Topic: Views

Reputation industry Views

Cheater website removal and the new internet age By Jake Lawson 0

Cheater website removal and the new internet age

By: Jake Lawson.

Wow, where to begin?

As the father of a young daughter the internet is a scary place these days. If a relationship turns sour

Contact Jake

Contact Jake

anyone can post anonymously on sites like LiarsCheatersrus.com, playerblock.com, datingpsychos.com and the likes. Once up on the site its there for the world to see and most of these sites post on the fly meaning whatever image and content was submitted it will go live.

There are even REALLY bad sites like MyEx.com which allow nude images and are now positioning themselves to be in the ‘Revenge Porn’ arena. We are torn here at Remove Names…. do we attempt to remove that content and find an outlet or do we steer clear? If we steer clear we cannot provide a valuable service to our clients however if we engage with a site like that what happens to our image? If my daughter was on that site I would want an outlet, but as president of this firm do I want to engage with such a disturbing site and business model?

As a parent, my goals are going to be to teach my daughter to watch her online reputation carefully, just as I tell my clients. I also consult with schools and colleges locally to help guide them, their staff and students on how to best position themselves for a sterling online image.

 

These are weird times and I feel its only going to get worse as social media grows and turns into the REAL wild, wild west. While our industry for the most part is shady, I do feel our firm provides a valuable service as we search and find the outlets that allow removals to occur so you don’t have to. We catch alot of negative feedback for what we do but at the end of the day when I get the email that says “You saved my marriage” or ” I got accepted by XYZ College” that makes my day!

Can I help you or your family?

 

If so do not hesitate to contact me directly. I like to text and talk about how I can help you and yours! On that note…

(410) 487-5897

Have a great fourth of July everyone!

 

Jake Lawson

President & CEO

RemoveNames.com – Remove Names LLC.

 

PS: If you search around and look at other reputation management firms you normally do not see an owner or even an employee picture or info on the site. I would like to personally offer my services at any time. I am here in Baltimore if you are in the near area and welcome you to our office for a meet and greet.


Source: Removenames

Commenting on Viral Video Is Fair Use–Equals Three v. Jukin Media 0

This is a copyright lawsuit over viral videos. Jukin Video apparently finds and acquires the rights to viral videos. It reached 1 million subscribers on YouTube and has over 17,000 videos available for licensing. Equals Three produces short humor programs for YouTube. A host introduces and discusses a series of video clips. I would liken Equals Three’s show to “this week in viral video.” It often uses the clips in their entirety but adds commentary and other content, text, and graphics. For purposes of illustration, an Equals Three segment is below:

Equals Three subjected several Jukin videos to its standard treatment. Unhappy with this, Jukin complained to Equals Three and issued takedown notices directed at Equals Three’s YouTube channel. Equals Three sought declaratory relief and sued Jukins for violating 512(f). Jukin sought summary judgment that Equals Three’s use of the videos isn’t fair use. The court largely denies Jukin’s motion.

Purpose and character: The court says it’s a “difficult and nuanced” task to determine whether Equals Three’s episodes parody Jukin’s clips. Nevertheless, even if this were not the case, the court says it’s clear Equals Three’s segments criticize and comment on Jukin’s clips:

the jokes, narration, graphics, editing, and other elements that Equals Three adds to Jukin’s videos add something new to Jukin’s videos with a different purpose or character.

The court distinguishes Equals Three’s use of the clips from use of celebrity photos and news clips where the usage doesn’t add anything new or transformative to the original clip (but perhaps reproduces it with commentary). In so doing, the court emphasizes that Equals Three adds material to the clip itself. However, the court says that one of Equals Three videos is an exception and its use of this particular video was similar to “using news footage without adding transformative to what made the footage valuable.”

Nature of the work: The court says they are previously published works. While they may not be masterpieces, they are creative.

Amount used: The court says Equals Three uses no more than necessary, so this factor favors fair use.

Market harm: The court rejects Jukin’s assertion that Equals Three copies the videos at the time when they are most valuable (during the time of their “impending virality”). The court rejects this assertion as speculative. The court also says that harm caused by criticism of the work is not cognizable as a harm for copyright purposes.

