Archive for September, 2011

Laura A. Heymann: Naming, Identity, and Trademark Law

Friday, September 30th, 2011

seal of the College of William & MarryLaura A. Heymann of William & Mary Law School has posted to SSRN Naming, Identity, and Trademark Law, to be published in volume 86 of the Indiana Law Journal.

Here’s the abstract:

As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of anonymous sources by established journalists may be viewed as unethical. Supreme Court jurisprudence both touts the benefits of anonymity and decries it as a barrier to the free flow of information. In the commercial realm, consumers file suit when the memoir they have purchased turns out to be largely fiction but seem far less concerned when a company emerges from a public relations disaster with a new name, leaving its old one to the dustbin of history.

This conflicted response may be further complicated by the fact that we think about names in a very personal way, as a core part of our identity. But names are not, strictly speaking, our identity – they are merely symbols of our identity that denote a particular set of characteristics at a particular time. Indeed, as naming theory tells us, the denotative function of a name is what makes a word a name at all. It is for this reason that an individual or a corporation can adopt a new name without being accused of fraud and why a company can sell products under more than one trademark.

Naming law – whether the law of personal names or the law of trademarks – tends to reflect these principles of naming theory. In large part, the law focuses on a name or mark’s denotative effect, interfering only when confusion or changes to the essential nature of the referent renders the name’s identifying function uncertain. And, indeed, in the instances when the law is inconsistent with naming theory – attempting to regulate the connotations associated with names rather than their denotative function – we might question whether it is achieving an appropriate goal. Confining naming law to this important but limited function achieves a balance between respecting the autonomy of individuals and entities to choose the names with which they represent themselves to the public and ensuring that such choices do not significantly frustrate the flow of information that allows the public to engage in decision making.

Where Can a Blogger Get a Lawyer Around Here?

Thursday, September 29th, 2011

A person identifying himself as a friend of blogger Crystal Cox asked in a comment to yesterday’s post where Ms. Cox could find legal counsel. That’s a great question that a lot of folks have. And I am happy to say I have a number of places to suggest for any beleaguered blogger looking for a lawyer to throw them a lifeline:

The Berkman Center for Internet & Society has created, as one of its many projects, the Online Media Legal Network, a network of lawyers, law firms, and law clinics willing to represent qualifying media clients for free (pro bono) or at reduced rates. The list of members reveals a bunch of heavyweights, including Manhattan media-law powerhouse Debevoise & Plimpton. Not only have they represented the New York Times, but they even employed the author of Blog Law Blog as a summer associate back in the late 1990s! How’s that for a claim to fame? Of course, there are a bunch of other stars on OMLN’s roster as well. To get started in seeking representation through OMLN, read up on their process and requirements. They can’t help everyone, but it can’t hurt to ask.

There’s also the 800-pound gorilla, the Electronic Frontier Foundation, the granddaddy of public-interest law firms for electronic media. The EFF explains on their website how they select clients and how to contact them about possible representation. If you can get the EFF to represent you, that’s completely fansmashtic! But know ahead of time: Many will apply, few will qualify.

A more general source of information about getting represented can be found in the Citizen Media Law Project’s guide to finding legal help. Information there will help you learn about looking for pro bono representationgoing pro se (representing yourself), or, if it comes to that, hiring a lawyer (as in, paying them money).

Of course, if your problem is the opposite – if you are looking for someone to sue you – then Blog Law Blog recommends, por supuesto, BLOGGING! Especially effective is blogging about people or organizations (1) who are well-off enough to hire a lawyer, and (2) who are not already the target of a torrent of criticism.

So, my friends, lawyer up, and BLOG ON!

Hyperbolic “____sucks.com” Blog Cleared of Defamation Liability

Wednesday, September 28th, 2011

The Mark O Hatfield U.S. Courthouse in Portland, Ore. (Photo: EEJ)

An interesting case out of Oregon has held that because of the “looser, more relaxed communication style” of blogs, it was not defamatory for blogger Crystal Cox of obsidianfinancesucks.com to accuse bankruptcy trustee Kevin Padrick of various forms of perfidy.

Cox’s blogged allegations against Padrick includeed money laundering, perpetrating “fraud on the courts,” and engaging in various “illegal activity.”

Most stunning to me, however, was that in one post, Cox strongly implied that Padrick had engaged in “Solar Tax Credit Crimes.” If that doesn’t sound reputation-harming to you, consider the geographical context: This took place in Portland, Oregon, my friends.

