Press Releases: March 2003
Responds to Electronic Frontier Foundation Request
Oakland, CA - A federal court today agreed with the Electronic Frontier Foundation (EFF) that the tax problem help website Taxes.com should not be forced to rewrite truthful information in order to appear less prominently in search engine results.
"The court's decision to reverse an earlier ruling on Taxes.com restores the balance between trademark law and the First Amendment right to publish truthful information," said EFF Senior Intellectual Property Attorney Fred von Lohmann.
On March 22, 2002, the court had ordered Taxes.com to alter web pages that criticize J.K. Harris, one of its chief competitors. The court had reasoned that because these pages showed up prominently in search engine results for "J.K. Harris" they violated trademark law. The court cited a doctrine called "initial interest confusion," which addresses improper diversion of customers.
Many commercial search engines review text from websites as part of ranking the websites in search results, so Taxes.com's mentions of J.K. Harris caused the Taxes.com website to appear in search results for "J.K. Harris."
EFF filed an amicus brief with the court pointing out that the information on the pages was completely truthful and useful to consumers and asked it to reconsider its ruling.
In its revised ruling, the court embraced EFF's arguments, holding that using a competitor's name in the course of conveying truthful information does not violate trademark law. The ruling pointed out that: "While the evidence submitted to the Court demonstrates that Defendants' web site does contain frequent references to J.K. Harris, these references are not gratuitous; rather, Defendants' web site refers to J.K. Harris by name in order to make statements about it."
For this release:
Court ruling in Taxes.com case:
EFF brief in Taxes.com case:
Fred von Lohmann
Senior Intellectual Property Attorney
Electronic Frontier Foundation
+1 415 436-9333 x123 (office)
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/
CBS has rejected a new television commercial produced by Gateway aimed at educating consumers about enjoying digital music while respecting copyright. The computer-maker had created the ad to accompany its new "RipBurnRespect" campaign.
"The entertainment industries have stressed the need for 'copyright education,' said Fred von Lohmann, EFF senior staff attorney, "yet they won't let a technology company pay for the privilege of delivering a balanced educational message about copyright. I guess they mean that only record labels and movie studios get to do the educating."
SonicBlue today announced its intention to file for bankruptcy protection. The company, maker of the ReplayTV digital video recorder, has been spending as much as $1 million a month in litigation expenses to defend a lawsuit brought by more than two dozen entertainment companies. The entertainment companies allege that ReplayTV owners are violating copyright law when they skip commercials. EFF represents five individual ReplayTV owners who have counter-sued the entertainment companies to establish that skipping commercials is legal.
"Today's bankruptcy sends a clear message to technology companies: you may not innovate without Hollywood's prior approval, on pain of enormous litigation expenses." said Gwen Hinze, EFF staff attorney.
"This puts the case on hold for the short term," said Ira Rothken of the Rothken Law Firm, lead lawyer on behalf of the individual ReplayTV owners. "Much will depend on the details of the bankruptcy, but we are still very interested in making it clear that Hollywood cannot use copyright law to force consumers to watch commercials."
Gwen Hinze can be reached at (415) 436-9333 x110.
Ira Rothken can be reached at (415) 924-4250.