Lawyers Write Law, And Then Are The Only Ones To Make Millions Directly Off Of It

from the regulatory-capture-and-rent-seeking dept

It's difficult not to become even more cynical when you read stories like the following one. Sent in by Eric Goldman, it's about a state law in California that was mainly written by two lawyers: Joaquin Avila, a law professor from Seattle, and Robert Rubin, the "legal director" for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. So, here's the interesting thing: since this state law has been put in place (seven years ago), the only lawsuits have been brought by Rubin's committee or Avila and they've made themselves over $4 million with a few more lawsuits pending and a bunch more threatened (again, all from either Avila or Rubin's committee).

What a great deal: write a law, and then be the only lawyers to use the law to make millions.

As for the law itself, it was a law that apparently very few people were asking for -- requiring that state courts carve out specific districts that favor minority groups, so they are not excluded from local elections. Here's how the AP describes it:

The California statute targets commonly used "at-large" elections -- those in which candidates run citywide or across an entire school district. Avila said that method can result in discrimination because whatever group constitutes the majority of voters can dominate the ballot box and block minorities from winning representation. As a remedy, the law empowers state courts to create smaller election districts favoring minority candidates.

Officials in several California communities said they never heard complaints of voter discrimination until the lawyers stepped forward. In one case, the Tulare Local Healthcare District, now known as Tulare Regional Medical Center, was sued even though its five-member governing board is a rainbow of diversity -- two emigres from India, a Hispanic, a black and a white. The lawsuit argues Hispanics, who make up about a third of local voters, have been shortchanged.

Of course, there are many reasons why the exact makeup of a governing board might not match the exact percentage of the population (including the simple fact that most people vote on issues, not the ethnicity of the people they're voting for). But, even if there was a problem it seems highly questionable that the two lawyers who wrote the bill are now profiting tremendously from it and appear to be the only ones who do so.

It's stories like this one that make us so nervous about so much legislation. This is the type of law they create: it maysound good (who's going to argue against diversity?). But, the actual law appears to have been nothing more than a way for these lawyers to go around collecting millions, while disrupting communities and schoolboards, and sending their taxpayer money to these lawyers.

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Lawyers Discussing Business Models

from the dancing-about-architecture dept

Doug Lichtman's latest "IP Colloquium" podcast is on the question of whether or not "content can survive online." Specifically, it's a discussion about "online content business models." Oddly, though, rather than having business model experts, it's a conversation with four lawyers, starting with Doug, and including Brad Smith, General Counsel, Microsoft; Scott Martin, Executive Vice President, Intellectual Property, Paramount Pictures; and Dan Cooper, Vice President, Legal & Business Affairs, MySpace. Lichtman starts it off, oddly, by stating -- as if fact -- that talking about business models online is depressing because there's just not much in the way of business models online for content. I think that's damning things a bit early in the process -- something that comes up again later.

While I realize that the podcast is a legal podcast, it still strikes me as odd to bring together four lawyers to have them discuss business models, when their expertise is not in business at all, but in the law.

The podcast starts out with a discussion on the Google Book search and settlement, but oddly no one even seems to give any credit to the fair use question. But, again, since these are lawyers we're talking about, there really isn't much of a discussion on business models around Google Book Search, but on legal questions -- including a hope that Congress steps in to solve it. Amusingly, Microsoft's Smith early on suggests that it's a question Congress could solve "if the industry got behind it; if copyright holders got behind it." Striking, huh? He basically admits how copyright law works in this country. It's not about what's best for the overall society or economy. It's not about the politicians fixing things where they see a problem. It's not about consumers. It'll happen if the industry gets behind it. Welcome to the way things work in DC. The rest of this part of the discussion is interesting -- and it's one (rare) case where I mostly agree with Lichtman, that as a resource, Google's Book search is incredibly useful, and we should figure out some way for it to happen.

From there, the discussion moves on to other business models, and quickly seems to head off in directions that I don't think are accurate from a business model standpoint. It starts off with two premises set forth by Lichtman, each of which I think is suspect. First, he claims that piracy is a problem because "you can't compete with free." Frankly, I'm sick of this argument because it makes no sense economically or from a business standpoint. Economically, saying that you "can't compete with free" is the same thing as saying you can't compete -- period. It assumes, falsely, that the only way to compete is on price, but the history of the economy shows that's not true. You compete on price or you compete on benefits, and competing on price is often a losing battle anyway. Saying "you can't compete with free" just means you only know how to compete on price. If that's the case, you shouldn't be in business.