True story: P-Town is so environmentally conscious, that even at McDonald’s, after you bus your own table, you have to separate out your recyclables.

So I can only imagine that for Porlanders, Solar Tax Credit Crimes are right up there with murder, arson, and aggravated failure to compost.

But Cox didn’t merely imply things. Cox blogged that Padrick was a “Thief,” a “CRIMINAL,” and a “Corrupt Attorney.”

If you were taking a law school exam, you would quickly identify those statements as being factual assertions, which, if provably false and reptuation harming, could give rise to a claim for defamation.

But the federal court in Oregon took a more realist approach. It concluded that, under the totality of the circumstances, a reasonable reader could not have regarded the statements as provably false assertions.

Why not?

The court said that “the extensive use of hyperbolic and figurative language, and the posting of several questions rather than statements,” tended to show that Cox’s statements were not reasonably to be regarded as provable factual assertions.

What’s more, it mattered that the medium at issue was a blog. The court’s August 23 order, according to the RCFP report, explained: “Blogs are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact[.]”

Yikes. If this is a victory for blog freedom, it sure comes with a sting.

More:

Judge Posner Worried By Mic-Wielding Bloggers

Tuesday, September 27th, 2011

Hon. Richard A. Posner (Photo: U. Chicago)

Illinois has an eavesdropping and wiretapping statute that prohibits making an audio recording of any conversation without the consent of all persons involved. This applies not only over the phone or in a private place, but even in a public place. And even when the conversation is with public officials concerning a matter of public concern. Violations can be prosecuted as felonies, and civil suits are authorized as well.

If you don’t think that sounds constitutional, I’m inclined to agree. And so is the ACLU, who is suing on behalf of several people arrested for secretly recording on-duty police officers. The civil liberties group is challenging the law in ACLU v. Alvarez.

On appeal to the federal Seventh Circuit, the ACLU faced questioning by a panel that included America’s most famous federal circuit judge, the Hon. Richard A. Posner. His questioning was alarming. Just 14 words into his argument, ACLU lawyer Richard O’Brien was interrupted with this:

“Yeah, I know … But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”

Huh? Really? Ferreting out public corruption, abuse of power, obstruction of justice by those charged to guard it – all that sounds interesting to me.

Posner proceeded to worry about how striking down the law could aid snooping bloggers:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Such a thing as privacy for on-duty police officers? Even when they are in public or interacting with civilians? Gosh, I can’t get behind that.

Justin Silverman at CMLP has an extremely thoughtful post on the matter. He writes, “Posner’s apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner’s comments smack of condescension for journalists.”

Jonathan Turley also is taken aback. He writes on his blog, “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. … As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering ‘who will rid us of these meddling citizens?,’ they appear to have one jurist in Illinois not just ready but eager to step forward.”

Unfortunately, the facts of the case show that Turley’s comment is not the hyperbole you wish it were. The story told by one of the plaintiffs in the suit, Tiawanda Moore, is terrifying: She was groped in her home by a Chicago police officer who had responded to a domestic disturbance call. Moore was brave enough to take the issue to internal affairs. But they tried to deflect her complaint and sought to dissuade her from pursuing the matter. In the interests of protecting herself, she began to secretly record her conversations with investigators on her Blackberry.

When the recordings came to light, Moore was arrested and charged with violation of Illinois’s eavesdropping statute. Sadly, prosecutors took the case to trial. But in a strong affirmation of the role of civilian jurors, the jury acquitted her of the charge.

Just a few weeks ago, the First Circuit ruled that there is a constitutional right to record police actions in public places. Hopefully the Seventh Circuit will follow the lead and clear the way for snooping bloggers and sexually harassed citizens alike to be free to record the police in the City of Big Shoulders.

More:

Wow! I’ve Never Made My Students So Bored

Monday, September 26th, 2011

View from bottom up broadcast towerJudging by the looks on my students’ faces, last week, in my Media & Entertainment Law class, I gave what may have been the most boring lecture of my career. It was the lecture in which I explain how the FCC allocates frequency spectrum and doles out broadcast licenses.

What’s so strange is that the same lecture was a huge hit when I first taught this class back in 2005.

Of course, after class, I realized what the difference is. As recently as 2005, frequency spectrum and FCC licenses represented – as they had for nearly a century – the keys to the kingdom. If you wanted to get your message out there, you found a radio or television station.

