I fail to see how Google selling Louis Vuitton adwords to LV's competitors is any different than State Farm putting up billboards across the street from Geico offices or Viagra buying an ad on the page after a Cialis article....
This is more like putting a phone tap on the line, and setting it up so that each time someone calls Geico, they get an intercept telling them how wonderful State Farm is...
Both these analgoies are weak, and I think all such analogies are doomed to failure. This is more like a search engine allowing companies to buy targeted ads on the search engine's search results pages that use or are associated with their competitors...
Like a few others have said, unless there is a "meeting of the minds" (which by definition would seem to exclude bots) then there is no enforceable agreement.
Re:Follow the Money ... California Spam Law does
on
New Attacks on Spam
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· Score: 2, Informative
As looney as I think the California legislature is, they did a pretty good job on recognizing the economic incentives behind spam. California Business and Professions Code 17529 holds the advertisers equally accountable with the actual spammers:
(j) There is a need to
regulate the advertisers who use spam, as well as the actual spammers, because the actual spammers can be difficult to track down due to some return addresses that show up on the display as "unknown" and many others being obvious fakes and they are often located offshore.
(k) The true beneficiaries of spam are the advertisers who benefit from the marketing derived from the advertisements.
Part of the enforcement provision in 17529.5 starts:
17529.5. It is unlawful for any person or entity to advertise using a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:...
IAAL in CA, and I am using this law to go after a few spammers. It is quite fun.
... they don't really give a shit about "consumers" as long as they continue to consume.
How Gen-X of you. Who is the "they" of which you speak? Some secret cabal of billionaires? If the "they" is the California legislature, why would they enact the law if they didn't give a shit? The CA spam law is actually pretty good, read it sometime (CA Business & Professions 17529 et seq.), the legislature did their homework pretty well. I am finding it quite useful:)
That is awesome. I have filed two spam suits myself here in California. I have learned quite a bit and, if I file another lawsuit, I will be much more effective.
If you are claiming "only" 40 feet high, it is apparent you have never been caught inside by an ocean wave even half that size. The power of a normal, storm-created wave 40 feet high is simply awesome. Given the fact that storm waves travel at a fraction of the speed of tsunami, these waves must have been powerful indeed.
I do agree with you to some extent. I weighed for a long time whether it was The Right Thing To DoTM.
Eventually, however, my hatred for spam led me to file the complaint. The mortgage spams are so blatantly fraudulent... misleading subject lines, messages that state outright that you are already involved in this fake company, and then you are led to a fake bank Web site with fake FDIC logos and Verisign security certificates - lies from end-to-end. (No Slashdotters are going to fall for this, but think of the grandmothers!).
And these companies, whether they realized or not, are funding this international criminal conspiracy. They should have fricken thanked me (and actually one or two of them did off the record).
I did something similar to this, but put no money out. I responded to one of those mortgage emails (the subject line had something like "We owe you $60001" and went on to say something like, "Your mortgage application is approved, click here for final details..." I am confident you have seen this species of spam once or twice:-)
I followed the link and put in a fake name - a name I have never used anywhere else - but provided them with my real office phone number. Because it dealt with mortgages, I knew someone who had sufficient ties to my jurisdiction would respond if they wanted to sell me a mortgage.
I had over 40 fricking banks and mortgage brokers call me using that fake name! So what did I do? I sued the bastards.
Now, whether or not I believe them when they say that they didn't know that their leads were generated by spam, the judge in this particular case (who didn't know very much at all about the technology or economics of spam) said that, as a matter of law, they were not liable under my state's spam laws. However, before they were dismissed from the case, I was able, through discovery, to learn where they purchased those leads. So although I have dismissed the banks and brokers, I have named as defendants the companies who sold them the leads (which, I was surprised to learn, were also in my jurisdiction). My plan is to trace that fake name all the way back to the company that first sold it to somebody else.
In seeing how much money these banks and brokers pay for leads, it is understandable why spammers take the risk of a judgment such as the one in this Iowa case - they are making money hand over fist!
