Marc Randazza's blog

Akanoc Solutions Inc., Managed Solutions Group Inc., and Steven Chen, the owner of the two companies learned the hard way that being a web host doesn't make you automatically free from liability for copyright and trademark infringement committed by your customers. The ISPs involved hosted websites that sold knock-off Louis Vuitton goods, and they were made aware of that fact. A jury found that they knew, or should have known, that their customers were using their services for this purpose, and tagged the web hosting company for a $32 million verdict.

Chen's lawyers argued that he and his companies were protected from being assessed damages under the DMCA, which generally does protect online service providers from these kinds of suits. However, given that Chen's companies both provided the infrastructure for the infringement scheme and that they were made well aware of the activity, but turned a blind eye to it, they lost their immunity. See Computerworld.

The case is Louis Vuitton Malletier, S.A. v. Akanoc Solutions, Inc., U.S.D.C., Northern District of California, Case5:07-cv-03952-JW. The complete case file is available here, on Justia. Important case documents:   read more »

This is an interesting Section 230 decision from the Ninth Circuit that clarifies one of the many possible lines between enjoying Section 230 protection and losing it, namely what kinds of legal claims treat an interactive computer services as a "publisher or speaker" within the meaning of the statute and what kinds do not. It should also serve as a cautionary tale for online service providers including bloggers who allow comments.

Ms. Barnes' ex-boyfriend is a bit of a douchebag. After they broke up, he created a fake personals ad for her on Yahoo and impersonated her on various online forums:   read more »

There aren't too many elected officials in Flori-duh that I respect. Orlando Police Chief Val Demings, used to be one of the select few. She hasn't done a perfect job, and had a particularly embarrassing incident in which her gun was stolen. Nevertheless, my general impression of her has been that she is competent and ethical.

Not anymore.

Val Demings vs. the First Amendment

The Orlando Sentinel reports that Demings is threatening to sue an Orlando resident for creating a website that criticizes her performance in office.   read more »

In Gardner v. Martino, the 9th Circuit handed down an important ruling that should be required reading for any opportunist looking to turn mere hurt feelings into a defamation suit payday. Tom Martino is a talk radio host who is prone to make the kinds of statements we expect from talk radio. He is hyperbolic, outspoken, rude, crude, and crass. One day he had Melissa Feroglia on the air. Feroglia was a disgruntled consumer who had a bad experience with Mt. Hood Polaris and complained about a jet ski she bought there and some apparently dishonest customer service she received. The dealer chose to file a defamation suit.

Martino filed a motion to dismiss under the Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150. The lower court dismissed the claim, so Mt. Hood Polaris appealed to the 9th Circuit. The 9th reaffirmed that there must be some kind of damage to the plaintiff's reputation before a defamation claim may properly lie. As a matter of law, it is up to the judge to determine if damage could be possible by examining the speech itself, since loose hyperbolic language is not capable of a defamatory meaning.  read more »

Michael Morgan is a Florida blogger who is a little bit upset with Goldman Sachs and its business practices. To voice his displeasure, he registered the domain name goldmansachs666.com and goldmansachs13.com and forwarded them to his blog on the financial giant.

Naturally, Goldman Sachs doesn’t like to be criticized. Who does? Nevertheless, I fail to see how they could have perceived Morgan as a threat to their financial well being or anything else. The fact is, Mr. Morgan’s blog just isn’t that good. The layout is visually painful. The writing isn’t engaging. After muddling through it for about 15 minutes, I still don’t really get what all the fuss is about. In other words, Morgan’s blog was destined for the blogger derelict heap. Morgan has a full time job, had very few readers, and probably would have either gotten bored with his griping, or his blog would have been ignored to death.   read more »

Another day, another cautionary tale about how staying at a Holiday Inn Express doesn’t qualify you to practice law.

Enter Jamil Ezzo, an enterprising Internet maven, who runs the website at www.LocatePlasticSurgeon.com. Mr. Ezzo decided that he should file for a federal trademark registration on his incredibly creative and original business name, “Locate Plastic Surgeon,” and in an effort to give his fledgling new business venture a leg up over the wasteful spenders that were his cutthroat competition, he figured that he should forego hiring a lawyer to do it for him. Great plan, Jamil, except that any IP attorney who’s worth his salt would have told you that your proposed mark is pretty much worthless and you shouldn’t waste your time or money trying to protect it.

Well, who needs an expensive, fancy lawyer to tell you, when the examining attorney at the United States Patent and Trademark Office will do it for the price of filing? Except that it helps to know what you are reading when the office action comes back:

Judging from the applicant’s specimen of use, the services appear to be in the nature of offering a website that allows users to identify the location of – i.e., locate – surgeons specializing in plastic surgery. Thus, the mark is merely descriptive as applied to the services because it describes a function of the applicant’s website.

