Judges Interpreting Emoticons? :-(

from the ^_^ dept

While we’d already written about the judge’s ruling in the Lenz vs. Universal lawsuit concerning a bogus DMCA takedown and whether or not damages could be awarded, there was one bit of the ruling which Eugene Volokh recently highlighted, which seems worth mentioning, if only for the amusement factor. Apparently, part of determining whether or not there was actual harm done to Lenz was looking at some email communications, including one where a friend used an emoticon:

Universal … argues [as a defense to Lenz’s lawsuit] that there are triable issues of fact as to whether Lenz has “prosecuted in good faith the assertion that she has been damaged” by Universal’s alleged violation of [the DMCA]. This argument is based on four separate contentions…. [The fourth is] that an email exchange between Lenz and one of her friends shows that Lenz does not believe that she was injured substantially and irreparably by the takedown notice. In the exchange, Lenz responds to her friend’s comment that the friend “love[s] how [Lenz has] been injured ‘substantially and irreparably’ ;-)” by writing “I have ;-).” The (“;-)”) symbol, according to Lenz, is a “winky” emoticon which signifies something along the lines of “just kidding.”

At her deposition, Lenz testified that she believed her friend’s use of the emoticon “was kind of a reference back to [the] lawyerese” of the “substantially and irreparbly harmed” language and that her use of the emoticon was “a reply to the wink that [her friend] used.” Lenz maintains that the fact that she “believes that lawyers sometimes use stilted language is not evidence of bad faith.” …

While it’s fascinating to see Universal using a friend’s use of an emoticon to try to prove its point, it does seem like things could get a bit dicey when we have judges trying to interpret things like emoticons.

Filed Under:
Companies: universal

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Judges Interpreting Emoticons? :-(”

Subscribe: RSS Leave a comment
PRMan (profile) says:

Well, Eugene Volokh was the one who said...

According to Eugene Volokh:

“Q: How much should you pay for a picture?

A: $2000.

Why? A picture is worth a thousand words and a word, as we all know, is 2 bytes. That’s 16 bits and we all know that 2 bits is another name for a quarter.

So, 1000 * 16 / 2 * .25 = 2000″

That’s my favorite Eugene Volokh quote, and I thought it was appropriate here since we’re dealing with a picture (that’s only 2 bytes, however [actually 4 in Unicode]). ๐Ÿ˜‰

greg.fenton (profile) says:

There is no emotion in email

To try to read exactly what someone was feeling when writing an email is an exercise in futility. Even if the exact words they write state a given emotion, there is no way to be sure.

Emoticons are an interesting addition to the written electrical word, but even there too there is no way to be sure of exactly what was been felt at the time of writing.

I can think of two opposing uses of that particular emoticon:

And remember, I’m not drinking at your party ๐Ÿ˜‰


Or, you know, maybe next time you should read the entire email before flying off the handle ๐Ÿ˜‰

Now, what is the intended purpose of the two above?

[Hint: there are more than two answers.]

Dohn Joe (user link) says:

Whats so unusual about this...

One of the biggest flaws in our legal systems is the assessment of “intent” which requires over-excessive interpretation of culture (leading to mis-interpretation of subculture). Is this person really going to set off a bomb on a plane or was his remark “that’s the bomb, dude” just their lingo…hey I know! Let’s let a judge with no understanding or affiliation with this person’s social circles interpret it!! Genius!

Technopolitical (profile) says:

what about the Commas and the Second Amendment ?

The entire legal and go’t system of the USA has been debating about those blasted Commas and the Second Amendment for over a century This is really not too different. And will happen more and more , as emails and texts are used as evidence in litigation.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop ยป

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...