- Mayor La Guardia on overlawyering [Lawrence Cunningham, Concur Op]
- Update: “Forever 21 Backs Off On Blogger Lawsuit” [Jezebel via @LawandLit, earlier]
- Pennsylvania governor Tom Corbett signs joint and several liability reform [Pittsburgh Tribune-Review]
- Legislation introduced in Trenton to overturn New Jersey Supreme Court decision OKing suits by drunk drivers against bars that served them [NJLRA, earlier]
- Angelos firm scores $495 million award against Exxon in Baltimore gas leak [Sun]
- How plea bargaining warps justice [Tim Lynch, Reason]
- California considers following New York’s lead in regulating employment of domestic workers [Workplace Prof]
Archive for 2011
Assigned counsel
Like Marc Randazza, I’m a little too close to the Righthaven litigation in Nevada — being co-counsel with him on a couple of Righthaven cases — to say much beyond what I have said about that issue here. (Overlawyered in general suffers from no such limitation, of course.) But as “Marco” notes, the following quote from a website called Righthaven Victims says plenty:
First it was a “clerical error” that caused Righthaven to sue an Ars Technica journalist for using an image that was part of a court filing, now Righthaven is blaming an undisclosed “Former In-House Counsel” for not disclosing Stephens Media as an interested party in hundreds of cases they have filed over copyright infringement.Righthaven submitted their answer to Judge Roger Hunt’s order to show cause why they should not be sanctioned for the omission. Their only answer was this unnamed rogue in-house counsel screwed up.
For the foregoing reasons, Righthaven respectfully requests that the Court find its failure to comply with Local Rule 7.1-1 through its former in house counsel does not rise to the level of sanctionable conduct given the circumstances described herein. Moreover, Righthaven has taken corrective action in response to the Court’s June 14th Order by filing amended disclosure statements in almost 120 pending cases in within this District and within the District of Colorado. Dated this 28th day of June, 2011.
Since so many lawyers have left Righthaven it is difficult to determine exactly who Righthaven is blaming which cannot go over well for any lawyer that has ever worked for Righthaven.
As Marc points out, Steve Green at Vegas Inc. has one possible answer to that question, which suggests one very big little problem with this throw-’em-under-the-bus strategy:
Ninety-eight. That’s the number of Righthaven LLC copyright infringement lawsuits in which Righthaven CEO Steven Gibson was one of the attorneys of record for his own company.
I’ve actually always said, in my professional life, that clients pay, in part, for the privilege of blaming you for no damned good reason. It’s like being a baseball manager: Can’t find a third starter or a decent third baseman? Fire the manager. Occupational hazard.
But this is a new one. Can you actually throw yourself under the bus? Now that would sure flatten you good. And — again — it would be Mr. Gibson who would be doing the throwing:
In fact, Righthaven is half owned by Gibson and half owned by investors who are part of the family of Arkansas investment banking billionaire Warren Stephens. He and his family also own Stephens Media.
If that’s all true, and I don’t recall anyone denying it, it could be a long, flat summer in Nevada for Righthaven and its, uh, counsel.
Welcome guestblogger Ron Coleman
Ronald Coleman, who comments on trademark, copyright, and free speech issues at his blog Likelihood of Confusion, has kindly agreed to join us as a guestblogger this week. You can see all his contributions here. I’ll be continuing some posting of my own as well.
Don’t call it propaganda
The FDA has moved to require tobacco marketers to place grotesque photos of cadavers and body parts on cigarette packs, and Barton Hinkle of the Richmond Times-Dispatch thinks there’s no reason for it to end there. More: Ann Althouse.
Perilous portals
“There are thousands of door-related accidents each year. The Consumer Product Safety Commission should do its bit by requiring that a professionally trained doorman open and shut all doors for door-users. That would create millions of jobs …” [Iain Murray, CEI]
Paulie unsaturated
What better way to pick up that slow DJ business than to hitch a press release to a preposterous trademark infringement claim? Hint: It involves an utterly phenomenal battle between intellectual property and journalism in the the New York Post, which no one but the publicity-seeking plaintiff wins.
