Whether the images are full-size or not is only one part of the fair use analysis. But "let the owner of the photo determine use"? I think not. Nobody need ask permission before using a photo for commentary, criticism, parody, transformative uses, etc.
As a lawyer who hires other lawyers, this lawsuit bothers me, a lot. Not only because it's pointless (what do the lawyer-authors stand to gain?) and a dead loser on fair use grounds, but also because it exposes the navel-gazing attitude common in too many lawyers. They need to start thinking about their clients first.
Clients don't care about their lawyers' pleadings. We want cost-effective results. And if these lawyers are going to sue to make it harder for other lawyers to access their pleadings, all they're doing is driving up the cost and complexity and legal services. That sure as hell doesn't help their clients.
She can file anonymously, but that doesn't mean the court is going to allow her to go forward that way. In fact, I expect it will not, as anonymous pleading is rarely allowed.
Secondly, I suspect she and her lawyers see the "real name on the credit card" as the only way IMDB could have gotten her age. They better hope they're right, because if they're not this case will quickly get stuffed under Washington's very strong anti-SLAPP law. In which case her identity will be revealed AND she'll pay Amazon's legal fees and a $10,000 fine. That's not a happy ending . . .
The reason companies prevail 95% of the time isn't because arbitrators are inherently biased in favor of companies - it's because the vast majority of the cases that go to such arbitrations are essentially uncontested collections actions. And while the potential for arbitrators to have such bias is obvious, I've never seen any data suggesting it plays out that way.
In fact, in the cases people seem to be concerned about here (suits against the company), arbitration is actually more consumer-friendly, as it's easier and much cheaper than going to court. Sony's not concerned about those cases - which are few and far between - but rather the ability to use arbitration as a quick and cheap method for bringing its own claims.
No doubt the Weebly guys - likely young startuppers all - were pressured by Cooley's counsel into turning the info over, not realizing that a) they could simply ignore the Michigan subpoena and b) they didn't need to do anything with the CA subpoena until the motion to quash was resolved.
While it's sad that BART did this, it's also likely not illegal. Government agencies can impose reasonable restrictions on expressive activities on their property as long as the restrictions are content-neutral (as this was; it shut down ALL cell phone conversations). That's why you can't protest in a courtroom, hang leaflets in the halls of the IRS offices downtown, etc.
And as for the CPUC, BART isn't under their jurisdiction. First, BART likely wouldn't be considered a cellular provider, even if they have control over these facilities. And second, the CPUC has only the lightest regulatory authority over cellular providers. It can only regulate the terms and conditions of service (and there only slightly) unlike the full tariffed rate regulation it has over landline providers.
What's needed is some sort of "anti-SLAPP for copyright" or loser pays system so that people who bring meritless suits like this have to think twice before filing.
If she were at risk for paying the defendant's legal fees (and perhaps a stiff fine, as with some anti-SLAPP laws), maybe we'd see less crap like this.
Truth and opinion are not actionable as defamation. But in most states there isn't recourse for meritless lawsuits like this. The DA certainly isn't going to file criminal charges, and most states (other than CA, WA and a few others) lack anti-SLAPP statutes that cover private defamation lawsuit.
+1 to Brandon's point - the Army has a recruitment budget, and they do all sorts of marketing, including TV spots, print ads, brochures, and yes, sponsoring a NASCAR team, to drive recruitment.
Comparing the NASCAR sponsorship to NPR funding? You might as well say the feds are sponsoring the NY Times and NBC when they buy recruiting ads.
In the real world, it doesn't matter whether or not it's copyright infringement. There aren't any actual damages and anyone pursuing statutory damages would lose because the "copied" material hasn't been disseminated.
This reminds me of the TOU of onetimefax.com, which I ran across when the owner of that site complained about a negative review on my site (Avvo.com). The whole thing is worth a read (http://www.onetimefax.com/terms-of-service.php), but here's one particularly lovely bit:
"You or any employees acting and/or but not limited to associates for you are not authorized in any way to make any representations of this company that may harm it. You are not authorized to speak, share with write and/or but not limited to communicate in any way, with any person, persons or any entity about this company even if your not a customer or client. In doing so, you will be stealing proprietary materials. If this so happens, you will be responsible for all our/your reasonable attorneys' fees if any legal actions are to pass. For the protection of this company you will follow the but not limited to the above mentioned rules. No person, persons and/or any entity are not authorized to speak, write and/or but not limited to communicate in any ill will of OneTimeFax.com, EJOAT Enterprises, the EJOAT network and/or any entity of which of any past or future information, opinion and/or but not limited to financial transactions."
