by Mike Masnick
Tue, Jun 12th 2012 4:03am
from the extreme-response dept
However, it appears that one family has taken a different path to go after some online bullies. After discovering that some classmates in school set up a fake Facebook profile for a girl, they sued the kids who set up the page and their parents for libel. The student had apparently asked both the school and the police to do something about the fake page -- and in both cases they were (correctly) told that they couldn't do anything. The school couldn't get involved with off-campus speech (correct) and the police noted that no criminal laws appeared to have been broken (also correct). They also asked Facebook to take down the page, which didn't happen. That's the one that surprises me a bit. Considering Facebook's insistence on "real names" and such, you would think the company would respond relatively quickly to accusations of a fake page.
That said, is libel really the most reasonable response? It does appear that some of the statements made on the page were pretty obnoxious, and could potentially meet the bar for libel, but it's difficult to see how such a lawsuit helps anything. It did get Facebook to delete the page, so perhaps that accomplished the goal. But I can't imagine that filing lawsuits against other students helps make one more accepted in school. The fact is that kids can be obnoxious brats -- and it sounds like the kids who set up this fake Facebook page fit that description. But does that really need to be settled in court? Furthermore, suing the parents of the bullies because they paid for the internet access the kids used seems like a particularly ridiculous claim. Bullying sucks, but taking kids and their parents to court over a stupid fake Facebook profile seems like overkill in response.
by Leigh Beadon
Wed, Mar 28th 2012 12:12pm
from the they-only-have-as-much-power-as-we-give-them dept
There's been a bit of a kerfuffle in Hollywood lately surrounding the documentary Bully, which has drawn attention to the ridiculousness of the MPAA's movie ratings system—and may even indicate the first real erosion of the organization's power in that area. The documentary—which has been well-received as an accurate depiction of real problems, and a potentially important film for parents, teachers and kids to see—was rated R by the MPAA for harsh language, which would stop kids under 17 from seeing it in theatres alone. This sparked a massive push-back from the studio and the anti-bullying activist community, but the MPAA refused to budge, so the studio announced that it would release the film as unrated by the MPAA (though they do include the much more reasonable "Pause 13+" rating it received from Common Sense Media, a non-profit children's advocacy group).
This can confuse people, because it's a common assumption that movie ratings are required by the government. In fact, the MPAA's rating system is unregulated and entirely voluntary, and was created as a way to avoid government intervention. The rating from CSM carries no more or less legal weight than an MPAA rating—but participation by studios, cinemas and retailers in the MPAA system has been so widespread for so long that their ratings are the de facto standard, and essentially mandatory. Any film can be released without a rating, but traditionally that has been commercial suicide, since theatres would treat it as NC17, a rating under which success is nearly impossible since most theatres won't show such films at all. But that's where things with Bully get interesting: AMC has announced that its theatres will show the movie and make it easy for kids to see it. In a unique move, they are providing a parental permission slip on their website for kids to print, get signed, and bring to the theatre:
“AMC will be presenting Bully…as not rated,” said the theater-chain in a statement. “Guests younger than 17 can see the film if they are accompanied by a parent or adult guardian, or if they present a signed parental permission slip.”
That permission slip will be available on Wednesday at this link on AMC’s website. ... (A rep for the company declined to comment on the Parent’s Television Council’s statement that screening Bully at AMC’s theaters “threatens to derail the entire ratings system.”)
That last bit is interesting, because it shows that the Parents Television Council (notorious moralist meddlers in the free speech rights of others) knows exactly what's happening. The power of the MPAA and groups like PTC relies entirely on momentum and force of habit. Nobody is beholden to them, but for a long time it seemed like everyone forgot that. That let the MPAA warp the rating system and use it for their own purposes such as playing politics, screwing over indie filmmakers, and even punishing a documentary that criticized the rating system itself. But now people are remembering that they don't have to play by the MPAA's self-serving rules. In their statement, PTC neatly predicts the future, though they rail against it:
"This move, regardless of intentions, sets a precedent that threatens to derail the entire ratings system," said PTC head Tim Winter in a statement."If a distribution company can simply decide to operate outside of the ratings system in a case like Bully, nothing would prevent future filmmakers from doing precisely the same thing, with potentially much more problematic material."
