The plaintiff's remedy for allegedly false anonymous postings is to use discovery from the hosting company to obtain the poster's identity (proof of falsity is required in most jurisdictions that have addressed the issue (http://www.citizen.org/documents/Levy-Developments-in-Dendrite.pdf), then sue the poster for damages and (where permissible) an injunction compelling removal. The hosting service is immune from any litigation, including for an injunction.
Section 512(j) of the DMCA limits the scope of injunctions only "against a service provider that is not subject to monetary remedies under this section." It is not at all clear that Google qualifies for this limitation: it received takedown notices and did not comply with them.
Subsection (j) is referenced in subsection (c), the limit on monetary remedies:
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material . . . , if the service provideró (A) * * * (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material
So as I see it, Google had better have a stronger argument that section 512(j).
How Holt will handle the oral arguments since he's in prison.
If it comes to that, the Supreme Court will appoint an experienced Supreme Court lawyer to file briefs and argue on Holt's behalf. That, for example, is how Abe Fortas ended up arguing Gideon v. Wainwright. But that will likely be unnecessary, because these days once cert is granted,even in cases where the parties had lawyers below, crowds of experienced Supreme Court lawyers descend trying to take over the case, either for pay or for glory (or both).
My guess is that experienced Supreme Court lawyers are lined up right now trying to get Holt to pick them to argue on his behalf.
Unlikely "famous" within the meaning of trademark law
To qualify for dilution protection under the Lanham Act, a trademark has to be "widely recognized by the general consuming public of the United States." SXSW has broad recognition among the cool crowd, but that is what used to be called "niche fame." I doubt that the "general consuming public of the United States" has the slightest idea what SXSW is.
Removal of the FDA from the Medical Treatment and Diagnosis Market
There are EKG devices now marketed for home use. What if one such product was really just a bunch of wires that gave no useful information? Its misuse could lead someone to assume that he wasnít having heart problems, and so not to take necessary precautions and not see as doctor.
Should the FDA not regulate those home tests, either?
Under the several of the statutes that the FDA is charged with enforcing, companies that sell drugs, or medical devices, have the burden of showing effectiveness for the advertised purpose (gross simplification of the standard; there are a variety of requirements depending on the risks associated with the device). Here, the interpretive question is whether a home testing kit is a medical device. Mike, do you disagree with the FDA's conclusion that it is?
Once you get past that, then the question is whether the company has made a sufficient showing of effectiveness. The FDA says that showing has not yet been made here. This strikes me as an example of the FDA earnestly doing its job.
All courts have detailed formatting requirements for documents filed in the given court -- slightly alleviated in those courts where filing is exclusively digital, but even there courts have stringent requirements. Sop, I am not sure it makes sense to single out the Supreme Court in that regard, especially because, as you rightly point out, review in the Supreme Court is discretionary and, as a result of the accession of a majority of Republican justices, the Court has severely reduced its docket and takes only a tiny fraction of all cases presented for review.
It is true that the rules about printed booklets make it hard for professional printers who don't specialize in Supreme Court brief-printing to comply, but you can comparison shop for less expensive printers (Public Citizen certainly does), and in the end when the cost of Supreme Court counsel is taken into account, the added cost of printing is just a drop in the bucket.
Given the incredible complexity of federal budget legislation, and the fact that it is often crafted for the precise purpose of enabling "gotcha" campaign advertising, the fact that this suit has been filed over the proper characterization of what a given vote represents strikes me as a dicey basis for a defamation claim.
Re: Re: A couple of points about average joe's comments
You are right to point out that I mistyped, but not to argue that "the parody defense is not even available since the use is commercial." These are separate defenses (or exclusions, in the language of the statute). Unless the fair use defense, including parody, is purely duplicative (and we try to avoid construing statutes that way), it must be available in situations where "noncommercial use" is not a sound defense -- that is, is cases of commercial use.
