The dispute between Twitter and Twitpic is at the TTAB. A TTAB proceeding is a limited proceeding over a trademark registration. Therefore, the issues are limited, making the costs also a bit more limited than full blown litigation.
Nevertheless, during TTAB disputes, the parties will sometimes also at least discuss or mediate other potential disputes. Think of the TTAB proceeding as a low-risk place to have a skirmish, but sometimes you let that skirmish inform your decisions about how you'll handle other possible disputes.
So, Twitpic may not be shutting down over the trademark issue - but the trademark fight is where the other issues got negotiated to this point.
You receive no points, and may god have mercy upon your soul
Tim, you wrote:
And if the NFL team's mark was removed, it wouldn't mean Snyder had to change the name of the team, it would just mean that anyone else, were they so inclined, would be able to use the term in football commerce at that point (although, not the logo, or other trademarked identifiers for the team).
All it would mean is that Snyder would lose his registration, which would cost him some presumptions in litigation, and some international priority rights. But, he would still have a common law trademark.
I suspect that not too many people are actually "afraid" and that they are just being dishonest, because they do not want to moderate. So, they put on the cheshire smile and say "oh, I would act responsibly, but if I did, I would lose my 230 protection."
I really can't see how anyone could have trouble understanding that very simple language in 230.
Well, PaulT, you might not like a pretty vast body of law in the United States and all other legal systems I've studied. Third party liability, contributory liability, vicarious liability, are all theories that are alive and well. I'd be pleased to direct you to resources on that, if you're interested.
Further, you seem to be ok with that concept -- you just draw the line at the wall (or website) owner being liable only after a court order. I'm not arguing for liability prior to a court order. I'm arguing that the website owner should get the choice - once put on notice - of either defending the content or complying with a takedown request (with appropriate safeguards and blowback for bogus complaints).
So you would say liability should attach to the wall owner never?
Including if the aggrieved party is willing to clean the graffiti off himself, but the wall owner says "nah, I like it there" -- or "well, I might not have written it, but so many people come by to see it, that it has actually improved my property values, so I am leaving it."
Should the wall owner be automatically or immediately liable? I say no. However, I see no reason why the wall owner should be able to reap the benefits of the content without enjoying the responsibility for it as well. That responsibility should not attach immediately, nor should the system have "clean the wall" as its default. But, if a party has a legitimate legal grievance, is willing to bear the cost of cleaning the wall, and asks the wall owner for permission to do so, then the wall owner should either have to permit it, or make the words his own.
The reflexive desire to protect Section 230, in its current form, at all costs, borders on irrational.
If you look at the court cases dealing with this, I think you might find yourself to be a little more optimistic. In general, the courts have not been too quick to pull the mask off of a speaker without the right level of proof.
Re: Re: Re: Re: Lets not totally close our minds...
That's a good question: I agree that you have a First Amendment right to speak anonymously. However, if you look at the line of cases dealing with this right, (Dendrite, Cahill, etc.) the right is not absolute. (Nor do I believe it should be absolute). Nevertheless, the cases (and I) agree that the aggrieved party must put forth some showing of liability for the speech, before the speaker may be legally unmasked.
The bottom line is, if the speech is truly actionable (and shows that before revealing the speaker's identity), then the speaker should not be able to evade liability only because the speaker manages to hide. On the other hand, I do not think that plaintiffs should be able to unmask anonymous speakers without making a showing that the speech is actionable, because First Amendment.
You're basically arguing that the owner of a wall should be liable for the content of the graffiti painted on it.
Is that such a bad standard?
I agree that it would be absurd to have strict liability for the owner of the wall to be liable for graffiti painted on it. But, lets agree that the graffiti is somehow violating a third party's rights.
Then, I think nobody would say the wall owner is liable at the moment that the graffiti is placed there. After all, he had nothing to do with creating the graffiti, and probably didn't even want it there.
But, would you argue that he should never become liable? If he gets a letter from the subject of the graffiti, bringing it to his attention? If it is easy to remove? And, yet, the wall owner decides that he just doesn't care? At some point wouldn't you want the wall owner to have any responsibility at all?
