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Thursday, February 26, 2009

Blockshopper Case: Privacy Purchased at Retail

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Quite a few stories have been written about BlockShopper's settlement of a trademark infringement lawsuit brought against it by Jones Day, a lawfirm that was (apparently) upset about Blockshopper's use of hyperlinks to biographies of firm partners and associates on its Web site. Familiar online themes of righteous indignation,David v. Goliath, Luddites messing with the Internet here and here, bad lawyer, and bad trademark law dominated the discussion.

Among all this techno-outrage, I didn't see any expressions of concern for the people whose names and faces and home addresses routinely pop up on Blockshopper for no reason other than the fact that they purchased or sold a dwelling. Why does Blockshopper get a free pass on privacy concerns? I think there are real privacy issues here. When I visited the Blockshopper Web site last year and saw a photograph of an apparently single female next to Google map of her new home and an indication of how much she paid for the property, I found it disconcerting and I immediately became concerned for the woman's safety.

I have a hard time expressing precisely why the Blockshopper Web site is worrisome to me. I can't put it into words, but I feel that some social value is being threatened there. Someone is being exploited. "Privacy" might not even be the right word for it. I agree with Bruce Schneier who wrote this morning on the BBC News Web site, "Being constantly scrutinized undermines our social norms; furthermore, it's creepy. Privacy isn't about having something to hide; it's a basic right that has enormous value to our democracy, liberty, and our humanity." That makes sense to me. As a society, we're making tradeoffs among values without enough discussion about the implications of the information infrastructure we are creating.

The foregoing (admittedly trite) remarks lead me to a few totally unsupported and possibly fanciful observations about why Jones Day brought a trademark suit against Blockshopper and why it settled the case the way it did.

First, good lawyers will always try to stretch the law, provided they have a good faith basis to do so, to serve their client. That's called zealous representation. That's the kind of lawyer you or I might want. Okay, so their trademark infringement claim was a weak one. A lawyer's job is like a baseball pitcher's: throw it near the plate and get the batter out. It's the judge's job to call balls and strikes. I wouldn't have called Jones Day's a pitch a strike, but reasonable people -- including the district judge -- are free to differ on that.

Second, if the Blockshopper case was really about privacy (and I think it was), Jones Day might understandably be reluctant to assert that kind of claim. If you look at the firm's list of representative clients you will see many large corporations: advertisers, publishers, financial institutions, database vendors (Experian, Thomson, Dun & Bradstreet to name a few), and health care companies. The interests of all of these companies would be adversely affected by a judicial ruling that individuals have privacy rights that limit the collection, aggregation, and distribution of personal information. If Jones Day were to file a lawsuit like that, it might be very expensive for the firm. Nobody wants to lose a good client, especially in tough economic times. A trademark claim avoids that headache. The settlement obtains a small measure of privacy for Jones Day only, under the guise of trademark rights, but no privacy protections for the rest of Web. We'll just have to sue for ourselves, I guess.

Third, Jones Day got value out of the settlement. They were able to remove their attorneys' photos from the Blockshopper Web site, which I think was their main objective. This gives Jones Day attorneys a measure of privacy they didn't have before. And they were able to force Blockshopper to display the firm's name each time it pulls data out of the Jones Day Web site. That's an exchange of value where it was once a one-way street. Worth something, I think. And then there is, of course, the "don't mess with Jones Day" aspect of the settlement that has been remarked on ad infinitum. This part of the settlement benefits both the firm and its clients.

Finally, it is indeed regrettable that a weak and possibly insincere trademark claim has been used to increase, in this instance, the cost of hyperlinking on the Web. I put it in the same category as abusive DMCA claims, trumped-up libel claims to out anonymous bloggers, and patent trolls attempting to cash in on technology Tim Berners-Lee gave the world for free. All bad. But spats over hyperlinking go back to the earliest days of the commercial Web (remember Washington Post v. Total News?). I'm surprised there are not more of these suits. In any event, blame here should be shared by Blockshopper. They should have hung in there and fought the case.

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