Slimy SEO’s invade the Blawgosphere (Part II), plus questions about publicity, property, and Locke
posted by Kaimipono D. Wenger
UPDATE: Dan posted on the Crescat hijack as well as I was drafting this; see his post for interesting comments, and the same question of remedy. Please post general comments about remedy on his post; Lockean property theory and publicity on this one.
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It’s happened again. Longtime blawgosphere residents will recall the fate that befell the original blogspot address of the Volokh Conspiracy. When the Conspiracy moved to Volokh.com, the blogspot address was let go. And immediately, a Search Engine Optimization site snapped it up.
Why? Because, with a high number of quality incoming links, the old Volokh website (at blogspot) had a high google rank. (In fact, the old Volokh Conspiracy website — which has been out of commission for years now — still has dozens and dozens of inbound links, according to Technorati.) The invasion by the SEO is parasitism, pure and simple. Eugene Volokh (and co-conspirators) built a site popular enough to draw numerous links; now, an online claim jumper benefits from Eugene’s work.
Alas, it seems that the same fate has befallen the merry band of Crescateers, once the proud owners of a .org address, now housed in new digs at Crescatsententia.net. Will Baude and friends built a strong blog, one with enough incoming links to give it a high google pagerank of seven. Alas, it too has now seen its domain name coopted by the forces of darkness.
We’ve updated our blogroll to reflect the new address. (If you’ve blogrolled Crescat, be sure to update yours as well.) Without the details of the heist, I really can’t speak as to details of remedies. And of course, any number of potential claims could be contractual and highly fact specific. If Will’s hosting company was asleep at the wheel, perhaps some sort of claim lies against them.
On the other hand, there are potential theoretical questions here that don’t rely on contractual specifics. In particular, suppose that Will just genuinely forgot to renew his domain, and someone else snatched it up. Could Will make a claim then, and on what grounds?
Is there a likelihood of confusion? Probably not, as long as they take down the old website. But does Will have a moral right to the product that he’s built at Crescat Sententia? (Should he?) Is there something akin to a right-of-publicity argument here? That is, Madonna builds her image and so has (with some limits) the sole right to decide how it is exploited. Will Baude (and when I say Will, I mean to include his co-bloggers as well) built Crescat — so should he have the right to decide how it is exploited?
The Lockean theory of labor has long been used as a justification for the right of publicity. The fruits of one’s labor become one’s property, this theory goes; the fame of a public figure is the fruit of her labor and should be treated as her property. This justification has also been criticized. Critics point out that other people buy Madonna’s records; the public participates in the creation of her image; perhaps, then, the argument goes, she should not have the sole right to exploit it.
Do similar arguments apply here? Will Baude was able to form a highly ranked page in large part because of his own labor. On the other hand, there is something to the critique that fame is not solely a product of one’s own labor. Certainly Will could not control the incoming links from Volokh and Co-Op and Instapundit and everywhere else — those are, in some sense, like the customers who buy Madonna’s records.
Does that undercut any Lockean arguments that Will might make (to a publicity-like right to defend his old web domain and control how it is exploited)? Is such an argument open to Nozick’s critique of Locke — that to allow Will to do this would be to allow him to mix his tomato juice with the ocean, and then claim the ocean as his property?
On the one hand, strong Lockean arguments made by rich celebrities in the publicity context often seem overwrought. (Critics like Micheal Madow rightly point out that celebrity is the product of more than just one person’s labor.) On the other hand, Lockean arguments would support Will’s claim against noxious claim jumpers. (It is hard to come up with a satisfying account of why we would want to encourage such unsavory behavior).
Here’s one potential difference between the two: Critics of Lockean labor theory in the celebrity publicity context (such as Madow) suggest that the public is a co-laborer in the creation of the commodity, and thus equally entitled to exploit the value of the commodity created. Madonna’s persona is the creation of labor by both Madonna herself and the public, and so she should not be able to assert a claim against the public for use of that image — so the argument goes.
