Belly Laugh for the Day

July 3, 2012

Rick Santorum got a little more than the coffee he was expecting from his mobile phone app.

n00b reveal update: Turns out this is satire (see comment below from Aaron W below).  Still funny as hell, though.

You know… instead of the G…

May 7, 2012

Orlando Beats Out Sin City for Title of Smuttiest City in America

May 7, 2012

…According to Men’s Health Magazine.  (source.)

Florida takes honors as the “Most Salacious State,” with five cities ranked in the top 60.

Bieber Bang Bus Presents

March 6, 2012

Protected Expression or Privacy Violation — Discuss…

June 11, 2011


Acceptable third alternative: Crazy-ass zombie cannibal worshiper needs something better to do with his time.

Google Creates DMCA Time Machine

June 3, 2011

"OH NOES!!1!!1  The Enchantment Under the Sea
dance is less than a week away..."

by Jason A. Fischer

Until now, Google has managed to keep its development of a working flux capacitor under wraps, quietly rolling out the ability to send DMCA notices from as early as January 1, 1900.  In other news, archeologists today announced the discovery of new cave drawings that include a text ad for Viagra.

Would you buy a laptop from Pedobear?

March 21, 2011


Just make sure you clear the browser history and cache, and you should be fine.

9th Circuit: Consumer Sophistication is an important determinant for AdWord bidding cases

March 10, 2011

by Jason Fischer

For some time now, it has been a legal gray area whether bidding on a competitor’s trademarks as Google AdWords constituted infringement.  Google has taken a neutral stance on the matter, only removing ads that actually make use of the mark in ad copy and directing unhappy trademark owners to take their dispute to a court of law for resolution.  Finally, some of these cases are bubbling up through the federal court system and providing some precedent and guidance.

The latest such decision comes out of the 9th Circuit and involves two software developers who sell licenses to high-end task management applications for businesses.  Software Company A decided that it would be a good marketing strategy to bid on Software Company B’s trademark as an AdWord with Google and Bing, providing a “Sponsored Link” to Company A’s product for users who entered the trademark as a search term.  Obviously, Company B was none too happy about the practice and sued Company A claiming trademark infringement and successfully obtained a preliminary injunction.

On appeal, Company A argued that presenting a “Sponsored Link” for its product to potential purchasers who searched for Company B’s product name would not cause any consumer confusion.  As you can imagine, a link to Company B’s product would appear in the very same search results, alongside the link to Company A’s product, but Company A contended that potential purchasers were savvy enough that no one would be confused or tricked into thinking that Company A’s product was sold by Company B, or vice versa.

In agreeing with Company A’s position, the appeals court noted that licenses for the software at issue were sold for up to $10,000 and more — indicating that the searching parties were more likely to be careful in their purchasing decision, doing research which would eliminate or significantly reduce the likelihood of confusion.  The court also noted that the type of purchasers for these software products are more likely to be expert users of the Internet, who understand how keyword marketing works with search engines, which would also reduce the likelihood of confusion.

You can read the Judge Wardlaw’s full opinion here, if you’re interested in a more thorough discussion.

This decision, in IMHO, serves as a helpful reminder that there are more than a few factors that attorneys either ignore or tend to dismiss in determining likelihood of confusion, and as a result end up trying to enforce their clients’ marks beyond the rights actually afforded.  Comparative advertising is not only legal in the U.S., but preferred, and use of your competitors trademark is not always an actionable event.

Someday Never Comes – Clearance Creamsoda Redial

February 18, 2011

Crackdown on Live Streaming of Sporting Events

February 3, 2011

by Jason Fischer

This week, U.S. Immigration and Customs Enforcement shut down a number of websites that were offering live streams of professional sporting events (source).  The central claim was that the video delivered through those websites is protected by copyrights.

