How much does Guns 'N Roses singer Axl Rose hate former guitarist Slash? So much that he's suing Activision for $20 million because Activision included a virtual version of Slash in the latest version of Guitar Hero, despite claimed promises not to do so. While the likelihood of success may depend on contract specifics, it does seem rather silly to care about this. The claim that "This lawsuit is about protecting Guns N’ Roses," is obviously bogus. There is nothing about "protecting" involved here.
Well, the whole mass automated "pay up or we'll sue" legal business may be getting a bit more interesting as Evan Brown notes that one of the folks sued by US Copyright Group has struck back with a class action lawsuit alleging that the law firm behind USCG, Dunlap, Grubb & Weaver, is engaged in extortion, fraud and conspiracy. The lawsuit looks to include in the class the nearly 5,000 people sued by USCG for sharing the Uwe Boll film Far Cry. The lawsuit highlights -- as we pointed out earlier this year -- many of the alleged infringements happened prior to registration, meaning that there would be no statutory damages available. However, USCG didn't bother to mention that and still used the statutory damages threat in its letters:
This knowing misstatement of material information was made to maximize the damage
awards that Defendants could pursue, the claims for Ineligible Remedies they could
threaten in demand letters, and the volume and amount of extorted "settlements" that
would result.
The lawsuit then uses DGW's own professed "copyright expertise" against it, noting that it clearly was aware of the rules concerning registration and statutory damages, even though it knew that it had no right to statutory damages, and thus, committed fraud and extortion.
Oh yeah... one part of the fraud, according to the lawsuit, is that DGW submitted the Far Cry copyright registration with a false "first date of publication" (which is a key date in whether or not they could go after statutory damages). Thus, the lawsuit claims, DGW/USCG actually committed fraud on the US Copyright Office.
To be honest, I'm guessing that the likelihood of this lawsuit getting very far is slim. Such is the nature of such charges in the past. However, it does appear that this one has a lot more going for it than other similar lawsuits, given the late copyright registration, which really does look bad for USCG. No matter what, this will be an interesting case to watch. The full lawsuit is included after the jump.
Earlier this year, we noted that Davenport Lyons, the UK law firm, that really spearheaded the whole mass automated "pay up or we'll sue you for copyright infringement" business, before handing it off to ACS:Law was being investigated by the Solicitors Disciplinary Tribunal, a part of the Solicitors Regulation Authority, and the latest news says that the SRA is claiming that the two Davenport Lyons lawyers who were involved knew that they were threatening some innocent people, since the IP address data they had was not nearly specific enough to identify actual downloaders. Not surprisingly, the SRA doesn't look too kindly on lawyers doing things that involve threatening innocent people.
Admittedly, most pro se lawsuits (filed by an individual, without a lawyer) are complete junk -- and on any given day you can find some really silly lawsuits. But sometimes they're worth highlighting anyway, just for how amusing they can be. Eric Goldman alerts us to the following lawsuit, filed by one Russell Dan Smith, arguing that both Craigslist and Wikipedia should be barred from being available in the state of South Carolina, and that each should be forced to pay $500 million, with half going to the state of South Carolina (might help with the budget) and half going to Russell Dan Smith (might help with the monthly payments he has to make on his $10,000 Puma camper).
What, you might ask, should force both sites to be blocked in the great state of South Carolina, as well pay up a billion dollars, combined? According to Mr. Smith, both sites "have been and still do openly promote child prostitution and the distribution of child pornography." Also, "both defendants also promote adult prostitution and nudity designed to excite prurient interests in the people viewing it." How does Mr. Smith know this? Because, he notes, he discovered such things on both sites, but "not intentionally." You see, "the pictures came to him by way of his surfing defendants' websites for valid non-pornographic purposes." You see, "plaintiff does not and does not want to view such nudity as heretofore described." Understood, of course. And "for allowing such nudity of children and adults to be seen by those who do not want to see it, both defendants are liable of attempting to lure other persons to share in this crime."
Mr. Smith also highlights the fact that Craigslist sued South Carolian Attorney General Henry McMaster -- a lawsuit that was tossed out, but is being appealed. He claims that "there is a probability shown by the preponderance of the evidence that defendant Craigslist was a criminal organization suing the Attorney General of the State of South Carolina for no other reason than that the State had been investigating the organization and intended therefore to paralyze by fear of further action." Of course, as covered in detail at the time, McMaster had been threatening to put Craigslist execs in jail, for actions of its users -- actions clearly protected under Section 230 of the CDA, which other courts have highlighted. Craigslist's offensive lawsuit was not to "sue McMaster," so much as to get a declaratory judgment that it had done nothing wrong, so as to stop McMaster from continued grandstanding.
As one final point, it does seem worth pointing out that, on the documents filed, there is a note reading that "frivolous civil proceedings may be subject to sanctions...." Seems worth pointing out...
