Tag Archives: Internet Law

Anti-Sedition Acts begin their attack on the Internet

Originally posted 2006-01-16 23:17:14. 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?

Death By Lawyer

Originally posted 2007-06-13 20:42:40. Republished by Blog Post Promoter

They make that sound like a bad thing. Now, I wouldn’t agree with each and every little thing Stan Schroeder, the author of this article on Mashable, says — such as this about MP3.com of blessed memory:

In 2000, the owners started a new service – My.MP3.com – which enabled users to register CDs they legally own and make online copies on MP3.com’s servers. Although this about as legit as you can get, the record industry managed to sue them (!) and win (!?), and MP3.com had to settle the lawsuit, paying 200 million dollars in damages, which turned out to be a blow from which they would never recover.

“About as legit as you can get”? Yes, well, that’s what Cooley Godward thought, too. Judge Jed Rakoff didn’t see it that way, and — in his inimitable matter — he didn’t suggest there was a lot of doubt about the right answer, either. We never got a second opinion (i.e., one that mattered from an appellate court), so just don’t come away from this article with the wrong impression.

Still and all, a good piece, and food for thought. Hat tip to Overlawyered.

Louisiana’s lawyers’ guild

Originally posted 2008-11-26 00:28:26. Republished by Blog Post Promoter

Last 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.

The law firm that practices in the area of construction law out of its offices in New Orleans, Louisiana and Seattle, Washington, is actively engaged in the Internet marketplace, posting daily on sites like wolfelaw.com, Twitter, Facebook, Avvo.com, and similar Web 2.0 services.

The suit argues that Louisiana’s new advertising rules would subject each of the firm’s posts to an “evaluation” by the Louisiana State Bar Association, with an evaluation fee of $175.00.

According to a letter sent to Wolfe Law Group’s colleagues and clients, “The new rules would stifle our firm’s ability to continue talking with you about the legal profession, the construction industry and the evolution of construction law across the nation.”

To continue commenting upon the progress of the action, the firm launched a blog titled “Blogging is Speaking,” at the Web address http://www.protectspeech.com.

Get that?  According to this, everything posted online by a Louisiana lawyer — and God help a Web 2.0-oriented shop such as Wolfe or, say, LIKELIHOOD OF CONFUSION® — has to be run past a Louisiana oldlaw censor at $175 a pop!  Even assuming it isn’t bounced, that’s a lot of pops per pixel.  It’s prior restraint on the First Amendment axis, a restraint of trade (sorry, it’s a profession, but in economic terms a trade) on the antitrust axis, and just plain piggy on the obnoxious axis.

This effort by the Wolfe Law Group deserves the support of blogging and online-networking lawyers, their clients, their prospective clients… everyone who isn’t getting a cut of that $175 per, basically.

UPDATE:  Kevin O’Keefe thinks it’s a tempest in a teapot:  “Lawyers get paid to be creative”!  (Via Overlawyered.)

MORE:  Here’s the preliminary injunction amicus brief filed by Public Citizen.

Some intel on INTEL®

Originally posted 2010-04-07 03:15:14. Republished by Blog Post Promoter

CIA Headquarters - intel inside

There's intel inside.

BUMPED from January 1, 2010 and UPDATED due to decision (scroll to the bottom for the stunning conclusion):

Had you heard about this one from Mike Masnick?

Chip giant Intel has a bit of a reputation for being a trademark bully at times, threatening or suing many companies just for having “intel” in their name somewhere — including a travel agency and a jeans company. Now, before anyone brings it up, yes, as a trademark holder the law requires you to enforce your trademark against infringement, lest it become considered “generic” (such as xerox machines, kleenex tissues, aspirin and other brand names that became generic).  But, the key in all of those generic situations was that the use was applied to things that directly competed with the original brand’s products. People referred to other tissues as “kleenex” and it stuck. Intel’s lawyers seem to go out of their way to find potential infringement where there obviously is none at all.

Paul Alan Levy alerts us to the latest such case, where Intel has sued the operators of the Mexico Watch newsletter, because its domain is LatinIntel.com. Of course, the reason for that is that it is using the commonly accepted abbreviation of “intel” as short for “intelligence.” It’s common shorthand, especially within government circles, to refer to gathered intelligence as simply “intel.” . . .

More importantly, no one is going to look at LatinIntel.com and confuse it for the world’s largest computer chip maker. No one is going to look at that site and wonder how come they can’t order a Centrino processor. There’s simply no confusion at all. . . .