It is true that under the CAN-SPAM act, Internet Service Providers are the only private parties who can file a lawsuit under that act. However the CAN-SPAM act also provides:
"(1)IN GENERAL.--This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation,or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."
That means that some state laws (such as California) have parts of their spam law still intact. Under California, for example, it is unlawful to advertise where "The commercial e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message." (CA Business & Professions Code 17529.5(c))
Because this part of CA's spam law prohibits falsity in a part of the email message, it is not pre-empted. Therefore, because CA's spam law allows individual recipients to sue, an individual could bring a spam suit under CA law, but not under the CAN-SPAM Act. An ISP could bring a lawsuit in Fed court alleging violations of both state and federal law.
Minimum due process standards require that a person be served with a summons and complaint before a default judgment - or any other kind of judgment - can be entered against a party.
Whether they were personally served or not is a different question. However, personal service is not required. They can even be "served" with the summons and complaint by publication in a newspaper if diligent attempts at personal service have been made.
Lack of personal service may make it easier for them to set aside the default judgment, but I doubt they will show up in court to make the proper motions.
I really lagged in replying to this, so despite the fact I may be typing into the void:
I am not sure what semantic distinction you draw between "contract" and "civil agreement" but I am quite certain it wouldn't matter in a California court. The legislative intent is crystal clear, broadly stated, and supported by a long history of California's social policy: Every contract which seeks to restrain someone from engaging in a lawful trade or profession, except in the limited situations given in that chapter of the code, is to that extent null and void.
No, that is wrong. As the parent post states, "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void."
The main exception is when the non-compete is associated with the sale of a business.
If I had a client who came to me and wanted to sue a company without my client's consent, I would be more than glad to take the case. The difficult part is getting jurisdiction over the defendant. If we could get jurisdiction, I would take take the case for free.
How did this ignorant comment ever get modded up as Insightful? RTFO!
There is a HUGE difference between "the Hiibel example and the cops showing up at your door without a warrent."
"Here there is no question that the initial stop was based on reasonable suspicion." "Reasonable suspicion" has been a long-recognized basis for stopping people and even searching them without a warrant. Reasonable suspicion must be based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. No such articulable facts, no right to demand identification!
Under this law, "the suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists. As we understand it, the statute does not require a suspect to give the officer a driver's license or any other document." ["Your papers please?" Please!]"Provided that the suspect either states his name or communicates it to the officer by other means--a choice, we assume, that the suspect may make--the statute is satisfied and no violation occurs.
However, only under VERY limited circumstances can a cop show up at your door without a warrant and gain lawfully entry to search your home (Hot pursuit of a fleeing felon; high risk of imminent bodily harm, things like that.) That's just a stupid comparison.
I am a big-time privacy activist, but this is the right decision and hardly groundbreaking.
Whatever you do with your great intellect, make sure you pay all your debts on time. An excellent credit score will be a huge bonus for you if you decide to stay in modern society.
Typically the distinction drawn is not that of natural person/corporation, but more often whether the speech is commercial speech or not. Commercial speech is afforded First Amendment protection, though less protection than pure political speech.
The current rule is that government can only regulate truthful commercial speech if it "directly advances" an important government interest in the least restrictive method possible.
However, commercial speech cases have split the Supreme Court into several pieces. Do a search on "44 Liquormart" and "commercial speech." Thomas would give full first amendment protection to truthful commercial speech because, after all, the listener may be far more interested in the price of cigarrettes than the day's most urgent political debate.
But don't believe for a second that the liberal end of the court will be more protective of your rights. One need only read Kyllo v. United States to recognize that Scalia and Thomas are two of the strongest defenders of liberty on the court. The same can be said for free speech.
There is no reason why Google can't keep their integrity after an IPO - they just have to keep the right board of directors.
It is true that the board owes a fiduciary duty to the shareholder, but the board also operates under the "business judgment rule" - they have wide discretion to determine what is best for the company, both in the short and long term.
