Mike, you mentioned repeatedly in this episode that you were surprised that something like HQ hadn't been tried before, and I thought you'd be interested to know that, in fact, it had, by Microsoft on XBOX Live for the XBOX 360 no less. The game was called 1 vs 100 and was supposed to be part of a larger push into scheduling called Primetime.
At the time of launch, Microsoft even described Primetime in the following terms: “The idea behind Primetime is to create scheduled programming ... so you can go in at a specific time, find friends, and experience live events.”
I want to get out of the way that I think you're right. That said, in an article discussing reasonable "transfer" speeds, I think you've only made the situation less clear for folks that wouldn't "know any better" by not distinguishing upload and download speeds.
You're right that download speeds of 180Mbps were prevalent in 2016, but this ignores the consideration that the upload could also be a bottleneck. In this case, I would have liked to see a little more detail on where the DNC servers are located because I don't know that part, or at least an admission that the lack of that information leaves open the possibility that the DNC handle their email about as well as Hilary Clinton did. If her server was on US consumer grade internet service, its intirely possible that an upload from such a server would be unlikely to transfer data at a rate of 180Mbps. That's just as relevant to debunking the "security experts" as the fact that their download speed could easily have been higher.
Come on Tim, please don't fall into the clickbait trap too. The article doesn't claim Glassdoor was sued, only the title, and subpoenas are only for non-parties...
I still would have read the article titled "Law Firm SUBPOENAS Glassdoor OVER Negative Anonymous Reviews, Supercharges Streisand Effect With Its Response."
But that's not really what he's saying. He got it basically right on his motions to dismiss description, but to your point, there is a big difference between denying a motion to dismiss and a case getting to a jury. A big thing to watch out for if appeals regarding the motion to dismiss fail will be Google's motion for summary judgment, in which they can show (if true) that there are no facts in dispute (I.e., nothing for a jury to decide), and that they win on the law (this is where they would raise that affirmative defense, the fact that their policies have wiggle room, etc.).
The important thing to note is that the motion to dismiss is basically at the beginning of the process, and a trial (which wouldn't happen anyway because Google would settle to avoid precedent they don't like, and might cause them to settle without even trying for a motion for summary judgment) is waaaaaaaaay down the line and an uncertain possibility.
"If you want GoDaddy to host the DNS *and* don't point it toward any other hosting provider *and* don't forward it to another existing page *and* don't have an alternative parking service, then you may need to call them and tell them you don't want the page to resolve anywhere."
Many people that register domain names do not have an immediate use in mind, and my point was merely that all of that "ands" you mention are ALL default settings. For a non-technically savvy user (i.e., the consumers GoDaddy actively targets), this is going to be the result at least until an intentional use of the domain name is made on the part of the user. Additionally, GoDaddy does not allow a registered domain name to lack a name server, which is not disclosed prior to registration.
"Not always true. GoDaddy offer a "Cash Parking" scheme."
True. I was keeping my analyses simple. The cash parking scheme clearly indicates awareness and intent on the part of the registrant to monetize the domain name. Thus, this is irrelevant regarding the activity I take issue with, namely that GoDaddy monetizes newly registered domain names and makes it difficult for a user to opt out of this "free" service.
"GoDaddy had no control over that part of it, nor control over the ads that appear on the page."
This is demonstrably false. First, as I point out in my initial comment, and above regarding an inability to leave name servers unconfigured, unless you register a domain name at GoDaddy knowing what alternative name servers to use (and this also assumes you even know what name servers are), you're stuck with this program unless you take further steps involving at least one phone call to opt out. Second, GoDaddy, after pushing new users into it's "free service" chose the mechanism for ad display (adwords), and chose to link the displayed ads to the domain name. It didn't have to link the ads to keywords based on the domain name. Third, GoDaddy is benefiting from the ad revenue, not the user.
"I get that in a case like an above example - where issues are raised because the word "Oscar" in the name triggered ads related to Academy Awards even if that's not what the word was intended to signify - the registrant might be innocent of any ill intention. But, to make GoDaddy fully responsible for typosquatting and more obvious infringement? No, that's wrong."
This is my whole point. I'm not saying GoDaddy should be held responsible, but you're saying the registrant shouldn't. If it's not the registrant, and it's not GoDaddy (who earns revenue), who the hell should it be? A lot of what I say above assumes a user is ignorant, and I think a reasonable person could hold the opinion that their ignorance is their problem, but if that's the case, shouldn't they be legally culpable? And if you think ignorance isn't their problem, because again, these are the users GoDaddy targets, then again, who is responsible? Because in some instances there is actual cybersquatting, and if the registrant isn't responsible for what happens on their domain name, and GoDaddy isn't responsible as the licensee, then GoDaddy has found a way to thread that needle quite nicely. It's scummy.