Just six years later, it’s hard to talk about broadcast licenses without feeling like they are a quaint anachronism.

By the way, you may wonder how it is that I could tell my students were bored. Well, I’ve never witnessed a higher level of IM’ing, Facebooking, and Tweeting in class. And no, I don’t have mirrors in the back of class to see what’s on students’ laptops. I can see it clearly reflected in students’ faces. Messages were zipping through the wireless and around the internet at a furious pace.

And, of course, that’s the irony: Web 2.0 was not merely the symptom of the boredom; it was the cause.

Who cares about getting an FCC license, a giant steel tower, and a gargantuan electric bill when you can better reach an audience with your laptop and a wireless connection?

For an ex-radio-disc-jockey, I have to say it’s a little sad for me to face up to the reality. But, then again, it’s nothing I didn’t know. I mean, look at me: I’m off the airwaves and blogging to you. I’d like to say that I’m BLOGGING TO YOU FROM THE TOP OF MCCLELLAN PEAK WITH EIGHTY-SEVEN THOUSAND WATTS OF POWER IN THE MIDDLE OF 45 MINUTES OF CONTINUOUS HIT MUSIC.

But of course, I’m not. And I gotta say, it’s not the same to type that. Even in italics and all caps.

Video didn’t kill the radio star. But Web 2.0 sure did.

Imprisoned Bloggers Around the World

Thursday, September 22nd, 2011

According to Reporters Without Borders there are currently 121 netizens imprisoned, along with 157 journalists and 9 media assistants behind bars.

They include:

  • Blogger Henghameh Shahidi of Iran, in prison since February 25, 2009
  • Blogger Sakhi Righi of Iran, in prison since June 18, 2009
  • Blogger Wu Baoquan of China, in prison since a date unknown

The leading countries in jailing the persons RWB classifies as netizens are China (70), Iran (17), and Vietnam (17).

Sarah Joseph: Social Media, Human Rights and Political Change

Wednesday, September 21st, 2011

Shield of Monash UniversitySarah Joseph of Monash University’s Faculty of Law has posted to SSRN Social Media, Human Rights and Political Change.

Here’s the abstract:

This paper examines the role of social media in progressive political change, in light of its use in the Arab Spring uprisings. The concept of social media us explained, before arguments for and against the importance of social media in revolutions (eg those of Malcolm Gladwell and Clay Shirky) are examined. An account of the Arab Spring (to date) is then given, including the apparent role of social media. Evgeny Morozov’s arguments are then outlined, including his contentions that social media and the internet can be tools of oppression rather than emancipation, and spreaders of hate and propaganda rather than tolerance and democracy. The US policy on internet freedom is critiqued too. Finally, the role of social media companies, and their accountability and responsibility given their (perhaps inadvertant) role as the facilitators of revolution, is discussed.

Reflections on MediaNews Group’s Split with Righthaven

Friday, September 16th, 2011

Last week, Steve Green, the reporter who has most closely followed the Righthaven story, asked me what I thought of the revelation that MediaNews Group broke off its deal with Righthaven. Here’s what I told him:

The law has long had a special affection for newspapers. That’s reflected in a long line of Supreme Court cases. Given that history, it has been very dispiriting to see newspapers try to game the law in pursuit of a quick-money scheme, especially one that involves suing readers.

The participation of MediaNews Group was especially troubling to me, given that they operate many of the nation’s most important and well-respected newspapers. Thus, it is a great relief to see that MediaNews has parted ways with Righthaven.

A newspaper is sometimes described as a community talking to itself. Can a newspaper uphold that vision while partnering with Righthaven? I don’t think so. And that’s a point that I think most publishers understood as soon as Righthaven pitched them.

MediaNews Group was the only big news organization that put aside the sense of public trust we expect of newspapers to take part in this misadventure. They have shown integrity and good sense by now walking away.

Naomi Goodno: How Public Schools Can Constitutionally Halt Cyberbullying

Wednesday, September 14th, 2011

Naomi Goodno of the Pepperdine University School of Law has posted to SSRN How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Survives First Amendment, Fourth Amendment, and Due Process Challenges.

Here’s the abstract:

There have been all too many recent cases where children are taking their lives because of cyberbullying. One hearbreaking case involved Tyler Clementi, a Rutgers University freshman, who leaped to his death after his roommate secretly taped him having a “sexual encounter” with another young man and posted it on the Internet. Schools, courts, and legislatures are struggling with how to deal with such tragedies.

