I DECLARE CONFIDENTIALITY!

November 4, 2014

You remember that episode, where Michael Scott declares bankruptcy?

Keep that in mind for this lesson, kids.

This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:

CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED

The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.

Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.

And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.

For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.

When I get one, I usually email the other guy and say “I’m not going to respect your request for confidentiality.” I give them a chance to support their position. When they don’t, I ask them if they want to give me something in exchange for confidentiality. So far, no takers.

Then, they realize “holy flaming peckerballs, this Randazza character can see right through the I DECLARE CONFIDENTIALITY trick! Randazza has spell capability? FUCK, he’s not a fighter, he’s a goddamned level 9 Ranger, and he’s got Druid spells! HE JUST CAST THE ‘SEE THROUGH BULLSHIT’ SPELL!!!!!

I know, it's my intellectualize proprietary res judicata!

I know, it’s my intellectualize proprietary res judicata!

So then they try again…

Aha, smart ass. That letter is COPYRIGHTED! I hereby throw the spell of Title 17!

Bush. League. Shit.

If someone pulls that on you, they’re even more full of shit than the guy who just tries the I DECLARE CONFIDENTIALITY spell.

Dumbass rolls a 2.

Here’s why:

It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. It was required viewing in my classes, back when I did the lawprof thing. New hires need to watch it at my firm. You need to watch it.

Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majority countersuit.

In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.

One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).

However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve his fair use defense.

[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.

In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.

The C.D. of California also pointed out portions of the Copyright Act’s legislative history, upon which a re-poster of a demand letter can rely:

The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.

Accordingly, when a law firm sends you a cease and desist letter accusing you of illegal activity, you can use that letter to provide your own supporters with copies of it in order to effectively give your own views on the issue — and to gather support for your cause. And… to make fun of that shit (because making fun of buffoons is classic fair use)

The legal landscape for I DECLARE CONFIDENTIALITY gets even more gloomy as we continue to read the Hustler case. The First Amendment rears her sexy pouty slutty face. (Yes, I want to bang Lady Liberty. Its a fetish. Constitutional cosplay anyone?)

First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).

Similarly, anyone who receives a cease and desist letter, from any lawyer (including me) can certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)

Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a demand letter and used it as my own, then I might be committing copyright infringement. On the other hand, if I use the demand letter to ridicule the author, and the result of that ridicule is that consumers form the opinion that perhaps it would not not be a wise choice to select that lawyer to represent them, that is protected speech.

Let us return to Hustler v. Falwell:

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Exactly. The cease and desist is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.

Okay counselor, but do you have a case that is exactly on point?

As a matter of fact, I do.

In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” This is a slight tilt from the more common “fair use is an affirmative defense” logic. The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that a DMCA notice and take down was defective and that the sender was liable for material misrepresentation. § 512(f) FTW.

Conclusion

In short, while this is not legal advice, I’d say that if you want to reproduce a cease and desist letter as an act of self-defense or criticism, you should feel comfortable that the fair use defense will back you up.

And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.

Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.

Lena, meet Barbara.

Lena, meet Barbra.

So with that, here’s a really stupid demand letter from Lena Dunham’s attorneys. It isn’t just dumb because it tries the aforementioned tricks — but substantively, dood… really? You’re supposed to be a better lawyer than that.

Short version of the story: Lena Dunham wrote a book in which she arguably wrote about doing some sketchy shit with her little sister. Truth Revolt wrote about it. The quotes from the book back up the Truth Revolt article. Dunham got all snippy about it. (source)

Yeah, that was pretty fucking stupid.

Its not stupid that she did it. She was a child. Ok. I can live with that. Its not even stupid that she wrote about it. Respect to her. (Ok, not really, book sounds like a piece of shit) But, what the monkeys-eating-their-own-feces-fuck was she thinking in authorizing a law firm to make a stink about it? Stupid. Well, unless they had a meeting and said “hey, Lena, want us to totally fiddle-fuck you by making you look like an asshole? Well then, have we got a plan for you!” If that happened, then GENIUS!

