Lawyer rating start-up and nascent online community Avvo scored a big win yesterday when it convinced a Washington district court to dismiss a putative class action lawsuit filed last June. Avvo aggregates available attorney information, assigns subjective (and undisclosed) value to various factors, and comes up with a 1-10 rating. (Initially, Avvo rated every lawyer in its database. Shortly after its launch, and after the lawsuit was filed, Avvo responded to concerns about this practice and altered its approach.) Avvo’s ratings are thus generally analogous to Google’s PageRank: factors are weighted and a score is assigned. The lawyer-plaintiffs in the suit challenged the accuracy and validity of Avvo’s ratings and argued consumers would be misled by the flawed system. Avvo countered that the rating system yields no more than opinions entitled to absolute first amendment protection. The court agreed:

Avvo’s website contains numerous reminders that the Avvo rating system is subjective. The ratings are described as an “assessment” or “judgment,” two words that imply some sort of evaluative process. The underlying data is weighted based on Avvo’s subjective opinions regarding the relative importance of various attributes, such as experience, disciplinary proceedings, client evaluations, and self-promotion. How an attribute is scored and how it is weighed in comparison with other attributes is not disclosed, but a reasonable person would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and important. . . . Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings are a statement of actual fact.

This is obviously good news for Avvo, and for any site that crunches variables to assign a rating. As Mike Gunderloy observed when the suit against Avvo was filed, this includes much of the Web 2.0 ecosystem. While Mike was concerned primarily about protections available to rating systems based on user (i.e. third party) feedback, it’s interesting to note that the court’s decision to dismiss the suit against Avvo was based solely on the First Amendment and not on Section 230 of the Communications Decency Act, which provides limited liability protection for assertions made by third parties. Section 230 played no role here despite the fact at least some of Avvo’s ratings are based on third party assertions, specifically “peer endorsements.” The Avvo plaintiffs apparently “disavowed any claim based on content that Avvo obtained from a third party,” and there was thus no reason for the court to consider or discuss Avvo’s Section 230 defense. Thus, as with the KinderStart case against Google dismissed earlier this year, this court found that an algorithmically generated opinion can’t be “wrong,” “inaccurate,” or “invalid,” and failed to consider the potential (ultimately probable) role of Section 230 in limiting claims of this kind.

WikiPatents, “a public community that reviews US patents and pending patent applications,” is one year old and now home to information and commentary about over 10 million patents and patent applications. It also is as far as I know the only place you can sort patent data by whether the invention in question is amusing, clever, complex, efficient, historic, important, innovative, interesting, practical or simple.

If you’re doing business on the Live Web, get thee this Wednesday, October 10, to EFF’s Bootcamp, “a one-day session for Web 2.0 workers on user generated content:”

Does your interactive company have to contend with the maze of laws dealing with user privacy and publishing user content? Want to do the right thing by the online community that gives your business value, and still fulfill your legal obligations?

EFF is hosting a one-day session for Web 2.0 workers who handle issues arising from users and user-generated content. From DMCA to CDA to ECPA, the law surrounding internet content can be confusing, especially for the folks who have to decide on the fly whether to let something stay up or take it down, or whether to give their customer’s name to the FBI agent on the phone. Let us help.

This is an incredible and cheap (between $100 - $200) opportunity to learn how to spot and avoid trouble from the best of the best in this field: EFF’s staff attorneys. (If the registration fee is still too rich for your blood, then apply for one of the 20 available Google-sponsored scholarships, explained here.)

I am hard pressed to conceive of a Web-based communication platform, community, or business model that doesn’t need this kind of overview. For nine examples of why, check out Rafe Needleman’s 9 fun ways Web 2.0 startups can commit legal suicide, gleaned from an interview with Fred von Lohmann in conjunction with the upcoming event:

Von Lohmann’s two big takeaways: First, be sure you know when you’re stepping into a danger zone. Music? Financial data? Private information? Kids? Don’t let yourself think you’re more clever than another industry’s legal machine. Second, realize that no matter how hard you try to stay clean, ‘You’re probably doing something wrong already. For the most part it doesn’t matter, but something just might.’

