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Josh King

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  • Nov 02, 2015 @ 02:00pm

    97% Win Rate?

    Mike, the "97% win rate" for businesses in arbitration is a red herring. That statistic applies to suits brought by businesses - usually for collections (which is why businesses love arbitration; it makes collections actions much easier).

    It's not like consumers are suing to vindicate their rights and only succeeding 3% of the time; as the Public Citizen report indicates, consumers win those cases somewhere between one-third and two-thirds of the time.

  • May 08, 2014 @ 06:27am


    This sounds like classic garbage-in, garbage-out analysis (although the liberal justices on today's court would certainly support the findings, given their antipathy for group speech and campaign speech).

    But Skokie? Odds are it would come out the same today. Look at the Phelps case from a couple of years back, where an attempt to regulate equally offensive speech (the Wesboro Baptist Church nutbags) was found unconstitutional.

  • Mar 15, 2014 @ 09:51am

    Most UGC sites can do notice-and-notice today and still take advantage of the DMCA safe harbors. It's what we do at Avvo. But we're dealing with a relatively small number of DMCA notices; I imagine it would be trickier to do at the massive scale of, say, YouTube.

    However, and assuming this ridiculous notice-and-staydown proposal dies the death it richly deserves, what if a critical mass of sites openly agreed to follow a notice-and-notice process within the scope of the existing law? It could become a norm without needing legislative intervention.

  • Mar 15, 2014 @ 09:39am

    Lawyerly Ignorance of CDA 230

    What's little-appreciated is the fact that a substantial number of lawyers in the US don't know the first thing about CDA 230. Larger internet companies routinely receive ridiculous C&D letters like this, from (apparently) actual lawyers.

  • Oct 31, 2013 @ 09:00am

    Re: Re: Re: Re: The lawsuit is solidly based on the law

    The complaint "can't be boiled down?"

    Sure it can; here are a but a few ways:

    "Sure to be dismissed on the pleadings"
    "I can't believe an actual lawyer filed this thing"

  • Oct 28, 2013 @ 09:56am

    Maybe the fact that the lead plaintiff(Dr. Allen Panzer) has a 2.5 star rating on Yelp has something to do with it:

  • Apr 16, 2013 @ 12:48pm

    Don't Rush to Judgment

    Easy there, Mike - many of us are contributing members of society.

  • Sep 18, 2012 @ 07:01am

    Not a Legitimate Complaint

    This is less a "demand" than someone not understanding how an organization works. The New Yorker has an active business in licensing its cartoons - for use on merchandise, corporate PowerPoint presentations, etc. If you ask that group for permission to use a cartoon for free, you will get the same answer every time: pay the licensing fee. There is nothing out-of-line or surprising about this. The New Yorker actually makes it easy and affordable for people to use its cartoons in this fashion, unlike many publishers.

    What IS surprising, and what DOES speak volumes about our approach to property rights in this area, is that Levy asked for permission in the first place. If you know it's fair use, than use it and don't ask permission.

  • Aug 15, 2012 @ 06:39am

    Harder than it sounds . . .

    I really hope this works for them. But I'm not optimistic. I tried something similar, to obtain the right to reprint the wonderful "Book of Marvels" by Richard Halliburton. My son and read an old (1941) edition of it and wanted to share it with his class.

    So we started tracking down the copyright holder. It took a lot of research and email; publishing houses often change hands, and many have very similar names. We finally found the person who could grant the reprint rights . . . and they simply weren't interested. Maybe it was too small of a request, but they couldn't be bothered.

    It's frustrating that these back catalogs can be locked up so, especially considering how they could be made available via e-books or on-demand publishing at little to no cost (or licensed out to those who want to do so).

    So best of luck on this effort - but it may take quitting the day jobs to make it fly.

  • Jul 10, 2012 @ 06:49am

    How it Really Works

    A little perspective here: back in the late 90's, I worked for the largest wireless carrier in the SF Bay Area. One of my responsibilities was overseeing requests from law enforcement. Now, it's been 15 years, but I don't have any reason to believe the substance of what goes on here has changed:

    1. We had a copious set of procedures that we followed for different kinds of requests - which come from every imaginable branch of law enforcement at the federal, state, county and municipal level.

    2. We pushed back on law enforcement all the time. Every day. It's not hard to do.

    3. Most of the time, information is only provided in response to a subpoena or court order. The egregious stuff - wiretaps, contents of communications, etc. - isn't provided unless very specific procedures are followed by law enforcement, including specific types of court orders.

    4. The exception to this is the "emergency" requests where a warrant is not required. These are always location information - phone records can wait for an order or subpoena, and contents of communications must have an order. Law enforcement typically wants this info to follow up on a crime in progress; we dealt with it in several kidnapping cases. Again, we would routinely push back on law enforcement if it sought too much info or it wasn't emergent and very time-limited.

