On February 11^th, the Department of Homeland Security’s U.S. Immigration and Customs Enforcement division (ICE) executed seizure warrants against 10 domain names allegedly tied to child pornography. During the operation, however, the domain name of a popular DNS provider was mistakenly seized, resulting in the shutdown of approximately 84,000 Web sites. The massive blunder adds to the growing controversy over the federal government’s practice of confiscating Internet domain names.

The 84,000 Web sites were all subdomains of mooo.com, a free domain host operated by FreeDNS. After ICE ordered the domain name shut down, visitors to the sites were redirected to a server that hosted the following warning:

“Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

Although mooo.com was restored two days later, the incriminating banner remained on some of the subdomains for up to five days. Owners of the Web sites, including many small businesses, were understandably furious over the damaging accusations.

The ill-fated seizures were conducted as part of “Operation Protect Our Children,” a joint effort between ICE and the Department of Justice aimed at removing child pornography from the Internet. This comes on the heels of “Operation In Our Sites,” a similar ICE initiative announced last June that seizes the domain names of Web sites accused of offering pirated or counterfeited content or products.

The programs are controversial for at least two reasons. First, they provide virtually no procedural safeguards. ICE confiscates domain names pursuant to a seizure warrant issued ex parte; the Web site owners are never notified. Because the judge hears only the government’s allegations, there is a high risk of erroneous deprivation. In fact, last November ICE shut down a hip-hop blog for allegedly linking to pirated songs. It turned out that the songs had actually been sent to the Web site by the artists and record label representatives themselves. Had the owner been given an opportunity to respond to the accusations, the ordeal could have been avoided. Some commentators have questioned ICE’s need for such speedy procedures.

Second, the seizures rest on dubious legal theories. Although vicarious and contributory copyright infringement may generate civil liability, only direct infringement rises to the level of criminal conduct. ICE, however, has been targeting sites that merely provide links to infringing content or embed content from other sites. The government has taken the position that these actions constitute direct copyright infringement, though no court has ever adopted such a broad interpretation. By imposing criminal liability on “linking” sites, this theory would effectively outlaw all search engines, and although ICE insists that search engines such as Google would not be subject to seizure, it has struggled to articulate a coherent explanation for the perceived distinction. The notion that one can directly infringe by simply embedding another site’s content is equally suspect, and would appear to be foreclosed by Ninth Circuit precedent.

ICE has no plans of abandoning its controversial tactics.

Deciding which search engine to use, Google or Bing, may become a moot point if Google’s allegations are true. Google alleges that a sting operation performed by its engineers proves that Microsoft has been using its Internet Explorer web browser and the Bing Search bar to harvest information on Google users.

AmitSinghal, a Google fellow who oversees the search engine’s ranking algorithm, was quite clear about Google’s findings. Singhal told FoxNews.com that “[o]ur testing has concluded that Bing is copying Google web search results.”Singhal further stated “I’ve got no problem with a competitor developing an innovative algorithm. But copying is not innovation, in my book.”

Bing doesn’t deny the claim. In a statement sent to Danny Sullivan of Search Engine Land, who originally broke the story (Sullivan’s article can be found here: http://searchengineland.com/google-bing-is-cheating-copying-our-search-results-62914), Director of Bing Stefan Weitz seemed to all but admit the claim:

As you might imagine, we use multiple signals and approaches when we think about ranking, but like the rest of the players in this industry, we’re not going to go deep and detailed in how we do it. Clearly, the overarching goal is to do a better job determining the intent of the search, so we can guess at the best and most relevant answer to a given query. Opt-in programs like the [Bing] toolbar help us with clickstream data, one of many input signals we and other search engines use to help rank sites. This “Google experiment” seems like a hack to confuse and manipulate some of these signals.

Harry Shum, corporate vice president, did however deny the outright copying of results. “It’s not like we actually copy anything,” said Shum. “We use the customer data to help improve the search experience.”

A summary of Microsoft’s responses to Google’s allegations can be found here: http://www.zdnet.com/blog/microsoft/microsoft-we-do-not-copy-googles-results/8557.

Google first became suspicious of Bing’s results around May 2010 when it began noticing that Bing was returning the same sites as Google for unusual misspellings. When searching for a misspelled word, Google’s search engine often corrects the spelling and shows results as if the correctly spelled word had been entered into the search box. The fact that Google instead searches for the correctly spelled word is noted on the top of the page, along with an option to search for what Google notes as the misspelled word.