For yet more examples of the legal minefields Web businesses must daily navigate, you might want to eavesdrop on Fred von Lohmann’s IP and Innovation Policy class at Stanford by way of its blog. Bring your Aleve; plenty of brain teasers there.

Bootcamp starts at 9:00 a.m. Wednesday at Fenwick & West in Mountain View. (Brilliant move by the firm, hosting this. I’m sure plenty of Fenwick’s existing clients are thrilled for the opportunity, and once EFF’s staff has had the chance to terrify educate all the non-client attendees, the stampede to sign the firm’s retainer letter will leave some wondering how they wound up in Pamplona.)

(Image by A. www.viajar24h.com, CC Attribution-2.0)

Dennis Kennedy pointed me to Shelley Powers, who pointed me in turn to Slashdot and Professor Lessig. All concern a lawsuit pending in Dallas, TX against Virgin Mobile and Creative Commons concerning Virgin’s advertising use of a minor’s picture posted by the girl’s youth counselor to Flickr under a CC-Attribution license (which permits commercial use). The Flickr user/youth counselor/photographer is a plaintiff in the suit, contending Creative Commons failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”

Creative Commons has been sued for negligence, the catch-all of tort law. Someone is negligent when s/he fails “to act with the prudence that a reasonable person would exercise under the same circumstances.” The plaintiff posits that Creative Commons had a duty to warn about what commercial use is and the fact an “Attribution” license permits it. Creative Commons should have little trouble demonstrating that assuming it even owes such a duty, the duty was satisfied.

Putting aside for a moment the Texas wild card [”Texas courts have twice … held that simply providing some legal forms (wills, but not deeds) constitutes the practice of law,”], this claim should go nowhere. The Creative Commons “Before Licensing” page explains, in essence, why CC is the Live Web’s quickie divorce information center. That is: it can help users accomplish a primary legal objective at a fraction (or none) of the cost that otherwise would be associated with the transaction, but it is not intended as, and does not purport to offer, anything but a one-size-fits-many solution. Creative Commons cautions users to “[m]ake sure [they] understand how Creative Commons licenses operate.” In addition to the related explanations of the Attribution and Noncommercial license attributes provided by Creative Commons itself, Flickr (which interestingly isn’t a defendant) advises users that the only restriction imposed by an Attribution license is that the user give the licensor credit. Flickr points users to relevant portions of the Creative Commons site for more detailed explanations and information. Flickr also requires users like the plaintiff in this suit to ensure they do not use the service to, among other things, “harm minors in any way,” or post material they do not have a “right to make available under any law” or that “violates proprietary rights” of any party. Creative Commons similarly cautions users to make sure they have the authority to distribute works under the license they select, and of course tells them it is not a law firm, does not provide individual legal advice, etc.

From my admittedly noncomprehensive review of Creative Commons’ FAQs and other information, it seems to me the site complies with the ABA’s Best Practice Guidelines for Legal Information Providers (for that matter, non-defendant Flickr does so as well by linking to the appropriate Creative Commons material), and that should factor into any reasonableness test. Shelley believes this suit was inevitable, and she may be right, but I disagree with her about why it was to be expected. Creative Commons didn’t invite this suit. Rather, it had the fortitude to provide a range of possible solutions to some of the problems raised by the miasma of our copyright system. Willingness to innovate in areas that lack a wealth of on-point legal precedent can always make you a target.

(Image by hitormiss, CC Attribution-2.0)

[Update, 9/26/07, 1:00 p.m.:] In an update to her original post, Shelley Powers points out, as I have here in the past, that it’s possible for third parties to violate both copyright law and the terms of use for Flickr and/or its API. Something to bear in mind for both the users and misusers of Flickr (the latter of whom will inevitably, and this time correctly, be sued for such actions).