And, to make that point clear, tons of companies compete on benefits, and allow other companies to offer lower priced offerings. The popular example, of course, is "water," whereby it's free (or near free) to drink out of the tap, but the bottled water business is a multi-billion dollar business. Why? It tries to compete on other factors -- such as convenience, quality or safety (though, there are arguments that many of these benefits are perceived rather than real). But it's true in just about any other business as well. In the automobile business, a BMW costs more than an entry level Ford, and that's because BMW is seen to have a lot more scarce value. Ford could "copy" BMW, but BMW has its reputation and some amount of prestige that Ford simply can't copy.

Anyone who's in business recognizes that you don't just compete on price. So why is it that so many seem to assume that the only way to compete in the content market is on price?

Lichtman's second premise is that online business models don't work. He says that Hulu hasn't been a success because it doesn't make as much as TV, and that if Hulu displaces TV we "won't have the money to pay for" expensive TV show production. He claims that even if Hulu is really successful, it'll never make enough money to pay for the production of a show like Battlestar Galactica. First off, huh? How does he know that? If Hulu is successful, it absolutely could pay for such production. Already, we're seeing that some of the online ad rates are higher than TV ad rates. Hulu's barely been around for two years at this point. I'd be willing to bet that Hulu's revenue today greatly exceeds the revenue of television two years after it was invented. Give it time, Doug!

He then jumps on Redbox -- sarcastically saying "we're renting movies at a dollar per day?" Suggesting that this will never sustain the development of movies. Really? I always find it amusing when people insist that problems in the DVD market will mean the death of Hollywood. It really was just 25 years ago that Hollywood insisted that the VCR would kill the industry (Boston Strangler, anyone?). Now they finally get their "original" wish, and find that putting movies on recordable media is going away, and it's the worst thing in the world?

Either way, the economic fallacy that Doug seems to be relying on here is twofold. First, he assumes that early business model experiments are set in place and no further innovation will occur that allows them to flourish. He assumes that the markets won't grow, and some of these experiments won't click and get much bigger. Second, he seems to assume that the old revenue numbers for these industries need to be sustained. He doesn't consider that the old revenue numbers may have been a result of monopoly rents, limited competition or technological limits. Markets change all the time, and usually what comes out in the end is much better (subjective, I know, but I'm a believer that the world is a better place today than it was 25 years ago -- and that it will be even better 25 years from now).

But, of course, no one challenges him on this. Scott Martin at Paramount, of course, worries quite a bit about piracy of movies. While he admits (finally!) that he's just the lawyer, rather than the business guy, he discusses it in the terms of adding more windows to movie releases, rather than any discussion of adding more value to the product, or giving people reasons to buy beyond just the content. Then Martin repeats the myth that you can't compete with free, but leads in with a different myth -- claiming that the "copyleft" people say that piracy would go away if they just priced their movies better. That's a strawman argument. Perhaps someone out there made that argument, but it's hardly common. Then he says that "the idea that if we charged $2 a download instead of $10 a download, we'd get rid of piracy is a myth." Sure, it's a myth, but no one said that. You can't get rid of piracy. No one thinks you can get rid of piracy. No one suggested anything you do would "get rid of piracy." What many of us are suggesting is that you can build business models where that piracy isn't a problem. Even the people suggesting you just charge $2 instead of $10 aren't saying it would "get rid of piracy," but that at $2, enough people would pay for it that it would increase profits beyond what the $10 DRM'd version gets you.

Anyway, the discussion goes on from there, including a discussion of the DMCA that again doesn't make much sense to me, but the business/economic analysis throughout doesn't strike me as accurate at all. It's still an interesting discussion, but frustrating because I wish there were at least someone on the panel who would challenge a lot of the "accepted wisdom," put forth by everyone, that doesn't seem to be accurate. Brad Smith, at one point, does point out that this is all a "revenue" problem, and does a pretty good job describing the revenue problem... but then falls into the trap of saying the law needs to "fix the piracy problem" because without that, business models can't be built up.

The last analysis I'll talk about that is again faulty from an economics standpoint again comes from Scott Martin at Paramount, where he tries to defend the importance of DRM, noting that if he flies into JFK he has various price options on transportation: he can buy a car, rent a car, take a cab or take a train. So there are price differentials. He says that without DRM, content is like saying his only option is to buy a car. That is, if he had DRM, they could offer different "rental options" for content, with "one day pricing or one week pricing." But that's totally wrong again. There's a reason for the differential pricing in the transportation options: it's related to the marginal cost of each option and the competitiveness of the market. That's what sets the prices. But with content, the marginal costs are zero, so what he's doing is trying to set up an artificial barrier to pretend the markets are the same.