Imagine two public school students, Joe and Jane. Joe punches Jane during class. The school is certainly within its legal rights to discipline Joe. Assume, instead, Joe punches Jane while both are walking home from school. The school cannot discipline Joe because the act took place off-campus. Now, assume instead, that Joe, while at home and using his own laptop, creates a website about Jane stating that he wished she were dead and inviting other students to join in with him to punch Jane. Over one hundred students log on to and blog about Joe’s website. Jane finds out about it and is too scared to attend school. If no assault of Jane takes place at school, can the school do anything? Can the school discipline Joe for his off-campus behavior? If the school does take action, would that violate Joe’s First Amendment right to free speech? Can the school search Joe’s personal laptop when he brings it to school, or would that violate Joe’s Fourth Amendment right not to be subjected to unreasonable searches and seizures? Indeed, should the school do anything at all?

These are the questions facing legislatures, courts and public schools, and there are no laws or cases that give succinct answers. This article analyzes current precedent and provides guidance on how these issues can be approached. It tackles three of the biggest constitutional challenges: how to create a public school cyberbullying policy that ensures schools are safe without trampling on students’ First Amendment, due process, and Fourth Amendment rights.

This article proposes a novel analysis concerning the First Amendment issue. In order to protect students’ right to free speech, courts and school officials should first consider the reach of a public school’s jurisdiction to regulate speech that occurs off-campus. Even if jurisdiction is proper, the school must also analyze whether it can regulate the substance of the speech. Next the article tackles the due process issues and problems with vague and overbroad constitutional challenges. Finally, the article addresses when school officials can search a student’s personal electronic device when there is suspicion of cyberbullying. No other article has fully addressed this set of constitutional issues.

As part of this analysis, I have drafted a proposed cyberbullying policy that would likely survive constitutional scrutiny.

Todd Kincannon Unfazed by Righthaven’s Bankruptcy Talk

Tuesday, September 13th, 2011

Righthaven antagonist J. Todd Kincannon (Photo: The Kincannon Firm)

I asked Todd Kincannon, the lawyer signing up plaintiffs for a Righthaven class action, what he thought of the company’s claim that it was on the verge of bankruptcy.

“I always knew Righthaven would file bankruptcy if things got rough,” Kincannon told me by e-mail. “They
were set up as a limited liability company just so they could do that. Fortunately, Stephens Media, MediaNews Group, Sherman Frederick, Steve Gibson, and Dickinson Wright all seem to have plenty of money.”

I kind of thought he might think that.

The truth is that Righthaven’s bankruptcy, if and when it comes to that, won’t be the end of the Righthaven story. Instead, it will be the beginning of the second half.

Over its first year and a half, Righthaven was on the offense, swooping down on unsuspecting bloggers and holding them up for a few thousand dollars a piece. Then, in June, the Democratic Underground decision came down, and the tide reversed. Things are now swooping down on Righthaven. Not only does Kincannon have his nascent class-action, but there’s the strong possibility of bar discipline against Righthaven attorneys, and you can even see the potential for criminal charges (federal racketeering charges and conspiracy to obstruct justice, for instance).

Trial Court Upholds $60K Award Against Johnny Northside

Tuesday, September 13th, 2011
Landmark building at the University of Minnesota

The University of Minnesota (Photo: EEJ)

Judge Denise Reilly in Minneapolis has upheld a jury verdict requiring blogger John Hoff (a/k/a “Johnny Northside”) to pay $60,000 for his blogging about Jerry Moore. This is a setback for free speech and bloggers’ rights, but I believe Hoff will eventually win this suit on appeal.

Moore worked at UMinn’s Urban Research and Outreach/Engagement Center where his job was studying home foreclosures. The dispute started when Hoff took to his Adventures of Johnny Northside blog to accuse Moore of involvement in a “high-profile fraudulent mortgage.” Moore was then immediately terminated by UMinn. Moore then sued Hoff.

The crazy thing about the story is that what Hoff wrote was true.

Truth, as you probably know, is a defense to defamation. But Moore’s cause of action wasn’t defamation; it was “tortious interference” with contract and prospective economic advantage.

Economic interference claims reside in the backwater of tort law. Most law-school classes in torts don’t bother to cover them. But the reality is that they are well-used in the courts. (I teach torts, and yes, I do teach economic interference.)

