Reports from the ABA Journal on Florida Bar v. Harrell
Other coverage: The Florida Times Union, Legal Ethics Forum, and Legal Blog Watch.

A while back I wrote about a case in which an eBay seller sued a company called Innovate! Technology for wrongly invoking the Digital Millennium Copyright Act to cancel his eBay auctions. Although the company claimed that the eBay sales infringed its intellectual property rights, its real complaint was that the sales did not comply with its minimum pricing policy. In other words, the company claimed that its intellectual property rights were violated because its products were priced too low.

Innovate Technology! responded to the suit with what seems to have been a huge tactical blunder: it impleaded eBay, asserting that, if it were held liable to the eBay seller, it would be entitled to indemnification from the auction company. Probably not a good move. eBay generally stays out of DMCA disputes and simply follows the DMCA's statutory takedown provisions, which provide it with immunity from damages. But it could not ignore a lawsuit, and yesterday filed an answer and counterclaim against Innovate! for abuse of the DMCA process, seeking damages, attorneys' fees, and an injunction prohibiting Innovate! from filing any more DMCA notices.

From eBay's countersuit:

Innovate has repeatedly filed notices of claimed infringement ("NOCI") alleging that the sale . . . of Innovate products infringes Innovate’s intellectual property rights when in fact Innovate does not have a good faith belief that its intellectual property rights have been violated.

* * *

Instead, [the NOCI] are an effort by Innovate to impede the legitimate re-sale of Innovate product by bona fide purchasers . . . by knowingly misrepresenting itsintellectual property rights in an attempt to manipulate the secondary product market/s through artificially higher prices. Upon information and belief, to date, Innovate’s conduct has improperly caused the removal of more than 100 listings from the eBay website.

* * *

Innovate’s practices prevent buyers from purchasing genuine items at the best prices the market will bear.

Other cases like this have been brought before (some by Public Citizen), but as far as I know this is the first time that eBay has itself asserted a claim for abuse of the DMCA. It looks like eBay is using this case to make an example out of one of the many companies that are abusing the process at the expense of eBay sellers, consumers, and eBay itself. I think eBay has a strong case.

Apparently Video Professor and it's lawyer bet Al Lewis of the Denver Post a steak dinner that they'd prevail in their lawsuit against 100 anonymous critics. The Video Professor himself, John Scherer, swore that he would pursue the identities of the message-board posters up to the Supreme Court. Now that Scherer has withdrawn the case, Lewis wants his steak.

Karen Donovan covers the state's appeal in Public Citizen's challenge to New York's lawyer advertising rules.

Consumerist reports: Video Professor Stops Suing People For Having Opinions It Doesn't Like.

Colorado infomercial company Video Professor this week dismissed its lawsuit against 100 anonymous defendants who had posted critical comments about its products and billing practices online. Earlier this month, the company withdrew subpoenas that had sought the identity of anonymous posters on the website infomercialscams.com. The company continued, however, to pursue a separate subpoena for the identity of a Wikipedia user who had allegedly written "flagrantly defamatory" (though unspecified) statements about the company in the online encyclopedia. Public Citizen this Monday filed an opposition to Video Professor's motion to extend the time for service of process, arguing that Video Professor's claims were too vague and that its pursuit of an entirely new subpoena threatened to turn the case into a roving commission, giving the company power to discover the identities of anyone criticizing it online. A day after the motion was filed, Video Professor dropped its case entirely.

Paul Alan Levy has a statement on Public Citizen's victory.

A while back I wrote about a lawsuit by Seattle attorneys against the website Avvo.com, which provides rankings of lawyers. This week the Western District of Washington solidly rejected all plaintiffs' claims and granted Avvo's motion to dismiss the case.

While expressing skepticism about the usefulness of lawyer rankings, the court held the ratings to be protected opinion under the First Amendment. As the court noted, it is obvious to any reasonable reader that Avvo's numerical ranking of lawyers is subjective and does not convey any facts capable of being proved true or false. That decision is good news for any websites or other media that provide reviews. A review of a product, service, lawyer, or anything else is inherently subjective, and the targets of unfavorable reviews shouldn't be able to recover damages any time they disagree with a reviewer's opinion.

The court also held that the website was not subject to Washington's Consumer Protection Act because providing an information clearinghouse about lawyers to the public is not "trade or commerce" as used in the Act. Like many other plaintiffs in Internet cases, the plaintiffs here made the mistake of claiming that placing advertising on the website made the site "commercial." But if communications became commercial whenever accompanied by advertising, even the New York Times would have to be regarded as commercial speech. Courts are wise to recognize that speakers sometimes like to be compensated for their time, and supporting communications with advertising does not change the nature of the underlying speech.

Lawyer ratings will never be perfect, but consumers generally benefit from access to more information about the products and services they use. This decision is therefore a victory for consumers.

The New York Times covers Apple's settlement with a Harvard undergraduate that shut down a popular website devoted to rumors about the company. Apple has engaged in a long-running and costly legal battle against bloggers who publish details on unreleased Apple products. In January, Apple lost a case against two bloggers and was forced to pay $700,000 in legal fees under California's anti-SLAPP statute. Apple has now settled its case against another blogger, the operator of ThinkSecret, on confidential terms. And although the blogger and his lawyer are claiming that the First Amendment was vindicated, it's hard to see how that's the case with the website going offline and the terms of the settlement confidential. As my colleague Paul Levy told the Times: "It’s great for the individual critic to be paid to be quiet, but the public is worse off if we lose the ability to get more information in the marketplace of ideas."

Consumerist reports: InfomercialScams.com Gets Sued Constantly.