Jared Leto's Lawyer Sends Ridiculously Bogus Cease & Desist, Calling Lots Of Attention To Statements About Him

from the how-not-to-do-things dept

You would think, by now, at least the big time lawyers would recognize that bogus defamation threats and demands for takedowns would only lead to more attention. And that should be especially true for Martin Singer, who proudly promotes the claim that he's a "pit bull" of a lawyer for a variety of Hollywood stars. Given his clientele, you'd think he and his firm, Lavely & Singer, would be especially careful about not making totally bogus threats that are actually likely to backfire and call extra attention to whatever it is they're trying to hide. But, apparently with all his Hollywood connections, Singer and his staff have not yet learned about the Streisand Effect.

Paul Levy at Public Citizen alerts us to how a lawyer working for Lavely & singer, Allison Hart, has sent a ridiculous cease & desist notice to the website Lipstick Alley on behalf of actor/musician Jared Leto because some people in Lipstick Alley's forums made some comments about Leto in forums like this one and this one.

Almost everything in the threat letter is questionable or wrong -- beginning at the very top where it says "Confidential Legal Notice. Publication or Dissemination is Prohibited." Second big problem: the comments are from 2013. California's statute of limitations on defamation is 1 year. You would think that a hotshot lawyer would know that. Next big problem: Section 230 of the CDA. These are all comments from users, and the site is not liable for them. Again: this is the kind of thing the lawyer is supposed to know. But, I guess, when the idea is to intimidate, you don't really care what the law actually says. There are lots of other problems with the letter as well, but rather than let me tell you what they are, I'll hand it over to Paul Levy, who is representing Lipstick Alley and (as he's been known to do) sent an absolute masterpiece of a response letter back to Hart. Here's just a snippet, but really, read the whole thing:

Having reviewed the posts that you have identified, I conclude that you do not have any non-frivolous defamation against any of the posters.

Some of the posts of which you object do not appear to me to be defamatory. Two of the posts simply mention claims found elsewhere in the Internet that your client has a large penis. It is hard to see how those statements would hurt your client's reputation, even if they are false. It is, as I understand it, the accusation of having a small penis that is understood to be an insult.

Other posts about Leto's allegedly rough and inconsiderate behavior during alleged sexual encounters with fans, and about the age of one of the fans, might well have been defamatory when originally posted, assuming that they are false. I recognize that your letter claims that the statements are false. I assume that you do not have personal knowledge about the size of Leto's penis or about whether he is rough with sexual partners, and you do not cite any evidence supporting your claim of falsity. Moreover, the mere fact that a denial comes in a demand letter from a lawyer at Lavely & Singer means that it has no probative value, considering the number of times your firm has sent demand letters claiming that Bill Cosby did not mistreat his fans by using drugs to facilitate sexual conquests. If you have in mind to proceed on the claims about Leto, you will need to file a lawsuit (subject to California's anti-SLAPP statute, of course), and in support of a subpoena present an affidavit from Leto himself addressing the factual assertions in the posts. The affidavit will, no doubt, make for interesting reading.

Moreover, none of the posters on Lipstick Alley claims to have personal knowledge about Leto's conduct during sex with his fans (or about the size of his penis); some simply express their views about what they have read elsewhere, and some have reposted comments from other web sites that purport to reflect first-person descriptions of activities in which the original writers claim to have been involved. Your demand letter mentions that at least one of the linked-to posts has been deleted from the original site, and you seem to suggest that the removal of various posts in response to demand letters from your client supports your assertion that the posts are false. But at most, it only shows that the individuals whom your client threatened decided that the issue was not worth litigating. Lipstick Alley, however, stands up for the First Amendment right of its users to comment on celebrities, and to make those comments anonymously, unless their statements have been proved false and defamatory. It does not remove posts simply because a wealthy actor is able to hire a law firm to send threatening letters.

There's a lot more in the letter (which is four pages long) that is well worth reading -- including his discussion of the "publication or dissemination is prohibited" line in the letter. And, of course, now this discussion about Leto from two years ago, which these lawyers were trying to hide, suddenly gets more attention.

If I were Jared Leto, I might consider getting better lawyers.