The court does consider the possibility that Equals Three users may not bother to watch the original Jukin videos after they see the Equals Three segments. Neither side submits admissible evidence regarding whether its users also view the material in the form offered by the other party. Both sides rely on speculative testimony from employees. Ultimately, the court is unpersuaded:

[w]hile the transformative nature of Equals Three’s videos makes cognizable market harm less likely, the Court cannot say that it is completely implausible that at least some viewers would substitute Jukin’s videos with Equals Three’s videos. Both videos are meant to be humorous and the Court can imagine a fine line between the demand for the humorous original and the humorous new work commenting thereon. Nevertheless, there is no actual evidence of any such harm and (as discussed above) Equals Three’s episodes do not take excessively from Jukin’s videos. Thus, on this record, where any market harm remains hypothetical, the Court FINDS that this factor does not favor either party.

The court weighs the factors and concludes that on balance they all favor fair use (with the exception of one video).

___

The court is responding to Jukin’s motion for summary judgment, nevertheless the court all but resolves the underlying fair use claims. The path to a ruling in Equals Three’s favor is clear. While this is a win at the summary judgment (rather than the motion to dismiss) stage, it still follows the trend of courts making fair use calls rather than punting them to the fact-finder, as well as continuing the judicial good news for fair use defenses.

The court’s treatment of factor one carefully distinguishes unfavorable fair use rulings from the news and editorial context. This ruling should not be read as paving a way to simply using another’s clips in an online news broadcast. It does offer a boost for a fair use argument where the underlying video is altered, particularly if there is a mash-up (think Mystery Science Theater or NFL Bad Lip Reading). In answering the question of whether Equals Three’s segment may act as a substitute for Jukin’s, the court looks to employee testimony of whether those viewing one party’s content would nevertheless go on to view the other party’s content. I’m not sure what an adequate way to measure this is, and speculative employee testimony should not be sufficient, but you would think the parties could marshal more evidence of consumer behavior than what their employees thought end users wanted.

The ruling also flags an interesting aspect of commerce in viral videos: it’s unclear who even owns the video in the first place, and rights and clearances can often be a quagmire. If Jukin is careful, it presumably secured an assignment from the person who actually shot the videos, but it is unlikely to have secured any releases from the people who appear in them. Granted, for copyright purposes, only a release from the person who shot the video is necessary (see the en banc ruling in Garcia), but you wonder whether the participants can assert non-copyright claims. (As a sidenote, there may be a Righthaven-standing problem, if Jukin secured an assignment after Equals Three published its segment, or if it did not get sufficient rights.)

A big remaining question is if Equals Three ultimately prevails, whether the court will consider a fee shift. We recently saw examples of ill-fated attempts to litigate copyright claims that resulted in fee shifts. (See, e.g., the City of Inglewood ruling Eric recently blogged about.) There, the party claiming fair use had an argument that the copyright lawsuit was actually a disguised attempt at censorship. This seems more like a straightforward dispute over fair use, and it will be interesting to see if the court considers a fee shift.

The ruling does not discuss Equals Three’s 512(f) claim, but an interesting question as to how it fares under the 9th Circuit recent Lenz ruling.

Disputes over viral content all seem to present an underlying question that Eric raised to me via email:

whether virality of a video make it more susceptible to fair use? In other words, does copyright protection decrease as an item of content becomes more popular?

I’ll leave that question for all of us to ponder!

Case Citation: Equals Three, LLC v. Jukin Media, Inc., 14-09041 (C.D. Cal. Oct. 13, 2015)

Related posts:

Another Censorious Copyright Case Results In a Big Fee Shift–Inglewood v. Teixeira

9th Circuit Sides With Fair Use in Dancing Baby Takedown Case

Use of Iconic 9-11 Photo in TV Show’s Facebook Stream Not Fair Use

Top 10 Fair Use Cases of 2014 (Guest Blog Post)

Fair Use Protects Sending Expert Witness’ Resume to Opposing Counsel–Devil’s Advocate v. Zurich Insurance

Copying Blogger’s Posts In Disciplinary Proceeding Is Fair Use–Denison v. Larkin

Fair Use Likely Protects Discussion of Blog Post and Comments

Another Blogger Wins a Fair Use Defense For a Photo–Leveyfilm v. Fox Sports

Republishing Litigation Brief Is Fair Use–White v. Westlaw

Fair Use Protects Video Republication To Demonstrate Speaker’s Inconsistent Statements–Caner v. Autry

Why Google’s Fair Use Victory In Google Books Suit Is A Big Deal–And Why It Isn’t (Forbes Cross-Post)


Source: Goldman Legal

Why Attorneys Dislike Consumer Reviews (Reviewing an Article by Cassandra Burke Robertson) 0

robertson_cassandraI recently read an article by Prof. Cassandra Burke Robertson (Case Law) entitled “Online Reputation Management in Attorney Regulation.” This article discusses two of my favorite topics: (1) why do professional service providers struggle with online reviews more than other marketplace vendors?, and (2) can we build a well-functioning ODR to extra-judicially redress problematic online reviews? If you’re interested in online reviews, Section 230, the regulation of lawyers or ODR–and let’s face it, if you read this blog, you probably are–I recommend this article to you.