Well, when I first read that post, I thought Mike may just be on to something there. Here’s how I see it now:

UPDATE:  Intel loses (don’t get excited about the “decision” itself however!)

Yay us!

Glory and gratitude to my co-counsel Colby Springer who nailed it at oral argument.

MORE:  Is less.

LIKELIHOOD OF CONFUSION® in 2006: “Is Google a utility?”

Originally posted 2009-08-12 23:59:27. Republished by Blog Post Promoter

I posted this in August, 2006. I don’t think the question has been answered yet:

Utility

We wrote about the Kinderstart lawsuit against Google, claiming an unfairly depressed Google search rank, last March. There have been further, very interesting, developments, exemplified by this this colloquy reported by Dawn Kawamoto:

David Kramer, a Wilson Sonsini attorney also representing Google, said the search giant’s PageRank system is subjective, using a combination of reviews into whether a Web site is adhering to its guidelines and is worth a user’s time to view.

“Google is constantly evaluating Web sites for standards and quality, which is entirely subjective,” Kramer said.

The judge probed Kramer on the topic of whether Google engages in misleading behavior, and whether it uses objective criteria to evaluate sites–rather than solely relying on subjective reasoning.

“What if, say, Google says it uses facts one through 10 to evaluate a site, but actually uses number 11 to decide its rank. Isn’t that misleading?” the judge asked.

Kramer, however, said Google readers understand that the site’s ranking system is subjective and based on Google’s opinion about whether a site is worth viewing.

A repeated theme in the article is that Google keeps urging that it has “no obligation” to “promote its rivals.” Which it certainly doesn’t seem as if it does. On the other hand, once a company becomes a sort of common carrier — I am pushing this here — is there really no point at which all purchasers of its services should be treated equally? (Very un-free-markety of me to suggest this, but I’m the conservative blogger who’s not a libertarian.) Avoiding a ruling that in any way characterizes Google search results as commodities is also evidently on the mind of the Google attorney who’s insisting, despite the obvious risk of doing so, that Google results, in some cases, are subjective, not objective.

And what is that risk? Read More…

Section 230 attacks get nowhere, but forests still shrink

Originally posted 2006-11-19 20:52:56. Republished by Blog Post Promoter

A court seems, according to this synopsis by Eric Goldman, to lay it out straight in dismissing a case brought in California against Craigslist. The claims was that the classified-ads site should be held responsible for “discriminatory” housing listings submitting submitted by third parties and posted on Craigslist with no meaningful involvement of the website operators. This is precisely the activity 47 U.S.C. 230 is meant to exempt from liability.

Eric has taken us here before, and he’s rather tired of the journey himself. First, the good news (I’ve added links for non-experts on this statute, like me):

[I]n a single paragraph . . . the judge reinforces the case’s complete lack of merit, succinctly dismissing the claim on its pleadings. The court says that (1) websites are [Interactive Computer Service] providers, (2) the classified ads on Craigslist originate from “another information content provider,” and (3) the Fair Housing Act statutory language uses the verb “publish” as one of the restricted activities and the plaintiffs characterize Craigslist’s behavior as “publishing” in their pleadings, so the plaintiffs are trying to treat Craigslist as a publisher of that third party content. All of the elements of a successful 230 defense are satisfied, so just like that–boom, boom, boom–case over.

Unfortunately, says Eric, that analysis took place on page 26 of 27. Why?

But…what about those other 26 pages? Unfortunately, the judge joined the burgeoning trend of adding dicta suggesting limits to 230’s parameters–other prominent examples of this trend include the 7th Circuit Doe v. GTE case and two recent 11th Circuit cases.  …

I really wish that judges would reconsider indulging themselves through 230-bashing dicta. All it does is encourages more plaintiffs to bring futile and wasteful lawsuits that impose real costs on defendants (like this case–which was inspired partially by the dicta from the Doe v. GTE case).

But then, what would all those law clerks do all days with their law-review sharpened pencils, Eric?

UPDATE:  More from Evan Brown.

He’s got the key

Originally posted 2009-12-01 17:06:25. Republished by Blog Post Promoter

Worthy of inclusion

Worthy of inclusion

Eric Goldman, author of one of the bona-fide-deserving, regularly updatedABA-Blawg-100-listed and actually fairly indispensable Technology & Marketing Law Blog updates us on a beat I’ve written on a whole bunch but given up hope on following comprehensively.  It is, however, a topic that anyone involved in trademark use on the Internet must stay on top of:  Keyword advertising litigation.

