpoena demands information on every visitor to the site, including such things as their IP address, which articles they read, any information obtained by cookies, the referral links that got them to the website, their type of browser and their type of operating system. In other words, all the info typically found in a log file -- but it's unclear why this information could possibly be necessary in a complaint about 4 specific articles. Update: As pointed out in the comments, just as we were writing up this story, the original lawsuit was dropped and the special prosecutor was fired.

Filed Under: grand jury, subpoena
Companies: phoenix new times, village voice