Based on claims of tortious economic interference, the Minneapolis jury awarded Moore $35,000 for lost salary and $25,000 for emotional distress. Real money, obviously.

Of course, not all jury verdicts become executable judgments. Trial judges can throw them out or reduce them. And appeals courts can overturn them. But we now know that this verdict has taken a big step forward, since the trial judge has approved of it. That means that if Hoff is going to be let off the hook, it will have to be by an appellate court.

An amicus brief [pdf] from the Minnesota Pro Chapter of the Society of Professional Journalists argued, correctly in my view, that when a claim is in essence a defamation claim, then the courts should apply the safeguards of defamation law’s defenses – even when the claim is dressed up as one for tortious interference.

The amicus argued:

Outside the context of online publications, Minnesota courts have long held that merely providing truthful information cannot provide the basis for an action for tortious interference with contract or with prospective economic advantage, and both federal and state courts have rejected attempts by plaintiffs to evade the requirements of defamation law with the claim is essentially a defamation claim. … The court should … reject the plaintiff’s attempt to recover under a theory of tortious interference when that claim is based upon the same statement as his failed claim for defamation.

Unfortunately, this argument didn’t carry the day. At least not yet.

Hoff’s lawyer has vowed to appeal, and I think Hoff’s chances on appeal are excellent.

The correct view of the law is that the First Amendment protects what Hoff did here. And I think we can count on the courts to uphold that view. Consider that the U.S. Supreme Court held just this year that the First Amendment was effective in shielding the way-out-there members of the Westboro Baptist Church, who were found liable for intentional infliction of emotional distress when they picketed funerals of fallen soldiers with hate-filled signs such as “Thank God for Dead Soldiers.” (Snyder v. Phelps, No. 09–751 [pdf])

The way I see it, if there’s a First Amendment for Fred Phelps, then there’s just got to be one for Johnny Northside.

The Implosion Accelerates: Righthaven Begs for Stay, Warns of Bankruptcy

Monday, September 12th, 2011

Bankrupt monopoly guy with copyright symbol replacing faceThe copyright-lawsuit factory that has sued scores of bloggers appears to be nearing the financial precipice. Steve Green of the Las Vegas Sun and Vegas Inc. reports that Righthaven is pleading with the U.S. District Court in Nevada to stay an order to pay $34,045 in attorneys fees arising from Righthaven’s failed lawsuit against Kentucky resident Wayne Hoehn over a post on a sports-betting message board. Judge Phillip Pro dismissed that lawsuit in June, holding that Righthaven lacked standing to sue Hoehn, and, additionally, that Hoehn’s reposting of an entire column from the Las Vegas Review-Journal was protected as fair use. As a result, Judge Pro ordered Righthaven pay Hoehn’s attorneys fees. On Friday, Righthaven asked Judge Pro to stay his order while it is appealed to the 9th Circuit. Green writes:

Righthaven … said the gridlock over its lawsuits has hurt its finances – and expressed concern that attorneys for prevailing defendants like Hoehn may seize its assets and put it out of business.

Righthaven, begging for mercy. I don’t even have the words to describe the irony here.

When a company breathes the word “bankruptcy” as part of a plea for delaying the payment of some debt, it generally means the implosion is already well underway. That being the case, we can expect anyone who has a judgment against Righthaven to rush to seize assets as fast as possible. That will force Righthaven to run to bankruptcy court to get the protection of the automatic stay available for bankruptcy filers.

I haven’t seen Righthaven’s emergency request to Judge Pro, but I can’t imagine there’s any good reason to grant it unless Righthaven is able to post a bond – which they might not be able to do if they are nearing bankruptcy. This is something that the bankruptcy courts can sort out, and will probably will have to.

And, by the way, yes, this means Righthaven defendants could end up controlling – through a creditors’ committee – the copyrights that were used as the basis for suing them. It also means that a lot more Righthaven documents could be opened up to public scrutiny.

“Breaking” News: Righthaven’s Partnership with the Denver Post is Sundered

Thursday, September 8th, 2011

Image of Righthaven website broken in twoLawsuit mill Righthaven has now suffered its biggest setback yet: MediaNews Group, publisher of the Denver Post has walked away from its year-long partnership.