Here’s the latest, a report on a case called Morningware, Inc. v. Hearthware Home Products, Inc., 2009 WL 3878251 (N.D. Ill. Nov. 16, 2009), which involves a fairly novel question of what happens when one advertiser uses the phrase “Why buy an imitation?” in the small copy space Google ads allow you, along with the brand name of the competitor — suggesting the competitor is imitating the advertiser.

Eric walks you through the opinion, which he acknowledges is unremarkable in many respects.  But these observations are the ones I was particularly motivated to cut and paste here:

The advertiser also argued for a 12(b)(6) motion to dismiss on lack of consumer confusion grounds. While I understand the advertiser’s hope, I think it’s hard to convince a judge that the trademark owner failed to allege sufficient confusion in the complaint. This is especially true when plaintiffs invoke the stupid “initial interest confusion” doctrine, which has no doctrinal contours and therefore is simply impossible for defendants to refute at the motion-to-dismiss stage (obligatory cite to my anti-initial interest confusion rant from 2005). Citing to the abysmal 2002 Promatek case, the court says the plaintiff alleged enough initial interest confusion to survive the 12(b)(6).

Thanks, as ever, on that point Eric!  (Obligatory cite to my anti-initial interest confusion rant from 2003 here.)   Actually there were two points — I just get excited whenever he starts talking about initial interest confusion.  The first point is a good one, too:  Judges really don’t like to dismiss a trademark infringement complaint on 12(b)(6) grounds.*  Really good judges do, but they unfortunately are not in abundance in as many times and places as would be wished.

This paragraph is worth repeating too, as a summation of “what’s going on” this area of litigation:

I keep getting calls from reporters operating under the misimpression that trademark owner-vs.-search engine keyword advertising lawsuits are more common than trademark owner-vs.-keyword advertiser lawsuits. While the lawsuits against search engines certainly get way more press coverage, in reality they are relatively rare. I don’t have an exact count of pending lawsuits, but only 10 immediately come to my mind (9 against Google and the AA v. Yahoo case). In contrast, trademark owner-vs.-advertiser lawsuits are so numerous that I don’t blog on every complaint I see, and most trademark owners are wise enough to leave the search engines out of their litigation.

There you have it.   Reporters, keep calling Eric Goldman — he knows these things!  That’s why I ask him for free answers, too.RDC BIG BEARD

Defendants, on the other hand — “who you gonna call”?


*  The awfulness of this fact on legal, policy and justice grounds cannot be contained in this post, but is essentially the topic of about one fifth of the LIKELIHOOD OF CONFUSION® blog.

Diversion, yes, but no

Originally posted 2009-11-26 08:30:51. Republished by Blog Post Promoter

Some people have all the luck in the Eastern District of New York.  Whereas me — I think I’ve got it coming to me right down the middle, and then it seems to get, I don’t know — diverted from me!

So some lawyers get assigned judges in the Eastern District of New York whose ideas about trademark law and, well, the Federal Rules of Evidence — and, actually, the Federal Rules of Civil Procedure have, well, um . . . okay, I won’t say.  But in their courtrooms this is the kind of thing happens to “unauthorized resellers,” regardless of the actual “law” stuff.

RDC BIG BEARDI know, regular readers are sick of hearing about the S&L case, but I’m just framing the story here, okay?  Stick with me.

And then there are other judges in that same court who actually not only get it, but really, really, really get it:  There’s no such thing as “diversion” of authentic, untainted merchandise by “unauthorized” resale on the Internet.  Whether or not the manufacuter of a product thinks you need a whole two years of community college or that certificate from beauty school to slather on hair goop or tanning sludge, that preference does not “run with” the over-hyped blech they sell.

So — still setting the stage here, stay with me! — Judge Leonard Wexler, in 2007, went this far to make that point, as reported here exactly two year agos from tomorrow:

L’Oréal maintains that to keep the value, integrity and status of the products, they are supposed to be sold only by company-trained professionals in fashionable salons. Matrix alone “has been the number one professional hair brand on the market, with an estimated 16 percent market share,” L’Oréal said in court papers.

Quality King and Pro’s Choice, however, were obtaining the products in violation of the injunction by buying them, or, as it is called, diverting them, from middlemen and reselling them to nonqualified dealers, L’Oréal contended.

