As you know, I am a strong proponent of section 230 protection, but “bring the suit against the person who did the wrong” is a bit too simplistic. There are a variety of areas of the law where liability is placed on a large entity to give it an incentive to prevent dangerous situations. For example, under the doctrine known as respondeat superior, the individual truck driver may have run the light and hit your car, but you can sue that driver’s employer – it gives the trucking company an incentive to select and train its drivers better. Similarly, even when it is the individual government staffer who violates someone’s constitutional rights, the municipality may be held liable – this gives it the incentive to select and train employees better, not to speak of adopting better policies which that employee may have been enforcing. Even when the individual vendor at a flea market is the one that sells merchandise that violates IP rights, the flea market can be held liable for the infringement if it failed to take stop infringements that it knew, or should have known, were taking place. Or a newspaper can be held liable for defamatory statements in a letter to the editor or, indeed, paid advertisement published in the hard copy of the paper -- the facts of New York Times v. Sullivan. (Same for Fox when it allows loud mouths to come on the air and accuse companies of deliberately fixing an election). The media regularly do libel review and can protect against deliberately false statements about members of the public.
Tort law also takes into consideration which actors can most easily insure against liability, and hence allows suits against defendants who can most easily spread the risks -- and provide compensation to the injured -- by financing insurance coverage.
The better argument for section 230 is that placing liability on the platform provider threatens serious consequences, including for the ability of those who may publish unpopular or controversial speech to be heard.
Better to stick with that argument.
Denial of a petition for a writ of certiorari says NOTHING about the decision that the Supreme Court is not going to review.
Despite the amusing amicus brief from the Onion in support of the petition, that got us all yucking, this was a qualified immunity case with a striking fact pattern and unfortunately the Supreme Court chose not to take it
As much as I am inclined to think the LDS argument are BS, let's not forget that the reason she wants to get the trademark is so that she can stop OTHER people from using the slogan Bad Mormon. She doesn't need a registered trademark to use that slogan on her own material.
Why should she get the exclusive right to that phrase?
Isn't this Eat More Kale all over again?
https://pubcit.typepad.com/clpblog/2011/12/chik-fil-a-and-eat-more-kale-a-pox-on-both-your-houses.html
Without registration, how can he sue under 17 USC 501?
He also says he understood that the interview was for a book. Implicit in such an understanding would be that Woodward could publish his words. Indeed, Woodward could easily have put ALL the words in an appendix.
On the other hand, Trump he alleges that he was promised that the interviews were ONLY for a "book." Why would that not be an promise enforceable under state law? Now, the paperback version of the tapes is a "book." But maybe not the audiotape versions
Did Rebecca, Charles, Ted and Floyd address specifically whether a promise to use the recordings only for "a book," assuming that such a promise was made, would not be enforceable?
I must say that in context, Trump;s worry about whether this was for "a book" may have been addressed to whether
Bernstein was going to put stuff in a newspaper article, coming out immediately. Paragraph 44 of the complaint suggests that context.
Seems to me that this complaint might not be subject to dismissal on its face. It might require discovery and, indeed, a trial, depending on what comes out in the depositions and in any relevant documents.
Of course, given Trump's well known proclivity for saying whatever might help him in the moment, truth be damned, it does not seem likely to me that a jury would find him credible.
Is it clear that the First Amendment right to speak anonymously applies to commercial speech -- that is, to sellers of non-speech items? I am trying to think of the cases in which that was decided
Contrary to my good friend Eric, not every decision finding that Section 230 does not protect the defendant asserting its immunity spells the end of the Internet as we know it.
My view at the time was that WaPo was a bit too quick to be first to report on what had happened and managed to overstate the situation. And because Sandmann was not public figure, they faced a tough situation. Settling for a small amount of money (assuming that is what it was) was sensible.
I handled a libel defense thirty years ago where entering a nuisance settlement was better than taking the risk of going to trial in a hostile environment. We were even able to make clear that it was a nuisance settlement without violating the confidentiality clause, because we were not barred from saying that it was the plaintiff who had demanded confidentiality.
Hawley could easily hire someone to take a photo of himself in that same pose, and use that photo. He has no need to use a copy of the photo taken by someone else.
The photographer is entitled to license the use or withhold a license, and he is entitled to be paid for the license if he gives one.
I would even be with Higbee in a case like this.
YOU SAY: "But he doesn’t have the right, as a government official, to demand to know the editorial process of a private media company. Just as Senator Warren or Klobuchar should not and would not have the right to do the same for Fox News."
