Tag Archives: Free Expression

Louisiana’s lawyers’ guild

Originally posted 2014-08-07 16:31:46. Republished by Blog Post Promoter

Hudson County Superior CourtLast year we screamed and shouted along with a bunch of other people and prevented New York from passing “ethics” rules that would have essentially shut down New York lawyers’ blogs by regulating them out of existence.  Unfortunately all the noise didn’t make it down to Louisiana, which did go ahead and pass a similar set of restrictions under the guise of “consumer protection” but which should be understood as an attempt by established bar-association types to keep the bogeyman of blog- and Internet-savvy lawyers away from their cozy courtroom concessions.

Now a Louisiana law firm is taking on the regulations and has filed suit in federal court. Look, here’s their press release — we’re allowed to copy that (but links added by LOC):

This morning, Wolfe Law Group, L.L.C. filed a suit in federal court challenging the constitutionality of Louisiana’s new rules governing lawyer advertising. The lawsuit seeks to prevent the enforcement of Louisiana’s new advertising rules, scheduled to take effect on April 1, 2009. The Louisiana advertising rules are some of the most aggressive in the nation, and Wolfe Law Group’s suit argues that the rules go too far and restrict an attorney’s right to freely speak about its trade.

Wolfe Law Group argues that the new rules effectively prevent a lawyer from advertising its services through online mediums, such as Google’s AdWords, as the rules also restrict an attorney’s ability to engage in discourse with colleagues, clients and the public through online bulletin boards, blogs, twitter, and other online communities and forums. Read More…

The PROTECT IP Act: We’re all infringers now

Originally posted 2011-07-07 20:39:24. Republished by Blog Post Promoter

Guns of Battleship New JerseyGlenn Reynolds links to this story:  Dozens of law professors: PROTECT IP Act is unconstitutional:

An ideologically diverse group of 90 law professors has signed a letter opposing the PROTECT IP Act, the Hollywood-backed copyright enforcement/Internet blacklist legislation now working its way through Congress. The letter argues that its domain-blocking provisions amount to Internet censorship that is barred by the First Amendment.

Jointly authored by Mark Lemley, David Levine, and David Post, the letter is signed not only by prominent liberals like Larry Lessig and Yochai Benkler, but also by libertarians like Post and Glenn “Instapundit”Reynolds.

“The Act would allow courts to order any Internet service to stop recognizing [a] site even on a temporary restraining order… issued the same day the complaint is filed,” they write. Such a restraining order, which they describe as “the equivalent of an Internet death penalty,” raises serious constitutional questions.

Yep.  I argued much the same thing here a while ago, and I’m only a former law professor. (Ahem… adjunct.)

Anyone who reads this blog regularly knows that the encroachment of Big IP on the right of free expression — commercial or otherwise — has been my central theme.  And within that theme, I have consistently pointed out that the existing legal rules, especially in copyright, are already hopelessly skewed wrong.

Online counterfeiting and copyright infringement are serious problems, but this new proposed law is a terrible way to try to solve them.  Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property.  But if Big IP hasn’t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one — if Big IP doesn’t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going — then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

War Is Peace; Freedom is Slavery; Ignorance is Strength

Originally posted 2014-11-26 12:58:03. Republished by Blog Post Promoter

And free speech is a form of negotiable intellectual property, right?

Maybe I can give up the blog. There is no percentage in clever commentary when the claimants provide the self-parody.  Credit to Instapundit.

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.

Update on speech regulation

Originally posted 2006-03-26 22:16:21. Republished by Blog Post Promoter

Wired News reports:

The Federal Election Commission proposed new rules Friday that would leave almost all internet political activity unregulated. The proposal would, however, require paid advertisements for federal candidates on the internet to be paid for with money regulated by federal campaign law.

We’ve addressed this creeping reduction in freedom of speech more than once.

UPDATE:  A good (short term) development.

SOPA box

Originally posted 2012-01-18 15:32:45. Republished by Blog Post Promoter

Lawyer's break, Herald SquareYou don’t need a link to find out what’s going with the SOPA “Blackout,” or all that other stuff.  It’s all over the place, beyond those with a special interest in intellectual property.

Real news over an IP issue?  Not quite.

Rather, the news and the attention arise from the fact that the threatened power-grab that SOPA represents goes far beyond IP, or “enforcement,” or “brands,” or even “piracy.”

Oh, those are all real things, real concepts.  But their meaning has become so distorted in the public and political debate and spin that they get scare-quotes here today.  It is precisely by turning piracy into a mission-critical bogey-man that the strong-IP advocates have perhaps, for once, overplayed their hands.