Diverting attention

Diverting attention

In his opinion, Wexler declined to enforce the old injunction, in effect, throwing out L’Oréal’s case against the two companies.

The judge said that if L’Oréal wanted seriously “to stop diversion of Matrix products,” it could terminate those of its distributors who are the sources of the diverted products.

He actually declined to enforce the old injunction, did Judge Wexler, because it would have actually been, well, wrong to!  Because of the law stuff.

Isn’t that enough mazal for Quality King?  Can’t some other lawyers in other courtrooms in that District have some of that good fortune?

No!  Evidently, on appeal of the earlier decision, the Second Circuit affirmed his vacatur (cancellation) of the injunction going forward, but remanded for further determination of whether the injunction should be not only — not “only”! — vacated, but also “terminated,” i.e., retroactively time-traveled into non-ever-existence.

So once more comes Matrix, the plaintiff, and with them this time big guns from the collossal Weil Gotshal, a real New York law firm this time.  So, was it a good idea to spend a good 50% more on fees (not to mention their markup on donuts!) to make the same arguments? Read More…

Google Gets it Right

Originally posted 2005-08-04 18:30:32. Republished by Blog Post Promoter

Perfect discrimination is every seller’s dream. The Internet at once promises to make that dream reality and yet provides consumers with the range of choice and potential transparency of the sell side that can maximize their options as well. From a microeconomic point of view, it’s a fascinating dynamic. In this online Wired article, “Media Hack” Adam L. Penenberg explains how Google is approaching perfect discrimination in the advertising business — and is only just scratching the surface.

Libel in the blogosphere

Originally posted 2006-05-05 11:49:54. Republished by Blog Post Promoter

Glenn Reynolds wonders aloud whether the Maine blogger dustup (UPDATE: suit withdrawn!) will generate some interest in his new “libel in the blogosphere” article. Well, what is LIKELIHOOD OF CONFUSION if not an obsequious devotee of Instapundit, who has been known to link here on a frequency akin to when we change the clocks?

I haven’t read the piece yet, but I will. The fact is that as an Internet law icon myself (that is typed with appropriate irony), I get a lot of inquiries on this topic (besides my pro bono work with the Media Bloggers Association on cases like the Maine situation). I anticipate that his bottom line will be the same one I tell 99% of prospective defamation clients:

  1. You haven’t suffered, and certainly can’t prove, damages.
  2. You’re highly unlikely to meet the legal standards for defamation, especially since (a) truth is a complete defense to a defamation claim and (b) statements of opinion (which is read very broadly) are never defamation, which requires a false assertion of what purports to be fact.
  3. You can’t afford litigation, and no, you’re not entitled to attorneys’ fees in the unlikely event that you do win.
  4. Your lawsuit will mainly serve to magnify “defamatory” statements that otherwise are little more than drops in the ocean — if it involves the Internet, immensely so.

But then, Prof. Reynolds has footnotes. And a gazillion readers. But I have [used to have] polka dots along the margins!

Jews for Jesus v. Google and Brodsky – update and analysis

Originally posted 2006-01-22 12:59:35. Republished by Blog Post Promoter

Jews for Jesus

I was on a panel called “Trademark Rights vs. Free Speech” at the Fall 2000 INTA Trademarks in Cyberspace Conference with Marty Schwimmer and David Bernstein. (Five years later I’m still glowing from the reflected brilliance!) The moderator was IP superstar Brendan O’Rourke, who cruelly, on-the-record, and correctly reminded me, “Ron, you lost the Jews for Jesus case, okay? Okay?” Yeah, well, okay. But that doesn’t mean the next guy–in this case, Google–has to! The “Jews for Jesus Whistle Blower” writes, at his Jews for Jesus blog:

Google has a few more days to respond to Jews for Jesus’ lawsuit over the rights to a blog. I bet Jews for Jesus is praying ferverently (and keeping their collective fingers crossed) that Google will give in. What is the likelihood that Google will set a precedent that all anyone has to do is sue Google and they’ll give in? Seems to me that Google is principled. And if they are willing to defend themselves against the government, there’s a good chance they’ll defend themselves against Jews for Jesus.

If Google doesn’t give in, will Jews for Jesus wilt? How much money do they have to pursue the control of a simple blog?

