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Plugging leaks

Originally posted 2010-11-23 15:45:17. Republished by Blog Post Promoter

[Here’s a blast from the past — RDC]:  In the New York Times:

In a move that legal experts said could present a major test of First Amendment rights in the Internet era, a federal judge in San Francisco on Friday ordered the disabling of a Web site devoted to disclosing confidential information.

The site, Wikileaks.org, invites people to post leaked materials with the goal of discouraging “unethical behavior” by corporations and governments. It has posted documents said to show the rules of engagement for American troops in Iraq, a military manual for the operation of the detention center at Guantánamo Bay, Cuba, and other evidence of what it has called corporate waste and wrongdoing. . . .

On Friday, Judge Jeffrey S. White of Federal District Court in San Francisco granted a permanent injunction ordering Dynadot, the site’s domain name registrar, to disable the Wikileaks.org domain name. The order had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look.

Very interesting. Is the fact that the remedy in the order itself was fairly ineffectual mean that the court was willing to make a pro forma but not really meaningful gesture here? Or is this the camel’s nose poking through the tent of prior restraint?

I am not a purist on this topic.

UPDATE:  How far we’ve come.

More Trouble for Google from the French

Originally posted 2010-12-04 23:55:51. Republished by Blog Post Promoter

Reuters “news service” reports that “Agence France Presse has sued Google Inc. (GOOG), alleging the Web search leader includes AFP’s photos, news headlines and stories on its news site without permission. ”

The French news service is seeking damages of at least $17.5 million and an order barring Google News from displaying AFP photographs, news headlines or story leads, according to the suit filed on Thursday in the U.S. District Court for the District of Columbia. . . .

AFP said it has informed Google that it is not authorized to use AFP’s copyrighted material as it does and has asked Google to cease and desist from infringing its copyrighted work. AFP alleged that Google has ignored such requests and as of the filing date of the lawsuit “continues in an unabated manner to violate AFP’s copyrights.”

Google is more than a search engine, it’s a dad-blamed litigation engine! While it’s hard to believe the allegation that it ignored communicatinos from AFP, if that turns out to be true here, it would be inexcusable.

But that is a distraction. Google’s epoch-making business and technology is shaking lots and lots of IP and other trees. I for one hope its business can survive making all this law for the rest of the world — win, lose or draw.

UPDATE: Settled, April 2007.

Jews for Jesus* v. free speech: update

Originally posted 2012-12-04 12:56:40. Republished by Blog Post Promoter

The troublesome “Jews for Jesus” blog is still around, after some people had the impression that perhaps Jews for Jesus, Inc. had been succesful in shutting it down. The J4J Whistleblower is still feeling kind of conspiratorial, writing:

Take your time to read through my previous blogs and the points raised. In one of my earlier blogs I pointed out that it takes time to sort through everything to realize what is going on. My previous post to this one looks at the actual text of Jews for Jesus’ lawsuit and points out what they really want. You’ll find this is in line with Susan Perlman’s comment that Jews for Jesus believes it has a right to how their organization will be represented on the internet. That explains why they are only using this blog as a stepping stone to have Google remove any blog with the name “jewsforjesus” in it. An astute observer on a legal blog pointed out that the likely target is www.exjewsforjesus.blogspot.com.

Harrumph. I couldn’t find that astute observer — Whistleblower is quite stingy with the hyperlinks for a blogger — but if that were true, it would be another blow inflicted on free speech by Jews for Jesus with the help of the courts. Quite ironic considering that this group has actually extended free speech protection in a number of decisions, including one in the U.S. Supreme Court, where its own speech was threatened.

But that sort of irony is already old and tired, isn’t it? It must be, because this story is being fairly well ignored — as the Jews for Jesus v. Brodsky case was — by the usual suspects in the free speech department whose ox, for some reason, doesn’t ever appear to be gored when Jews for Jesus is doing the goring. In 1998, Steve Brodsky’s requests for amicus submissions in the Third Circuit were blown off by both the New Jersey ACLU and the Electronic Freedom Foundation, without any real explanation, for example. Here too the EFF has been silent about this case, as have been the “copyfighters” at Corante.com. I don’t know why now, as I didn’t know why, then. Maybe if Steve Brodsky or the Whistleblower published pornography or scandalous charactures of Dick Cheney or were uploading music files the self-appointed guardians of free speech would have something to say about what’s going on here.