While I like listening to these discussions, I just find the economic fallacies frustrating.

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Advance Fee Scams Are Based On Greed, So Their New Favorite Target? Lawyers!

from the first-thing,-we... dept

While the "classic" Nigerian 419 "advance fee" scam was based on telling someone they had been awarded/won millions of dollars, which is just held up by bureaucratic problems, a popular variation that's been around for years is buying something online with a bogus check written for significantly more than the amount sold. This scam hit eBay users pretty hard for a while. Basically, it relies on a fundamental misunderstanding of how check processing works. As an example, a check for $10,000 is sent on an item that only costs $2,000, with the buyer asking the seller to send back a check for the difference along with the product. The seller deposits the check and a few days later the bank says that the check "cleared." Banks have to clear the checks in a short period of time. Then the buyer sends off the product and the excess money... only to find out a few days (usually about a week or so) later, that the check is a forgery and the money is gone (along with the product and the legitimate "difference" check that was sent out).

The real issue here is that banks say the check "cleared" which people assume means that the check is legit. But it's not. Fix this problem and this particular scam would disappear overnight.

Of course, most of these scams are based on playing on someone's greed. To brush aside anyone's concerns on these types of deals, sometimes the buyer will ask for only some of the difference back, making the seller think they actually got away with making more money.

But, if you're going to base on a scam on greed, why prey just on small-fry eBay sellers? Why not go after the bigger dogs... like lawyers? You might assume that lawyers would be more sophisticated and not as quick to fall for this sort of thing, but at least with some (and, no, I'm not painting all lawyers with this brush), you'd be wrong. Earlier this year, we wrote about a lawyer who fell for exactly this trick... and then (of course) sued Citibank for letting him make this mistake -- which cost his firm nearly $200,000. Not bad for a simple scam... and thus, it appears that more lawyers are being targeted with just such a scam, even to the point that local bar associations are warning lawyers to watch out for it.

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Sears Settles With FTC For Putting Spyware On Customers' Computers

from the customers-aren't-lawyers dept

You may recall a couple years back, a controversy over the fact that Sears appeared to be installing spyware on the computers of online customers who had agreed to join a "community." Sears insisted this wasn't true, and that it really was software to help create a community of shoppers -- but the evidence suggested otherwise. The FTC eventually got involved, and now Sears has settled the charges that it was unfairly spying on users without clearly indicating this to users. Sears insisted that because the fine print of the terms of service for joining the community said that it would track your online browsing, it was in the clear, but the FTC noted, accurately, that most users would not have gotten that impression from signing up. As Thomas O'Toole notes about this ruling:

I'm pretty sure that attorneys would understand the breadth of the consent covered by the phrase "online browsing." It means everything. The position taken by the FTC signals the agency's belief that consumers should not be treated like lawyers when it comes to privacy-related disclosures. The FTC also appeared to be concerned about the fact that the disclosure was buried in a lengthy privacy statement, which was displayed to the consumer rather late in the consent-collecting process.

This is a good thing. Customers shouldn't need to be lawyers to understand what it is they're agreeing to, and it's nice to see the FTC recognize that fact.

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New Zealand Newspaper Threatens Blogging Critic With Trademark Infringement Claim

from the is-that-really-the-best-way-to-handle-things? dept

Pete wrote in to alert us to yet another case of a lawyer taking an overly aggressive approach to a cease-and-desist... and, in doing so, drawing a lot more attention to the issue. This time it takes place in New Zealand, where a blogger who runs an entire blog called Editing The Herald, which criticizes stories in The New Zealand Herald, received a legal nastygram from The Herald claiming trademark infringement and giving the guy a day to remove his logo -- which was an edited version of The Herald's logo (basically putting the "Editing The" above the logo -- or it would take him to court. As is standard in these things (though, usually with no legal basis), the lawyer demanded that the blogger not publish the letter, which the blogger ignored.