I think you may have very little experience with the legal system. I've defended cases on this very principle -- "go after the person who posted it." I've been paid to support the Section 230 arrogance. And, for as long as it is the law, then I'm fine doing so.
But, I can't say that I don't have personal feelings of sympathy for the poor bastards trying to deal with that. Did the original poster use Tor? Tough shit for you then. Is the original poster judgment-proof? Tough shit for you then.
And, if someone does wind up proving that the content violates some right, they do that after five-to-six figures in attorneys fees, and two years of fighting. Meanwhile, the OSP could have made a judgment call.
Now sometimes they do. I've represented Sect. 230 businesses who would act responsibly, and take clearly violative content down. I've also represented aggrieved parties, and sent Sect. 230 businesses letters stating "I know you're protected by Section 230, but here's why this should come down..." and I have had good results.
The current system is very nice for me, Google, and Facebook. I love the money I make defending Section 230. Google loves having as much content as it can, without giving half a shit about anyone else. But, to think that the current system is the best one is to think quite narrowly.
One exercise I like to engage in is to take something that I believe in dearly, and challenge myself on that belief.
Section 230 is one of those beliefs. When I look back at all the Section 230 cases that I have both handled and researched, it seems to me that it might be superior from a policy perspective to have some kind of notice and responsibility provision. If an OSP receives a notice that the content is somehow violative of the complainant's rights, then the OSP can either a) take it down, or b) accept legal responsibility for the content.
I would, however, suggest that it would not be that simple -- as there should be prevailing party attorneys' fees on both sides - so if the OSP takes responsibility and gets sued, the content had better be actually violative of some legal right. I'd also like to see a provision that the author would receive statutory damages (payable by the complaining party) if the content was taken down due to a bogus complaint. And perhaps even the right of the OSP to bill the complaining party for its fees in having a lawyer review the complaint, whether the complaint is bogus or legitimate (after all, the OSP should not be taxed with the cost of a letter writing campaign by someone with censorious intent).
Section 230 has been a good engine for development of countless services, and that is a good thing. Unfortunately, it has also been a good engine for harmful arrogance on the part of a lot of 650/415 area code businesses.
There are companies that exercise responsibility - in my experience, Automattic is pretty protective of its users' rights, but it will not simply cover its ears and say "Section 230, Section 230, Section 230" when concerns are brought to its attention. I've represented a number of companies that have internal responsibility policies that make me proud to represent them. I have Sect 230 clients who don't give a shit too, and for as long as that is the law, then I'll defend their right to not give a shit until they tell me to relent.
But, the problem with Section 230 is that it has become a license to not give a shit. The more irresponsible, the more profitable. That's not really desirable.
Perhaps, but that is because the song fucking sucks.
The Macarena didn't ignore copyright, and it was just as wildly successful and annoying.
Gangam Style exploded because most of the market is a bunch of idiots who will eat up auditory junk food like it is a tootsie roll handed out on Southwest Airlines.
I'm reasonably certain that if Alex Chilton's estate released all of his works to the public domain, that we wouldn't have an explosion of Alex Chilton's popularity. You'd just have a few less people buying it on iTunes.
I can't disagree with your conclusion - yes, there is no magic pill, and what works for one might not work for another. Let the artists make the decision to abandon their rights or not. If they do, and it works for one, maybe it works for 10, and maybe it works for so many that the market changes.
He didn't make $8.1 million by ignoring copyright infringements. He made $8.1 million while or despite ignoring infringements.
But, what is important here is that he made that choice. And, perhaps it shows the wisdom of making that choice. On the other hand, he's also lost a lot of the ability to control the use of his work - and he may not care about that. But, he ought to have the right to make that his choice.
If other musicians take the opposite approach, we very well may find that the free market shows us the right way to do this.
But, lets remember that the plural of "anecdote" is not "data." If we examine every musician (or a statistically significant sampling of musicians) and try and figure out whether just giving the music away is a smarter business move, or if PSY is a statistical outlier, we might come to a different answer. (Maybe not, but you have to do the work -- don't just be lazy and say "look! guy ignores copyright, gets money! The end!)
I think your statement that the artist sued "just to get publicity" is unfounded and unfair. I know the plaintiff's attorney, and she's not going to sign a complaint that is for no reason but a PR stunt.