by Mike Masnick
Thu, May 23rd 2013 11:20pm
Thu, May 23rd 2013 8:19pm
from the campaigning-through-reality dept
The most tragically stupid decision was greenlighting a reality show about lawyers. No one cares about watching real-life lawyering. That’s why Nancy Grace exists — to boil salacious cases down to sound bites so viewers don’t have to watch real lawyers.
But almost as stupid was greenlighting a show about a district attorney on the eve of an election and not expecting to run afoul of campaign finance laws.
Imagine running against an incumbent armed with a glossy, major network reality show constantly hyping his effectiveness in office. In the context of a district attorney election, imagine having to run against Adam Schiff after everyone watched a Law & Order marathon.
If that seems unfair, one challenger agrees with you…
The Kings County D.A. election is coming up in September. Well, technically, the Democratic primary is coming up in September, but this is Brooklyn, so that’s really the only election that matters — the Democratic nominee got 99.98% of the vote in the general last time.
Incumbent Charles Hynes is set to star as a real-life Adam Schiff in the upcoming CBS reality show, “Brooklyn D.A.” Basically, watch Cops and then this show and you’ve made yourself a crass, exploitative, reality show version of Law & Order. Since half of the “stars” of this new reality show — based on the tip of Long Island — will be defendants facing time in the state pen, it brings new meaning to being “voted off the island.” It’s kind of “Survivor: Borough Hall”
The show is described in CBS press materials thusly:
“Created by veteran CBS News producer Patti Aronofsky, ‘Brooklyn D.A.’ follows the men and women of the Kings County District Attorney’s Office as they juggle more than 1,000 cases a week,” a press release states. “These hard-charging prosecutors have larger-than-life personalities both inside the courtroom and out. They’re eccentric and living right on the edge. They’re the people living the lives that Hollywood loves to write about.”
Well, that sounds gag-inducing. The promise of “larger-than-life personalities” is going to flop when the audience has to watch 40 minutes of jury selection.
Challenger Abe George does not like it one bit. He’s sued Hynes, the Hynes campaign committee, and CBS in New York County Supreme Court. Hynes is already preparing the “Abe George doesn’t even trust Kings County courts for his own lawsuits — how can we trust him as Kings County D.A.?” ad. George argues that the series is an improper gift to Hynes, granting him free advertising on a major network in advance of the election.
CBS News spokeswoman Sonya McNair told Courthouse News that George should brush up on the Bill of Rights.
“We are surprised that this candidate would not know about the First Amendment,” McNair said in a statement. “This is obviously a publicity push by a politician.”
This is a poor PR move. The snarky tone and derisive statements about George as a candidate don’t do CBS any favors in a lawsuit where the network is trying to prove that they are NOT willing cheerleaders for the Hynes campaign.
Speaking of poor PR decisions, according to the complaint, Hynes described the impact of the show on the election to Reuters, saying, “if they couldn’t take me out then, boy, you’ll never take me out now.” *Facepalm*
CBS argues that the program is a news documentary and therefore escapes NY campaign finance laws that might apply if the program were a reality show produced for entertainment. And CBS has carefully marketed the show as a news program:
George claims that reply was disingenuous, given how CBS marketed the show on March 27.
“A new reality show will give us an inside look into the Brooklyn District Attorney’s Office,” the press release stated, according to the complaint.
“CBS also expressly categorized its announcement on the website under ‘Entertainment.’ This website is still available as of the date of this complaint.
CBS and Hynes may still be able to escape NY campaign finance laws based on Citizens United, which set the table for invalidating the journalistic exception in the new corporate free-for-all of electioneering. If drawing lines between media corporations and regular corporations violates equal protection, then CBS is free to campaign all it wants for Hynes.
And if that’s the case, might I suggest CBS can get started on a reality show following newly announced NYC mayoral candidate Anthony Weiner. They can call it, “Look At My Weiner.”
