Adventures in E-Ventures

November 19, 2014

I have no idea what E-Ventures does. Here’s their website. You figure it out. For all I know, it is the next big thing.

I do know that it brought what seems to be a doomed claim. (Complaint)

Apparently, Google decided that E-Ventures had behaved a little “spammy.” That seems strange to me, since I can’t recall the last time Google made a decision like that. Nevertheless, Google decided to de-list a bunch of E-Ventures’ websites from its directory.

So, now E-Ventures filed a lawsuit over Google’s search results (or lack thereof).

I started writing this post when I first saw the complaint, but one thing led to another and I didn’t have time to write a full post. Fortunately, a San Francisco court essentially did it for me. Google’s search results are its expression, as protected by the First Amendment. Google just won an Anti-SLAPP motion on what seems to functionally be the same exact theories. (source)

I see E-Ventures’ philosophical point. Google is essentially sky net. Lets presume for a second that E-Ventures is an ethical company. Google has every right to just decide to de-list them because they feel like it. That’s their right. Should it be? Maybe not. Maybe Google is so ubiquitous that it should be nationalized. But, we don’t do that here, and we sure as shit don’t compel a search engine to list anything it doesn’t want to list.

This seemed like a dumb-as-hell lawsuit from its inception. As Wolman commented, Paragraph 63 of the complaint essentially says that by Google refusing to speak about E-Ventures, this is defamation.

Screen Shot 2014-11-19 at 11.43.11 AM

But, the San Francisco ruling gives that position (that the complaint is stupid) some nice clear authority to rely upon.

Unfortunately, this being Florida, there is no Anti-SLAPP statute. Florida has Fla. Stat. § 57.105, which (if you read the text of it) should result in sanctions against the plaintiff. At this point, so should Rule 11. I can virtually guarantee that it won’t. But, it damn well should.


Catcalling royalty

November 12, 2014

Which came first, the fall of the wall or freedom?

November 8, 2014

Most people think that first the Berlin wall fell, and then East Germans got their freedom. “The Collapse: The Accidental Opening of the Berlin Wall,” a recent book by Mary Elise Sarotte explains that it is the opposite.

Whereas the larger context of perestroika and the attractions of the West played an important role, the decisive factor was the conduct of provincial actors—information smugglers, pastors, artists, students, journalists and housewives who met every week mostly at churches, and slowly undermined the regime. (source)

But what made the wall fall?

Apparently, Communist Party Official Günter Schabowski did not know how to handle a press conference. (source) He bungled a question, leading to confusion about a plan to relax travel restrictions a little bit.

The East German government was not, at that time, really all that ready to thaw. There was almost a German Tiananmen Square massacre in Leipzig. (source) And why not? There were no consequences for it in China.

There is a journalist’s credo that one should report the news, not be the news. But, as we remember the fall of the Berlin Wall, lets remember the journalists who simply questioned the Wall out of existence. In doing so, they threw a spark on tinder that was waiting to burn.


Florida First Amendment Counsel Needed (Pro Bono)

November 7, 2014

I received an inquiry from a party who needs First Amendment counsel in Florida. I have a conflict, so I can’t do it.

It is pro bono or perhaps super-duper low bono.

It will be fun. (It is representing three individuals against Roca Labs in Broward County)

Contact me at mjr at randazza dot com for details if you are interested and licensed in Florida.


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)


The most dangerous car?

November 3, 2014

This weekend, I was lecturing my kids before they went out to ride bikes. I asked them “what is the most dangerous car?” The answer I was looking for was “a car going in reverse.”

My son furrowed his brow, and then his eyes popped!

“A POLICE CAR!”

I hugged him and said “That is exactly right, you get full points. But also watch out for cars backing out of their driveways.”

And isn’t that sad?

When I was a kid, we were taught that the police were our friends. In some towns, that might still be the case. And, for a four year old, that is still probably the case, no matter where you are, as long as that four year old is not black. I’m not exactly sure when a black kid turns into “the enemy” to the police, Black kids turn into the enemy at about 10 years old (source), and sooner or later, we all do.

When that day happens for my kids, I want them to realize that the best thing to do when it comes to the police is to avoid any contact with them whatsoever.

And this comes from a guy who used to be an attorney for the Police Benevolent Association.


I applaud for Google

November 3, 2014

You all remember SkyNet Google? You know, that little company that could? The one that swore “Don’t Be Evil” and “Make the World a Better Place” were its mantras?

Yeah, then they turned into a bunch of evil fucks who would wrap the constitution around the Hulk’s dick and tell it to rape a handicapped child, as long as it increased their stock value?

Well, at least they finally made a move in the right direction. They finally admit that maybe they have “outgrown” the “Don’t Be Evil” thing. (source) It is nice to hear them speaking the truth.


Follow

Get every new post delivered to your Inbox.

Join 3,137 other followers