Tanner Andrews’s Techdirt Profile


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  • Jan 26th, 2016 @ 6:33pm

    The Mention of Trademark is Nominative Use

    There is no problem in using a trademark to refer to the vendor or product covered by the trade mark. If I refer to a beverage as Coca Cola, because it is a particular product of a certain company, I don't have to disclaim or otherwise misdirect my audience.

    I can even use the mark to criticize the company or its product. If I say ``Coca Cola is inferior beverage now that the skunks in Atlanta no longer include the ingredient for which the product was named'', there is no need to stick the little ® in there.

    For the same reason, #OscarsSoWhite and the users of the hashtag need not disclaim. They are using the mark to discuss the product to which the mark refers.

  • Jan 9th, 2016 @ 10:46am

    Due Process May Be Missing

    Due process requires, at a minimum, notice and an opportunity to be heard. If the govt can present secret evidence to the judge without allowing review by the person to be gagged, then the person being gagged has no notice of what he is to respond to.

    Without notice, there can be no due process.

    A judge who goes along with such a procedure is a very poor judge, indeed, because his actions lead to disrespect for all the judiciary. The judicial system is expected to respect due process, indeed, process and procedure are its hallmarks. Discard these, and you are left with a political hack in a black robe with a sinecure.

  • Dec 16th, 2015 @ 8:33pm

    Re: Here's some legal guidance, free of charge

    If what you are doing is questionable enough that you have to go to a lawyer, then don't do it.

    I will ignore transactional work, such as drawing complicated contracts. I doubt that this is what you had in mind.

    You probably meant that if you have any question about particular contemplated overt acts, avoid doing anything where you need to ask a lawyer. This sounds simple and reasonable.

    It is also wrong. There are enough areas where the law is either unsettled or variable by location (and judge) that you may be well served to discuss with counsel before you do the act.

    Want to buy land with any sort of interesting history? Want to build on a 50' lot? Want to paint your house but you live in an HOA community?

    Maybe it was a mistake or series of mistakes that got you there, but now you are where you are.

    Are your company still using the building and offices you used 30 years ago? Well, maybe before the ADA, your rights were clear. Good luck, now.

    I doubt that the earlier advisor offering free legal advice would make a serious argument that buying, building, painting, or using the same old office are particularly reprehensible. None the less, without a lawyer, you may be taking your chances.

    Usually you will come out OK in all of those activities. Maybe that is good enough. In that case, sure, you may avoid using a lawyer. I think most lawyers are already busy enough that your decision will not be a problem for them.

  • Dec 12th, 2015 @ 1:39pm

    Is It a Copyright Violation?

    Well, it is a picture of a p[resumably licensed toy. We need look no farther than Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (US 2d Cir., 1997) to think there may be infringement.

    Not what is claimed in the bogus DMCA notices, but still there may be infringement. The fact that the above-cited case is a plausible reading of the law does suggest that the law, or the courts interpreting it, or both, have suffered from some severe brain damage.

    Such a reading of copyright law does warn us about all those pictures of items for sale on various web sites. If that were the only problem, we might hand-wave it. You can eliminate the various internet classified sale sites and much of life would continue.

    But if we consider the right to publicly display a work, it does not stop at classified advertising sites. That star wars fan could get tired of the toy. If he puts it on a table in front of his house as part of a yard sale, he may be publicly displaying it, contrary to the form of 17 U.S.C. 106(5). Such public display is for monetary gain, which will weigh against fair use.

  • Dec 3rd, 2015 @ 3:38am

    (untitled comment)

    The law states that if you're taking pictures, photos or video in a public space that is seen by the public then you can assert your first amendment rights. However, you are not allowed to profit from the taking of those photographs.

    Citation, please, for the assertion that you are not allowed to profit from the taking of those photographs. Preferably a citation which is binding in Arizona.

  • Nov 29th, 2015 @ 7:24pm

    Re: Probably the warning on the right side?

    I really want tools to help disrupt ALL of the spammers' infrastructure, pursue ALL of the spammers' accomplices, and even help and protect ALL of the spammers' victims.

    This may not be compatible with the Yahoo business model. They provide two vital services to spammers:
    1. spam distribution
    2. scammer maildrops

    So long as these are important parts of their business, I cannot foresee them making any effort to disrupt these things. I have not yet heard any suggestion that they intend to leave the spam and scam support business.