Filed Under: allison hart, cease and desist, defamation, jared leto, paul levy, section 230, statute of limitation, streisand effect, threats
Companies: lipstick alley

A Lesson In How Not To Do A Defamation Threat, Courtesy Of Lawyer Casey Cummings

from the not-such-a-good-idea dept

Oh, the defamation threat letters we see. They are all too frequent. Thankfully, some people know how to respond to them well. This one was found via Popehat and involves NY lawyer Michael Pospis receiving a defamation threat letter written by Florida lawyer Casey Cummings on behalf of his client David Shavolian. Shavolian got some attention a few years back when a sexual harassment lawsuit was filed against him by a former employee. The allegations in the lawsuit were somewhat salacious, leading to news coverage, such as in the Daily News, which posted the headline: "Boss made her stand beside him while he urinated: harassment suit." The allegations in the lawsuit itself went even further, including the following (as laid out in the ruling in the case):
Pospis had written about the case, but not the particularly tabloid worthy aspects of it. Rather, he had focused on the benchslap that Savolian's lawyer had received for trying to get the case dismissed by arguing that the allegations, if true, did not fit under the state's anti-harassment laws. The judge found that to be quite incredible:

This Court is aghast that any attorney would, with a straight face, claim that the conduct alleged (which, solely for purposes of this motion, is deemed to be true) does not fit squarely within the City and State anti-discrimination and anti-harassment laws. Talk about a hostile work environment! If defendants are correct, these laws, and similar ones throughout the country, would have to be scrapped as ineffective and rewritten from scratch. Based on the totality of the complaint, including matters not mentioned above, defendant Shavolian seems to have hired plaintiff principally so that he could sexually harass her, and, once she was beholden to him for her employment, to have followed through completely.

[I]f plaintiff is to be believed, Shavolian showed his true colors well before he hired her, and, conceivably, plaintiff accepted employment with the idea of bringing this lawsuit. Be that as it may, the City and State have made clear that the conduct alleged is unacceptable in the workplace and have imposed liability for it (and, in this Court’s humble opinion, rightfully so).

Quite a classic benchslap, which Pospis found interesting. Now the letter from Shavolian's current lawyer, Casey Cummings, argues that that post about the benchslap is somehow defamatory. It does not, of course, include any clear explanation of what factual statements are defamatory (because that would be difficult). Rather, all it does is include a somewhat bizarre declaratory defamation ruling from the state of Florida... filed against "Anonymous John Doe 1."

Seriously, go look at how questionable that lawsuit is. It is super sketchy. It highlights three sites that it declares are "defamatory" including the NY Daily News story linked above, a blog post at The Real Deal (a blog about NY real estate) and a link at Ripoff Report highlighting the story. The blog post at the Real Deal appears to be gone, but the others still remain.

But notice what the lawsuit says. It does not accuse the NY Daily News of defamation. It does not accuse The Real Deal of defamation. It does not accuse Ripoff Report of defamation. It accuses "Anonymous John Doe 1" of writing the content on all three of those sites. Really. And then, it says that "Anonymous John Doe 1" may reside in Florida, to give the court jurisdiction.

The Defendant may reside within the State of Florida, although the actual residence of the Defendant is unknown in that the Defendant has chosen to publish the Digital Defamation anonymously on an Internet Service Provider (ISP) known as Therealdeal.com, Nydailynes.com and Ripoffreport.com. Any attempt at service of process so as to obtain in personam jurisdiction would be a futile act based upon the Defendant's concealment of his identity and place of residence.

Got that? This anonymous John Doe 1 has used these three "ISPs" to publish "digital defamation" anonymously. Even though the article in the Daily News has a byline. And while the original story on The Real Deal is down, a quick check shows that its stories appear to carry bylines as well.

From there, the lawsuit makes a bunch of bizarre claims, without ever actually identifying the "defamation" in question. At first, I wondered if maybe it was referring to comments posted below those articles, but if that's the case, it should have made that point much more clearly. But, in paragraph 30 of the complaint, it makes it clear that it's talking about the original articles themselves, because it notes that "the various titles of the Digital Defamation are..." and then lists the titles of the original posts themselves, rather than, say, comments beneath them.

The only potentially defamatory claim stated was about whether or not Shavolian had been arrested -- which is alleged in a comment below the Ripoff Report story, but is clearly not in the original Daily News story. The lawsuit goes on to (incorrectly) cite Section 230 of the CDA to say that Shavolian cannot sue the Daily News, Real Deal, Ripoff Report or Google (hang on, we'll get back to that) directly for defamation. We're big believers in Section 230 protections around here, but while they would apply to Ripoff Report and Google, if he's really claiming the original articles on the Daily News and Real Deal were defamatory, then Section 230 wouldn't apply. It only applies to the intermediaries, not the original publishers.

Finally, to top it all off, having pretended that "Anonymous John Doe 1" wrote the articles at the Daily News and the Real Deal, and claiming that he can't sue those sites directly and then saying it would be impossible to identify Anonymous John Doe 1, he requests a declaratory judgment in his favor since Anonymous John Doe 1 will obviously not show up in court.

It's pretty clear what the intention here is: get a confusing/confused court ruling saying "defamation" to then wave around to threaten people into taking down stories that are not defamatory. Since no Anonymous John Doe 1 was identified, and because the Florida court apparently didn't even do the most basic review of the details here, it gave a ruling in favor of defamation -- using some more procedural nuttiness, saying that it was "in rem" -- a ruling against the content itself, rather than the person (I'm not even going to dig down into how ridiculous a rabbit hole that is...). And then, based on that, it issued an order that "Anonymous John Doe 1" remove those three web pages and, on top of that, that Google, Yahoo and Bing remove those links from their search results.

