Paul Alan Levy 's Techdirt Comments

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  • On the post: Anti-SLAPP Law Used To Protect Michael Moore's Use Of Video Clip

    Paul Alan Levy ( profile ), 09 Sep, 2010 @ 12:34pm

    SLAPP statutes and invalid copyright claims

    Karl asserts:

    Many anti-SLAPP laws specifically punish invalid copyright claims.
    ----

    I hope you will cite one. The SLAPP statutes are all state statutes. The complete listing is here. http://www.casp.net/statutes/menstate.html. Which one specifically applies to invalid copyright claims?

    Copyright claims are exclusively within the jurisdiction of the federal courts. To be sure, in the Ninth Circuit, and in Georgia, perhaps in some other jurisdiction, courts have held that the SLAPP statute can be invoked when state-law claims are brought in federal court, such as pursuant to diversity jurisdiction. But those cases also say that the statute does NOT apply to federal-law claims in the same case.

  • On the post: Anti-SLAPP Law Used To Protect Michael Moore's Use Of Video Clip

    Paul Alan Levy ( profile ), 09 Sep, 2010 @ 06:19am

    Is it privacy or is it copyright?

    The lawyer's comment sounds a lot more like a complaint about copyright infringement than about privacy. That is not a basis for objecting to the anti-SLAPP ruling, because the state anti-SLAPP statute does not affect federal statutes.

    Checking the original story, there is in fact a copyright claim in the case that was not an issue on the SLAPP motion. Of course, Moore has a fair use defense.

  • On the post: Texas Attorney General 'Investigating' Google, With Little Basis In Reality

    Paul Alan Levy ( profile ), 08 Sep, 2010 @ 02:04pm

    My take on the legal issues here is rather different

    Whatever one might want to say about the likelihood that the Texas AG will find anything actionable, I disagree that either section 230, or the First Amendment, or other legal considerations discussed in this post would bar the investigation or a subsequent legal proceeding should that investigation show the misuse of market power.

    I discuss the legal issues here: http://pubcit.typepad.com/clpblog/2010/09/is-google-immune-from-the-texas-attorney-generals-antitrust-investigation.html

  • On the post: Lawyer Ranking Site Avvo Sued By Another Upset Lawyer

    Paul Alan Levy ( profile ), 03 Sep, 2010 @ 07:41am

    Doubtful allegation

    "this guy claims that Avvo intentionally publishes false and misleading information in order to coerce lawyer participation"


    FWIW, I have received occasional solicitations from Avvo, to which I have never responded; but so far as I know it has not published anything mean about me.

  • On the post: Court Says It's Okay To Secretly Record Conversation If Done For Legitimate Reasons

    Paul Alan Levy ( profile ), 20 Aug, 2010 @ 03:45am

    Oops, it was #16.

  • On the post: Court Says It's Okay To Secretly Record Conversation If Done For Legitimate Reasons

    Paul Alan Levy ( profile ), 20 Aug, 2010 @ 03:44am

    It is the state laws that are more significant here

    Anonymous coward #12 made the point but it is a bit buried -- there are a number of states in which it is not legal to make a recording without the knowledge of both parties -- that is, surreptitious recording by one party to a conversation is forbidden. Some states make that a crime; some states allow a private suit for damages and attorney fees. So those tempted to make surreptitious recordings should be careful.

    I too see both sides of this one. One the one hand, I get the privacy concern. But from my days as a rank-and-file labor lawyer, the first 20-odd years of my legal career, I recall the general suspicion that when a worker claims the boss said X, many judges are predisposed to believe the boss and not the worker, so surreptitious recordings (in states where they were not forbidden) were a key component of building a case of retaliation.

