Take it From Me: Elites Just Don’t Understand

by Christopher Harbin

"I can't teach you how to write a pleading that will survive a MTD -- I need to finish my forthcoming Article entitled 'No Backsies: The Common Law Origins of Playground Tag Rules.'"

Marc likes to post about the worthlessness of legal education yet never outright addresses the underlying reason it is worthless.  The reason is simple:  Legal academia is run by and large by the elite.  And the elite (for the most part) are completely worthless as lawyers.  Here’s why:

Elites are beholden to hierarchical power structures

For a profession that is supposed to champion egalitarianism and free expression of ideas, I have never met so many who are unwilling to challenge accepted power structures.  Associate.  Assistant. Professor.  Emeritus.  The inherent idea behind these titles is that you can use them as shorthand for whose ideas are better than others.  I love the disdain that rolls of the tongues of the tenured when they say “Oh, you mean that skills professor.”  How many times did you hear adjunct used as an epithet, Marc?  I bet a lot.  “You’re the new adjunct professor, eh?”

Elites are pussies

Remember in law school, where the elite professors and students banded together for a cause and took a stand on something unjust?  Yeah, I don’t either.   That’s because elites hate to take positions.  Taking a position means that you care about something.  And elites think that caring about something is a sign of weakness.  Remember the people who took positions in law school?  Yeah, they were the non-elites.  The kids who had nothing to lose by caring about something.  The elites were the ones calling an actuary before deciding whether to wipe their ass.

Case in point:  I had a friend (elites would call this person a colleague) at another law school that recently discovered outrageous plagiarism in a professor-submitted article they were editing for a student-run journal.  When the board brought the plagiarism to their school’s administration, the amount of absolute deference given to the professor was stunning.   One remedy the board suggested was informing the professor’s home institution of their findings and forwarding the evidence along.  Needless to say this was shot down as the elites circled the wagons.  The editorial board was also instructed to not name and shame the professor.  So, the end result is that this professor is free to submit their work to another journal.  A student would be expelled.  A professor protected.  Typical elite behavior.

Last example — in recommending that JD graduates seek a PhD if they want to enter the legal academy, Dave Hoffman comments that “these considerations intentionally ignore the important question — is this a good thing, or a bad thing, for legal education.  I don’t have a thing to say about that big question which is both novel and interesting.”  First of all, having nothing novel or interesting to say is par for the course among legal academics, so don’t beat yourself up over it.  Second, it just highlights that law professors hate to expose their views.  Hoffman went so far to let everyone know that he was actually not taking a position, that he led his defense by insulting Marc in the comments.  Marc retorted by telling Hoffman to shit in his hat. Beautiful.

So here’s the difference between elites and non-elites — we can take positions on things!  See – requiring a PhD in addition to a JD is bad for law schools and law students.  It only furthers the class divide in legal academia, which will likely be extracted from students in their tuition as JD/PhD’s demand more compensation to cover their investment.  I didn’t just explode.  Neat!

Elites only care about informing others of their elite status and not the substance of their work.

I sit on the editorial board of a journal at Michigan and accordingly receive article submissions from law professors.  I can immediately tell the difference between an article sent by an elite and one sent by a non-elite / practitioner.  And it has nothing to do with the merit of the article.    See — in addition to their article (including the useless star (*) footnote, where law professors casually name drop the school they teach at and/or the law school they graduated from), the elites will send a fifty page CV that includes seventy rehashes of their one article in book chapters, presentations, and blogs along with every award they have ever received, including the time they won the jump rope contest at the Westhampton Academy for the Ethical Education of the Gifted, Talented, and Well-Dressed.   Oh, yeah.  And a one paragraph abstract written by their research assistant.  Note to law professors:  clean the meta-data before you submit your articles.

So given the above characteristics of the elite, it should be no surprise that they aren’t very good at teaching law students how to actually be lawyers.  Besides, if forced to teach – shudder – a skills class, elites would have less time to focus on real doctrinal classes, like say “Bloodfeuds,” “Fakin’ It,” or “Moral Order and the Irrational: Freud and Nietzsche.”

Legal academia is focused on serving these elites and everything else is secondary.  And in a system where skills (read: practical) classes are taught by professors uniformly cast by the tenured as second-class citizens, it sends a clear message to law students:  You don’t need to know how to do this menial work — that’s what law firms and their respective clients are for.  It’s no wonder clients are so pissed at first year billing rates.