Bing also performs a similar function, including results for what it views as the correct spelling along with results for the misspelled word. This is also noted at the top of the page. However, in May 2010, Google noticed that Bing was not correcting certain misspelled words, yet was returning the same results as Google did for its corrected spelling results.

Concerns were raised again in October 2010 when Google noticed a marked rise in two key competitive metrics. Across a wide range of searches, Bing was showing a much greater overlap with Google’s top 10 results than in preceding months. In addition, there was an increase in the percentage of times both Google and Bing listed exactly the same page in the number one spot.

Based on these suspicions, Google set up a sting operation. Google engineers manually manipulated the top ranked result for certain searches that few people, if anyone, would enter into Google. Such searches included “hiybbprqag,”“mbzrxpgiys,” and “indoswiftjobinproduction. Two weeks later, some of the top ranked results began to appear on Bing.

“It’s cheating to me because we work incredibly hard and have done so for years — but they just get there based on our hard work,” a frustrated Singhal told Sullivan. “I don’t know how else to call it but plain and simple cheating. Another analogy is that it’s like running a marathon and carrying someone else on your back, who jumps off just before the finish line.”

What does this mean for consumers? It means two of the top three search engines become more the same, which is not necessarily a good thing. Being more like Google, does not necessarily guarantee the best search results.

For more background and details about the sting operation conducted by Google, here is a link to Google’s official blog: http://googleblog.blogspot.com/2011/02/microsofts-bing-uses-google-search.html.

The Washington Journal of Law, Technology & Arts has elected Parker Howell as Editor-in-Chief for 2011-12. Howell will be responsible for all aspects of publication and operations including Journal oversight, coordinating long-range planning efforts, and serving as a liaison between the Journal and law school faculty and administration.

Howell is an accomplished journalist and a Juris Doctor candidate at the University of Washington School of Law. He will soon complete a legal internship with the Office of Program Research, the nonpartisan legislative committee staff for the Washington House of Representatives.

Before law school, Howell worked as a business reporter for The Spokesman-Review newspaper in Spokane, Washington. Howell graduated summa cum laude with a Bachelor of Science in Journalism from the University of Oregon, where he was editor in chief of the Daily Emerald, the independent student newspaper.

The Washington Journal of Law, Technology & Arts is the nation’s first technology and law journal that also publishes articles involving the arts. This new focus allows the Journal to play a key role in furthering the University of Washington School of Law’s reputation as a center of innovation and path-breaking legal research. The Journal strives to publish concise legal analysis for practicing attorneys.

The Journal is a partnership between student editors, faculty, and an External Board composed of faculty and practicing attorneys. This ensures the Journal publishes timely, relevant, and informative articles. The Journal takes a comprehensive approach to the legal issues involving technological and artistic innovation. For more information about the Washington Journal of Law, Technology & Arts, visit their website at http://www.law.washington.edu/WJLTA/.

Bristol and Sarah Palin recently attempted to trademark their names, but the United States Patent & Trademark Office (USPTO) rejected their applications for a number of reasons including failure to sign the submissions.

Sarah Palin is also seeking to register her name as a trademark in relation to entertainment services.  Aside from failing to sign the application, the trademark office indicated that she had failed to show how her name was used in commerce.  Trademarks protect marks—including brand names and logos—only when used in connection with particular goods and services. In turn, when filing a trademark application, an applicant must indicate what service or product the mark is representing.

Even if the applicant resubmits signed documents, the application could be rejected on grounds there is not a demonstrated use in commerce.  However, the women have hired a new attorney who is working to fix the problems with the applications.  They have until May 29th to submit the appropriate documentation of commercial use of their marks and their signatures.

Both women are seeking to trademark their names in relation to their motivational speaking services.  Sarah’s motivational speaking relates to “the field of politics, culture, business and values.” Bristol’s motivational speaking is listed as being related to the field of life choices.  Bristol, who starred on the TV show Dancing With The Stars in 2010, speaks to audiences about teen pregnancy and abstinence.

It is not especially common for politicians to trademark their names because they are not attached to any sort of commercial service or product.  However, since Palin resigned as Governor of Alaska, she has written two books, starred in a reality television series on TLC, and also become a correspondent for FOX News.