There's actually another wrinkle in the case that the article doesn't get into.
The Academy was attempting to hold GoDaddy responsible for placing the ads because GoDaddy chose what service to use to place the ads, and was the only party earning revenue from the ads. While it definitely appears the harm here (if you even want to call it harm) was de minimis at best, that doesn't really get into the issue of who should be responsible for putting content on parking pages.
For example, I'm sure many of us have typed a domain name wrong, and ended up on a GoDaddy (or other) parking page. Now, while I might know that I should just check the domain name, many other people will just click on the links/ads. Someone earns money from those clicks, and if the links/ads are for the same type of goods as those of the trademark holder, that's clearly cybersquatting. But who is at fault here? I would say the registrant, but the GoDaddy specific issue is that GoDaddy places parking pages at newly registered domain names by default, and the process for getting the parking page removed is not as simple as unpicking a box (it requires, at least, a phone call). As another kick in the pants, GoDaddy doesn't share any of the revenue from this program with the registrant that has now paid GoDaddy for the privilege of having a parking page hosted at their domain name.
Additionally, the terms of this automatic program are somewhat buried, and no one reads them anyway. So, the options appear to be, where actual cybersquatting is occurring, hold the registrant that likely had no idea responsible, hold GoDaddy responsible, or hold no one responsible. The issue with holding no one responsible is two-fold. By the terms of the license agreement registrants provide GoDaddy, there is a clear warning and GoDaddy even includes language regarding indemnification. However, GoDaddy makes it non-trivial to opt out of this program, and this is not appropriate based on the fact that the same term may be used in both infringing and non-infringing ways (same trademark, different industries, for example). GoDaddy is sophisticated enough to be aware of this risk, but hardly informs registrants of what they're doing at all. I don't know that this rises to the level of trademark infringement (or some sort of licensee cybersquatting theory), but it sure isn't how I would want my registrar operating.
Final thought. While I am generally all for service provider immunity applying to trademarks, that's not what is happening here. GoDaddy is providing this service to itself. Any argument that it's putting up these pages so that a page loads instead of a timeout and its associated burden falls flat when a page full of ads loads slower than the type of "coming soon" page that many other Registrars provide.
I don't know what the right answer is here, but it looks like at least some of the domain names contained actual Academy related links. In those instances at least, I would have liked to see a little more consideration on the part of the judge regarding who, exactly, is at fault (and yes, I get that the judge is not obligated to do this since the Defendant at issue is only GoDaddy). The problem now is all the poor folks too stupid to not use GoDaddy might get the short end of this particular stick.
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It gets better
Re: 1 vs 100
1 vs 100
At the time of launch, Microsoft even described Primetime in the following terms: “The idea behind Primetime is to create scheduled programming ... so you can go in at a specific time, find friends, and experience live events.”
Kotaku has a great writeup on it here: https://kotaku.com/that-time-microsoft-ran-a-live-game-show-on-xbox-360-1732672085
The game was actually pretty popular, but apparently died due to mismanagement.
Download vs Upload
You're right that download speeds of 180Mbps were prevalent in 2016, but this ignores the consideration that the upload could also be a bottleneck. In this case, I would have liked to see a little more detail on where the DNC servers are located because I don't know that part, or at least an admission that the lack of that information leaves open the possibility that the DNC handle their email about as well as Hilary Clinton did. If her server was on US consumer grade internet service, its intirely possible that an upload from such a server would be unlikely to transfer data at a rate of 180Mbps. That's just as relevant to debunking the "security experts" as the fact that their download speed could easily have been higher.
Re: Re: Clickbait title is clickbait.
Clickbait title is clickbait.
I still would have read the article titled "Law Firm SUBPOENAS Glassdoor OVER Negative Anonymous Reviews, Supercharges Streisand Effect With Its Response."
Re: Re: Motion to Dismiss
The important thing to note is that the motion to dismiss is basically at the beginning of the process, and a trial (which wouldn't happen anyway because Google would settle to avoid precedent they don't like, and might cause them to settle without even trying for a motion for summary judgment) is waaaaaaaaay down the line and an uncertain possibility.
Re: Re: There's Another Wrinkle
Many people that register domain names do not have an immediate use in mind, and my point was merely that all of that "ands" you mention are ALL default settings. For a non-technically savvy user (i.e., the consumers GoDaddy actively targets), this is going to be the result at least until an intentional use of the domain name is made on the part of the user. Additionally, GoDaddy does not allow a registered domain name to lack a name server, which is not disclosed prior to registration.
