The lines are hard to draw, but we got section 230 passed back in 1996 on a promise of self-regulation. When Internet companies struggle about how to do that, we can't object that the entire enterprise is illegitimate.
Forgive me, but I wonder whether this is overstated: "he's basically cut off these two platforms without any sort of court ruling."
As I read the letter linked from the NY Times article (http://www.nytimes.com/interactive/2015/11/10/sports/document-final-nyag-fanduel-letter-11-10-2015- signed.html), Schneiderman sent the two companies a letter demanding that they cease and desist, and giving pre-litigation notice of an intent to file a lawsuit. Maybe it is more intimidating to get such a letter from the Attorney General of a state than from Marty Singer, but it is no more an "order" than a letter from Singer or any other of the players in the cease-and-desist letter field whom we all love to detest.
And of course it is without a court order, but Schneiderman is threatening to go to court. The court would then decide whether to issue an order. What am I missing?
After I posted my piece, I had an interesting exchange with a reporter in Singer's home town (I leave the name out because I am not sure I have permission to use it) who said that when Singer was asked recently about the Streisand Effect, he said he knew about it and takes it into account when sending demand letters. Not clear, though, whether Singer goes over these risks with his clients, or whether other lawyers in his firm are similarly attentive.
The judges in the majority in this case were both appointed to the Ninth Circuit by one of the Bushes -- Judge Bea by George W and Judge Quist by George H. W. It was the dissenter who was appointed by a Democratic president. Misapplication of trademark law is not easily classified on the liberal / conservative spectrum.
We all love to hate Prenda Law, but I am not so sure it is right to demonize the lawyer who is representing it on appeal.
I watched the oral argument video http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007584, and I have to say that I do not share the view expressed here about the quality of Prenda Law’s appellate counsel or, indeed, the optimism expressed here about the outcome of the appeal. To be sure, Morgan Pietz was by far the more engaging of the two appellate lawyers, and he displayed far more willingness to dig into the relevant precedents and argue about them, but Voelker may well have had the winning argument, and I thought some of the panel were treating him unfairly, even bullying him, out of frustration at his clients.
Voelker’s argument was that once the judge threatened jail time as a consequence of the sanctions hearing, it became a proceeding for criminal contempt, to which procedural due process requirements applied, and furthermore than when the judge (according to Voelker) precluded Prenda from putting on any evidence because its principals were invoking their Fifth Amendment privilege, he irrevocably tainted the proceeding. At that point, his argument is that judge couldn’t pull it back and save the proceeding by imposing civil sanctions based on the fact that the defendants asserted their Fifth Amendment privilege in the criminal proceeding (because invocation of the Fifth can be used against the lawyers in a civil proceeding). And he said, what my clients want is their day in court with proper procedures.
I have not read the briefs or the precedents on which he relied to make my own assessment of whether he has a good argument on that. But on listening to the argument of the Doe’s lawyer, and to the rebuttal argument, it seemed tome quite possible that the sanctions would be overturned, at least in substantial part and maybe entirely, on procedural grounds.
And considering that the argument was based entirely on procedure, it seemed to me entirely fair that Voelker refused to let the judges draw him into a discussion of the facts of the case. It’s not the strong point of the appeal (since factual determinations are reviewed for clear error), and anyway the facts stink to high heaven. So in this regard, Voelker’s approach may well have been the best one for his client.
Now, was the client’s choice wise? Maybe, maybe not. When you are representing parties in an appeal from the imposition of contempt sanctions, based on the argument that the contempt was criminal not civil you have to advise them to consider whether they want to take the risk of being prosecuted (I am currently handling such an appeal, http://pubcit.typepad.com/clpblog/2015/04/maryland-trial-judge-wrongly-enjoined-criticism-of-converg ex-caribbean.html although I think MY client is a bit more sympathetic than Prenda). But berating the appellant’s lawyer about the choice his clients made strikes me as unfair to the lawyer.