This article constitutes confidential legal communication and may not be published in any manner.

(just kidding)


Hello Officer, read my middle finger!!

January 3, 2013

By Andrew J. Contiguglia

In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” Read this: giving a cop the finger!

This case all started when John Swartz  flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York’s disorderly conduct statute. Swartz and his wife Judy Mayton-Swartz sued the two police officers who arrested him.

The officer’s record and explanation as to why he pulled over the couple on this case is classic! Richard Insogna, the officer who stopped Swartz and his wife claimed he pulled the couple over because he believed Swartz was “trying to get my attention for some reason.” The officer further claimed: “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver, if there was a domestic dispute.”

Thankfully the appeals court didn’t buy that crap, ruling that the “nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”

This opinion is awesome. In a wonderful analysis of the standard of “reasonable suspicion” the Court lamented

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

Hey officer Krupke, Krup you!

indexHere’s the opinion.

Originally posted at ContiFazz


Happy Christmas. Fuck You.

December 21, 2012

Denham Springs, Louisiana resident Sarah Childs was in a dispute with her neighbors. So she exercised her First Amendment rights and created a special holiday message just for them.

bilde

The neighbors were not happy about this and complained. A lot. And Miss Sarah fought back. Source.

I’ve composed this Christmas poem just for her.

‘Twas the month before Christmas and all through the ‘hood
The neighbors all gossiped that Sarah’s no good.
Angry and tired her response did not linger
A Holiday light show comprised of a finger.

“Outrageous! Offensive! How dare she!” They whined
They called the cops and so she was fined.
She took down the show and felt quite dejected
Until the ACLU interjected.

The attack on free speech is a thing that’s quite shitty
So Sarah fought back and they sued the city.
The cops and the mayor remained so undaunted
that Miss Sarah’s steps from then on were haunted.

“I know what we’ll do!” Said the city with glee.
“We’ll make her sorry! You wait and see!”
A citation here and a ticket there
So much to the point that it’s hard not to care.

A wonderful plan was retaliation
Until they got nailed for a rights violation.
The lights went back up this time on the double
And this for poor Sarah was nothing but trouble.

The neighbors began to snivel and wail
This time they tried to throw her in jail!
The lights came down alas one more time,
It seemed all was lost- those fiends! That slime!

But the judge took her side and told the city to suck it
That First Amendment-ain’t no way you can duck it.
And all through the town her message rang true,
“Happy Christmas to all and to all a fuck you!”


Oh, Japan! What WILL You Think Of Next?

October 30, 2012

There is a toilet company called Toto. There is a sports lottery agent also called Toto. Therefore, it was only natural that the two companies joined forces to create….

The Super Great Toilet Keeper.

And it’s exactly what it sounds like. A goal keeping terlit that shoots little balls toward incoming soccer balls to deflect them out of bounds. This fancy commode was apparently created to emphasize both companies’ green initiatives. I’m not sure what this has to do with reducing one’s carbon footprint, but really, who cares? This thing is awesome.

Pew! Pew!


David McKee, Are you a Tool?

September 5, 2012

I don’t know, but I think you might be learning a thing or two about the Streisand Effect.

Apparently, Dennis Laurion did not like Dr. McKee’s bedside manner, reviewing him thusly:

When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!

Case was dismissed as being pure opinion, but reinstated on appeal.   It is now before the Minnesota Supreme Court.  Regardless of the outcome, gajillions more have seen the negative review.  Lawyers should counsel their clients on the potential of the Streisand Effect when handling cases such as this.

Source:  http://www.startribune.com/lifestyle/health/168552176.html?refer=y


No Facebook account? Seek Help Before You Hurt Someone.

August 8, 2012

Apparently, an article published on tagesspiegel.de points out that not having a Facebook profile could be problematic because, hey, neither that asshole in Colorado nor Anders Breivik had one, so you know….

Source.