As one of the biggest newspaper chains in the United States, MediaNews was Righthaven’s prestigious business partner in a volume business of suing hapless bloggers for copyright infringement. Even as Righthaven has been dealt a string of blows in court, the partnership with MediaNews gave Righthaven real cred.

Now that’s gone.

Steve Green of the Las Vegas Sun and Vegas Inc. explains what’s happened and provides the context. Key to the story is that MediaNews Group’s change of heart corresponds with a change in management. New CEO John Paton has different ideas about what MediaNews should be doing in the face of the digital transition – and it’s not suing readers.

In his previous job as CEO of Journal Register Co., Paton tweeted about Righthaven, “Such a bad idea for newspapers. I’m speechless,” Green relays. And Wired.com quotes Paton as saying that partnering with the Las-Vegas-based Righthaven “was a dumb idea from the start.”

That leaves Righthaven standing alone except for its maiden business deal with the Las Vegas Review-Journal. (That relationship looks intact for now.)

So this answers the question of whether other big newspapers owned by MediaNews Group – such as The Detroit News, The San Jose Mercury News, and the Salt Lake City Tribune – would be joining hands with Righthaven. Happily, it ain’t so.

It’s a good day for newspapers, a good day for bloggers, and a good day for law.

Is Nik Richie “The First Reality Blogger”?

Thursday, September 8th, 2011

I’ve already commented about Nik Richie’s interview on ABC’s 20/20 news magazine and how he compared himself to Mark Zuckerberg.

But there’s another crazy thing Richie said that bears mention: Richie said that he’s “the first reality blogger.”

That’s false in three different ways:

Not “first” – The first reality blogger was the first blogger. And that might be Justin Hall, who started his there’s-no-such-thing-as-too-much-sharing website in 1994. By “logging” his life on the web, Hall and others like him were the first “web loggers” or ‘bloggers. That’s how it all started. And it was all reality. And, more to the point, it was reality

Not “reality” – TheDirty.com doesn’t offer reality at all. The content on TheDirty.com is, we must presume, mostly made up. To the extent TheDirty.com contains some actual “reality,” you’d never know it, because it’s floating in a sea of fiction. Real people are photographed and named, but made-up stuff is attributed to them as a matter of course. That makes it distinctly different from reality.

Not a “blogger” – The content that makes TheDirty.com what it is comes from the people who comprise Richie’s “Dirty Army.” The 20/20 report calls these anonymous people “tipsters,” but that’s not accurate. They are really the writers – the “bloggers.” Richie selects what will go up on the blog, generally adding a comment or two of his own. But he doesn’t write it. That distinction is important, because if Richie wrote this stuff himself, he would be sued into the next dimension. The only thing that keeps his enterprise going is Section 230 of the Communications Decency Act. (And ultimately, I don’t know that even that law, as powerful as it is, will be enough to sustain him.)

20/20 Interview with Nik Richie

Wednesday, September 7th, 2011

Nik Richie on 20/20A student of mine pointed out to me that ABC’s 20/20 news magazine did a piece on Sarah Jones, the Cincinnati Bengal cheerleader and Kentucky high school teacher who was wildly defamed on TheDirty.com and sued. That case is still unresolved. But the 20/20 piece is worth watching for no other reason than to be able to see Nik Richie answering questions.

If you are already happily ignorant of TheDirty.com, you should know that it’s a blog that posts photos of random people – often unknown, average people – and then attributes to them various sexual acts, sexually transmitted diseases, and crimes. It also commonly includes withering exegeses on these persons’ physical traits laced with profane invective.

The following, posted under a snapshot of a smiling college-aged girl, who was hugging a friend, is typical:

Nik, this fat waste of space is _____ ______. We went to high school together. She has always been thick… not in a good way. Her mom is nice but f*cking ugly. You can tell _____ will be just like her mom when she grows up… lol poor _____. She just posted on fb that some girls are so sad… yet she is the sad one to me. She is the BIGGEST SL*T I KNOW. When i say Big I mean physically BIG lol.

(“fb” means “Facebook” and “lol” means “laughing out loud.” The omissions indicated by underscores are mine.)

Nik Richie is the guy who makes all this possible. In the 20/20 interview, you can see that Richie is not only devoid of of conscience, but he is also megalomaniacal. In the interview Richie compares himself to – wait, are you sitting down? – Mark Zuckerberg.