A few years ago “civil libertarians” told us our liberties were at an end because of the Homeland Security Act and related policy changes arising from terrorist threats.  Those protests were mainly sincere, but they turned out to be overstated.  For most of us, life in America is pretty much like it was before, except mainly at the airport.

If, however, there had been a serious and widespread degradation in the quality and quantity of our civil rights because of the “new world” that the September 11th attacks, we would have something serious to discuss.  In fact it is still something serious to discuss.  How much are we, indeed, prepared to give of our privacy, our freedom of movement, our personal space, for what may or may not be enhanced physical safety?  Important, fundamental questions.

But I’ll be damned if I’m going to stand by while my rights, or those of my clients, are sold down the river to protect the franchises of Sony, Coach and Universal.  And that’s what makes this more than an “IP” issue, and why it’s news, and why it matters.

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.

Mark their words

Originally posted 2013-08-20 13:17:59. Republished by Blog Post Promoter

Stop Islamization of America Logo

Very incorrect.

Jihad Watch and Atlas Shrugs — two websites run by friends of mine who have very clearly articulated views about Islamic radicalism, and controversial ones about what to do about it — are busy, and then some, with this story:

A federal agency has rejected a request for a trademark by the organization “Stop Islamization of America” because its name may “disparage” Muslims.

The group launched by Atlas Shrugs blogger Pamela Geller and Robert Spencer of Jihad Watch has drawn national attention for its bus-sign campaign offering support for Muslims who want to leave Islam. SIOA currently is organizing opposition to plans for an Islamic mosque at Ground Zero in New York City.

Now the group reports the U.S. government has refused its request for a trademark designation for its name.

The government response, posted on the site, states, “The applied-for mark refers to Muslims in a disparaging manner because by definition it implies that conversion or conformity to Islam is something that needs to be stopped or caused to cease.

“The proposed mark further disparages Muslims because, taking into account the nature of the services (‘providing information regarding understanding and preventing terrorism’), it implies that Islam is associated with violence and threats,” the government agency said.

This is the application; the Office Action is here.

Forget the politics of this.  Besides the fact that I have no idea why these two thought a word trademark (as opposed to protection for the logo) was needed here — being dubious, as I am in general, to the extension of trademark protection to words people say to mean things in English — I’m not too surprised about the outcome of their application on the “scandalous or offensive” denial.

This is because, as I’ve written before (and of course I’m in good company), while the PTO’s criteria for “scandalous and offensive” denials under Section 2(a) of the Trademark Act are a conceptual and a practical mess, the outcome’s certainly predictable when it comes to racialethnic or other “protected class” categories:  Only the politically correct need apply.

That’s a “criterion” Pam and Bob are not going to meet!

Predictable or not, though, that “standard” doesn’t have much to recommend it as either law or policy.  But I can’t blame these two bloggers for not knowing this when they dove head-in to their trademark registration application the way they do with everything else in life:  With passion and abandon.  They know more than I’ll ever forget (maybe more than I want to remember; certainly more than others want to even think) about radical Islam.

But what could they do if they just didn’t know a decent radical trademark lawyer?

Ninth Circuit. Keywords. Trademarks. Hike!

Originally posted 2011-03-11 17:23:32. Republished by Blog Post Promoter

Here’s a roundup of what other people are saying about the decision in Network Automation, Inc. v. Advanced System Concepts, Inc. involving keyword advertising using other folks’ trademarks (a form of the dreaded “diversion“!) and perhaps implicating secondary liability for trademark infringement:

Well, that’s almost all the roundup you need!  In fact, here’s the “takeaway” of Eric’s post:

9th Circuit court building with sign

We’ve had surprisingly few appellate decisions involving keyword advertising generally, and almost none involving trademark owners’ lawsuits against keyword advertisers (as opposed to suing keyword sellers like search engines). On that basis alone, this ruling is important. The case is also remarkable because the opinion, written by highly regarded Judge Wardlaw, gets so many things right.
Perhaps that sounds like damning with faint praise, but the reality is that the Ninth Circuit’s Internet trademark law has become horribly tortured due to deeply flawed opinions like the 1999 Brookfield case. This opinion deftly cuts through the accumulated doctrinal cruft and lays a nice foundation for future Internet trademark jurisprudence.
The only sour note is that the opinion makes some unnecessary and empirically shaky “presumptions”–exactly the kind of unfortunate appellate court fact-finding that got the Ninth Circuit into trouble into the first place. Still, given how this opinion could have turned out, I still give this opinion very high marks.
Yeah, Eric is great on that “presumption” stuff — and how badly judges wing them when it comes to trademark.  And Rebecca?

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