Some very competitively interesting Web companies are being launched and/or featured today and tomorrow at TechCrunch40. In the wrap-up portion of the Community Collaboration session, former Napster executive Don Dodge was quick to note that many of these companies depend on user submissions and uploads to populate their services, and they need to be managing the IP considerations on the front end.

StoryBlender (a project from the creators of Cyworld) provides an online editing tool for collaborative video production. When pressed on the related IP issues, the presenters said they have learned from YouTube’s experiences and will have rigid policies (and presumably technology) in place to block uploading of copyrighted, unlicensed works.

It will be interesting to see whether AOL’s BlueString, which launched today at the conference and offers storage and sharing for photos, videos, and music, will take a similar approach. Its terms unsurprisingly put the copyright compliance obligations on the individual users. It invites users to upload their photos, their videos, and “their music” — though of course, as the ’80’s mix cd graphic now on the homepage suggests, BlueString users are unlikely to have created “their music” themselves, thus putting the service in the likely and unenviable line of fire of the major record labels.

Probably the biggest crowd favorite today was musicshake, a company that aims to change the assumption that a user’s “own music” was not created (at least in part) by the user her/himself. It’s a slick online music creation site, like GarageBand moved to the Web and made very user-friendly. The clips forming the foundation of musicshake creations are all licensed, and the company plans to let users sell their creations, keeping some of the proceeds themselves and kicking some to those providing the clips on which the finished work is built. It would be nice to see musicshake include Creative Commons licensing, but there was no mention of this today.

Two companies who either are or are contemplating offering Creative Commons licensing are docstoc and AOL’s BlueString (mentioned above). docstoc, which blends document storage with sharing and social networking, bakes in Creative Commons licensing à la Flickr, and BlueString’s terms advise users that they “may” have the option to apply a Creative Commons license to what they put on the site.

“Social Networking 3.0″ was on the agenda this afternoon at the AlwaysOn Stanford Summit. This one was a “must watch” for me, as will be Dan Farber’s later today on “The Democratization of Media.” You can follow along with the conference’s live Webcast here.

Moderator Charlene Li, senior analyst for Forrester Research, was joined by Travis Katz, senior vice president and general manager of MySpace International; Dustin Moskovitz, co-founder of Facebook; Rich Rosenblatt, CEO of Demand Media and former MySpace executive; Gina Bianchini, CEO of Ning; and Karl Jacob, CEO of Wallop. Dan blogged the panel on Between the Lines, and, as he says, most of the discussion focused the future of social networks. I was most interested in the comments concerning social networks and identity, attention, and intellectual property.

On the identity front, Charlene Li stated the truism that maintaining identities across different social networks is “a pain,” and wondered when the social networks we see today will become more open. Facebook’s Dustin Moskovitz recognized that portable identities are necessary, but didn’t go into particulars of how Facebook is or will be addressing this. Rich Rosenblatt said they talk internally at Demand Media about “the portable profile,” and says Demand Media is working on letting users log in with a single profile then select from a mix of options as to where they want to be. (My impression was he was not talking about navigating out of the Demand Media environment.) MySpace’s Travis Katz is interested by the notion of OpenID and a single, portable identity, but thinks it’s “complicated” to make it happen. And Gina Bianchini challenged the notion that social networking users want a single, inflexible identity to follow them around: “Your wakeboarding social network is fundamentally different from your independent journalist one. People in the real world have different sides of themselves that they show to different groups, different people, different communities.” She makes a good point, and I think the digital identity community is on top of that nuance. Though Tantek Çelik Twittered me to ask about their plans, if any, for using microformats as an open portability standard, sadly I didn’t get the nod from the microphone handler. [Update:] See Fred Oliveira: “A good start: A few social networks already have microformatted data on user profiles (Last.FM, Dopplr, Twitter and Cork’d), meaning any other network could easily consume this data when you sign-up, saving you a load of trouble - which is exactly what Dopplr (being smart as it is) does. Now if other networks would tag along, that would be superb.”

