Thanks, Governor Quinn!

I received this email from Amazon today:

Hello,

For well over a decade, the Amazon Associates Program has worked with thousands of Illinois residents. Unfortunately, a new state tax law signed by Governor Quinn compels us to terminate this program for Illinois-based participants. It specifically imposes the collection of taxes from consumers on sales by online retailers - including but not limited to those referred by Illinois-based affiliates like you - even if those retailers have no physical presence in the state.

We had opposed this new tax law because it is unconstitutional and counterproductive.  It was supported by national retailing chains, most of which are based outside Illinois, that seek to harm the affiliate advertising programs of their competitors. Similar legislation in other states has led to job and income losses, and little, if any, new tax revenue.  We deeply regret that its enactment forces this action.

As a result of the new law, contracts with all Illinois affiliates of the Amazon Associates Program will be terminated and those Illinois residents will no longer receive advertising fees for sales referred to Amazon.com [ http://www.amazon.com/ ], Endless.com [ http://www.endless.com/ ], or SmallParts.com [ http://www.smallparts.com/ ]. Please be assured that all qualifying advertising fees earned prior to April 15, 2011 will be processed and paid in full in accordance with the regular payment schedule.  Based on your account closure date of April 15, 2011, any final payments will be paid by July 1, 2011.

You are receiving this email because our records indicate that you are a resident of Illinois. If you are not currently a permanent resident of Illinois, or if you are relocating to another state in the near future, you can manage the details of your Associates account here [ https://affiliate-program.amazon.com/gp/associates/network/your-account/payee-info.html ]. And if you relocate to another state after April 15, please contact us [ https://affiliate-program.amazon.com/gp/associates/contact?subject=&ie=UTF8 ] for reinstatement into the Amazon Associates Program.

To be clear, this development will only impact our ability to continue the Associates Program in Illinois, and will not affect the ability of Illinois residents to purchase online at www.amazon.com [ http://www.amazon.com/ ] from Amazon s retail business.

We have enjoyed working with you and other Illinois-based participants in the Amazon Associates Program and, if this situation is rectified, would very much welcome the opportunity to re-open our Associates Program to Illinois residents.

Regards,

The Amazon Associates Team

Your Statue of Limitations Is Up

Some practice tips:

• A piece of legislation is a "statute," not a "statue." (See document below, page 3.)
• The principal is your pal. So is the original amount of a debt. That's an important principle. (Page 6.)
• Microsoft Word's spellchecker notwithstanding, tortfeasors usually act "tortiously" rather than "tortuously." (Page 5.)
• Be careful with punctuation, as it can change the meaning of a sentence. "Wrong bitches" means something entirely different from "Wrong, bitches"; and "Sorry bitches" means something different from "Sorry, bitches." (Pages 3 & 4.)
• It tends to be counterproductive to refer to "ass clown judges" or "this goddamn piece of shit" in a petition for rehearing. (Pages 2, 4-6.)

Petition for Rehearing

(Hat tip: Lowering The Bar via The Volokh Conspiracy.)

Hulk smash trademark infringement!

Puny power tool manufacturer, don't make Hulk angry. You wouldn't like him when he's angry.

THR, Esq., the Hollywood Reporter's entertainment law blog, reports that Marvel has sued a manufacturer that is using the name Hulk as a brand name for air compressors. Airbase Industries applied last year to register HULK as its own trademark for power and hand tools (USPTO serial number 77757650); Marvel has opposed that application. Marvel has now filed suit against Airbase in federal court, alleging trademark infringement and various other claims.

MVL Rights v. Airbase Industries - Complaint

Minnesota vs. National Arbitration Forum

The National Arbitration Forum and the Attorney General of Minnesota have reached an agreement under which NAF will cease accepting new arbitration cases involving consumers, including collection actions by credit card companies. The consent decree (dated July 17, 2009) does not apply to ICANN domain name disputes nor to certain other types of arbitration matters currently administered by NAF.

See also the AG's press release, her earlier complaint against NAF, and NAF's statement on the settlement.

The Attorney General has also asked the American Arbitration Association to exit the consumer arbitration field. (Another company, JAMS, also offers consumer arbitration services, but apparently has not been approached by the AG.)

Update, 7/22/09:  The American Arbitration Association says it will stop handling consumer debt collection cases "until some standards or safeguards are established." Wall Street Journal, July 22, 2009, page A1 (full text of story here). See also Deepak Gupta's take in CL&P Blog.

Kentucky's Internet gamble

Governor Steve Beshear of Kentucky is seeking to seize more than one hundred gambling-related domain names. A judge initially rejected the governor's bid and has scheduled a hearing for October 7. See coverage in the Louisville Courier-Journal, DomainNews, and The Iconoclast.

John Levine's take on the issue sounds right to me. I doubt very much that Kentucky has adequate grounds for jurisdiction over the domain names, the registrants, the registrars, or the registries. Any registrar that voluntarily forfeits a domain name on behalf of a registrant is likely asking to be sued.

Gimme an "A"!