Professional Service Providers and Online Reviews

I’ve repeatedly written and spoken about the medical community’s battles against patient reviews, such as this essay that inventories some factors explaining why doctors seem uniquely opposed to patient reviews. Prof. Robertson addresses the same basic question, except for lawyers instead of doctors, and she provides a psychology-based explanation. She points to three main factors:

* reviews change the power balance between attorney and client, i.e., clients have new-found leverage over attorneys
* challenge to the attorney’s identity, i.e., attorneys always think they do a great job for their clients, so negative reviews are shocking. However, because of the changing power balance, even positive reviews undercut the lawyer’s self-assessment of their power over clients. The article concludes “This threat to the attorney’s identity structure makes it nearly impossible for the attorney to respond rationally to the client’s criticism.”
* ego threat and cognitive distortion. “[A]ttorneys facing online reviews are more likely to engage in a ‘defensive cognitive distortion’ that refuses to acknowledge any merit to the review, and instead lays blame entirely with the client, who may be seen as vengeful or unethical; essentially, the lawyer is unconsciously ‘seek[ing] an external perpetrator to buffer a potential blow to the ego.’” Plus, a negative review threatens the attorney’s finances.

She also discusses in some detail the confidentiality restrictions on attorneys responding to client reviews. I’ve always viewed this as a red herring, because confidentiality obligations do not prohibit professional service providers from discussing their general protocols without disclosing or discussing a client’s specific facts (or even acknowledging they were a client); and that’s assuming the professional makes the risky and often ill-advised choice to respond to client reviews substantively, which can easily exacerbate the situation.

So what should we do about false client reviews of lawyers? Approaching the topic from her legal ethics background, Prof. Robertson suggests:

I recommend that state regulatory bodies work with online intermediaries to weed out reviews that can be proven to be false and misleading. Such a process would protect attorneys by removing reviews that unjustifiably harm their reputation online, and it would also protect clients—both former clients, by preserving their right to offer critical‐but‐truthful evaluations, and potential clients, by improving the overall accuracy of the review sites.

I have a draft paper I wrote in 2011, and revised in 2013, that extolled the virtues ODR for consumer reviews, so I’m 100% on board with this approach (maybe someday I’ll even finish the paper). At the time, I was doing some consulting work for Modria, and I became convinced that ODR has a lot to offer review websites and the review ecosystem. However, ODR has several structural challenges, and ODR by bar organizations may have difficulties overcoming those. Most obviously, who will foot the bill for the ODR? Running a proper ODR requires expertise and money. Someone has to pay, and it seems unlikely bar associations have enough surplus funds to do this right. Also, there’s an institutional competence question. Bar organizations are in the business of disciplining attorneys, so will their prosecutorial mindset affect how they assess critical reviews? At the same time, bar organizations are captured by the lawyers they regulate, so will an ODR by bar associations swing wildly pro-attorney? I don’t know which way these forces cut, but these conflicting dynamics make me wonder if bar associations are the best ODR providers. An independent service like Modria would have some advantages as the ODR provider, but then the cost issue becomes even more of a barrier.

I’ve written numerous papers that overlap with the topics addressed in Prof. Robertson’s paper. A few highlights:

* Patients’ Online Reviews of Physicians
* The Regulation of Reputational Information
* Regulation of Lawyers’ Use of Competitive Keyword Advertising
* Online Word of Mouth and its Implications for Trademark Law


Source: Goldman Legal

Have We Been Wrong About Panda All Along? 0

Posted by MarieHaynes

Thin content! Duplicate content! Everyone knows that these are huge Panda factors. But are they really? In this article, I will explore the possibility that Panda is about so much more than thin and duplicate content. I don’t have a list of ten steps to follow to cure your Panda problems. But, I do hope that this article provokes some good discussion on how to improve our websites in the eyes of Google’s Panda algorithm.