Yes, those who have resisted the urge to use a clever profile pic of a fuzzy kitteh and share the inane details of their daily lives might as well buy a cabin and get cracking on that manifesto.

Could it be that maybe the non-facebook-profile-haver just isn’t a narcissistic douche nozzle who thinks the world gives a shit about his or her political idiocy, religious jackassery, stupid pictures of stupid kids, or what was had for lunch?

Nah. Couldn’t be. Those people are freaks and must be WATCHED.


What What, Fair Use on a 12(b)(6)?

June 8, 2012

“What what, in the butt?” was the question recently before justices Easterbrook, Cudahy and Hamilton in the appeal of Brownmark Films LLC v. Comedy Partners from the Eastern District of Wisconsin. (Opinion)  At issue was whether South Park’s interpretation of Samwell’s “What What In The Butt,” as performed by Butters in the episode “Canada on Strike,” was non-infringing fair use under 17 U.S.C. § 107.  More interestingly, though, was that Comedy Partners raised the defense on a 12(b)(6) motion to dismiss – without any discovery or opportunity therefor (see FRCP 56(d), formerly Rule 56(f)).  The Eastern District of Wisconsin agreed that South Parks’ rendition of What What In the Butt was fair use, and dismissed the Complaint at the pleading stage.

Brownmark did not include the original What What In the Butt video, nor South Park’s adaptation, in its Complaint.  South Park Digital Studios did, however, attach both videos to its motion to dismiss, relying on the incorporation by reference doctrine.  On appeal, the Seventh Circuit resolved this issue in South Park’s favor:

Because the claim was limited to the production and distribution of a single episode, the district court was correct to rely solely on the two expressive works referenced in Brownmark’s amended complaint and attached to SPDS’s motion, as well as the allegations in the complaint, to decide on the fair use defense.

SPDS relies on the incorporation-by-reference doctrine to maintain that reliance on the attached works does not violate Rule 12(d), which requires that Rule 12(b)(6) or 12(c) motions containing materials outside of the pleadings be converted into motions for summary judgment. It is well settled that in deciding a Rule 12(b)(6) motion, a court may consider “documents attached to a motion to dismiss . . . if they are referred to in the plain- tiff’s complaint and are central to his claim.” Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). In effect, the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment. The doctrine prevents a plaintiff from “evad[ing] dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that prove[s] his claim has no merit.” Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). (Op. at 5)

But the Seventh Circuit noted a curious wrinkle to this analysis:

While the application of this doctrine to the present case would seem to allow SPDS’s action, no court of appeals has ruled that the content of television programs and similar works may be incorporated by reference. Several district courts have concluded that the doctrine does apply to such works. See, e.g., Burnett v. Twentieth Century Fox, 491 F. Supp. 2d 962, 966 (C.D. Cal. 2007); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1131-32 (C.D. Cal. 2007); Daly v. Viacom, 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002). And we think it makes eminently good sense to extend the doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works. The parties, however, did not brief this issue, and so we reserve the resolution of the question for a later date. (Op. at 5-6)

Ultimately finding that the Eastern District of Wisconsin was within its jurisdiction to grant dismissal, the appellate court engages in a relatively truncated fair use analysis under the four factors of 17 U.S.C. § 107.  The reason for the brevity?

Since Brownmark never opposed SPDS’s fair use argument in the district court, we consider the argument waived. (Op. at 9)

Ouch.  And, since it’s the Seventh Circuit, that means automatically shifting attorney’s fees and costs under 17 U.S.C. § 505.  What What In the Butt, Indeed.

Perhaps the overlooked gem of this opinion is that the Seventh Circuit has forever enshrined my favorite South Park meme: Internet Money.

The South Park Elementary school boys—Cartman, Stan, Kyle and But- ters—decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn “theoretical dollars.”

As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicat- ing that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video. (Op.)

Of course, when I use “Internet Money,” it refers to settlements from BitTorrent infringers and others who pay for their wrongdoing.  But, it is evocative of the constant challenge of monetizing the digital ether of the World Wide Web.


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