Paul Alan Levy 's Techdirt Comments

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  • On the post: Medialink Threatens Customer With Lawsuit For Writing A Negative Amazon Review

    Paul Alan Levy ( profile ), 07 May, 2014 @ 01:12pm

    Almost a parody of a demand letter

    The demand letter is way over the top - it included a litigation hold demand? It demands that the reviewer not buy any Media Bridge products?

    Too bad trevely blacked out the name of the lawyer and the law firm than sent the demand letter. The lawyer should face the Streisand effect too!

  • On the post: Ex-Wife Allegedly Using Copyright To Take Down Husband's Suicide Note

    Paul Alan Levy ( profile ), 28 Apr, 2014 @ 11:46am

    The demand letter

    If I am reading the documents correctly, it appears that the demand letter attached a lengthy blog post that includes photographs of the children. Yuck.

  • On the post: Pissed Consumer Slaps Back At Company That Filed A SLAPP Suit

    Paul Alan Levy ( profile ), 31 Mar, 2014 @ 07:46am

    Remedy was posting is anonymous

    The plaintiff's remedy for allegedly false anonymous postings is to use discovery from the hosting company to obtain the poster's identity (proof of falsity is required in most jurisdictions that have addressed the issue (http://www.citizen.org/documents/Levy-Developments-in-Dendrite.pdf), then sue the poster for damages and (where permissible) an injunction compelling removal. The hosting service is immune from any litigation, including for an injunction.

  • On the post: Innocence Of Muslims Actress Files Contempt Charges Against Google For Not Making Movie Completely Disappear Worldwide

    Paul Alan Levy ( profile ), 26 Mar, 2014 @ 04:02pm

    Section 512(j) -- why does it apply here?

    Section 512(j) of the DMCA limits the scope of injunctions only "against a service provider that is not subject to monetary remedies under this section." It is not at all clear that Google qualifies for this limitation: it received takedown notices and did not comply with them.

    Subsection (j) is referenced in subsection (c), the limit on monetary remedies:

    A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material . . . , if the service provider?
    (A)
    * * *
    (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material

    So as I see it, Google had better have a stronger argument that section 512(j).

  • On the post: Supreme Court Agrees To Hear Case After Handwritten Filing From Prisoner Representing Himself

    Paul Alan Levy ( profile ), 05 Mar, 2014 @ 12:14pm

    How Holt will handle the oral arguments since he's in prison.

    If it comes to that, the Supreme Court will appoint an experienced Supreme Court lawyer to file briefs and argue on Holt's behalf. That, for example, is how Abe Fortas ended up arguing Gideon v. Wainwright. But that will likely be unnecessary, because these days once cert is granted,even in cases where the parties had lawyers below, crowds of experienced Supreme Court lawyers descend trying to take over the case, either for pay or for glory (or both).

    My guess is that experienced Supreme Court lawyers are lined up right now trying to get Holt to pick them to argue on his behalf.

  • On the post: Nearly 3 Years After Issuing C&D Notices, NSA & DHS Finally Admit Parodied Logos Don't Violate Federal Law

    Paul Alan Levy ( profile ), 19 Feb, 2014 @ 02:59pm

    Hear, hear about Zazzle

    You would think that their business model would encourage them to stand up to trademark bullies on behalf of their sellers!

  • On the post: SXSW Threatens YXYY With Trademark Infringement

    Paul Alan Levy ( profile ), 14 Jan, 2014 @ 06:12am

    Unlikely "famous" within the meaning of trademark law

    To qualify for dilution protection under the Lanham Act, a trademark has to be "widely recognized by the general consuming public of the United States." SXSW has broad recognition among the cool crowd, but that is what used to be called "niche fame." I doubt that the "general consuming public of the United States" has the slightest idea what SXSW is.

  • On the post: FDA Orders 23andMe Off The Market; Apparently Concerned That People Are Too Stupid To Understand Their Own DNA

    Paul Alan Levy ( profile ), 26 Nov, 2013 @ 11:46am

    Removal of the FDA from the Medical Treatment and Diagnosis Market

    There are EKG devices now marketed for home use. What if one such product was really just a bunch of wires that gave no useful information? Its misuse could lead someone to assume that he wasn?t having heart problems, and so not to take necessary precautions and not see as doctor.

    Should the FDA not regulate those home tests, either?

    How about regulating snake oil?

  • On the post: FDA Orders 23andMe Off The Market; Apparently Concerned That People Are Too Stupid To Understand Their Own DNA

    Paul Alan Levy ( profile ), 26 Nov, 2013 @ 08:00am

    Burdens of proof

    Under the several of the statutes that the FDA is charged with enforcing, companies that sell drugs, or medical devices, have the burden of showing effectiveness for the advertised purpose (gross simplification of the standard; there are a variety of requirements depending on the risks associated with the device). Here, the interpretive question is whether a home testing kit is a medical device. Mike, do you disagree with the FDA's conclusion that it is?

    Once you get past that, then the question is whether the company has made a sufficient showing of effectiveness. The FDA says that showing has not yet been made here. This strikes me as an example of the FDA earnestly doing its job.

  • On the post: The Insanely Complex Rules The Supreme Court Requires You To Meet To Ask It To Hear Your Case

    Paul Alan Levy ( profile ), 20 Feb, 2013 @ 07:03am

    Formatting requirements for court filings

    All courts have detailed formatting requirements for documents filed in the given court -- slightly alleviated in those courts where filing is exclusively digital, but even there courts have stringent requirements. Sop, I am not sure it makes sense to single out the Supreme Court in that regard, especially because, as you rightly point out, review in the Supreme Court is discretionary and, as a result of the accession of a majority of Republican justices, the Court has severely reduced its docket and takes only a tiny fraction of all cases presented for review.

    It is true that the rules about printed booklets make it hard for professional printers who don't specialize in Supreme Court brief-printing to comply, but you can comparison shop for less expensive printers (Public Citizen certainly does), and in the end when the cost of Supreme Court counsel is taken into account, the added cost of printing is just a drop in the bucket.

  • On the post: DailyDirt: Pi Math

    Paul Alan Levy ( profile ), 13 Feb, 2013 @ 08:39pm

    Two Pi Days

    Could as easily be 22/7 (in the European-style notation) as 3/14

  • On the post: Congressman Sues TV Stations For Defamation For Airing Political Ads Against Him

    Paul Alan Levy ( profile ), 01 Nov, 2012 @ 08:58am

    Odd topic for a defamation claim

    Given the incredible complexity of federal budget legislation, and the fact that it is often crafted for the precise purpose of enabling "gotcha" campaign advertising, the fact that this suit has been filed over the proper characterization of what a given vote represents strikes me as a dicey basis for a defamation claim.

  • On the post: Poor Ben & Jerry Must Have Had A Rough Adolescence If They Think Ice Cream Can Be Confused With Porn

    Paul Alan Levy ( profile ), 08 Sep, 2012 @ 03:36pm

    Re: Re: A couple of points about average joe's comments

    You are right to point out that I mistyped, but not to argue that "the parody defense is not even available since the use is commercial." These are separate defenses (or exclusions, in the language of the statute). Unless the fair use defense, including parody, is purely duplicative (and we try to avoid construing statutes that way), it must be available in situations where "noncommercial use" is not a sound defense -- that is, is cases of commercial use.

    To be sure, sometimes BOTH defenses apply.

  • On the post: Poor Ben & Jerry Must Have Had A Rough Adolescence If They Think Ice Cream Can Be Confused With Porn

    Paul Alan Levy ( profile ), 08 Sep, 2012 @ 01:09pm

    A couple of points about average joe's comments

    It is not correct that the parody defense is not available when the use is non-commercial. Non-commercial use is ONE defense to a dilution claim (subsection 3(B)). "Fair use . . . including . . . parody" is a separate defense per subsection 3(A).

    Also I said only that tarnishment claims frequently succeed when a mark is associate with porn; "usually" seems to me a bit strong. LL Bean nevertheless lost its dilution suit against a High Society parody that overflowed with nude models; and although the Second Circuit gave the Dallas Cowboys a win against the porn film "Debbie Does Dallas" it is not at all clear that the result would be the same today.

    The public ought to be able to hold Judge Kaplan accountable for his orders in this case, and the only way to do that is to see exactly what BJ argued, and what evidence it presented. His allowing the sealing of the images over which suits has been filed -- and indeed the non-filing of the moving papers in this case (including whatever arguments may have been made for the sealing) -- is disturbing. Sealing order is here: http://www.scribd.com/doc/105327851. I was, though, heartened to see his warning that he might ultimately decide differently in light of the public right of access to judicial records, which is particularly strong in the Second Circuit.

