Jenzabar tries to suppress critical website through bogus trademark claim – fails

December 14, 2010

Public Citizen reports:

In a ruling this week, a Massachusetts trial judge upheld the free speech rights of a documentary filmmaking company against an effort by a Massachusetts software company to use trademark litigation to punish the filmmakers for the portrayal of one of the student leaders in the Tiananmen square protests. (source)

Sadly, this kind of thing happens all the time – companies (and individuals) frequently try to use trademark infringement to try and suppress what they perceive as negative attention.

Massachusetts Superior Court Judge John Cratsley granted summary judgment to the defendants because there was no support for the claim that a reasonable person might be confused as to whether Jenzabar sponsored the documentary filmmaker’s website. Decision here (courtesy of Public Citizen).

What is truly ironic about this case is that one of the chief perpetrators of the suit was Ling Chai, one of the student leaders at the Tiannanmen Square protests. After seeing this attempt to suppress free speech crushed, Chai shot over to Norway to attend the Nobel Peace prize ceremony, where fellow Tiannanmen Square leader Liu Xiaobo is being honored in absentia. Shame on Chai and Jenzabar.

H/T: The Great Ron

Lamebook, We Support You!

November 12, 2010

by Jason Fischer

lamebookI know this story is already a couple of days old, but we think it’s still worth reporting on.  For anyone who doesn’t know what’s going on, Facebook has been on a tear recently trying to flex its trademark muscles, suing and threatening to sue pretty much anyone who uses the word “book” in their name.  Well Lamebook, a site dedicated to poking fun at the oft times unintentional hilarity that appears on Facebook, has decided that its not going to be bullied.  On November 4, after receiving threats of litigation from the social networking giant, Lamebook filed a declaratory judgement action in Texas, asserting the collective First Amendment rights of its creators and users… and for that, we thank you (and donated a few bucks to your legal fund).

Keep fighting the good fight, Lamebook, so you can continue to remind us how funny ignorance can be.


Suicide note rights and liabilities

September 23, 2010

By their very nature, suicide notes are controversial documents.  Nobody likes to think or talk about them, despite accompanying many – probably most – of the suicides that occur in America.  There were 34,598 reported suicide deaths in 2007 alone, making it the fourth leading cause of death for adults aged 18-65.

So, where to begin?

Who owns the note

A Slate article from 2008 states that either the medical examiner or sheriff “controls the contents” of a suicide note.  While true, Eugene Volokh notes that this does not resolve the issue of ownership.  The imperative to investigate deaths grants the government custody over the note, but not title to it; the note, like other personal property, becomes part of the deceased’s estate to be disposed of by will or intestacy under the relevant state’s law. (It would be particularly interesting to see how this issue would resolve in a community property state.)

Republication of the note

Often, suicide notes are not republished, except in notable cases like Joseph Stack’s.  To a large degree, this is out of sympathy for the affected family and, from a newsworthiness perspective, the relative obscurity of many people who commit suicide.  However, there’s another specter lurking in the background: Copyright.

Even without a copyright notice or registration, any note longer than a few words is protected by copyright.  As explained above, those rights transfer to the deceased’s family or heirs after his or her death, and they control the republication of the note.

Volokh, however, notes an end-run around this tactic: When the note has been placed on the public record, such as in a medical examiner’s findings or police record, it may be republished from there.  Although the initial note would be covered by copyright, the renderings of it available on the public record, generally obtained through a federal or state Freedom of Information Act request,  could be used as a matter of fair use – citing to a public record – without seeking the owners’ permission.

The blame game

Suicide notes sometimes identify people, entities and events that spurred the event.  This step is sardonically encouraged by some suicide note-writing guides.  For the above-stated reasons, though, the people responsible for the suicide are seldom publicly identified.  When they are, though, criminal and civil consequences can follow.

Mere allegations of blameworthiness do not create liability, but may point prosecutors and family members in the right direction.  In Eisel v. Board of Education for Montgomery County, 597 A.2d 447, 450 (Md. App. 1991), the Maryland Court of Appeals identified the dearth of relevant case law not only in its state, but in others as well, concerning parties who caused or failed to prevent – in breach of a pre-existing duty – a suicide.  In that case, the deceased’s school had notice of the girl’s suicidal intent, and may have breached its duty to prevent it. Id. at 456.  Also relevant is the Eastern District of Wisconsin’s holding in Logarta v. Gustafson, 998 F. Supp. 998, 1004, (E.D. Wis. 1998), that liability for suicide may be proper “where defendant’s negligent or criminal conduct can be said to have caused the deceased to commit suicide.”

Surprising, however, is the dearth of case law regarding the note-writer’s liability for blaming another person as the impetus for his or her action.  For the reasons described above, it is not certain that those blamed for the death would even know about it, as the notes are not often published and their contents may not be shared with people outside the family who may be upset by them.  This does not mean, however, that a person implicated in the suicide of another is without recourse.