WB, they have plenty of money, and, as you cannily point out, they’re using this litigation to raise more. Jews for Jesus claimed (off the record) during the Brodsky litigation to have raised more in sympathetic donations than they spent on Thelen Reid’s legal fees. We’ll never know if that was true, but it’s food for thought.

As far as the “other side” went, although Steve Brodsky was the sole defendant and there was nothing but the most casual (well, and virtual) link between him and Rabbi Toviah Singer, certainly the two were aligned sympathetically. Rabbi Singer later told me that as a result of the controversy and the traffic that was generated as a result of the publicity for his website, a number of Messianic Jews (i.e., Christians with gefilte fish) returned to the Jewish fold. Maybe he was able to raise a dollar or too himself.

It is fair enough to say that the litigation was more helpful for J4J than it was for either Steve Brodsky, Rabbi singer or anti-J4J missionaries. The real loser, of course, was the law of trademark infringement, which still has not fully recovered. The most egregious aspect of J4J’s arguments on this point (as opposed to the even worse arguments–such as the cooked up “commercial use”–in the opinion) is the very premise that there is, with respect to these website cases, anything even approximating LIKELIHOOD OF CONFUSION.

As we put it in the Third Circuit brief which, among others, future Supreme Court justice Samuel Alito by all indications did not read (although he was on the panel that rubber-stamped the District Court decision with one sentence of affirmation):

Liability under the Lanham Act requires a showing, inter alia, of likelihood of confusion as to source. Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1228 (3d Cir. 1978). But, appellee has submitted no admissible proof to support a finding that confusion is likely.
. . .

[I]t takes virtually no time for even self-described “unsophisticated” users to quickly realize they are at Mr. Brodsky’s site, not that of appellee. The honesty of the non-confusing message on Mr. Brodsky’s website is in stark contrast to the defendant’s website in Planned Parenthood:

Because the words on the top of the page load first, the user is first greeted solely with the “Welcome to the Planned Parenthood Page!” It is highly likely that an Internet user will still believe that she has found plaintiff’s web site at that point.

42 U.S.P.Q.2d at 1438. That kind of confusion is simply impossible in the case of Mr. Brodsky’s website . . . In response to this argument, the District Court found that an individual may be a sophisticated consumer of the Internet but may be an unsophisticated consumer of information about religious organizations. Such a user may find his or her way to the Defendant Internet site and then be confused; the Defendant Internet site advocates views antithetical to those of the Plaintiff Organization.

The last two clauses in the excerpt above constitute a non-sequitur. They also make no sense in the context of the actual website at issue, which explicitly states its opposition to “the Jews for Jesus cult” and disclaims any affiliation with appellee. Concluding that Mr. Brodsky is not part of a Jews for Jesus organization does not require any particular “sophistication.” It only requires the ability to read.

In fact, the courts routinely define “sophistication” in much less “sophisticated” terms than did the court below, where a simple grasp of the obvious is all that is required to negate confusion. Thus, in Girls Scouts v. Personality Posters Mfg. Co., 304 F. Supp. 1228, 1231 (S.D.N.Y. 1969), the court ruled that “rational analysis” precluded confusion about whether the Girl Scouts were the source of a poster depicting a pregnant girl in the well-known uniform of the Girl Scouts appearing with the caveat “BE PREPARED.” Similarly, in Stop the Olympic Prison v. United States Olympic Committee, supra, 489 F. Supp. at 1123, a poster reading “Stop the Olympic Prison” was held not to violate the trademark of the United States Olympic Committee. The court reasoned as follows:

On the basis of its own examination of the poster, the Court finds it extremely unlikely that anyone would presume it to have been produced, sponsored or in any way authorized by the U.S.O.C. While at a fleeting glance, someone might conceivably mistake it for a poster advertising the Olympics, nobody could conceivably retain such a misconception long enough to do any harm: for example, there is no danger that anyone would purchase or display it as such.

Id. . . .  As in Girl Scouts and Olympic Prison, no rational person could believe that Mr. Brodsky’s message was in any way affiliated with appellee. The District Court nonetheless held that confusion is likely because Mr. Brodsky’s site is “related” to that of appellee [and that the use of the trademark was in fact more, not less, protected for this reason, on fair use grounds!-- RDC]. The court below inexplicably rejected the inescapable conclusion that consumers can dispel any confusion if they merely trouble to read Mr. Brodsky’s message, the way Chellathurai, Kalstein and Sanchez did.

