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  • Jul 2nd, 2017 @ 10:04am

    Re: electronic discovery rules

    There is no such thing as a court preservation letter. This was a letter from one party's attorney to someone likely to receive a subpoena in the near future. It's not an order to preserve or produce, and the recipient may not actually have a duty to preserve, despite the letter.

    A subpoena is a sufficient but not necessary condition to trigger a preservation obligation. Do you think I should be able to shred or delete unfavorable docs just before suing you? Or do you think it's equitable that I be required to preserve docs relevant to the impending litigation (that I'm about to trigger), even though I haven't been subpoenaed?

    An obligation to produce without an obligation to preserve would just encourage parties to race to destroy unfavorable evidence before they receive a subpoena.

  • Jun 30th, 2017 @ 7:09pm

    electronic discovery rules

    1. This didn't involve a service of a faulty subpoena; it involved a preservation notice letter with a draft of an unserved subpoena.

    2. The goal of the letter was really to trigger a preservation obligation on Johnson. People have an obligation to preserve evidence under some circumstances, so the idea is to put Johnson on notice that he shouldn't destroy anything that may be subject to a pending subpoena- whether or not he actually has an obligation to preserve (even with notice) is a different matter.

    3. Non-parties (such as Johnson) can still be subpoenaed for discovery, albeit under rule 34(c) instead of 34(a). Here's 34(c):

      As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

    Here's rule 45(c)(2):

    (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected.

    Non-parties are not immune from discovery. Courts are more lenient about undue burden for non-parties since they're essentially by-standers to the litigation, but if a non-party has relevant information, they're potentially fair game for discovery.

    Note the distance threshold in in 45(c)(2)(A) triggers when the person is more than 100 miles away from the place at which the evidence is to be produced. If the subpoena demands production within 100 miles of Johnson, he won't be able to object on grounds of distance.

  • May 26th, 2017 @ 8:00am

    Re: Re: Re: Copyright?

    While I agree it's almost certainly fair use, fair use is always determined on a case-by-case basis, and that provides some (weak) basis for a copyright claim.

  • May 26th, 2017 @ 7:16am

    Re: Copyright?

    From the article, it sounds like the video included shots/clips from the game or otherwise produced by Wargaming. Those would be covered by copyright.

  • Dec 9th, 2016 @ 7:48pm

    Subsequent remedial measures

    There's a legal doctrine of subsequent remedial measures, where repairs or improvements can't be used to show negligence, defects, etc. One policy rationale is that society doesn't want to discourage fixing a problem if the fix itself is used as proof of liability.

    See https://www.law.cornell.edu/rules/fre/rule_407

    While the doctrine doesn't necessarily apply to defamation, the same policy consideration is at issue.

  • Jun 23rd, 2016 @ 2:30pm


    The alleged infringement was ongoing and continuous.

  • May 17th, 2016 @ 9:26am

    Not 9th circuit precedent

    And, now, even with it being "fact" that APIs are covered by copyright in certain cases in the 9th Circuit (hopefully other courts have a chance to fix this at some point soon...), we're still facing the same kind of argument.

    This part of the article is incorrect. The Court of Appeals for the Federal Circuit made the ruling regarding copyright of APIs. The 9th Circuit has not, to the best of my knowledge. Since there was a patent aspect to the original case, the Federal Circuit (which has exclusive jurisdiction at the circuit level for patent appeals) took the appeal and set the precedent. It won't bind the 9th Circuit appeals court at all; it will bind cases that get appealed to the Federal Circuit though, so we might start seeing random patent claims attached to API copyright claims to make sure that the case is under Federal Circuit jurisdiction.

  • Mar 21st, 2016 @ 11:47am

    Re: Re: Re: Where do you draw the line?

    Privacy with respect to the 14th amendment applied to state actors, I thought, which would be inapplicable to a private entity such as Gawker.

  • Mar 21st, 2016 @ 10:11am

    Re: Re: Re: Re: Where do you draw the line?

    I'm not sure the tape is considered obscene. Obscenity definition from Miller v. California:

    The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

    I haven't seen the clip in question, but from the description, it could fail the prurient interest prong- it's sounds fairly plain in terms of the act. Also, it could have literary/political value given that Hogan/Bollea is a public figure who has injected his sex life into the public discussion.

  • Oct 7th, 2015 @ 8:40am


    FYI, under current law, registration of the copyright is a necessary (but not sufficient) condition of obtaining statutory damages.

    17 U.S. Code ยง 412

  • Oct 7th, 2015 @ 8:25am

    Re: Re:

    While some laws are applied retroactively, that is not at issue for happy birthday. The Copyright Act of 1976 represented a pretty clean "break" between the works fixed on or before Dec. 31, 1977 and those fixed on or after Jan. 1, 1978; the former were covered primarily by the Copyright Act of 1909.