    Here is the docket as I saw it online yesterday: http://www.scribd.com/doc/105327852

  • On the post: Poor Ben & Jerry Must Have Had A Rough Adolescence If They Think Ice Cream Can Be Confused With Porn

    Paul Alan Levy ( profile ), 07 Sep, 2012 @ 03:55pm

    Dilution, not infringement

    The article is a bit unclear, and the complaint is not available on PACER; indeed, the judge has entered an order sealing some of the materials that were apparently presented to him in support of the complaint. So it is hard to make any independent judgments about the veracity of the article.

    That said, this strikes me as a dilution case involving a claim of tarnishment. If so, there is no obligation to show confusion and, in fact, lack of confusion would be irrelevant. I am no friend of the dilution cause of action, but historically, the one area in which trademark plaintiffs frequently succeed in arguing tarnishment are the cases in which a defendant, and especially a commercial defendant, associates a trademark with either pornography or narcotics use.

    The fact that the defendant makes a parody claim might or might not make the defense litigable. One would have to look at the product to make a judgment about whether this is really a parody or just an effort to exploit a trademark to sell a pornographic film.

    That said, considering that this is a TRO against a movie, there are some very disturbing questions that come to mind. PACER not only does not contain the complaint; although the TRO recites that there were declarations, the docket does not reflect any such documents having been filed. The TRO says nothing about what efforts were made to give the defendants notice and an opportunity to be heard, and why the judge was justified in issuing a TRO without notice, if in fact there was no notice (Rule 65(b)(2) expressly requires such a recitation). The case was filed September 5, and the judge entered the TRO on September 6. It would be nice to see some explanation of why the plaintiff was entitled to get such quick action, possibly before defendants had the opportunity to present an opposition.

  • On the post: It's An Olympics Tradition: How Difficult Can NBC Universal Make It To Enjoy The Olympics?

    Paul Alan Levy ( profile ), 27 Jul, 2012 @ 04:33pm

    Live Olympics

    For the past couple of days I have been enjoying live soccer at the Olympics -- er, I should say, I have been recording the live broadcasts, then watching at home later.

    If I lived out on the West Coast, I could actually watch some of it live.

  • On the post: Obama And Romney Each Have An Ad Disappear As The Olympics Gets Snippy About Anyone Referencing The Olympics

    Paul Alan Levy ( profile ), 27 Jul, 2012 @ 10:02am

    How they deal with fair use

    This is the reverse of the Streisand effect; it has little to do with legal rights and obligations.

    Both campaigns make the political decision that they don't want to be tangling in public with the Olympic committee, so they grit their teeth and take it.

  • On the post: A Big Victory For Fair Use Via South Park, What What (In The Butt), Numa Numa, Afro Ninja, Et Al.

    Paul Alan Levy ( profile ), 08 Jun, 2012 @ 09:04am

    Opinion's references to other South Park episodes and other viral videos

    Not so surprising when you understand that in the federal courts of appeals, opinions are generally drafted by 25 or 26 year old law clerks who are fresh out of law school. No doubt they had fun with this opinion.

  • On the post: DOJ Argues Forcefully For Your Right To Photograph And Videotape Law Enforcement

    Paul Alan Levy ( profile ), 30 May, 2012 @ 08:20am

    DoJ unit pursuing this issue

    The letter comes from a lawyer in the Civil Rights Division, which, among many other duties,pursues issues of police misconduct. These cases are among the hardest that Justice Department lawyers do, because they involve taking on police officers who generally enjoy huge reserves of public support in the local areas where the cases are pursued. And juries don't often side with the federal government against local police officers. The lawyers who do this work are incredibly dedicated; thank goodness they are there.

  • On the post: FAA Warns Guy Who Filmed Birds Striking Plane Engine

    Paul Alan Levy ( profile ), 09 May, 2012 @ 05:05am

    Why the law is the way it is

    An old friend of mine, indeed he is a former colleague here at Public Citizen, who used to represent consumers in tiffs with airlines and with the FAA and the old Civil Aeronautics Board, had this realpolitik comment about the politics at play here:

    "Understand one thing about the FAA: If they repeal the current rule, and a plane crashes, there will be hell to pay. If they leave it on the books, the only downside will be complaints from a relatively small number of passengers who dislike the inconvenience of turning off their laptops or smartphones for 10 minutes. I?m sure you can guess how that choice will be resolved by an agency."

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