Now, I don't know enough about New Zealand trademark law to comment on the merits, but the whole approach just seems backwards. Having been on the receiving end of a few too many legal nastygrams, it's never a pleasant experience, and there's really no reason to send them if you haven't first tried a more friendly approach. The blogger in this case did agree to remove the logo and is apparently working on a new one, but The Herald and its lawyers could have approached the site in a much more friendly manner, rather than appearing like massive bullies, and giving the blogger more ammo to draw even more attention to the site. Once again, it appears that there are a lot of lawyers out there who still think that sending such cease and desist letters is a good idea.

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Do Lawyers Know Better Than To Send Mindless Cease & Desist Letters?

from the if-only-that-were-true dept

Recently, we posted about how Twitter's open attitude towards third parties and its trademark was probably helping the brand gain acceptance for its sense of openness and fairness. In it, we noted that lawyers were often quick to send cease & desist letters because they can, and not because it makes good business sense. Tom O'Toole takes issue with this claim:

Today, in 2009, all lawyers dealing with online media -- and that includes trademark lawyers -- are well-aware of the challenges of reputation management. They know that any C&D they send could wind up on a hundred Web sites, adorned with ridicule heaped upon their clients. They are able to make nuanced judgments about these things. They are able to balance the pros and cons of enforcing their clients' marks in each situation that may arise. Really, they are.

If only that were true. If it were, we'd have a lot fewer people sending in example after example after example of lawyers being way too quick to pull the trigger on such reputation damaging cease and desist letters. We still get multiple examples of this happening every week. I do agree that a lot more lawyers are familiar with this, but it's certainly not all.

O'Toole also makes an interesting separate argument that Twitter is somehow different than a company like Monster Cable, because Twitter is only involved in "data" whereby Monster Cable makes tangible products, and thus has no network effects. He also suggests that, because of this, Monster hasn't really done much harm to it's business, and that every use of the Monster mark somehow diminishes the value of Monster's trademark. I disagree wholeheartedly. I'm also not sure how this impacts my original claim that aggressive defense of trademarks can harm businesses. Monster Cable has clearly hurt its reputation with its trademark aggressiveness. Just do a basic Google search on monster cable and look at how many of the results near the top are negative, often talking about Monster Cable's aggressive trademark claims. If you don't think that's scaring off plenty of customers, you haven't been paying attention to how customers do research. I'd argue that the value of Monster's brand is diminished a hell of a lot more by everyone trashing the company for being so aggressive than if it had just stayed quiet and focused on building a good product.

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Canon Tries To Shut Down Fake Canon Parody Blog

from the fake-fake-fake-fake dept

Thomas Hawk writes "An interesting twist over at the Fake Chuck Westfall Blog. Fake Chuck (like Fake Steve before him) has a blog out parodying Canon's real Technical Information Advisor Chuck Westfall. It seems that Canon and their lawyers over at Loeb & Loeb are none too fond of all the fun that Fake Chuck and DSLR geeks everywhere have been having at their expense and have sent Fake Chuck's blog hosting company, WordPress, a notice to take the blog down. Canon's lawyers cite that Fake Chuck's blog is "calculated to mislead recipients," even though the blog has "fake" in the title, "fake" in the URL and "fake" just about everywhere else in the blog. What in the heck is wrong with Canon, do they really think that trying to shut down a parody blog is going to make their new 5D Mark II ship any faster?"

It's hard to understand Canon's reasoning here -- other than maybe to pull a "reverse" Streisand Effect and try to get more attention to the blog. After all, before this, who actually cared about a fake blog of a guy most people had no clue even existed?

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Rather Than Mocking Confusion Over Copyright Law, IP Lawyers Should Look At Fixing It

from the 3.4-people-out-of-4-think-so dept

Over the past few years, around Superbowl time, there have been various articles about the NFL threatening groups (often churches) for potentially violating copyright law by having a "public performance" of the Superbowl on a TV greater than 55" inches. This year, we didn't see much of that, but there was an odd article about University of Tampa students being told that they couldn't have more than 3.4 people watching the Superbowl in their dorms, or it risked being a public performance and violation of copyright law. This, of course, makes very little sense (not the least of which is the obvious question of how you have .4 of a person.

Not surprisingly, this has the IP lawyers out there mocking folks for being totally clueless on copyright law. Yes, yes, it's easy to mock -- especially when the whole 3.4 person issue seems to have been basically made up from nowhere. However, I'd argue that the problem is less with the University of Tampa than it is with what copyright law has become these days.

