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I Read Dead Peoples’ Email: UPDATE

Originally posted 2005-03-01 00:00:00. Republished by Blog Post Promoter

Remember this item?  I wrote, regarding a family’s request for access to a serviceman’s email account after his death, as follows:

I say that absent a specific compelling reason to get the email information — i.e., the location of his will or the buried treasure or something like that — it should die with the man. And, considering that, I would also require that the information ultimately revealed be narrowly-tailored as well. The court in camera, or a special master, or another neutral person should fetch the relevant information and then Yahoo! should blow taps on the account. A hero is entitled to die with his privacy and his secrets intact.

Michell Malkin reports on new developments. Like her, though for different reasons set out in my original post, I’m lukewarm about this move.

UPDATE TO THE UPDATE: Deeper treatment of this issue, and specifically the Justin Ellsworth case, continues apace. Here’s one piece in IP Law & Business (the article is not available on line for free) by Mark D. Rasch, who formerly headed the Department’s efforts to investigate and prosecute computer and high-technology crime. He recommends the creation of an ‘”Internet Living Will” designating who can have access to your electronic assets in the event of death or incapacitation, and the scope of their authority to act on your behalf.”

Also, Jonathan Bick, a lawyer in New Jersey who’s an adjunct professor at Rutgers and Pace law schools, writes in the New Jersey Law Journal, available at Law.com (registration required here, too) that agrees with the argument of my interlocutor Paul Gowder in the comments to my original post (above) that this stuff ought not to stay private: “[D]efending nondisclosure of information after a person has passed away on the basis of privacy would present significant legal difficulties. A typical result was found by the district court in New Era Publications Int’l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988), aff’d, 873 F.2d 576 (2d Cir. 1989), when it dismissed a privacy argument by noting that the author of the copyrighted work was dead, thus eliminating his privacy interests. This would also be the likely outcome should a privacy argument be present in the Yahoo! matter.”

I think it’s the wrong outcome. Expectations, expectations, expectations!

UPDATE ON REPOSTING IN 2009: Recently this item about “what happens to your email when you’re dead?” got a lot of play over Twitter.  This has been dealt with, in terms of what email providers do, elsewhere, too (and in a funny, macabre way here), but the issues I raised in this post — i.e., what should happen to your emails when you’re dead? — are not really being taken to heart by lawyers, policymakers or too many other people either.  Thinking about this more, I realized that I wrote so many posts on this topic, the last of which is here, that it should be part of my backward looking categorization project, and made up a whole category for these “emails of the dead” posts.  Enjoy them… while you can.

Even Hippies Have their Limits

Originally posted 2005-12-04 23:22:11. Republished by Blog Post Promoter

Dead LogoReuters “news” service reports:

Facing a revolt by its famously faithful fans, The Grateful Dead backed away on Thursday from a move to block “Deadheads” from downloading the jam band’s concert recordings for free.

The San Francisco Bay-based band had asked an independently run Web site to stop making thousands of the group’s recordings available for free download.

Yeah, hippies have their limits, but when do we hear about them?

[W]ith the 1995 death of lead singer and guitarist Jerry Garcia, band members no longer keep up such an active tour schedule, making the Internet an important source of revenue.

Oh, that’s when — when the gelt is on the table.  How can the Grateful Dead band members possibly not have “enough” money by now?   Well, rock stars only tell everyone else how much dirty lucre is too much — they have no moral limits, themselves, on either earning it or spending it.  But we digress:

But the founder and director of the Web site (www.archive.org), Brewster Kahle, said in an online posting on Thursday that bootleg audience copies of the band’s concerts had been restored for free downloading.

Yes, hippies have their limits. Thing is their spawn don’t. They never do:

“It appears doing the right things for the fans has given way to greed,” the fan petition said.

Bass player Phil Lesh posted an apologetic message on his own Web site saying he did not know the band had asked operators of the site to take down the recordings.

“I do feel that the music is the Grateful Dead’s legacy and I hope that one way or another all of it is available for those who want it,” Lesh wrote.

Grateful Dead spokesman Dennis McNally said a major concern for the band was that trading music over the Internet did not create the same sense of community as trading tapes in person.

Heh-heh. Yeah, that’s it. Community, baby. Don’t bogart that community.

Wal-Mart pushed back on dubious trademark threats

Originally posted 2006-03-08 13:33:28. Republished by Blog Post Promoter

MarketWatch reports this story about an opinonated gent who’s suing Wal-Mart for a declaratory judgment:

Smith said he was making a point by comparing the giant retail company to the Nazis by creating T-shirt designs that played off the Bentonville, Ark., firm’s familiar logo, including “I (heart) WAL*OCAUST. They have family values and their alcohol, tobacco and firearms are 20% off,” the newspaper reported.

Wal-Mart launched a legal battle by writing a cease-and-desist demand that led Smith to file suit Monday in federal court in Atlanta. Former presidential hopeful Ralph Nader’s legal aid group, Public Citizen, is helping Smith, the report said.

Smith should be ashamed of himself for comparing a damned variety store to the Third Reich. It demonstrates a real lack of moral judgment on his part.

But the stupid party here is Wal-Mart, which should get its clock cleaned and which has given a platform for publicity to a bitter, if morally blind, adversary. Whether it will in this trademark-owners-take-all environnment is, however, anyone’s guess.

UPDATE: Hm. Maybe Wal-Mart had it coming?