You could sell Starbucks, and it’s the same, it’s the same thing. If it’s so terrible, why am I so demanded? Why am I a blogstar, as I call it? I’m pretty much a rockstar of the internet generation. … Look at Mark Zuckerberg. It’s the new wave of cool, hip, new celebrities. Internet celebrity. I’m in that realm with the Perez Hiltons, the Mark Zuckerbergs. You don’t have to be a computer nerd to be cool.

Whoa. First of all, Perez Hilton built up his following by constructing a personality people found compelling. And Mark Zuckerberg? Mark Zuckerberg not a “computer nerd”? I’ve made fun of Facebook, but let’s face it, Mark Zuckerberg is a serious geek. Zuckerberg has real geek chops – mathmatics, algorithms, coding, stuff like that. I take it, however, from his comments, that Richie doesn’t. That means that the only thing Richie has really brought to the table, that gives him his salient entrepreneurial advantage, is sociopathy.

In other words, Richie’s success in getting visitors to his site comes not from what Richie has – like far-sightedness, business acumen, or facility with technology (which Richie does not appear to have), it’s what Richie lacks – conscience.

To be proud of yourself under such circumstances is bizarre.

Hmmm. This reminds me of someone else who thinks they are an innovator. And I know you know who I’m talking about: Steve Gibson, founder of Righthaven. It’s the same fallacy I tried to explain in a post titled “Righthaven’s Innovation? Stooping Lower“:

Righthaven’s business plan is based around taking advantage of the law to do something the law itself never contemplated. I’ll give them this: Righthaven’s entrepreneurial angle is unique. But there’s nothing clever about it. Righthaven and its associated newspapers are on the cutting edge because they have stooped lower than anyone else in the news business has been willing to go. That’s nothing to be proud of.

That fits Nik Richie to T, except that TheDirty.com is not unique in the same way Righthaven is. And Steve Gibson is actually a smart guy. I see no indication of that with Richie.

Qualitex Swatches for IP Teachers

Tuesday, September 6th, 2011

Qualitex press pad coverI know that there’s a contingent of Blog Law Blog readers out there who teach Intellectual Property in law school. If you do, I want to make sure you know about something I’m doing to celebrate the grand-reopening of my Museum of Intellectual Property.

I am offering to any bona fide teacher of Intellectual Property or Trademark Law a swatch of fabric from an actual Qualitex press pad cover, resplendent in its trademarked Qualitex green-gold color.

What is a Qualitex press-pad cover and why would I care? If you have to ask, I’m sorry to say, you won’t qualify for a swatch. It’s an IP-geek thing. In a landmark IP case, Qualitex successfully defended its color as a registered trademark. Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995) (holding that color can be registered as a trademark, overruling the Ninth Circuit).

I say “landmark IP case” because, let’s be honest, even though it was at the U.S. Supreme Court, it doesn’t really qualify as a “landmark Supreme Court case.” Like I said, it’s an IP-geek thing.

Anyway, having a swatch of the fabric as a teacher is helpful, because you can’t really experience the trademarked Qualitex hue except in person. As Qualitex notes on its website:

The Unique Green Gold Color is a Registered Trademark of the Qualitex Company. (The color on your screen may NOT be an accurate display of the Qualitex Green Gold!)

To claim your swatch, please send me an e-mail (ejohnson@law.und.edu) with your physical mailing address by September 19. I need the cut-off date so that I can know how finely to divide up the material that I have on hand.

Of course, even after I divide up the sample of material I have, the Museum of Intellectual Property will retain a full, intact Qualitex press pad on display. So go ahead and plan that family vacation around a visit to North Dakota to see the Museum of Intellectual Property in person.

Happy Labor Day, Bloggers

Monday, September 5th, 2011

Double dump truck in Seattle at construction site

Happy Labor Day to everyone in the United States and in Canada (Labour Day, for you guys).

If you don’t have the day off, and you find yourself blogging at work, check out the EFF’s Blogger Guide on labor law.

Thanks to the National Labor Relations Act, workers in the U.S. who are fired for blogging about how lousy their workplace is may be protected under federal law. (An example is an ambulance company who fired a worker for griping about work on Facebook, and then was given the smack down by the National Labor Relations Board.)

You know what they say, work is the curse of the blogging class. So read up on what you can get away with, and blog on!

The Shields are Down! The Shields are Down!