  • On the post: Court Tells Mall That It Cannot Ban Customers From Talking To Strangers

    Paul Alan Levy ( profile ), 18 Aug, 2010 @ 09:21pm

    Not so strange

    California’s application of the state constitutional protection for free speech on some kinds of privately owned privacy grows out of a US Supreme Court decision from the 1940's Marsh v Alabama, that held that in a company town, where the company required its workers to live on its property, the First Amendment’s protections for free speech on the streets of a regular town extended as well to the company town. As shopping malls began to replace downtowns as the main venue for commerce, free speech advocates began to argue for the extension of Marsh’s reasoning to shopping malls. At first, the US Supreme Court seemed receptive to that argument (the 1968 Logan Valley Plaza case), but after Chief Justice Warren was replace by Warren Burger, and other Nixon appointees took their places on the Court, the Court backed away from that proposition in such cases as Lloyd Center v Tanner (1972) and Hudgens v NLRB (1976).

    However, a few states, including but not limited to California (for example, New Jersey and Oregon), have decided to apply Marsh-like reasoning to free speech in shopping malls. In fact, when California adopted its constitution, it was clear that some constitutional rights not just the right of free speech but the right of privacy as well, were intended to protect against private as well as public limits. The US Supreme Court decided in Pruneyard Shopping Center v Robins (1980) that states were free to take this position under their own laws and constitutions, even though the First Amendment is largely limited to protecting against state action.

    To my mind, the fact that other malls allow free speech activities and hence might "compete" in the market for consumers wanting to receive speech messages, is not a satisfactory response. The First Amendment does not allow City A to suppress speech on the ground that the protestors can always go talk in City B. Similarly, California should be allowed to extend its constitution to provide that all malls must allow protest speech.

  • On the post: Political Campaign Against Craigslist Ratchets Up

    Paul Alan Levy ( profile ), 07 Aug, 2010 @ 01:02pm

    Ad to story

    And TODAY, the Post's A Section carries a long news story about the ad:
    http://www.washingtonpost.com/wp-dyn/content/article/2010/08/06/AR2010080606376.html?hpid%3Dmoreheadlines&sub=AR

    Buying a big ad gets you a story? Very disappointing.

  • On the post: Forget Vinyl, Now Cassette Tapes Are Making A Comeback?

    Paul Alan Levy ( profile ), 28 Jul, 2010 @ 10:04am

    Vinyl

    Personally, I love my old vinyl, got a few thousand of them. Recently got a collection of several hundred Motown LP's from a friend who found them discarded in an alley. Still going through to see which to save and which to return to the alley :-)

  • On the post: Weak Anti-SLAPP Laws Don't Help Anyone

    Paul Alan Levy ( profile ), 20 Jul, 2010 @ 07:46am

    Preemption

    Of course, federal preemption of state law can be a bad thing, or it can be a good thing. Title VII (and other parts of the civil rights laws) forbid states to discriminate, and prevent the application of state laws that do discriminate. Section 1983 (42 U.S.C. § 1983) preempts state law by forbidding state and local violations of constitutional rights. Is that a bad thing?

    The point is, how does it work in this circumstance? There is no provision in the proposed Federal anti-SLAPP statute that explicitly addresses the issue of preemption, but of course it is intended to be used to prevent the use of state (or federal) courts as an instrument to suppress free speech. But once a case is removed to federal court, the Erie doctrine would, I think, continue to require the application of state law where not inconsistent with federal law. Thus, if the state had anti-SLAPP provisions that were more protective than the federal ones, those still ought to apply.

  • On the post: Beer Pong Players Upset Their Beer Commercial Has Gone Viral… Sue Over Inclusion In World's Funniest Commercials

    Paul Alan Levy ( profile ), 16 Jul, 2010 @ 01:12pm

    Balance

    I'm not sure what the measure of damages is going to be in a case like this. It is at least possible that the plaintiff has decided that the potential return from the litigation is worth the cost in exposure.

    Of course, it is altogether possible, as Mike suggests, that it didn't occur to the plaintiff that he would be attacked on Techdirt and ridiculed as a result. But then, it is not at all clear to me that a willingness to be attacked here and ridiculed as a result disqualifies a lawyer from being hired by some major law firms (given the firms that often bring lawsuits that are likely to bring on the Streisand effect.

