Dif-tor heh smusma

February 27, 2015

Leonard Nimoy is dead…. for now.  (source)

Revenge Porn Verdict – $900,000 (Chanson and Bolleart)

February 25, 2015

Eric Chanson and Kevin Bolleart are $900,000 further in the red as of today. (order)

“Argentine Money Trail” Case Order is in, and the winner is…. The Argentine Press!

February 19, 2015

I don’t want to comment extensively on this – but suffice to say that I am delighted to report that evidence in the Argentine Money Trail case will be open to the public.

This is a bright day in otherwise dark days for the Argentine press.

The Order is here.

The court held that matters surrounding the Argentine debt crisis “cannot be litigated in secret. Doing so would limit the public’s understanding of the court’s final decision and, therefore, risk weakening the judicial power, which depends upon public access and trust. See Richmond Newspapers, 448 U.S. at 591 (citing In re Oliver, 333 US 257, 273 (1948))

Just as inspiring:

[T]he court is bound by its obligation to the public, which has a strong presumptive right to access judicial records. This right is a ‘precious common law right’. It protects ‘the integrity and quality’ of the administration of justice by ensuring that the courtroom, ‘even more than city streets, sidewalks, and parks,’ remain a public place’ where ‘representatives of the press and of the public are not only free to be, but where their presence serves to assure the integrity of what goes on.”

Some days, it is a dark thing to be a First Amendment lawyer. Sometimes you get judges who just don’t understand. Sometimes you get judges who understand, but they don’t give a shit. Sometimes it is even worse.

And then you get something like this.

The people of Argentina came to our courts, through Mr. Lanata, asking that we live up to our rhetoric. This Order shows that sometimes we do. It is a beautiful day when you can be tiny part of America living up to its promises.

Rakofsky v. The Internet Dies With a Whimper

February 3, 2015

For any of you who have followed the case affectionately dubbed “Rakofsky v. The Internet, it is over.

This was one of the most unsupportable defamation cases I have ever seen filed. There were clear defenses, which ultimately prevailed. But, since it was filed in New York, which does not have a real Anti-SLAPP law, the parties were subjected to years of litigation and defense costs.

And this highlights why we need Anti-SLAPP laws nationwide.

All across the country, we find defamation cases filed – not because any plaintiff really believes that it can win, but because the plaintiff knows that courts rarely grant sanctions and rarely do anything more than what is easy. Part of the problem is garbage judges who shirk their responsibilities, and allow cases to move forward, despite the fact that a drunk first year law student at a fourth tier toilet law school, cross-bred with a chimp, could tell that the case is a piece of shit.

You see, we don’t have that problem where I live, in Nevada. Washington, Oregon, and California based parties have almost as much protection. Texas and DC too. But, if you live elsewhere, or if you even so much as talk about somewhere else, you too might be dragged into a SLAPP suit. And then, you just might draw a lazy or boneheaded judge, and then you may as well strap in for two years of bullshit.

If you live in a state that does not have an Anti-SLAPP law, get the fuck off your ass and start agitating for one. I have provided a model one here. Criticism or comments on it are welcome.

Cry for Argentina’s Free Press

January 25, 2015

argentine flag
An Argentine journalist credited with breaking the news of a prosecutor’s suspicious death has been forced to flee the country, fearing for his own safety.

Damian Pachter of the English-language Buenos Aires Herald is currently in Uruguay, en route to Israel.

In 1994, the Argentine-Israeli Mutual Association in Buenos Aires was bombed, leaving 84 dead. (source) To date, nobody has been held responsible for the crime, but Argentina and Iran reached a 2013 deal where they would jointly investigate the crime.

Argentine prosecutor Alberto Nisman in 2013 released an indictment in which Iran and Hezbollah were accused of being behind the crime.

Then, in early January of this year, Nisman released an indictment in which he accused senior Argentine officials of giving possibly culpable Iranians a pass. (source)

He asked a judge to call Fernandez and others, including Foreign Minister Hector Timerman, for questioning.

“The president and her foreign minister took the criminal decision to fabricate Iran’s innocence to sate Argentina’s commercial, political and geopolitical interests,” Nisman said.(source)

The night before he was to unveil details of the indictment, Nisman was found dead in his apartment – a single .22 caliber slug resting in his brain. (source) Few think it was the suicide that it was supposed to look like. Even Argentina’s president stated that she thought it was a murder, but not one by her government to silence the critic. Her stated theory is that someone else killed Nisman, to cast suspicion on the Argentine government. (source) Another story is that the death was part of an internal power struggle within Argentina’s intelligence agency. (source)

“Disregarding the evidence, the facts or the real responsibility for the attack, the Iranians were going to be absolved from the case, Iran was going to be ‘whitewashed’ and this came from ‘high up,’ that’s to say it had the presidential seal,” Nisman wrote in the report. “Everything was agreed, they were going to use the AMIA case as a pawn to satisfy geopolitical interests.” (source)

Pachter broke the story of Nisman’s death, and said that after discovering that his phones were tapped and that he was being followed, he fled the country.