Friday, September 2nd, 2011

Righthaven – the copyright thugster and blogger-suer extraordinaire – continues the nosedive it began with its Democratic Underground defeat in June, the revelations from which led me to suggest the Nevada bar should consider attorney misconduct charges against Righthaven CEO Steve Gibson.

Here’s some of the latest to happen since then:

Insignificant rebellion? South Carolina attorney Todd Kincannon is looking for people who’ve been sued by Righthaven to be clients for a class-action litigation he’s putting together. He’s even looking for people who’ve already settled. Wow, I don’t recall ever seeing people have a potential cause of action because they’ve settled. Righthaven hoped to blaze new legal trails – but not like this!

Screenshot of Righthaven website

I used to bulls-eye womp rats in my T-16 back home. They're not much bigger than two meters.

Righthaven has a website! I don’t know when this started, but it’s the first I’ve noticed it. When Righthaven originally hit the news, they didn’t have a web presence, but now they have this intimidating looking site. And what’s funny about it is, the first time I looked at, the television in our home happened randomly to chime in with a sound clip of the Darth Vader Theme from Star Wars. (For reals!) On its website, Righthaven declares itself “THE NATION’S PREEMINENT COPYRIGHT ENFORCER.” It’s also got a funny kind of graphic which, I have to say, kind of looks like the view down the trench of the Death Star. The only thing that interrupts the Dark Side theme is what looks like a gigantic bacterium that is dividing in two. And that, at least, certainly looks foreboding. Now, there’s no other pages or any other content except for the graphic, which has the slogan and contact information embedded in it. (Much of the text is hard to read because it disappears into the background in a typographic meltdown.) Now, you do realize what that means: By my putting up the one inset picture of the Righthaven website (upper right), I’ve copied 100% of the website. Uh oh. And since it’s Righthaven’s own website, this is one copyright infringement suit that they actually wouldn’t have standing problems with. Now, what I’ve done is fair use. Helpfully Righthaven’s misfires have helped establish solid precedent that taking 100% of something can qualify as fair use. Now, a solid fair-use defense hasn’t stopped Righthaven from suing in the past, but maybe it will in the future, since …

lots of $100 bills spread outCha-CHING! After losing on fair use in Righthaven v. Hoehn, 2011 WL 2441020 (D. Nev. June 20, 2011), Righthaven’s now been order to pay $34,000 in attorneys fees. “The wheels appear to be coming off the Righthaven trainwreck-in-progress,” says Ars Technica. And that’s gonna matter for a business that thrives on low-dollar settlements somewhere in the $2,500 range.

Will Righthaven declare bankruptcy before the year is out? Hmmm. Difficult to see. Always in motion the future is.

Are You Kidding Me? Apple Loses Another iPhone Prototype in Another Bar

Thursday, September 1st, 2011

Apple iPhone with stick figure elements, shown running awayPhoto: Apple. Deft artistic embellishments: Me.

Last year we followed the story of Apple’s iPhone 4 prototype, which was lost in a Silicon Valley beer garden. It was a blog law story because Apple went in heavy against tech blogger Jason Chen, getting a multi-jurisdiction police task force to raid to his home and seize a bunch of his property. And this was after the guy who found the phone tried to return it to Apple and Apple refused to return his calls.

Now, it’s happening again. This time an iPhone 5 prototype was dropped in Cava 22, a tequila bar in the Mission District of San Francisco.

As CNET, who broke the story, reports:

Apple electronically traced the phone to a two-floor, single-family home in San Francisco’s Bernal Heights neighborhood, according to the source.

When San Francisco police and Apple’s investigators visited the house, they spoke with a man in his twenties who acknowledged being at Cava 22 on the night the device went missing. But he denied knowing anything about the phone. The man gave police permission to search the house, and they found nothing, the source said. Before leaving the house, the Apple employees offered the man money for the phone no questions asked, the source said, adding that the man continued to deny he had knowledge of the phone.

I don’t know what’s more unbelievable, that Apple lost another iPhone, or that the San Francisco Police Department investigated a lost-property claim. When I lived in SF, a friend of mine got his car broken into and his radio stolen, and when he filled out his police report and asked the officer if they would be investigating it, they looked at him like he was crazy. I guess if you are Apple, you can get great customer service from the SFPD. That’s kind of ironic since Apple itself is pretty deficient in the customer service area.

By the way, take it from a law professor, don’t give the police permission to search your home. Arrgh.

Here are last year’s posts about the Jason Chen / iPhone 4 mess: