The hotel's papers do address the details of the complaint and represent that the hotel did try to reach out to the reviewer, and indeed the hotel claims that it explained everything to the reviewer about what the hotel staff had done following receipt of the complaint, and indeed what the hotel had been doing more generally about bed bugs. The hotel asserts as well that it got an email from the reviewer admitting that the reviewer couldn't be sure that it was the hotel that caused the reviewer's bed bug problem. The hotel asserts that the TripAdvisor review was posted after all of this exchange and that not only was the review false, but the assertion that the hotel acted as if they don't care is false as well, and that the person posting the review jolly well knew that this all was false.
Of course, this is what the hotel says. The complaint cites an exhibit showing some of this communication, but I don't have the exhibit. If the defamation case is litigated, a judge or a jury may eventually have to decide who is telling the truth.
We at Public Citizen defend online speakers against bogus claims, and our clients do use the Streisand effect as part of their self-defense, but I would not say that a business that has been defamed should never bring a defamation lawsuit. Rather, I would say that a business that is being falsely and unfairly slammed should think long and hard about what impact the speech is really having on their business, consider whether counter-speech can be effective, and decide whether the impact is so devastating that litigation is worth both the cost and the risk. Here, the hotel recites that two customers said they were not coming because of the review, and that it hears daily from potential customers about the review. Is that enough to make this lawsuit worth their while? I am not so sure.
By the same token, people who get sued for defamation need to think long and hard whether to defend the cases, even if they can afford counsel, or whether to bite the bullet and admit they were wrong. Folks who use the Streisand effect can end up paying for that later if they are found liable for defamation.
In the end, IMHO, as long as our society puts value on reputation and affords a cause of action for defamation, then, in my view, we need at least the possibility of such litigation to discourage deliberately false statements that can in some circumstances have a serious impact on reputation. And I think it ill behooves those of us who care about free speech online to blow off defamation plaintiffs with the notion that they should never file such lawsuits.
Mike has said no such thing, but I read some of the commenters as saying that.
The Consumerist story just reports the TSA version that the woman "became belligerent and verbally abusive." These are of course just conclusory characterizations; we don't exactly know what she actually said and did, and we don't know exactly what the TSA claim she actually said and did.
The underlying story from the Tennessean has this:
"[name omitted] yelled and swore at Transportation Security Administration agents Saturday afternoon at Nashville International Airport, saying she did not want her daughter to be “touched inappropriately or have her “crotch grabbed,” a police report states.
After the woman refused to calm down, airport police said, she was charged with disorderly conduct and taken to jail.
The actual words reported do not include any swearing, and so not explain what she did from which she was supposed to "calm down." "yelled" comes closest to being factual, but some people fell they are being yelled at whenever they are reprimanded. Again, very conclusory. So, in the circumstances, it is awfully hard to form a judgment about whether the arrest was justified.
And chances are, we will never find out, because chances are the charges will be dropped
And that is why is is better not to take corporate money at all
Public Citizen has not taken a position on this merger, but once thing we do here is follow a very strict rule that we simply do not take contributions from companies (or, indeed, from the government, or from unions). So, for example, although we often have legal positions that Google likes (such as on keyword advertising), when we want to take a position adverse to Google we don't have to think about it for a moment. And when we do take a position that Google likes, nobody can suggest that it is because we are bought and paid for by Google (just to take one example of a company that spreads its money around widely in the non-profit sector).
By chance do you know what may occur with the names that are dismissed?
Jay is right in assuming that the dismissals are without prejudice. The Dunlap firm has asserted that they are going to file in the federal courts in the states where the alleged infringers are located. Whether they are actually doing that I don't know.
For those defendants who have realistic defenses to plaintiff's claim, this means that, at least, they can more easily defend themselves. What we see from time to time is that they can identify a local lawyer with whom they have some neighborhood or family connection, who sympathizes with their plight or is outraged by what the plaintiff is doing, and is willing to help them with a free defense.
Firing someone for violating HIPAA in no way raises a first amendment issue.
