Law X.0

Update to Blog Usurpation

I mentioned earlier about an archived blog post from the Volokh Conspiracy that was taken over by another entity, “SEO Reviewer.”  A Massachusetts court case cites what appears to be the Volokh archives, but actually the website is in the hands of someone else. Fortunately it’s only a citation for a satirical song. The entity which has usurped the Volokh archives has not (other than the URL) pretended to be Volokh. While “SEO Reviewer” has done something improper and perhaps illegal, any reader who goes there will know that the host of the website has changed, and the content is no longer that which was cited by the court.

But what if the usurping entity was more deceptive and manipulative? And what if a court referred to the fake Volokh archives not for a song, but for the analysis of a statute? Although it would no doubt be rare, and certainly actionable, there’s always the chance that someone might take advantage of a defunct URL by usurping the website, claiming to be the original owner, and then exhibiting false content. And a court case citing that URL could become inadvertently complicit in a deception.

All of this brings up the obvious question: What should we do about URL’s in actual court opinions that become inaccurate? What if a court cites to something online, and the address changes? In the Volokh example it was only a song, but what if a court cites to something more substantial, such as an important document (as in the Booker case mentioned here)? It may not matter so much if it is just a satire being cited, but if it is something more important, there needs to be a way to verify that the source remains precise.

It is problematic enough if a URL becomes defunct for “natural” causes, i.e. a website changes its format, old material is automatically archived, a server goes out of business, etc. But the song citation example reveals a deeper potential problem. What if the URL is taken over by someone who keeps the address in order to attract visitors to his own material? Even worse, what if the original content is kept but manipulated in some way, so that a reader who follows the case citation will think the online source is still valid? Again, this would be very rare, but it could happen. And court opinions can’t afford to leave open that possibility.

One obvious solution to these problems would be for courts to employ people who constantly verify that any citations to online sources remain accurate. Perhaps this would be something that could be added to the ordinary duties of a judicial clerkship, provided it is not too time-consuming. The courts themselves would police their own decisions and make certain that cited URL’s have not become outdated, and the online content has not been changed. If it is discovered that a URL is no longer valid, then some parenthetical insertion could be made in the actual case indicating this to the reader.

This approach of courts employing people to verify online sources would ensure that the cases stay accurate in their citations. This is especially important in a world where blog archives can be taken over and used by someone else. If a court employee were to find that an online source is not accurate, he could leave the original URL in the text, and then insert a bracketed statement indicating that this URL is no longer valid. If there is an alternative location online for the material being cited, a new URL could be named.

Most people in the legal profession would reject the very concept of a retroactive change to a court opinion.  But if we are merely speaking of updating the URL of an online citation, I’m not sure there is any convincing reason to avoid making the correction. Is there any harm in letting the reader of a case know that a cited URL is no longer accurate, and that a different source for the information exists (or does not exist) elsewhere? At least for the electronic versions of cases, such as those on Westlaw and Lexis, it seems peculiar not to update the online citations, provided that any changes from the original are conspicuous.

I’d be interested to know if readers consider this a realistic idea.

Incidentally, the song which began this discussion is available at the “official” Volokh archives here. It was originally posted by Temple professor David Post.

Sean Sirrine said more about the song in his comments here. I remember hearing the original (Turtles) song on an “oldies” station when I was in junior high school. Now “oldies” stations play music from the 80’s. Ancient at 35.

Can Blogs be Usurped by Hostile Takeover?

An unusual district court case begins with this song, to the tune of “So Happy Together” by the Turtles.

“Imagine me as God. I do.

I think about it day and night.

It feels so right

To be a federal district judge and know that I'm

Appointed forever.

I was anointed by the President,

And revelation told him I was heaven-sent.

And Congress in their wisdom granted their consent.

Appointed forever.

I'm a federal judge

And I'm smarter than you

For all my life.

I can do whatever I want to do

For all my life.

        ****

Even at the very worst,

If you take me up to get reversed,

You'll have to get the circuit court to hear you first,

And that takes forever.”

Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004).

What’s especially interesting is that, according to this case, these lyrics are available at http://volokh.blogspot.com/2003_04_13_volokh _archive.html#200154916.  But if you go to the online citation, you get a website entitled “SEO Reviewer,” which appears to be a collection of information about search engines. The posts collected there now are mainly about Google.

How did SEO Reviewer take over the URL to the Volokh archives? What process was involved? And are there any laws making such a takeover illegal (if done without consent)?

Nate Oman previously posted about this at Concurring Opinions here, and asked similar questions. One blogger commented: “I'm not sure how solid those claims are but I am pretty sure the ACPA extends to unregistered marks and personal names protectible as marks. Where the alleged infringer engages in no commercial activity (or engages in criticism) the claims are a bit tougher, but here, where driving traffic is the sole goal, courts may be more receptive.”

If any reader knows more, please comment.