GMacGuffin's Favorite Techdirt Posts Of The Week

from the back-again dept

Pre-postscript: I realized down at the end of this that it's all about uncool lawyering, and I didn’t get to the most uncoolest of them all, the DOJ. Steel up, because scary DOJ stories roll in at an alarming pace.

That said, we're working an attorney theme today from Hey, to Schadenfreude, then on to Censorious Douchebaggery.

The Hey: I am an Internet Lawyer in San Diego, which essentially means that I am a business litigation and transactional attorney who is deeply into internet and technology. I like to maintain a modicum of separation between my personal opinions and my professional life, hence the handle. I read Techdirt and other tech/law blogs regularly because ... well, things have changed -- radically -- several times, over the eight years I have been focused on Internet Law, and you gotta stay on top of this stuff.

My job is not to file lawsuits -- it is to resolve problems that the client needs resolved; to be the buffer between my client and the other guy. Lawsuits are what you do when nothing else works. It feels good to be me because I help people who need my skills. Yet, some lawyers can't seem to remember that they are nothing but a particular skill set and their own reputation, i.e., that being ethical actually does pay. Cue the trolls.

I have had it in for legal trolls and shakedown lawyers for over a decade -- first brought to my attention by the Trevor Law Group who used CA's wonderful unfair competition law (UCL @ Bus. & Prof. Code §17200 et seq.) to shake down small-time hair salons and auto repair shops, etc. for a couple grand over alleged minor code violations. Those attorneys ultimately resigned to dodge being disbarred.

Trolls subvert the legal process; make things worse for the good guys; do nothing for the greater good -- or, often, even their clients (if they really have one). They royally piss me off. So yeah, watching Prenda flame out across my universe is about as enjoyable as listening to the garbage they spout is infuriating (and hilarious). The hubris. Watching Prenda help to sound the national death knell for copyright trolling in general is … heartening. (Certain commenters' ill-formed *beliefs* notwithstanding, the Prenda debacle is a big deal of epic scale.)

The Schadenfreude: And so the blitzblurb of the Prenda stories going down this week: First Paul Hansmeier asks the Appeals Court to stay Judge Wright's hefty sanctions order … except, you have to ask Judge Wright in District Court, not the 9th Dist. App. Ct., which same court notes that meanwhile, "you can't play here in your other class-action objection appeal thingy, Paul." Ouch. Other Prendites also request a stay the same way, and get the same result, with a Special Added Bonus Benchslap for the failure to pay and improper last minute filing: $1,000 per day, per individual party, for each day they don't pay or post bond, and an OSC to explain themselves regardless. Yikes. If you are an individual and the shell companies … do the math. (As a general rule, Judges do not like last minute requests; really don't like ongoing patterns of last minute requests; and especially don’t like them when coming from parties who have already caused the Court paroxysms of judicial fury.)

Then we move over to Minnesota (man, I had some serious fun there in my youth), where the real Alan Cooper had sued Prenda and some Prendites over that silly misappropriation-of-Cooper's-name-on-legal-documents business. We had a quick report by TD on a default hearing, then a lovely writeup by non-lawyer observer Matthew Sparby, who appears to have nailed the overtly emotional proceeding, with the Court throwing nasty words like "fraud" around freely. I, too, can attest that this judicial response as reported was most unusual. But I add that in 16 years of litigation practice, here's what to expect at any hearing, no matter how prepared you are: Whatever you didn't think of beforehand.

But there was actually kind-of-good news for the Prendites with two cases likely going away less painfully than what could have been, and we move on to Prenda in Georgia, with Jacques Nazaire. God I love this lawyer! He stacks on the nutty like gobs of Nutella on Milton's Multi-Grain. Frankly, I don't know what he was talking about -- I just see Chewbacca Defense -- so just read the story. In legal parlance, there's this thing called the "laugh test." You might have heard of it. We have a duty to zealously advocate, and can make untested good-faith arguments, but you want to pass the laugh test even when your case is not receiving widespread coverage.