We hear so many stories of bizarre interpretations of copyright law, that it clearly seems perfectly reasonable to many, many people that copyright law might actually say that about 3.4 people representing a public performance. When churches are getting threatening letters and mechanics are being sued for playing music to loudly in the garage, it doesn't seem out of the realm of possibility. The problem is not with some clueless folks at the University of Tampa as it is with (a) our current copyright laws that have been patched and duct taped together over and over again that no non-lawyer can truly understand them, let alone abide by them and (b) other recent rulings on copyright law that have made it clear to people that the law is used to stop perfectly normal activities.

So, the IP lawyers can have fun mocking, but I'd suggest their time might be better spent working to fix copyright law so that people wouldn't even think this made sense.

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When All You Have Is A Patent Hammer, Every Software Task Looks Like A Nail

from the software-patents dept

If I'm right that, as I argued on Friday, there's a cultural gap between the patent bar and the technology industry on the subject of software patents, an interesting question is how we got them in the first place. After all, it wasn't that long ago that software was widely believed to be unpatentable, and major technology firms were hardly clamoring for patent protection. Peter Mennell, a Berkeley law professor who spoke at last Wednesday's Brookings patent conference had an interesting perspective on how this came about. He argues that the impetus for software patents came from patent attorneys within major software firms who spread the "gospel of patenting" within their companies. Not surprisingly, CEOs tend to delegate patent issues to their patent lawyers, and of course patent lawyers will tend to have more pro-patent views than their bosses. And so despite the fact that few technology executives were enthusiastic about patenting, the patent lawyers who worked for them pushed their firms in that direction. And of course, once some software firms started acquiring significant numbers of patents, it sparked the arms race that we've talked about here at Techdirt.

To be clear, I don't think that firms' patent attorneys were deliberately flouting their bosses' orders or working against their companies' interests. Rather, I think that patent lawyers genuinely believed (and still believe) that software patents would be good for their own firms and the broader software industry. This is similar to a phenomenon I noticed when I was researching eminent domain abuse: even lawyers who made their living defending property owners against abuses of the eminent domain system didn't think it should be illegal to take someone's property for private profit. Rather, they tended to think that the solution was to add additional layers of review to filter out the worst abuses. Obviously there's an element of self-interest here. Scaling back the number of eminent domain cases or software patents means fewer jobs for eminent domain or patent lawyers, respectively. But I think the far more important explanation is that when you have a hammer, everything looks like a nail. When you're an expert on the minutia of a particular body of law, you're naturally going to think that the solution to any given problem is to fine-tune that body of law. They tend not to think about reforms that would involve getting the lawyers out of the picture altogether.

I think the good news (if you can call it that) is that the patent system is getting so dysfunctional that it's starting to generate interest from corporate CEOs, most of whom are not patent attorneys. A Hill staffer, who spoke on the same panel as I, mentioned that he's seen an increasing trickle of tech companies coming to Capitol Hill to lobby for patent reform. As it becomes more obvious that software patents do little to promote innovation and are mostly a wealth transfer from the software industry to the patent bar, I think we'll see more tech industry CEOs paying attention to the patent problem. And most of them will be less committed to software patents than their patent lawyers are.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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The Cultural Gulf Between Lawyers And Technologists On Patent Law

from the patent-bar-solipsism dept

On Wednesday I attended the Brookings Institution's conference on "The Limits of Abstract Patents in an Intangible Economy." The conference was organized by software patent skeptics, so that perspective has been well represented. But I was struck by the dramatic differences between the views of lawyers on the one hand (who made up the majority of the panelists and audience members) and the handful of technologists on the other. The first panel focused on the economics of abstract patents, and included a mix of technologists, economist, and lawyers. All of the panelists spoke about the serious problems being caused by patents in the software industry and argued for dramatic restrictions on software and business method patents. The tone of the second panel, which focused on legal issues, was rather different. All of the panelists were lawyers, and although they acknowledged that the patent system had problems, and that these problems are especially serious in the software industry, their focus was on abstruse details of patent law. None of them supported explicit restrictions on software patents, and few seemed to feel any urgency about the need to rein in patenting in the software industry. I think this contrast is reflected in the broader software patent debate—patent attorneys and law professors who write about patent law are overwhelmingly in favor of patents on software, and prefer to argue about how to fine-tune patent law to get fewer "bad" software patents without invalidating the "good" ones. In contrast, a lot of computer programmers simply wish the patent system would leave them alone.