  • Nov 18th, 2015 @ 2:11am

    (untitled comment)

    took a lawsuit to force the county government to act in accordance with the wishes of those in the area is absurd

    Not quite. The county govt discerned that the public wanted red light cameras abolished, put it on the ballot as a charter amendment, and the voters approved it by an overwhelming margin. Thereafter the county government acted in accord with the voters' expressed desires.

    Which is more than you could say for the plaintiff municipalities. They sued the county to prevent it from acting in accord with the voters' wishes expressed through charter amendment.

    I would commend that county and hold it up as an example to be emulated here, where the county govt has (successfully) sued to prevent the citizens from amending the charter. Charter government in Florida is occasionally described as a necessary evil. I am unsure as to the ``necessary'' part of that. In those counties which have adopted a charter, the results have been uniformly bad, so the ``evil'' is beyond dispute.

  • Nov 15th, 2015 @ 3:52am

    Re: Re: Did he hurt anyone?


    Yes, but I think even the author of that opinion would up being less than proud of it. Look at Holmes' dissent in Abrams v. US, 250 U.S. 616 (US, 1919). Similar, Gitlow v. NY, 268 U.S. 652 (US 1925). Certainly the entire Schenck opinion is not one of which the court can be very proud. The cases in which Schenck is followed mean that the case will remain as a perpetual stain of dishonor on the court.

    These arrests and prosecutions have some of the same air, the government falsely yelling ``fire'' in a crowded theatre. In crowded cities, the government yells that there is a threat from which only they can protect you, and the result is a rush to trample the constitutional rights of the citizens.

    The threats turn out to be either entirely bogus, or manufactured by the govt. Maybe we can add a new category: lighting a fire in a crowded theatre.

  • Nov 14th, 2015 @ 5:41am

    Re: How much would it cost?

    What's the going rate for custom awards these days?

    I seen to get my share of spam from rthurman@smallbusinesscommunity.org, who will happily sell you an award for a little under a hundred dollars. If Mr. Zarrelli needs an award, I'd probably want him to pay for it himself. You can pay more for a fancier award, depending on how much support your ego needs.

  • Nov 9th, 2015 @ 7:01pm

    Re: Re: Re: My daughter is deaf.

    When you carry your shopping bags out the automatic door at the supermarket, you are looking at an innovation that would not be in place if the ADA had not mandated it

    In your dreams, maybe.

    In the real world, the ADA was enacted in 1990. The grocery stores where I shopped had automatic doors in the 1980s.

    Indeed, automatic doors were hardly rare back in the 1960s and 1970s, though they used a different technology to detect people. I remember one on a hospital office building in the 1960s using light beams to detect people, but the normal technology of the day at retail stores was a rubber pressure mat.

    I normally reject arguments that a thing which came after caused an effect which came prior. I see no reason to deviate from this rule in rejecting your argument.

  • Nov 9th, 2015 @ 4:44am

    Re: The new novel argument

    Now, nothing can *ever* be released, because it might be elevated to the Supreme Court.

    Argument is neither new nor novel. It is fairly standard and in many cases well taken. Release client/atty discussions pending appeal, and you cannot put the cat back in the bag. Release pending investigation, same result.

    Neither can you punish publication of supposedly secret information. For instance, unlawfully publish victim name in sex crime, that is Florida Star v. B.J.F., 491 U.S. 397. Once the information is out, it is out.

    The difference here is that the official fears embarrasment, and this is probably a well founded fear. However we are not sympathetic to this case.

  • Oct 24th, 2015 @ 12:06pm

    Re: Interesting thing I just learned

    Exxon used to be named "Humble"

    There is a town outside of Houston, Texas, which is named ``Humble''. It is hard to imagine a Humble, Texas, but there you have it. I think one of the major oil companies started there.

  • Oct 24th, 2015 @ 10:21am


    There's also regular cases of musicians being upset when their music is used in political campaigns by candidates they oppose.

    That is not a ``moral rights'' problem, however, but just a simple copyright problem. Politician who does not buy the right of public performance of the work may lack that right. And if the pol has purchased the rights, perhaps through one of those aggregate licensing societies, then the artist whose work is used has no beef.

  • Oct 17th, 2015 @ 5:39pm

    DMCA Takedowns and Unpleasant Options

    One of these days, somone whose material is taken down by a bogus notice is going to turn around and file a dec action, naming the sender of the notice and perhaps also the video hosting company.

    What with fee-shifting provisions, internet discussion sites, and all that stuff, it could get messy for some unlucky sender of a bogus notice.