The institutionalism of this goes beyond the tenure / non-tenure distinction.  At most schools, research, writing, and drafting classes are graded on a mandatory pass / fail basis whereas doctrinal classes are graded on a curve.  News flash:  Most law students put in the bare minimum amount of work into what is the foundation of the rest of their career.

I worked exceptionally hard in these classes because I want to do good work for clients one day.  While I find the “brain candy” of law school to be intellectually stimulating, perhaps it is my non-elite background that reminds me that one day I’ll need to put bread on the table for my wife and me.  What is clear is that for law professors, because of their elite background, this motivation never occurs to them.

As much as I am sure law firms and clients are delighted by a lawyer’s command of “The Law and Baseball” (a real course), I’m pretty sure they would much rather their lawyers are able to research relevant legal authorities and provide practical legal advice about their problems.  Elite professors simply don’t understand this, nor do they care to.  A life of privilege will do that to you.

You Sinful Front Huggers Can Go to Hell! You Go to Hell and Die!

I’m almost positive this is for real and not parody.  The rough riders for Christ part is what kills me.  Lawd, I can’t take much more.

Newsflash: People Can’t ACTUALLY Be Douchebags!

Holy Shit! Breaking NEWS!

This just in, you guys:  a person can’t actually be a douchebag!  Breaking Freaking News!  Someone get that Drudge Report Siren up.  Done!

This is totally news to me, because until the Supreme Court of New York for New York County (phew) held differently, I really thought that when people called me a douche, they meant I was an actual, factual walking vaginal bulb syringe.  It was always so confusing.

All is made clear by this case.  Here, the principal of PR firm Four Corners Communication, Drew Kerr, registered the domain name www.rosstorossian.com, in order to criticize Ross Torossian, some rival douche in the sharks-and-jets world of PR, and placed a picture of a Summer’s Eve ad on the website.   In true douchebag form, Torossian got his panties in a twist and sued Kerr for defamation, among other things.

Not to be outdone in his valiant effort to be crowned king of the douches, Kerr called on his business insurance provider, Graphic Arts Mutual Insurance Company, to defend the suit.

[Aside:  How does this conversation go anyways?

Kerr:  Hi, I'd like to make a claim.
GAMIC:  Ok, what happened?
Kerr:  I called some guy on the internet a douche and I'd like you to pay to defend me.
GAMIC:  /facepalm

Aaaaaand scene!]

Turns out that Kerr and GAMIC’s contract contained a clause excluding from coverage “personal or advertising injury arising out of oral or written publication [...] with knowledge of its falsity” and GAMIC didn’t want to defend contending that Kerr had knowledge that Torossian was not, in fact, a douchebag (despite all evidence to the contrary).  Kerr sues for breach.  The court held that because Kerr’s assertion was — wait for it — an opinion and not a provable fact, Kerr could not have knowledge of its falsity and thus GAMIC should have honored their contact.  Perhaps GAMIC and Torossian could go halfsies on a dictionary so they can look up literal falsehood.  Douches.

Michigan Law Jumps the Shark

By Christopher Harbin

It is finals time here at Michigan Law. That wonderful season where there is random screaming in the law quad, a total lack of personal hygiene and the adderall dispenser in the library is sadly empty.

Every law student knows that in this economy every grade is crucial. Just in case some UM law student missed the memo and is thinking of slacking off, these sharks installed above the library by some batshit insane totally hilarious law student(s) will provide adequate motivation to finish that outline.

HT to Nancy Sims.

Dum Dum! Dum Dum! Dum dum dum dum dum dum!

You're gonna need a bigger outline.

Dissenting View – USNWR Rankings

Today is like Christmas for prospective law students — US News and World Report leak day. The USNWR ranking is flawed, like all ranking systems (ahem BCS), but Marc doth protest too much, methinks. The rankings serve a  legitimate and useful purpose – comparing law schools by employment prospects.

In order to get the discussion in focus, you have to know that my view is that some law schools are scams. This is apart from Marc’s woeful diagnosis of legal education generally. My view is that some law schools mislead law students into attending with the promise of jet-setting lifestyles, $160k ($145?) salaries, and guaranteed employment. With some law schools charging tuition upwards of $40k a year, students deserve to know exactly what type of employment scenario they are facing.

If you are a prospective law student, you should take a look at this chart. Half of law school graduates make less than $62k a year.  Average loans coming out of law school are about $76k.  If debt generally tracked the distribution of the salary chart, there wouldn’t be that much of a problem.  News flash: it doesn’t. 