“I’m leaving because my life is in danger. My phones are tapped,” he told the website Infobae. “I’m going to come back to this country when my sources tell me the conditions have changed. I don’t think that will be during this government,” Patcher said. Pachter provides the full story of his escape at Ha’aretz. (source)

Yeah, that's sorta creepy

Yeah, that’s sorta creepy

Moreover, the official Twitter account of the Argentine Presidency tweeted a screenshot of Aerolineas Argentinas internal booking system. It is reported to me by an Argentine colleague that releasing this type of information is illegal under Argentinean law. Pachter says that the information, showing a return date of February 2 is fabricated to make it seem like he had not fled Argentina. (source)

This kind of thing needs American eyes and American voices. I am aware of this because I find myself recently embroiled in the fight for press freedom in Argentina. I am proud to represent the interests of the esteemed Argentine journalist, Jorge Lanata. (motion, story, CIJA Press Release, order)

But, we need to understand that a threat to press freedom anywhere is a threat to press freedom everywhere.

Only a total idiot would have filed a defamation case over the term “total idiot”

January 24, 2015

The Nebraska Supreme Court reminds us in Steinhausen v. Homeservices of Nebraska, 289 Neb. 927 (Neb. 2015) that rhetorical hyperbole is not actionable as defamation. I can assure you that total idiots nationwide will fail to get the memo.

In this case, someone referred to a home inspector as a “total idiot.”

Nitz argues that in the context of the Hotsheets— which she refers to as a place for HomeServices agents to “express their opinions without pulling punches”38—the phrase “total idiot” is not “a factual statement that [Steinhausen] is mentally defective.”39 Steinhausen responds that “[i]diocy is verifiable” and “can be defined and proved.”40 He notes that “idiot” is defined in one dictionary as “a stupid person or a mentally handicapped person” and asserts that he “is neither stupid nor mentally handicapped.”41 (Op. at 939)

The Nebraska Supreme Court correctly analyzed its responsibilities in the case — something that I find lacking pretty often in trial courts nationwide.

The threshold question in a defamation suit is whether a reasonable fact finder could conclude that the pub- lished statements imply a provably false factual assertion.44 Statements of fact can be defamatory whereas statements of opinion—the publication of which is protected by the First Amendment—cannot.45 Put another way, “subjective impres- sions” cannot be defamatory, as contrasted with objective “expressions of verifiable facts.”46 Distinguishing the two pre- sents a question of law for the trial judge to decide.47 In mak- ing this distinction, courts apply a totality of the circumstances test.48 Relevant factors include (1) whether the general tenor of the entire work negates the impression that the defendant asserted an objective fact, (2) whether the defendant used fig- urative or hyperbolic language, and (3) whether the statement is susceptible of being proved true or false.49 (Op. at 940)

The court then explained Rhetorical Hyperbole.

As noted, whether the language is hyperbolic is relevant to distinguishing fact from opinion. Rhetorical hyperbole— “language that, in context, was obviously understood as an exaggeration, rather than a statement of literal fact”—is not actionable.54 In particular, “[t]he ad hominem nature of abu- sive epithets, vulgarities, and profanities,”55 which some writ- ers “use to enliven their prose,”56 indicates that the statement is hyperbole. (Op. at 941)

Then the court showed what a total idiot you have to be to file under these facts.