But was there a HIPAA violation? Hypothesize a statement that does not specifically identify a patient, or provide information from which the patient could be indirectly identified. Does that violate HIPAA?
Of course, we don't know enough about the facts of this case to know whether they fit this hypothetical
The decision doesn't tell us enough to judge either constitutional; argument
With respect, the fact that Yoder was expelled as a student rather than being put in jail for her speech does not bar her from seeking relief for a violation of her First Amendment rights. Any action by a government body is potentially subject to First Amendment scrutiny, and that includes regulation of student speech. The Supreme Court said that in the course of confirming the "imminent and likely harm" test for rules barring incitement of illegal action, in Healy v. James, where a state college in Connecticut refused to allow a local SDS chapter because the university president did not the politics of national SDS. The Supreme Court said that was impermissible.
Mike, I think, would be sympathetic to some of those claims. For example, what about a high school that suspended a student for blogging about teachers or the principal? What about the post office firing an employee for supporting the wrong presidential candidate? The First Amendment applies to those cases, no?
So the First Amendment is implicated, and the question is, what is there on the other side? Unfortunately, the appellate decision, available at http://www.ca6.uscourts.gov/opinions.pdf/11a0221n-06.pdf, doesn't recite any of the specifics. So it is hard to speculate about whether the defendant has sound arguments. I have seen cases where a medical facility defends action against an employee who criticized patient care -- typical whistleblower activity -- by wrapping itself in the privacy of patients when, in fact, no patient privacy was violated.
A newspaper report about the district court decision, http://chronicle.com/article/Judge-Orders-U-of-Louisville/47925/, suggests that the problem here MAY have been that Yoder expressed views about patients generally that the university did not like -- for example, views about abortion -- and not really anything that could be fairly characterized as a HIPAA violation. Of course, this is just what was attached to her complaint. It is hard to form a judgment based on that alone.
Jonathan's pioneering suit against the New York Times may not have changed the business model but it was an effective cri de coeur against publishers' past arrogation of digital publishing rights -- and he was plainly right on the merits. His years of leadership of the National Writers Union advanced the cause of freelancers. (And I remember the years when he participated actively on the Advisory Board of the Association for Union Democracy, http://www.uniondemocracy.org).
But it is hard to see how he can win this case. If he wins, is his next class action going to be against YouTube for misappropriating the value created by all those video makers?
On one minor point I disagree with Mike's argument. This case is not unrelated to copyright. But it is the relationship that is the problem -- many of Tasini's claims seem to me to be preempted by copyright law
Not backpedaling, in my view, and not for the reason suggested
With respect, Judge Howell's new order is NOT a change in course from previous ones. Arguing as amici curiae, Public Citizen, the EFF and the ACLU argued that the data from IP addresses was clear enough that the anonymous defendants were not in or near DC that the plaintiff should have to sue elsewhere and get subpoenas from those courts. Judge Howell rejected that argument, saying that the subpoena stage was to early to consider personal jurisdiction.
All she has done here is decide that, once the plaintiff gets identifying information, the plaintiff must eventually dismiss those defendants against whom plaintiff does not intend to proceed in the DDC. That is the same approach as adopted by Judge Collyer here in DDC, an approach Judge Howell followed in the opinion she issued rejecting the approach for which we argued as amici curiae. We argued, in fact, that if she allowed personal jurisdiction she should, at least, order dismissal immediately upon getting the actual ID, instead of letting the plaintiff keep defendants in the case for months at a time in the hope of shaking money out of more Does by the implicit threat of making them defend in DC. Judge Howell has, regrettably, followed Judge Collyer in giving the plaintiffs more time to extort settlement payments through the implicit threat of having to defend in a geographically inconvient forum.
I note here that Mike does not embrace the contention that the blogs made a difference, but only notes that some people are claiming that. Myself, I think it highly unlikely that Judge Howell did anything differently based on the fact that some bloggers complained about her previous time in legal practice helping the RIAA (or, indeed, the fact that she was sympathetic with the concerns of copyright holders when she worked for Senator Leahy). Suggestions from some bloggers that their own condemnation played a role in this order strike me as a reflection of inflated self-importance.