In the last few months, there have been tons upon tons of stories of porn film makers following the tried and shamed method of legal extortion known as sending out mass automated threat letters, warning people that they'll be sued for downloading porn if they don't pay up. Barely a week goes by when we don't have people submitting another story of another porn studio suing thousands. We've stopped posting them because it's hardly news any more. If anything, all those lawsuits seem to represent the last gasp effort of a bunch of porn studios who haven't figured out how to compete in the new digital era.
However, in one case, things have gotten a bit odd, as Judge John Preston Bailey has restricted access to all of the legal documents -- including the publicly filed complaint -- in the case brought by porn studio West Coast Prods, who sued 9,729 people for unauthorized file sharing of one of its films. There are a lot of questions as to why the documents have had their access restricted (only to lawyers involved in the case), but THREsq notes that it heard Judge Bailey has "decency concerns," and that "he can't stomach the thought of having a lot of dirty language floating around."
For obvious reasons, this seems to go against the nature of publicly filed documents. The EFF is already noting that with such actions "it will be difficult for the targets and their potential counsel to understand and assess the allegations against them." While an accused person could retain a lawyer, and that lawyer could probably get access to the documents, "a person should not have to hire a lawyer simply to be able to read the allegations against him or her."
Scott alerts us to the bizarre lawsuit filed by United Brands, makers of the "Dragon Joose" malt beverage, filed against Anheuser-Busch for its Tilt malt beverage, arguing that the new design of Tilt's cans represents trademark infringement, copyright infringement and unfair competition among other things. The company put out this statement:
"While we are flattered that Anheuser-Busch recognizes the considerable value of the Joose brand, it is disappointing that they have resorted to stealing our design," says Michael Michail, CEO and president of United Brands. "Their new Tilt product design intentionally infringes on our Dragon Joose Marks and is thereby benefiting from the brand equity of United Brands and its products."
Based on that, you'd have to think the two cans look pretty damn similar, right? Well, take a look:
I have to admit, that I'm at a loss. Okay, there's a (very different) dragon on each can, but the designs are totally different from one another. What, exactly, does United Brands think infringes on their copyright on the original design? I can't see anything that's copied. Same with the trademark. I can't see any likelihood of confusion here. I've seen some pretty bizarre trademark and copyright lawsuits, but I'm at a total loss as to what was infringed on here.
Thought that American society was already too litigious? You might not like this next stage of the game, wherein Wall Street investment bankers are looking to help fund various lawsuits, in return for a cut of any eventual winnings. We've already seen how this is popular in patent trolling, but it looks like it's spreading to all sorts of civil lawsuits. Now, the core concept behind this activity is reasonable: lawsuits are expensive. And if you have a legitimate case, and it's too expensive to take on the effort, getting an investor can help you bring the case and bring a party to justice. But, like so many things that Wall Street gets involved in, what can be used for good, can also be massively abused for profits. Apparently, investors are behind some really wacky lawsuits that never should have been filed, and they often push for quick settlements in order to cash out at lower costs. Of course, it's not clear how widespread this practice is in total, since lawyers often don't reveal that there are investors behind a case.
Not surprisingly, the article notes that "lawsuit lending is a child of the subprime revolution," and often the lenders charge ridiculous interest rates, rather than being willing to just take a direct cut of any winnings. And, of course, these days, with the mortgage space being a weak investment, banks have to find somewhere new to put their money, and apparently lawsuits are attractive to some. The whole thing seems so open to abuse and excess that it seems likely that we're going to be hearing a lot more stories of lawsuit lending... and the resulting problems it causes.
With the ongoing mass lawsuit campaign for those accused of sharing the movie Hurt Locker online, we're still waiting to see if US Copyright Group will really go through with its stated intentions of filing actual lawsuits against individuals. As we've seen with similar "mass lawsuit" factories, the general business plan is to threaten as many people as possible, with demands to "pay up or else..." and never really get around to the "or else" part. USCG insists it really will sue, and I wouldn't be surprised if it planned to do so in a few select cases it thinks it definitely can win, just so it has a few "example" wins to point to.
However, as always in these mass lawsuit campaigns, the evidence is so weak that it often drags in many who are quite innocent of what they're accused of doing, and it seems rather unfair to make them either pay up, or pay lawyers to defend themselves. So it's neat to see that Robert Talbot, a law professor at University of San Francisco, is taking on a bunch of these cases (23 so far), with a focus on ones where it appears the accused did not, in fact, share the file. From the sound of it, Talbot (with the help of USF law students) have no intention of settling these cases, but are looking to fully defend the accused. My guess is that USCG will look to avoid any of those cases, and focus on the ones that are a bit more of a slam dunk.
Slashdot points us to an amusing story about how an investor who owns about 28% of Bible.com has sued the board for not being profitable enough. Now, it is true that when the owner of the domain put together a corporation to support it, he wrote in the plan "it is the goal of the board of directors of Bible.com to become very, very profitable," but having failed at that hardly seems something that allows you to get sued. The investor is specifically claiming that a study suggested the domain name itself could be worth over $100 million, and he wants it to be sold.