This reminds me of the TOU of onetimefax.com, which I ran across when the owner of that site complained about a negative review on my site (Avvo.com). The whole thing is worth a read (http://www.onetimefax.com/terms-of-service.php), but here's one particularly lovely bit:
"You or any employees acting and/or but not limited to associates for you are not authorized in any way to make any representations of this company that may harm it. You are not authorized to speak, share with write and/or but not limited to communicate in any way, with any person, persons or any entity about this company even if your not a customer or client. In doing so, you will be stealing proprietary materials. If this so happens, you will be responsible for all our/your reasonable attorneys' fees if any legal actions are to pass. For the protection of this company you will follow the but not limited to the above mentioned rules. No person, persons and/or any entity are not authorized to speak, write and/or but not limited to communicate in any ill will of OneTimeFax.com, EJOAT Enterprises, the EJOAT network and/or any entity of which of any past or future information, opinion and/or but not limited to financial transactions."
Our company (Avvo) faced a very similar lawsuit from attorneys upset over our ratings of attorneys. It was thrown out at the first opportunity, on First Amendment grounds (Browne v. Avvo, 525 F. Supp. 2d 1249 - Dist. Court, WD Washington, 2007).
Debate the useful of these ratings all you want, but from a legal perspective, there's nothing to argue about here: The ratings are Blue Shield's opinion, period.
Mylo, Avvo's ratings of lawyers aren't based on client reviews - they're based on an algorithm that takes into account numerous factors in an attorney's background. Client ratings are only offered as an additional data point.
Most client reviews on Avvo are positive. Could someone nefariously defy our guidelines, claim to be a client and leave a bad review for an attorney they have a vendetta against? Sure. Is that a reason to deny consumers the benefit of thousands of well-intentioned reviews?
Consumers are used to dealing with user/client reviews and assessing the validity and weight to assign to anonymous screeds. Attorneys don't need protection from client reviews any more than Sony or your local trattoria does, and they certainly don't need their licensing agencies denying the public novel means of finding information about attorneys.
And FWIW, Avvo has never - and has never been accused of - extorting those with bad reviews.
Re: Ignorance
Whether the images are full-size or not is only one part of the fair use analysis. But "let the owner of the photo determine use"? I think not. Nobody need ask permission before using a photo for commentary, criticism, parody, transformative uses, etc.
(untitled comment)
As a lawyer who hires other lawyers, this lawsuit bothers me, a lot. Not only because it's pointless (what do the lawyer-authors stand to gain?) and a dead loser on fair use grounds, but also because it exposes the navel-gazing attitude common in too many lawyers. They need to start thinking about their clients first.
Clients don't care about their lawyers' pleadings. We want cost-effective results. And if these lawyers are going to sue to make it harder for other lawyers to access their pleadings, all they're doing is driving up the cost and complexity and legal services. That sure as hell doesn't help their clients.
Fair Use
Pinterest has a strong fair use defense. It sounds like what they're doing is similar to - if not even more rightsholder-friendly - than what Google does with image searches. And that sort of use has been found to be non-infringing: http://scholar.google.com/scholar_case?case=9280547131690965273&q=google+perfect+10&hl=en&am p;as_sdt=2,38
Ending in Tears
She can file anonymously, but that doesn't mean the court is going to allow her to go forward that way. In fact, I expect it will not, as anonymous pleading is rarely allowed.
Secondly, I suspect she and her lawyers see the "real name on the credit card" as the only way IMDB could have gotten her age. They better hope they're right, because if they're not this case will quickly get stuffed under Washington's very strong anti-SLAPP law. In which case her identity will be revealed AND she'll pay Amazon's legal fees and a $10,000 fine. That's not a happy ending . . .
Arbitration
The reason companies prevail 95% of the time isn't because arbitrators are inherently biased in favor of companies - it's because the vast majority of the cases that go to such arbitrations are essentially uncontested collections actions. And while the potential for arbitrators to have such bias is obvious, I've never seen any data suggesting it plays out that way.
In fact, in the cases people seem to be concerned about here (suits against the company), arbitration is actually more consumer-friendly, as it's easier and much cheaper than going to court. Sony's not concerned about those cases - which are few and far between - but rather the ability to use arbitration as a quick and cheap method for bringing its own claims.
And the class action waiver, of course.
Adult supervision needed
No doubt the Weebly guys - likely young startuppers all - were pressured by Cooley's counsel into turning the info over, not realizing that a) they could simply ignore the Michigan subpoena and b) they didn't need to do anything with the CA subpoena until the motion to quash was resolved.
And "squashed"? Cute.
Not Unconstitutional
While it's sad that BART did this, it's also likely not illegal. Government agencies can impose reasonable restrictions on expressive activities on their property as long as the restrictions are content-neutral (as this was; it shut down ALL cell phone conversations). That's why you can't protest in a courtroom, hang leaflets in the halls of the IRS offices downtown, etc.