Censorious DBs: Speaking of nutty, we had DH's story about Ferrero's Nutella brand spread, and its C&D Brand Brigade (temporarily) shutting down an avid fan's World Nutella Day, an unmitigated Nutella lovefest run by a fan whom Ferrero had worked with for years. This ties in with the story about the NY Times going all ... well, NY Timesey with NYT's overreaching "brand protection" efforts. As I noted in the comments, I've seen firsthand their legal department's attitude. It does not appear to be about the better good of the publication, or the big picture at all. It's one thing to C&D a party who reproduced their lauded multimedia piece as an example of the party's new publishing software. Forgivable at best. It's quite another thing to say: "You need to remove any reference to the New York Times from your website..." Er, you need to stop being a censorious asshat … infinity! Let's see if she complies.

I'm super freaking happy to learn that Nutella backed down (per the article update). Was it overzealous lawyers or public backlash? Probably both. Nutelladay.com posts Ferrero's release about the "fix," saying it was a "routine brand defense procedure." Ahh, so that's what causes all this crap to rain down on those who mention a brand. Here in the 9th Circuit, it's called Nominative Use. It's not trademark infringement to reference a mark if that's the only practical way to get the point across. (Please pay attention, Super Bowl. Yeah, I said it. Super Bowl Super Bowl Super Bowl.)

As to the overzealous brand lawyers, I'm being diplomatic with the term. I recall a stupid lawsuit over PPC keyword advertising filed out-of-state against my client. No real warning, no asking nicely; no merit -- {insertion codes} were putting the other Co's name in my client's ad. Easy fix had they asked before suing. I was not at all subtle with these guys -- to the point that local counsel had to play "good cop" -- and after all this back and forth, opposing counsel finally says, "We brought the client into the loop, and ...." WTF? Client wasn't in the loop during lawsuit filing and negotiations? The law firm was driving the bus? Yeah, there's some incentive to resolve problems, eh?

Stunningly weirdly, about the time I finished the previous couple paragraphs and took a food break, TD posted a discussion of the Adam Savage interview about unreasonable brand control. I had this closing bit in mind to sum my hypothesis of the above, and basically Mr. Savage says it for me right there. So I'll just post what he said:

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.

Manually Drafted and Coded by Yours Truly,

GMacGuffin Twitter @gmacguffin (baseball & random); @tcjlaw (tech/law)



Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
     
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    Shill On crack, May 25th, 2013 @ 4:04pm

    hey hike, you Google Shill who still thinks that internet freedom means you can steal anything from the internet and that makes it right because it's the internet. deep packet inspection does not take away your internet freedoms either it just lets the government monitor your internet connection which is perfectly ok. you still have your freedoms so long as you don't break the law. and your fear mongering that the government will abuse their monitoring powers is unfounded. you just want to be able to steal everything off the internet and hack banks and corporations so that you can transfer money into your account and you want to hack the government and the power grid to shut it down and you don't want the government to know about it. you know google is paying you and you won't admit it either. mike stop pretending that this is about internet freedom. it's about theft and you want to be able to cause havoc and get away with theft and not be stopped.

     

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    Zem, May 25th, 2013 @ 6:24pm

    Re:

    I am overwhelmed by your words. This is the best bit of fan fiction I have read in a long time.

    Good news for you. Amazon will now let you sell your fan fiction for $$. Why waste your literaty talents here when you could be the next Barbara Cartland?

     

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    Shill On crack, May 25th, 2013 @ 6:43pm

    Re: Re:

    Mike is taking bribes from Google and Kim dot com which is why he is supporting the guy after breaking the law and trying to extort everyone. The whole thing is a big plot by Kim and Goolgle to make the patent system look stupid and mike is here for the ride.

     

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    Anonymous Coward, May 25th, 2013 @ 7:06pm

    Re: Re:

    "Amazon will now let you sell your fan fiction for $$. Why waste your literaty talents here when you could be the next Barbara Cartland?"

