Tag Archives: Overreaching

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…

The color purple

Originally posted 2015-06-19 15:13:46. Republished by Blog Post Promoter

Cadbury-PurpleCadbury is purple in the face over not being able to secure the wordlwide exclusive rights to the use of the color purple in association with the sale of chocolate — even as against an Australian company that’s been using the two together for almost a century:

Cadbury tells me it is “vigorously appealing” against a judgment over the use of purple. In a case that it has pursued for five years, Cadbury has tried and failed to stop Darrell Lea, an Australian chocolate manufacturer, from using the colour.

Despite the fact that Darrell Lea was established in 1927 and has been using purple for most of its existence, Cadbury insists that it has no right to the colour. Cadbury has registered one shade of purple in relation to block chocolate in tablet form in Britain but it has not been as successful elsewhere.

Purple, actually, may be the oldest legally-protected “trademark” color, of sorts. The color was, at certain times during ancient times and antiquity, permitted to be worn only by the nobility. To which, in the chocolate sense, Cadbury may or may not have a claim. I do like the stuff, and perhaps it is among the elite in the chocolate hierarchy. Certainly compared to virtually anything else the English make it is uniquely edible — but regal?

UPDATE:  Cadbury’s claim melts in its hands, not just in our mouths.

UPDATE II:  Settled, dismissed, whatever. It’s all over but the calories!  Via @IPThinkTank.

UPDATE III: Yes.  But no.  I mean yes.

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…

Suing bloggers for dollars

Originally posted 2011-12-05 10:40:50. Republished by Blog Post Promoter

Interior of rotunda, New York Supreme Court, New York CountyGlenn Reynolds links to a an article in Wired about a newspaper “chain”‘s — actually, lawyer Steve Gibson’s — “new business model”:  Suing bloggers who post newspaper articles, evidently more or less intact ones, on their sites.  Glenn says suing bloggers “seems like a poor business plan” — mainly, of course, because most bloggers are broke, or pretty close to it.

The article also explains why these one-off claims by outfits such as the Las Vegas Review-Journal are unlikely, in the long run, to pay off.  One reason is that at least the music industry, through the Recording Industry Association of America, is theoretically going for some degree of bulk in its litigation trawling against unlawful file sharing.  And we did say “theoretically”:  Remember, in 2008 the RIAA managed to spend about $16 million on legal fees to reel in a whopping $391,000.  As the article says, “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

So, yes, it is hard to comprehend the return on investment here.

There are other reasons this doesn’t seem to make sense.  “Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages,” says the article.  But no, not quite on the “whopping damages” stuff.  Contrary to myth — and to the threats routinely uttered by copyright plaintiff attorneys — statutory damages are not meant to be a windfall, as I explain at some length here.  Now it is true that some juries think intellectual property infringement damages are a jackpot unrelated to actual harm — usually because judges don’t instruct them properly.  But other judges in high profile cases are refusing to be part of the copyright shakedown.  Thus in the recent Tannenbaum copyright case, the District Judge reduced the jury’s damages award of $675,000 for infringement of 30 songs to $67,500, ruling that the amount awarded was unconstitutional under the Due Process clause.

Still, $67,500 is a lot of money, a lot, and still pretty darned distant from any plausible quantum of loss to the copyright owner.   Read More…

Taking the IP Train

Originally posted 2010-09-06 16:08:53. Republished by Blog Post Promoter

The New York Times reported (yes, reg. req.) last week that New York’s Metropolitan Transit Authority is scrambling to enforce trademark rights in its wide array of iconography, including the famous alphanumeric train symbols known to all New Yorkers.

MTA Subway Train Symbols

Evidently powered by the MTA’s burgeoning licensing program, it’s not a bad idea. No question but that these and the many other powerful symbols used by the transit system are excellent communicators of source, quality and all those other trademarky things. The New York transit system, especially the subway, is an entire subculture unto itself. In other words, don’t be surprised if there’s some pushback on this new, and somewhat belated, attempt to kind of privatize, or revenue-ize, a world that generations of people think of as “everybody’s” property.

Of course, the libertarians remind us constantly, and accurately, that when something is everyone’s property, it is ultimately treated like no one’s property at all — which “everyone” ends up paying for. Still and all, there is an interesting trademark policy issue in here somewhere. It’s one thing to say that services aren’t free and that even when, as in the case of the MTA, they succesfully address significant externalities, their costs should not be unduly disconnected from users. But it’s another thing to say that, however revenue-starved, a public institution (in the broad sense of the word) such as the MTA should restrict the public, much less the bloggy, enjoyment of a public iconography such as the train number symbols and the image of the classic subway token.

In other words, if you get a C&D letter from the MTA, give me call, won’t you?

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.

Best of 2007: Trademark rights in interdigitization

Originally posted 2015-01-20 17:05:27. Republished by Blog Post Promoter

Praying Hands

Thou, Rock

Nick Daly drops me a note to the effect that one Jay-Z, gazillionaire rhyming scatologist, has been sued by a professional perspirer and leaping stage goon called Diamond Dallas Page — ach! my kingdom for a stage name! — for the former’s “Roc-A-Fella Hand Gesture,” also known as the “Diamond Cutter” hand gesture. Evidently Mr. Z uses the former, Mr. Page the latter of these nicknames for the clever manipulation of the human carpal, metacarpal and phalange bones in a distinctive diamond-shaped pattern in association with the services provided by the respective performers.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Now, Roc-a-Fella is a record company specializing in rhythmic spoken-word obscenity-laced performance art which generates (1) some light, if you will, allowing one to peer into the dimmer recesses of the heart of urban America’s cultural darkness profundity, plus (2) much heat as regards the controversial word choice typically employed by its practitioners as well as the ribald subject matter of the works, in addition to (3) immense dump trucks full of cash.