Those connections are not anything that would have required her to recuse herself, and not anything that would cause any federal judge to be embarrassed. Judges come to the bench with worldviews formed by their time as lawyers before they became judges. Neither criminal defense lawyers nor prosecutors who become judges have to recuse themselves from criminal prosecutions generally just because their attitudes may well be affected by their legal experiences as practitioners. They just have to recuse from specific cases in which they or their law offices were involved.
The same is true for judges who, as lawyers, were in private practice and who presented the interests of companies or trade groups. Some judges do choose, for a discrete period of time, to stay off cases in which their old law firms or former clients are involved. But the RIAA is not a party to these cases.
Although I am confident, based on our disagreement when the blogger guidelines came out http://pubcit.typepad.com/clpblog/2009/10/do-the-ftcs-new-advertising-guidelines-run-afoul-of-sectio n-230.html, that Eric Goldman would disagree with me, but I don't see this as a section 230 issue. The company is being held liable (or at least faces the potential for liability) based on the relationship between the company and the affiliates, and not based on what the affiliates place online using the company's interactive computer system. You can debate whether or not it is a good idea to hold the company liable for the affiliates and on what standard. That is the subject of much of the commentary here. But that does not go to section 230.
Anti-SLAPP doesn't help when the statements are libelous, or at least "questionable".
There is a great difference between "Mr Snyder was caught..." and "Mr Snyder's company was caught..."
******
Right, this is presumably the basis on which Snyder is claiming libel.
But another point I make in my blog post is that there is more than a little irony in Snyder's complaining on this basis, in light of his demand letter to Atalaya, the hedge fund that owns the company and that owns the City Paper as a result of bankruptcy proceeding, and which, in turn, is his excuse for filing the lawsuit in New York. Snyder treats Atalaya as being liable for tortious conduct by an entity that is two layers of ownership down the line. And yet more irony -- "Snyder's demand letter" was actually from the General Counsel of the Washington Deadskins.
So if Snyder doesn't draw fine distinctions between the corporate and the personal, it is not at all clear why the reporter should be held liable on an actual malice standard for failure to do so.
Even people we don't like have First Amendment rights
Bush is a private citizen, albeit a prominent one, and he has every right to express his views about Assange and about whether he should be prosecuted. This is just Dershowitz trying to get attention for himself.
Under Rule 41(a)(1)(A)(i), when there has not yet been either an answer or a motion for a summary judgment, the plaintiff may dismiss the case by notice, without any further action by the judge. That is why Stone recited the absence of either in the first paragraph of his dismissal
"Who knows how much one guy can do against a bunch of (quite powerful) Senators,"
At this time of year, with a crammed up calendar and much to accomplish, the Senate leadership depends on its ability to move without objection. If Senator Wyden consistently objects to anything that moves this bill forward, he makes it harder for the est of the agenda to be accomplished, so the leadership is likely to drop the bill for now, unless they really decide they want to invest the resources to get THIS done instead of, say, dealing with the expiration of the Bush tax cuts or the START treat or don't ask don't tell.
Word that I get from the ABA IP Section is that the Chamber and the IP lobby will be pressing hard to get a vote. Stay tuned....
The anonymity at issue here is a little different from the anonymity at issue in cases where suit is brought against an anonymous speaker. There, nobody knows the name of the anonymous party. In this situation, though, the parties and the court know the names of the anonymous parties, but the names are sealed. There is a small category of cases where plaintiffs are allowed to proceed without being identified in the public records of the case because the suit relates to something very embarrassing.
The best known categories of such cases are the abortion rights cases, where it could be publicly humiliating for the plaintiff to admit that she is seeking an abortion (for example, Roe v. Wade) and cases involving minors.