There are a couple of ways you can view this split. On the one hand, it's possible that the economists and technologists on the first panel are naive and don't understand the complexities of patent law. Maybe broad restrictions on patenting of software or other abstract inventions would have unintended consequences in other parts of patent law that only one schooled in the minutia of patent law can understand. On the other hand, the perspectives found on the second panel could be a reflection of the solipsism of the patent bar. Patent attorneys seem to have an unshakable faith that there's no sector of the economy that couldn't be improved by more patenting. I suspect that one reason for these different attitudes has to do with the role the two groups play in the software industry. Patent attorneys only interact with those parts of the software industry that participate in the patent system. When software engineers write useful software without seeking patents on it—a vastly more common occurrence—patent attorneys will, by definition, not be there. Therefore, patent lawyers are inevitably going to over-estimate the importance of patents to the software industry. In contrast, the average programmer deals with the patent system infrequently. For a lot of entrepreneurs, patents are basically a nuisance—they have to get some for defensive purposes, but they're not an important part of their business plans. For employees at larger firms, patents are basically irrelevant to their day-to-day jobs. No programmer starts a programming project by consulting the patent database.

As a consequence, the two communities have radically different views of how well the patent system is working. The lawyers certainly acknowledge that there's a problem, but they seem to find it incomprehensible that there could be a major American industry that's better off without patent protections. Techies understand that patents are not an important part of the software industry, and so they're much more likely to say that their industry would be better off without them.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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First Thing We Do Is Automate Away All The Lawyers...

from the paraphrasing-shakespeare dept

Since we write about an awful lot of lawsuits and public policy issues around here, we often can be pretty harsh on lawyers (admittedly, we often fall short of appreciating the good lawyers who protect everyone from the worst abuses). But, one thing that has seemed pretty clear is that, by opening up more legal issues, the pace of technology innovation has increased the demand for more lawyers. But will that always be the case? Apparently, some believe that a business ripe for disintermediation, thanks to the internet, will be the legal profession. The idea is that a lot of basic (high margin) legal work can now be automated. Part of this is probably true. The amount that businesses have to pay for fairly routine processes can be quite ridiculous at times. However, I doubt that the legal profession is really facing a shift as major as those facing, say, the entertainment industry. It may cut out some margins on the low end of stuff usually handled by paralegals or new associates, but it seems likely that there will be plenty of room for lawyers. Sometimes, in fact, it seems like our elected representatives are really mostly focused on a program of "full employment for lawyers," by passing laws that only require more lawyers.

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Toyota Takes After Ford In Claiming Ownership Of Fan Photos

from the not-so-smart dept

You may recall that Ford has been rather aggressive in telling fans of various Ford cars that they have no right to create things like calendars from photos they, themselves, have taken. Basically, Ford has claimed ownership of any photos of Ford vehicles. That, of course, is crazy. But apparently the thinking extends to other car companies as well. Apparently, Toyota is now threatening a site that hosts various "desktop wallpapers" for computers because it offers up a variety of wallpapers made up of images of various Toyota automobiles.

TorrentFreak, who has written up the article, exaggerates a bit in claiming that this is the most "wildly arrogant" DMCA claim. After all, Ford did exactly the same thing earlier, and plenty of other companies have done similar things. Also, apparently Toyota hasn't actually invoked the DMCA yet, simply telling the site's owner he has to remove the images or it would send DMCA notices. Rather obnoxiously, when the guy who runs the site asked which images, specifically, violated Toyota's intellectual property, Toyota's lawyers responded that they would only identify them if the site's owner paid for their time. Of course, the DMCA actually requires you to name the specific infringing files.

You might possibly be able to make a case that Toyota could sorta maybe make a trademark claim here -- that some might assume that the desktop wallpapers were officially offered by Toyota, but that wouldn't explain why they're threatening to use the DMCA, which has nothing to do with trademarks.

However, most importantly, as we noted with the Ford situation, it makes no sense to beat up on fans of your products who are sharing photos of the cars they love and are actively promoting the cars for the automakers. It seems like yet another case where lawyers simply freak out without realizing how much damage they're doing to their client's brand. Update: Good news! In the comments, Ford claims that the earlier story was a misunderstanding (though, don't exactly explain how come it's happened multiple times) and Toyota has also apologized for the threat, saying that it was a mistake.

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Why Won't The MPAA's Lawyers Identify Themselves?

from the what-are-they-scared-of? dept

One interesting tidbit to come out of the MPAA and RealNetworks suing each other over Real's DVD backup software: the lawyers for the MPAA who presided over the press conference announcing the lawsuit asked the press not to identify them. This is bizarre. What sort of spokesperson won't allow themselves to be identified? And why would the MPAA's lawyers do that? More importantly, why would the press oblige?

