Archive by Author

Feeling his oats

Originally posted 2007-02-12 15:58:36. Republished by Blog Post Promoter brings this quote from John Stuart, former Quaker Oats chairman:

If this business were to be split up, I would be glad to take the brands, trademarks and goodwill and you could have all the bricks and mortar – and I would fare better than you.

Sounds right to me.

About as effective as the real Great Wall

Originally posted 2007-03-15 23:17:31. Republished by Blog Post Promoter

A website called the Great Firewall of China tests websites to see if they’re being censored in China.

To my disappointment, I don’t rate. And it’s not as if I haven’t tried to offend. More than once. A lot more.

Hat tip to Roland Dodds.

Scientology Cult Returns to its IP-Abusive Ways

Originally posted 2005-10-22 22:35:58. Republished by Blog Post Promoter


Long Island (New York’s) Newsday newspaper reports that the wackos at Scientology have tried to shut down a website called which mocks the cult’s name along with cult member and platinum wacko Tom Cruise. According to the story, the Scientologists also sent a letter to another critical site, Truth About Scientology.

The U.S. Courts have long been handmaidens at assisting cults such as Scientology and wacko religions such as Jews for Jesus use the law to silence criticism. The most notorious is the series of legal actions that enabled Scientology to take over — lock, stock, barrel and domain-name — the Cult Awareness Network, which overstepped the bounds of a deprogramming job on one of its zombies. But the lawyer-heavy group makes generous use of the IP laws in quashing dissent, notably by suing, or threatening to sue, anyone who prints more of their founder’s dissembling nonsense than copyright fair use permits. Scientology even got the IRS to back off and finally issue a tax exemption to the cult as a religion in a settlement many have found fishy and which is surrounded by mystery.

This foray into trademark, however, is evidently something new. It won’t be as easy — copyright has a sharper teeth than trademark, notably statutory damages and the notice-and-takedown provisions of the DMCA, which don’t apply to trademark infringement (real or imagined). So far the websites have been standing fast — but then again, so did the Cult Awareness center. Something to watch, and worry about.

An army of patent avengers

Originally posted 2006-05-19 09:44:12. Republished by Blog Post Promoter

A New Zealand actor’s quest for revenge against Amazon for the minor inconvenience of having to wait for a book has spurred the PTO to reconsider the Amazon One-Click patent, according to a report from the antipodes.

Freedom to blawg

Originally posted 2006-11-27 12:36:48. Republished by Blog Post Promoter

Blawg Review #85 is up, down under.  It’s one of the most thorough and “dense” blawg reviews ever.  I mean that in a good way.

Times Op-Ed Columnists Have More Fun

Originally posted 2005-11-07 09:14:25. Republished by Blog Post Promoter

Times buildingOne of our most excellent blog-related adventures was our involvement with Bob Cox of The National Debate and his wacky IP-abusive go-round with the New York Times. Bob’s point was that Times columnists should be held to the fire (however lukewarm it is at the Times) every bit as much as the inkstained wretches in the working press for those rare moments when the Times deigns to correct its most egregious errors. There has been progress in that direction, but only a little. By and large Times columnists still have much more sway over their little patches of truth in the Newspaper of Record.

Mickey Kaus gives a classic breakdown of what happens when — as is still the case — op-ed page columnists are left entirely to their own devices to own up to their own mistakes, intentional or otherwise. The formula?

  • Bond with your base: Make it clear that the enemy is forcing this so-called correction on you. “Of course it will turn out that the fuming right-wingers are right and Kristof is wrong. But that’s all the more reason for him to make sure his readers know whom to root for from the start!”
  • Be picky about what you’re not buying. Deflate the value of your admission by removing low-hanging fruit from your critics’ branches.
  • Keep hope alive! Don’t admit the finality of your error. “In one breath, it says ‘Hey, I might still be right!’ while drawing praise for its fairminded admission that this possibility is “unlikely.” It’s so much more complex and interesting than a vulgar, flatfooted word like ‘wrong.’
  • Equal time for the planes that land safely: Remind everyone that you weren’t only wrong. Some of the stuff you wrote, in fact, was absolutely non-wrong. “[I]t’s good to be reminded of a sentence in the column that wasn’t wrong.”
  • In the end, it doesn’t matter if the Hitler Diaries are real or not! Yep. “Fake but accurate” time, and besides, let’s prioritize here! As Kristof says:

    More generally, I find the attacks on a private citizen like Wilson rather distasteful. Sure, he injected himself into the public arena with his op-ed column and TV appearances, and so some scrutiny is fair. But I figure it’s more important to examine and probe the credibility of, say, the vice president than a retired ambassador.

    Kaus asks,

    But does anyone of authority at the NYT endorse Kristof’s sentiment? It’s allright to scrutinize federal officials but actively “distasteful” to scrutinize former officials who lead loud public election-year campaigns against them? Is Kristof suggesting that he should be let off the hook because it was more important to blast Cheney than get Wilson right? (A: Yes.)

    Now the part journalists — bloggers, too (and maybe even lawyers?) — of all stripes should remember:

    Read More…

Delaware Ups Standard for ISP Discovery in Defamation Suits

Originally posted 2005-10-10 11:39:23. Republished by Blog Post Promoter

Wired reports:

In a decision hailed by free-speech advocates, the Delaware Supreme Court reversed a lower court decision requiring an internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official.

In a 34-page opinion, the justices said a Superior Court judge should have required Smyrna town councilman Patrick Cahill to make a stronger case that he and his wife, Julia, had been defamed before ordering Comcast Cable Communications to disclose the identities of four anonymous posters to a blog site operated by Independent Newspapers, publisher of the Delaware State News.

