I agree with almost everything you say (and thanks for the link to my blog post about it), but I offer one technical correction. The problem is not lack of "use in commerce" but rather the fact that the video is entirely noncommercial, or, in the relevant language of the two sections of the Lanham Act invoked here, there is no "connection with any goods or services" and the video is plainly not a "commercial advertisement." We used to make the "use in commerce" argument in our defense of Internet critics running gripe sites and the like, but when we won the Bosley Medical Institute v. Kremer, 403 F. 3d 672, http://en.wikipedia.org/wiki/Bosley_Medical_Institute,_Inc._v._Kremer (and that is a Ninth Circuit case, which will be the controlling law here), that court indicated that it was the "in connection with goods or services" and not the "use in commerce" language on which it was relying. After doing several more cases like Bosley, I have come to conclude that this is, in fact, the better argument.
The details are linked from the underlying story -- Sotka don't look so good
The complaint http://www.fkks.com/docs/complaint_salvator.pdf alleges (¶ 7)that many creative judgments were made in creating the photograph, and further (¶ 8) that the original digital image was further altered in a variety of ways in consultation two art experts. The artist's affidavit (part of the file linked above) goes into a fair amount of detail about the creative choices (¶¶ 4, 6-7, 9) and the digital alternations (¶¶ 8, 10-11). The complaint further alleges that Sotka posted the image on her web site as a freebie as part of a threat to make a high quality digital copy available, and encourage rapid dissemination of that high quality image, unless plaintiff stopped interfering with her efforts to sell merchandise through Brouhier's web site with copies of the photo printed on them. Of course, that doesn't matter absent copyrightability, but the issuance of this threat could well have encouraged the judge to grant the preliminary injunction.
One procedural flaw: The order http://www.fkks.com/docs/SalvatorMundiOrder.pdf violates Rule 65(d)(1) of the Federal Rules of Civil Procedure, which requires any order granting a preliminary injunction to (A) state the reasons why it issued. But the order just says the reasons were stated on the record at the hearing. But that is only a ground for appealing the order.
My reaction is similar to Karl's but perhaps less strongly. Electronic Arts' argument is that the two companies are in related markets, in that both sell their products by association with the same sports and athletes; they may also appeal to similar groups of consumers. This may well be a contestable case, depending on the facts, although Energy Armor's product is pure nonsense as Karl notes, and besides it may well lack the finances to cover the cost of the litigation.
Some people refer to hosting ISP's as "Online Service Providers" or "OSP's" to reflect that distinction. However, because both enjoy the protection of section 230 immunity, I prefer to use a common term for both.
The chief judge of the Fifth Circuit sent Judge Sparks an email, supposedly intended to be kept private, that reprimands him for being cute and being quoted in national blogs. In the future, she warns, Sparks is not to "allow such rhetoric to overcome common sense."
Before discovery, not just before trial -- and not so unusual
Although Kevin Smith does use the phrase "without a trial", it is not at all unusual to decide fair use at the summary judgment stage. The gist of his post is not to praise the avoidance of a trial, but rather the avoidance of the discovery phase of the case, in that the judge ruled that the fair use defense was decisive on a motion to dismiss.
To do that, the judge took advantage of the standard rules that (1) an affirmative defense can be addressed on a motion to dismiss if the existence of the defense is disclosed by the materials that are properly considered on a motion to dismiss, and (2) that even if a document is not attached to the complaint, it can be considered on a motion to dismiss if it is referenced in the complaint and the defendant supplies it to the court, and so long as there is no dispute about the authenticity of the copy that is supplied to the court.
The judge referred in passing to the consideration of an affirmative defense on a motion to dismiss as "irregular," but in fact it is not at all unusual. We commonly invoke these principles in the course of defending the online free speech of our clients, moving to dismiss at the outset of the case when we consider such a motion warranted.
I second Paul Keating’s comments about the dangers of a strict loser pays system and of the proposed requirement that a plaintiff who wants to pay has to post a bond for the defendant’s cost, but in my own view Matt’s comments suffer from deeper flaws.