And, yes, that's really, really sketchy. It seems like a backdoor way to get a court to claim "defamation" without allowing a defense, and then being able to wave that ruling around to try to take down stories that almost certainly are not defamatory.

Shavolian's lawyer in that case, Steven Andrews, played some interesting games there. I don't see how it could possibly be appropriate to tell the court that "Anonymous John Doe 1" wrote the articles at The Daily News and The Real Deal, when even a glance at those pages would show otherwise.

And, finally, that brings us back around to the letter that a different lawyer representing Shavolian, Casey Cummings, sent to Pospis arguing that Pospis's post about the benchslap was somehow controlled by this nutty ruling, and thus he needed to take it down. Even leaving aside just how sketchy and questionable the original ruling is, Pospis's post didn't reference any of the three links listed in that ruling at all. The whole thing stinks of trying to mislead.

Unfortunately for Shavolian and Casey Cummings, Pospis actually understands the law and sent a lovely response along with an even more detailed blog post that highlights other reasons why this is frivolous, beyond even those discussed above. Pospsis didn't even bother to dig into the ridiculous Florida ruling and what is alleged there. Instead, he just makes two other key points.

First, even if what Pospis wrote was defamatory (which it wasn't), the statute of limitations on defamation in NY is one year. And his post was published more than a year ago. In the letter, this is expressed deliciously by citing the NY statute followed by "see also a calendar." Second, there is absolutely nothing in Pospis's post that even remotely approaches anything defamatory. In his letter, Pospis points to the hallmark of defamation bullies: the failure to cite a single statement:

In that vein, I note that you fail to identify even a single false statement of fact in the post that you have falsely and irresponsibly characterized as "defamatory." As such any defamation action commenced in New York would be patently frivolous and subject the plaintiff and/or its attorney to sanctions, including attorney's fees.

In the blog post, Pospis goes further, noting that his original post was commenting on a matter of tremendous public interest, involving public court documents. He concludes:

I have zero tolerance for bullies who threaten to misuse defamation law to censor protected expression. I certainly hope, for the sake of his practice and his clients, that Mr. Cummings has better things to do with his time than threaten out-of-state lawyers with meritless defamation lawsuits.

It is indeed a dark day for free expression when lawyers are dissuaded, under the threat of litigation, from writing about and/or commenting on judicial proceedings. Free speech is more likely to die by a thousand ostensibly innocuous cuts (e.g., threats like Mr. Cummings’), rather than by sweeping legislative reforms, constitutional amendments, and the like.

It still is quite amazing how frequently people (including some lawyers) think that if they can throw around semi-official looking claims, people will ignore the details. Sometimes, though, it backfires in a big, bad way.

Filed Under: casey cummings, cda 230, cease and desist, david shavolian, defamation, michael popsis, threats

Clueless Publicist Doubles Down On Claiming Fair Use Has 'Expired' On Walter Scott Video; Brags About Profiting From Police Killing

from the that's-not-how-the-law-works-at-all dept

Last week, we wrote about how the bystander who shot the video of police officer Michael Slager shooting and killing Walter Scott had apparently brought on a publicist, Max Markson, who was demanding that the media start paying for the video. As we noted, this situation was classic fair use, and the reasoning made by the publicist made no sense. He argued that fair use only lasted for a little while, and then later, in an interview with Buzzfeed, talked about how they were charging a "fair usage fee." As we pointed out, this was idiotic -- and we focused most of the scorn on the NY Times for idiotically repeating these claims and claiming that "copyright experts agreed" that they had a point. That's flat out wrong. Sarah Jeong wrote a great piece for Forbes, quoting a bunch of copyright experts insisting that Markson's interpretation of copyright law is laughably wrong.

Markson has been doubling down on his ignorant position. He and I had a brief Twitter exchange in which he refused to actually answer the questions I raised (mainly where in copyright law is there such a thing as a "fair usage fee") and rather insisted that he's obviously legally right because he claims that some (apparently totally clueless) news organizations have paid up*. He's also coming up with ever more ignorant statements about fair use. Here he is, for example, in the Guardian making even more ridiculously wrong claims about fair use. If you know anything about copyright law, the following should leave you sputtering in disbelief:

“Any footage has to be owned by somebody. It’s not like it’s in the public domain. If the Guardian, or any media organisation, sends a cameraman to get some footage, then they own it, and it’s the same in this case.”

He claimed that still images taken from the video would also incur a retrospective fee and this would apply regardless of when they had been printed or posted online.

“Fair use doesn’t really apply to images,” he said. “There’s a fair use argument on the video, but there’s a very clear copyright on the use of the photographs.”