The duplicate content monster

Recently, Google employee John Mueller ran a webmaster help hangout that focused on duplicate content issues. It was one of the best hangouts I have seen in a while—full of excellent information. John commented that almost every website has some sort of duplicate content. Some duplicate content could be there because of a CMS that sets up multiple tag pages. Another example would be an eCommerce store that carries several sizes of a product and has a unique URL for each size.

He also said that when Google detects duplicate content, it generally does not do much harm, but rather, Google determines which page they think is the best and they display that page.

But wait! Isn’t duplicate content a Panda issue? This is well believed in the SEO world. In fact, the Moz Q&A has almost 1800 pages indexed that ask about duplicate content and Panda!

I asked John Mueller whether duplicate content issues could be Panda issues. I wondered if perhaps duplicate content reduced crawl efficiency and this, in turn, would be a signal of low quality in the eyes of the Panda algorithm. He responded saying that these were not related, but were in fact two separate issues:

The purpose of this post is not to instruct you on how to deal with duplicate content. Google has some good guidelines here. Cleaning up your duplicate content can, in many cases, improve your crawl efficiency—which in some cases can result in an improvement in rankings. But I think that, contrary to what many of us have believed, duplicate content is NOT a huge component to the Panda algorithm.

Where duplicate content can get you in trouble is if you are purposely duplicating content in a spammy way in order to manipulate Google. For example, if a huge portion of your site consisted of articles duplicated from other sources, or if you are purposely trying to duplicate content with the intent of manipulating Google, then this can get you a manual penalty and can cause your site to be removed from the Google index:

These cases are not common, though. Google isn’t talking about penalizing sites that have duplicate product pages or a boatload of WordPress tag pages. While it’s always good to have as clean a site as possible, I’m going to make a bold statement here and say that this type of issue likely is not important when it comes to Panda.

What about thin content?

This is where things can get a little bit tricky. Recently, Google employee Gary Illyes caused a stir when he stated that Google doesn’t recommend removing thin content but rather, beefing up your site to make it “thick” and full of value.

Jen Slegg from The SEM Post had a great writeup covering this discussion; if you’re interested in reading more, I wrote a long post discussing why I believe that we should indeed remove thin content when trying to recover from a Panda hit, along with a case study showing a site that made a nice Panda recovery after removing thin content.

The current general consensus amongst SEOs who work with Panda-hit sites is that thin content should be improved upon wherever possible. But, if a site has a good deal of thin, unhelpful pages, it does make sense to remove those pages from Google’s index.

The reason for this is that Panda is all about quality. In the example which I wrote about where a site recovered from Panda after removing thin content, the site had hosted thousands of forum posts that contained unanswered questions. A user landing on one of these questions would not have found the page helpful and would likely have found another site to read in order to answer their query.

I believe that thin content can indeed be a Panda factor if that content consistently disappoints searchers who land on that page. If you have enough pages like this on your site, then yes, by all means, clean it up.

Panda is about so much MORE than duplicate and thin content

While some sites can recover from Panda after clearing out pages and pages of thin content, for most Panda-hit sites, the issues are much deeper and more complex. If you have a mediocre site that contains thousands of thin pages, removing those thin pages will not make the site excellent.

I believe Panda is entirely about excellence.

At Pubcon in Vegas, Rand Fishkin gave an excellent keynote speech in which he talked about living in a two-algo world. Rand spoke about the “regular algorithm,” which, in years past, we’ve worked hard to figure out and conquer by optimizing our title tags, improving our page speed, and gaining good links. But then he also spoke of a machine learning algorithm.

When Rand said “We’re talking about algorithms that build algorithms,” something clicked in my head and I realized that this very well could be what’s happening with Panda. Google has consistently said that Panda is about showing users the highest-quality sites. Rand suggested that machine learning algos may classify a site as a high quality one if they’re able to do some of the following things:

  • Consistently garner a higher click-through rate than their competitors.
  • Get users to engage more with your site than others in your space.
  • Answer more questions than other sites.
  • Earn more shares and clicks that result in loyal users.
  • Be the site that ultimately fulfills the searcher’s task.

There are no quick ways to fulfill these criteria. Your site ultimately has to be the best in order for Google to consider it the best.

I believe that Google is getting better and better at determining which sites are the most helpful ones to show users. If your site has been negatively affected by Panda, it may not be because you have technical on-site issues, but because your competitors’ sites are of higher overall quality than yours.