First, the blamed party could try to bring an action for defamation.  This requires showing that he or she was defamed by a false statement in the writing, which was published, whether intentionally or negligently, and damage was done to the blamed party.  First, the scope and nature of publication will vary widely on a case-by-case basis, and may affect the damage calculation.  Just as the ancients wondered if a falling tree made sound if nobody heard it, does defamation cause sufficient damages to warrant a suit if nobody sees it?  Second, the statement may not be purely defamatory, and reasonable minds could differ about whether someone pushed the victim to commit suicide — something that a potential plaintiff may not want to reveal in the case’s pleadings, even if untrue.

Other causes of action that come to mind are intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED).  For IIED, the note-writer would have to act intentionally or recklessly, the identification of the victim in the note would have to be extreme and outrageous, and be the cause of the identified party’s real, actual emotional distress.  First, even if the writer’s note is intentional – and it almost certainly is – is it extreme or outrageous to explain to loved ones the underlying causes of a dramatic decision?  Even if there’s a claim that it is outrageous, such as identifying a person responsible for the death with a paragraph-long rant about how the deceased hopes it haunts and ruins the identified person’s life forever, it is only words on paper, rather than the kind of in-person physical conduct associated with IIED.  Again, if someone wants to put the incident behind him or her, litigating what he or she is entitled to for being blamed in another person’s suicide seems like a poor way to get on with life.

In that vein, NIED also seems like a poor claim.  NIED requires an underlying duty between the note-writer and the identified person to exist, which is breached by harmful conduct — namely the writer’s identification of the other person, causing damage through extreme and outrageous conduct.  In addition to the above discussion regarding extreme and outrageous conduct, there is the difficulty of finding a duty between the note-writer and the identified person.  While courts may be quicker to find one where a pre-existing relationship exists, such as a familial bond, finding one between acquaintances or even nemeses seems like a more difficult proposition.  Additionally, many states have specific requirements for NIED recovery, such as allowing recovery only for physical injuries, requiring the injured person to be a family member, being in the zone of impact for physical injuries, showing physical harm evidencing emotional distress, and more.

Finally, there is the issue of taste.  Suing someone’s estate in the wake of suicide, even if potentially viable, would strike most people as despicable.  Even if a plaintiff identified in a suicide note is ready to go “all the way to the Supreme Court” (until he or she receives a bill, that is), it is unlikely that a lawyer worth his or her salt will take the case.  This effect likely would be amplified in small towns and close-knit communities.

Dear Leader Randazza Quoted in NYT Article on SLAPP Suits

May 31, 2010

by Christopher Harbin

Marc was recently quoted in the paper of record regarding Slapp suits.

One tidbit of the article stood out as odd to me:

“The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.”

I don’t condone this practice, but would the doctors want  an assignment of copyright rather than a non-disclosure agreement? Wouldn’t fair use basically eviscerate any control the doctor or practice might have?  Also, what about non-copyrightable statements.  For example,  “My doctor cut off the wrong leg” and “My doctor is a crook” contain no protectable expression, so I’m pretty sure Medical Justice is giving out crummy advice.   How is their mission of  “protecting doctors from meritless malpractice suits” advanced by silencing critics anyways?

Video Game Playthrough Footage Should Be Fair Use

May 28, 2010

by Christopher Harbin

It’s pretty easy to get duped into buying a crappy video game.  A lot of video game marketing  is pretty shady.  Submitted for your consideration: the Madden “bullshot.”  Bullshots are promotional screen captures released by game companies that bear absolutely no resemblance to the final product. Gameplay footage released by game companies can be even more misleading.  Some games don’t even fairly represent the correct genre.  I’m looking at you, Brutal Legend.

As one of the “have it right this second” generation, I buy my games on release day before the reviews are out.  And because you can’t return video games after they’ve been played, I have been burned more times than I can count.  Hellgate: London was so bad, I half-expected to find it kicking my dog in the middle of the night.  In fact, I stabbed my eyes out with a fork because it was faster than uninstalling the game.   I’ll be here all week.  Try the veal.

So now I’m a big fan of watching video game playthoughs on various gaming sites and Youtube to decide whether a game is worth purchasing.  For me, I find that gameplay footage is much more useful to my purchasing decision than reviews — even video reviews that include snippets of gameplay.   Especially with long role-playing games, I like to be able to see the game at several different points to see if a slow game picks up or whether a game that looks good in the beginning sputters out.  For example, over at, two editors recorded and posted their complete playthough of Persona 4, a 100 hour Japanese role-playing game, which included their commentary as they played.   After watching about ten hours (not in one sitting, thanks), I decided to purchase a copy.

I can’t help but wonder if these playthroughs are copyright infringement.  There weren’t any litigated cases that I could find because  most companies probably welcome the additional publicity of their games.  But lately Rockstar Games has been taking down footage of their newly-released game, Red Dead Redemption.  Also, it appears that playthrough footage of Grand Theft Auto’s IV’s expansion “The Lost and Damned” has also been pulled.  I find this a tad odd as usually only publishers of crappy games care about gameplay footage leaked onto the web as they try to encourage new-release sales.   After reviews come out, the cats out of the bag.   Red Dead Redemption and The Lost and Damned both  enjoyed high praise, so I wonder whyRockstar appears to be  issuing  take down notices.   The Pollyanna in me would like to think that these takedown requests stem from some overzealous intern rather than from corporate goons demanding outright control of all possible uses of their work.