The level of pure ignorance here on copyright law is somewhat astounding for someone who is trying to enforce copyright. First off, he seems to think fair use means "in the public domain." It does not. Things in the public domain don't need fair use. Fair use applies to works covered by copyright and means you can use it without a license for that particular use. That's why there is no such thing as a "fair usage fee." Second, the idea that "fair use doesn't really apply to images" is so ludicrous that a simple Google search would have taught him that. Or, hell, some of the most famous cases about fair use involve cases about images. This isn't even remotely arguable. Markson is going around spewing pure ignorance as copyright law -- and using it to shake down companies.

And he is sending out actual demands. The Guardian got one and wrote about it. As expected, the demand letter includes more insanely wrong claims about fair use:

The period of Fair Use of this footage has now expired and all further use of the footage requires licensing through Markson Sparks.

Uh, no. Fair use does not "expire." Copyrights expire, but fair use does not. The Guardian's reporter, Jon Swaine, apparently called up Markson's employee, Margaux Nissen Gray, who sent the letter, and things just get more inane.

Asked why they believed the footage needed to be licenced, Nissen Gray said: “We have discussed with our copyright attorneys and ‘fair use’ doesn’t extend to this amount of time that it has been in use. So because the footage belongs to Feidin Santana he is eligible to licence it.”

I'm curious who these "copyright attorneys" are, because they're not just wrong, they're so wrong that I have trouble believing they legitimately exist. Markson may very well be a successful publicist, and he doesn't seem to care as long as clueless companies continue to pay up on these threats, but the fact is that he's wrong and looks totally clueless on copyright every time he opens his mouth. And, frankly, if media companies really are paying up on this little scheme, those media companies ought to fire their own copyright attorneys as well.

Finally, in my previous post, I had suggested that the guy who took the video, Feidin Santana, was looking to "cash in." However, the details suggest that Santana is almost entirely out of the loop here. Instead, his lawyer, Todd Rutherford, is basically running the show and made the deal without much awareness by Santana about what's being done in his name and with his copyrights. That could come back to bite Santana badly if Markson continues to threaten media organizations in this manner. Some of them actually have good copyright lawyers, and they quite likely will hit back seeking a declaratory judgment for non-infringement.

* In further conversations, Markson also mocked me for caring about this, talking about how he's "closing deals daily!" as if he's proud of the fact that he's directly profiting off of a policeman murdering an unarmed man. Markson really is showing his true colors here in quite amazing ways.

Filed Under: cease and desist, copyright, fair use, journalism, max markson, reporting, walter scott
Companies: markson sparks, the guardian

Domain Name Registration Triggers C&D From Instagram... Which Triggers A Weirdly Wonderful Backlash Filled With Duck Drawings`

from the domain-name-fun dept

If you're going to allow the corporate finger to rest heavily on the "Release the Lawyers" button, you need to be braced for the backlash. As backlashes go, this particular incident is light on one-star reviews and widespread excoriation. But it is dripping with sarcasm masquerading as wide-eyed innocence and shows just how quickly a handful of internet denizens can make someone wish they'd never bothered trying to "right" a "wrong."

A redditor registered the domain slutsofinstagram.com, as one does when presented with the available tools and the inclination to make snap judgements for the amusement of one's self and (hopefully) others. Shortly after that, the legal department of Instagram got involved, as one does when elbowing others for trademark breathing space and possessing the inclination to host photos without worrying about third-party hecklers.

The letter notes that slutsofinstagram.com "contains" the trademarked word "Instagram." It then talks about its 30 million users and being a "worldwide leader" in photo uploading and justifiably famous for doing so.

It also points out that it must police the internet for uses/abuses of its trademark, ensuring that consumers aren't confused and its mark remains tarnish-free. Finally, the letter notes that the registrant may not be familiar with trademark law, but that's the registrant's fault and he should immediately cease all use of the Instagram trademark, disable any site at that address and not attempt to trade/sell the domain name to another party.

That bit of officiousness prompted this completely ridiculous (but in the more positive sense) response:

Hi

Wow that sounds like you guys have a cool videogame. 30 million members. Holy moly! I was confused at first but you must be referring to my online fantasy series Slütsof in Stâgram. It's a really cool project I'm working on, you should check it out. It's about a magical goat and a duck princess who journey across the enchanted land of Stagram, many adventures are had…

I'm sorry if it sounds close to your company name but I don't think you own the alphabet, that would be funny imagine? Have a good day.

Two pages from slutsofinstagram were attached (completely SFW):


Soon, more images were posted, some by the site owner but many more from others, fleshing out the Stâgram world.




As the site owner notes, he has yet to hear back from Instagram. Some questions have been raised, like what kind of legal rep only signs her first name on a C&D and who the hell actually posts funny content to r/Funny? There's also a lack of clarity on the chicken-and-egg problem. Did this redditor create the site with artwork in place simply to troll Instagram, or did he actually have a more unsavory destination in mind before Instagram stepped in?