Yes, the old irony is old news. I guess it’s just as well, anyway, because in the area of free speech, now we have the all new irony!

Or is irony just not the right word for plain old cynicism? Well… don’t ask me!

*(Sour grapes warning! But if you can stand the taste, come on in; the dishing’s fine!)

UPDATE: Thanks to Dean for the link. I think that one may criticize my analysis above by suggesting that because of my own personal interest in this case, I am also guilty of the “whose ox is being gored?” syndrome. This may be true, but then I do not claim a comprehensive bailiwick, as the would-be guardians of free speech on the Internet do. I am just one lawyer who has had a few clients with interest in these matters. But I will acknowledge that the experience of representing Steve Brodsky against Jews for Jesus, Inc. and The National Debate against the New York Times has affected my own views, which formerly were biased in favor of trademark and copyright holders — that, and getting beaten up on daily basis for several months on the CYBERIA-L list, largely at the hands of Mike Godwin! So you know — we grow, we learn…

Adverference?

Originally posted 2009-01-22 13:31:48. Republished by Blog Post Promoter

"The Interloper" (Norman Rockwell)

"The Interloper" (Norman Rockwell)

Working from home today after a bruising few weeks at work (see yesterday’s post!), I finally figured out what was going on with banner ads on my Internet browsing.  It raises an interesting question about Internet-related copyright and trademark law.

We use a filtered Internet service at home.  This way we know that not only do our children not have access to or permission to use the Internet, but even if they “happen to” get to it anyway, the worst of the worst is not coming into our house.  This is good for the grownups too, of course.

I recently adjusted the filtering level on the service and by virtue of that change the filter now happens to block banner ads.  This I did not mind, because many such ads, especially on Yahoo! mail, are quite garish and often rather gross and, frankly, indecent.  After this change I also started seeing a filtering message in the place of familiar, and relatively high-class, banner ads on my favorite “big” blogs that feature ads, such as Instapundit. It was not a great aesthetic experience but I got used to it.

A little while later I had the jarring experience of realizing that ads for charity auctions on behalf of orthodox educational  institutions — including a client of mine! — and solicitations for fundraising on behalf of penurious young couples in Israel were appearing on that very same site, one of the most popular English-language blogs in the world!  Well, I would say Glenn Reynolds is pretty Jewish-friendly, to say the least, but this struck me as pretty odd.

instapundit-jewish-after-all

Once I could focus on the question, however, I realized what was going on:  My filtering service was reselling the filtered advertising real estate to advertisers interested in the orthodox Jewish Internet user market!

This seems to raise some interesting questions, doesn’t it?  Read More…

More on international law and the Web

Originally posted 2009-10-26 23:59:24. Republished by Blog Post Promoter

Instapundit reports:

YAHOO! HELPS TURN THE SCREWS:

According to Reporters Sans Frontieres (Reporters Without Borders), Information supplied by Yahoo! helped Chinese journalist Shi Tao get 10 years in prison

The text of the verdict in the case of journalist Shi Tao — sentenced in April to 10 years in prison for “divulging state secrets abroad” — shows that Yahoo! Holdings (Hong Kong) Ltd. provided China’s state security authorities with details that helped to identify and convict him. It reveals that the company provided the Chinese investigating organs with detailed information that apparently enabled them to link Shi’s personal e-mail account (on the Chinese Yahoo! service at yahoo.com.cn) and the specific message containing information treated as a “state secret” to the IP address of his computer. More details from RSF here.

Shi Tao was jailed because he e-mailed sensitive political information to be posted on dissident websites hosted outside China. His case is a cautionary tale to bloggers around the world: If you are publicizing information and views that your government doesn’t want exposed — even if you believe you have the right to do so under the Universal Declaration of Human Rights — companies like Yahoo! will not shield you from your government.

I don’t like this.

No, and who would? Collaboration in Communist repression by multinational web-based companies is not a new problem. But on the other hand — and with reference to this recent post here — what can we do about it? I’m not asking rhetorically. These companies are bound to follow national law wherever they do business. Do we say that the people of China are better off in the long run if Yahoo! and Google disengage, or if they comply as required? With China, I don’t believe there is an in-between option. If someone has enunciated one, I’d like to know.

Bloggers aren’t fair game in litigation just because you can

Originally posted 2011-04-11 00:41:06. Republished by Blog Post Promoter

There is really justice in this world, sometimes, reports David Ardia:

A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel.