And as for the CPUC, BART isn't under their jurisdiction. First, BART likely wouldn't be considered a cellular provider, even if they have control over these facilities. And second, the CPUC has only the lightest regulatory authority over cellular providers. It can only regulate the terms and conditions of service (and there only slightly) unlike the full tariffed rate regulation it has over landline providers.
Make them pay
What's needed is some sort of "anti-SLAPP for copyright" or loser pays system so that people who bring meritless suits like this have to think twice before filing.
If she were at risk for paying the defendant's legal fees (and perhaps a stiff fine, as with some anti-SLAPP laws), maybe we'd see less crap like this.
Truth & Opinion
Truth and opinion are not actionable as defamation. But in most states there isn't recourse for meritless lawsuits like this. The DA certainly isn't going to file criminal charges, and most states (other than CA, WA and a few others) lack anti-SLAPP statutes that cover private defamation lawsuit.
Silly Post
+1 to Brandon's point - the Army has a recruitment budget, and they do all sorts of marketing, including TV spots, print ads, brochures, and yes, sponsoring a NASCAR team, to drive recruitment.
Comparing the NASCAR sponsorship to NPR funding? You might as well say the feds are sponsoring the NY Times and NBC when they buy recruiting ads.
Who cares?
In the real world, it doesn't matter whether or not it's copyright infringement. There aren't any actual damages and anyone pursuing statutory damages would lose because the "copied" material hasn't been disseminated.
Another example of overreaching TOS
This reminds me of the TOU of onetimefax.com, which I ran across when the owner of that site complained about a negative review on my site (Avvo.com). The whole thing is worth a read (http://www.onetimefax.com/terms-of-service.php), but here's one particularly lovely bit:
"You or any employees acting and/or but not limited to associates for you are not authorized in any way to make any representations of this company that may harm it. You are not authorized to speak, share with write and/or but not limited to communicate in any way, with any person, persons or any entity about this company even if your not a customer or client. In doing so, you will be stealing proprietary materials. If this so happens, you will be responsible for all our/your reasonable attorneys' fees if any legal actions are to pass. For the protection of this company you will follow the but not limited to the above mentioned rules. No person, persons and/or any entity are not authorized to speak, write and/or but not limited to communicate in any ill will of OneTimeFax.com, EJOAT Enterprises, the EJOAT network and/or any entity of which of any past or future information, opinion and/or but not limited to financial transactions."
Another example of overreaching TOS
This reminds me of the TOU of onetimefax.com, which I ran across when the owner of that site complained about a negative review on my site (Avvo.com). The whole thing is worth a read (http://www.onetimefax.com/terms-of-service.php), but here's one particularly lovely bit:
"You or any employees acting and/or but not limited to associates for you are not authorized in any way to make any representations of this company that may harm it. You are not authorized to speak, share with write and/or but not limited to communicate in any way, with any person, persons or any entity about this company even if your not a customer or client. In doing so, you will be stealing proprietary materials. If this so happens, you will be responsible for all our/your reasonable attorneys' fees if any legal actions are to pass. For the protection of this company you will follow the but not limited to the above mentioned rules. No person, persons and/or any entity are not authorized to speak, write and/or but not limited to communicate in any ill will of OneTimeFax.com, EJOAT Enterprises, the EJOAT network and/or any entity of which of any past or future information, opinion and/or but not limited to financial transactions."
Disciplined as Well
Turns out Kimberly Henry was also reprimanded by the California Medical Board a few years back: http://www.avvo.com/doctors/kimberly-henry-2501690.html
This lawsuit is a dead loser (as Josh)
Our company (Avvo) faced a very similar lawsuit from attorneys upset over our ratings of attorneys. It was thrown out at the first opportunity, on First Amendment grounds (Browne v. Avvo, 525 F. Supp. 2d 1249 - Dist. Court, WD Washington, 2007).
Debate the useful of these ratings all you want, but from a legal perspective, there's nothing to argue about here: The ratings are Blue Shield's opinion, period.
Josh King
General Counsel
Avvo, Inc.
Avvo
Mylo, Avvo's ratings of lawyers aren't based on client reviews - they're based on an algorithm that takes into account numerous factors in an attorney's background. Client ratings are only offered as an additional data point.
Most client reviews on Avvo are positive. Could someone nefariously defy our guidelines, claim to be a client and leave a bad review for an attorney they have a vendetta against? Sure. Is that a reason to deny consumers the benefit of thousands of well-intentioned reviews?
Consumers are used to dealing with user/client reviews and assessing the validity and weight to assign to anonymous screeds. Attorneys don't need protection from client reviews any more than Sony or your local trattoria does, and they certainly don't need their licensing agencies denying the public novel means of finding information about attorneys.
And FWIW, Avvo has never - and has never been accused of - extorting those with bad reviews.
Josh King
General Counsel
Avvo, Inc.
Finally, some sense (as Josh)
Terrific post - I found the Portfolio article cringe-worthy.