    It was fairly easy to lose a copyright prior to 1976, and the recent decision was analyzed under the 1909 Act.

  • Oct 7th, 2015 @ 8:17am

    Re: Re: Re: Re:

    The copyright to the lyrics is separate from the copyright to the melody. The copyright to the melody is lapsed, so only the lyric's copyright (and authorship) is at issue.

  • Sep 24th, 2015 @ 10:29am

    Re: Lyrics published in 1919

    That's insufficient. It needed to have been published with the authorization of the copyright holder.

    The case described numerous publications, but, as it wasn't clear that they were authorized, the judge considered that insufficient evidence for divesting the copyright.

  • Sep 24th, 2015 @ 5:33am

    Re: how do you copyright this?

    The lyrics and musical score are considered distinct in copyright. Lyrics are essentially just the same as any other textual work like a poem, article, or book. The difference between lyrics and poetry can be rather thin.

    The musical score/composition has its own copyright. So the musical melody for Happy Birthday/Good Morning To You is a separate legal object. That's what the copyright suit over Blurred Lines (Robin Thicke) is about- whether the musical composition from the Marvin Gaye song was copied.

    And this is all different than the copyright interest in an actual audio recording.

  • Dec 2nd, 2014 @ 8:14am

    Re: Re:

    This is a "New Britain Superior Court Judge", not an article 3 federal judge.

    There is no "good behavior" limit. There's actually a good chance this is an elected position.

  • Oct 15th, 2014 @ 6:46am

    Re: I'm not persuaded

    I agree.

    The retailer is clearly trying to evoke Don Henley in the viewer.

    I don't think the trademark claim will fly because of the different industries (music vs clothing), but the others have some legal merit.

    The article is also wrong to bring up:

    Henley is also claiming false advertising and -- because this suit was filed in California -- violations of his right to publicity. In both cases, the simplest defense may be to point out that common English words were used, neither of which violate registered marks of Henley's publicity rights.
    The use of common English words is separate from violating a registered mark; the former is essentially an argument against all of the claims, and the Lanham and state publicity claim stand independently from the trademark claim

  • Aug 6th, 2014 @ 11:07am

    Re: Re:

    After getting laid off from my law firm, I actually talked to one of the Prenda people (a few years back before they became infamous) about being local counsel. I was told about the copyright lawsuits but didn't go through after seeing them in some of the early copyright trolling articles.

    Sure am glad I dodged that bullet.

  • Aug 6th, 2013 @ 10:29am

    Re: Billy Cub should go away...???

    1. The claim is trademark infringement, not copyright. The Cubs logo is certainly trademarked, and the uniform might be.

    2. The essence of a trademark infringement claim is consumer confusion- that is, are people mistakenly attributing the trademark owner as the source or endorser of something. In this case, if people believe "Billy Cub" is the official team mascot, then the Cubs have a decent claim at trademark infringement.

  • Apr 24th, 2013 @ 12:27pm


    In a nutshell, there are both federal and state level copyright laws. The (federal) Copyright Act of 1976 generally preempted existing state level copyright laws, and created a uniform, federal system that is the one that we usually think of. However, there were exemptions to this preemption (see http://www.copyright.gov/title17/92chap3.html#301), which means that the state laws would still be in effect.

    UMG claimed violations under NY state copyright for works that were not preempted by the federal statutes. Grooveshark argued it was protected under the federal DMCA safe harbor provision, but NY appellate court has now rejected that.

  • Apr 24th, 2013 @ 12:01pm

    Re: Re: Re:

    I argue that the DMCA and laws like it expand the rights and remedies of the copyright holder, at least when taken as a whole. It grants copyright holders the power to issue takedowns of infringing (and non-infringing) works with very limited oversight in addition to the original power to track down the infringer through discovery and sue them directly. The safe harbor effectively allows takedowns to occur without the service provider becoming liable for that content.

    First, whether or not on the whole copyright holders are in a stronger position post-DMCA, that's not the standard. 17 USC 301(c) states that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067". Emph. added. The question isn't whether the total bundle of rights is stronger/weaker, but if any particular right is weaker.

    Second, that "expansion" of rights you cite isn't actually an expansion. Copyright holders already had the ability to send a complaint about infringing material; the takedown notice wasn't a grant of a new right- remember, a takedown notice does not actually force a service provider to remove content. With the DMCA, takedown notices are actually much weaker for the copyright holder because now you can't sue the service provider because of the DMCA safe harbor provision. A pre-DMCA threat to a service provider to sue has leverage; a post-DMCA threat doesn't have as much.

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