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.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Esahc (profile), Mar 15th, 2010 @ 9:32am

    Universal's lawyers are (oYo)

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Mar 15th, 2010 @ 10:00am

    At first I was like 0_o
    Then I was like T_T
    But then I became ^_^

    reply to this | link to this | view in thread ]

  3. icon
    Comboman (profile), Mar 15th, 2010 @ 10:01am


    Thank goodness they didn't use the Sarc[TM] mark.

    reply to this | link to this | view in thread ]

  4. identicon
    DS, Mar 15th, 2010 @ 10:05am


    Now I'm like :I

    reply to this | link to this | view in thread ]

  5. identicon
    PRMan, Mar 15th, 2010 @ 10:27am

    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]). ;)

    reply to this | link to this | view in thread ]

  6. icon
    PEBKAC (profile), Mar 15th, 2010 @ 10:45am

    What does personal correspondence have to do with fair use? :/

    reply to this | link to this | view in thread ]

  7. icon
    PEBKAC (profile), Mar 15th, 2010 @ 10:46am


    Der, nevermind, missed that sentence. :{

    reply to this | link to this | view in thread ]

  8. icon
    greg.fenton (profile), Mar 15th, 2010 @ 12:22pm

    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 ;)


    Or, you know, maybe next time you should read the entire email before flying off the handle ;)

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

    [Hint: there are more than two answers.]

    reply to this | link to this | view in thread ]

  9. identicon
    Dohn Joe, Mar 15th, 2010 @ 12:50pm

    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!

    reply to this | link to this | view in thread ]

  10. icon
    Technopolitical (profile), Mar 15th, 2010 @ 2:57pm

    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. http://www.guncite.com/second_amendment_commas.html http://www.nytimes.com/2007/12/16/ opinion/16freedman.html

    reply to this | link to this | view in thread ]

  11. icon
    kevin (profile), Apr 18th, 2011 @ 1:47am

    In 1998, the city amalgamated the adjacent towns of Etobicoke, York, North York, East Your and Scarborough to form one large metropolitan area. Each of these once-separate municipalities continues to retain their own particular identity.wood pellets machines

    reply to this | link to this | view in thread ]

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
Insider Shop - Show Your Support!

Hide this ad »
Essential Reading
Techdirt Deals
Techdirt Insider Chat
Hide this ad »
Recent Stories
Advertisement - Amazon Prime Music
Hide this ad »


Email This

This feature is only available to registered users. Register or sign in to use it.