As with most of the disruption happening in the entertainment industry, this has a lot to do with the internet. In the past, if everyone played by the rules, there was basically no such thing as "unmet demand" for a film with a bad rating. Once the MPAA handed down its death sentence, nobody would touch the project, and it would receive no promotion or screen time, so nobody outside film circles even knew about it. Now lots of people are plugged into the festival circuit and the inside world of film, so a movie like Bully can generate plenty of buzz before it even hits Hollywood. The demand for the film was there, the studios were able to gamble on that demand, and AMC could see the advantage in breaking the rules to meet it. If the film is a success (which seems likely) it will deal a powerful and much-needed blow to the MPAA's ratings regime.
by Mike Masnick
Fri, Feb 3rd 2012 1:14am
from the not-again dept
Instead, Ling appears to have decided to use trademark law to try to silence the filmmakers. They first tried a defamation lawsuit, and that didn't work (seeing as Ling apparently actually said what's shown in the film), and everything else was nonactionable opinion statements. So then they shifted to a clearly bogus trademark claim. The filmmakers had put up a website about the film, including one page about Jenzabar. So the company sued the filmmakers, claiming trademark infringement. This is pretty absurd of course. There's no trademark issue here. No likelihood of confusion. Even though Ling/Jenzabar claim that the page in question presents "lies," the defamation lawsuit didn't work -- this is entirely about trademark law. It seems pretty clear that Ling (and others at Jenzabar) just don't like that this info is getting out, and are trying to use trademark law to stop this form of speech.
The court sided with the producers, granting summary judgment and tossing out the case, but Jenzabar is appealing the ruling. Part of the original argument for the trademark claim was that Long Bow used the company's name in its metatags. This is silly for a variety of reasons. First, the page actually does talk about Jenzabar. Second putting a trademarked company name in metatags isn't a violation of trademark law. Third, and most importantly, metatags are almost entirely ignored by search engines -- so the claim that this impacted Google's search results seems misguided. Of course, somehow Jenzabar found an "expert witness" to insist that Google does use metatags (in combination with title tags) in determining rankings, and tried to dismiss claims from actual Google employees to the contrary as hearsay.
Now, in the appeal, Jenzabar is apparently arguing that because the Google snippet that shows with the page mentions that Jenzabar tried to censor the site, it's proof of infringement. As Paul Levy notes in talking about the case, "Will its lawyer be able to argue that with a straight face?" As is noted in Levy's filing (on behalf of Long Bow), the fact that Long Bow has made it even clearer that Jenzabar has no association with the page -- by publicly stating that the company tried to censor the page -- actually works against Jenzabar's trademark claim. It's even more evidence that there is unlikely to be any confusion by users finding Long Bow's page. Any moron in a hurry can tell that the page is not endorsed by Jenzabar. But, rather than recognizing how this hurts its own case, Jenzabar is claiming that this new tidbit of info on the page is somehow new evidence of infringement.
In theory, this new listing should have met Jenzabar’s purported concern that the original search listing could confuse potential customers using Jenzabar’s name as a search term. But Jenzabar argued below, and apparently still contends on appeal, that this is an “infringing” use of its marks.... Nothing could show more clearly that this case is about suppressing public access to truthful criticism, not protecting against deception of consumers.Either way, all the facts of the case seem to suggest that this lawsuit (and further appeal) are simply about trying to silence the filmmakers by burdening them with an expensive and distracting lawsuit. That seems like a pretty clear abuse of the purpose and meaning of trademark law.
by Mike Masnick
Mon, Jan 16th 2012 4:05pm
from the that's-bizarre dept
Either way, David then alerted his editor at Business Insider, who said:
I think it might be best if we revoked your account for now. We've drastically cut back on our contributors recently and while we really appreciate your posts there have been far too many of these types of contentious issues lately.Now, there are all sorts of ways to look at this, and I'd almost be more inclined to question how Business Insider handled this, rather than NBCUniversal. The second one of your writers gets into a little bit of controversy, you cut them loose? Way to look out for your writers, BI.
So I'm not sure I buy the story that NBCUniversal is the reason Seaman is no longer a contributor to BI, but it is a fact that Quintano directly threatened to contact Business Insider to complain about David's statements. It's downright slimy for NBCUniversal employees to threaten people to contact their employers because NBCUniversal doesn't agree with their statements online. Disagree, fine. Hell, I don't even have a huge problem if NBCUniversal wants to be anti-internet and block comments it doesn't like (as it was doing here). But to then threaten to impact someone's livelihood because you don't like their comments? That's just bullying.
by Mike Masnick
Wed, Dec 7th 2011 2:12pm
from the world-gone-mad dept
by Mike Masnick
Mon, Dec 5th 2011 8:59am
from the getting-out-of-hand dept
Oh, and don't roll your eyes at that. As a few folks have sent in, proponents of anti-bullying laws define eye-rolling as bullying. No, we're not joking. So, you know, if the big kid in school demands your money, and you roll your eyes back at him... I guess everyone's on equal footing, huh?