First, the policy that courts should be open to everyone, which Matt regards as a “stupid policy,” actually has its origins in the petition clause of the First Amendment, which entitles all Americans to “petition . . . for a redress of grievances.” And it would be great if Matt would share the source of the data that support his assertion that “most lawsuits are little more than legalized extortion.”
Second, Matt’s arguments about how Rule 11 should be applied to sanction plaintiffs and lawyers, and how Rules 12 and 56 should be applied to dispose of lawsuits early, have no relation to the lawsuit that Mike criticized in his post, or that I myself have been sued for criticizing. Those are part of the Federal Rules of Civil Procedure, but both the suit that Mike and I have criticized Wolk for filing, and the lawsuit that was later filed against me, were filed in a state court to which the Federal Rules have no application. Moreover, Rule 11 is still enforced in appropriate circumstances, and Rules 12 and 56 are the mechanism by which many suits are dismissed (or decided in the plaintiff’s favor) at early stages. Indeed, data from the Administrative Office of US Court suggests that most cases are still being resolved well before trial, in most cases by a judicial action of some kind. (The annual statistical reports can be found at http://www.uscourts.gov/Statistics/JudicialBusiness.aspx)
Finally, I disagree with Matt’s suggestions about the possible application of Pennsylvania’s disciplinary rules to Wolk's lawsuits and to Wolk's warnings about litigation. It is not a violation of a lawyer’s obligations to threaten legal action, and in fact it is probably better that parties discuss possible litigation before it is filed so that they can work out their differences without having to sue and defend. In a number of respects, Matt has taken some aspects of the rules that he cites out of context. For example, under Rule 3.6, it is not any public statement about a case that is prohibited, but only statements that "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter" -- most commonly, by polluting the jury. But nothing Wolk has threatened to file against me, against Techdirt, or against blawger Scott Greenfield http://blog.simplejustice.us/2011/07/30/why-lawyers-cant-control-the-web.aspx#comment-11247452, is likely to get even close to a jury trial.
Moreover, lawyers have First Amendment rights just like everybody else, and if they think somebody has done something wrong, the First Amendment protects their right to say so. That is especially true about the criticism of judges and their decisions. After all, a judge is a public official – and in the federal system, a judge is not only a public official but a public official with a lifetime appointment. They are not entitled to a legal shield against being criticized. And again the same First Amendment that Techdirt or I would assert as a defense to a libel suit if Wolk sues us also protects Wolk against being disciplined by the Pennsylvania bar.
Finally, just as I have argued that a libel suit against the defendants and lawyers who beat Wolk in his original libel suit is the last place where the propriety or impropriety of the judge’s decisions or the defense lawyers’ actions ought to be debated and decided, http://volokh.com/2011/08/03/do-changes-to-a-blog-posts-url-and-the-sites-metatags-restart-the-statu te-of-limitations/comment-page-1/#comment-1250369, I don’t see a bar disciplinary proceeding as a satisfactory forum for deciding whether Wolk’s current lawsuits or threatened future lawsuits have merit. Wolk recently dismissed the Philadelphia Court of Common Pleas lawsuit against me and the other defendants. If he decides to tempt fate by refiling it, so far as I am concerned it ought to be up to the judges to whom that suit is assigned first to decide whether it has merit. If, as I believe likely, the suit is dismissed for lack of merit, the judge will then be able to decide whether to assess fees or other sanctions. Another possibility is the issuance of a vexatious litigation injunction, a tool commonly employed against pro se litigants who simply cannot take a judicial no for an answer. But it makes the most sense to have such decisions made by the judge who has had to address the suit on the merits, not by some separate legal authority.
Over the years, I have had clients who, after the suits against them based on their online speech were dismissed, were determined to file bar charges against the lawyers on the other side. I have yet to see such a charge succeed. As I see it, they are largely a waste of time.
I have decidedly mixed feelings about humor in judicial opinions. At one level, it certainly helps break up the day; there is so much dry text, often nonsense in the larger scheme of things, that we have to get through as lawyers (and judges).