Travis Katz, Dustin Moskovitz, Rich Rosenblatt, Gina Bianchini, Karl Jacob

On the attention front, in response to the question “Where’s the money going to come from?” the panelists answered with nearly a single voice: targeted advertising. But transactions based on user desires and intentions are on the radar as well:

Travis Katz: the advertising model on social networks is going to be here a long time. Other models will probably emerge too. MySpace is looking at ecommerce models. You always feel better buying from a trusted source. When you talk about transactions between individuals, there’s a commerce opportunity there too.

Karl Jacob: Wallop is all transaction, no advertising. We believe there’s a world down the road where you buy the things you need to dress up your profile and the applications you want to use. Akin to the ringtone market.

Gina Bianchini: If I had to choose between the ringtone market and targeted advertising, I’d choose targeted advertising. There’s a huge opportunity to bring what is happening with AdWords into social networks. If you take a monetization model that’s working today and generating significant amounts of money, and apply it to a market that is only going to get bigger and more sophisticated as far as targeted advertising, it gets very interesting.

Finally, on the subject of intellectual property, when asked what was missing from the social networking ecosystem and what he would invest in if given the opportunity, Rich Rosenblatt commented on the need for what I would call a “third estate” of media: outside the copyright and use limitations of the products of the big studios, labels, and publishing houses, and yet a step above one person’s photos, films, etc. made primarily for personal use. A class of media produced and designed for Web distribution. Gina Bianchini challenged the notion that “amateur” media can’t comprise this third estate:

Rich Rosenblatt: We’d like to see more content actually made for the Internet. There are two layers of content. Studio generated (lots of trouble and fighting there), and user generated but not usable (one guy’s photos of himself). We’d like to see content that more than a few people want to see.

Gina Bianchini: I would argue that that’s happening today. On YouTube some of that gets lost in the crowd, but put it in a community of really interested people, and it’s very powerful.

Rich Rosenblatt, to Gina: But if you could buy wakeboarding content for your wakeboarding social network, wouldn’t that be great?

Gina Bianchini: From my perspective, one of the benefits of social networks is you and your friends can watch your own stuff. Another benefit is the good stuff rises to the top. I would rather have the material be truly user generated.

Karl Wallop: the good content and the good applications will all come from the current and up and coming generations of users.

I have long thought Creative Commons moves us significantly closer to this third estate media ecosystem, but doesn’t quite take us all the way there. John Palfrey points this out in his post today on blog scraping and the ongoing licensing/compensation gap.

alwayson, alwayson2007

Jonathan Bailey of Plagiarism Today picked my brain for his article at the Blog Herald examining the Copyright Risks in Embedding YouTube Clips:

[W]ith the read/write Web comes a whole new set of challenges. As we begin to share one another’s content like never before, it is not enough to ensure that we don’t upload content that might be infringing, but we have to make sure that we don’t use infringing works posted by someone else.

As the article discusses, you’re not protected from direct infringement liability simply because you’re embedding a clip available on a video hosting site, and such sites (YouTube is the example in the article) generally have express disclaimers as to intellectual property issues relating to use of material hosted there. While going after small site holders who have perhaps accidentally embedded infringing videos would not be a popular move, it might actually be an effective strategy in the Viacom, etc., v. YouTube drama. If lots of John Q. Bloggers were pursued for embedding works they found on YouTube, the backlash against YouTube for making that possible could be considerable, despite YouTube’s on-point disclaimer.

All of which underscores the need for group/collaborative bloggers to have clear understandings with one another. When someone’s casual embedding of a YouTube video can subject the site to a potentially whopping damage award, co-bloggers should think hard about having everyone 1) agree to be solely responsible for their own submissions, and 2) represent and warrant to one another that they have the rights and permissions to use what it is they’re posting. The same holds true for blogging networks and their bloggers,
temporary guest bloggers, etc.

More from Techdirt.

