GMacGuffin's Favorite Techdirt Posts Of The Week
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)
This is why satire is dead.
You chose to allow Google to manage all the services on your list. There are scores of other options in the marketplace for all of those services if you don't like it. (Many of whom are not big enough to be impacted by the laws at issue in this case.) Not to mention that the case at issue only peripherally touches those non-social-media services.
No Comments Section on the Article
Perhaps if Wired allowed for comments on this article they'd get a heads-up about moderation issues. Maybe I'll go to Twitter and say a few things ... oh, right, Twitter is gone and replaced by a hellscape.
Looks like a statutory amendment, not constitutional amendment
I note that the Common Sense pdf has the text to add to CA Civ Code §1714 (the basic negligence statute). So it is apparently not an amendment to the CA Constitution, which would be really scary if this passed. Bad statutes are generally easier to strike down via courts. I do intend to submit a comment; talk about opening the floodgates of litigation if it passes... yikes.
Dang that's a good argument.
... just thank you
punctuation ...
The thing that tipped me off to the satire was that periods were placed outside quotes.
... probably not bitcoin
Bitcoin's difficulty has long been too high to mine on a CPU or GPU. You essentially need specialized ASIC machines to mine bitcoin; racks of them unless you join a pool
CoinHive's javascript miner mines monero, which is a wonderful, privacy-centric cryptocurrency -- but it is not bitcoin (the original cryptocurrency).
Just a point of clarity. "Bitcoin" is not generic for cryptocurrency; bitcoin is a specific cryptocurrency.
Cox outright told me that they throttle after ~300GB of data transfer in a month. Even for premier tiers.
... and also ...
Satoshi Nakamoto is believed to hold about ฿1M (1 million bitcoin) across various wallets, which at the current price is just under "ONE BILLLLLLLLLION DOLLARS!"
And yet that much btc just sits there on the blockchain. Yeah, Wright is Nakamoto for sure...
... but ....
If attorneys (and reputation management firms) hadn't gotten into the habit of sending orders to Google, rather than seeking out the online commenters behind the libelous statements, this decision wouldn't be so difficult to take.
No nonfraudulent defamation lawsuit is going to result in a legitimate Order/Ruling on defamation unless the attorney did seek out the online commenters. One needs to serve a party with a lawsuit to obtain a judgment (default or otherwise), and if the defendant can't be located, the attorney has to show efforts to do so before service by publication or similar means is allowed. So it's a real problem for any nonfraudulent lawsuits, as counsel can't just go an get an Order and send it to Google as the above implies. One has to go after the defaming party, and get a judgment against them first.
"Scholz's suit goes to great lengths to minimize the role Goudreau had in the band, which amounted to being the lead guitarist on their first two albums."
That's a funny way to minimize. I was a teen when Boston came out. I honestly didn't know there were more than two albums.
Material Contribution ...
A couple of mainstream articles on this said Congress found that Backpage had altered ads to hide the fact they were for minors/sex. §230 immunity has been found inapplicable when the platform makes a "material contribution" to the posted content.
However, if that were true, one would think that "material contribution" would be the big point in the charges. Certainly not a secret point. So it may be any ad changes were really the automated system that kicks out certain keywords -- which would not be "material contribution" by the individuals, and thus not destroy the immunity. Smells bogus across the board.
Anyway, Harris had already lost my vote. Besides, her competitor "dabbed" at their debate this week. So there's that.
Re:
Please see: Turkey / Erdogan
Ubuntu 16.x was a pretty major recent update. Obviously Paramount is trying to protect hapless torrenters from downloading the rather old 12.x OS.
Schadenfreudelicious
e.g., it could have gone down like ...
Having been a TD reader for many years now, and knowing its basic ethos, this must be a highly usual situation on specific facts. All we really know on this end is there were some federal lawsuits (PACER) that have now disappeared.
Yet, some commenters claim that the Regretful Plaintiff should pay for his acts regardless of the circumstances.
But ... say this plaintiff went to an attorney, who was a terrible attorney, or an attorney with their own agenda. Say this attorney gave Plaintiff some terrible legal and tactical advice. Say it was all entirely meritless, and the Plaintiff was pushed into this thing by an overeager lawyer who wanted to take on everyone it could remotely attach to the apparent wrong. Say Plaintiff justifiably relied on the terrible advise of his lawyer. Say it all went bad and person left holding the bag and all the bad press was the Plaintiff. A plaintiff who just followed the advise of counsel.
This shit happens. There are lots of terrible attorneys (of course there are lots of good ones too). Should the plaintiff really have to be the patsy for the potential straw-man agenda of his bad lawyer?
That said, this is an extremely troubling development, especially considering there appears to be no practical way to determine the extent of the problem, or legal means used to attain it. Scary stuff, really.
Great Article!
Thanks Zach. This is the first tl;dr I've seen on the subject that is informative to those who know what's going on, yet can be understood by those who don't.
Savvy readers will note that a DAO vulnerability doesn't mean the Ethereum platform itself was compromised (any more than a nasty bug in Photoshop means that everyone with Windows 10 is at risk).
In cryptocurrencyland, any shakeup tends to dramatically affect the markets -- like the the investors are unsophisticated traders or something. It's helpful if you pay attention. I bought more Ether when the price crashed, then it recovered rather rapidly (but is down some now again).
Plus, it's hilarious to buy something that by its name implies it doesn't really exist.
This DAO debacle is a good thing, as far as the next big DAO is concerned anyway.
Re: Re: Re:
Meaning, Yes.