Judges Interpreting Emoticons? :-(

from the ^_^ dept

Mon, Mar 15th 2010 8:33am — Mike Masnick

While we'd already written about the judge's ruling in the Lenz vs. Universal lawsuit concerning a bogus DMCA takedown and whether or not damages could be awarded, there was one bit of the ruling which Eugene Volokh recently highlighted, which seems worth mentioning, if only for the amusement factor. Apparently, part of determining whether or not there was actual harm done to Lenz was looking at some email communications, including one where a friend used an emoticon:

Universal ... argues [as a defense to Lenz's lawsuit] that there are triable issues of fact as to whether Lenz has "prosecuted in good faith the assertion that she has been damaged" by Universal's alleged violation of [the DMCA]. This argument is based on four separate contentions.... [The fourth is] that an email exchange between Lenz and one of her friends shows that Lenz does not believe that she was injured substantially and irreparably by the takedown notice. In the exchange, Lenz responds to her friend's comment that the friend "love[s] how [Lenz has] been injured 'substantially and irreparably' ;-)" by writing "I have ;-)." The (";-)") symbol, according to Lenz, is a "winky" emoticon which signifies something along the lines of "just kidding."

At her deposition, Lenz testified that she believed her friend's use of the emoticon "was kind of a reference back to [the] lawyerese" of the "substantially and irreparbly harmed" language and that her use of the emoticon was "a reply to the wink that [her friend] used." Lenz maintains that the fact that she "believes that lawyers sometimes use stilted language is not evidence of bad faith." ...

While it's fascinating to see Universal using a friend's use of an emoticon to try to prove its point, it does seem like things could get a bit dicey when we have judges trying to interpret things like emoticons.

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Filed Under: emoticons
Companies: universal

11 Comments

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Esahc (profile), 15 Mar 2010 @ 9:32am

Universal's lawyers are (oYo)
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Anonymous Coward, 15 Mar 2010 @ 10:00am

At first I was like 0_o
Then I was like T_T
But then I became ^_^
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Comboman (profile), 15 Mar 2010 @ 10:01am

Sarc
Thank goodness they didn't use the Sarc[TM] mark.
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DS, 15 Mar 2010 @ 10:05am

Re:
Now I'm like :I
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PRMan, 15 Mar 2010 @ 10:27am

Well, Eugene Volokh was the one who said...
According to Eugene Volokh:

"Q: How much should you pay for a picture?

A: $2000.

Why? A picture is worth a thousand words and a word, as we all know, is 2 bytes. That's 16 bits and we all know that 2 bits is another name for a quarter.

So, 1000 * 16 / 2 * .25 = 2000"

That's my favorite Eugene Volokh quote, and I thought it was appropriate here since we're dealing with a picture (that's only 2 bytes, however [actually 4 in Unicode]). ;)
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PEBKAC (profile), 15 Mar 2010 @ 10:45am

What does personal correspondence have to do with fair use? :/
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PEBKAC (profile), 15 Mar 2010 @ 10:46am

Re:
Der, nevermind, missed that sentence. :{
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greg.fenton (profile), 15 Mar 2010 @ 12:22pm

There is no emotion in email
To try to read exactly what someone was feeling when writing an email is an exercise in futility. Even if the exact words they write state a given emotion, there is no way to be sure.
Emoticons are an interesting addition to the written electrical word, but even there too there is no way to be sure of exactly what was been felt at the time of writing.
I can think of two opposing uses of that particular emoticon:
And remember, I'm not drinking at your party ;)

and

Or, you know, maybe next time you should read the entire email before flying off the handle ;)

Now, what is the intended purpose of the two above?
[Hint: there are more than two answers.]
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Dohn Joe, 15 Mar 2010 @ 12:50pm

Whats so unusual about this...
One of the biggest flaws in our legal systems is the assessment of "intent" which requires over-excessive interpretation of culture (leading to mis-interpretation of subculture). Is this person really going to set off a bomb on a plane or was his remark "that's the bomb, dude" just their lingo...hey I know! Let's let a judge with no understanding or affiliation with this person's social circles interpret it!! Genius!
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Technopolitical (profile), 15 Mar 2010 @ 2:57pm

what about the Commas and the Second Amendment ?
The entire legal and go't system of the USA has been debating about those blasted Commas and the Second Amendment for over a century This is really not too different. And will happen more and more , as emails and texts are used as evidence in litigation. http://www.guncite.com/second_amendment_commas.html http://www.nytimes.com/2007/12/16/ opinion/16freedman.html
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kevin (profile), 18 Apr 2011 @ 1:47am

In 1998, the city amalgamated the adjacent towns of Etobicoke, York, North York, East Your and Scarborough to form one large metropolitan area. Each of these once-separate municipalities continues to retain their own particular identity.wood pellets machines
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