Here is some of the underhanded bullshit out there. In this thread, the admissions dean for Drexel doesn’t provide employment data (and there isn’t any on their website) and refuses to engage in a debate over the “complicated issues regarding how law schools report employment data” while including a list of firms graduates have placed into. It’s like three-card monte. Don’t look for the employment statistics – just look at these firms. Where’s the lucky lady? Where’s the lucky lady? Then the cards turn over and instead of being out two bucks to a street con, you’re out 150k and have a size nine poop chute.

I’d like to know the class ranks and/or personal connections of the Drexel grads at those firms. I’d bet my nut sack the answers are “exceptionally high” and/or “well connected.” This is not the fate of some dude at the median at Drexel. What about that fucking guy, eh? Add in the obvious gambler’s bias of law students (we can all be top 5%, right?) and you have a lot of people getting reamed in the ass by Sallie Mae several months after graduation. That list gives prospective students a flawed perspective. Drexel is a newly-accredited law school. Tuition is $30,800. I make no conclusions regarding the quality of education (whatever that means) at Drexel, but graduates are staring at over 100k in debt. Shouldn’t they get accurate data on what their return on investment will be?

I’m not just picking on Drexel here. Tuition at New York Law School is $42,500. Look at this shit. 25% of NYLS’ 2007 reported their employment. That’s sketch in and of itself. The median salary reported by these graduates is $160k. I’d like to know the fucking mean. This isn’t a “complicated issue regarding how law schools report employment data.” Show me both fucking numbers. In fact, show me ALL the numbers. There are a whole crop of these law schools out that charge WAY beyond what they’re worth and then use crappy data reporting to hide the ball. It’s almost fucking criminal.

This is where the rankings come in. You can’t compare numbers from schools. At Michigan, where I attend, they report very similar employment data ($160k medians in most markets) for about the same tuition ($40k-ish). Anyone claiming that Michigan’s employment prospects are in the same galaxy as NYLS is smoking crack. There is so much manipulation of these  numbers that it’s almost impossible. Yes, I know that the same beefs apply to USNWR’s metrics but the rankings are a pretty decent indicator of the value of a school at some level. It’s an adequate starting point for those considering law school to know what type of prospects they will be getting for their cash.

Marc thinks that what really matters is “quality of teaching, mentoring, and faculty-student relations.” That’s a sweet thought and all, but none of those things pay the bills. I agree with Marc that those things are important too – I’m just not sure how you capture and report that data. The bottom line is the metrics that US News uses (academic reputation?) or that Marc suggests should be used (quality of teaching?) are unknowable. That basically leaves employability as the only decent way to compare law schools. Employability is probably a proxy for the values Marc lists above anyway. Since employability generally follows the same trajectory as these rankings why isn’t it a useful way to compare law schools?

Marc is right about one thing – the law school has control here. They can reduce the law student’s reliance on these rankings by providing transparent employment data and rethinking their obscene tuition to lessen the impact of not obtaining the optimal employment at graduation. Decisions based on “quality of teaching, mentoring, and faculty-student relations” are easier to stomach if you have an accurate picture of what the post-graduation scenario actually is. Until then, the USNWR is about as good as it gets.

Short Url: http://bit.ly/vnBEC

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Technorati :  Academics, legal education

TWC to FCC: STFU, K?

LOLOLOL

In its comments regarding the Broadband Provisions of the 2009 Recovery Act, Time Warner Cable politely informs the FCC that “[n]ow is not the time, nor is this the appropriate proceeding, to engage in a debate about the need for net neutrality obligations.”   Moh’k.

On on hand, TWC acknowledges that “robust competition in the broadband marketplace ensures that service providers will act in consumers’ best interests.”  One the other,  TWC asks the FCC to “avoid subsidizing competition through an overly broad definition of ‘underserved.’” I suppose I could understand the call for non-regulation if cable companies didn’t enjoy such a sweet monopoly.

The execs over at TWC deserve a serious cockpunch.  At least a dickslap.  Something.

Gratuitous link.

Grand Theft Lawlz – Video Game Roundup

Does the column title suck? Have a better suggestion? Sound off in the comments!

I’m in beast mode today. I’m not sure whether it’s because finals are close or because the weather in Michigan sucks. Either way, I’m dropping rage up in the Satyricon.

Electronic Arts Sends Media Illegal Brass Knuckles

As part of their press kit for their newly-released Godfather II game, Electronic Arts shipped brass knuckles to gaming journalists. Problem? They’re illegal in several states. It’s even illegal to ship them in California (where EA is based). In a short interview with Gamepolitics.com, EA confirmed they were recalling the knuckle-dusters as well as crapping their pants:

“EA: I hope you’re enjoying our Godfather II press kit, including the novelty brass knuckles. To help you take proper care to dispose of the item, we’re sending you a pre-paid shipping package.