District Attorney Candidate Claims Incumbent’s ‘Reality Show’ Is a Gift [Courthouse News Service]
Campaigning as the Press: Citizens United and the Problem of Press Exemptions in Law [Nexus]
More stories from Above The Law
by Michael Ho
Thu, May 23rd 2013 5:00pm
from the urls-we-dig-up dept
- In 2011, Richard Linder got a college degree from Excelsior College for about $3,000 -- without attending any classes in person. Excelsior doesn't require graduating students to have taken any of its own courses, so Linder transferred credits (many of them free) from a variety of online classes. [url]
- Ken Ilgunas went to grad school at Duke and lived frugally in his van because he didn't want to get into debt again after paying off his undergrad loans. Ilgunas showered in the school's gym facilities, bummed electricity and internet from the libraries, and wrote a book (Walden on Wheels) about his lifestyle. [url]
- Jonathan Hood paid for his graduate education at Auburn University with a TON of mail-in rebate offers. Buying stuff, redeeming the rebates and then eBaying the stuff... it takes a lot of time, but he wrote some automation software to help him keep track of all of it (and he'll likely be able to sell that someday, too). [url]
by Mike Masnick
Thu, May 23rd 2013 4:01pm
from the it's-not-about-control dept
There's this construct within large corporations, which is 'we control our brand!' And the moment anyone does anything unauthorized with it, we need to shut that down. Because brand control is paramount.To counter this, he uses the example of Lucasfilm which has generally been supportive of fan-art and fan creations, saying that they really only get involved when significant profits are being made. Of course, that's not entirely true. We've seen a few cases where Lucasfilm and its lawyers go a little overboard with threats, but the general point makes sense.
To me the lesson is that you can't ever leave the interpretation of fair use to the corporations.Oddly, the host of the show says that it's too late for that, though that's completely wrong, too. Companies don't get to define fair use. It's still in the law and determined by courts. It may not be clear enough, but it's certainly not determined by the copyright (or trademark) holders. The host also (again, oddly) claims that fair use is mostly based on a court case from 1982 (which one?!?) and that people fear to test it. While it is true that there is some fear over bringing fair use to the courts (it's expensive and still arbitrary), there have been an awful lot of fair use cases that have gone through the courts in recent years including some key victories in recent cases that have stood strongly in favor of fair use.
But then Savage makes the key point: which is that companies need to realize that fans doing stuff in support of their brand can be a really good thing:
The other thing is to make a qualifiable assessment of what the best business practices for them are. In so many corporations you end up with this battle between the PR department -- who really does understand how to reach out to the fans and put everyone under a nice umbrella -- and the legal department which wants nothing to do with them... and is somehow anti-the fans.... So wake up legal departments. We know that you guys work hard and are smart people. But you need to understand a little bit more about this before you send these nastygrams.He also compares the whole thing to the Streisand Effect, and suggests that he's going to go on Etsy to buy an "illegal" Jayne hat.
by Mike Masnick
Thu, May 23rd 2013 3:01pm
from the stupid-partisans dept
On the Republican side, politicians are reasonably up in arms about this, but they seem to ignore that when "their guy" was in the Oval Office, they were very much in favor of having the DOJ sift through reporters' emails. On the Democratic side, you have groups like Media Matters, ridiculously destroying its own credibility by coming out with talking points about how the DOJ did the right thing in spying on reporters. Basically, it's all about "defend your guy / attack the other guy" no matter what the situation is. This obviously isn't true across the board -- there certainly have been some party members "crossing lines" to express horror at this kind of surveillance.
Frankly, this kind of partisanship is part of why so few people trust Congress. It seems like a pretty clear case of what's good and right, and spying on journalists' communications is generally considered not right. A principled stance would be to oppose that, no matter which party is in power. When positions are staked out clearly based on partisanship, the public loses whatever little trust it has that the government has its best interests in mind.
Thu, May 23rd 2013 2:00pm
from the mmmmm-beer dept
In what's a first for me, Brig C. Mccoy shows me an instance where one brewery with a trademark on a single digit has sued another brewery over a completely different digit.