I talked it over with my partner this week. We are going to pick a few companies that have sent spam to me (and my three-year-old son) and we are going to sue the bastards.
Our plan is to sue those companies which are pitching products that will make them more amenable to suit in California, and that may have some assets to go after. I am thinking the companies that are pitching mortgage loans ("Mor|tgage rates tumble - Refinance today ozg w9l") and insurance are prime targets. I realize, of course, that these companies may not be sending out the spam themselves, but I really don't care. If these companies are marketing themselves so irresponsibly, they are just as culpable as if they were pressing the "send" button. Through the discovery process, I certainly do plan on finding out who is pressing the "send" button.
Not being an uber-geek, but only a humble lawyer, this is the role I can play. And I must express my appreciation to/.ers who have inspired me. I plan on keeping a Slashdot journal of the process.
The courts have made a distinction between those EULAs that you HAVE to click through before being able to use it (such as MS) and those that are passive (such as Google's) that you don't have to actually read before using the service/software/whateva.
The one's REQUIRING a click-through are much more likely to be upheld.
Slashdot Mirror
Like a few others have said, unless there is a "meeting of the minds" (which by definition would seem to exclude bots) then there is no enforceable agreement.
Part of the enforcement provision in 17529.5 starts:
IAAL in CA, and I am using this law to go after a few spammers. It is quite fun.How Gen-X of you. Who is the "they" of which you speak? Some secret cabal of billionaires? If the "they" is the California legislature, why would they enact the law if they didn't give a shit? The CA spam law is actually pretty good, read it sometime (CA Business & Professions 17529 et seq.), the legislature did their homework pretty well. I am finding it quite useful :)
What jurisdiction are you in, if I may ask?
If you are claiming "only" 40 feet high, it is apparent you have never been caught inside by an ocean wave even half that size. The power of a normal, storm-created wave 40 feet high is simply awesome. Given the fact that storm waves travel at a fraction of the speed of tsunami, these waves must have been powerful indeed.
Eventually, however, my hatred for spam led me to file the complaint. The mortgage spams are so blatantly fraudulent ... misleading subject lines, messages that state outright that you are already involved in this fake company, and then you are led to a fake bank Web site with fake FDIC logos and Verisign security certificates - lies from end-to-end. (No Slashdotters are going to fall for this, but think of the grandmothers!).
And these companies, whether they realized or not, are funding this international criminal conspiracy. They should have fricken thanked me (and actually one or two of them did off the record).
I followed the link and put in a fake name - a name I have never used anywhere else - but provided them with my real office phone number. Because it dealt with mortgages, I knew someone who had sufficient ties to my jurisdiction would respond if they wanted to sell me a mortgage.
I had over 40 fricking banks and mortgage brokers call me using that fake name! So what did I do? I sued the bastards.
Now, whether or not I believe them when they say that they didn't know that their leads were generated by spam, the judge in this particular case (who didn't know very much at all about the technology or economics of spam) said that, as a matter of law, they were not liable under my state's spam laws. However, before they were dismissed from the case, I was able, through discovery, to learn where they purchased those leads. So although I have dismissed the banks and brokers, I have named as defendants the companies who sold them the leads (which, I was surprised to learn, were also in my jurisdiction). My plan is to trace that fake name all the way back to the company that first sold it to somebody else.In seeing how much money these banks and brokers pay for leads, it is understandable why spammers take the risk of a judgment such as the one in this Iowa case - they are making money hand over fist!
"(1)IN GENERAL.--This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation,or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."
That means that some state laws (such as California) have parts of their spam law still intact. Under California, for example, it is unlawful to advertise where "The commercial e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message." (CA Business & Professions Code 17529.5(c))
Because this part of CA's spam law prohibits falsity in a part of the email message, it is not pre-empted. Therefore, because CA's spam law allows individual recipients to sue, an individual could bring a spam suit under CA law, but not under the CAN-SPAM Act. An ISP could bring a lawsuit in Fed court alleging violations of both state and federal law.