If you’re still with me, here’s a last nail from the Third Circuit reply brief:

In defending the District Court’s likelihood of confusion analysis, appellee comes again to its prized exhibits: the three “confusion affidavits” of Chellathurai, Kalstein and Sanchez. There is little left to debate regarding whether these affidavits demonstrate confusion, or, more likely, the absence of confusion. This Court will simply have to read them. A076, A080, A257. Appellee suggests that the District Court found “initial interest confusion” here. Opp. Brief. at 37. But this doctrine is mentioned nowhere in the opinion below. Developed in a sales context, it has been applied only where “a potential purchaser is initially confused [such that] the [senior seller] may be precluded from further consideration.”

Weiss Assoc., Inc. v. HRL Assoc., Inc., 902 F.2d 1546 (Fed. Cir. 1990) (emphasis added). Thus it does not apply here. In fact, in Girl Scouts the Southern District of New York rejected transient confusion as proof of trademark harm in a social-commentary context:

Even if we hypothesize that some viewers might at first believe that the subject of the poster is actually a pregnant Girl Scout, it is highly doubtful that any such impression would be more than momentary or that any viewer would conclude that the Girl Scouts had printed or distributed the poster.

304 F. Supp. at 1231. As the Girl Scouts court recognized, ephemeral moments of confusion that do not threaten to divert sales are not evidence of actionable harm under the Lanham Act. Real harm must be shown to overcome the constitutional protection of free speech:

No evidence is found anywhere in the record before the court that the poster has to date damaged the plaintiff in any way. No facts are presented to show that contributions to the organization have fallen off, that members have resigned, that recruits have failed to join, that sales . . . have decreased, or that voluntary workers have dissociated themselves or declined to support the honorable work of the organization.

Id. at 1235. Similarly, there is no evidence in this case of any actionable or even discernible harm that appellee has suffered as a result of Mr. Brodsky’s website. Even the court below admitted that the publicity surrounding this dispute was, far from harmful, undoubtedly a boon for appellee. A436-37. And all three supposedly confused affiants found their way to appellee’s website, undeterred by Steven Brodsky and more zealous than ever in their devotion to appellee. In fact, their reports to appellee negate the suggestion of confusion; again from Girl Scouts:

[I]ndignation is not confusion. To the contrary, the indignation of those who [reported the offending use] would appear to make it clear that they feel that the Girl Scouts are being unfairly put upon, not that the Girl Scouts are the manufacturers or distributors of the object of indignation.

Id. at 1231. This passage perfectly describes the three “confusion” affidavits here: indignant, yes, but certain that appellee was not the source of Mr. Brodsky’s website. They were not confused.

They were not confused. Unfortunately, a lot of people were, and are–about what the Lanham Act is, and is not, meant to protect, and don’t get this key point:  Indignation is not confusion. We can survive that, as long as too many of them aren’t judges.

It’s a good bet, as Whistle Blower suggests, that Google will get a better hearing than lone idealist Steve Brodsky did in his case, and not just because it is better heeled. (My old firm, Pitney Hardin, handled the Brodsky litigation pro bono.) And the issues are somewhat different.

Still, Whistle Blower says that the Reverend David Brickner, the pleasant, non-Jewish head of Jews for Jesus, thinks this is the second coming of the Brodsky case. Jews for Jesus attorneys Thelen Reid probably hope so (though perhaps not every Thelen Ried partner is singing from the same sheet of music on the topic of God and intellectual property). WB beleives that from a legal point of view this seems like somewhat wishful thinking. (Not to mention the fact that this case was filed in the federal court in New York, not New Jersey, and that Judge Lechner of the former court has retired and moved onto bigger and better things.)

Then again, the Rev. Brickner’s statement is hardly the first instance of wishful confusion to eminate from the the precincts of Jews for Jesus–not hardly.

Little people, big lawsuits

Originally posted 2008-01-10 11:18:01. Republished by Blog Post Promoter

The Washington Post reports on legal action taken by ordinary folk against Big IP Content Generating institutions for lifting and using “user-generated” content, i.e., pictures and stuff uploaded onto blogs and galleries by regular people. The corporations are doing this, evidently, in the quest for authentic authenticity. There will be spanking.

This is an odd quote, though, from Lawrence Lessig:

What’s noteworthy in each of these cases, Lessig says, “is that bloggers, a community typically associated with piracy, are rallying in support of copyright.”

Is that a fair “association”? Hat tip to erstwhile blogger “Penny Wit.”