Lankford is a member of a 100 member legislative body. He has no ability to do anything on his own. And he has every "right" under the First Amendment to demand anything he damn well pleases, writing as an individual and even on his Senate letterhead, as a way of expressing his displeasure. So do Warren and Klobuchar.
Now, if he were a committee chair, issuing a subpoena (that is to say, employing government power) that would be a different matter.
No wonder the First Amendment won your "misunderstood legal ideas" bracket.
Is he feeling guilty for the takedown?
"Alex Choi donated $2,000
Hope you get your Justice serviced. Here is probably all the ad revenue I’ll get from my video."
This controversy is reminiscent of the lawsuit by AP against Shepherd Fairey over his employment of an AP photo for his Obama "hope" poster. The fair use issue was close because Fairey was an artist. Fairey settled on the eve of trial, and he settled because he knew he might well lose.
I think the Hawley campaign is going to be hard pressed to defend its mug as "art."
As for the fact that this involves a campaign, that does not give them a free pass. That is especially so because, as I read the facts, the Hawley campaign is selling mugs with this image for $20. It is going to be hard pressed to argue that this is a non-commercial use.
Finally, actual damages includes not only lost license fee but the infringer's profits. Nobody is buying these mugs because they have a nice shape. It is the copyrighted content that sells these mugs. So you could see a substantial actual damages claim that could well be worth more than statutory damages, depending on how many mugs are sold
Whataboutism is all very well and good, but if we want to get legislation through the Congressional logjam, we need to take our allies where we can find them.
Public Citizen had next to nothing in common with the horrible Ron Paul, but he had this thing about sovereignty so we were able to work with him to oppose trade deals that gave away environmental and safety protections under US law
Techdirt has not posted any stories submitted by paulalanlevy.
Nothing inherently wrong with imposing liability on a substantial defendant that can afford to pay
As you know, I am a strong proponent of section 230 protection, but “bring the suit against the person who did the wrong” is a bit too simplistic. There are a variety of areas of the law where liability is placed on a large entity to give it an incentive to prevent dangerous situations. For example, under the doctrine known as respondeat superior, the individual truck driver may have run the light and hit your car, but you can sue that driver’s employer – it gives the trucking company an incentive to select and train its drivers better. Similarly, even when it is the individual government staffer who violates someone’s constitutional rights, the municipality may be held liable – this gives it the incentive to select and train employees better, not to speak of adopting better policies which that employee may have been enforcing. Even when the individual vendor at a flea market is the one that sells merchandise that violates IP rights, the flea market can be held liable for the infringement if it failed to take stop infringements that it knew, or should have known, were taking place. Or a newspaper can be held liable for defamatory statements in a letter to the editor or, indeed, paid advertisement published in the hard copy of the paper -- the facts of New York Times v. Sullivan. (Same for Fox when it allows loud mouths to come on the air and accuse companies of deliberately fixing an election). The media regularly do libel review and can protect against deliberately false statements about members of the public. Tort law also takes into consideration which actors can most easily insure against liability, and hence allows suits against defendants who can most easily spread the risks -- and provide compensation to the injured -- by financing insurance coverage. The better argument for section 230 is that placing liability on the platform provider threatens serious consequences, including for the ability of those who may publish unpopular or controversial speech to be heard. Better to stick with that argument.
No, the Supreme Court in the Parma case did NOT "sa[y] basically the same thing"
Denial of a petition for a writ of certiorari says NOTHING about the decision that the Supreme Court is not going to review. Despite the amusing amicus brief from the Onion in support of the petition, that got us all yucking, this was a qualified immunity case with a striking fact pattern and unfortunately the Supreme Court chose not to take it
Why should she be able to prevent OTHERS from using Bad Mormon?
As much as I am inclined to think the LDS argument are BS, let's not forget that the reason she wants to get the trademark is so that she can stop OTHER people from using the slogan Bad Mormon. She doesn't need a registered trademark to use that slogan on her own material. Why should she get the exclusive right to that phrase? Isn't this Eat More Kale all over again? https://pubcit.typepad.com/clpblog/2011/12/chik-fil-a-and-eat-more-kale-a-pox-on-both-your-houses.html
Er, Ahem
Woodward, not Bernstein
He does not allege registration of his claimed copyright
Without registration, how can he sue under 17 USC 501? He also says he understood that the interview was for a book. Implicit in such an understanding would be that Woodward could publish his words. Indeed, Woodward could easily have put ALL the words in an appendix. On the other hand, Trump he alleges that he was promised that the interviews were ONLY for a "book." Why would that not be an promise enforceable under state law? Now, the paperback version of the tapes is a "book." But maybe not the audiotape versions Did Rebecca, Charles, Ted and Floyd address specifically whether a promise to use the recordings only for "a book," assuming that such a promise was made, would not be enforceable? I must say that in context, Trump;s worry about whether this was for "a book" may have been addressed to whether Bernstein was going to put stuff in a newspaper article, coming out immediately. Paragraph 44 of the complaint suggests that context. Seems to me that this complaint might not be subject to dismissal on its face. It might require discovery and, indeed, a trial, depending on what comes out in the depositions and in any relevant documents. Of course, given Trump's well known proclivity for saying whatever might help him in the moment, truth be damned, it does not seem likely to me that a jury would find him credible.