Translation: Your mark is lame, and it will be really difficult to justify giving you the right to exclude everyone in your field from using the same words in association with their business.   read more »

Congress derives its power to enact copyright laws from the copyright clause, U.S. Const. Art. I § 8, which reads:

Congress shall have the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Unfortunately, the music industry didn't get the "progress memo," and tends to believe that the Copyright Clause gives them a complete monopoly over the use of their material. For example - music publishing company, Bourne Co., the owner of the copyright to "When You Wish Upon a Star," objected to a parody of the song in the Family Guy episode, "When You Wish Upon a Weinstein." In the episode, Peter Griffin gets scammed into buying volcano insurance on his home in Quahog, Rhode Island. Lois gets fed up with the family's constant financial problems, so peter decides that he needs a "Jewish money guy" to help him.   read more »

The purpose of copyright is to "promote progress."  We achieve this promotion by giving authors a limited monopoly over their works so that they may profit from them. This is what is known as "the incentive theory."  If we give authors the incentive to create works, they will create more of them, thus adding ideas and expression to the marketplace.  On the other hand, we don't give copyright protection to mere facts. It makes sense, because the facts rightfully belong to all of us.  Expanding copyright protection to mere facts would lead to the marketplace of ideas looking like a downtown after the Mega-lo-Mart opens up in the suburbs.

Nevertheless, we do all benefit from news organizations hard work in bringing us the facts.  If anyone can just free ride off of the Associated Press' work, then eventually they are going to stop providing them to us.  After all, the AP is a business, and as much public service as they provide, they are not a charity.

I read an excellent law review article on this subject a while back. See Ryan T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting.  Suffice to say that I get Holte's point, and I agree with the argument that the public is better served if there are news organizations competing to get the hottest news -- and they should be incentivized to do so.

It looks like Holte's theory gained a little traction this week. The Prior Art reports on Associated Press v. All Headline News Corp. and the Southern District of New York's finding that the AP might have a viable case for "hot news appropriation" if:   read more »

Yvette Gorzelany, Joanna Obiedzinski, and Paulina Pakos are the latest plaintiffs to seek a big payday from Simon & Schuster over the book Hot Chicks with Douchebags. (Michael Minelli, a 27-year old “club promoter," still has a pending suit in Nevada against Simon & Schuster).

The three plaintiffs in this suit “contend[ed] that the use of their photographs in the book Hot Chicks With Douchebags was defamatory.” (Op. at 2). The New Jersey judge flushed the case out of his courtroom -- granting Simon & Schuster’s motion to dismiss in Gorzelany v. Simon & Schuster, BER-L-7775-08 (Bergen Cty. 2009). The facts were undisputed: The three allegedly hot chicks attended Club Bliss, apparently a lair of douchebaggery so foul that vinegar and water should be served at the bar. While there, they apparently consorted, at least momentarily, with a few douchebags – and thus became background fodder in the author’s photographs of "The Federbag" and in some instructions on how to cease being a douchebag.   read more »

Juicy Campus -- often the target of anti-free-speech types in higher education has died. And I am glad.

Juicy Campus was a cesspool with virtually no redeeming qualities. (But that isn't why I am glad it is dead) Compare to AutoAdmit, which actually had (and still has) some worthwhile discussions. The online defamation that took place on AutoAdmit was the exception, not the rule. AutoAdmit had tens of thousands of discussion threads and a few dozen were nasty and brutish -- well, until it became famous for those few dozen -- and then it attracted the cesspool crowd en masse.

Juicy Campus was just the opposite. Juicy Campus was launched as a petri dish experiment that proved John Gabriel's Greater Internet Fuckwad Theory (hereinafter "G.I.F. Theory"). JC was launched as a cesspool, and it died because it never evolved into anything else.   read more »

The Kentucky Court of appeals has ruled that the Commonwealth can not seize 141 domain names due to their alleged affiliation with online gambling. The Commonwealth initially filed an in rem (against the item, not against a person) action against the domain names -- seeking to seize the domains as "gambling devices." However, the statute does not seem to fit around domain names. The statute was designed to permit the seizure of slot machines and the like. The court of appeals wrote:   read more »

In the latest case involving the absurd and unconstitutional obscenity statutes, the Fourth Circuit has upheld a conviction of a man for mere private possession of allegedly obscene material. See United States v. Whorley, __F.3d__ (4th Cir. 2008). While the facts may not fit any conduct in which you might engage, the logic could very well ensnare you one day.

Read on. You should be outraged.

Introduction

The facts of the case are this: Mr. Whorley was using a computer at the Virginia Employment Commission (Virginia's unemployment bureau). Apparently, Mr. Whorley was not looking for a job, but downloading anime porn cartoons from his Yahoo email account. An employee of the Commission caught him, and booted him from the premises. Mr. Whorley he apparently forgot to log out of his account, so the employees clicked on a few of his email messages and printed them out for police. See Op. at 4.   read more »

The Bush library team seems as incompetent as . . . well, as incompetent as you would imagine anyone involved with such a project would be. They procured the domain name www.GeorgeWBushLibrary.com, then they forgot to renew the registration. It got picked up by a cybersquatter, Illuminati Karate.