[Update, 07/10/07:] Internet/IP law guru and EFF superstar Fred von Lohmann responds to the Blog Herald article that an embedded video or image is "a link. Just a link. Nothing but a link," and as such could trigger at most a claim for contributory infringement. (Fred also discusses how one can limit exposure for that sort of liability under the DMCA’s safe harbor provisions.) I certainly hope Fred is right that courts confronted with the issue will be inclined to analogize embedded videos to the “bottom half of the screen,” full-sized image viewable inline linking analyzed in the Ninth Circuit’s Perfect 10 v. Google decision. It’s important to remember though that Ninth Circuit decisions may be persuasive, but are not binding, on other Circuit courts or the U.S. Supreme Court, and that even the Perfect 10 “server test” analysis of direct infringement of the display right focused heavily on whether full-sized (or essentially so) versions of the work could be “perceived” or “otherwise communicated” from the conduct in question.

As if anyone needed to list more reasons to buy an iPhone. But I haven’t seen anyone (save Steve Gillmor) write about most of the reasons I’ll be buying this device, so here they are.

By consolidating phone, contacts, email, music, podcasts, video, and Web in a single device, the iPhone promises to be the world’s most powerful (and portable; same thing) attention management machine.

150-odd channels, always something on. As of today I’m subscribed to 152 podcasts. I don’t listen to/watch them all regularly. Rather, they serve as bookmarks to a universe of good material I can call up at a moment’s notice to suit the prevailing time allotment and mood. Five minutes to get home from the gas station? Send in the Mighty Mommy. Longish drive? Long live TWiT. Leisurely drive? Escape Pod take me away. Manicure, pedicure, and neck massage? (My fave.) Diggnation, or Cranky Geeks, or…Lest we forget! There’s also always an episode of The Office or 30 Rock to catch up on. And none of this has to stream; it’s all there, on the hard flash drive, thanks to iTunes syncing. Also thanks to syncing, the computer and Apple TV at home know what’s been listened to or watched, and kindly put it away and queue up something new.

Toddler control. YouTube on demand. For emergencies only, but in those most dire of circumstances, what a lifesaver. iTunes movies too, and the iPhone’s viewing screen is just a little smaller than most portable DVD players.

Merging Gmail and phone. Gmail + auto-checking the account (every 15 minutes is virtually indistinguishable from push, and you just know they’ll have push before year-end) + iPhone’s keypad means I’ll never need or want a Blackberry. Ever. Gmail + integrated dialing means I’ll call 411 96% less than at present.

Wandering Web. When I take my laptop with me on a trip, 9 times out of 10 it’s so I can have Web access on the road. Everything I need lives on the Web. Frequently these days I’m leaving the laptop at home (and relying on borrowing someone else’s Web access when needed), but of course always bringing my cell and iPod because (1) they’re vital, and (2) they’re portable. Putting it all in one very appealing form factor will make me one happy traveler (not to mention a somewhat less pesty guest).

As someone already under AT&T’s thumb, the single carrier thing doesn’t bother me. Service is just as good/bad as any other carrier I’ve used. I wish the Web were faster, but it will be, particularly with millions of iPhone users demanding it. And it looks as though the iPhone rate plans will be more inclusive and cheaper than the one I’m on.

In case you were wondering whether there are legal ramifications to all this, there are. iTunes mainstreamed legal music downloads and marginalized illegal file sharing. For the vast majority of people who want things easy, fast, functional, legal, and reasonably priced, it’s already doing the same for movie and television downloads. The iPhone is poised to hockey-stick this trend, as it pairs a device truly designed for video — as opposed to a successful music player with video a late addition on a tiny screen — with iTunes for the first time, and extends Apple’s reach into the Windows/PC user universe.

