Two years ago, we wrote about a very sketchy operation, called Medical Justice, that was pushing a highly questionable plan to use the DMCA to stop patients from rating their doctors on online ratings sites. The plan works as follows: as part of your visit to the doctor, the doctor makes you sign a "waiver" provided by Medical Justice, which assigns the copyright on any review you might write to the doctor. Then, if you write a bad review, the doctor can claim copyright infringement, and use the DMCA takedown process to remove the bad review.
As we noted at the time, this is clearly not what copyright law was designed for.
We've also pointed out that it's not clear that this process is actually legal, and many reviews might not have any actual copyright anyway -- and in cases where there is copyright, a very strong fair use defense can be made. Still, Medical Justice has continued to convince doctors that this is a good idea, and two well-respected law professors have decided to begin educating doctors and patients about why they should be wary. Professors Eric Goldman and Jason Schultz have launched a new site called Doctored Reviews: Why Medical Justice's Anti-Review Contracts are a Poison Pill, hoping to convince doctors to stay away.
In the announcement, Goldman notes that if the website still fails to stop these kinds of practices, they may need to get more aggressive. Hopefully doctors realize that this is a bad idea. And, seriously, if your doctor made you sign one of these, wouldn't you go find a new doctor? If my doctor is trying to stifle bad reviews, then that makes me a lot more worried than any bad review. As Schultz notes in the press release:
"Doctors who use these gag-order contracts are essentially telling patients 'if you want medical care, you must sign away your right to free speech,' ... "More speech is the answer [to reviews]," he said, "not censorship and copyright abuse."
If you don't recall, the key question is whether or not digital "sales" are really "sales" or "licenses." That's because old record label contracts (the newer ones, not surprisingly, have been changed) gave artists a very small percentage of royalties on "sales," which was supposed to be about CDs, vinyl and tape, and a much higher percentage on "licenses," since there's not much involved in a license. Eminem and some other musicians have been suing the record labels pointing out that iTunes and ringtones appears to be a lot more like a license than a sale, and thus they should get the (much) higher royalty rates, and the appeals court agreed with Eminem. I'm not sure the status of some of the other lawsuits in this space, but with this new class action, I'm sure we'll be hearing about plenty of these lawsuits soon.
While Universal Music keeps insisting that the Eminiem contract was "unique" and had special language that makes the ruling only applicable to Eminem, clearly these other musicians do not agree. David Kusek has done some (ha ha) back of the iPad calculations to estimate the potential liability for the record labels at close to $2.15 billion.
Even if the estimates are a bit off, the record labels should be pretty worried about all of this. Of course, I can't wait until the next time they want to insist that they've really only "licensed" the music you have rather than "sold" it to you, since they were arguing exactly the opposite of that in court...
When you think that ideas are ownable, you get absolutely ridiculous scenarios, such as the idea that anyone could ever "own" the idea of Oprah Winfrey visiting Australia. And yet, a dive boat operator in Australia is planning to sue Tourism Australia, because of Oprah Winfrey's recent visit. You see, back in 2004, this guy by the name of John Heuvel, had the idea that it would be good for Austalia's tourism if Oprah visited the country. That seems like the kind of idea just about anyone could have, of course, however he insists that it was unique to him. He pitched it to Tourism Australia, who agreed to work with him to get Oprah to visit. They pitched Oprah in 2005, and she (or, rather, her company) turned them down. Fast forward to 2009. Heuvel thought he'd try again, and pitched Oprah's company directly (without the help of Tourism Australia). It appears there was no response.
However, last month, Oprah did finally go visit Australia, and Tourism Australia was (not surprisingly) heavily involved. However, Heuvel claims that since Tourism Australia had promised to work with him, it had now breached a contract. As for the idea that perhaps (just maybe) plenty of others at Tourism Australia might have had the idea of bringing perhaps the most recognizable entertainer in the world to the country to play up tourism in Australia? Why, that's impossible, according to Heuvel:
"Tourism Australia is saying that it thought up the idea, which is ludicrous."
Ludicrous? Really? Tourism Australia admits that it worked with Heuvel in 2005, and that that bid to lure Oprah down under failed. End of story. This latest trip was entirely unrelated. However, it appears that Heuvel really thinks that the idea itself is his and his alone, and that Tourism Australia owes him "millions" for actually having Oprah visit the country, without paying him first.
Patty points us to a Reddit post where someone claims that after posting a negative Yelp review, the company being reviewed threatened the reviewer with legal action, claiming that the review violated a contract that the customer had signed. The business apparently is one that repairs damaged hard drives or recovers data off of them. The customer was clearly not satisfied. Where it gets strange though is that the company claims that the negative review violates the signed contract. As per standard Reddit practices, the details of the company are redacted, so it's a bit difficult to dig into the facts here. However, it seems likely that this threat is more about getting the person to back down than any realistic shot at legal action. One would hope the company would realize that if it actually took legal action, that information would spread far and wide across the internet, and would probably do significantly more harm than any single bad review on Yelp...
btr1701 alerts us to the news that Houston residents have voted to get rid of red light cameras around Houston. The vote was actually pretty close, with 52.82% wanting to ditch the cameras, and 47.18% wanting to keep them. Of course, the cameras might not disappear all that quickly. It turns out that the city -- which has made $44 million from the cameras -- has a contract with the camera provider that runs for another four years. There is a 120-day cancellation policy, so the absolute soonest that the cameras might turn off is four months or so in the future. However, the city is currently reviewing its "options." And, of course, any citation sent out while this is going on is still a valid citation, so Houston drivers shouldn't run around thinking that the cameras are already off.
