Enough 1790′s background; let’s talk 2010.  If you’re a redneck (this is not necessarily a requirement, but it helps), and you decide to publish a “newspaper” (not sure what else to call it) that describes your political ideas, don’t get all uppity if the local KFC won’t let you put it on the take-one-free rack, between the Auto Trader and the Keels and Wheels.  It’s not a constitutional issue.

The scary part of this story is that you have to wade two thirds of the way into this Fox News article before they reveal that little tid bit to the reader who isn’t in the know.  How many of those readers have the kind of attention span necessary to make it that far?  More than likely, the majority start seeing red after reading the headline, and three sentences in, they’re sputtering some nonsense about “they’re ruinin’ are country” and clicking over to something more soothing.  Gold star for journalistic integrity to Fox News on this one!

This article was originally posted on The Legal Satyricon

H/T Jessica K.

This article was originally published on The Legal Satyricon

This article was originally published on The Legal Satyricon

“Don’t force your morality off on me!  Or else I’ll squirt this gel all over you!”

Not particularly shocking news, coming from the buckle of the Bible Belt.  I wonder, however, if anyone has considered the First Amendment implications.  Can the state require an ultrasound tech to describe the fetus?  Not if some pro-choice tech doesn’t want to.

This article was originally published on The Legal Satyricon

• Shut down the luge track to prevent any more deaths… check.
• Conduct an internal investigation… check.
• Let an “independent” authority do its own investigation… check.
• Make immediate modifications to the luge track to stop future accidents… check.
• Make a press release, expressing regret, but denying all responsibility… check.

All perfectly acceptable anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

Even where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.

The article was originally published on The Tactical IP Blog

This 2 hour seminar will examine social attitudes toward law, lawyers, and legal institutions through the viewing and examination of Hollywood films.  Film depictions of law students, juries, and judges will also be considered.  Each seminar session will focus in as much depth as possible on a particular film or films and a particular problem or aspect of law, law practice, ethics, or the image and status of the lawyer in American culture raised by the film(s).  The majority of the films will be viewed outside the classroom and will be considered as texts providing contemporary depictions of the subject matter to be examined in class.  In addition, readings will be assigned for each film and will form the basis for class discussion.  The films will be reserved in the library.  This will be a paper course which may be used to satisfy the Upper Level Writing Requirement.

My understanding is that this course is just another excuse for chicks in law school to watch Legally Blonde (2001) for the 4,821st time.  What a great way to spend your tuition dollars at a professional school!

Normally, I’m not the one in this forum to bitch about the state of legal education.  Marco & Co. do it regularly enough that I don’t have to.  (See here, here, and here.)  On the whole, my law school experience was a good one.  I took as much advantage of our externship program as I could, and I went out of my way to take classes from adjunct professors who I knew actually practiced what they were preaching.  What I object to is courses that have students watch reruns of “L.A. Law” (1986), or other fictional portrayals, as a means for teaching about the practice of law.  Aren’t there other subjects that could be presented that have more merit?

One subject jumps quickly to my mind, and regular readers of this blog will recognize it immediately.  I would call it “Streisand 101,” taking its name from actress and singer, Barbara Streisand, who effectively demonstrated that simply filing a lawsuit can bring about the exact opposite result from what you hoped to achieve.  It would be a skills course, aimed at training young lawyers to talk their clients down from filing certain kinds of lawsuits — the kind that end up splashed all over blogs like this one, fueling negative publicity for the client.  The intent would be to teach how to 1) determine the unintended consequences of a particular cause of action; and 2) effectively communicate those consequences to the client, giving them the opportunity to back away before doing any real damage.  The primary pedagogical tools would be roll playing and reviewing news stories about past P.R. blunders.

Finding great teaching examples would be about as challenging as falling off of a log.  Just this week, outdoor clothing maker, The North Face (TNF), is in the news again, moving forward with their lawsuit against The South Butt (TSB).  (You can find my previous coverage of the case here.)  Before TNF filed their lawsuit, TSB had a whopping $5,000 in gross sales — after months of being in business.  Now, TSB’s selling that much every hour.  Their attorney claims that, with 14 new employees, TSB has created more jobs in its home state than the Obama’s $800 billion stimulus plan.  (Source.)

The only downside that I see to so educating the next crop of attorneys is that a huge source of entertainment will be snuffed out.  What will we read about for fun when Micheal Jordan’s attorney convinces him not to sue the people who congratulate him?

This article was originally published on The Legal Satyricon

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90′s, called “Barbie Girl.”  The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed.  True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit.  While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment.  The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company.  That’s fair use.

Everyone appeals, hilarity ensues

Hon. Judge Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line:  “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”  From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on.  Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.”  But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.”  No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo.  In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999).  The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat.  For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here).  However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up.  (source)

This story was originally published on The Legal Satyricon.