Paul Alan Levy 's Techdirt Comments

Latest Comments (213)

• On the post: Surprise: NY Times Doesn't Think Osama Bin Laden's Death Warrants Taking Down The Paywall

  

  Paul Alan Levy ( profile ), 04 May, 2011 @ 08:34am

  9/11 type story?

  I understand the argument about the Times paywall, and I understand that Mike likes to find new hooks to repeat his argument.
  
  But with respect I am not so sure about the suggestion that the raid on bin Laden's compound is "a '9/11-like' story"

• On the post: AT&T Wheel Of Lobbying Astroturf Fortune Lands On 'Latinos'

  

  Paul Alan Levy ( profile ), 15 Apr, 2011 @ 03:10pm

  And that is why is is better not to take corporate money at all

  Public Citizen has not taken a position on this merger, but once thing we do here is follow a very strict rule that we simply do not take contributions from companies (or, indeed, from the government, or from unions). So, for example, although we often have legal positions that Google likes (such as on keyword advertising), when we want to take a position adverse to Google we don't have to think about it for a moment. And when we do take a position that Google likes, nobody can suggest that it is because we are bought and paid for by Google (just to take one example of a company that spreads its money around widely in the non-profit sector).

• On the post: Judge Backpedals On Allowing Mass Infringement Lawsuits After Press Calls Attention To Her RIAA Lobbying Past

  

  Paul Alan Levy ( profile ), 13 Apr, 2011 @ 03:39pm

  By chance do you know what may occur with the names that are dismissed?

  Jay is right in assuming that the dismissals are without prejudice. The Dunlap firm has asserted that they are going to file in the federal courts in the states where the alleged infringers are located. Whether they are actually doing that I don't know.
  
  For those defendants who have realistic defenses to plaintiff's claim, this means that, at least, they can more easily defend themselves. What we see from time to time is that they can identify a local lawyer with whom they have some neighborhood or family connection, who sympathizes with their plight or is outraged by what the plaintiff is doing, and is willing to help them with a free defense.

• On the post: Is It A First Amendment Violation To Kick A Student Out Of Nursing School For Blogging About A Patient?

  

  Paul Alan Levy ( profile ), 13 Apr, 2011 @ 09:11am

  IP lawyer tells us:
  
  Firing someone for violating HIPAA in no way raises a first amendment issue.
  
  But was there a HIPAA violation? Hypothesize a statement that does not specifically identify a patient, or provide information from which the patient could be indirectly identified. Does that violate HIPAA?
  
  Of course, we don't know enough about the facts of this case to know whether they fit this hypothetical

• On the post: Is It A First Amendment Violation To Kick A Student Out Of Nursing School For Blogging About A Patient?

  

  Paul Alan Levy ( profile ), 13 Apr, 2011 @ 08:25am

  The decision doesn't tell us enough to judge either constitutional; argument

  With respect, the fact that Yoder was expelled as a student rather than being put in jail for her speech does not bar her from seeking relief for a violation of her First Amendment rights. Any action by a government body is potentially subject to First Amendment scrutiny, and that includes regulation of student speech. The Supreme Court said that in the course of confirming the "imminent and likely harm" test for rules barring incitement of illegal action, in Healy v. James, where a state college in Connecticut refused to allow a local SDS chapter because the university president did not the politics of national SDS. The Supreme Court said that was impermissible.
  
  Mike, I think, would be sympathetic to some of those claims. For example, what about a high school that suspended a student for blogging about teachers or the principal? What about the post office firing an employee for supporting the wrong presidential candidate? The First Amendment applies to those cases, no?
  
  So the First Amendment is implicated, and the question is, what is there on the other side? Unfortunately, the appellate decision, available at http://www.ca6.uscourts.gov/opinions.pdf/11a0221n-06.pdf, doesn't recite any of the specifics. So it is hard to speculate about whether the defendant has sound arguments. I have seen cases where a medical facility defends action against an employee who criticized patient care -- typical whistleblower activity -- by wrapping itself in the privacy of patients when, in fact, no patient privacy was violated.
  
  A newspaper report about the district court decision, http://chronicle.com/article/Judge-Orders-U-of-Louisville/47925/, suggests that the problem here MAY have been that Yoder expressed views about patients generally that the university did not like -- for example, views about abortion -- and not really anything that could be fairly characterized as a HIPAA violation. Of course, this is just what was attached to her complaint. It is hard to form a judgment based on that alone.

• On the post: Dumbest Lawsuit Ever? HuffPo Sued By Bloggers Who Agreed To Work For Free… But Now Claim They Were Slaves

  

  Paul Alan Levy ( profile ), 12 Apr, 2011 @ 03:24pm

  A sad coda to Tasini v New York Times

  Jonathan's pioneering suit against the New York Times may not have changed the business model but it was an effective cri de coeur against publishers' past arrogation of digital publishing rights -- and he was plainly right on the merits. His years of leadership of the National Writers Union advanced the cause of freelancers. (And I remember the years when he participated actively on the Advisory Board of the Association for Union Democracy, http://www.uniondemocracy.org).
  
  But it is hard to see how he can win this case. If he wins, is his next class action going to be against YouTube for misappropriating the value created by all those video makers?
  
  On one minor point I disagree with Mike's argument. This case is not unrelated to copyright. But it is the relationship that is the problem -- many of Tasini's claims seem to me to be preempted by copyright law

• On the post: Judge Backpedals On Allowing Mass Infringement Lawsuits After Press Calls Attention To Her RIAA Lobbying Past

  

  Paul Alan Levy ( profile ), 12 Apr, 2011 @ 02:51pm

  Not backpedaling, in my view, and not for the reason suggested

  With respect, Judge Howell's new order is NOT a change in course from previous ones. Arguing as amici curiae, Public Citizen, the EFF and the ACLU argued that the data from IP addresses was clear enough that the anonymous defendants were not in or near DC that the plaintiff should have to sue elsewhere and get subpoenas from those courts. Judge Howell rejected that argument, saying that the subpoena stage was to early to consider personal jurisdiction.
  
  All she has done here is decide that, once the plaintiff gets identifying information, the plaintiff must eventually dismiss those defendants against whom plaintiff does not intend to proceed in the DDC. That is the same approach as adopted by Judge Collyer here in DDC, an approach Judge Howell followed in the opinion she issued rejecting the approach for which we argued as amici curiae. We argued, in fact, that if she allowed personal jurisdiction she should, at least, order dismissal immediately upon getting the actual ID, instead of letting the plaintiff keep defendants in the case for months at a time in the hope of shaking money out of more Does by the implicit threat of making them defend in DC. Judge Howell has, regrettably, followed Judge Collyer in giving the plaintiffs more time to extort settlement payments through the implicit threat of having to defend in a geographically inconvient forum.
  
  I note here that Mike does not embrace the contention that the blogs made a difference, but only notes that some people are claiming that. Myself, I think it highly unlikely that Judge Howell did anything differently based on the fact that some bloggers complained about her previous time in legal practice helping the RIAA (or, indeed, the fact that she was sympathetic with the concerns of copyright holders when she worked for Senator Leahy). Suggestions from some bloggers that their own condemnation played a role in this order strike me as a reflection of inflated self-importance.
  
  Those connections are not anything that would have required her to recuse herself, and not anything that would cause any federal judge to be embarrassed. Judges come to the bench with worldviews formed by their time as lawyers before they became judges. Neither criminal defense lawyers nor prosecutors who become judges have to recuse themselves from criminal prosecutions generally just because their attitudes may well be affected by their legal experiences as practitioners. They just have to recuse from specific cases in which they or their law offices were involved.
  
  The same is true for judges who, as lawyers, were in private practice and who presented the interests of companies or trade groups. Some judges do choose, for a discrete period of time, to stay off cases in which their old law firms or former clients are involved. But the RIAA is not a party to these cases.

• On the post: Should A Company Be Liable For What Its Affiliates Do?

  

  Paul Alan Levy ( profile ), 23 Mar, 2011 @ 08:37am

  Not a section 230 issue

  Although I am confident, based on our disagreement when the blogger guidelines came out http://pubcit.typepad.com/clpblog/2009/10/do-the-ftcs-new-advertising-guidelines-run-afoul-of-section-230.html, that Eric Goldman would disagree with me, but I don't see this as a section 230 issue. The company is being held liable (or at least faces the potential for liability) based on the relationship between the company and the affiliates, and not based on what the affiliates place online using the company's interactive computer system. You can debate whether or not it is a good idea to hold the company liable for the affiliates and on what standard. That is the subject of much of the commentary here. But that does not go to section 230.

• On the post: How Dan Snyder's 'Libel' Suit Against Unflattering Article Demonstrates Need For Federal Anti-SLAPP Law

  

  Paul Alan Levy ( profile ), 18 Mar, 2011 @ 01:47pm

  Re Anon Coward Number 3

  Anti-SLAPP doesn't help when the statements are libelous, or at least "questionable".
  
  There is a great difference between "Mr Snyder was caught..." and "Mr Snyder's company was caught..."
  
  ******
  
  Right, this is presumably the basis on which Snyder is claiming libel.
  
  But another point I make in my blog post is that there is more than a little irony in Snyder's complaining on this basis, in light of his demand letter to Atalaya, the hedge fund that owns the company and that owns the City Paper as a result of bankruptcy proceeding, and which, in turn, is his excuse for filing the lawsuit in New York. Snyder treats Atalaya as being liable for tortious conduct by an entity that is two layers of ownership down the line. And yet more irony -- "Snyder's demand letter" was actually from the General Counsel of the Washington Deadskins.
  
  So if Snyder doesn't draw fine distinctions between the corporate and the personal, it is not at all clear why the reporter should be held liable on an actual malice standard for failure to do so.

• On the post: Does President Bush Speaking Out Against Julian Assange Prejudice The Case Against Him?

  

  Paul Alan Levy ( profile ), 08 Mar, 2011 @ 07:59am

  Even people we don't like have First Amendment rights

  Bush is a private citizen, albeit a prominent one, and he has every right to express his views about Assange and about whether he should be prosecuted. This is just Dershowitz trying to get attention for himself.

• On the post: ProspectMatch Threatens Forum That Hosts Negative Reviews; Says It Will Bury Forum Owner In Legal Fees

  

  Paul Alan Levy ( profile ), 18 Feb, 2011 @ 08:30pm

  There won't be a lawsuit

  Prospect Match's counsel let me know that he is withdrawing the threat of litigation

• On the post: Mass Copyright Lawsuit Lawyer Petulantly Drops Lawsuit After Called Out For Apparent Ethics Violations

  

  Paul Alan Levy ( profile ), 02 Feb, 2011 @ 11:27am

  Lawyers don't dismiss cases, judges dismiss cases

  @Roland:
  
  Under Rule 41(a)(1)(A)(i), when there has not yet been either an answer or a motion for a summary judgment, the plaintiff may dismiss the case by notice, without any further action by the judge. That is why Stone recited the absence of either in the first paragraph of his dismissal

• On the post: Mass Copyright Lawsuit Lawyer Petulantly Drops Lawsuit After Called Out For Apparent Ethics Violations

  

  Paul Alan Levy ( profile ), 01 Feb, 2011 @ 03:37pm

  Wrong Stone - redux

  Average Joe has linked to the wrong lawyer Stone. Here is the firm web site:
  http://www.wolfe-stone.com/

• On the post: Why Are Rosetta Stone & Google Hiding Details In Court Case… And Why Is The Judge Allowing It?

  

  Paul Alan Levy ( profile ), 15 Dec, 2010 @ 06:27am

  Thanks for catching my typo

• On the post: Senator Wyden Says He'll Block COICA Censorship Bill

  

  Paul Alan Levy ( profile ), 20 Nov, 2010 @ 04:27am

  What can one Senator do

  "Who knows how much one guy can do against a bunch of (quite powerful) Senators,"
  
  At this time of year, with a crammed up calendar and much to accomplish, the Senate leadership depends on its ability to move without objection. If Senator Wyden consistently objects to anything that moves this bill forward, he makes it harder for the est of the agenda to be accomplished, so the leadership is likely to drop the bill for now, unless they really decide they want to invest the resources to get THIS done instead of, say, dealing with the expiration of the Bush tax cuts or the START treat or don't ask don't tell.
  
  Word that I get from the ABA IP Section is that the Chamber and the IP lobby will be pressing hard to get a vote. Stay tuned....

• On the post: Free Speech vs. Anonymity Gone Wild: Women Suing Joe Francis Fight To Remain Anonymous

  

  Paul Alan Levy ( profile ), 29 Oct, 2010 @ 07:38pm

  Anonymity v. Anonymity

  The anonymity at issue here is a little different from the anonymity at issue in cases where suit is brought against an anonymous speaker. There, nobody knows the name of the anonymous party. In this situation, though, the parties and the court know the names of the anonymous parties, but the names are sealed. There is a small category of cases where plaintiffs are allowed to proceed without being identified in the public records of the case because the suit relates to something very embarrassing.
  
  The best known categories of such cases are the abortion rights cases, where it could be publicly humiliating for the plaintiff to admit that she is seeking an abortion (for example, Roe v. Wade) and cases involving minors.
  
  Earlier this year, the case Doe v. Reed was a constitutional challenge to the disclosure of the names of petition signers; the case involved the right to stay anonymous and hence it would have surrendered that right to require the signers to be identified by the very act of suing. Another recent example of such a case was when two students who had been abused on AutoAdmit sued to identify the anonymous speakers who had publicly humiliated them. The trial judge allowed the plaintiffs to remain anonymous but ordered the anonymous defendants identified. By contrast, in one of the earlier cases involving a subpoena to identify anonymous defendants, the Virginia Supreme Court held that an Indiana company could not pursue a defamation claim (and a subpoena to identify the anonymous defendant) against anonymous speakers without revealing its own name.
  
  These cases all turn on how strong the interest in anonymity is given the nature of the litigation, considered against the general presumption that judicial records should be open to public inspection.
  