Apparently, the campaign of BJ Lawson, who just lost in his bid to take a Congressional seat away from Rep. David Price in North Carolina, claimed that actor Morgan Freeman did the voiceover on their recent campaign ad:
The campaign claimed that the ad was "resonating" with voters. However, after the press started asking about the ad, Lawson's campaign announced that Freeman had recorded the voiceover for the ad (at less than his usual rates, implying his further support of Lawson's campaign), Freeman denounced the campaign as lying, saying that he did not record the commercial, does not support the candidate and that "no one who represents me ever has ever authorized the use of my name, voice or any other likeness in support of Mr. Lawson or his candidacy."
Following that, the Lawson campaign pulled down its press release announcing that Freeman had done the ad, and replaced it with an announcement claiming they were scammed by a contractor named MEI Political, and going so far as to actually post the contract and emails that had gone back and forth over this (which show a fee of $4,500, which you have to assume is way below Freeman's going rate):
If you look at the emails the campaign had initially suggested a play on the "Priceless" Mastercard commercials, and the guy from MEI warns them that Mastercard has been known to sue over such copying, so at least that time MEI knew to warn about potential intellectual property issues.
The guy from MEI Political, Ben Mathis, has responded with a press release and by releasing other emails himself, claiming that all along he was clear that it was Morgan Freeman's "voice double" and stating that the campaign could not claim Morgan Freeman made the ad:
Reading through all of this, it does sound like there was some pretty serious miscommunications going on. From what's been presented by both sides, it looks like MEI told the Lawson campaign that it had some actual celebrities and some voice doubles, making it clear in the initial email that with the doubles, you couldn't name the celebrities (even though many people would "recognize" the voice). However, it was in a later email that MEI appears to have lumped all of the available "voices" together in one list, and the Lawson campaign either did not remember the difference or chose to ignore it. However, it sure does look like the contract the two parties signed flat-out names Morgan Freeman, and not his double, which could put MEI in hot water. MEI also claims that it made clear, via a phone conversation, not to use Freeman's name, and the Lawson campaign did so anyway. Also, amusingly, he asks them to keep his name out of it, which the campaign clearly did not do.
Of course, it will be interesting to see if any lawsuits actually come out of this, and who, exactly, sues whom? Freeman, conceivably, could have a publicity rights claim against the campaign and against MEI. The campaign could have a suit against MEI as well if it can make the argument that the contract indicates it would actually be Freeman, not his voice double. And, you could even see how MEI might have a case against the campaign, after the campaign claimed it was "tricked" by "a political mercenary." Of course, with the election over, and Lawson losing, they all might just let it slide... Either way, while some might claim this is a perfect example of where publicity rights make sense, it seems like good old traditional fraud statutes and contract law could handle any necessary legal lifting here instead.
Answering a student question, Roberts admitted he doesn't usually read the computer jargon that is a condition of accessing websites, and gave another example of fine print: the literature that accompanies medications.... It has "the smallest type you can imagine and you unfold it like a map," he said. "It is a problem," he added, "because the legal system obviously is to blame for that." Providing too much information defeats the purpose of disclosure, since no one reads it, he said. "What the answer is," he said, "I don't know."
Well, that's comforting. Of course, I'm less interested in "the answer" to all that small type, and more interested in the answer to the question of how those things can be considered legally binding when even the Chief Justice of the Supreme Court doesn't read them...
College sports have become a big business. That's no secret. We see it all the time, and at times that's used to stifle elements of free speech, such as in making fan-created t-shirts and such illegal. Now it's going even further. Romenesko points us to the news that the University of Kentucky, a state-funded university, has banned the distribution of a free student newspaper at the University's Commonwealth Stadium before football games. Apparently, UK has a marketing contract with sports licensing giant IMG, which they believe gives IMG a monopoly on any media efforts around the stadium. Of course, plenty of folks are pointing out that this is a pretty clear First Amendment problem. It's a public government-owned entity, forbidding the distribution of speech. The contract with IMG is meaningless as you can't contract away others' free speech rights. It sounds like folks are gearing up for a legal challenge here, which should be worth following.
Michael Scott points us to a discussion noting that famed circuit court judge Richard Posner has admitted that when he recently took out a mortgage, he didn't bother reading the legal language, which leads to stories of many other lawyers admitting they don't bother reading the legal language of many of the things they sign. And yet... those things are still considered binding. I think most people realize that the language of such things will almost never actually matter, but of course, when it does matter, it really does matter. And, of course, that leads to a general question: why do we even bother with all this ridiculous legal language if no one's really agreeing to it?
Earlier this year, we wrote about how publishing giant Reed Elsevier had decided to sue the band The Vandals, for supposedly violating a previous agreement not to use an album logo that parodied Reed's publication, Daily Variety:
While the band had agreed not to use the logo, images with the logo were being found on various websites, but it was other sites using it, not the band promoting it itself. Furthermore, it's clearly a parody, which should be legal (though it's complicated by the band's agreement to stop using the logo, so the contractual issues take precedence over the trademark/parody questions). What's amazing is that after all the negative attention being put on Reed over such a ridiculously minor issue, the company refuses to back down and is still pushing forward with the case. It's difficult to see why this makes sense in any way. Reed is a publishing giant. It hardly needs to win this lawsuit, and it's got nothing to do with protecting its trademark any more. Besides, this lawsuit has done a hell of a lot more to promote the old logo than anything that happened before.
Where this gets even more interesting (or potentially dangerous, depending on your opinion), is that the band's bassist, Joe Escalante, is a former entertainment lawyer who is representing the band in the case. Despite not being a litigator, he's been learning about litigation and even got himself admitted to practice law in Delaware, where the lawsuit was filed (the band is trying to get the case moved to LA). Escalante has been publicizing all of the aspects of the case, and the band is even holding a "fundraising" concert to fund the legal defense.