It is not correct that the parody defense is not available when the use is non-commercial. Non-commercial use is ONE defense to a dilution claim (subsection 3(B)). "Fair use . . . including . . . parody" is a separate defense per subsection 3(A).
Also I said only that tarnishment claims frequently succeed when a mark is associate with porn; "usually" seems to me a bit strong. LL Bean nevertheless lost its dilution suit against a High Society parody that overflowed with nude models; and although the Second Circuit gave the Dallas Cowboys a win against the porn film "Debbie Does Dallas" it is not at all clear that the result would be the same today.
The public ought to be able to hold Judge Kaplan accountable for his orders in this case, and the only way to do that is to see exactly what BJ argued, and what evidence it presented. His allowing the sealing of the images over which suits has been filed -- and indeed the non-filing of the moving papers in this case (including whatever arguments may have been made for the sealing) -- is disturbing. Sealing order is here: http://www.scribd.com/doc/105327851. I was, though, heartened to see his warning that he might ultimately decide differently in light of the public right of access to judicial records, which is particularly strong in the Second Circuit.
The article is a bit unclear, and the complaint is not available on PACER; indeed, the judge has entered an order sealing some of the materials that were apparently presented to him in support of the complaint. So it is hard to make any independent judgments about the veracity of the article.
That said, this strikes me as a dilution case involving a claim of tarnishment. If so, there is no obligation to show confusion and, in fact, lack of confusion would be irrelevant. I am no friend of the dilution cause of action, but historically, the one area in which trademark plaintiffs frequently succeed in arguing tarnishment are the cases in which a defendant, and especially a commercial defendant, associates a trademark with either pornography or narcotics use.
The fact that the defendant makes a parody claim might or might not make the defense litigable. One would have to look at the product to make a judgment about whether this is really a parody or just an effort to exploit a trademark to sell a pornographic film.
That said, considering that this is a TRO against a movie, there are some very disturbing questions that come to mind. PACER not only does not contain the complaint; although the TRO recites that there were declarations, the docket does not reflect any such documents having been filed. The TRO says nothing about what efforts were made to give the defendants notice and an opportunity to be heard, and why the judge was justified in issuing a TRO without notice, if in fact there was no notice (Rule 65(b)(2) expressly requires such a recitation). The case was filed September 5, and the judge entered the TRO on September 6. It would be nice to see some explanation of why the plaintiff was entitled to get such quick action, possibly before defendants had the opportunity to present an opposition.
Opinion's references to other South Park episodes and other viral videos
Not so surprising when you understand that in the federal courts of appeals, opinions are generally drafted by 25 or 26 year old law clerks who are fresh out of law school. No doubt they had fun with this opinion.
The letter comes from a lawyer in the Civil Rights Division, which, among many other duties,pursues issues of police misconduct. These cases are among the hardest that Justice Department lawyers do, because they involve taking on police officers who generally enjoy huge reserves of public support in the local areas where the cases are pursued. And juries don't often side with the federal government against local police officers. The lawyers who do this work are incredibly dedicated; thank goodness they are there.
An old friend of mine, indeed he is a former colleague here at Public Citizen, who used to represent consumers in tiffs with airlines and with the FAA and the old Civil Aeronautics Board, had this realpolitik comment about the politics at play here:
"Understand one thing about the FAA: If they repeal the current rule, and a plane crashes, there will be hell to pay. If they leave it on the books, the only downside will be complaints from a relatively small number of passengers who dislike the inconvenience of turning off their laptops or smartphones for 10 minutes. Iím sure you can guess how that choice will be resolved by an agency."
Re: Re: One of the big problems with DMCA takedowns....
With respect, it is not "the trial lawyers" who "won't let something like that pass." The inability for others to sue over takedowns is a consequence of the Burger and then the Rehnquist Court's increased used of standing and other Article III doctrines to prevent suits in the public interest on the ground that the person suing lacks sufficient personal, concrete interest in the litigation to justify use of the courts. Not at all the "trial lawyers."