Either way, the resulting silence (if legit) is growing rather loud. The redditor apparently posted this in early August, even though it was only in the past few days that any attention has been paid to it. Instagram's purported actions have pretty much ensured this site will remain filled with hand-drawn ducks and goats (and Stâgram maps), rather than the more titillating content unwary surfers (and "Edith") may be expecting. So, in a way, it's still a win for Instagram, which won't have its name associated with the word "sluts." On the other hand, the content swiftly filling up slutsofinstagram.com definitely makes it a bit harder to legally claim this redditor should have to abandon his registered domain.

Filed Under: cease and desist, fair use, memes, slutsof, slutsof in stagram, stagram, trademark
Companies: instagram

Citizen Organizing Small Get-Together 'Rocky Run' Sent C&D By MGM Because Of Course She Was

from the cut-me,-mick dept

It probably won't surprise any of you to learn that film studio MGM tends to be on the aggressive side when it comes to enforcing its intellectual property. Still, it sort of takes my breath away watching them shut down a DIY, non-commercial and charity-benefiting "Rocky" run in Philadelphia. It all started last year, when a Philly journalist took the time to map out the infamous training run performed by Rocky Balboa in the second film. In the film, more Philly citizens join Rocky's run as the scene progresses. The map of the run was then put together and published, leading one Philly citizen, Rebecca Schaefer, to start a friendly get-together run that would follow the same path. The 31 mile trek was joined by a little over a hundred people, none of whom paid any kind of money to join the run, but who did manage to collect running sneakers for a charity.

Before the run could be joined this year, however, MGM sent the C&D letter.

And now MGM has threatened Schaefer with a lawsuit, sending her a cease-and-desist letter over the Rocky 50K Fat Ass Run. “To be honest, I was shocked it hadn’t come sooner,” Schaefer, the run's organizer, says. She’s changing the name of the Rocky 50K for its second edition on December 6th, a run that's become much larger than she ever imagined. The soon-to-be-renamed Rocky 50K has no entry fees or actual sign-up list; Schaefer makes no money on the event.

The reason for the C&D this year? Well, MGM is licensing an official Rocky Run put together by a sports corporation that will be taking in money for the event. The end result is that a small, charitable, non-commercial little running group will be forced to give up the name of the event so that an MGM-backed company can come into Philly for the first time to make some money. Lovely. Fans of the original Rocky Run are reportedly unhappy, voicing their displeasure on the corporate-backed run's Facebook page. Those comments, it appears, are being summarily deleted.

After becoming aware of the Cerulean-run competing Rocky 5K/10K event, some Rocky 50K fans say they had posted complaints to the new Rocky Run’s Facebook page, but that they no longer appear there. The organizers at first responded with a form letter-like comment that explained their event was officially licensed (and, yes, an actual race with road closures and prizes and an entry fee). The Rocky Run's organizers did not not immediately respond to a request for comment.

Look, MGM isn't wrong legally, but surely the company could have worked something out with this tiny, little DIY running group so that it could keep raising charitable donations under their original name. I'm fairly certain that 100 folks running thirty miles isn't a threat to the corporate Rocky Run, so what exactly would the harm be?

Fortunately, Schaefer appears to be taking all of this in stride.

“I can’t be negative about this,” she says. “My mom was like, ‘How cool is it that you did something that got a cease-and-desist?’”

Super cool. Damn the man, save the Rocky Run.

Filed Under: cease and desist, rocky, rocky run
Companies: mgm

Verizon Sends Netflix A Cease & Desist, Saying It Can't Blame Verizon For Clogged Networks

from the really,-now? dept

So, yesterday, some of the tech blogosphere blew up over the fact that Netflix had started blaming Verizon for network congestion: Netflix claimed it had actually been testing this for a few weeks now, and others have seen it on AT&T networks as well. Verizon was, to put it mildly, not happy about all of this. It quickly told reporters that the whole thing was a "PR stunt" and pushed out an angry blog post, saying that it was all Netflix's fault for the way it routed traffic to Verizon's network. Notably, just about a month ago, Netflix had agreed to an interconnection deal, similar to the one that Netflix famously did with Comcast, but it's possible that the new ports aren't fully operational yet.

Either way, I was going to ignore this latest round of little stupid spats that have been going back and forth -- except that now it appears that Verizon has taken it up a level and actually issued a cease and desist to Netflix sayng it should no longer blame Verizon when the network is clogged. I'm not sure what actual legal basis Verizon thinks it has to do this, and wonder if Netflix will just cave in and stop with the messages. But, it certainly would create quite the interesting lawsuit if Verizon decided to go to court about this. Update: Netflix has indicated that it won't stop.

Either way, it's pretty clear that even once Netflix has signed an interconnection agreement with them, these ISP's are still not at all happy about the situation.

Update: Added an embed of the actual letter below.