But then I remember the request for Supreme Court review that I did about twenty-five years ago, arising out of an opinion by First Circuit Judge Bruce Selya, who is notorious for maximizing the number of obscure words in his opinions. He wrote a decision dismissing a lawsuit that has been brought on behalf of nearly a hundred workers in Puerto Rico who had lost their jobs when a women's underwear factory "reorganized." http://law.justia.com/cases/federal/appellate-courts/F2/835/11/296423/ Judge Selya just could not get over the fact that the factory made women's underwear, and reading the opinion made me wonder whether he has put more effort into inserting double entendres than into making his legal decision. Meanwhile, ninety women were out of a job.
Not that I feel so badly about the fact that Georgia Pacific will have to accept a limited term on its monopoly of the diamond pattern that patent gives it, instead of the indefinite that a trademark would have given it.
The hotel's papers do address the details of the complaint and represent that the hotel did try to reach out to the reviewer, and indeed the hotel claims that it explained everything to the reviewer about what the hotel staff had done following receipt of the complaint, and indeed what the hotel had been doing more generally about bed bugs. The hotel asserts as well that it got an email from the reviewer admitting that the reviewer couldn't be sure that it was the hotel that caused the reviewer's bed bug problem. The hotel asserts that the TripAdvisor review was posted after all of this exchange and that not only was the review false, but the assertion that the hotel acted as if they don't care is false as well, and that the person posting the review jolly well knew that this all was false.
Of course, this is what the hotel says. The complaint cites an exhibit showing some of this communication, but I don't have the exhibit. If the defamation case is litigated, a judge or a jury may eventually have to decide who is telling the truth.
We at Public Citizen defend online speakers against bogus claims, and our clients do use the Streisand effect as part of their self-defense, but I would not say that a business that has been defamed should never bring a defamation lawsuit. Rather, I would say that a business that is being falsely and unfairly slammed should think long and hard about what impact the speech is really having on their business, consider whether counter-speech can be effective, and decide whether the impact is so devastating that litigation is worth both the cost and the risk. Here, the hotel recites that two customers said they were not coming because of the review, and that it hears daily from potential customers about the review. Is that enough to make this lawsuit worth their while? I am not so sure.
By the same token, people who get sued for defamation need to think long and hard whether to defend the cases, even if they can afford counsel, or whether to bite the bullet and admit they were wrong. Folks who use the Streisand effect can end up paying for that later if they are found liable for defamation.
In the end, IMHO, as long as our society puts value on reputation and affords a cause of action for defamation, then, in my view, we need at least the possibility of such litigation to discourage deliberately false statements that can in some circumstances have a serious impact on reputation. And I think it ill behooves those of us who care about free speech online to blow off defamation plaintiffs with the notion that they should never file such lawsuits.
Mike has said no such thing, but I read some of the commenters as saying that.
The Consumerist story just reports the TSA version that the woman "became belligerent and verbally abusive." These are of course just conclusory characterizations; we don't exactly know what she actually said and did, and we don't know exactly what the TSA claim she actually said and did.
The underlying story from the Tennessean has this:
"[name omitted] yelled and swore at Transportation Security Administration agents Saturday afternoon at Nashville International Airport, saying she did not want her daughter to be “touched inappropriately or have her “crotch grabbed,” a police report states.
After the woman refused to calm down, airport police said, she was charged with disorderly conduct and taken to jail.
The actual words reported do not include any swearing, and so not explain what she did from which she was supposed to "calm down." "yelled" comes closest to being factual, but some people fell they are being yelled at whenever they are reprimanded. Again, very conclusory. So, in the circumstances, it is awfully hard to form a judgment about whether the arrest was justified.
And chances are, we will never find out, because chances are the charges will be dropped
And that is why is is better not to take corporate money at all
Public Citizen has not taken a position on this merger, but once thing we do here is follow a very strict rule that we simply do not take contributions from companies (or, indeed, from the government, or from unions). So, for example, although we often have legal positions that Google likes (such as on keyword advertising), when we want to take a position adverse to Google we don't have to think about it for a moment. And when we do take a position that Google likes, nobody can suggest that it is because we are bought and paid for by Google (just to take one example of a company that spreads its money around widely in the non-profit sector).