Earlier this year, the case Doe v. Reed was a constitutional challenge to the disclosure of the names of petition signers; the case involved the right to stay anonymous and hence it would have surrendered that right to require the signers to be identified by the very act of suing. Another recent example of such a case was when two students who had been abused on AutoAdmit sued to identify the anonymous speakers who had publicly humiliated them. The trial judge allowed the plaintiffs to remain anonymous but ordered the anonymous defendants identified. By contrast, in one of the earlier cases involving a subpoena to identify anonymous defendants, the Virginia Supreme Court held that an Indiana company could not pursue a defamation claim (and a subpoena to identify the anonymous defendant) against anonymous speakers without revealing its own name.
These cases all turn on how strong the interest in anonymity is given the nature of the litigation, considered against the general presumption that judicial records should be open to public inspection.
Here the plaintiffs are now adults but were minors at the time of the events alleged in the lawsuit. That they are now adults does not disqualify them -- the cases brought by persons who are now adults, alleging abuse by their priests when they were minors, have usually proceeded with the plaintiffs identified publicly only as Doe.
A somewhat different reading of the opinion -- and my take
The judge actually gives two different reasons for rejecting the hot news claim.
The first is that the Fourth Circuit (which includes Maryland) has never approved the proposition that the hot news misappropriation doctrine survives the addition of a preemption provision to the US Code, and that a different federal district judge in Maryland has squarely rejected the Second Circuit’s ruling in NBA v. Motorola that some aspects of hot news do survive preemption (pages 13-15 of the opinion, discussing Lowry’s Reports, Inc. v. Legg Mason, Inc. , 271 F. Supp. 2d 737, 754 (D. Md. 2003), and rejecting the plaintiffs’ arguments that the ruling is factually distinguishable).
Then the judge said, “even if the court were to apply the NBA test,” plaintiffs’ claim would still fail because, at best, NBA’s formulation only extends to factual information and analysts’ recommendations are opinions, not facts.
In suggesting that this distinction is significant because opinions reflect creative judgment (and hencde originality) while facts do not, the judge went astray because the non-copyrightability of facts is not based on the “fact/eexpression” dichotomy but on the “idea/expression” dichotomy. Although opinions are conceptually distinct from facts – in fact, their expression receives heightened First Amendment protection, as in the rule in libel cases that there is no such thing as a false idea — that does not mean that opinions are themselves copyrightable. Original expression that contains opinions is copyrightable, just as original expression that contains facts is copyightable. But neither the facts themselves, nor the opinions themselves, are copyrightable. So, a later report that informs readers what opinion so-and-so has expressed does not infringe the copyright owned by the creator of the first publication that contained the opinion.
On the post: Is Filing A Defamation Lawsuit Really The Best Way To Respond To A Potentially False Hotel Review?
Re: The Review
Of course, this is what the hotel says. The complaint cites an exhibit showing some of this communication, but I don't have the exhibit. If the defamation case is litigated, a judge or a jury may eventually have to decide who is telling the truth.
We at Public Citizen defend online speakers against bogus claims, and our clients do use the Streisand effect as part of their self-defense, but I would not say that a business that has been defamed should never bring a defamation lawsuit. Rather, I would say that a business that is being falsely and unfairly slammed should think long and hard about what impact the speech is really having on their business, consider whether counter-speech can be effective, and decide whether the impact is so devastating that litigation is worth both the cost and the risk. Here, the hotel recites that two customers said they were not coming because of the review, and that it hears daily from potential customers about the review. Is that enough to make this lawsuit worth their while? I am not so sure.
By the same token, people who get sued for defamation need to think long and hard whether to defend the cases, even if they can afford counsel, or whether to bite the bullet and admit they were wrong. Folks who use the Streisand effect can end up paying for that later if they are found liable for defamation.
In the end, IMHO, as long as our society puts value on reputation and affords a cause of action for defamation, then, in my view, we need at least the possibility of such litigation to discourage deliberately false statements that can in some circumstances have a serious impact on reputation. And I think it ill behooves those of us who care about free speech online to blow off defamation plaintiffs with the notion that they should never file such lawsuits.