    I should sell a book entitled how to become a shill.

    A: Make things up

    B: When you don't know how to respond to something or you don't know the answer make something up. It doesn't have to be true or make any sense. and bonus points for poorly punctuated and incoherent sentences with poor spelling and run on sentences that no one could understand, you might fool someone into thinking there is a valid point in there somewhere.

    C: Throw a bunch of false, unsubstantiated, and absurd accusations at your opponents. The more outrageous the better

    D: Never say anything substantial, useful, or logical

    E: Never substantiate anything you say with facts or evidence

    F: Never make sense. If your argument is strong enough it doesn't need to be logically consistent or make sense. It should stand on its own merit and be a self evident truth. QED

    G: Don't worry about the veracity of anything you say

    H: Don't hesitate to lie. We're shills, we're not about truth we're about propaganda and our own agenda

    I: Never fact check. Never do any research. It's too time consuming and your time is better spent making more haste comments without even spending the time to think before you post. Quantity before quality

    J: Fear monger. Remember, spreading FUD is more effective than using good logic. Appeal to people's emotions and not their intellect, it works better.

     

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    btrussell (profile), May 25th, 2013 @ 7:19pm

    Re:

    At least you were honest with your username.

     

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    Anonymous Coward, May 25th, 2013 @ 8:39pm

    Why no name ???

    I guess it's because you are a lawyer, you stick you nose in everyone else's business, (be a buffer!), and then ask then to pay you lots of money.

    Do you sell yourself in 6 minutes chunks as favoured by most "lawyers", and charge your clients for checking your typing ?

    No lawyer licks to litigate, because they lose control, it's much better if you can "talk" to the other parties lawyer, (take your time) and make a "deal" with them, to maximise your income. (and not actually have to do any work).

    Go to Court, and you have to actually do real work, make a case, and actually compete with other lawyers in front of a Judge.

    No lawyer wants to do that, they would rather "settle and get some quick money".

    And why are you not game to give us your real name.

    I notice you are happy to attack other people who at least have the balls to put a name to their work..

    But being a good (or not) lawyer, why not have the conviction of your words, to make these criticisms under your own name?

    If you don't have the balls to use your own name, then go off and attack other people by name, what does that say about you ?

    I guess you don't want your integrity or honesty questioned or even looked at.

    This mean nothing you say has ANY weight, and shows you are just some coward with no guts or conviction.

    That's sad, but not unexpected considering your line of 'work'.

    your happy to question other peoples work, attack their reputations, accuse them of trying to do things for their clients that you yourself should also be doing..

    But at the same time too much of a coward, or too embarrassed by your own work to put your name to it!!

    I guess that makes you just another scumbag lawyer, who only thinks about himself (and how much you can make) and willing to trash other lawyers who are after all doing their job and representing the interests of their clients.

    Attacking other lawyers who at least have the balls to put a name to their work.

    Why did you not spend this time trying to educate some of the TD crowd about legal issues in relation with technology?

    But no that would be too hard, easier just to pick on individuals by name, and have a bit of fun at their expense.

    I can see why you would not like to get into Court that much, and have a nasty Judge 'review' your workmanship.

    But in doing so you have managed to maintain the expected 'standard' of TD writings.

    Most people don't like lawyers at the best of times, but a lawyer who anonymously attacks other people BY NAME, is probably a good reason why most people don't like lawyers.

    Or, that you just don't want anyone actually looking at your performance, and integrity, and honesty.

    I forgot your a lawyer, you don't have to be honest !!

     

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    Anonymous Coward, May 25th, 2013 @ 8:44pm

    Re: Why no name ???

    "If you don't have the balls to use your own name, then go off and attack other people by name, what does that say about you ?"

    So then who are you?