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UK Court Attacks Cut-And-Paste Boilerplate Lawyering

from the legal-documents-shouldnt'-be-cut-and-pasted dept

One of the results of the word processing era is just how easy it is to simply cut-and-paste things, and perhaps no profession has made more use of this than lawyers. We've seen it where lawyers include the name of the wrong defendant in a lawsuit, for example. Now, a court in the UK has slammed some lawyers for practicing boilerplate cut & paste lawyering, noting that a drafted contract was so meaningless at points that it's clear the lawyer who drafted it had no idea what parts of it were talking about. The court noted "malapropisms, poor uses of terms and drafting errors" all of which "made interpretation of the agreement difficult."

In fact, it was so extreme that the judge actually looked to figure out what was most likely meant between the two original parties, rather than what the actual contract says. This is pretty rare, as most courts tend to default to the actual text of a contract, rather trying to get into what was meant, as that opens up all sorts of questions. Yet, in this case, what was actually in the contract was apparently so terribly written that the court decided to go in the other direction.

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AutoAdmit Lawsuit Leads To Suggestion For Dreadful DMCA-Style Takedowns Of Defamation

from the not-a-good-situation dept

For a while now, we've been covering the lawsuits surrounding "AutoAdmit." If you haven't been paying attention, AutoAdmit is a message board system used by law school students, many of whom apparently used it to be what, at best, might be called juvenile jerks. For example, there were certain threads insulting various female law students (in incredibly crude terms), which those students insisted cost them jobs. This point is rather difficult to prove -- because there are many reasons why the women might not have been able to get jobs, and any firm that won't hire someone because of juvenile messages on a message board probably isn't worth working for (also, a few months back, someone sent us some evidence that one of the women actually had gotten a job at a law firm, despite her complaints of not being able to).

However, since we're dealing with a bunch of law students and lawyers, it wasn't long before the lawsuits began flying. First, the women filed lawsuits against the message board, various anonymous posters and an administrator of the message board. Of course, the administrator pointed out (correctly) that he's clearly protected, and eventually he was dropped from the lawsuit -- but not before he lost his job. So, of course, he sued back for the wrongfully targeted lawsuit against him. Quite a mess.

Wired News is running an update on the case, where it reveals that one of the anonymous law students who made the juvenile comments has now been identified to the women filing the lawsuit, meaning that he won't be anonymous much longer. This is a bit surprising, since we've seen a series of lawsuits lately that US courts believe it's important to protect anonymity, even in cases where the content in question is "unquestionably offensive and demeaning."

However, what's more interesting, is the rest of the article from Wired, where it explores the "Pandora's Box" this case has opened up concerning a bunch of issues involving free speech, anonymity and the limits of both. And, of course, since we have a bunch of lawyers involved, there's one downright scary suggestion: create a DMCA-like law that allows someone to demand a takedown of content they find defamatory. If you thought false DMCA takedowns were a bit much, can you imagine how many such defamation takedown's would be sent on a regular basis? As we've seen time and time again, many people (falsely) assume that any content they don't like is defamatory, and already send cease-and-desist letters at the drop of a hat. If you added a notice-and-takedown provision, this would be abused to no end.

But, in the end, as the article notes, it's unclear what good any of this has done. The lawsuit is wasting a lot of people's times, and is doing a lot more to harm various reputations than the original thread ever really did. Yes, it was offensive, demeaning, juvenile and idiotic to some extent. But, opting to file a lawsuit almost seems guaranteed to make the situation a lot worse -- and, frankly, seems to do a lot more damage to the law students suing, than any random obviously childish thread on an open message board would ever do.

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Lawyer Seriously Slapped Down For SLAPP Attempt Against Librarian Blogger

from the ouch dept

We've covered the concept of SLAPP (Strategic Lawsuit Against Public Participation) suits plenty of times before. These are bogus lawsuits filed to try to bully a critic into shutting up. In one such case, involving an incredibly broad subpoena against a librarian blogger compiling information on the potential link between mercury and autism, a magistrate judge has seriously smacked down the lawyer who filed the subpoena. The blogger had merely published on her blog information about the fees the lawyer in question had received. In response, the lawyer subpoenaed a ridiculous amount of information from her: "all documents pertaining to the setup, financing, running, research, maintaining" of the blog, "including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any 'religious groups (Muslim or otherwise), or individuals with religious affiliations,' and any other 'concerned individuals.'"