We really blew this one, blogging wise.  But it could be worse: We could have been Shoemaker, who blew it lawyering wise:

Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .

Shoemaker has not offered a shred of evidence to support his speculations. . . .  [H]e issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.

Perhaps we are just so used to enduring abusive litigation tactics that judges just yawn at that we are jaded.  (Every time you complain it’s assumed both sides are equally guilty.)  That’s bad.

We used to spend a lot of time lawyering in New Hampshire, actually (doing discovery in a Southern District of New York case).  Must admit we miss that fresh air.

Google, Geico Good to Go

Originally posted 2014-03-14 10:41:00. Republished by Blog Post Promoter

Google and Geico have settled.

Anti-Sedition Acts begin their attack on the Internet

Originally posted 2014-09-05 10:55:51. Republished by Blog Post Promoter

Different River reports on the biggest threat to free speech ever — the McCain-Feingold Act and its state law copycats.  Is there any chance that the new and improved Supreme Court will save us from this not so petty tyranny?  Or will the present controversies over “money in the political process” (see here for a contrarian view, by the way) make things even worse?

Trademark: The tort of choice for censors

Originally posted 2009-10-20 23:46:20. Republished by Blog Post Promoter

Same old, same old we’ve been talking about since forever (via Glenn):

A posting over on the Big Government blog details recent attempts by the American Federation of Teachers (AFT) to shut down the website at AFTExposed.com (which, as you might guess from the name, doesn’t have very nice things to say about the AFT). The AFT’s General Counsel has sent the operators of the offending website a cease-and-desist letter, demanding “immediate cessation of use of the domain AFTexposed.com or any other variant that includes the acronym AFT.” The asserted grounds: (a) trademark infringement (that use of the AFT acronym is “likely to cause confusion, or to cause mistake, or to deceive”), and (b) violation of ICANN’s Uniform Dispute Resolution Policy (on the grounds that the AFTexposed.com name is “confusingly similar” to AFT’s trademark and was “registered in bad faith.”).

It’s pretty much pure unadulterated nonsense, little more than an attempt by the AFT to silence a critical voice, and I hope that the AFTExposed.com folks don’t cave in to the pressure. The trademark claim is very, very weak; consumers are pretty stupid sometimes, but they are not nearly stupid enough to be confused into thinking that a site called “AFTexposed,” which has as [its] tagline prominently displayed at the top of the site “The website the AFT doesn’t want you to see,” is somehow affiliated with the AFT.

Boomerang_(PSF)Well forget about the tagline; it’s too late once you get to the site — there’s already been an incidence of the dreaded “initial interest confusion” by then!  But David Post is right:  In this case, the domain name itself negates any possibility of that, and you’ve got nothing but fair, fair use for a defense.

That won’t stop a wealthy plaintiff, though — and who’s wealthier these days than public employee unions? — from suing, however.  After all, there’s pretty much never fee-shifting in defendants’ direction under the Lanham Act, although the statute does provide for it (or for that matter for frivolous copyright claims)  But good luck on that.

So trademark infringement remains the legal claim of choice for those seeking to shut down smaller, poorer message opponents.  File yours today!

UPDATE:  Johnny may not be able to read, but the AFT knows how to interpret blog traffic logs.  They’ve backed down.

Anonymous penumbras; submerged emanations

Originally posted 2011-02-15 13:30:04. Republished by Blog Post Promoter

Glenn Reynolds links-n-thinks:

ESTHER DYSON: Internet anonymity is like abortion. “I’m pro choice, but I think abortion is an unfortunate thing. I think the same thing about anonymity: Everybody should have the right to it, but it’s not something one wants to encourage.”

Maybe that’s why we’re not-so-pro-choice here.  (We happen to reject the nomenclature anyway so don’t get us started.)  Not “everybody” should have “the right to” Internet anonymity.  We’ve long objected to the anonymity premise, because not nearly enough weight is assigned its potential costs in a modern communication regime, as opposed to in the pre-Internet era.

That doesn’t mean we don’t appreciate Internet anonymity’s value in certain circumstances.  But, like abortion, we should distinguish between cases where a departure from a general rule of prohibition is justified.  Let’s don’t posit a dubious “right” when at most we mean a desideratum and, more likely, we mean something regarding which reasonable people can disagree — anonymously or otherwise.