I wondered if the Bible, itself, might have something to say on the matter, and thanks to the lovely thing called the internet, there's actually an entire page of Bible verses about profit, with a few choice quotes such as:
"Do not lay up for yourselves treasures on earth, where moth and rust destroy and where thieves break in and steal, but lay up for yourselves treasures in heaven, where neither moth nor rust destroys and where thieves do not break in and steal. For where your treasure is, there your heart will be also." -- Matthew 6:19-21
"For the love of money is a root of all kinds of evils. It is through this craving that some have wandered away from the faith and pierced themselves with many pangs." -- 1 Timothy 6:10
"No one can serve two masters, for either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve God and money." -- Matthew 6:24
Wonder who's going to file the amicus brief on behalf of God?
Kiss' Gene Simmons apparently was bored of not getting enough coverage in the blogworld lately, and so he's cooked up another "controversy." He does this every year or so, making a big stink about "piracy" or new business models, and I'm pretty sure at this point that he only says this stuff because he knows people will write about it. In 2008 he claimed that Radiohead was destroying the music industry with its "pay what you want" experiment -- even though it made the band more money than all their previous releases. In 2007, he told Billboard Magazine that the labels should be suing more people:
The record industry doesn't have a f*cking clue how to make money. It's only their fault for letting foxes get into the henhouse and then wondering why there's no eggs or chickens. Every little college kid, every freshly-scrubbed little kid's face should have been sued off the face of the earth. They should have taken their houses and cars and nipped it right there in the beginning. Those kids are putting 100,000 to a million people out of work."
Of course, the evidence suggests Simmons is totally wrong, but apparently he hasn't learned anything in the past three years or he doesn't care. Kiss keeps selling concert tickets at an amazing clip, so he can say whatever ridiculous thing he wants and he still makes more money. So he's basically repeated those claims from 2007 (found via Hypebot), by saying that fans should be sued until they lose their homes:
"It is a business. You have a fiduciary duty to your own butt to make sure you maximise any potential and minimise any exposure,"
He's right about that, but perhaps confused about long-term vs. short-term maximization. You can maximize revenue in the short term at the expense of long-term revenue, and one good way to do that is to smack around your fans. But that didn't stop Simmons:
Make sure your brand is protected, be litigious, sue anybody -- take their homes, their cars, DON'T LET ANYBODY CROSS THAT LINE.
These are his fans he's talking about. While he's got fans to spare, he may discover one day that suggesting bands sue their fans isn't actually a good long-term strategy.
"The music industry was asleep at the wheel and didn't have the balls to go and sue every fresh-faced, freckle-faced college kid who downloaded a clip," Simmons roared, "so now we're left with hundreds of people without jobs. I have a record company."
Not quite sure where that final non-sequitur came from (sounds sort of like "I'm on a horse.") Either way, he's confusing the record industry with the music industry. The recording industry did, in fact, try to sue every college kid who downloaded stuff. And it ended up costing them a ton of money, educating many more people about file sharing, and driving people and systems further underground. And, while all that was happening the music industry (not the recording industry) continued to grow at a pretty massive rate, despite his claims. I'm on a horse.
He illustrated these already-colourful points with a handful of stories: one about a captain who's told he has a small hole in his ship (will he cork it now, or sink before arrival to the New World?), and another about a farmer who lets a cute fox run away with an egg. The fox tells all the other foxes, who come to ravage and steal and kill all the chickens, after which point the farmer's wife divorces her witless husband and the children all hate him.
Um. Okay. Story time from Gene Simmons. I can tell stories too, except mine are actually about real people who figured out that attacking or suing your fans was a bad idea, and actually putting in place smarter business models made sense.
But here's the reason why I think Simmons is making all this up for the attention and the press. He notes that he has a record company, and he screams about the industry not having the balls to sue people. So... um... Gene... where are your thousands of lawsuits against file sharers? After all, I would imagine that KISS songs are downloaded all the time. What's with all the talk and no action? Where are all the lawsuits that drove kids out of their homes and cars? Oh right. They didn't happen.
And, in the meantime, as mentioned, Simmons is making a ton of money selling concert tickets. The article notes $400 million in concert tickets sold in the last 8 years, and that's only a tiny fraction of the KISS business behemoth, which sells all sorts of scarcities that people want to buy. In other words, Simmons (who wastes no opportunity to talk about what a brilliant business man he is) has actually figured out how to thrive in a world where free copying is rampant, by selling stuff that can't be copied for free. He should be one of the poster children for showing how you build a business that "competes with free." It's just sad that he either doesn't realize why his business worked, or he wants to mislead everyone about it.
Anyway, you can watch the video below of this talk. The whole talk is about 40 min but I've queued up to the parts quoted here:
