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Abstract:
This Article examines the complex world of Internet search. The Article seeks to ensure that trademark law does not interfere with the free flow of Internet content that consumers find relevant.

The Article starts with three complementary looks at Internet search from the perspectives of searchers, publishers and search providers. From the searcher's perspective, the Article explains how searchers select keywords poorly and decontextualized keywords provide inadequate insight into the searcher's true objectives.

From the publisher's perspective, the Article discusses how publishers try to anticipate search keywords and provide responsive content.

From the search provider's perspective, the Article shows that search providers are not passive intermediaries manipulated by deceptive publishers. Instead, search providers actively mediate the relationship between searchers and publishers, often modifying searcher keywords and publisher content to facilitate a match. The Article also explains that all search providers use keywords to make those matches, and the emergence of keyword-driven searches has eliminated any meaningful distinctions between domain names, metatags and keyword-triggered ads.

Based on this factual foundation, the Article looks at Internet trademark law. The Article particularly scrutinizes the initial interest confusion doctrine, showing its doctrinal deficiencies. The Article concludes with several proposals:

1) Trademark infringement analysis should be moved to later stages of a searcher's search process because harms at earlier stages are too speculative.

2) The traditional likelihood of consumer confusion test should be updated to include a factor that considers the relevancy of content presented to searchers.

3) Search providers should be given a safe harbor from liability to encourage them to do the best job possible at delivering relevant content to searchers.

Internet search, keywords, domain names, initial interest confusion doctrine, trademark law, metatags, meta tags, search, information science, information retrieval

Abstract:
Warez traders have been blamed as a significant cause of copyright piracy, which has led to several dozen conviction of warez traders in the past two years. The article analyzes how criminal copyright infringement and other laws apply to warez trading. The article also describes the prosecutions of warez trading, including a comprehensive chart of all warez trading convictions. The article concludes with a brief policy discussion about the problems created by Congress' effort to criminalize warez trading.

Warez, warez trading, abandonware, criminal copyright infringement, no electronic theft act

Abstract:
Due to search engines' automated operations, people often assume that search engines display search results neutrally and without bias. However, this perception is mistaken. Like any other media company, search engines affirmatively control their users' experiences, which has the consequence of skewing search results (a phenomenon called "search engine bias"). Some commentators believe that search engine bias is a defect requiring legislative correction. Instead, this Essay argues that search engine bias is the beneficial consequence of search engines optimizing content for their users. The Essay further argues that the most problematic aspect of search engine bias, the "winner-take-all" effect caused by top placement in search results, will be mooted by emerging personalized search technology.

search engine, search engine bias, PageRank, ranking algorithms, personalized search

Abstract:
Consumers claim to hate marketing - mostly, because they get too much unwanted marketing. In response, regulators develop medium-by-medium marketing suppression regulations. Unfortunately, these ad hoc solutions do little to satisfy consumers, and dynamic technologies and business practices quickly render them moot. Instead of continuing this cycle, there would be some benefit to developing a cross-media marketing regulatory scheme.

However, any holistic solution must be predicated on a clear rationale for regulating marketing. The most common justification is that marketing imposes a negative externality on consumers, but this argument ignores the private and social welfare created by marketing and can lead to cost overinternalization and marketing undersupply.

The Coase Theorem also suggests that social welfare improves by reducing the costs of matching marketers with interested consumers. To achieve this, consumers need a low cost but accurate mechanism to manifest their preferences. This Article shows that typical regulatory and marketplace solutions do not provide effective mechanisms.

Instead, marketer-consumer matchmaking will improve from technology that will automatically infer consumer preferences and use these inferences to filter incoming marketing and seek out wanted content. This technology is rapidly emerging, but regulation of surreptitious monitoring devices (like adware and spyware) may inadvertently block the development of this socially-beneficial technology. As a result, current regulatory overreactions to developing technology may counterproductively foreclose social welfare improvements.

Coase Theorem, marketing, advertising, spam, telemarketing, junk mail, direct mail, email marketing, cost shifting, infomediaries, adware, spyware

Abstract:
Virtually everyone seems to agree that spam causes tremendous harm, but there is surprisingly little consensus on exactly what those harms are. This Essay examines various harms that spam purportedly causes to assess if the harm is real and if spam is treated dichotomously compared to other media communications. Based on this analysis, the Essay concludes that many harms purportedly caused by spam are not appropriate policy justifications for regulation.

Spam, email, CAN-SPAM, junk mail, junk faxes, telemarketing

Abstract:
Bloggers often work collaboratively with other bloggers, a phenomenon I call "co-blogging." The decision to co-blog may seem casual, but it can have significant and unexpected legal consequences for the co-bloggers. This Essay looks at some of these consequences under partnership law, employment law and copyright law and explains how each of these legal doctrines can lead to counterintuitive results. The Essay then discusses some recommendations to mitigate the harshness of these results.

blog, blogging, employment, partnership, co-blogging, copyright, 47 USC 230

Abstract:
This Chapter discusses the emergence of online word of mouth, the process by which consumers disseminate their views about marketplace goods and services. Due to online word of mouth, consumers have an unprecedented ability to influence the brand perceptions of other consumers. Unfortunately, these effects have put doctrinal pressure on trademark law, leading to judicial interpretations that inhibit the flow of online word of mouth and may damage the efficacy of marketplace mechanisms. This Chapter will explore how trademark law should be interpreted to preserve the flow of socially beneficial online word of mouth.

trademark, word of mouth, griper, gripe site, use in commerce, consumer opinions

Abstract:
This Essay challenges the prevailing hostility towards data mining and direct marketing. The Essay starts by defining data mining and shows that the only important step is how data is used, not its aggregation or sorting. The Essay then discusses one particular type of data use, the sending of direct marketing. The Essay establishes a model for calculating the private utility experienced by a direct marketing recipient. The model posits that utility is a function of the message's substantive content, the degree of attention consumed, and the recipient's reaction to receiving the message. The Essay concludes with some policy recommendations intended to help conserve recipients' attention while preserving space for direct marketing tailored to minority interests.

Data mining, database, data warehouse, privacy, advertising, marketing, email, spam, telemarketing, direct marketing, direct mail, junk mail, customer relationship management (CRM), economics of attention, economics of marketing, externalities, Coase Theorem

Abstract:
This Article examines the No Electronic Theft Act (the Act or the NET Act). The Act represents a significant change to copyright law because it subtly shifts the paradigm underlying criminal copyright infringement. For 100 years, criminal infringement punished infringers who derived a commercial benefit based on someone else's copyrighted work. However, through the Act, Congress adopted a paradigm that criminal copyright infringement is like physical-space theft, specifically shoplifting. As a result, the Act significantly extends the boundaries of criminal copyright infringement.

Despite the extended criminal boundaries, a review of the post-passage developments suggests that the Act has been unexpectedly ineffective. To fully understand why, this Article focuses on a group of infringers known as warez traders. While Congress did not specifically reference warez trading in the Act, warez traders were its prime target. Yet, Congress did not fully understand this sociological group or their motivations, resulting in a law poorly tailored to conforming their behavior. But in drafting a broad law to cover warez trading, the Act overstates the harm experienced by copyright owners. This expansive standard for harm covers activities necessary to function in a digital society, unnecessarily turning too many average Americans into criminals. Corrective legislation is required to more precisely distinguish between truly culpable behavior and socially beneficial conduct.

Warez, warez trading, warez traders, criminal copyright infringement, peer-to-peer file sharing, p2p, abandonware, no electronic theft act, net act

Abstract:
This short essay analyzes the policy challenges of legally conforming the behavior of warez traders. The essay discusses the motivations for warez trading, how criminalizing the behavior may counterproductively encourage it, and why legislators and prosecutors continue to target warez trading despite the counterproductive effects.

Warez, trading, traders, copyright infringement, pirates, abandonware

Abstract:
This Essay is based on my remarks at the "Teaching Writing and Teaching Doctrine: A Symbiotic Relationship?" conference at Brooklyn Law School, February 2006. The Essay discusses the benefits and challenges of integrating the teaching of contract drafting skills and doctrine. The Essay then discusses some ways I have accomplished this integration.

Contracts, Contract Drafting, Workshop, Transactions, Transactional, Pedagogy

Abstract:
This Article considers the spillover effects of trademarks - in particular, brand spillovers, which occur when consumer interest in a trademark increases the profits of third parties who do not own the trademark. Using techniques such as loss leaders and shelf space adjacency, retailers routinely create brand spillovers for their profit, and trademark law generally has not restricted these activities. Online intermediaries, such as search engines, also create and profit from brand spillovers by selling manufacturers' trademarks for advertising purposes (keyword triggering). However, in contrast to retailer practices, keyword triggering has sparked a heated and irresolute battle over its legitimacy under trademark law. By drawing lessons from retailers' experiences with brand spillovers and through an analysis of the ways intermediaries can add value to consumers, this Article offers a new way to resolve the keyword triggering debate. The Article proposes that all intermediaries - including both retailers and online intermediaries - should be permitted to use brand spillovers as part of their effort to reduce consumer search costs, even if the intermediaries profit from the brand spillovers along the way.

trademarks, trademark infringement, advertising, retailers, search engines, retailing, merchandising, loss leaders, house brands, private label brands, store brands

Abstract:
Over the past dozen years, Cyberlaw courses have become a staple of the law school curriculum. This Essay, part of a Spring 2008 St. Louis University Law Journal issue on Teaching Intellectual Property Law, explores methodological and pedagogical issues raised by these courses.

cyberlaw, Internet law, Cyberspace Law, pedagogy

Abstract:
This Essay explains why Wikipedia will not be able to maintain a credible website while simultaneously letting anyone freely edit it. To date, Wikipedia editors have successfully defended against malicious attacks from spammers and vandals, but as editors turn over, Wikipedia will need to recruit replacements. However, Wikipedia will have difficulty with this recruiting task due to its limited incentives for participation. Faced with a potential labor squeeze, Wikipedia will choose to restrict users’ ability to contribute to the site as a way of preserving site credibility. Wikipedia’s specific configuration choices make it an interesting test case to evaluate the tension between free editability and site credibility, and this Essay touches on how this tension affects user-generated content (UGC) generally.

Wikipedia, user-generated content, UGC, Web 2.0, peer production, wiki, online, volunteer

Abstract:
In this response piece to Ellen Goodman's Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83 (2006), Professor Goldman explores the potential adverse consequences of Professor Goodman's proposal for sponsorship disclosure laws. More specifically, Goldman argues that any deliberation of such disclosure laws must consider: (i) why consumers desire to know the source of content; (ii) whether consumer distrust of marketing wrongly affects consumers' evaluation of content; and (iii) the adverse effects of noisy disclosures.

stealth marketing, payola, commercial speech, consumer behavior, sponsorship disclosure laws, broadcasting, search engines

Abstract:
This Essay considers the rights of virtual world providers to terminate their customers or otherwise control their worlds. The Essay argues that virtual worlds are not meaningfully different from other online environments and therefore do not warrant virtual world-specific legal rules. The Essay also explains why society benefits by letting virtual world providers decide how much control they want to exercise over their environments.

Virtual worlds, state action, sims online, Peter Ludlow, cyberspace exceptionalism, 47 USC 230