Is this why we’re not seeing many Panda recoveries?

In mid- to late 2014, Google was still refreshing Panda monthly. Then, after October of 2014, we had nine months of Panda silence. We all rejoiced when we heard that Google was refreshing Panda again in July of 2015. Google told us it would take a while for this algo to roll out. At the time of writing this, Panda has been supposedly rolling out for three months. I’ve seen some sporadic reports of mild recoveries, but I would say that probably 98% of the sites that have made on-site quality changes in hopes of a Panda recovery have seen no movement at all.

While it’s possible that the slow rollout still hasn’t affected the majority of sites, I think that there’s another frightening possibility.

It’s possible that sites that saw a Panda-related ranking demotion will only be able to recover if they can drastically improve the site to the point where users GREATLY prefer this site over their competitors’ sites.

It is always good to do an on-site quality audit. I still recommend a thorough site audit for any website that has suffered a loss in traffic that coincides with a Panda rerun date. In many cases, fixing quality issues—such as page speed problems, canonical issues, and confusing URL structures—can result in ranking improvement. But I think that we also need to put a HUGE emphasis on making your site the best of its kind.

And that’s not easy.

I’ve reviewed a lot of eCommerce sites that have been hit by Panda over the years. I have seen few of these recover. Many of them have had site audits done by several of the industry’s recognized experts. In some cases, the sites haven’t recovered because they have not implemented the recommended changes. However, there are quite a few sites that have made significant changes, yet still seem to be stuck under some type of ranking demotion.

In many cases like this, I’ve spent some time reviewing competitors’ sites that are currently ranking well. What I’ll do is try to complete a task, such as searching for and reaching the point of purchase on a particular product on the Panda hit-site, as well as the competitors’ sites. In most cases, I’ll find that the competitors offer a vastly better search experience. They may have a number of things that the Panda-hit site doesn’t, such as the following:

  • A better search interface.
  • Better browsing options (i.e. search by color, size, etc.)
  • Pictures that are much better and more descriptive than the standard stock product photos.
  • Great, helpful reviews.
  • Buying guides that help the searcher determine which product is best to buy.
  • Video tutorials on using their products.
  • More competitive pricing.
  • A shopping cart that’s easier to use.

The question that I ask myself is, “If I were buying this product, would I want to search for it and buy it on my clients’ site, or on one of these competitors’ sites?” The answer is almost always the latter.

And this is why Panda recovery is difficult. It’s not easy for a site to simply improve their search interface, add legitimate reviews that are not just scraped from another source, or create guides and video tutorials for many of their products. Even if the site did add these features, this is only going to bring them to the level where they are perhaps just as good as their competitors. I believe that in order to recover from Panda, you need to show Google that by far, users prefer your website over any other one.

This doesn’t just apply to eCommerce sites. I have reviewed a number of informational sites that have been hit by Panda. In some cases, clearing up thin content can result in Panda recoveries. But often, when an informational site is hit by Panda, it’s because the overall quality of the content is sub-par.

If you run a news site and you’re pushing out fifty stories a day that contain the same information as everyone else in your space, it’s going to be hard to convince Google’s algorithms that they should be showing your site’s pages first. You’ve got to find a way to make your site the one that everyone wants to visit. You want to be the site that when people see you in the SERPS, even if you’re not sitting at position #1, they say, “Oh…I want to get my news from THAT site…I know them and I trust them…and they always provide good information.”

In the past, a mediocre site could be propelled to the top of the SERPS by tweaking things like keywords in title tags, improving internal linking, and building some links. But, as Google’s algorithms get better and better at determining quality, the only sites that are going to rank well are the ones that are really good at providing value. Sure, they’re not quite there yet, but they keep improving.

So should I just give up?

No! I still believe that Panda recovery is possible. In fact, I would say that we’re in an age of the Internet where we have much potential for improvement. If you’ve been hit by Panda, then this is your opportunity to dig in deep, work hard, and make your site an incredible site that Google would be proud to recommend.

The following posts are good ones to read for people who are trying to improve their sites in the eyes of Panda:

How the Panda Algorithm Might Evaluate Your Site – A thorough post by Michael Martinez that looks at each of Amit Singhal’s 23 Questions for Panda-hit sites in great detail.

Leveraging Panda To Get Out Of Product Feed Jail – An excellent post on the Moz blog in which Michael Cottam gives some tips to help make your product pages stand out and be much more valuable than your competitors’ pages.