  Here the plaintiffs are now adults but were minors at the time of the events alleged in the lawsuit. That they are now adults does not disqualify them -- the cases brought by persons who are now adults, alleging abuse by their priests when they were minors, have usually proceeded with the plaintiffs identified publicly only as Doe.

• On the post: If Financial Ratings Are Opinions, Would Reporting On Those Opinions Be Factual?

  

  Paul Alan Levy ( profile ), 22 Sep, 2010 @ 10:16am

  A somewhat different reading of the opinion -- and my take

  The judge actually gives two different reasons for rejecting the hot news claim.
  
  The first is that the Fourth Circuit (which includes Maryland) has never approved the proposition that the hot news misappropriation doctrine survives the addition of a preemption provision to the US Code, and that a different federal district judge in Maryland has squarely rejected the Second Circuit’s ruling in NBA v. Motorola that some aspects of hot news do survive preemption (pages 13-15 of the opinion, discussing Lowry’s Reports, Inc. v. Legg Mason, Inc. , 271 F. Supp. 2d 737, 754 (D. Md. 2003), and rejecting the plaintiffs’ arguments that the ruling is factually distinguishable).
  
  Then the judge said, “even if the court were to apply the NBA test,” plaintiffs’ claim would still fail because, at best, NBA’s formulation only extends to factual information and analysts’ recommendations are opinions, not facts.
  
  In suggesting that this distinction is significant because opinions reflect creative judgment (and hencde originality) while facts do not, the judge went astray because the non-copyrightability of facts is not based on the “fact/eexpression” dichotomy but on the “idea/expression” dichotomy. Although opinions are conceptually distinct from facts – in fact, their expression receives heightened First Amendment protection, as in the rule in libel cases that there is no such thing as a false idea — that does not mean that opinions are themselves copyrightable. Original expression that contains opinions is copyrightable, just as original expression that contains facts is copyightable. But neither the facts themselves, nor the opinions themselves, are copyrightable. So, a later report that informs readers what opinion so-and-so has expressed does not infringe the copyright owned by the creator of the first publication that contained the opinion.

• On the post: How Long Until Joan Lunden Disassociates Herself From World Progress Report?

  

  Paul Alan Levy ( profile ), 20 Sep, 2010 @ 08:49pm

  Irony

  One of the series that World Progress Report has been touting in its press releases is devoted to helping consumers recognize scams. http://www.24-7pressrelease.com/press-release/world-progress-report-announces-expansion-of-its-new-series-exposing-scams-and-identity-theft-165426.php
  
  At least they have a sense of humor.....

• On the post: Former Child Prostitute Sues Village Voice For 'Aiding & Abetting' Via Sex Ads

  

  Paul Alan Levy ( profile ), 20 Sep, 2010 @ 07:12pm

  Section 230 construction

  The question is not whether Backpages.com impaired the enforcement of the statutes in question. Subsection 230(e)(1) exempts the criminal statutes in Title 18 Chapter 110 from the protections of section 230 (that is, section 230 shall not impair the enforcement of enumerated "criminal statutes"). The question will be whether this includes the private remedy that section 2255 (part of chapter 110) creates for violations of the various criminal law provisions in Chapter 110 and 117.

• On the post: You Shouldn't Lose Section 230 Protections By Helping A User

  

  Paul Alan Levy ( profile ), 10 Sep, 2010 @ 02:25pm

  Another way to approach this case

  It struck me, on reading the briefs in the case, that the circumstances are just the sort that might call for an application of a statute-of-frauds like rule to deciding whether a promise to remove stuff is enforceable. It is all too easy for a plaintiff to claim that he was told something that, after all, he wanted to hear, and even if the court decides that "take care of it" is too vague to be enforceable, the next plaintiff will learn from the case and develop a more specific recollection of what he was told. Only by insisting that the promise be in writing can we avoid that. Under the doctrine called the "statute of frauds," some kinds of contracts are not enforceable unless they are in writing. And this plays well with what some ISP's were warning when Barnes v. Yahoo! came down a couple of years ago -- that the result of the decision would be that they would not provide any opportunity for oral contract with employees. The state courts could adopt this rule as a matter of California public policy, or perhaps it makes sense to incorporate this further refinement into the Barnes v. Yahoo! analysis of when promissory estoppel can avoid section 230.
  
  Another point perhaps worth making, in distinguishing this case from Barnes v. Yahoo!, is that there is no clear allegation of what Scott P gave up after he received the promise. In Barnes v Yahoo!, Yahoo! had apparently called Barnes after it started getting media inquiries, and after an Oregon state legislative committee asked Barnes to testify. Barnes claimed that she stopped calling in the press and the legislature in reliance on the promise from a high-level supervisor at Yahoo! As I read the complaint, Scott P claims only that he stopped nagging craiglist after he got each promise (until he started nagging again, apparently).

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