You may perhaps, in a merry mood, “Rock a fellow” — “rock” him, in this sense meaning to entertain him or absorb his attentions by use of contemporary upbeat rock and roll music or its derivaties — or as we northeastern urbanites might say, you might rock “a fella”; hence the name of the company. And it is hard not to suspect an allusion, based both on ironic association considering the countercultural nature of the works as well as with vast hordes of currency, to the name Rockefeller, the billionaire dynasty that, as is well known, controls everything, and whose name is arguably a “trademark” for immense wealth and power.  (UPDATE:  Jay-Z, in contrast, evidently cannot quite as readily as the Old Man could rock every fella as he might like to.) Read More…

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.

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.

No free lunch. But those prices?

Originally posted 2011-02-22 13:25:33. Republished by Blog Post Promoter

“Information wants to be free.”  I must have mocked those words dozens of times here.  Or a few.  I might be counting the times I just thought that.  Either way, that expression is not an argument.  It’s a statement of ideological faith.  The pro-copyright right has its own religion on this, too.

The music industry, for example, demonstrates its faith via windmill-tilting-based litigation genuflection.  The best way to describe its approach copyright enforcement is to think of “mass tort” litigation seen through the wrong end of a telescope*–indeed, as it turns out, the “mass” is there in terms of the litigation, but it seems not so much in terms of the harm.  (Was anyone ever really fooled by that number?  Not LIKELIHOOD OF CONFUSION®.)

You don’t have to be a know-nothing, however, to believe that copyright still makes sense, at least conceptually.  Take Tracey Armstrong:

“Copyright holders have the right to price and term the works that they have created, the works that they own. That’s a stake in the ground. I couldn’t do what I do for a living without believing that,” says Tracey Armstrong, CEO of the Copyright Clearance Center, in a conversation earlier this week on the future of copyright. “We couldn’t foresee the iPad back in 1985, so digitization and the complications that come with it are what we’re working on right now.”

Well, okay, the fact that you’re paid to believe something doesn’t make it true, either–just ask a lawyer.  But she’s right.  More:

“I agree with the statement that everyone is now a publisher,” she says, “and what that means is a tremendous proliferation of material that is copyrighted and can be licensed.” She describes this as the “atomization” of content –- books being offered as individual chapters and paragraphs, computer software being parsed into individual lines of code –- a phenomenon that is causing exponential growth in the number of “granular” elements that are available to be licensed.

Of course, she adds, “the market is not infinitely elastic” -– and notes that there is plenty of information that will be offered for free, or will have to be.

The Internet’s ultimate victims

Then again, there are the iconic, high value works that will never be offered for free.

Maybe.  Probably.  “Iconic”?  Probably less than ever. But notwithstanding that there is a new world of free content out there, few of those with the most to offer are going to invest their best efforts in the creation of high-grade works, in any medium, just to have it deemed what one commenter at CCS link above called “collective social product.”  That’s just lefty liturgy for you right there–nonsense.  Yes, copyright is creaking under the weight of the digital revolution–more on that below.  But that doesn’t affect the fundamental rationale for it.  Creators and those who invest in the publication and distribution of creative works are morally entitled to, and respond in a socially beneficial way, to the incentive created by their expectations of enjoying a limited monopoly over the fruits of that investment.

It’s particularly ironic, in light of this self-evident truth, for left-wingers to utilize sloganeering such as “collective social product” in arguing against copyright.  In their rush to “liberate” property and the “means of production” they’re abandoning the labor theory of value meant to justify collectivism as against our natural inclinations.  On the one hand, we expect to control the fruit of our efforts.  On the other hand, yes, let us resist the raw conception that market price is the only criterion of “value” in human intercourse–even with respect to creativity.

Front door on Times Square

All that glitters is not gold

But copyright does not reward the arbitrary capturing and bottling of “knowledge,” but rather the tangible expression of it and the investment of effort and resources by the “knowledge worker” in bringing it to the market.  True, the rest is negotiable, but copyright in its ideal form is a very reasonable assignment of rights as to these expectations.

Now this assertion would seem belied by the change from a regime in which only a handful of publishers decided what would be published and distributed and at what price, to one in which free publication of valuable substantive content is ubiquitous.  Why is so much quality free content published if people need copyright as an incentive?

The reason is that there are many kinds of incentives, not all of them financial or amenable to easy “disclosure” or pricing.   We publish for free to enhance our professional reputations; to advertise our services; to seek the attention of those who might pay us for more intensive or comprehensive content; to be part of or affect debate; to gratify our egos.  None of these motivations means either that the “content” published for inherently “should be” free or that any other content that isn’t free “should be” free.

I’m not sure Tracy Armstrong is necessarily loaded for bear in her campaign to convince the rest of the world of this, however.   Read More…