Anyways, I think the case for gameplay footage being fair use is relatively straightforward:

Purpose and Character of the Use: Usually gameplay footage is paired with some sort of running commentary that is either entertaining or informative.  This seems pretty transformative to me especially when considering that the medium is also transformed — video games are actively played and gameplay footage is passively watched.

Nature and Amount of the Use: Both these factors probably tip towards copyright owners.  There is obviously a difference between a 5 minute sample of gameplay footage and an entire game, though.  Interestingly, I find longer gameplay videos more relevant for my purchasing decision.

Market Effect:  Gamers like to play video games — not watch them.   Even games that are quite story intensive — like the fantastic Heavy Rain — are still pretty interactive.  The only negative effect on the market for video games is that consumers who would be disappointed after purchasing the game probably wouldn’t buy the game after viewing extensive gameplay footage.

To close, I know some of you are thinking that my analysis is biased because I have a horse in the race.  My response:  You didn’t play Star Trek: Online, man. You didn’t have to endure the steaming hunk of crap that was Daikatana.  I was there, man.  I WAS THERE!

IOC Uses DMCA to Suppress Luge Accident Video

February 17, 2010

by Jason Fischer

The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:

  • Shut down the luge track to prevent any more deaths… check.
  • Conduct an internal investigation… check.
  • Let an “independent” authority do its own investigation… check.
  • Make immediate modifications to the luge track to stop future accidents… check.
  • Make a press release, expressing regret, but denying all responsibility… check.

resized_Nodar_Kumaritashvili_luger_olympic_death1All perfectly acceptable anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

van_2010_logoEven where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.

The article was originally published on The Tactical IP Blog

Streisand 101

January 5, 2010

by Jason Fischer

In an effort (I’m assuming) to be hip and relevant, my alma mater (and Randazza’s previous teaching gig) has begun adding courses to their curriculum that have little to do with the law or lawyering.  One example is a course called “Popular Culture and the Law,” to which the registrar has assigned the following course description:

This 2 hour seminar will examine social attitudes toward law, lawyers, and legal institutions through the viewing and examination of Hollywood films.  Film depictions of law students, juries, and judges will also be considered.  Each seminar session will focus in as much depth as possible on a particular film or films and a particular problem or aspect of law, law practice, ethics, or the image and status of the lawyer in American culture raised by the film(s).  The majority of the films will be viewed outside the classroom and will be considered as texts providing contemporary depictions of the subject matter to be examined in class.  In addition, readings will be assigned for each film and will form the basis for class discussion.  The films will be reserved in the library.  This will be a paper course which may be used to satisfy the Upper Level Writing Requirement.

legally_blondeMy understanding is that this course is just another excuse for chicks in law school to watch Legally Blonde (2001) for the 4,821st time.  What a great way to spend your tuition dollars at a professional school!

Normally, I’m not the one in this forum to bitch about the state of legal education.  Marco & Co. do it regularly enough that I don’t have to.  (See here, here, and here.)  On the whole, my law school experience was a good one.  I took as much advantage of our externship program as I could, and I went out of my way to take classes from adjunct professors who I knew actually practiced what they were preaching.  What I object to is courses that have students watch reruns of “L.A. Law” (1986), or other fictional portrayals, as a means for teaching about the practice of law.  Aren’t there other subjects that could be presented that have more merit?

Fuck_barbara_is_that_your_faceOne subject jumps quickly to my mind, and regular readers of this blog will recognize it immediately.  I would call it “Streisand 101,” taking its name from actress and singer, Barbara Streisand, who effectively demonstrated that simply filing a lawsuit can bring about the exact opposite result from what you hoped to achieve.  It would be a skills course, aimed at training young lawyers to talk their clients down from filing certain kinds of lawsuits — the kind that end up splashed all over blogs like this one, fueling negative publicity for the client.  The intent would be to teach how to 1) determine the unintended consequences of a particular cause of action; and 2) effectively communicate those consequences to the client, giving them the opportunity to back away before doing any real damage.  The primary pedagogical tools would be roll playing and reviewing news stories about past P.R. blunders.

Finding great teaching examples would be about as challenging as falling off of a log.  Just this week, outdoor clothing maker, The North Face (TNF), is in the news again, moving forward with their lawsuit against The South Butt (TSB).  (You can find my previous coverage of the case here.)  Before TNF filed their lawsuit, TSB had a whopping $5,000 in gross sales — after months of being in business.  Now, TSB’s selling that much every hour.  Their attorney claims that, with 14 new employees, TSB has created more jobs in its home state than the Obama’s $800 billion stimulus plan.  (Source.)

The only downside that I see to so educating the next crop of attorneys is that a huge source of entertainment will be snuffed out.  What will we read about for fun when Micheal Jordan’s attorney convinces him not to sue the people who congratulate him?