The U. S. Court of Appeals for the Ninth Circuit just announced that it will rehear en banc the case of Gator.com v. L.L. Bean, which involves Gator's business model of inserting popup ads for competitors when an Internet user logs onto the L. L. Bean website.

The most interesting aspect of the matter may be its illustration of the mismatch between the needs of the Internet for speedy resolution of novel disputes over property rights and the solipsistic pace of a legal system focused on a primary purpose of generating exorbitant lawyers' fees by ensuring that legal rules are kept uncertain.

The Ninth Circuit decision does not involve the merits; it concerns only procedure -- does California have jurisdiction over L. L. Bean? The suit was filed on March 19, 2001, and decided by the trial court on November 21, 2001. The appeal was not argued until December 2, 2002, and not decided until September 3, 2003. Now, another eight months later, the full court says "whoops!" and the panel opinion has been officially eradicated from human memory. Interested parties are looking at another couple of years before the court decides if the substance of the case can even be addressed.

In July 2002, in Washington Post et. al. v. Gator.com, a group of publishers got an injunction against Gator. That case has now been settled under terms that are confidential -- the Post refused to give me the name of anyone who worked on it, and even the links to the lawyers' briefs on the matter have been rendered inoperative. Other participants included the NYT, Gannet, and Knight-Ridder. (Nothing like the public's right to know, is there?) Nor does the website of Gator (now Claria) provide any clue about the terms of the settlement.

posted by James DeLong @ 11:50 AM | General

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