And I can’t discuss this any further.

GamePolitics.com: Are you doing this with all of the journalists who received the brass knuckles? Or just me because I wrote about them?

EA: I can’t discuss this any further.”

Gamestop sells used games as new.

Apparently, Gamestop has a policy that allows employees to take brand-spanking-new video games home, play them (you know, for review purposes), and then bring them back to the store for resale to consumers as “new.” In an amazing show of stupidity, attorney Mark Methentis doesn’t see what the big fat hairy deal is:

“However, I still think that if the plastic seal is not a major issue, there is no difference in the game experience between a perfect condition new disk and a perfect condition disk played once by an employee, besides the potential public relations issues. Of course, when I say perfect condition, I mean everything: kept in a smoke free environment, free of dirt, not kept in direct sunlight or damaging temperatures, etc. I believe that’s a major factor as to why the GameStop employees I’ve known are far more likely to check out a used title than a new one.”

Let me clue you in, Mark. It is a major issue. Asswipe sixteen-year-old kids working at Gamestop aren’t particularly known for their responsible nature. Anytime I’ve ever bought a used game from Gamestop, it looks like the previous owner played it on their Sandpaper360. So, when I buy a game labeled as “new”, I expect it to not have been used in someone else’s console. I mean the plain language of “new” implies that THE PRODUCT HASN’T BEEN USED. I mean, why are used games cheaper if consumers don’t value a new product? Use your noodle, Mark!

Whatever. I can’t stay mad at you Methentis. I dig your blog. BFFs?

Over at Kotaku, a non-lawyer takes a better stab at it:

The FTC Act Test for false advertising states that there must be a representation, omission or practice that is likely to mislead the consumer. Second, the FTC examines the practice from the standpoint of a reasonable consumer. Finally, the representation, omission, or practice must be a “material” one (whether the act or practice is likely to affect the consumer’s conduct or decision with regard to a product or service). In GameStop’s situation, it sounds like the employees have mislead the customer by representing that the game is new and omitted the fact the game has been used. A reasonable customer would not pay full price for a used game; the representation or omission would affect the customer’s decision; and therefore, the representation or omission is material and would constitute false advertising.

Ah. The sound of sweet sweet common sense.

Time Warner Cable Execs Announce Draconian Bandwidth Caps

Lara Crigger over at Gamerswithjobs and Bill Harris of Dubious Quality both chime in on Time Warner’s plan to roll out a 5GB bandwidth cap in test markets. For those of you not technically inclined, 5GB is less than one hi-def (high def? HD?) movie. Coincidence? I think not. I think this move is obviously designed to bolster on demand video.

Bill Harris writes:

“So if you’re Time Warner, and you can’t stop the bleeding, what do you do? You leverage the monopoly you have inside franchise cities for broadband service. They could never roll out this kind of pricing plan, could never use it to pressure content providers, if there was any real competition. I think this is the line in the sand, though, and they’re going to defend it as fiercely as they can.”

Without competition, this will be an inevitable race to the bottom and ISP’s will see this as just another revenue stream. As much as I despise TWC, I’d like to see them implement caps just to highlight this issue. My mother, 70 years old, watches HD shows on Hulu. I’d bet money she goes over 5GB every other day. When Joe and Sally Consumer start getting overage notices from their “unlimited” broadband provider, they’re going to freak out.

It will be glorious.

Are Tweets Copyrightable?

Mark Cuban, whinebox owner of the Dallas Mavericks, recently got tagged by the NBA with a 25k fine for a courtside tweet complaining about officiating.

On his blog, Maverick posts:

Here is a question for all you legal scholars out there.  Is a tweet copyrightable ?  Is a tweet copyrighted by default when its published ? Can there possibly be a fair use exception for something that is only 140 characters or less ?

I got to thinking about this when I tweeted about an NBA game.  I tweeted to the people who follow me.  While I never asked that they not distribute it to other tweeters,  i did not give anyone permission to republish my tweets in a commercial newspaper, magazine or website.

So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law ?…

While it seems clear to me that Cuban is just being a dickbag, I think there are some legitimate legal issues there.

Are tweets copyrightable?

