What an Idot. I'm guessing the firm called it what it was, and in the end the courts don't usually care what the claim is called as long as it's actionable. Betting it'll stick somehows.
do what we did (back in the 90s when I was still playing out): Start your own label. Since each member of most bands was usually in other bands too, the "label" could have multiple bands at the get-go. And then we had even more control over it, including ... everything.
We're getting rapidly closer to that "magic machine" too, if you've seen the insanely detailed stuff they are making on 3d printers - moving part and all.
Thanks, I was hoping for a comment like this to cover some points:
1) CDs solve all format-shifting problems. Rip it; upload it; box it. Call it backup media with art. Also, it's the only way for me to remember what music I bought, and what I "borrowed."
2) As noted ad nauseum here, most people are willing to pay for what they like. Now that I can afford to, I happily pay -- hopefully directly to the creator.
3) The Camper tapes I referred to were recorded off my cousin's CDs 20 years ago. I.e., infringement. So buying them was a way to make up for past transgressions, back when I couldn't afford to pay. In fact, almost all albums I buy on CD now are for purposes of format control and/or restitution.
My current format conundrums are, a) My wife likes her books hard-copy, and I likes 'em digital; and it takes a while for the kids to torrent historical non-fiction, etc., if at all. And no, I shouldn't have to pay again for the second no-overhead format. And, b) I prefer comics scanned off the original, and moveable (neo-retro?). And they look like crap on major platforms (Dark Horse excepted). So, Frank Miller, if you see this, I've got $20 for you for Dark Knight Returns, because giving $10 to Amazon for a format I will never read does not fit into my philosophical rubric.
Even with the weakness of the claims, it was a pretty standard C&D/Demand letter ... in 1999, to, e.g., a widget manufacturer who had posted actual defamatory claims against a competitor, and wasn't likely to post it online.
Gotta say I love the series, foibles and silliness and all. But then I'm a consumate Doctor Who fan, so maybe I just have a thing for spastic, obnoxious, hateful Brits who are smarter than everyone else and know it...
If you're going to C&D a blogger or outspoken online presence, write it for public publication. Period. And advise your clients why -- and how it may affect them.
When you assume your letter will be published, it forces you to think about presentation, tone, and gods forbid, the merits of your position. It's one of those nasty side-effects of the Internet Age, but hey, adapt or ... well you've seen what happens otherwise.
See, as an attorney, your job is to resolve problems; lawsuits are what you do only when the problems can't otherwise be resolved. And when you keep that in mind, along with the very real chance your efforts will go public, you'll find maybe it's not a great idea to send a C&D asking for $20k for protected (even if obnoxious) speech, for claims based on a year-old blog post that is no longer accurate, for a client who itself doesn't have the greatest online rep. And then you advise your client accordingly.
Oh, and remember, the true, existential purpose of lawyers is to act as a buffer between two parties who can't talk reasonably. It is not to insert yourself personally into the fray.
Courts don't like it when a party takes action specifically to create standing... (Cue CAN-SPAM class-action plaintiffs who, despite their efforts, were not able to convince the court they were an ISP for standing purposes.)
In addition to copyright preemption, the case seems to forget/ignore a simple legal precept that it seems all lawyers forget the day they graduate from law school:
Negligence (duty, breach, causation, damages), generally only applies to "personal injury" and "property damage." Even the seminal case referred to by Randazza in his TorrentFreak letter was about a ship's cargo being lost due to lack of radio communication (property damage).
Again, copyright infringement is not stealing; no property was damaged or lost. Copyright preemption aside, there would otherwise be no viable negligence claim.
And another HUGE problem. His complaint names the NWF and Am. Cancer Society in the pleading header, but does not direct a single cause of action at those organizations.
Sum: It's a frantic mess. Demurrer for failure to state of cause of action in the works...
Complaint on Carreon's site quotes the fundraising statute:
Cal. Govt. Code § 12599(a) defines commercial fundraisers:
"Commercial fundraiser for charitable purposes" means any
individual, corporation, unincorporated association, or other legal entity who for compensation does any of the following:
(1) Solicits funds, assets, or property in this state for charitable
purposes.
(2) As a result of a solicitation of funds, assets, or property in this
state for charitable purposes, receives or controls the funds, assets,
or property solicited for charitable purposes.
(3) Employs, procures, or engages any compensated person to
solicit, receive, or control funds, assets, or property for charitable purposes.”
{Emphasis Added} on key words: "for compensation"
Haven't read the case law, but the statute's plain language seems to indicate that Inman's charity (for which he is apparently not taking a cut) would need to be registered only if it was "for compensation" i.e., commercial purpose. Meaning, like the Trademark claim, we have no commercial speech, or commercial use. I.e., no violation of the statute (again, on plain language - no telling what the case law has said, but plain language is supposed to mean "don't try to interpret this otherwise, Courts").
On the post: If You're Typosquatting Domain Names To Get Misaddressed Emails, Maybe Don't Target A 'Brand Protection' Law Firm
On the post: Want To Be A 'Signed' Musician? Any And All Records Will Take You
Re: Re: Or...
On the post: Want To Be A 'Signed' Musician? Any And All Records Will Take You
Or...
On the post: Debate Club: Should Police Need A Warrant To Get Your Location From Your Mobile Phone Provider?
Re:
On the post: GMacGuffin's Favorite Techdirt Posts Of The Week
Re: Re: Re:
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Now that made me laugh, when I came back ... although it was really only about 20 minutes.