    (disclaimer: I do not handle these cases, go away.)

  • Oct 3rd, 2015 @ 10:07am

    Got the Spam Last Year

    Mr. Price appears to be a stinking spammer of no great value. Yeah, I got his spam last fall. The odd thing was that, despite all the attempts to appear to be a legitimate business, there was no way to reach a human. It seemed odd to me.

    I say appear to be a legitimate business, but really it appears that he wanted to appear to be ten or twenty legitimate businesses: Operations summits, CIO summits, executive summits, corporate counsel summits.

    It would be interesting to know if he has ever done an honest day's work in his life. Certainly the spammy history suggests otherwise.

  • Sep 18th, 2015 @ 5:10am

    Re: How can one follow the law,

    There are no secrets courts in this country

    There are secret courts in the US. We have both the FISA court, wherein the judges almost always rubber-stamp the government requests to spy on citizens. I believe there were three cases over the years where the secret court did not comply with the government request, I presume the judges had a headache.

    Fortunately, by way of headache powder, there is the FISA appeals court. It, too, is secret. It convenes but rarely because the ``trial-level'' FISA court is so compliant, and of course when it does convene it necessarily rules for the only party before it.

    By the way, ``FISA'' stands for Foreign Intelligence Surveillance Act. We call it that because the spying is done against US citizens and rarely involves any intelligence. The court was established in 1978 by act of Congress. It permits the government to regulate the governmeent; this works about as well as you would expect.

    There are also various military tribunals which operate with varying degrees of secrecy. We are allowed to know of the existence of at least some of them, such as the one in Cuba, though of course the proceedings are veiled in secrecy and the defendants are not uniformly allowed to see the evidence offered against them. The reason for the secrecy in these cases is that the courts and their proceedings would be an embarrasment if well known.

  • Sep 18th, 2015 @ 4:50am

    (untitled comment)

    Too bad CafePress didn't feel like publishing this letter

    If the offended cafe press vendor were to litigate, probably bringing a dec action, the letter would surely be discoverable. It might wind up in the court file in support of a motion for summary judgment, because it would demonstrate controversy and adverse parties.

  • Aug 30th, 2015 @ 10:23am

    Re: Dirtbags vs Solid Acting Careers

    He is a credit to the film industry itself.

    Based on the little I have heard about the film industry, this could be a damning condemnation of Mr Woods' suit. The film industry appears from this great distance to be filled with cocaine consumers. If the plaintiff is much involved in that industry, to the point of being deemed an exemplar, he could well be a cocaine consumer.

    I am informed that cocaine does not make its consumers smarter or wittier. Neither does it make the consumers more attractive to the appropriate sex except to the extent that a particular member of the appropriate sex may also be seeking cocaine.

    All of which leads to an interesting question. If this gets past the anti-SLAPP motion, does Mr Woods get to pee in a cup? Normally I would not expect that to be legitimate discovery, but it appears that his lawyer may have opened the door.

  • Aug 29th, 2015 @ 4:37am

    Re: Budweiser == piss?

    somehow confused for the mega-corporation that pumps out piss.

    Well, you may have hit upon the reason for keeping all those clydesdales. And, see Dickes v. Fenne, 82 Eng.Rep. 411 (K.B. 1640).

  • Aug 24th, 2015 @ 8:05pm

    Re: Re: Re: Re: Re: Fundamentally outrageous

    I think lawyers should (perhaps be required to) warn plaintiffs of the potential damages they could face when they absolutely insist on going forward with a frivolous lawsuit

    Yes, and I suspect these are fairly common. The Federal rules provide for a Rule 11 motion for sanctions. Florida provides this by statute. Check your state law for corresponding details, perhaps by tracking how the Federal rules flow into your state rules.

    The ethics rules generally prohibit lawyers from promoting cases known to be meritless, though an argument for application of or extension of existing law is an exception. That is how law evolves: compare Pace v. Alabama, 106 U.S. 583 (1883), to Loving v. Virgina, 388 U.S. 1 (1967). Or, the classic case, Plessy v. Ferguson, 163 U.S. 537, to the several ``Dining Car'' cases,or Brown v. Board of Education, 347 U.S. 483.

    In this case, I cannot see any plausible explanation for the atty taking the city's case. There is no claim that present law is incorrect, nor any principle to be extended to a new area. The attorney for the city should, however, be grateful for the $50,000.00.

    In a situation like this, I am glad not to represent the city.

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