A lawsuit filed May 16 in U.S. District Court charged that West Sixth began selling beer, ale and brewpub services in 2012 using color, trademarks and designs "that closely resemble and are confusingly similar" to the designs used by Magic Hat for several years.And if you look at the side-by-side comparison picture, you can see exactly what they mean. After all, Magic Hat #9's logo is maroon, yellow and orange, with a trippy stylized number 9 and a star. The offending logo from West Sixth's amber ale is brown, tan and silver, with a non-stylized number 6 merged with a circle and a star. In other words, they're almost nothing freaking alike in any way.
West Sixth appears to agree.
"They're claiming that we intentionally copied their logo, and that has caused them "irreparable harm," enough that they're asking for not only damages but also all our profits up until this point (little do they know that well, as a startup company, there wasn't any, oops!)"
West Sixth logos were created by a professional design firm in Lexington called Cricket Press that has "a long history of fantastic and creative logo designs. ... Our logo contains neither a '#' nor a '9.'"The lack of a # is actually kind of key. As West Sixth points out on its own website, the trademark in question includes the "#" sign, so the fact that their beer doesn't have it is pretty damning by itself. But, even beyond that, the focus on different numbers is just ridiculous.
Look, within the confines of a beer can or bottle, there's only so much you can do with a logo. That said, here's a fun experiment you can do at home (assuming you're of legal drinking age). Find someone who has never tried either of the Magic Hat or West Sixth beers in question. Sit that person down at a table with a case of both beers in front of them. Ask them if they are under any illusions that the two brews are distinctly different because of the logo. When they say, "Of course not, you idiot, and why did you kidnap me from the Stop & Go?!?", ask them to slam one of each beers. Rinse, repeat. Exactly how many double-slammed-beers do you think this person would have to go through before they can't tell the difference between a 6 and a 9?
by Mike Masnick
Thu, May 23rd 2013 1:01pm
from the indeed dept
by Mike Masnick
Thu, May 23rd 2013 12:04pm
from the wow dept
Vermont’s law (H.299, to be codified at 9 V.S.A. § 4195-4199) is entitled “Bad Faith Assertions of Patent Infringements.” However, it doesn’t define “bad faith patent assertion.” Instead, it enumerates factors to help judges distinguish legitimate from illegitimate patent assertions. Factors that suggest a bad faith patent assertion include not identifying the patent(s)-at-issue, the patent owner, and exactly how the recipient’s behavior violates the patent; demanding too quick a response or too much money; and making deceptive or meritless assertions. Factors that suggest a legitimate patent assertion include commercializing the patented invention; being either the original inventor (i.e., not having bought the patent for assertion purposes) or an educational institution; and having successfully enforced the patent in court.The law would allow those threatened by trolls to sue back and seek damages, even if no lawsuit has been filed. In other words, it helps those who are being shaken down and don't want to settle. That's a nice feature, but there are some reasons to be skeptical. It also allows the state Attorney General to go after patent trolls. While the law may scare of some patent trolls, I think Eric Goldman is right that a state-based solution is neither a good idea for this, nor is it probably legal. Patent law is a federal law, and federal preemption likely means that state laws that impact patents aren't allowed. This tries to hide it as a consumer protection law, which is an interesting strategy, but I could easily see this law being tossed out.
Of course, even before the law was officially on the books, it looks like Vermont's Attorney General has already sued a patent troll under existing consumer protection laws (raising questions as to why the new law is necessary). In this case, the troll is one we've written about a few times. Remember the series of rotating shell companies that had claimed that businesses who had a networked scanner need to pay $1,000 per employee? Yeah, that one.