But first, our story:
“Jersey Shore” star Paul “Pauly D” DelVecchio was slapped with a $4 million trademark infringement lawsuit Thursday from a Connecticut DJ who claimed his business has been ruined by comparisons to the MTV personality.
Paul Lis of South Windsor, Conn., said he spent 40 years building up a reputation as the region’s “DJ Paulie” before DelVecchio began calling himself “DJ Pauly D” on television. . . .
“He formally trademarked [sic] the name ‘DJ Paulie’ and then came the ‘Jersey Shore’ which basically wiped him off the face of the map,” attorney Jose M. Rojas told NewsCore.
The lawsuit alleges that MTV itself flooded the internet with so much “Jersey Shore” content that it was virtually impossible to find Lis’ information or advertise on [sic] his website.
Sounds like rough going all around here — but believe me, it gets worse. And how much worse can it get? After all, how can you “ruin” someone who starts out as a “Connecticut DJ”? What exactly is the up side on that? Oh, $4 million you say? Who knew?
Of course, if you were to run a Google search for DJ PAULIE CONNECTICUT — or go crazy and use PAULY — right now… you’d have one heck of an easy time finding him, now that he’s got, not only two turntables and a microphone, but his own lawsuit!
All of which means proving damages should be a snap, right? Because this year, what with all the search-engine saturation his court filing has got him, Paulie will demonstrate that, best-case scenario, the DJ Paulie gig is a $4M proposition. And why should MTV deprive DJ Paulie of his best case? Trademark infringement-wise.
Or is it the other way around? Because now that sounds like all that infringerating is making things better, not worse. (Someone write this down: “File lawsuit; enhance Google search results.”) Okay, we’ll let the jury sort that one out.
Well, how about the Post’s explanation of the theory of damages in the first place here? “[I]t was virtually impossible to find Lis’ information or advertise on his website.” That makes it sound as if MTV was even flooding Lis’s website — to the point where you couldn’t even, um, advertise “on it.”
Typo, right? Well, the fine state of intellectual property journalism in New York is finally hammered home with this beaut later in the article:
Meanwhile, DelVecchio applied for a slew of US patents attempting to copyright his own moniker.
Whoa! Trademark… copyright … patents … monikers?
If indeed the test for a trademark infringement is a likelihood of confusion — and I’ve always been partial to the argument that it was — then there is definitely a trademark infringement here. Because after reading this article I, for one, am completely confused.
What a train wreck. Here the newspaper story about the lawsuit may be even worse than what reads like one pretty bad lawsuit. Good thing professional journalism is keeping that edge and saving society from that blogging stuff.
The biggest irony? The article doesn’t even mention the right of publicity — publicity being the the only thing DJ Paulie’s lawsuit definitely got right.
Vintage sound recordings
Many are lost in a copyright maze: “The American rules infuriate scholars, archivists, musicians and the conservationists who preserve fragile recordings. They fret that by the time the recordings become available, many will be beyond salvation.” [The Economist] “A Trove of Historic Jazz Recordings has Found a Home in Harlem, But You Can’t Hear Them” [Steven Seidenberg, ABA Journal]
Annals of criminalization, part 2,038: “performing” copyrighted material
The Senate Judiciary Committee has unanimously approved S. 978, a bill that would raise from a misdemeanor to a felony the unauthorized performance or streaming of a copyrighted work when the infringement takes place at least ten times and either reaps $2,500 or more in revenue, or avoids the payment of license fees whose fair market value would exceed $5,000. Mike Masnick at TechDirt thinks the bill could wind up authorizing the jailing of some persons who embed YouTube videos or post videos of themselves lip-synching hit tunes; CopyHype defends the bill and dismisses the concerns as overblown.
When regulation bites
The EPA may face escalating pressure to un-ban some pesticides effective against bedbugs [Michelle Minton, CEI]
“Suit demands CNN offer online captions for deaf”
Disabled-rights lawyers said the suit against the news network “is the first in the nation to seek equal treatment for the deaf from a commercial content provider on the Internet.” Expect many others to follow. [Bob Egelko, San Francisco Chronicle]