UPDATE: The Pierce IP News Blog has it that Wal-Mart will claim its trademark is being besmirched by Smith. In other words, its claim will probably hinge on a trademark dilution count. You know, dilution — the infringement that never has to say “I’m confused.”

Admit it:

Originally posted 2007-05-05 23:34:26. Republished by Blog Post Promoter

You have nothing better to do. If you did, you wouldn’t be reading blogs. So, please take my blog reader survey!

Tattoo Me ®

Originally posted 2006-01-09 21:20:36. Republished by Blog Post Promoter

Eric Goldman has an interesting piece about an issue that has actually come up in my practice: Trademarks and tattoos, and specifically the concept of people selling “space” on their bodies to act as “human billboards.” “People appear willing to brand just about any part of their body for the right price,” he says. He also notes, however, that — just as you’d think — that price isn’t usually forthcoming.

Internet anonymity still a judicial fave

Originally posted 2007-01-24 14:56:30. Republished by Blog Post Promoter

Evan Brown reports:

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed.

We’ve discussed this issue beforemore than once. Although I am chary of the general proposition that Internet anonymity is an unalloyed good thing, this is a good policy: Where there is no defendant but a John Doe, as justified as it may be to file against unknown defendants in general, it is the court’s duty to make sure that the power of the court be utilized to obtain discovery in pursuit of a meritless claim.

Bloggers bend the elbow

Originally posted 2007-05-01 15:00:11. Republished by Blog Post Promoter

Old goats, fresh drafts
Bob Cumbow holds court at the INTA bloggers’ imbibery at the annual convention in Chicago.

UPDATE:  More evidence of hijinks.

Plastics, son. Plastics.

Originally posted 2007-01-08 22:16:42. Republished by Blog Post Promoter

In Wired News, Legal Predictions for 2007.

Merchant of Baloney

Originally posted 2005-07-20 09:08:53. Republished by Blog Post Promoter

Hilarious posting on John Welch’s TTAB Blog about what looks like PTO connivance in the wild and wacky career of would-be trademark king Leo “Likelihood of Derision” Stoller.

There is a Merchant of Venice restaurant out there, though, John. Doesn’t sound so kosher, but I wonder what they charge for the quarter-pounder of flesh?

New blawg for Oregon law

Originally posted 2007-03-30 11:08:27. Republished by Blog Post Promoter

Of course it’s called the Oregon Business Litigation blog!

Cui?, Bono?

Originally posted 2007-03-05 14:33:49. Republished by Blog Post Promoter

Advertising Age reports: “Costly Red Campaign Reaps Meager $18 Million.” Walking around New York City, I was impressed with the brand-development demonstrated by this $100 million campaign. Famous, beautiful people in Red Gap stuff, telling us to “Buy Red.” Fantastic simultaneous investment and expenditure of brand equity, utilizing not only Gap but Motorola and Apple — great brands building a new, greater brand for something even greaterly greater!

Okay, one slight problem.

Looking at the ads — on billboards, bus shelters, phone booths — I had no idea what they were for. What Red? Red what?

No message. No content.

In fact, even reading the Advertising Age article linked to above, you still have no idea what the point of this campaign was until five or so paragraphs down into the article! Evidently it’s something to do with AIDS. Or Africa. I still don’t know. Guess what: They — it — he — who? — doesn’t even tell you on the RED homepage.

It’s an arrogance thing, I think.

Frivolous copyright claims don’t automatically merit fee awards

Originally posted 2006-06-19 12:49:37. Republished by Blog Post Promoter

The New York Law Journal reports that my old friend Southern District Judge Denise Cote has turned down Fox Entertainment Group’s attempt to recoup almost $280,000 in attorney’s fees (pursuant to the copyright statute) it spent staving off a copyright suit that Fox had demonstrated was frivolous (it involved an allegation that a Fox TV program was a “ripoff” of another program). Judge Cote has an interesting take on the issue:

Although both sides agreed that the U.S. action should be dismissed with prejudice, Fox moved for an award of attorney’s fees, arguing that Ninox sued even though it knew that “The Complex: Malibu” was not substantially similar to “Dream House.”

“A compensatory fee award in these circumstances also encourages the defense of future meritless actions,” attorneys for Fox wrote in a letter to Judge Cote. “Like the gambler who raises the stakes in poker while holding no face cards, a litigant who loses this type of bet should bear the expenses incurred by the adversary in calling the bluff.”

Most IP litigators, especially those of us, ahem, “involved” in the defense side, recognize those cases that, once their merits, or outcome, are resolved, still chug along, powered solely by the gleam in someone’s eyes (woe to the ‘s attorney who puts it there!) that there could be an attorney’s fee award at the end of the rainbow. Judge Cote isn’t going to encourage that.

I’m not sure I get the next part, however. Judge Cote also writes,

“[A]lthough Ninox’s copyright claim is frivolous under the prevailing law, because this litigation would have applied copyright principles to a relatively new field of intellectual property, format licensing, as a matter of discretion, the Court will refrain from awarding attorney’s fees.”

Which is odd, because that sounds like whatever finding of frivolousness was made — the Court calls the claims “frivolous and objectively unreasonable” — is pretty much being taken back and defrivolized by that last quoted bit. What is it, exactly, that judges want?

UPDATE: The decision is here. A chilling excerpt from the lawyering point of view: Read More…