Filed Under: arguments, broadband, cease and desist, interconnection, net neutrality, streaming, threats
Companies: comcast, netflix, verizon

Google Trademark Bullies Obviously Non-Commercial Parody Site

from the no-need-to-do-this dept

We've been disappointed in the past to see Google descend into the land of trademark bullies, and had hoped that the company had learned its lesson. Unfortunately, it appears that the company still will dip into trademark bullying when it really should know better. The latest came in response to some pranksters setting up a (quite amusing) parody site called Google-Nest.org, playing on the fact that Google recently purchased Nest, the makers of internet connected thermostats and smoke detectors. The site was clearly mocking Google's expansion into... well... everything, with fake product announcements for things like Google Trust, Google Hug and Google Bee (your personal drone). The whole thing was clearly parody, and while it was clearly making a statement about how integrated Google has become into many people's lives, you would have hoped that Google's trademark lawyers would have a sense of humor and let it go.

They did not.

If you go to the link above, you now see a message from Peng! Collective, who put the site together for the Republica event in Berlin, saying that they didn't want to get involved in a big legal battle. Of course, the internet never forgets, and there are plenty of archives of the original. The whole thing is incredibly questionable on Google's part. Not only is the work clearly parody, but it's non-commercial. And trademark only applies to commercial uses.

The EFF has stepped in and sent a letter to Google on behalf of Peng! Collective questioning why Google decided to be a trademark bully over this, and reminding Google (and us) of the neat practice that Linden Lab pioneered years ago -- a proceed-and-permit letter instead of a cease-desist-letter on trademark issues.

The site is a pure political commentary. Indeed, its launch has long since been recognized as such by a variety of news organizations. U.S. authorities consistently support the basic notion that trademark law does not reach, much less prohibit, this kind of speech regarding a matter of substantial public concern. Simply put, "The Lanham Act regulates only economic, not ideological or political, competition . . . Competition in the marketplace of ideas is precisely what the First Amendment is designed to protect." ...

First, use of the Google name and logo on the site is fully protected by the nominative fair use doctrine.... Indeed, courts have noted that nominative fair uses are particularly likely to be found in parodies....

Second, given the content of the site, and the ample publicity the spoof has generated, all of which recognized as satirical and parodical commentary, it is difficult to imagine that any Internet user would be confused.

Third, the site is sheltered by the First Amendment.... Again, there is nothing on the site that would lead consumers to purchase goods or services based on a mistaken affiliation.

Finally, my client's action is entirely noncommercial and, therefore, statutorily exempt from the Lanham Act.

There's even more in the letter, including the fact that since this all happened in Germany anyway, the Lanham Act (which governs trademark law in the US) doesn't even apply.

Either way it's disappointing to see Google go down this path. Yes, as trademark lawyers love to point out, unlike with other forms of intellectual property, there is more of a requirement that you actively protect your marks under trademark law, but (contrary to what some believe) this does not mean that you have to go after everyone using your mark, especially when it's clearly not infringing for all of the uses listed above.

As in nearly every case of trademark bullying, the end result just makes the bully look silly and legalistic, where they could have come out much more reasonable and accommodating. Hopefully, this time, Google learns its lesson on these kinds of things. Sure, the Google-Nest site was mocking Google, but big companies need to learn to not just have a sense of humor about these things, but to recognize that this is part of the public discussion and debate about their role in the world. Google could have jumped into that discussion or avoided it all together. But, it chose one of the worst options: to go with a threat.

Filed Under: cease and desist, germany, google nest, peng! collective, proceed and permit, trademark, trademark bullying
Companies: eff, google

Health And Human Services Apparently Unable To Recognize Satire; Sends Bogus Legal Threat

from the because-shut-up dept

Another day, another story of someone with skin way too thin not comprehending satire and dashing off an angry legal threat. In this case, it's worse than usual because the bogus legal threat is coming from the US government. Popehat has the full story of how some of the legal geniuses at the Department of Health and Human Services have sent a bogus cease-and-desist letter over a pair of obviously satirical posts on the site AddictionMyth.com. While we've long been skeptical of the medical profession's desire to label all sorts of things "addictions," that particular site takes it to extreme levels, arguing that there's nothing that's addictive, and all talk of addictions (including drug and alcohol addictions) are just a big scam "perpetrated by law enforcement, rehab groups and the entertainment industry." I think that's nuts, but they certainly have their right to say so.

They also have the right to post a satirical conversation with a so-called "addiction guru." As Ken at Popehat points out, there's no way to read this without realizing it's satire:

AM: According to your research, blackouts occur not just in middle age alcoholics, but in young college students who may not have built up much tolerance for alcohol. Their drinking often ended up in unprotected sex, vandalism, and fights, of which they had no memory until cued by a friend. What was their response to their memory? Regret? Horror? Delight? Glee? A little of each?

