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Posted on Techdirt - 7 May 2011 @ 12:00pm

Peter Friedman's Favorite Techdirt Posts Of The Week

This week’s favorites post comes from Peter Friedman, a professor at Case Western Reserve University school of law, Of Counsel to Hull McGuire PC, and the author of the excellent blog Ruling Imagination: Law and Creativity. A lot of the “favorites” posts to date have been just from people who are regular commenters on the site, but the “community” here goes beyond just those who comment, and includes people like Peter, who is one of the lawyers I regularly rely on for insights into the law.

I have my own pet peeve in our society’s obsession with property and ownership. More and more it seems people use claims of ownership to extend their desire to control as much as they can. And, of course, there are the legions of theorists who seem to always find a magic elixir for all of society’s ills in the creation of new forms of property and “free” markets for them. So I enjoyed the post about “a small antiques shop, called Obsolete, in Los Angeles against the large retailer, Restoration Hardware. The complaint? That Restoration Hardware bought some lamps from Obsolete and then made similar lamps for sale in its own stores.” The article Mike linked to in that post asked the following question:

If an independent merchant stakes his reputation to his ability to find rare and compelling pieces of design around the world, and he invests significant time and money to do, is it fair for a larger company to cherry-pick the best discoveries, manufacture lookalike reproductions and undercut the little guy on price?

It seems like a loaded question, especially when you consider the implication of considering the practice unfair: elevating the “finding of rare and compelling pieces of design” to ownership of those designs. Mike’s comeback is right on the money: “Funny, but I don’t see anything whatsoever unethical about buying nice antique lamps and then making newer, cheaper versions for sale to people who want to buy them.”

Of course, the desire to assert control appears repeatedly to anyone paying attention. As a Cleveland Cavaliers’ fan, I was amused to see that the least of the “3 Kings,” Chris Bosh, “is suing the producers of VH1’s Basketball Wives for violating his trademark, publicity rights and ‘life rights,’ because his ex-girlfriend and the mother of his child is on the show.” She apparently doesn’t say very nice things about him. In order to avoid being sued myself, therefore, I’ll refrain from any comments regarding Mr. Bosh’s teammate and former Cavalier. He can keep his life rights for himself.

But this type of grasping after whatever might be grasped goes on and on. “[T]he Tokien Estate . . . threatened author Stephen Hillard, who has written a bit of historical fiction combined with literary criticism, called Mirkwood, which uses a fictionalized JRR Tolkien as a character.” There was the one law professor who apparently believes copyright law should protect brides from having their wedding dresses “stolen.” And, finally — back to sports again — there’s the NHL’s threat to a car dealership for having posted decals on its window saying "Go Canucks Go," in cheering on the Canucks in the NHL playoffs. Apparently, the NHL’s reasoning goes, the sign constitutes a trademark infringement because it might confuse customers into believing the Vancouver hockey team endorses the dealership. I better get that Browns sticker off my bumper pronto!

A few other favorites from this past week:

The Wall Street Journal?s stab at creating its own version of Wikileaks. Oh, except for that small point about offering no protection of the anonymity of any whistleblower who leaks information to it.

As a lawyer, I love the detailed and pointed requests Mozilla sent the Department of Homeland Security in response to the request from DHS that Mozilla take down from the online list of Firefox extensions one called MAFIAAfire that negates domain seizures by automatically rerouting users to alternate domains. Lawyers often get a bad rap, and often deservedly so, but the best lawyers are willing to stand up and keep their clients from getting run over. It’s not always the most obvious thing to ask questions in response to a demand from DHS like this one: “Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.”

As a lawyer too, I think it’s wise to know what others can find out about you. Mike wrote about the “details of what kind of info Facebook provides law enforcement on the receipt of a valid subpoena.” Of course, you don’t need to be the target of a criminal investigation to be subject to subpoenas. If you start a civil lawsuit or get sued, your life might become an open book. Legal policies differ across jurisdictions, and your end user agreement with any website might leave the door open regardless of the law that would operate in the absence of that agreement. Money isn’t the only price that has to be paid when you sue.

Posted on Techdirt - 19 April 2010 @ 06:01am

Should We Allow Consumers To Sell Their Souls?

To prove a point about how few people actually read the “terms and conditions” when making a purchase online, British game retailer GameStation decided to play an April fools joke on its customers, tricking many of them into agreeing to hand over the rights to their soul. GameStation’s current terms require online purchasers of its products to agree to the following:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from or one of its duly authorised minions.

The company provided a simple opt-out check-box and inferred from the number of shoppers who didn’t click the box (about 88%) that very little attention is paid to such agreements. The fact that so few people read the contracts they sign is not exactly news, but the troublesome part is that these contracts are generally enforced — although, in this case, GameStation admitted that they would not hold customers to the “immortal soul” clause. Contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter into whatever transactions we wish. Moreover, many believe that any limitations on what individuals can be allowed to agree to (within certain well-accepted limits) are counter to economic wisdom. But when we face up to the fact so few people actually read these agreements, sooner or later we’re likely to have to admit that some limits on what retailers can require in these agreements may make sense.

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