Wednesday, February 29, 2012

Short bits on spam and the right of publicity

Venkat Balasubramani on an anti-spam decision in California.  He’s dubious about the basis for finding that header information, unconnected to a functioning legal entity, isn’t enough information to identify the sender of an email.  Though I don’t pretend to know the case law as well, I think practically the court gets it right:
It was undisputed Trancos intentionally used only privately registered, meaningless domain names in order to prevent e-mail recipients from being able to identify it as the sender, or to contact it except by sending a blind reply e-mail to an address the sender would have no way of linking to Trancos…. If Trancos deliberately hides its identity from recipients, as it concedes it did, what means of redress does a recipient have? The recipient can send a blind e-mail message or a letter to a nonexistent company at a post office box making a complaint or attempting to opt out of future e-mails, but if Trancos (or an employee who sees the complaint) chooses not to respond or take any action, the recipient is at a dead end. Because Trancos hides its identity behind an impenetrable shield of made-up names, an aggrieved recipient cannot look up public information about Trancos's business, cannot find its Web site, cannot call and speak to a Trancos employee, cannot write to Brian Nelson, cannot report Trancos to the Better Business Bureau or the Attorney General, and cannot warn others about Trancos by writing a letter to a newspaper or posting a complaint on the Internet. Using a privately registered domain name leaves it entirely up to Trancos whether it will or will not respond to or provide redress to persons (other than determined litigants like Balsam) who are harmed, annoyed, or offended by its communications. Trancos does not explain why its business is so sensitive and so different from all other businesses that it must be free to hide its identity from the millions of individuals to whom it directed its commercial solicitations. (footnotes omitted)
I never send a reply/opt-out email except with companies I know I’ve interacted with, because I’m wary of confirming to a spammer that there’s a human being at my address.
Most willful understanding of both precedent and current argument of the week: the Right of Publicity site on the Justin Bieber/Joustin’ Beaver dispute:
Books, movies and news reporting, at their core, are about the expression of ideas and conveying information.  Video games are not.  There are numerous rulings explaining how the First Amendment is not a one-size fits all “shield” to otherwise infringing actions, including the United States Supreme Court in the landmark Zacchini case.   And, of course, even the generally exempted mediums can exceed those protections and stray into infringing territory.  But video games should not be entitled to exempted status as a general rule.  The Supreme Court ruling striking down a California law prohibiting sales of violent video games to minors is not an appropriate reference point in relation to an intellectual property infringement of the Joustin’ Beaver variety, though it seems to be cited as support for the notion that video games should be treated in the same manner as books and movies.
No, I didn’t edit out the reasons offered.  So, when I become arbiter of what expresses ideas and conveys information (that I think worthy), can I exclude entire mediums?  I’m looking at you, reality TV.

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