[Update, 4:25 p.m.] Tom Foremski’s point about the significance of the iPhone’s WiFi capabilities is an excellent one. I also think the applications development around the iPhone is going to be um, active. If not unprecedented. Check out everything that is just waiting to complement the still more than 24-hours from available device at Mod My iPhone (via net@night), and also Dan Farber’s post about iPhone CRM (Dan’s concept of the iPhone as "post-PC," riffing on Steve Gillmor, is one that resonates strongly with me). Also, given my excitement about the iPhone’s YouTube integration, coupled with my sense that the iPhone will handle media best (at least at first) when it’s able to store, not stream, I’ll be eager to give Clippz a try too. Per its recent press release, Clippz now "now offers its entire MySpace, Metacafe and YouTube collections encoded in Apple iPhone’s H.264 file format." (And for anyone who, like me, might have been until now jargon-challenged as to "sideload," Wikipedia rides to the rescue.)

There has been a good deal of violent agreement thus far here at Supernova, but I was pretty surprised at the degree of it we had on the panel I moderated this morning, captioned Will Intellectual Property Kill Social Media? The answer was resoundingly “no,” and the converse also held true: social media won’t kill IP, either. Instead, they’ll find a way to productively co-exist, or so we all seemed to think. In addition to me, “we all” consisted of:

• EFF Senior Intellectual Property Attorney Fred von Lohmann
• Dabble Founder and CTO Mary Hodder
• Viacom Senior Vice President and General Counsel Mark Morril
• YouTube General Counsel Zahavah Levine
• Morgan Lewis IP partner Ron Dreben

Despite her protestations to the contrary, the BBC’s Alice Taylor took excellent notes of the session so I encourage you to check them out.

I realized about midway through I’ve been in sessions that sounded like this one before — but not at a conference, at a mediation. There was a stunning amount of agreement between Zahavah, Mark, and Fred about things like what should be done about non-transformative, verbatim copies of unlicensed works posted by users simply to make them accessible or more accessible (i.e., rightsholders should have streamlined and effective ways of policing them), and the social importance of the broad-based creativity and communication unleashed by social media tools (i.e., they must be preserved and encouraged to flourish). With all the consensus we had, if I hadn’t known there was a $1 billion lawsuit pending over these issues, if you’d tried to convince me of this afterward I’d have had to laugh in your face.

All of which leads me to shift my personal take on the likely outcome of Viacom v. YouTube: I’m now in the camp of folks convinced this is headed for a business, out-of-court solution. It felt like if we’d had a bit more time and one of those “lawsuit whisperer” mediators, we could have had one today. (Of course, Mark and Zahavah were speaking in their personal capacities, not as official company representatives; yada yada.) Such an outcome might not have the imprimatur of judicial precedent, but might nevertheless have the same kind of domino-tipping impact on similar future disputes.

[tags: supernova2007; viacomvyoutube; intellectualproperty; copyright; socialmedia]

As an example of someone who thinks he owns his reputation data, here’s lawyer John Henry Browne, threatening to sue new lawyer rating service Avvo over a rating he says is unjustifiably low. That link comes via Joe Andrieu on the Project VRM list, who earlier this week had these musings about reputation as case-based identity:

Perhaps considering reputation as case-based identity, we can start to outline the components required for such case-based systems to work:

* transaction data (potentially including opinions of others)
* algorithmic evaluation
* refutation process

These may not be the definitive requirements for a reputation system, but they seem to be present in the working systems I know of and are perhaps a good starting point.

For the record, I think it is an even bet as to whether or not personal opinions can be effectively integrated as “transaction history” in a case-based identity system, given the challenges of emotions, grudges, slander, and the non-provability of opinions.

It is also a near certainty that for certain types of case-based identity that the user will never be able to actually fully control the data-set. For example, I could significantly improve my credit score if I had read-write control over that data-set. Unfortunately, that would render the current system completely ineffective. Perhaps a new one could emerge, but there are other domains, such as criminal records, etc., where an authoritative reputation requires a data-set with limited or heavily moderated user control–otherwise everyone would erase those pesky traffic violations.