Like any good law school monkey I inclined to answer “it depends.”  Whether a certain tweet is copyrightable is fact specific.  For example, a recitation of facts is not copyrightable.  Also, the short phrase exemption may prevent these types of posts from being copyrighted.   I can certainly envision certain tweets meeting the originality requirement though — for example an original 140 character poem would likely be copyrightable.

Is a tweet copyrighted by default when its published?

Copyright attaches at fixation.  Tweeting almost certainly meets the fixation requirement.

So when an ESPN.com or any other outlet republishes a tweet, have they violated copyright law?

Probably not.   Applying the four-factor fair use test, it seems pretty clear the ESPN is well within the fair use defense.

1. the purpose and character of your use Even by reproducing the entirety of the message, ESPN is still offering commentary and criticism.
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken

   This is the most interesting factor to me, should the scope of the portion taken be one tweet or the entire tweet stream?  In Cuban’s case, this discussion is entirely academic, but I can envision cases where it would matter.

4. the effect of the use upon the potential market.

   Perhaps if Cuban were compiling his feeds and publishing the “best of Cuban’s twitter feed” we’d have something more substantial, but I don’t see any practical commercial impact on Cuban.

The bottom line is that Cuban is being an asshat and is pissed that his twitter feed has been republished by ESPN.  Cuban should familiarize himself with the unwritten fifth factor of fair use defense:  Which party is an asshole?  See e.g. Field v. Google, Inc., 412 F.Supp. 2d 1106 (D. Nev. 2006) (holding that asshole publishing poems on his blog in an attempt to manufacture a claim for copyright infringement in the hopes of making-money from Google’s standard practice of caching blogs is not copyright infringement).

Law FTW!

Apologies for being a bit behind on video-game related matters, but law school has chomped up my time and soul. My transformation to blue-book ninja is nearly complete.

9th Circuit Court of Appeals Strikes Down Video Game Law

In February the 9th Circuit struck down a California law requiring that violent video games display warnings about their content. In Video Software Dealers Association v. Schwarzenegger, Judge Callahan (the dancing judge!), writing for a three-judge panel including avid video-gamer Alex Kozinski, held that the California’s statute violates the First Amendment as a content-based restriction on speech that failed to meet strict scrutiny. In a fairly straight-forward opinion, the court declines to apply the “variable obscenity” standard of Ginsburg v. New York to violent video games holding that the Ginsburg standard only applies to sexual obscenity targeted at minors.

Utah Governor Saves the Day

Utah’s Gov. Jon Huntsman (R) recently struck down HB 353 that sought to impose penalties for retailers who sell M-rated video games to minors. Using a hokey “truth in advertising” angle as an end around the First Amendment, the Jack Thompson inspired legislation operated on the premise that video game retailers were holding themselves out as not selling violent video games to minors. Accordingly, if they sold M-rated video games to minors, in essence they would be committing consumer fraud. Gov. Huntsman, correctly sniffing out the Dormant Commerce Clause and First Amendment issues, slapped the legislation around like a red-headed stepchild.

At least someone in the great state of Mormon Utah came to their senses.

Many hat tips to Dennis McCauley over at GamePolitics for his excellent coverage.

Will Obama Change Paraphernalia Enforcement?

Yesterday, Barack Obama was inaugurated as the 44th president of the United States of America.  One open question for the Obama administration is will Obama continue to crack down as heavily as the Bush administration on drug-related paraphernalia?

Over a Reason Online, Jacob Sullum details the modus operandi of the outgoing administration and its implications on speech.  It’s a great read.

The raging debates of the drug legalization aside, one has the wonder about the efficacy of enforcing paraphernalia laws.   Cops — here’s a protip:  If you take the sweet bong with the Greatful Dead logo on it away from the couple of pot smokers, they will fashion one from a 2 liter bottle or something much less snazzy.   All you’ve really done is given them a big bummer.

Sullum has it correct when he asserts that what the anti-drug types hate most are the headshops that operate quasi-legally by offering their goods for dual uses.   Sullum’s exposition of the law around the legality of selling these dual-use items in headshops shows just how murky the law is in these areas.  The only cure, in my view, is for the government to retreat on this ground.

One of my main clashses with general libertarian principles is the steadfast and widely-held view of libertarians that drugs ought to be legalized. I’m not prepared to go that far.   In law school, we are often challenged to balance shifting interests between individuals and the government in our minds so that our we may begin to analyze what the law should be.