  • On the post: Is A Documentary Investigative Reporting? Should Filmmakers Be Covered By Journalist Shield Laws?

    Paul Alan Levy ( profile ), 12 May, 2010 @ 04:04am

    Tough case

    Interesting case, thanks for calling it to attention.

    Seems to me the case may be a harder one because the documentarist got blanket releases from the folks he filmed, allowing him to include anything he filmed part of the publicly released movie, and the participants whom he filmed participated for the very purpose of making their actions public. The documentarist entered into specific agreements on confidentiality with some folks, not others. Another hard aspect is that the documentary was made at the instance of the plaintiffs' lawyers, as a way of publicizing their case; and the lawyer seeking the discovery made some strong arguments about why the material being sought could be central to his case. http://graphics8.nytimes.com/packages/pdf/arts/revised050chevron.pdf And the journalist privilege is a qualified privilege, that involves a balancing of the need for confidentiality against the needs of the person seeking discovery.

    Still, the opinion is a bit odd because it begins by quoting a Second Circuit opinion saying that the journalist privilege is stronger when there was an assurance of confidentiality, and weaker when there is not. But after deciding that there was no assurance of confidentiality, the opinion does not go back to perform any balancing test.

  • On the post: Duh: Connecting With People Face-To-Face Makes Most People Happier Than Connecting Online

    Paul Alan Levy ( profile ), 11 May, 2010 @ 08:07pm

    Not meaningless or useless....

    Somebody's gonna get tenure for this study -- useful and meaningful for the author :-)

  • On the post: NPR Takes Down Vision Media's Claims; Will Vision Media Sue NPR — Or Does It Only Sue Small Operations?

    Paul Alan Levy ( profile ), 24 Apr, 2010 @ 05:08pm

    Update about Vision Media TV

    I have added an update to my blog post -- it appears that since the NPR report, the South Florida Better Business Bureau has pulled Vision Media TV's rating. http://seflorida.bbb.org/Business-Report/Vision-Media-Television-LLC-92003218.

    Vision Media TV had been citing a favorable BBB report as proof that it was providing the promised services.

  • On the post: Is A Moron In A Hurry Confused Between Plastic Building Blocks And A Youth Empowerment Charity?

    Paul Alan Levy ( profile ), 28 Mar, 2010 @ 06:25am

    Lego wins this one

    The complaint (which should be available for free to anyone using RECAP) recites the existence of the Lego Children's Fund as well as a variety of other services aimed at child development, such as child care centers and educational software. So there is probably competition in the same market. Moreover, LEGO no doubt qualifies as famous, so there is a sound dilution claim here (also pleaded in the complaint).

    Strikes me that the founders of the small charity figured they were being clever by choosing an acronym that played off LEGO's name, but in the end they were just too clever by half.

  • On the post: California Court Says Online Bullying Is Not Protected Free Speech

    Paul Alan Levy ( profile ), 19 Mar, 2010 @ 12:58pm

    Why the decision is troubling -- in both directions

    The particularly troubling aspect of this decision is that the court, instead of recognizing that the issue was one within the scope of the anti-SLAPP statute, and then deciding whether the plaintiff could show a probability of success, decided that the speech was so nasty as to bar the application of the SLAPP statute's analysis at all. This approach could have serious repercussions for other defendants who are trying to invoke the anti-SLAPP statute, because the burden of persuasion is on the defendant on the issue of whether SLAPP analysis applies; once the statute applies, the burden is on the person trying to sue over speech to show a probability of success on the merits.

    Also, I worry that your account of the case somewhat understates the strength of the student's claim. The student was suing over very explicit threats posted on his site― "Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I‘ve . . . wanted to kill you. If I ever see you I‘m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.", Another comment was “Faggot, I’m going to kill you.” The majority opinion contains an extended discussion of whether this is a true threat that is unprotected by the First Amendment.

    The problem is, this analysis is supposed to take place in the "probability of success" analysis, not in the "scope of the SLAPP statute" analysis. It is a good example of bad facts making bad law.