     

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    Anonymous Coward, May 26th, 2013 @ 12:47am

    Re: Re: Why no name ???

    darryl, who sincerely believes that the average solar panel he talks to has a higher intelligence quotient than the average Australian. According to darryl the average Australian hates Game of Thrones and wants copyright to be extended from forever minus a day to forever plus a day.

     

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    G Thompson (profile), May 26th, 2013 @ 3:05am

    Yet, some lawyers can't seem to remember that they are nothing but a particular skill set and their own reputation, i.e., that being ethical actually does pay.

    This +10

    My job is not to file lawsuits -- it is to resolve problems that the client needs resolved; to be the buffer between my client and the other guy. Lawsuits are what you do when nothing else works.

    This +100

    As for the two imbecilic commentators (at time of posting) above they themselves don't even pass my laugh test (though they pass the 'stupidity' test) especially when I see you have outed yourself TCJ ;) - Though it is up to the intelligent investigator to actually figure out who McGuff actually is...

    Well done McGuff

     

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  10.  
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    Karl (profile), May 26th, 2013 @ 3:45am

    Re:

    Does nobody else realize this is sarcasm?

    I guess it's pretty sad when you can't tell the difference between sarcasm, and some of the A.C.'s who post here.

     

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  11.  
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    Anonymous Coward, May 26th, 2013 @ 5:20am

    Re: Re: Re:

    Say something stupid and when people call you out on it resort to personal attacks.

     

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    Anonymous Coward, May 26th, 2013 @ 6:23am

    '"routine brand defense procedure"'
    what bollocks! funny how there was none of this directed at this 'fan' during the previous 4 years, eh!!

     

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  13.  
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    Rikuo (profile), May 26th, 2013 @ 8:04am

    Re: Re: Re:

    This is fucking hilarious. A new low for the trolls? Kim "I must patent troll Google and Facebook for money for my legal defense" Dotcom is bribing Mike with money...?
    Hands up people. Who else, besides me laughed out loud after reading these?

     

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  14.  
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    GMacGuffin (profile), May 26th, 2013 @ 9:11am

    Re:

    Thanks G. Yeah, others too have determined my true identity by, like, you know ... reading.

     

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  15.  
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    Gene Cavanaugh (profile), May 26th, 2013 @ 9:55am

    Over-zealous attorneys

    As a practicing attorney, I can see both sides. I have a major client who was shocked when I started involving them. They were even more shocked when I showed them how to improve their legal position while dramatically reducing the legal expense they incur (including to me).

    But, hey, that is part of it! Like a doctor, who advises his/her patients to adopt a healthy life style, stop smoking, etc. - hey, they make more money from SICK people - all attorneys, IMO, should work with clients to HELP them be successful, not maximize income!

    I will accept only small entities - the reason? The large entity IP world is dominated by trolls and other evils, and that is not why I became an attorney!

    It all comes down to personal responsibility - so here I am, a "conservative liberal"? But that is the way I see it. As I tell my clients "stay out of court! Use your business skills to avoid litigation!"

     

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  16.  
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    Dave, May 26th, 2013 @ 11:00am

    Re:

    Seldom have I seen such a disjointed comment devoid of proper grammar, punctuation, etc. Trying to be an OOTB but failing miserably - as, indeed, does that particular individual at every turn.

     

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  17.  
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    DP, May 26th, 2013 @ 11:01am

    Re: Re: Re:

    Is this person sane?

     

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  18.  
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    Anonymous Coward, May 26th, 2013 @ 11:24am

    Re: Why no name ???

    ooh look, John Steele posted on TD.

     

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  19.  
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    Anonymous Coward, May 26th, 2013 @ 3:49pm

    Re: Re: Re:

    When people refute you, ignore it, pretend it never happened, and keep repeating the same refuted point over and over. If you can't convince them with logic then overwhelm them with repetition. It shows persistence and you will get an A for effort.

     

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  20.  
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    wzombie, May 28th, 2013 @ 1:18am

    this is no place for facts.. noob

     

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  21.  
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    Anonymous Coward, May 28th, 2013 @ 4:35am

    Re:

    And you're simply dripping with them, aren't you?