The judge quashed the subpoena quickly, but has now hit back really hard on the lawyer, Clifford Shoemaker, for filing it in the first place:

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia's Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker's conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

Now that's a smackdown.

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Expensive Patent Attorneys Know How To Cut & Paste, But Not Search & Replace

from the get-your-money's-worth dept

Well, it's a mistake plenty of folks are bound to make eventually, but that doesn't make it any less amusing. Joe Mullin has a short post about a big time patent law firm that has launched two recent patent lawsuits over the same basic patents held by a patent holding firm. The only problem? In filing the second lawsuit, it appears that the patent attorneys used cut & paste from the first lawsuit, but didn't use search & replace to get rid of the name of the original defendant. Hopefully, the patent holder didn't pay too much for the cost of filing that second lawsuit.

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Marvel Should Keep A Tighter Leash On Its Lawyers

from the yikes dept

On Tuesday, Mike Arrington of TechCrunch took a straw poll on Twitter and decided to set up a screening of the new movie Iron Man, based on the comic. By Wednesday morning the details were set. He had rented out the Metreon by calling the "Group Sales" phone number on the Iron Man website, and paid for 600 seats for the showing. He posted the info to his blog, and asked people to pay $1 per seat in order to hold the spot (and to avoid no-shows). All this was perfectly reasonable. And then... a lawyer from Marvel Comics sent Arrington a threatening cease-and-desist letter demanding that he pull down the information about the show, claiming that Arrington wasn't authorized to set up such a showing. Again, the whole thing was arranged by Arrington by calling the "Group Sales" line on the Iron Man website. All of the tickets were paid for. It's hard to see what Marvel can possibly be complaining about. Also, I know for a fact that Arrington's event is hardly the only such event... because I got invited to a different one (also tomorrow, though at a different time and location and organized by a different group) and have a ticket on my desk for the show.

As a guess, perhaps Marvel is upset that Arrington made his an open invite system. The other showings I'm aware of are all private invite-only showings. But, even if that's true, it's rather ridiculous for Marvel to be complaining, and this is giving the company a ton of totally unnecessary bad press for an event that was generating plenty of enthusiasm and excitement for the movie. It appears to be yet another case where a lawyer is complaining because he can, and not because it's a good business move. As of right now, AMC Theatres, which sold Arrington the tickets, is standing behind the showing, and hopefully someone higher up at Marvel is figuring out what a ridiculous move this is, and will apologize by morning.

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Judge Points Out That Lawyer Ranking Site Is Free Speech... Even If It's Dumb

from the that-whole-free-speech-thing dept

Earlier this year, we wrote about a new website, Avvo, that had created an algorithm to try to "rank" lawyers based on quality. It should come as no surprise, of course, that some lawyers (e.g., the low-ranked ones) weren't particularly pleased with such a system and some of them got together to sue the site as a class action suit -- on behalf of poorly ranked lawyers around the world. While you can certainly understand why lawyers would be upset at such a site, just because you're upset about something doesn't make it illegal. And, just as judges have repeatedly pointed out that things like Google's search rankings are protected free speech as opinions, a judge has dismissed the lawsuit against Avvo, noting that the rankings are merely opinions and that's protected free speech. That's not to say that the judge thinks Avvo is particularly useful. In fact, he points out how ridiculous the rankings are -- but that doesn't mean they're illegal. Chalk one up for free speech online.

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Want To Get Some Press? Just Blame Facebook For Destroying The Economy

from the so-easy-and-guaranteed-to-work! dept

The whole "blame Facebook for killing the economy" line seems guaranteed to get press these days as we've already had two totally different stories of "studies" coming out from biased parties, supposedly "blaming" Facebook for killing productivity. The stories all follow a pretty similar arc to all of the "personal surfing is killing productivity" reports that come out every few months from some company trying to sell internet filters. However, by adding the Facebook element, you've got a definite press hook that most can't resist. Con von Hoffman writes in to let us know about the third example in the series, as some employment lawyer in the UK is claiming bogus "productivity" losses from Facebook. It's the same old story, counting every minute spent on Facebook as "lost productivity" despite studies showing that taking personal surfing breaks tend to be good for employees, and they more than make it up in the work that they do. No matter, though, the story hook is too good for the press to ignore. As Con notes, none of the press reports on the topic bothered to check with anyone than the guy who's trying to get publicity for his employment law practice, and none seemed to question his methodology.

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