The link above notes various attempts to create more anti-bullying laws and regulations, many of which raise significant free speech questions. It also points out that the Justice Department's own data has noted that bullying and violence in schools continues to drop. Combined with the studies we've seen about the limited amount of online bullying... it suggests this is not a widespread issue. Again, none of this is to deny that bullying does exist, and that it can be horrifying for the victims. But that doesn't mean we should rush out and shut down the First Amendment with overreactions. Deal with the extreme cases -- that makes sense. In most cases, the really extreme cases can already be dealt with under existing law. But when you get to the point that you're defining bullying as "eye rolling" or "excluding," you're actually doing the opposite. You're diluting the problem so much in an attempt to make it seem bigger than it really is, that you make it impossible for people to focus on the real problem cases.
by Mike Masnick
Wed, Nov 30th 2011 4:05pm
from the morons-in-a-hurry-don't-eat-chicken? dept
I'd really like Chick-fil-A to point out the moron in a hurry who would see "eat more kale" and suddenly get confused into biting into a clucking bird instead.
Now, it is worth noting that the artist, Bo Muller-Moore, may have brought this partially upon himself by applying for a trademark himself on the "eat more kale" slogan -- which is likely what prompted Chick-fil-A to send the letter opposing the trademark and challenging the phrase. This is what happens when we battle over who can try to lock up the English language. Either way, Chick-fil-A looks like a world class trademark bully, clearly overstepping the powers given to it under trademark law. "Eat mor chikin" is trademarkable not because of the phrase "eat more" but for the full phrase, including the misspellings. Pretending that any version of "eat more" is a trademark violation is simply an attempt to expand the trademark well beyond what is reasonable.
from the moral-panics dept
by Mike Masnick
Wed, May 4th 2011 7:00pm
from the that's-what-happens-when-you-only-ask-one-side dept
You can read the full report (pdf), but you won't get much useful out of it. Eric Goldman's detailed summary of the report's massive failings is much more educational. Basically, much of the "research" for the report came from big trademark holders -- who are often the biggest bullies -- rather than the victims of trademark bullying. So, of course, they said there really wasn't much of a problem at all, and the Commerce Department parroted that position.
The worst part, however, was in the whole discussion on the "duty to police." This is an issue that is regularly raised whenever we talk about trademarks, where people claim that you have to enforce your trademark or you can lose it. As we've explained many times, that's a bastardization of what the law and case law seem to actually say. It's only true that you need to enforce it in situations where there's an actual likelihood of confusion and/or it's being used in direct competition. The tangential or totally unrelated uses don't require you to enforce. Furthermore, there are alternative actions rather than threatening or suing -- such as offering up free or cheap licenses.
Goldman's section about this "duty to police" delves in even further, and basically shows why the Commerce Dept. report is useless:
Second, the report says "a trademark is a property right that an owner has a duty to police." WHOA! Many folks would dispute the characterization of trademarks as "property"; and many folks (including me) insist that the "duty to police" is massively overstated. Later, the report says, "In view of the mark owner’s obligation to police violations, aggressive enforcement of one’s trademark rights does not automatically equate to abuse or bullying." In effect, the report says that it doesn't see any problem at all; but if there is a problem, it's just the natural consequence of that pesky duty to police....oh well, c'est la vie.But what do you expect from the Commerce Department? It's really turned into nothing more than an internal lobbying arm for big business, these days. It's too bad the FTC didn't take on this particular task, as it seems like it's really more something they should cover, and at least it's a federal agency that seems to really try to understand the issues, when it comes to intellectual property.
Given its apathetic nature, the report doesn't make the logical jump that any intellectually curious person would instantly make: if the "duty to police" might be driving trademark owners to be (over)zealous in their enforcement efforts, maybe we should fix the duty to police. After all, this "duty" isn't in the statute at all; it's barely in the caselaw; and it could be easily remedied with a statutory clarification that might very well be welcomed by both trademark owners and secondary trademark users because it might eliminate ambiguity plaguing both communities. C'mon, guys--that conclusion isn't exactly rocket science.
From my perspective, the "duty to police" is like the proverbial monster under a child's bed. It's not actually there, but boy, it sure seems scary. My academic writing queue is too thick right now to tackle this issue immediately, but I don't recall seeing a good comprehensive academic article grokking the duty to police (if I'm forgetting something, please let me know). That would be an excellent paper topic. I would be happy to work with someone on this project so that we can demonstrate just how massively the "duty to police" is overstated--typically as a business development tool for trademark litigators trying to afford their kids' private school tuition. Naturally, the Department of Commerce report undertook no such research effort into the trademark policing duty itself.