Even if we accept that idea, we may still be in favor of a Lockean claim by Will Baude. The value of Crescat is the product of joint labor by Will Baude and the legal blogosphere — Glenn Reynolds, Eugene Volokh, Orin Kerr, and so forth. Perhaps, if one accepts the critics of Lockean justification for publicity rights, Will should be barred from bringing any sort of Lockean claim against any of those co-laborers.
However, the slimy SEO firm in question never participated in that labor process. So even if we are doubtful of the Lockean justification for publicity rights as used in general — by a celebrity against a member of the public who might plausibly assert a claim of co-labor — we may still feel that such rights should be available for Will to use against a true interloper like an SEO firm seeking to hijack his blog.
November 6, 2006 at 1:21 am
Posted in: Blogging
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Responses (11)
Eric Goldman - November 6, 2006 at 9:50 am
Store A runs an ice cream shop at 123 Main Street, then moves to 321 Green Street. Store B opens new ice cream shop at 123 Main Street. Assume no TM confusion. Parasitic? Eric.
KipEsquire - November 6, 2006 at 11:35 am
Why would anyone “abandon” a free site? Not only have I kept my blogspot address for the almost two years since I moved my blog, but I also repost my “new blog address” post every few weeks to keep Blogger from deactivating it. It takes all of 45 seconds once a month.
I see little relevance in Lockean property rights theory to this fact pattern, except to the extent that it does or does not consider abandoned property fair game to the entrepreneurial (I would argue that it does).
Bruce Boyden - November 6, 2006 at 2:37 pm
Ditto what Eric said.
Kaimi Wenger - November 6, 2006 at 5:09 pm
Eric,
If it’s on Main Street, probably not.
Counter-hypothetical: Will Baude opens an ice cream shop in the middle of the barren desert. After four years of selling ice cream, he has a steady clientele of regulars, and has built up a road to the shop. No normal city traffic; only the traffic due to Will’s work.
He gets behind by $20 on property taxes, and some enterprising fellow snatches up the property at a tax auction.
Parasitic?
Chris - November 7, 2006 at 3:23 pm
Same facts as above, except the jurisdiction allows for a defaulting taxpayer in this situation (for whatever reason) to repay his taxes (with penalties, interest, etc.) and reclaim his property (within some reasonable period of time) for what the bidder originally paid for it.
Bad incentives?
William Baude - November 8, 2006 at 9:29 am
Same facts as above, only the government 1, allows one to set up an automatic bank transfer to pay the deposit, and 2, fails to notify the property-owner if something goes wrong with the transfer (until after the repurchase-period).
Same result?
William Baude - November 8, 2006 at 9:30 am
Same facts as above, only the government 1, allows one to set up an automatic bank transfer to pay the deposit, and 2, fails to notify the property-owner if something goes wrong with the transfer (until after the repurchase-period).
Same result?
Fred - November 8, 2006 at 4:08 pm
All this talk of ‘hijacking’ or domains being snatched away without consent is utter nonsense.
Will at Crescat will have received several emails as his domain registration was about to expire and he chose not to act upon them. Registering a domain does not mean it is yours for life, but for the period for which you paid to register it for.
After being given several months, weeks and then days notice that your ownership of the domain is about to expire, it is your own fault if you don’t renew and allow someone else to register the domain for themselves.
William Baude - November 8, 2006 at 9:52 pm
I agree that “hijacking” is the wrong word to use. But, for what little it may be worth, I actually received zero emails about the registration problems.
Chris Garrett - March 5, 2007 at 4:39 am
There are many domains I would love to have, mainly names of family members. Would it be sleazy for me to snap them up when they become available? I don’t think so. How about variations of my company names that I didn’t have the foresight to register? No problem there I think either. If I don’t renew my domains would I be upset if someone grabbed them? Of course! But I wouldn’t be blaming anyone but myself.
If you didn’t receive any notifications that probably points to bad email address in your registration (your fault) or bad registrar.
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