     

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  22.  
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    Anonymous Coward, May 28th, 2013 @ 5:32am

    Re: Re: Why no name ???

    I am the person NOT writing articles for TD claiming I am a lawyer, and that I have the honestly to put a name on your article.

    I am NOT the one wanting to write for TD and still maintain some respect from those I work with. (or for).

     

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  23.  
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    Anonymous Coward, May 28th, 2013 @ 5:36am

    Re: Re: Re: Why no name ???

    "darryl, who sincerely believes that the average solar panel he talks to has a higher intelligence quotient than the average Australian. According to darryl the average Australian hates Game of Thrones and wants copyright to be extended from forever minus a day to forever plus a day."

    excuse me FUCKWIT, you don't know what I believe, I don't even think you know what you believe.

    please find any quotes from me what I have ever stated I want copyright extensions, or have ever mentioned anything about "Game of Thrones".

    I would really love to meet you in person, I bet you would not be so tough then.

     

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  24.  
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    Anonymous Coward, May 28th, 2013 @ 5:39am

    Re: Re:

    well it's not by you putting your name to anything, or willingly providing your identity.

    Is this some kind of fun lawyer game your playing.

    Find the 'real' lawyer??

     

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  25.  
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    Anonymous Coward, May 28th, 2013 @ 5:49am

    Re:

    Yet, some lawyers can't seem to remember that they are nothing but a particular skill set and their own reputation

    Skill set, would that be their "intellectual property", so lawyers make a living from the resources of their intellectual property.

    And here I was thinking Masnick is right that IP has no value !!!!.

    except in every case where it DOES !!!!!

     

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  26.  
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    Anonymous Coward, May 28th, 2013 @ 5:54am

    Re: Over-zealous attorneys

    "I will accept only small entities - the reason? The large entity IP world is dominated by trolls and other evils, and that is not why I became an attorney!"

    The real reason?? they have GOOD attorneys.

     

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  27.  
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    Anonymous Coward, May 28th, 2013 @ 7:16pm

    Re: Re: Re: Re: Why no name ???

    Excuse you? Every single time you post, it's nothing but derision and criticism for anyone and everyone else who post here. Every post made is an accusation that people want less copyright, and that this is what the average Australian wants.

    Even more laughable? You nitpick the standards of English of others, yet every time you post, it's a horror show of language. Especially that whole shtick with multiple commas,,,,, do they not have punctuation school in Australia, or is that just you? Solar panel engineers don't need written skills, is that it?

    Go on, then, cross the oceans while floating on a boat made out of your solar panels. They've gotten you this far, maybe with a coating of sealant made from the bullshit you keep spawning, it just might be watertight enough. We'll be waiting, "fuckwit".

     

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  28.  
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    Anonymous Coward, May 28th, 2013 @ 7:17pm

    Re: Re: Re: Why no name ???

    Hey, dipshit. Does everyone in Australia write with a space before the useless multiple question marks, or are they under quarantine like you?

     

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  29.  
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    Anonymous Coward, May 28th, 2013 @ 7:18pm

    Re: Re: Re:

    And the real lawyer's not you, dumbass. So the fire department didn't want you, and you decided to be a solar panel rigger. Do they deploy you out in the middle of the Australian desert for that? No wonder, it looks like you speak to poisonous snakes all the time.

     

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  30.  
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    Anonymous Coward, May 28th, 2013 @ 7:20pm

    Re: Re:

    Pray tell, does solar panel engineering involve multiple exclamation points, followed by a full stop? Is this the linguistic calibre of any functioning person that made it past grade school? Or are you just this much of an unimaginative shitstain?

     

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  31.  
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    Anonymous Coward, May 28th, 2013 @ 7:21pm

    Re: Re: Over-zealous attorneys

    So law is judged not by morality but by how much you pay for it, got it.

     

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