Google’s Advice on Making a High-Quality Site – This is short, but contains many nuggets.

Case Study – One Site’s Recovery from an Ugly SEO Mess – Alan Bleiweiss gives thorough detail on how implementing advice from a strong technical audit resulted in a huge Panda recovery.

Glenn Gabe’s Panda 4.0 Analysis – This post contains a fantastic list of things to clean up and improve upon for Panda-hit sites.

If you have been hit by Panda, you absolutely must do the following:

  • Start with a thorough on-site quality audit.
  • Find and remove any large chunks of thin content.
  • Deal with anything that annoys users, such as huge popups or navigation that doesn’t work.

But then we have to do more. In the first few years of Panda’s existence, making significant changes in on-site quality could result in beautiful Panda recoveries. I am speculating though that now, as Google gets better at determining which sites provide the most value, this may not be enough for many sites.

If you have been hit by Panda, it is unlikely that there is a quick fix. It is unlikely that you can tweak a few things or remove a chunk of content and see a dramatic recovery. Most likely, you will need to DRAMATICALLY improve the overall usefulness of the site to the point where it’s obvious to everyone that your pages are the best choices for Google to present to searchers.

What do you think?

I am seriously hoping that I’m wrong in predicting that the only sites we’ll see make significant Panda recoveries are ones that have dramatically overhauled all of their content. Who knows…perhaps one day soon we’ll start seeing awesome recoveries as this agonizingly slow iteration of Panda rolls out. But if we don’t, then we all need to get working on making our sites far better than anyone else’s site!

Do you think that technical changes alone can result in Panda recoveries? Or is vastly improving upon all of your content necessary as well?

Sign up for The Moz Top 10, a semimonthly mailer updating you on the top ten hottest pieces of SEO news, tips, and rad links uncovered by the Moz team. Think of it as your exclusive digest of stuff you don’t have time to hunt down but want to read!


Source: Moz

The Perkins v. LinkedIn Class Action Settlement Notification Was Badly Bungled (Forbes Cross-Post) 0

Recently, millions of LinkedIn users received an email titled “LEGAL NOTICE OF SETTLEMENT OF CLASS ACTION.” The email told recipients about a proposed class action settlement in Perkins v. LinkedIn, involving “LinkedIn’s alleged improper use of a service called ‘Add Connections’ to grow its member base.”

This email attempted to inform the purported victims of their settlement options. Class members can ask for cash from a settlement fund, opt-out of the settlement and pursue an individual lawsuit, communicate their objections to the settlement and hope the judge reforms its terms or scuttles it entirely, or do nothing. The email also links to a class action settlement-specific website that provides more details.

Communicating with a large class of millions of victims is never easy, but this particular notification was handled particularly poorly. Let me highlight six problems with the notification:

1) Sending the notification on late Friday afternoon. As every PR executive (and the NSA and FBI) knows, if you want to deliver bad or embarrassing news, do so on late Friday afternoon. Any press outlet covering the news immediately will run their stories on Saturday, when readership is lowest, or will do a recap on Monday, when the news feels a little stale. By delivering the email on late Friday afternoon, LinkedIn seemingly minimized any bad press related to the Add Connections feature and case settlement.

However, delivering an email on late Friday afternoon almost certainty reduces email readership. Late Friday afternoon is a time when many people have schedule conflicts, such as traveling, family and social gatherings, and observing Shabbat. The emails aren’t likely to be opened immediately, so they will get buried under new emails accruing over the weekend. If the sender’s goal is to reduce the number of people who open the email, late Friday afternoon is a fine choice. (As this article explains, “Weekends tend to have low open rates, so most marketers avoid them like the plague”). Thus, the timing of the Perkins v. LinkedIn settlement notice probably didn’t maximize class members’ awareness of their legal rights.

(Note: the settlement notification in the Facebook Sponsored Stories case was also sent late Friday afternoon, presumably for the same reasons).

2) Terrible subject line. Email subject lines create the email’s first impression to recipients, so they require special finesse. This particular subject line wasn’t handled skillfully. The subject line was written in ALL CAPS (a usability no-no), starts with the scary words “legal notice,” and opaquely indicates a “settlement of class action.” Based solely on the subject line, this email looks like a possible phishing attack similar to a Nigerian 419 email scam; or it looks like part of a trolling campaign where plaintiffs (like copyright owners) threaten Internet users with litigation that can be settled for a low amount. We’ve taught email users to delete phishing attempts without opening the email, and other recipients might ignore the email hoping any trolling demand just goes away. As a result, the subject line discouraged email opening.