The Vermont Attorney General claims that many of the statements made in the threat letters sent out by the rotating set of shell companies include "deceptive statements" and "deceptive practices" that violate consumer protection laws:
Defendant engaged in unfair trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. § 2453(a) including:The lawsuit also claims that lawyer Jay Mac Rust is really the person who owns the patents via the company MPHJ. As you may recall, last month we wrote about Mac Rust after Joe Mullin at Ars Technica interviewed him in connection with the case. At the time, Mac Rust claimed that he was just one lawyer working for the owner of the patent, but who handled the "irate" recipients. So it's interesting to see the claim that he's really the guy behind MPHJ. As we've noted, there's long been an assumption that the use of shell companies is often done to hide the fact that it's the patent lawyers themselves who own the patents being used.a. Stating that litigation would be brought against the recipients, when Defendant was neither prepared nor likely to bring litigation;Defendants engaged in deceptive trade practices in commerce in violation of the Vermont Consumer Protection Act, 9 V.S.A. §2453(a), by making deceptive statements in the threatening letters which would likely lead consumers to believe the following:
b. Using legal counsel to imply that Defendant had performed a sufficient pre-suit investigation, including investigation into the target business and their potentially infringing activities, that would be required to justify filing a lawsuit;
c. Targeting small businesses that were unlikely to have the resources to fight patent-litigation, or even to pay patent counsel;
d. Sending letters that threatened patent-infringement litigation with no independent evidence that the recipients were infringing its patents;
e. Shifting the entire burden of the pre-suit investigation onto the small businesses that received the letters;
f. Propounding burdensome information demands on any business that claimed not to infringe the patents; and
g. Using shell corporations in order to hide the true owners of the patents, avoid liability, and encourage quick settlements.a. Defendant would sue the target business if they did not respond within two weeks;
b. Defendant would sue the target business if they did not pay money;
c. Defendant had a reasonable basis for identifying the target businesses as infringing its patents;
d. Subsidiary Shell LLCs were exclusive licencees able to enforce the patents;
e. Target companies were within the sending Shell LLC's alleged area of exclusivity;
f. Defendant's licensing program had received a positive response from the business community;
g. Many or most businesses were interested in promptly purchasing a license from Defendant;
h. Based on prior licensing agreements, the fair price of a license was between $900 and $1200 per employee;
i. Target businesses were receiving a third letter, which refers to two prior letters, when in many cases recipients had received no prior letters.
The use of consumer protection law in response to patents is an interesting strategy. I'm skeptical as to how well it will actually work in court, but there's no denying that many of the claims made in threat letters are, in fact, untrue and could be deemed deceptive (this kind of thing might work against copyright trolls as well). No matter what, this is going to be a key case to follow.
by Mike Masnick
Thu, May 23rd 2013 11:05am
from the great-moments-in-lawyering dept
Well, it appears that Nazaire seems to believe that if he just keeps telling the court crazier and crazier things, perhaps it will ignore Judge Wright's ruling. The latest filing tries, once again, to give the judge in Georgia a reason to ignore Judge Wright's ruling, but again it doesn't make much sense. The filing is rambling and somewhat wacky, seemingly trying to argue that, even though Prenda and AF Holdings are implicated in both cases, they're completely and totally unrelated. He also seems to argue that these filings are just designed to rack up higher billing fees. Note, for example, the slightly paranoid use of capital letters:
That motion was NOT written by the undersigned; nevertheless the defense has filed it in THIS docket apparently for two reasons. 1) to bill for the same and 2) to give THIS Court the impression that either the undersigned or a friend of his drafted and filed the same.But where it gets really wacky is when Nazaire just starts tossing in totally random claims about hackers:
Why would the defendant in this case file a copy of a motion (ECF No. 31, Defendant’s Exhibit B) from the California case and into THIS docket when that motion has nothing to do with this case?What is Exhibit A, you ask? Why it's a random story about hackers claiming to be a part of Anonymous hacking into Paypal. What does that have to do with anything? The answer is nothing.
The undersigned does not know the answer to that question. However, it must be noted that defendants (not the one herein) in these types of cases, typically employ various crafty and intimidating schemes against prosecutors and plaintiff’s attorneys. A newspaper article mentioning other types of intimidation is attached hereto as Plaintiff’s Exhibit A.
Here's what I find most incredible about Nazaire's line of reasoning. It is basically "please ignore this other case where the same companies that I'm working for have been called out for fraud on the court, because that's totally unrelated, even though they're the same companies" while at the same time saying "we can't trust anything the defense says because, hackers! And, as proof, here's a random totally unrelated story about hackers."
He goes on to suggest that these hackers are after him, because some moron sent him a stupid email.