As anyone who has flown Southwest Airlines well knows, Southwest doesn't assign seats in advance. Instead, you are assigned a boarding priority when you check in at the airport or online, up to 24 hours before the flight. At the gate, you line up with others in your boarding group, and then when your group is called, you stampede onto the plane looking for anything other than a middle seat. (And if you're one of those rude jerks who max out the carry-on allowance rather than checking your bags like the rest of us, you spend several minutes blocking the aisle so you can stake a claim to space in the overhead compartment and then try to jam your oversized baggage there rather than placing it under the seat where it belongs. But enough on that rant.)

Since you can't reserve a seat ahead of time, getting an "A" boarding pass turns out to be critical. If you wait until you arrive at the airport to check in, you'll almost certainly be stuck with a "B" or even a "C", and even if you wait more than an hour at the front of the line for your particular boarding group, you still risk getting stuck with an aisle seat. In some instances, you apparently have to check in within the first few minutes (i.e., exactly 24 hours before your flight time) in order to get an "A" boarding pass.

BoardFirst and similar services have seemingly found a way around this ridiculous situation. (Yes, I realize that some people actually like Southwest's dysfunctional approach; I think it's just because they've figured out how to beat it, kind of like how ticket brokers who have figured out how to get good concert tickets from Ticketmaster don't think that system is broken.) If you're willing to trust BoardFirst with your Southwest flight information, BoardFirst will log on to Southwest's website when check-in opens and put you near the front of the line for an "A" boarding pass. BoardFirst charges $5 for this service.

Southwest sued BoardFirst last year based upon a variety of legal theories, including a claim that BoardFirst enters into a browsewrap contract with Southwest each time it accesses Southwest's website on a customer's behalf, and that contract prohibits third parties such as BoardFirst from checking customers in or obtaining boarding passes for them. This month the court ruled in Southwest's favor on that claim, although from a quick look at BoardFirst's website, it appears that BoardFirst may still be accepting "orders" from Southwest customers.

Southwest Airlines Co. v. BoardFirst, L.L.C., No. 3:06-cv-00891 (N.D. Tex. Sept. 12, 2007).

R.I.P.

The Rev. Jerry Falwell died today. I met him once, in 1986 or so, when he came to my law school to give a talk. While I disagreed (and still do) with most of what he stood for politically, I enjoyed talking with him then and have always had a great deal of respect for him.

A few years ago I served on a dispute resolution panel that awarded the domain name fallwell.com to Dr. Falwell. I dissented from that decision, and later felt vindicated by the Fourth Circuit's subsequent ruling [PDF].

More CDA Immunity Cases

A couple of cases involving service provider immunity under the CDA (47 U.S.C. § 230(c)) came down within the past week. In Chicago Lawyers' Committee v. Craigslist, Inc. (N.D. Ill. Nov. 14, 2006), the court held that the CDA bars Craigslist from being held liable for publishing discriminatory housing ads in violation of the Fair Housing Act, although the court in dicta rejected the "essentially uniform body of case law" including Zeran v. America Online (4th Cir. 1997) that grants broad immunity to websites under § 230(c). In Barrett v. Rosenthal (Cal. Nov. 20, 2006), the court issued a much broader decision affirming broad immunity for service providers.

For more on these decisions, see commentary by Eric Goldman (also here), Susan Crawford (also here), Kurt Opsahl (also here), Eugene Volokh, Evan Brown, and Robert Ambrogi.

E360 Insight v. The Spamhaus Project

I'm following the E360-Spamhaus dispute with great interest, and have been discussing it in my Cyberspace Law seminar at The John Marshall Law School. The case presents some fascinating issues in the areas of spam law, Internet governance, civil procedure, and international law -- and it happens to have a handful of connections with John Marshall.

In the district court, the case was heard by Judge Charles P. Kocoras, who has served on the federal bench for over 25 years and has taught at John Marshall as an adjunct professor for even longer than that. Matthew Neumeier of Jenner & Block, an adjunct professor in John Marshall's Information Technology and Privacy Law program, is representing Spamhaus in its appeal to the Seventh Circuit. Matthew Prince's comments about the case have been widely quoted in the media; he is CEO of Unspam Technologies and also is an adjunct professor in John Marshall's IT law program. And a similar fact scenario (i.e., spam-related accusations as the basis for suspension of a domain name) was used as the problem for John Marshall's annual moot court competition way back in 1996. The best briefs and the bench memorandum prepared for that competition were subsequently published in John Marshall's Journal of Computer & Information Law.

Watch out for the googly eyes!

Google apparently has been sending out cease-and-desist letters complaining about the word "google" used as a generic term for searching the Internet (E-Commerce News; ZDNet News). I don't think we really need "google" (or "googling") as a synonym for "search the web," but I'm amused that the word has taken on so quickly.

On the other hand, "tivo" as a generic term for a DVR (and as a verb meaning "to record on a DVR") is a very helpful addition to the English language. I suspect that TiVo Inc.'s anticompetitive behavior (see my previous blog entry) has probably encouraged users to genericize its mark.