While I’m sure there are some hippies those out there who would take the position that a sporting event can’t be copyrighted (I’ve read some off-the-wall legal articles that take such a position), I am firmly in the camp that believes the recorded video is absolutely the kind of thing that Article I, Section 8, Clause 8, was drafted to cover.  My main problem here is that, rather than developing an effective way to reach every viewer who wants to enjoy their broadcasts, professional sports associations go crying to their congressman or the U.S. attorney about how their shitty business model is not making as much money as it used to.

Wake the fuck up, asssholes.  We live in a world where on-demand, high-definition video is a viable option.  I watch crap on my iPad while taking a crap — and I couldn’t be happier that this has become technologically possible.  I should be able to watch whatever I want, whenever I want, and wherever I want to watch it.  If I wanna watch “The Leap Home” at 3:45am on Tuesday, then there’s no reason why I shouldn’t be able to.  Charge me a fee for it; I’m okay with that — but quit complaining about piracy, when you are actively blocking viewers from consuming your product.

First Recorded SLAPP Sighting in Greece

January 5, 2011

Systemgraph, an Apple-authorized service company in Greece, has sued one of its customers for complaining.  Natch, there’s a twitter tag devoted to mocking the company.

Good News; Racism Solved

January 4, 2011

by Jason Fischer

Regular readers of the LS know how we feel about thought control through the implementation of Newspeak.  (We think it is retarded).

Apparently, there are at least a few out there who have a hard-on for eradicating crimethink.  In their latest effort, a newly sanitized edition of Mark Twain’s classic, The Adventures of Huckleberry Finn, will be published as part of a collection that is more suitable for classroom consumption, i.e., sans all uses of the “n-word.”  In its place, the publishers, NewSouth Books, have inserted the word “slave.”  Also deemed too offensive for print: “injun”

H/T Evren Seven

Latest Filing from Wolk Connects the Dots Between Incest and Banking Policy

January 4, 2011

by Jason Fischer

For anyone who has been following the story of Arthur Allan Wolk, Esquire, it will come as no surprise that Attorney Wolk’s opposition to Amici, Eugene Volokh, Glenn Reynolds, Edward Whelen, and Marc Randazza, reads like a paranoid diatribe.  It seems that a massive blogger conspiracy, with ties to incest, pedophilia, bestiality, and opposition to banking regulations, has taken up arms against a poor lawyer in an internet smear campaign.  You can read the full text of the opposition here, if you are so inclined.

On a practical note, in between the ramblings on conspiracy theories, I noted a subtle legal issue in Attorney Wolk’s opposition that I thought warranted a bit of discussion.  For one of his substantive thrusts, Wolk poopoos the Amici for bringing an argument in opposition to his appeal that was not raised at the trial level.  Wolk cites numerous authorities for the principal that new arguments cannot be brought up at the appellate level.  Now, in fairness, I didn’t check all of the cited cases, but each of the ones I did involved the appellant getting the smack down for raising arguments that the appellee wasn’t given the opportunity to develop at the trial level.  I’m not 100% sure that Wolk’s argument holds up when the shoe is on the other hand.

By way of quick and simplified explanation, on appeal the appellant (Wolk, in this case) is the party that disagrees with the ruling of the lower court.  The appellant’s opponent, i.e., the appellee, therefore agrees with the lower decision.  Therefore, it’s the appellant who wants to tip the apple cart, while the appellee is fine with things as they are.  Given the desired tendency towards finality of court decisions, and in the interest of judicial economy, the appellant is supposed to have a bit of an uphill battle, but the same is not necessarily true for the appellee.  Ignoring for the purposes of discusion the fact that it was Amici who brought the new argument, I think that Wolk is wrong that new support cannot be introduced to prop up the lower court’s decision to dismiss his complaint.