Furthermore the undersigned has been personally harassed by these types of defendants (not the defendant in this instant case nor the individuals listed in Exhibit A) because of THIS case alone. (Please see Plaintiff’s Exhibit B attached hereto).Exhibit B is a silly email from someone using the email address "email@example.com" saying:
You are about it get justifiably screwed by the justice system.Of course, this is a stupid email by whoever sent it, but it's hard to see how that's necessarily "harassment," nor does it show that the person who sent that email is one of "these types of defendants." It's just a stupid email from someone mocking Nazaire (the email address should have been a giveaway on that front).
It's nice to see.
You aren't very smart, are you?
Either way, if I'm the judge in this case, each of these filings only makes me more interested in whatever must be in Judge Wright's order...
Thu, May 23rd 2013 10:01am
from the now-you-see-it,-now-you-don't dept
If you're a government with something to hide, there are plenty of shady ways to handle Freedom of Information Act requests. You can make sure your organization is legally allowed to carry guns and simply refuse, like the NYPD. You can also make a big deal about how requests are only honored for in-state residents, as if that were the spirit of the legislation. Or, if you're as big as the federal government, you can play a sort of bureaucratic hackey-sack game with the request for years before releasing the most non-useful information possible. The problem with all of these methods, however, is that they make those using them look petty, but they don't really cement their position in the corrupt jackasses category that I believe all government agencies secretly want to obtain.
Which is why we'll go to the Chicago city government, since they're the obvious experts in the matter. Here, Rahm Emanuel's administration has taken responding to FOIA requests to a whole new level, not only providing nothing in response to such requests, but then answering questions from the Attorney General with non-responses indicating they might just have proactively destroyed the documents being requested. This story begins with our vaunted public school system, the CPS. Glenn Krell wanted to get his hands on what research had been done when CPS put in a longer school day without bothering to give schools any resources to actually do anything with the extra time.
Krell figured CPS had done research on the longer school day because, like every parent in the system, he'd received a letter from Jean-Claude Brizard, then the CEO, claiming that "our elementary school students are receiving 22 percent less instruction time than their peers across the country." So he sent CPS a FOIA request asking for "the reports, statistics, comprehensive city-by-city analysis and other documents that back up the statement by Mr. Brizard."
CPS responded that "the district does not maintain any documents responsive to your request."Got that? CPS cites a statistic justifying the longer school day, Krell asks for the basis of that statistic, and CPS says there is no document for that. In internet terms, Krell asked for a citation and CPS was unable to provide one. In addition, Krell asked for information on how the city decided to achieve what it calls "selective enforcement tiers", by which high-performing schools are made available to lower-income families as a method for integration. This was another matter about which CPS had indicated its offices were just overflowing with research.
He knew CPS had lots of information on this matter because he'd read about it in the Tribune. In that article, CPS officials boasted about how they'd left no stone unturned in their effort to make the selection process as fair and objective as possible. They said the process considers data such as home-ownership rates in the students' census tracts and the share of homes where English isn't the primary language.The response to that request? CPS claimed there too it had no documents to turn over. But why? Had Brizard and CPS simply made the statistics and research claims up? To find out, Krell appealed to AG Lisa Madigan, which is exactly what the law indicates you're supposed to do if you get a fishy response to a FOIA request. Madigan's office dutifully asked CPS if such documents had never existed, or if they'd simply been destroyed. CPS responded that they had never maintained those records and they do not exist. The result of that non-answer was for Madigan's office to declare the matter closed.
And that's a problem, because CPS didn't actually answer the AG's question. They do not answer whether or not the documents ever existed at all, only that they never maintained them and they don't exist currently. One way to achieve that answer is for the research to never have actually been done, which would make CPS liars on multiple items it had addressed to parents and the press. Another way is for those documents to have been proactively destroyed instead of maintained, quite possibly so that they'd never have to be revealed for a FOIA request. Either way, that's crappy government. Add to that Madigan's shirking of her responsibility and it's difficult to take Emmanuel seriously when he claims his administration is "the most open, accountable, and transparent government Chicago has ever seen."