This is an important development. According to the Electronic Frontier Foundation, “This is the first state supreme court to rule on a ‘John Doe’ subpoena or to address bloggers’ rights.” Certainly not the first state court, however.

As a New Jersey practitioner, I used to utilize John Doe claims as a way to find out the identity of anonymous Internet critics of my business clients. I knew that if such a lawsuit were tested on a motion to dismiss basis, it would likely fall short, because the claims essentially sounded in defamation — a notoriously difficult claim to maintain in American law. (“Likely fall short” is not the same as “definitely fall short” — because knowingly filing a meritless suit would be unethical and sanctionable, John Doe defendant or not.) But because there was no defendant to make such a motion, I could issue subpoenas in the court’s name in the bona fide attempt to find out who, exactly, my defendant was — which is usually all the victim of anonymous criticism is looking for.

Then, in 2001, the New Jersey Appellate Division wisely ended that practice. (Check out the link for a good analysis (with a very corporate-plaintiff oriented conclusion) of the New Jersey cases from a couple of Gibson, Dunn attorneys ).

I’m somewhat skeptical of the privacy obsession that some people have, but in this case I believe these decisions are right. Bringing litigation that is just short of meritless in order to get discovery that would otherwise be unavailable may be legal elsewhere, but it probably shouldn’t be. I do wonder, however, about the role of the courts in making these policy decisions, which strike me as more legislative than judicial.

In fact, I once merited to be interviewed by Salon magazine in connection with the Media Whores Online controversy, and pronounced that the option of anonymity is a corollary to free speech. I’m not sure I would say that so forcefully now, but I do think these cases came out right. As it stands now, however, we may be looking at a world of forum-shopping to get anonymity-busting discovery in John Doe actions, which remains obtainable in many states, leaving it to judges to “fashion” their own doctrines and “multi-part tests” to deal with the issue. I’d prefer a model statute for consideration by the various state legislatures. I would even write it. Any takers?

A blogger testifying before Congress? It’s true…

Originally posted 2005-09-22 12:55:27. Republished by Blog Post Promoter


A note in the mail from Mike Krempansky of RedState blog:

I always thought if it ever came to it, I ought to practice the phrase, “I’m sorry Senator, I don’t recall.” Perhaps due to the fact that the first time I ever watched Congress on television, it was Oliver North interrupting my normally scheduled programming. So it’s a nice surprise to be invited, not compelled.

I’ll be representing RedState by testifying before the Committee on House Administration tomorrow about the Online Freedom of Speech Act, also known as the first Congressional step in protecting bloggers and political speech. My full testimony is here:

As you might guess – I’m for freedom.

Wish me luck!

Good luck, Mike. But remember what we said here: Freedom, online or otherwise, isn’t just for bloggers.

Those idealistic sixties

Originally posted 2007-03-24 23:46:30. Republished by Blog Post Promoter


Bring your discomfort bag (revised and expanded)

Originally posted 2007-01-08 10:50:09. Republished by Blog Post Promoter

Technology & Marketing Law Blog: “The keyword advertising legal roller-coaster continues.”

The roller coaster I would not ride

As someone who is on that thrill ride — at least partly on the dime of my clients (as in the Buying for the Home case) — it is of course troubling for an expert such as Eric Goldman to acknowledge this. It is somewhat of a vindication, though, not least of the fact that attorneys practicing in this area really have no business telling clients they have any idea what the outcome of cases implicating these issues might be, no matter how well we think we know the law.

That’s fine as far as it goes. But what about the law? It is distressing enough to tell your client that his case involves an unsettled area of law and that two courts faced with similar facts could well come to different conclusions about the application of the “same” law to those facts. (It can even happen in the same case, as Eric points out in his commentary on Buying.) It is preposterous, however, that your client could get slammed on damages or, in theory, attorneys’ fees — which require a finding of willfulness, mind you — because courts are still feeling their way around.

What a fine opportunity for Congress to step in and provide guidance via legislation — for these angels dancing on the heads of virtual pins are in fact not so much legal decisions at all but real, live policy decisions: Shall the Lanham Act regulate, as a trademark infringement, the utilization of trademarks as search terms in Internet or other computer-based software engines?

This is not the case every time a trademark and the Internet get involved with each other. In the context of past trademark-on-the-Internet disputes, notably involving domains (which the world once thought would be the alpha and omega of trademark battlegrounds on the Web), we have argued that the issues at stake are not novel “cyberlaw” questions but merely require the application of hoary principles of unfair competition to somewhat novel situations. But that argument simply does not stand when we consider the search engine question. It is pedestrian to observe that Congress could not have contemplated this or that application of a law when it passed it. The common law tradition abjures us from such arguments. It is the job of judges to apply the law which affects the decisions we make about conduct to new factual situations by the application of analogy tempered with equity.

Yesterday you said tomorrowBut we are in a new world. When courts make fundamentally different conclusions about a question or cluster of questions — in this case whether trademarks are even “used,” as understood in the Lanham Act, by search engines [UPDATE:  See here.  They are.] It is time to recognize that these legal questions are political questions implicating not only law but commerce at all different levels, as well as technology and the shape of the Internet to come. Not everyone has the stomach for roller coaster rides. Let those who do have their fun. The rest of us, lawyers and clients alike, are entitled to the option of standing on terra firma while conducting our affairs. This is our stop.

Holland: The New Switzerland

Originally posted 2005-07-12 16:18:17. Republished by Blog Post Promoter

For file-swappers that is.

Justice Rhenquist dies

Originally posted 2005-09-03 23:22:33. Republished by Blog Post Promoter

Chief Justice Rehnquist Dies at Home – Yahoo! News