See Colautti v. Franklin, 439 U.S. 379, 397 n. 16 (1979) (“Appellees, as the prevailing parties, may of course assert any ground in support of that judgment, ‘whether or not that ground was relied upon or even considered by the trial court.'” (quoting Dandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970))); see also Fairview Township, York County v. United States Environmental Protection Agency, 773 F.2d 517, 525 n. 15 (3d Cir. 1985) (“It is well settled that ‘we [can] affirm the district court on any basis which finds support in the record.'” (citations omitted)); but see Airco Industrial Gases, Inc. v. Teamsters Health & Welfare Pension Fund of Philadelphia & Vicinity, 850 F.2d 1028 (3d Cir. 1988) (noting that if an appellee aspires to alter the trial court’s decision (either increasing its rights or decreasing those of its opponent), a cross-appeal is required)

Many thanks to John R. for providing the above-listed citations

WTF Wisconsin?

December 31, 2010

by Jason Fischer

The Wisconsin Supreme Court ruled this week that committing a sex crime is not necessarily a prerequisite for ordering a convict to register as a sex offender (source). I tried reading the opinion to figure this nonsense out, but my head nearly exploded when I read the excerpted sentence below, and I had to stop.

In the present case, the parties agree that a fundamental right is not implicated . . . . (source)

Being a douche nozzle is no way to keep clients

December 29, 2010

by Jason Fischer

Of course the headline here seems like common sense, but what’s surprising is that many attorneys have trouble with this bit of wisdom.  As surprising as it may be, understanding why practicing attorneys have trouble controlling their aggressive tendencies is not difficult when you think about it.  The problem is, when you have to spend 80% of your time dealing with deadbeats and scam artists, you end up in a near-permanent state of cynicism.  Hell — in a lot of instances, it helps to be a bit of a dick.  This, of course, is the motto of any self-respecting alpha.

Good attorneys, however, know how and when to turn off the bloodlust.  The best attorneys manage to avoid it altogether.  The moment you start to get emotional about going after that one defendant, the moment it becomes personal for you, there is a real danger that you’re going to accidentally misdirect that energy.  If you lose the big picture in a haze of red, bad things can start to happen.  Recent events in the heated debate over copyright enforcement serve as proof.

Larry Flynt Publications (LFP) just parted ways with Evan Stone, an attorney that was hired to pursue the hundreds of BitTorrent users who are illegally trading copies of one of the company’s recent video titles, This Ain’t Avatar XXX.  When Stone wanted to press harder than his client, not surprisingly he got the boot.  It turns out that when LFP was unwilling to bite the hand of Time Warner Cable, an ISP dragging its heels on turning over customer information tied to IP addresses used to share the movie, Stone became unhappy with LFP’s intestinal fortitude.

According to LFP President Michael Klein . . . the shifting focus from the alleged pirates to putting pressure on the cable companies was not a strategy that appealed to the iconic adult company, which has a television division and continuing global ambitions that require it to be a partner rather than an antagonist with companies like Time Warner.  . . .  Klein said that as much as LFP is determined to maintain a professional relationship with cable operators, it was ultimately their frustration with Stone’s aggressive PR tactics that led them to the decision to end the contract with him.

“He wanted us to put pressure on the cable operators, but it’s not our goal to go after them,” Klein told AVN.  “We want to look at ways to go after pirates, and we thought this strategy might work out, but the reason why we terminated with Stone was because of what we considered to be his unprofessional tactics.”  (source)

Even though the company was happy to quietly let him go, Stone took the more douchey path of announcing his break with LFP to the press.

Plenty of attorneys argue — and they’re not necessarily wrong — that being successful requires adopting the client’s problems as if they were the attorney’s own.  However, very few businesses become successful by playing hardball with everyone the way an attorney would.  (Similarly, any company that is always as cautious as their attorney advises will likely fail to excel.)  The problem comes when your level of tenacity goes beyond the client’s, and fighting the problem becomes for your benefit rather than theirs.  This is almost always a recipe for disaster, especially considering it can require superhuman empathic skills to know where the line is sometimes.  Unfortunately, there’s no law school course that will give you the paracortex of a Betazoid, so you’ll have to rely on your own douchetastic meter to figure out when you’ve gone too far.  There’s no surefire way to navigate this conundrum, but staying away from brash and overly aggressive tactics will help, and that’s a good practice in any endeavor.