"Not always true. GoDaddy offer a "Cash Parking" scheme."
True. I was keeping my analyses simple. The cash parking scheme clearly indicates awareness and intent on the part of the registrant to monetize the domain name. Thus, this is irrelevant regarding the activity I take issue with, namely that GoDaddy monetizes newly registered domain names and makes it difficult for a user to opt out of this "free" service.
"GoDaddy had no control over that part of it, nor control over the ads that appear on the page."
This is demonstrably false. First, as I point out in my initial comment, and above regarding an inability to leave name servers unconfigured, unless you register a domain name at GoDaddy knowing what alternative name servers to use (and this also assumes you even know what name servers are), you're stuck with this program unless you take further steps involving at least one phone call to opt out. Second, GoDaddy, after pushing new users into it's "free service" chose the mechanism for ad display (adwords), and chose to link the displayed ads to the domain name. It didn't have to link the ads to keywords based on the domain name. Third, GoDaddy is benefiting from the ad revenue, not the user.
"I get that in a case like an above example - where issues are raised because the word "Oscar" in the name triggered ads related to Academy Awards even if that's not what the word was intended to signify - the registrant might be innocent of any ill intention. But, to make GoDaddy fully responsible for typosquatting and more obvious infringement? No, that's wrong."
This is my whole point. I'm not saying GoDaddy should be held responsible, but you're saying the registrant shouldn't. If it's not the registrant, and it's not GoDaddy (who earns revenue), who the hell should it be? A lot of what I say above assumes a user is ignorant, and I think a reasonable person could hold the opinion that their ignorance is their problem, but if that's the case, shouldn't they be legally culpable? And if you think ignorance isn't their problem, because again, these are the users GoDaddy targets, then again, who is responsible? Because in some instances there is actual cybersquatting, and if the registrant isn't responsible for what happens on their domain name, and GoDaddy isn't responsible as the licensee, then GoDaddy has found a way to thread that needle quite nicely. It's scummy.
There's Another Wrinkle
The Academy was attempting to hold GoDaddy responsible for placing the ads because GoDaddy chose what service to use to place the ads, and was the only party earning revenue from the ads. While it definitely appears the harm here (if you even want to call it harm) was de minimis at best, that doesn't really get into the issue of who should be responsible for putting content on parking pages.
For example, I'm sure many of us have typed a domain name wrong, and ended up on a GoDaddy (or other) parking page. Now, while I might know that I should just check the domain name, many other people will just click on the links/ads. Someone earns money from those clicks, and if the links/ads are for the same type of goods as those of the trademark holder, that's clearly cybersquatting. But who is at fault here? I would say the registrant, but the GoDaddy specific issue is that GoDaddy places parking pages at newly registered domain names by default, and the process for getting the parking page removed is not as simple as unpicking a box (it requires, at least, a phone call). As another kick in the pants, GoDaddy doesn't share any of the revenue from this program with the registrant that has now paid GoDaddy for the privilege of having a parking page hosted at their domain name.
Additionally, the terms of this automatic program are somewhat buried, and no one reads them anyway. So, the options appear to be, where actual cybersquatting is occurring, hold the registrant that likely had no idea responsible, hold GoDaddy responsible, or hold no one responsible. The issue with holding no one responsible is two-fold. By the terms of the license agreement registrants provide GoDaddy, there is a clear warning and GoDaddy even includes language regarding indemnification. However, GoDaddy makes it non-trivial to opt out of this program, and this is not appropriate based on the fact that the same term may be used in both infringing and non-infringing ways (same trademark, different industries, for example). GoDaddy is sophisticated enough to be aware of this risk, but hardly informs registrants of what they're doing at all. I don't know that this rises to the level of trademark infringement (or some sort of licensee cybersquatting theory), but it sure isn't how I would want my registrar operating.
Final thought. While I am generally all for service provider immunity applying to trademarks, that's not what is happening here. GoDaddy is providing this service to itself. Any argument that it's putting up these pages so that a page loads instead of a timeout and its associated burden falls flat when a page full of ads loads slower than the type of "coming soon" page that many other Registrars provide.
I don't know what the right answer is here, but it looks like at least some of the domain names contained actual Academy related links. In those instances at least, I would have liked to see a little more consideration on the part of the judge regarding who, exactly, is at fault (and yes, I get that the judge is not obligated to do this since the Defendant at issue is only GoDaddy). The problem now is all the poor folks too stupid to not use GoDaddy might get the short end of this particular stick.
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