AW: I wasn’t the author of the research. But I would say a little of each, at least based on my own experience. I suspect they remembered more than they wanted to admit. Though one time I got really drunk at a party and my friend told me that I was talking to his sister in French, and I had absolutely no recollection of that. It was surprising to me as a brain scientist because alcohol has been shown to suppress activation of the inferior frontal region (Broca’s area also known as the ‘language center’). I probably shouldn’t have been able to talk at all, let alone French, given my BAC. But what was really weird was that I don’t even know French!

Following this, AddictionMyth posted a bogus mocking satirical cease-and-desist, which pretends to be angry about the satirical interview. This too, is obvious satire. I mean, the letter includes this line:

Do you realize how psychotically insane that sounds? In my field we have a term for it: CRAY-CRAY!

Either way, this bogus cease-and-desist appears to have stirred up the attention of a lawyer at the real US Department of Health and Human Services (HHS), which apparently has some extra time on its hands now that Healthcare.gov's website is kinda, sorta working. Lawyer Dale Berkley sent a cease-and-desist in which he argues both that (1) the interview is clearly not true and (2) that it might be defamatory. You can't really have both of those things be true.

We recently became aware of two items that you posted on your website directed to two employees of the National Institute on Alcohol Abuse and Alcoholism (“NIAAA”)--one which purports to be an interview with NIAAA Project Manager Dr. Aaron White, and the other a letter from NIAAA Director Dr. George Koob.

Of course Dr. White did not in fact participate in the interview and Dr. Koob did not write the letter attributed to him.

We are concerned that, especially with respect to the mock interview, the public could be deceived and misled into believing that Dr. White in fact contributed to the interview. Those items are defamatory, and expose you to potential liability.

We therefore request that you either remove the articles from your website, or provide a prominent disclaimer indicating that Dr. White and Dr. Koob did not participate in the interview or write the letter.

As noted above, by admitting it's obviously fake, Berkley undermines his own legal argument. Ken White summarizes it nicely:

When the target of satire complains that it is defamatory, the relevant question is whether the satire can reasonably be taken as a statement of fact about its subject. Dr. Berkley, by saying that "of course" the satirical articles do not reflect the actual words of the subjects, has just proclaimed that the satire he is complaining about cannot be taken as a statement of fact.

You paid taxes for that.

White goes into a more in-depth legal analysis of just how preposterously bogus the letter from HHS is, and questions if Berkley was even remotely aware of the law before sending the letter, or if any other lawyer at HHS bothered to look it over. In the meantime, we're wondering if HHS has any programs for helping with the tragically satire-impaired?

Filed Under: addiction, cease and desist, defamation, free speech, health and human services, hhs, satire, threats

The Greatest Response To A Cease And Desist Letter, Probably Written While Drunk

from the cc:-mr.-bucks dept

This year certainly had its share of ups and downs in terms of lawyerly antics, but in our minds, 2013 shall forever be known as the year of the snarky cease and desist response letter. Back in June, we broke the news of the now famous response to a cease and desist letter received from the Town of West Orange, New Jersey, which went viral worldwide thanks to the power of sarcasm. A few months later, we wrote about an equally entertaining response to a cease and desist letter received from the American Bankers Association, rife with Spice Girls lyrics and Valley girl lingo.

It’s been a while since we wrote about one of these treasures, so we figured we’d close the year out with a bang. We discovered yet another amazing response to a cease and desist letter, and this one may be the greatest of them all — if only because we think its author might have been drunk while writing it….

Jeff Britton, the owner of Exit 6 Pub and Brewery in Cotteville, Missouri, received a cease and desist letter from none other than Starbucks, specifically from Anessa Owen Kramer of Honigman Miller Schwartz and Cohn, over a beer named “Frappicino.” As the world knows, the lords of coffee sell a frozen drink (a coffee Slurpee?) by the name of “Frappuccino.” Yes, the names are similar, but to be confused enough to think you could order the nectar of mall-hopping teenage girls at a bar, you’d have to be pretty drunk.

Rather than cower in fear over the legal consequences threatened by America’s coffee monarch, Britton decided it would be in his best interests to write a response on his own, without the assistance of legal counsel, because he didn’t need no stinkin’ lawyer. Here’s what he posted on the Exit 6 Facebook page:

So quick little story. Last week I received a cease and desist letter from the attorneys at Starbucks. Apparently there was a beer on Untappd that someone named “Frappicino”. 3 people had checked into said beer. 3. Starbucks [didn't] like that. So I got a letter. They wanted me to remove the beer and promise never to use their names again. They also wanted my written response and guarantee. Here is their letter. And also my response.