Against this context, the kind of ownership and control over one’s reputation data attorney Browne and others are threatening to enforce in court may find itself running up against Section 230 of the Communications Decency Act, which shields providers of interactive computer services from liability for simply filtering and/or distilling information provided by others. Though a California district court recently skirted the issue of whether Section 230 immunizes search engines for the reputational consequences of their ranking and placement algorithms, the situation is analogous. It’s interesting that unlike the search engine cases, these attorneys aren’t complaining about reputational slippage; they’re saying Avvo’s rating system has harmed them from the get-go.

What’s not clear from the lawyers’ demand letter is the legal basis for the threatened lawsuit. Defamation I assume, but what’s defamatory? Individual components of the rating or the rating itself? Avvo says it merely synthesizes data from third party sources, including the subject lawyers if they choose to participate in the process (e.g., by claiming and editing “unlocked” portions of their profiles or reporting incorrect data). The key question for Section 230 purposes will be whether Avvo and other reputational ranking systems are embellishing or enhancing third party material (or creating new material) by virtue of the way it is collected, processed, and displayed. (See Professor Eric Goldman’s excellent post on the recent Ninth Circuit decision/”hairball” that is Fair Housing Counsel v. Roommates.com.)

[Update:] Declan McCullagh has a good piece on Avvo, particularly the section on the difficulty of rating lawyers. Declan points to some of the more eye-opening ratings for folks like U.S. Supreme Court Justices: “When asked about Justice Ginsburg’s lackluster rating, [Avvo CEO Mark Britton] replied, ‘Arguably, her rating is a bit less efficient.’” Arguably. Arguably, things like peer endorsements and client ratings should operate, um, differently when it comes to jurists or legal scholars.

Speaking of which, my own unedited, uncontributed-to rating is 6.3 — the same as Larry Lessig’s, and just two clicks below Justices Ginsburg and Alito (that we all have the same “experience” rating — 3 — is nothing short of comical; Avvo also has my location wrong, which tells me their last poll of CA bar information was several months ago).

Adding to Declan’s thoughts on the slippery nature of this kind of reputation ranking, it will be interesting to see whether and how Avvo will attempt to police the inevitable gaming of its peer endorsement and client rating components. I haven’t yet heard of LinkedIn (which also has an endorsement mechanism) having to contend with this issue, but there are some key differences: people choose to be in LinkedIn (lawyers are in Avvo whether they like it or not, and there doesn’t appear to be an opt-out), and LinkedIn isn’t rating anybody, or attempting to tell would-be clients or customers “how well” a member could handle a piece of work.

[Update, 6/14]: The suit has been filed, see John Cook’s coverage and Regina Mullen’s discussion/analysis of the complaint.

[Update, 6/18]: Santa Clara law professor Eric Goldman weighs in on the Avvo case, Section 230, and Roommates.com:

Let’s put all of this aside and focus on the doctrinal issue that seems preeminent: 47 USC 230. To the extent that the plaintiffs seek to hold Avvo liable under state consumer protection laws for third party content, this lawsuit should be cleanly preempted by 47 USC 230. As an example, I’m reasonably confident that eBay would argue vociferously that its numerical feedback rating is protected by 230 (among other doctrines).

But it’s hardly clear that Avvo gets the benefit of the statute. First, arguably, the lawsuit is based on the word choices that Avvo made in describing/characterizing the data and the output, not the underlying third party data. Second, this case goes straight to the doctrinal murkiness of the Roommates.com case. Recall Reinhardt’s reformulation that Roommates.com lost 230 protection because “Roommate categorizes, channels and limits the distribution of information, thereby creating another layer of information.” Isn’t this exactly what Avvo does too? I sure hope the Ninth Circuit cleans up the Roommates.com hairball before cases like this test its limits.

Also, Carolyn Elefant and I joined the named plaintiff John Henry Browne on the Lawyer2Lawyer show to discuss the case (MP3; feed). Carolyn made some great points about how the legal profession and its institutions (particularly state bar associations) have dropped the ball on making this kind of information accessible (implying I believe that even a system that may be less than perfect/still getting the kinks out is better than nothing).