The email’s real message is that recipients might be entitled to free money. Communicating that message in the subject line would certainly improve email open rates if it could be done without looking like a phishing attack.

3) No notice within LinkedIn. Sending official legal notices via email will always have challenges about subject lines, delivery times, spam filters, etc. As a result, it’s advisable to use additional media to reach class members. Here, it would make sense to notify LinkedIn members about a LinkedIn matter ON LINKEDIN. After all, being a LinkedIn member is the one thing every class member has in common with each other, and a message on LinkedIn would avoid some of the standard email problems. If there was any notification on LinkedIn about the class settlement, I didn’t get it, nor could I find any announcement about the settlement in my LinkedIn newsfeed or an ad widget. I understand why LinkedIn wouldn’t want to communicate with its members about this potentially embarrassing and brand-damaging settlement on its own site, but not using the most logical way to reach class members is baffling.

4) Unclear how to claim the cash. Because most people want the cash, the instructions on how to get it are especially important. Here’s what the email notice said about how to get the cash:

perkins v linkedin screenshot

If you can’t see the image, here’s the key language:

SUBMIT A CLAIM FORM / If the Court gives final approval to the Settlement, this is the only way to be eligible to receive a payment. / Deadline: December 14, 2015

OK, sounds good, I’d like to do this, and I’m worried about the scary deadline. Now what? The email itself provides no further instructions on how to “submit a claim form,” nor does the email provide a direct link to the claim form even though that would be easy to do (plus the email confusingly provides a series of unrelated links immediately above this language). Eventually, anyone determined enough to get the cash will visit the class action settlement website and navigate around to find the link to the claim form. But given most recipients want to know how to get the cash, why did the senders make it so hard to figure that out? And how many people gave up because even this small hurdle was more than they were willing to overcome?

5) Overloaded website. Even if you try to bury the news on late Friday afternoon, if you notify millions of people that they may be entitled to cash, you can reliably predict that the website will get A LOT of traffic. It makes sense to work with a content delivery network and an industrial grade server farm to ensure adequate excess capacity during the initial crush. Instead, this settlement website was not up to the task. Throughout Friday afternoon, it was so overloaded that I couldn’t access the website at all in either Chrome or Firefox. The traffic crush has apparently died down, so the website works fine now. But how many class members, unable to access the website when they first opened the email, simply gave up and decided it wasn’t worth the effort?

6) Increased security risks by submitting a claim. The claim form gives two options of how to get paid. The first option visually dominates the form and asks for bank account information so that the cash may be sent electronically. Below that is a second, less visible option to get a check. Moving money electronically will be cheaper and faster for the settlement administrators, so it’s not surprising that this option got prominent billing.

However, all of the personal information gathered from class action settlement claims creates a new security vulnerability; it’s a hacker honeypot. Putting bank account information into that database makes the target much, much juicier to the bad guys, which magnifies the security risk. Perhaps the settlement administrators have such industrial-grade security that it can fend off any attack from the bad guys, but given the avoidable server overload initially, I highly doubt it. Instead, the increased security risk creates an irony: the lawsuit was designed to remedy a purported privacy violation by LinkedIn, but the solution exposes the victims of that alleged privacy violation to additional security risk. I discuss this conundrum in more detail in my article, The Irony of Privacy Class Action Litigation.

Implications

I can’t advise you whether or not to tender a claim for cash or pursue the other options. However, if anyone objects to the proposed settlement, the botched execution of the settlement notification has given several new grounds to raise objections. If I were the judge, I would require the parties to redo the emailed settlement notification properly.

I have no opinions about the substantive merits of this particular lawsuit, but I have a general skepticism about the merits of privacy-related class action lawsuits as a way of remedying the purported problems. In this case, I will be keenly watching the number of claims tendered by users, as well as the transaction costs incurred to get money into the alleged victims’ hands, to see if we can declare in the end that justice was served. (For an example of just how out-of-whack these numbers can be, see the Heartland Payment settlement involving 130M purported victims, a 0.00000846153846153846% notification response rate, and about $1k of transaction costs per individual claim tendered). Even if you end up getting a check (probably a few years from now) from LinkedIn to settle this case, ask yourself if you honestly believe that this process and that money was the best way to solve the purported problem.


Source: Goldman Legal