On the post: GMacGuffin's Favorite Techdirt Posts Of The Week
Re: Re: Re:
On the post: GMacGuffin's Favorite Techdirt Posts Of The Week
Re:
Thanks, I was hoping for a comment like this to cover some points:
1) CDs solve all format-shifting problems. Rip it; upload it; box it. Call it backup media with art. Also, it's the only way for me to remember what music I bought, and what I "borrowed."
2) As noted ad nauseum here, most people are willing to pay for what they like. Now that I can afford to, I happily pay -- hopefully directly to the creator.
3) The Camper tapes I referred to were recorded off my cousin's CDs 20 years ago. I.e., infringement. So buying them was a way to make up for past transgressions, back when I couldn't afford to pay. In fact, almost all albums I buy on CD now are for purposes of format control and/or restitution.
My current format conundrums are, a) My wife likes her books hard-copy, and I likes 'em digital; and it takes a while for the kids to torrent historical non-fiction, etc., if at all. And no, I shouldn't have to pay again for the second no-overhead format. And, b) I prefer comics scanned off the original, and moveable (neo-retro?). And they look like crap on major platforms (Dark Horse excepted). So, Frank Miller, if you see this, I've got $20 for you for Dark Knight Returns, because giving $10 to Amazon for a format I will never read does not fit into my philosophical rubric.
On the post: Carreon Admits His Original Threat Letter Was A Mistake, But Keeps On Digging Anyway
Re:
On the post: CBS Mocks Its Own Failed Copyright Lawsuit By Sarcastically Announcing New 'Completely Original' Show 'Dancing On The Stars'
Re: Re: Re: Re: Re: Re:
On the post: Because We All Know What Skype Was Missing Was Intrusive Advertising, Microsoft Has Decided To Add It
On the post: Matthew Inman To Charles Carreon: Take Time Off, Stop Saying Crazy Sh*t To Journalists, Calm Down
My open letter to Carreon
If you're going to C&D a blogger or outspoken online presence, write it for public publication. Period. And advise your clients why -- and how it may affect them.
When you assume your letter will be published, it forces you to think about presentation, tone, and gods forbid, the merits of your position. It's one of those nasty side-effects of the Internet Age, but hey, adapt or ... well you've seen what happens otherwise.
See, as an attorney, your job is to resolve problems; lawsuits are what you do only when the problems can't otherwise be resolved. And when you keep that in mind, along with the very real chance your efforts will go public, you'll find maybe it's not a great idea to send a C&D asking for $20k for protected (even if obnoxious) speech, for claims based on a year-old blog post that is no longer accurate, for a client who itself doesn't have the greatest online rep. And then you advise your client accordingly.
Oh, and remember, the true, existential purpose of lawyers is to act as a buffer between two parties who can't talk reasonably. It is not to insert yourself personally into the fray.
Thanks for listening,
A guy who does this type of thing...
On the post: Carreon's Full Filing Reveals He Donated To Oatmeal Campaign Himself, Plus Other Assorted Nuttiness
Re: Carreon's Disciplinary History
On the post: Carreon's Full Filing Reveals He Donated To Oatmeal Campaign Himself, Plus Other Assorted Nuttiness
On the post: Once More, With Feeling: Having Open WiFi Does Not Make You 'Negligent' Under The Law
Negligence - Personal Injury or Property Damage
Negligence (duty, breach, causation, damages), generally only applies to "personal injury" and "property damage." Even the seminal case referred to by Randazza in his TorrentFreak letter was about a ship's cargo being lost due to lack of radio communication (property damage).
Again, copyright infringement is not stealing; no property was damaged or lost. Copyright preemption aside, there would otherwise be no viable negligence claim.
On the post: Charles Carreon Sues Matthew Inman... And The Charities He's Raising Money For
Re: Re: Potential oops on the fundraising claim...
On the post: Charles Carreon Sues Matthew Inman... And The Charities He's Raising Money For
Re: Potential oops on the fundraising claim...
Sum: It's a frantic mess. Demurrer for failure to state of cause of action in the works...
On the post: Charles Carreon Sues Matthew Inman... And The Charities He's Raising Money For
Potential oops on the fundraising claim...
Cal. Govt. Code § 12599(a) defines commercial fundraisers:
"Commercial fundraiser for charitable purposes" means any
individual, corporation, unincorporated association, or other legal entity who for compensation does any of the following:
(1) Solicits funds, assets, or property in this state for charitable
purposes.
(2) As a result of a solicitation of funds, assets, or property in this
state for charitable purposes, receives or controls the funds, assets,
or property solicited for charitable purposes.
(3) Employs, procures, or engages any compensated person to
solicit, receive, or control funds, assets, or property for charitable purposes.”
{Emphasis Added} on key words: "for compensation"
Haven't read the case law, but the statute's plain language seems to indicate that Inman's charity (for which he is apparently not taking a cut) would need to be registered only if it was "for compensation" i.e., commercial purpose. Meaning, like the Trademark claim, we have no commercial speech, or commercial use. I.e., no violation of the statute (again, on plain language - no telling what the case law has said, but plain language is supposed to mean "don't try to interpret this otherwise, Courts").
On the post: When Even Comcast Is Refusing To Identify Those Accused Of Infringement...
Re:
On the post: Chris Evans' Lawyer Threatens Forum; Apparently Unfamiliar With Free Speech, Safe Harbors & Streisand Effect
Re:
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