"It worked out very well," said George Huger, lead Web developer for Illuminati Karate in Raleigh, N.C. (source)

It worked out well indeed. The Bush team could have picked the domain up for a $1,500 filing fee with WIPO. Even though the Bush team was careless, that doesn't mean that Illuminati Karate had a superior claim to the domain. See “Finders Keepers” is not a legitimate defense to a cybersquatting claim. Alternatively, they could have filed a claim under 15 U.S.C. § 1125(d) and pounded Illuminati Karate for up to $100,000 in statutory damages and reimbursement of their attorneys fees.

My hat goes off to Illuminati Karate. While I find their actions to be, on one level, a bit repugnant. On another, I say good for them.  Ol' Dubya scammed us for the past 8 years and Illuminati Karate scammed him back.

The Second Circuit Court of Appeals struck down one of the most constitutionally repugnant provisions of the PATRIOT Act -- the portions of the Act that place recipients of so-called "national security letters" (NSLs) under a permanent, unreviewed, lifetime gag order. See Doe v. Mukasey, __ F.3d __ (2d. Cir. 2008).   read more »

The Supreme Court in the state where "Live Free or Die" adorns the license plates has answered the question "why can't producers of adult films be charged with prostitution?" The short answer -- because it would violate the First Amendment (or at least the New Hampshire Constitution's equivalent thereof). See New Hampshire v. Theriault, No. 2007-601 (N.H. Sup. Ct. Dec. 4, 2008).    read more »

Michael Minelli, a 27-year old "club promoter," is spewing vinegar at Simon and Schuster, publisher of the book Hot Chicks with Douchebags. Apparently, Mr. Minelli finds the description "douchebag" to be inaccurate, and to say the least, neither sweet nor fresh.

In his complaint, Minelli seeks at least $10,000 in damages per count in his five-count action for defamation, intentional and negligent infliction of emotional distress, invasion of privacy, and a loss of that fresh feeling (to his goodwill, anyhow).   read more »

Michael "Bobby" Hammond, 21, inspired by his recent participation in the annual World Naked Bike Ride -- an event that protests against car culture, decided to take his vintage 10-speed bicycle for a spin through the streets of Portland, Oregon while wearing nothing but a bicycle helmet.

Portland Police were not amused. Mr. Hammond was arrested for indecent exposure under Portland, Or., City Code § 14.24.060, which states that "it is unlawful for any person to expose his or her genitalia while in a public place, or a place visible from a public place, if the place is open or available to persons of the opposite sex." However, Mr. Hammond's conduct was held to be protected speech, and the charges were dismissed.

A few weeks after he participated in the World Naked Bike Ride in Portland, he and a friend, Walter Geis, were dismayed at the amount of traffic in front of his house. He and Geis then stripped down and held their own small nude bike ride to "express a message in support of bikes and against cars, foreign oil, the Iraq war, and air pollution." (source) The appropriately-named Multnomah County Judge Jerome LaBarre (you can't make this stuff up) dismissed the inevitable charges that followed.   read more »

In Jews for Jesus v. Rapp, No. SC06-2491, 2008 WL 4659374 (Fla. Oct. 23, 2008), the Florida Supreme Court appears to do the First Amendment a great service by declining to recognize the false light invasion of privacy tort. However, this is a case of the ghost of William Rehnquist haunting Florida after stealing William Brennan's robes.

After protecting the First Amendment with a few pages of the opinion, the Court polluted most of the ground it gave by strengthening the tort of "defamation by implication," and by adopting a standard for defamation cases that does away with the reasonable person test and replacing it with a "substantial and respectable minority" standard. What should have been a sweeping victory for First Amendment rights is likely to result in a serious chilling effect, more costly defamation litigation, and a new paradigm for defamation law that will substantially disfavor minority groups while creating a completely unworkable standard.

Introduction

The case arises from Edith Rapp's dispute with her stepson, Bruce Rapp. While Bruce was working for Jews for Jesus, he published an account in the Jews for Jesus newsletter that claimed that his stepmother, a Jew, "began to cry" when Bruce related the christian tale that an almighty creator sent his son (Y'shua) to earth to be killed in order to atone for the sins of mankind. Bruce also wrote "I asked [Edith] if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation."

Edith was not amused.   read more »

In June 2007, professional wrestling promotrix, Nancy Benoit and her son, Daniel, were the victims of a double murder-suicide committed by her husband, WWE wrestler, Chris Benoit.

Approximately 20 years earlier, Ms. Benoit (then Nancy Daus) posed nude for photographer Mark Samansky. Benoit/Daus allegedly had a change of heart and requested that the materials be destroyed. Nevertheless, Samansky kept the video and made stills from it.

After Benoit's murder, Hustler Magazine obtained copies of Samansky's photographs and stills with the intention of publishing them in the March 2008 edition of Hustler Magazine. Benoit's mother, as administrator of her estate, retained counsel who sent a demand to Hustler claiming that the publication of the materials would violate Benoit's copyright and publicity rights.  Hustler's attorney, Paul Cambria, responded in this letter that copyright law did not apply, and that Hustler had a First Amendment right to publish the photos:  read more »