Mike has said no such thing, but I read some of the commenters as saying that.
On the post: Woman Arrested For Not Letting TSA Grope Her Daughter
The fact is, we just don't know what happened
The underlying story from the Tennessean has this:
"[name omitted] yelled and swore at Transportation Security Administration agents Saturday afternoon at Nashville International Airport, saying she did not want her daughter to be “touched inappropriately or have her “crotch grabbed,” a police report states.
After the woman refused to calm down, airport police said, she was charged with disorderly conduct and taken to jail.
http://www.tennessean.com/article/20110713/NEWS01/307130115/Police-charge-mother-Nashville-airpo rt-altercation?odyssey=tab|topnews|text|FRONTPAGE
The actual words reported do not include any swearing, and so not explain what she did from which she was supposed to "calm down." "yelled" comes closest to being factual, but some people fell they are being yelled at whenever they are reprimanded. Again, very conclusory. So, in the circumstances, it is awfully hard to form a judgment about whether the arrest was justified.
And chances are, we will never find out, because chances are the charges will be dropped
On the post: Surprise: NY Times Doesn't Think Osama Bin Laden's Death Warrants Taking Down The Paywall
9/11 type story?
But with respect I am not so sure about the suggestion that the raid on bin Laden's compound is "a '9/11-like' story"
On the post: AT&T Wheel Of Lobbying Astroturf Fortune Lands On 'Latinos'
And that is why is is better not to take corporate money at all
On the post: Judge Backpedals On Allowing Mass Infringement Lawsuits After Press Calls Attention To Her RIAA Lobbying Past
By chance do you know what may occur with the names that are dismissed?
For those defendants who have realistic defenses to plaintiff's claim, this means that, at least, they can more easily defend themselves. What we see from time to time is that they can identify a local lawyer with whom they have some neighborhood or family connection, who sympathizes with their plight or is outraged by what the plaintiff is doing, and is willing to help them with a free defense.
On the post: Is It A First Amendment Violation To Kick A Student Out Of Nursing School For Blogging About A Patient?
Firing someone for violating HIPAA in no way raises a first amendment issue.
But was there a HIPAA violation? Hypothesize a statement that does not specifically identify a patient, or provide information from which the patient could be indirectly identified. Does that violate HIPAA?
Of course, we don't know enough about the facts of this case to know whether they fit this hypothetical
On the post: Is It A First Amendment Violation To Kick A Student Out Of Nursing School For Blogging About A Patient?
The decision doesn't tell us enough to judge either constitutional; argument
Mike, I think, would be sympathetic to some of those claims. For example, what about a high school that suspended a student for blogging about teachers or the principal? What about the post office firing an employee for supporting the wrong presidential candidate? The First Amendment applies to those cases, no?
So the First Amendment is implicated, and the question is, what is there on the other side? Unfortunately, the appellate decision, available at http://www.ca6.uscourts.gov/opinions.pdf/11a0221n-06.pdf, doesn't recite any of the specifics. So it is hard to speculate about whether the defendant has sound arguments. I have seen cases where a medical facility defends action against an employee who criticized patient care -- typical whistleblower activity -- by wrapping itself in the privacy of patients when, in fact, no patient privacy was violated.
A newspaper report about the district court decision, http://chronicle.com/article/Judge-Orders-U-of-Louisville/47925/, suggests that the problem here MAY have been that Yoder expressed views about patients generally that the university did not like -- for example, views about abortion -- and not really anything that could be fairly characterized as a HIPAA violation. Of course, this is just what was attached to her complaint. It is hard to form a judgment based on that alone.
On the post: Dumbest Lawsuit Ever? HuffPo Sued By Bloggers Who Agreed To Work For Free... But Now Claim They Were Slaves
A sad coda to Tasini v New York Times
But it is hard to see how he can win this case. If he wins, is his next class action going to be against YouTube for misappropriating the value created by all those video makers?