Exercises in “name calling” (See Chang v. Cargill, Inc., 168 F. Supp. 2d 1003, 1011 (D. Minn. 2001)) generally fall under the category of rhetorical hyperbole. (See, e.g., Blomberg v. Cox Enterprises, Inc., 228 Ga. App. 178, 491 S.E.2d 430 (1997)). For example, courts have held that “ ‘idiot,’ ”(Robel v. Roundup Corp., 148 Wash. 2d 35, 56, 59 P.3d 611, 622 (2002). Accord Blouin v. Anton, 139 Vt. 618, 431 A.2d 489 (1981)) “ ‘raving idiot,’ ”(DeMoya v. Walsh, 441 So. 2d 1120, 1120 (Fla. App. 1983)) “ ‘[i]diots [a]float,’ ” (Cowan v. Time, Inc., 41 Misc. 2d 198, 198, 245 N.Y.S.2d 723, 725 (N.Y.
Sup. 1963)). and more vulgar variants (See Chang v. Cargill, Inc., 168 F. Supp. 2d 1003, 1011 (D. Minn. 2001)) were rude statements of opinion, rather than lay diagnoses of mental capacity. Similarly, courts have held that statements calling the plaintiff “ ‘stupid,’ ” (Chang v. Cargill) a “ ‘moron,’ ” (Purcell v. Ewing, 560 F. Supp. 2d 337, 343 (M.D. Pa. 2008)) and a “ ‘nincompoop’ ” (Stepien v. Franklin, 39 Ohio App. 3d 47, 49, 528 N.E.2d 1324, 1327 (1988)) were not actionable. Courts have also held that statements potentially referring to the plaintiff’s mental health, such as “‘raving maniac’” (DeMoya v. Walsh, 441 So. 2d 1120, 1120 (Fla. App. 1983)); “‘pitiable lunatics’” (Thomas v. News World Communications, 681 F. Supp. 55, 64 (D.D.C.1988)); “wacko,” “nut job,” and “‘hysterical’” (Lapine v. Seinfeld, 31 Misc. 3d 736, 752, 754, 918 N.Y.S.2d 313, 326, 327 (N.Y. Sup. 2011)); “‘crazy’” (Stepien v. Franklin, supra note 65, 39 Ohio App. 3d at 49, 528 N.E.2d at 1327); and “crank,” (See Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996)) were statements of opinion. (Op. at 941-942) (citations added in from footnotes)

I am now starting the betting pool. Lets wager on how long it takes for some total idiot to file a lawsuit under virtually identical facts… in Florida.

Divorce and Woman Scorned Begets Personal Domain Name Case – Audrey Dunham v. Paige Dunham

January 24, 2015

Audrey Dunham is comedian Jeff Dunham’s new (vintage 2012) wife. Before she married him, she was Audrey Murdick. Jeff’s ex-wife is Paige Dunham.

Paige is accused of registering AudreyDunham.com, AudreyDunham.net, AudreyDunham.us and AudreyDunham.biz.

Apparently though, she registered those names before Audrey Murdick became Audrey Dunham. But, according to the complaint filed by Audrey’s lawyers, she did so in anticipation that Murdick would change her name.


"The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual." Then what is the fucking point?

“The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual.”
Then what is the fucking point?

“Defendant knew at the time she registered the Accused Domains, that Plaintiff would soon change her name to AUDREY DUNHAM.” It also seems that Audrey Dunham filed for, but has not yet received, a trademark registration for the name. It also seems like whoever filed it didn’t have the best grasp of trademark law — since the registration application claims “The name(s), portrait(s), and/or signature(s) shown in the mark does not identify a particular living individual.”

Then what is the fuckin’ point? Audrey Dunham is just some abstract made up person? C’mon. Lets do this shit right, people!

Despite that, the case probably has legs.

Here’s some of the interesting stuff to watch in the case. First, I doubt that Audrey Dunham really has trademark rights (in the trademark sense) that attach to her name. Also, she has no trademark applications that have matured to registration (at least not as of the date of this post). In fact, she only has three 1(b) applications, which mean that she has an intent to use the purported marks.

In the event that Audrey Dunham is not found to actually have trademark rights to her name, then the Cybersquatting claim might go away — that’s the 15 U.S.C. § 1125(d) portion of the complaint. While not binding in this court, Salle v. Meadows holds that you have to possess trademark rights in a personal name for 1125(d) to apply. I personally disagree with that holding, and think that 15 U.S.C. § 1125(d) protects personal names as trademarks. But, I would feel that way — I lost on that issue in the Salle v. Meadows case! (Discussion here) So, I’d like to see that logic challenged in this case.

The next claim to look at is 15 U.S.C. § 8131. That used to be 15 U.S.C. § 1129, which Congress changed for no good reason. That statute requires the registrant to offer to sell the domain name to the “rightful” owner. That’s the allegation in the complaint — that Paige tried to sell the domains to Audrey for “tens of thousands” of dollars. If Audrey can prove that, she gets the domain names and her attorneys’ fees.

There are also unfair competition claims, which are really throwaways under these facts. I wouldn’t have wasted the paragraphs on them.

I’m a little confused why they filed this, but didn’t bother to include a claim under California Business and Professions Code sections 17525-17528. That statute has a lower standard of proof than 15 U.S.C. § 1125(d) and § 8131. Quite honestly, if all that Audrey wanted was the domain names, she probably could have filed this in state court, for a lot less money, and had a much easier time keeping it out of the media. (State court filings are a pain in the ass to find in California, while all federal pleadings are automatically available online).

From a public relations perspective, I think filing this in federal court wasn’t the greatest idea — but I’m not privy to discussions about the actual goals of the litigation.

I can’t understand why anyone would file a claim like this in California and not include a claim under the state personal domain name statute. Pretty bad oversight there, if you ask me.


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