    The decision is here:
    http://www.courtinfo.ca.gov/opinions/documents/B207869.PDF

  • On the post: It's Probably Not A Good Idea To Ask People To Spam The Judge Hearing Your Case With Support Emails

    Paul Alan Levy ( profile ), 18 Feb, 2010 @ 04:18pm

    Kevin Trudeau is a bad guy, but that does not justify what the judge did here

    My view: Trudeau was within his First Amendment rights, and the judge is off-base. Judges are public officials and citizens have the right to express views to them. I have explained my views here.

    http://pubcit.typepad.com/clpblog/2010/02/judge-jails-litigant-for-provoking-supportive-emails-to-the-judge.html

    My blog post does not address the due process implications, but they are also significant. The judge used a contempt procedure that is reserved for in-court misconduct, for which special sanctions are allowed without the usual trappings of notice and an opportunity to confront witnesses and present evidence. Such protections were not allowed here.

    Some commenters have taken issue with Trudeau's publication of the judge's email address. Apparently, the Judge is an adjunct faculty member at Northwestern University Law School, and his email address was listed there for all to see (until Trudeau pointed this fact out to Judge Gettleman).

    Did Trudeau show bad judgment here? Yes. Was it predictably counterproductive? Yes (one reason why a lawyer would tell his client to do any such fool thing). Was it criminal? No. The Court of Appeals should reverse

  • On the post: Appeals Court Says Internet Content Should Be Held To Standards Of Strictest Jurisdiction

    Paul Alan Levy ( profile ), 07 Feb, 2010 @ 03:25pm

    Eleventh Circuit on subjecting citizens of far-away places to suit

    Sadly, this ruling is of a piece with other cases from the same court. The Eleventh Circuit has also evinced a willingness to extend court power over distant defendants in the civil context. Most of the courts of appeals around the country have accepted one variant or another of the "Zippo" sliding scale, under which web site hosts who put up web sites to communicate information "passively," without engaging in business transactions through the web site with residents of far-away states, cannot be sued in any state in which the web site can be seen. Under this approach, courts recognize that a rule allowing pervasive jurisdiction over anyone with a web site would be a violation of constitutional due process.

    The Eleventh Circuit, however, has not followed this approach, holding, for example, in Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir. 2008), that anyone who commits a tort affecting someone they know to be a Florida resident to be sued in Florida without violating due process.

    The Florida Supreme Court is currently considering this same issue in Internet Solutions Corp. v. Marshall; my colleagues at Public Citizen filed a friend of the court brief urging Florida not to follow the Eleventh Circuit's lead.

  • On the post: Mexican Gov't Says Starbucks Can't Use Images Of Mexican Artifacts On Mugs… Without Paying Up

    Paul Alan Levy ( profile ), 08 Jan, 2010 @ 12:43pm

    But Starbucks is caving in!

    Noted from the underlying article:

    Starbucks says it is working with Mexico to resolve the issue as quickly as possible. It says the mugs have been removed from its shop shelves pending the discussions.
    *****
    A company statement says the supplier of the mugs felt it made good faith efforts to offer payment and obtain permits.

    Probably NOT because of any worry about liability, but because the reason for using these images is (presumably) to make Starbucks seem sympatico with Mexican culture, and hence to appeal to a particular demographic, and the last thing Starbucks needs is to be denounced by the Mexican government as "stealing our culture."

  • On the post: Court Overreacts And Orders Full Takedown Of Anti-H-1B Websites Over Contradictory Libel/Copyright Claims

    Paul Alan Levy ( profile ), 29 Dec, 2009 @ 07:43pm

    Overbroad

    Overbroad indeed. Even assuming that some statements posted to the site were actionable, the judge ignored section 230 (but was section 230 argued to him?) in issuing an injunction against the site host. And even worse -- a judge in New Jersey has issued orders that hosting sites on the other side of the country have obeyed, instead of insisting that the plaintiffs get orders in the Arizona and California courts. Why are GoDaddy and other companies accepting these orders?

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