I don’t believe there is any “balancing test.”  Cognitive scientists often describe this process as ordering — placing values above another.  In this ordering scheme of mine, I choose to place the relative security of people first.  Drugs, especially hard drugs, have  several significant negative effects on society.  I certainly know the counter-arguments.  That if drugs were legal, most of negative effects associated with doing drugs (crime, violence) would go away.  However, these are hypothesized outcomes.  Until I see some compelling evidence not originating from an interested group, the line is clear for me.  Drugs are bad, mmkay.  At least right now.

Government should not regulate paraphernalia — it has failed to realize its goals of reducing drug use and has implemented the law in a vague and over-broad way.  Right now, it isn’t clear to even the most prolific of weed smokers and paraphernalia expert Tommy Chong what conduct is punishable under these laws.   It’s ridiculous.  Here’s hoping that our new administration recognizes the futility and arbitrariness of these laws and retreats from their enforcement.

Apple Bullying Wiki Site Over Piss-Poor DMCA Claims

Manufactured in China, and learning valuable lessons in freedom by manufacturing osmosis

As an avid Apple user, sometimes I just want to punch somebody over at Cupertino in the balls. First, I love their nomenclature for their brutal DRM scheme — Fairplay. It seems to just shout “hey stupid consumer! Restricting how you can use media you PAY for is just fair play!” Fuck you, Apple.

The latest Apple initiative to irk my ire is a cease-and-desist notice sent to wiki hosting site Bluwiki, ordering them to take down wikis related to Itunes hash files. Apple’s problem is that these wikis contained information about hash files encapsulated in itunes.db, an iTunes file that has information about the user’s music library.

To make a long story short, Apple likes Ipods to be managed only with iTunes software, so that the sheep fill their Ipods with music purchased through Itunes and not with music leeched from the intertubes. Thus, they restrict access to your music library database (not the files, but only the index) through a hashfile that periodically gets changed in iTunes revisions. After a couple of days, internet users figure out the hashfile and update the third-party applications that allow users to access their ipod’s music library. Apple got their panties in a twist and fired off a cease-and-desist letter. Bluwiki, like little bitches, immediately complied with the cease-and-desist fearing litigation with Apple.

The EFF (aka my heroes) caught wind and, as the kids would say, are hella pissed.

Where’s the “technology, product, service, device or device”?

The DMCA provides that:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that … is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner….

The information posted on the wiki appeared to be text, along with some illustrative code. Nothing that I saw on the pages I was able to review would appear to constitute a “technology, product, service, device, component, or part thereof.” In fact, the authors had apparently not yet succeeded in their reverse engineering efforts and were simply discussing Apple’s code obfuscation techniques. If Apple is suggesting that the DMCA reaches people merely talking about technical protection measures, then they’ve got a serious First Amendment problem.

Translation: Apple — go get your fucking shinebox.

Jones Day Trademark Claim Update

Darrah, Darrah, Darrah....

Update:  Judge John Darrah of the Northern District of Illinois denied Blockshoppers’ motion to dismiss Jones Day’s trademark claims.  A quick recap:  Blockshopper is a website that reports on real estate transactions.  In two reports, Blockshopper deeplinked to two bios of Jones Day’s employees.   Jones Day then flipped their shit and filed a five-count trademark complaint.  In denying the motion, the Court concludes:

It cannot be said, at this pleadings stage, that Jones Day allegations of confusion are implausible.

Bell Atlantic v. Twombly , cited by Judge Darrah, mandates that some level of substantive sufficiency be present in the complaint.  For the life of me, I can’t see anything other than conclusory statements in Jones Day’s complaint. Isn’t this exactly the type of discovery avoidance courts were seeking by moving away from the “no set of facts” standard?

Blockshopper is now faced with an expensive discovery process on a claim that will never fly.  Under Jones Day’s analysis (and at least somewhat adopted by Judge Darrah), any deeplinking of a trademark would be trademark infringement.

Even though the ultimate decision will likely not be in their favor, in this case, Jones Day has already won.   The losers?  Free speech in a digital age.

Earlier coverage by the Satyricon here.

19 Year Old Commits Suicide Live on Streaming Video

In a sad testament to the immediacy of the Internet, 19-year-old Abraham K. Biggs committed suicide live on the web-broadcasting site Justin.tv.

Biggs overdosed on pills while on camera and appeared to be breathing for hours until watchers realized he might be serious, at which point they alerted the police. The video kept running until police and EMTs broke Biggs’ door down and blocked the camera’s view

While this is a disturbing and sad situation, hopefully the knee-jerk censorship goons reel in their impulse to gate the tubes.  Hopefully those who watched this poor guy’s last moments know what animals they really are.