On one minor point I disagree with Mike's argument. This case is not unrelated to copyright. But it is the relationship that is the problem -- many of Tasini's claims seem to me to be preempted by copyright law
On the post: Judge Backpedals On Allowing Mass Infringement Lawsuits After Press Calls Attention To Her RIAA Lobbying Past
Not backpedaling, in my view, and not for the reason suggested
All she has done here is decide that, once the plaintiff gets identifying information, the plaintiff must eventually dismiss those defendants against whom plaintiff does not intend to proceed in the DDC. That is the same approach as adopted by Judge Collyer here in DDC, an approach Judge Howell followed in the opinion she issued rejecting the approach for which we argued as amici curiae. We argued, in fact, that if she allowed personal jurisdiction she should, at least, order dismissal immediately upon getting the actual ID, instead of letting the plaintiff keep defendants in the case for months at a time in the hope of shaking money out of more Does by the implicit threat of making them defend in DC. Judge Howell has, regrettably, followed Judge Collyer in giving the plaintiffs more time to extort settlement payments through the implicit threat of having to defend in a geographically inconvient forum.
I note here that Mike does not embrace the contention that the blogs made a difference, but only notes that some people are claiming that. Myself, I think it highly unlikely that Judge Howell did anything differently based on the fact that some bloggers complained about her previous time in legal practice helping the RIAA (or, indeed, the fact that she was sympathetic with the concerns of copyright holders when she worked for Senator Leahy). Suggestions from some bloggers that their own condemnation played a role in this order strike me as a reflection of inflated self-importance.
Those connections are not anything that would have required her to recuse herself, and not anything that would cause any federal judge to be embarrassed. Judges come to the bench with worldviews formed by their time as lawyers before they became judges. Neither criminal defense lawyers nor prosecutors who become judges have to recuse themselves from criminal prosecutions generally just because their attitudes may well be affected by their legal experiences as practitioners. They just have to recuse from specific cases in which they or their law offices were involved.
The same is true for judges who, as lawyers, were in private practice and who presented the interests of companies or trade groups. Some judges do choose, for a discrete period of time, to stay off cases in which their old law firms or former clients are involved. But the RIAA is not a party to these cases.
On the post: Should A Company Be Liable For What Its Affiliates Do?
Not a section 230 issue
On the post: How Dan Snyder's 'Libel' Suit Against Unflattering Article Demonstrates Need For Federal Anti-SLAPP Law
Re Anon Coward Number 3
There is a great difference between "Mr Snyder was caught..." and "Mr Snyder's company was caught..."
******
Right, this is presumably the basis on which Snyder is claiming libel.
But another point I make in my blog post is that there is more than a little irony in Snyder's complaining on this basis, in light of his demand letter to Atalaya, the hedge fund that owns the company and that owns the City Paper as a result of bankruptcy proceeding, and which, in turn, is his excuse for filing the lawsuit in New York. Snyder treats Atalaya as being liable for tortious conduct by an entity that is two layers of ownership down the line. And yet more irony -- "Snyder's demand letter" was actually from the General Counsel of the Washington Deadskins.
So if Snyder doesn't draw fine distinctions between the corporate and the personal, it is not at all clear why the reporter should be held liable on an actual malice standard for failure to do so.
On the post: Does President Bush Speaking Out Against Julian Assange Prejudice The Case Against Him?
Even people we don't like have First Amendment rights
On the post: ProspectMatch Threatens Forum That Hosts Negative Reviews; Says It Will Bury Forum Owner In Legal Fees
There won't be a lawsuit
On the post: Mass Copyright Lawsuit Lawyer Petulantly Drops Lawsuit After Called Out For Apparent Ethics Violations
Lawyers don't dismiss cases, judges dismiss cases
Under Rule 41(a)(1)(A)(i), when there has not yet been either an answer or a motion for a summary judgment, the plaintiff may dismiss the case by notice, without any further action by the judge. That is why Stone recited the absence of either in the first paragraph of his dismissal
On the post: Mass Copyright Lawsuit Lawyer Petulantly Drops Lawsuit After Called Out For Apparent Ethics Violations
Wrong Stone - redux
http://www.wolfe-stone.com/
On the post: Why Are Rosetta Stone & Google Hiding Details In Court Case... And Why Is The Judge Allowing It?