    5. We only charged law enforcement for setting up wiretaps and pen registers (which again, we only did with a very specific type of court order) because those involved real costs to us each time. We viewed the rest - my time and the time of my subpoena compliance folks - as a cost of doing business. It appears from the NYT article that this remains the practice for carriers.

  • May 31, 2012 @ 06:33am

    Re: Re: Fair Use

    It's simpler than that, because fair use is never a defense to out-and-out piracy. This formulation would simply make fair use stronger in all of those cases where the permission/ownership culture seeks to limit uses that have no bearing whatsoever on the market for the original work.

    Sampling is the most obvious example, but you needn't look far for others.

  • May 30, 2012 @ 01:22pm

    Fair Use

    Here's an idea, at least on the copyright front, to get away from "fairness" and back to what copyright is supposed to be about: Modify section 107 so the fair use defense explicitly turns on prong 4 (impact on market value). If a plaintiff can't show a material impact on market value, it's fair use. Period. The other 3 prongs (amount copied, etc.) only come into play if an impact on the market for the original work is established. This would completely eliminate copyfraud and sampling cases.

  • Feb 25, 2012 @ 08:52am

    Re: Ignorance

    Whether the images are full-size or not is only one part of the fair use analysis. But "let the owner of the photo determine use"? I think not. Nobody need ask permission before using a photo for commentary, criticism, parody, transformative uses, etc.

  • Feb 24, 2012 @ 10:47am

    As a lawyer who hires other lawyers, this lawsuit bothers me, a lot. Not only because it's pointless (what do the lawyer-authors stand to gain?) and a dead loser on fair use grounds, but also because it exposes the navel-gazing attitude common in too many lawyers. They need to start thinking about their clients first.

    Clients don't care about their lawyers' pleadings. We want cost-effective results. And if these lawyers are going to sue to make it harder for other lawyers to access their pleadings, all they're doing is driving up the cost and complexity and legal services. That sure as hell doesn't help their clients.

  • Feb 23, 2012 @ 07:30am

    Fair Use

    Pinterest has a strong fair use defense. It sounds like what they're doing is similar to - if not even more rightsholder-friendly - than what Google does with image searches. And that sort of use has been found to be non-infringing:,38

  • Oct 20, 2011 @ 11:48am

    Re: Re: Ending in Tears

    Unknown, although it's a pretty broad definition. And if you judge by the amount of ink that is spilled on celebrity news, a great swath of the public is mightily concerned with matters like this.

  • Oct 20, 2011 @ 06:38am

    Ending in Tears

    She can file anonymously, but that doesn't mean the court is going to allow her to go forward that way. In fact, I expect it will not, as anonymous pleading is rarely allowed.

    Secondly, I suspect she and her lawyers see the "real name on the credit card" as the only way IMDB could have gotten her age. They better hope they're right, because if they're not this case will quickly get stuffed under Washington's very strong anti-SLAPP law. In which case her identity will be revealed AND she'll pay Amazon's legal fees and a $10,000 fine. That's not a happy ending . . .

  • Sep 18, 2011 @ 08:58am


    The reason companies prevail 95% of the time isn't because arbitrators are inherently biased in favor of companies - it's because the vast majority of the cases that go to such arbitrations are essentially uncontested collections actions. And while the potential for arbitrators to have such bias is obvious, I've never seen any data suggesting it plays out that way.

    In fact, in the cases people seem to be concerned about here (suits against the company), arbitration is actually more consumer-friendly, as it's easier and much cheaper than going to court. Sony's not concerned about those cases - which are few and far between - but rather the ability to use arbitration as a quick and cheap method for bringing its own claims.

    And the class action waiver, of course.

  • Sep 14, 2011 @ 06:40am

    Adult supervision needed

    No doubt the Weebly guys - likely young startuppers all - were pressured by Cooley's counsel into turning the info over, not realizing that a) they could simply ignore the Michigan subpoena and b) they didn't need to do anything with the CA subpoena until the motion to quash was resolved.

    And "squashed"? Cute.

  • Aug 25, 2011 @ 06:42am

    Not Unconstitutional

    While it's sad that BART did this, it's also likely not illegal. Government agencies can impose reasonable restrictions on expressive activities on their property as long as the restrictions are content-neutral (as this was; it shut down ALL cell phone conversations). That's why you can't protest in a courtroom, hang leaflets in the halls of the IRS offices downtown, etc.

    And as for the CPUC, BART isn't under their jurisdiction. First, BART likely wouldn't be considered a cellular provider, even if they have control over these facilities. And second, the CPUC has only the lightest regulatory authority over cellular providers. It can only regulate the terms and conditions of service (and there only slightly) unlike the full tariffed rate regulation it has over landline providers.

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