Beyond that, I found myself offended by the panel’s bullying of Voelker for representing his clients in a criminal appeal. The panel suggested that Voelker might have personally involved in the trial court shenanigans – was there any evidence in the record for that? Judge Pregerson (and Mike, too) made fun of the fact that Voelker’s web site cites his inclusion in the bullshit list of Superlawyers http://www.voelkerlitigationgroup.com/About-Voelker-Litigation-Group.php#awards (of course, so does Morgan Pietz’s web site: http://pietzlawfirm.com/attorneys/). But why is that relevant at oral argument? Judge Pregerson went on about the fact that Alexander Hamilton was born in St. Kitts, asking a series of questions to see whether Voelker knew Hamilton was born there. So what?
Over the years, representing clients taking unpopular positions, I have been bullied at appellate oral argument by judges who know you can’t sass them right back, and it sucks. I have also seen opposing lawyers bullied by appellate judges and I cringe when that happens. We might hate Prenda Law, but unless there is reason to hold its lawyer responsible for its bad conduct, we should concentrate our fire where it belongs.
How is this restriction on tweeting any different from reporters who agree to accept advance copies of reports on the condition that they not describe them publicly until a time certain. Do such journalists violate any ethical norms when they comply with the embargo?
Tim, I'd like to see you address the point from Anon Coward #19: what is the theory under which a two-party consent law (California has one too) is unconstitutional? There is decision from Illinois striking down that state's two-party consent law, but only on overbreadth grounds, because there was no exception for cases in which there is no expectation of privacy.
Declaratory judgment actions are now attacks on free speech?
Tim, I don't like Snyder or the offensive name of his football team any more than you do, but I don't get the complaint that he chose to go to district court to establish his position that the TTAB erred. When Jerry Falwell obtained a UDRP decision compelling the transfer of Christopher Lamparello's domain name fallwell.com, on the theory that it infringed his mark, we sought a declaratory judgment of non-infringement from the ED Va; this gave us the tactical advantage of staying transfer of the name pending the outcome of the litigation. When Wal-Mart sent a cease-and-desist letter to Charles Smith about his parody designs, we sought a declaratory judgment of non-infringement from the ND Ga instead of waiting for him to be a defendant in Arkansas (the same Quinn Emanuel team as the one that represents the Potato Skins represented Wal-Mart in that case, except that the original lead associate on the case has moved on). It never occurred to me that we were attacking Falwell's or Wal-Mart's free speech rights by filing these actions.
Strikes me that this is a retailer who is deliberately treading at or beyond the edge of parody in the hope that the publicity about being attacked by Henley will sell lots of its wares. But that will only do it good if it is not ultimately stripped of its profits in the form of damages.
The fair use defense strikes me as a loser. I don't know how any viewer of this ad who is decrepit enough to know who Don Henley and his band are (and I count myself among that number) would not think that the shirtmaker might well have Henley's endorsement. Assuming that rights of publicity are legally valid -- and they certainly are in California, when the speech is commercial -- I see Henley winning big.
In addition to the other flaws in the article that Mike has noted, the author shows that she has no idea what she is talking about when she acknowledges that “I didn’t like the food at Deb’s Diner, and won’t be going back” is a protected opinion but says that “If you live in Lake Highlands, don’t hire Peek’s Carpet and Tile to install a new floor for you” is actionable as tortious interference with business -- both are purely an expressions of opinion and not actionable.
Then we have this total piece of nonsense:
"Virginia homeowner Jane Perez became the reluctant poster child for what can happen when you post a review that a court finds to fall under the product disparagement rules. The contractor who didn’t like her one-star review on Yelp sued her for $750,000 – and was awarded damages of over $250,000. Appeals in the case continue, but the costly case has ruined the homeowner’s credit and created a precedent that has encouraged many more business owners to file suit when negative reviews are published."
It is a funny response, but likely disingenuous and thus harder to defend in the UDRP. A straightforward justification -- that the use of Instagram's name in this URL was not not confusing, and was fair use -- would also have been successful