Thanks for catching my typo
On the post: Senator Wyden Says He'll Block COICA Censorship Bill
What can one Senator do
At this time of year, with a crammed up calendar and much to accomplish, the Senate leadership depends on its ability to move without objection. If Senator Wyden consistently objects to anything that moves this bill forward, he makes it harder for the est of the agenda to be accomplished, so the leadership is likely to drop the bill for now, unless they really decide they want to invest the resources to get THIS done instead of, say, dealing with the expiration of the Bush tax cuts or the START treat or don't ask don't tell.
Word that I get from the ABA IP Section is that the Chamber and the IP lobby will be pressing hard to get a vote. Stay tuned....
On the post: Free Speech vs. Anonymity Gone Wild: Women Suing Joe Francis Fight To Remain Anonymous
Anonymity v. Anonymity
The best known categories of such cases are the abortion rights cases, where it could be publicly humiliating for the plaintiff to admit that she is seeking an abortion (for example, Roe v. Wade) and cases involving minors.
Earlier this year, the case Doe v. Reed was a constitutional challenge to the disclosure of the names of petition signers; the case involved the right to stay anonymous and hence it would have surrendered that right to require the signers to be identified by the very act of suing. Another recent example of such a case was when two students who had been abused on AutoAdmit sued to identify the anonymous speakers who had publicly humiliated them. The trial judge allowed the plaintiffs to remain anonymous but ordered the anonymous defendants identified. By contrast, in one of the earlier cases involving a subpoena to identify anonymous defendants, the Virginia Supreme Court held that an Indiana company could not pursue a defamation claim (and a subpoena to identify the anonymous defendant) against anonymous speakers without revealing its own name.
These cases all turn on how strong the interest in anonymity is given the nature of the litigation, considered against the general presumption that judicial records should be open to public inspection.
Here the plaintiffs are now adults but were minors at the time of the events alleged in the lawsuit. That they are now adults does not disqualify them -- the cases brought by persons who are now adults, alleging abuse by their priests when they were minors, have usually proceeded with the plaintiffs identified publicly only as Doe.
On the post: If Financial Ratings Are Opinions, Would Reporting On Those Opinions Be Factual?
A somewhat different reading of the opinion -- and my take
The first is that the Fourth Circuit (which includes Maryland) has never approved the proposition that the hot news misappropriation doctrine survives the addition of a preemption provision to the US Code, and that a different federal district judge in Maryland has squarely rejected the Second Circuit’s ruling in NBA v. Motorola that some aspects of hot news do survive preemption (pages 13-15 of the opinion, discussing Lowry’s Reports, Inc. v. Legg Mason, Inc. , 271 F. Supp. 2d 737, 754 (D. Md. 2003), and rejecting the plaintiffs’ arguments that the ruling is factually distinguishable).
Then the judge said, “even if the court were to apply the NBA test,” plaintiffs’ claim would still fail because, at best, NBA’s formulation only extends to factual information and analysts’ recommendations are opinions, not facts.
In suggesting that this distinction is significant because opinions reflect creative judgment (and hencde originality) while facts do not, the judge went astray because the non-copyrightability of facts is not based on the “fact/eexpression” dichotomy but on the “idea/expression” dichotomy. Although opinions are conceptually distinct from facts – in fact, their expression receives heightened First Amendment protection, as in the rule in libel cases that there is no such thing as a false idea — that does not mean that opinions are themselves copyrightable. Original expression that contains opinions is copyrightable, just as original expression that contains facts is copyightable. But neither the facts themselves, nor the opinions themselves, are copyrightable. So, a later report that informs readers what opinion so-and-so has expressed does not infringe the copyright owned by the creator of the first publication that contained the opinion.
On the post: How Long Until Joan Lunden Disassociates Herself From World Progress Report?
Irony
At least they have a sense of humor.....
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