The United States Patent and Trademark Office generally does not issue trademarks for names to because the agency does not want to forbid a people from using their own names in businesses, according to a U.S. Court of Appeals opinion on the issue. Moreover, some names are so common that no reasonable person would mistakenly believe two entities with the same name are connected.

If the Plain name is ultimately approved as a trademark this will help the Palins protect their “brand” somewhat. However, receiving the trademark registrations will not keep people from using the names in public commentary, parody, new reports, and other areas protected by the First Amendment.

Beth Hutchens at IP Watchdog has excellent coverage of the Palin trademark issue.

Susuk Lim

Credit “Obsolete, the Book,” http://obsoletethebook.com/post/712686131.

When was the last time you looked through a physical yellow pages directory to find the local pizza joint’s number? Probably a long, long time – such local inquiries, whether one is looking for the hardware store’s hours or ordering up some greasy prandial delight, are now the domain of the Internet. Recognizing the potential financial and environmental benefits to killing the phone book, several states have recently passed laws allowing land-based phone line carriers to stop distributing paper directories and only make them available on customer request.

Even the National Yellow Pages Association and the Association of Directory Publishers (ADP) seem to have gotten the hint; on February 1, 2011, they setup a website where users can opt out of all paper directories with a single registration (the previous incarnation of the page merely provided links to individual directory publishers).  Now that states, publishers, and the public have aligned, it seems that the fate of the lovable yellow doorstop is sealed.

Not so fast.  In the prevailing spirit, the city of Seattle passed an ordinance last year, imposing licensing and reporting requirements on phone book distributors, as well as assessing annual and per-book fees and requiring them to heed a local opt-out registry. Distributors failing to abide by any part of the ordinance are nailed with a substantial per-violation penalty. Directory publisher Dex Media West did not take long to file a complaint in federal court. Dex Media West, Inc. v. City of Seattle, No. 10-cv-01857, W.D. Wash., complaint filed Nov. 15, 2010. Dex claimed that Seattle violated its First Amendment right to free (commercial) speech by too narrowly targeting yellow page directories for regulation, when other, similar publications (e.g. magazines rife with advertisements, junk mail) were left untouched.  It also averred that the ordinance violated the Commerce Clause by excluding locally-published directories from the ordinance.

On January 13, 2011, Dex Media moved for summary judgment on these grounds. Dex details several constitutional problems with the ordinance’s construction.  First, as previously noted, the ordinance only targets yellow page directories, rather than unsolicited publications as a whole, and in any case does not rationalize how harms caused by directories are any different from other, similar publications. Second, Seattle bowed to local business demands that local directory publishers be exempt from the ordinance’s requirements, which seems like an almost textbook Commerce Clause violation.  Third, and perhaps most practically, the ordinance’s opt-out scheme duplicates an existing, voluntary, and national opt-out scheme, and could encourage other states or cities to do the same, which would paradoxically make it more difficult for a consumer to opt out because of the resulting patchwork of requirements.

Note the date the motion was filed – January 13, 2011.  The ADP’s improved national opt-out registry was launched on February 1, making the Seattle opt-out scheme even more duplicative than Dex had originally argued.  Regardless of the viability of Dex’s constitutional arguments, which seem persuasive, one wonders how the city of Seattle can now argue that the ordinance has any real benefit for the public it purports to protect.  In fact, in its January 31 response and cross-motion for summary judgment Seattle is silent on how the ordinance’s regulation and licensing scheme, or its local opt-out mechanism, is any better at relieving the public burden caused by printed yellow page directories than an existing national opt-out scheme. Rather than argue why the ordinance is useful, Seattle expends most of its verbiage on why the ordinance is constitutional.  Courts are practical institutions. They, too, will likely inquire why Seattle is insistent on protecting a seemingly purposeless law.

This seems to be a case in which a city government, swept along by a tide of public sentiment, attempts to legislate away a problem without adequately considering how best to do so.  One might argue that given the printed yellow page directory industry’s inevitable demise (incidentally, supported the industry’s own members, who have moved on to bigger and better things), Seattle should have just left well enough alone.

Until the case is resolved, Seattle residents can simply continue to ignore the moldy stacks of banana-yellow phone books strewn about their front stoops when ordering their pepperoni pizzas.