Needless to say, Britton’s response is amazing — he even threw in some legalese, despite the fact that he’s not a lawyer (oh yeah, heretofore, baby). Here are some highlights from his letter (all errors included in the original). You’d have to be drunk to write something like this, right? Who cares, it’s freakin’ awesome:

Exit 6 has proudly sold at least 38 drinks in Cottleville MO and has a strong presence in St Charles county, a suburb 40 miles outside the St Louis metropolis. It has recently come to Exit 6 Pub and Brewerys attention that there were 3 check ins to the beer with a very similar name to the “F Word”. Unfortunately it was only similar to the F Word because we meant to call it the same thing. Lucky for us, we’re poor spelers.

I would like for both Ms Owen Kramer and Mr Bucks to rest assured we meant no deception, confusion, or mistaking in the naming of the beer F Word. We never thought that our beer drinking customers would have thought that the alcoholic beverage coming out of the tap would have actually been coffee from one of the many, many, many stores located a few blocks away. I guess that with there being a Starbucks on every corner of every block in every city that some people may think they could get a Starbucks at a local bar. So that was our mistake.

Mr. Bucks isn’t Ms. Owen Kramer’s co-counsel; no, this “poor speler” is addressing Mr. Star Bucks himself, as if he were an actual human being. We imagine Britton was at least six Frapps in at this point.

We haven’t even gotten to the best part yet. To show Mr. Bucks just how sorry he really was, Britton enclosed a check in the amount of Exit 6′s profits made from its “Frappicino” beer to be applied to Ms. Owen Kramer’s legal fees, which he admits were “probably … more than Exit 6 made last year.” Here it is:

Behold: the legal equivalent of a mic drop. Cheers to you, Jeff Britton! We raise a glass in your honor.

Filed Under: beer, cease and desist, coffee, frappicino, frappuccino, likelihood of confusion, trademark
Companies: exit 6 pub and brewery, starbucks

Apple Wants To Sell Fewer Products; Kills Off Website That Made Finding iPads And iPhones Easier

from the your-periodic-friendly-reminder-that-Apple-will-tell-YOU-what-you-like dept

Apple is still one of the most desirable brands in the world, no doubt largely due to the company's fierce protection of that brand. In addition to periodic bouts of trademark bullying, it has also displayed an alarming antipathy towards developers who stray over the boundaries of what it considers to be acceptable.

Its tight control over the content of apps offered on its platform is notorious. Some see this as nothing more than excessively good quality control. Others see it as something far more arbitrary -- apps removed simply because someone at Apple didn't like them.

This attitude extends far beyond the boundaries of the iTunes app store, as one developer found out.

A website that helped users locate Apple stores with iPhones and iPads available for sale has shut down its service after being hit with a notice alleging that it violated Apple.com's terms of service.

Apple-Tracker.com and iphone-check.herokuapp.com examined publicly available inventory information from Apple.com and tried to make it easier for people to navigate. The service gained some attention, with articles in the Los Angeles Times and other news sites.

The site now shows a message from developer Mordy Tikotzky saying, "I've decided to turn off the site. I'm not doing this because I want to, but rather because I received a DMCA takedown notice from Apple. I'm not really interested in picking a fight with apple so..... I guess it time to just say good bye." On Twitter, Tikotzky wrote, "It might be legal but I don't have the resources to fight with Apple."

First, just for clarification, what Tikotzky received was not a DMCA notice. It's simply a "takedown notice" issued by Apple's legal team asking him to take down his site.

But why would Apple take his site down? Its sole purpose was to help potential customers find the exact phone or tablet they were looking for by aggregating item availability from all the stores in a certain zip code. Yes, Apple's own site contains a search function but it doesn't do what Tikotzky's site did. Apple will allow you to search for one item (16Gb iPad Air) and list stores where it's available. Tikotzky's apple-tracker did this better. It provided a table of all available models and lit up with an easy-to-see green if it was available at a certain store.


To achieve this using Apple's site, a person would have to run multiple searches and keep track of which one had what models. Titkotzky's automated this -- which is likely what Apple determined to be a violation of its TOS. Here's the relevant part of the TOS as quoted in the takedown letter.

Your Use of the Site. You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. Apple reserves the right to bar any such activity.

Apple doesn't want you to do much with its site. And this very restrictive wording is what turns handy tools into "violations" and "circumventing the navigational structure" into an unacceptable situation, according to Apple. (Not only that, but if so inclined, someone could probably push for charges under the CFAA, which views this sort of "circumvention" as a crime.)

All this does is maintain the status quo. Do not screw with Apple's stuff. If it wanted a handy aggregation tool, it presumably would have built it itself and covered it in tastefully rounded corners and pleasing color gradients. Tikotzky's tracker may have increased sales, but it ultimately doesn't matter, not when there's turf to protect.

People are constantly searching for ways to improve the services they use, but they're running head on into companies like Apple and Craigslist who take the stance that the customer will get what's provided by the company, instead of what they actually want. It's unfortunate, but for some, protecting the brand is more important than serving those purchasing their products.

Filed Under: cease and desist, legal threats, takedowns
Companies: apple