No, calling for the views of the Solicitor General is not "stalling" or "punting"
It is a common feature of Supreme Court practice
Because of honestly held religious views, of course
EOM
Can a racist restaurant owner refuse to host celebrations for black people?
EOM
First Amendment question
Is it clear that the First Amendment right to speak anonymously applies to commercial speech -- that is, to sellers of non-speech items? I am trying to think of the cases in which that was decided
No, not the end of the world
Contrary to my good friend Eric, not every decision finding that Section 230 does not protect the defendant asserting its immunity spells the end of the Internet as we know it.
Were WaPo and CNN right to settle?
My view at the time was that WaPo was a bit too quick to be first to report on what had happened and managed to overstate the situation. And because Sandmann was not public figure, they faced a tough situation. Settling for a small amount of money (assuming that is what it was) was sensible. I handled a libel defense thirty years ago where entering a nuisance settlement was better than taking the risk of going to trial in a hostile environment. We were even able to make clear that it was a nuisance settlement without violating the confidentiality clause, because we were not barred from saying that it was the plaintiff who had demanded confidentiality.
It's the Sonny Bono Act, not the Disney Act
So he should be in favor of it, because Sonny and his widow Mary were both Republicans in Congress
Article fine, but not the headline or the lede
A conceptual error is not an incorrect "fact," so I would not agree that this is a failure on the part of the fact checkers
Headphones great, case subpar
I got these and still use the headphones, but the zipper on the case broke within the first few uses
Certainly not fair use
Hawley could easily hire someone to take a photo of himself in that same pose, and use that photo. He has no need to use a copy of the photo taken by someone else. The photographer is entitled to license the use or withhold a license, and he is entitled to be paid for the license if he gives one. I would even be with Higbee in a case like this.
Where we disagree
YOU SAY: "But he doesn’t have the right, as a government official, to demand to know the editorial process of a private media company. Just as Senator Warren or Klobuchar should not and would not have the right to do the same for Fox News." Lankford is a member of a 100 member legislative body. He has no ability to do anything on his own. And he has every "right" under the First Amendment to demand anything he damn well pleases, writing as an individual and even on his Senate letterhead, as a way of expressing his displeasure. So do Warren and Klobuchar. Now, if he were a committee chair, issuing a subpoena (that is to say, employing government power) that would be a different matter. No wonder the First Amendment won your "misunderstood legal ideas" bracket.
Noting that Alex Choi just donated $2000
Is he feeling guilty for the takedown? "Alex Choi donated $2,000 Hope you get your Justice serviced. Here is probably all the ad revenue I’ll get from my video."
For example
https://www.engage.hoganlovells.com/knowledgeservices/news/us-district-court-reversed-no-fair-use-defense-for-adams-morgan-neighborhood-photo
This IS the way copyright law works
This controversy is reminiscent of the lawsuit by AP against Shepherd Fairey over his employment of an AP photo for his Obama "hope" poster. The fair use issue was close because Fairey was an artist. Fairey settled on the eve of trial, and he settled because he knew he might well lose. I think the Hawley campaign is going to be hard pressed to defend its mug as "art." As for the fact that this involves a campaign, that does not give them a free pass. That is especially so because, as I read the facts, the Hawley campaign is selling mugs with this image for $20. It is going to be hard pressed to argue that this is a non-commercial use. Finally, actual damages includes not only lost license fee but the infringer's profits. Nobody is buying these mugs because they have a nice shape. It is the copyrighted content that sells these mugs. So you could see a substantial actual damages claim that could well be worth more than statutory damages, depending on how many mugs are sold
Take your allies where you can find them
Whataboutism is all very well and good, but if we want to get legislation through the Congressional logjam, we need to take our allies where we can find them. Public Citizen had next to nothing in common with the horrible Ron Paul, but he had this thing about sovereignty so we were able to work with him to oppose trade deals that gave away environmental and safety protections under US law