Whether they were personally served or not is a different question. However, personal service is not required. They can even be "served" with the summons and complaint by publication in a newspaper if diligent attempts at personal service have been made.
Lack of personal service may make it easier for them to set aside the default judgment, but I doubt they will show up in court to make the proper motions.
1. Generic (no protection)
2. Descriptive
3. Suggestive
4. Fanciful
5. Famous (strong protection
Here is a decent breakdown.
I am not sure what semantic distinction you draw between "contract" and "civil agreement" but I am quite certain it wouldn't matter in a California court. The legislative intent is crystal clear, broadly stated, and supported by a long history of California's social policy: Every contract which seeks to restrain someone from engaging in a lawful trade or profession, except in the limited situations given in that chapter of the code, is to that extent null and void.
Call it what you will, it's not going to stick.
And yes, IAAL (in California).
The main exception is when the non-compete is associated with the sale of a business.
This should make the spammers and spyware authors really salivate.
(Yes, IAAL.)
There is a HUGE difference between "the Hiibel example and the cops showing up at your door without a warrent."
"Here there is no question that the initial stop was based on reasonable suspicion." "Reasonable suspicion" has been a long-recognized basis for stopping people and even searching them without a warrant. Reasonable suspicion must be based on specific, objective facts establishing reasonable suspicion to believe the suspect was involved in criminal activity. No such articulable facts, no right to demand identification!
Under this law, "the suspect is not required to provide private details about his background, but merely to state his name to an officer when reasonable suspicion exists. As we understand it, the statute does not require a suspect to give the officer a driver's license or any other document." ["Your papers please?" Please!]"Provided that the suspect either states his name or communicates it to the officer by other means--a choice, we assume, that the suspect may make--the statute is satisfied and no violation occurs.
However, only under VERY limited circumstances can a cop show up at your door without a warrant and gain lawfully entry to search your home (Hot pursuit of a fleeing felon; high risk of imminent bodily harm, things like that.) That's just a stupid comparison.
I am a big-time privacy activist, but this is the right decision and hardly groundbreaking.
Whatever you do with your great intellect, make sure you pay all your debts on time. An excellent credit score will be a huge bonus for you if you decide to stay in modern society.
Yes, and government regulation at the state and federal level. And lots of it.
The current rule is that government can only regulate truthful commercial speech if it "directly advances" an important government interest in the least restrictive method possible.
However, commercial speech cases have split the Supreme Court into several pieces. Do a search on "44 Liquormart" and "commercial speech." Thomas would give full first amendment protection to truthful commercial speech because, after all, the listener may be far more interested in the price of cigarrettes than the day's most urgent political debate.
A. They did release the photos.
B. The photos were not of Iraqi war dead. They were of the Columbia space shuttle astronauts.
But don't believe for a second that the liberal end of the court will be more protective of your rights. One need only read Kyllo v. United States to recognize that Scalia and Thomas are two of the strongest defenders of liberty on the court. The same can be said for free speech.
It is true that the board owes a fiduciary duty to the shareholder, but the board also operates under the "business judgment rule" - they have wide discretion to determine what is best for the company, both in the short and long term.
Our plan is to sue those companies which are pitching products that will make them more amenable to suit in California, and that may have some assets to go after. I am thinking the companies that are pitching mortgage loans ("Mor|tgage rates tumble - Refinance today ozg w9l") and insurance are prime targets. I realize, of course, that these companies may not be sending out the spam themselves, but I really don't care. If these companies are marketing themselves so irresponsibly, they are just as culpable as if they were pressing the "send" button. Through the discovery process, I certainly do plan on finding out who is pressing the "send" button.
Not being an uber-geek, but only a humble lawyer, this is the role I can play. And I must express my appreciation to /.ers who have inspired me. I plan on keeping a Slashdot journal of the process.
The one's REQUIRING a click-through are much more likely to be upheld.
Why didn't you sue in California state court and allege both the Fed and State law?