They also sue on the basis of my favorite tort: negligent infliction of emotional distress. In Count 3, the plaintiff alleges that the continued distribution of the movies places the family in a false light. Whatever the merits of this suit generally, the judge should probably deal with Count 3 by simply prescribing them some Prozac.
]]>Needless to say, I'd get a phone call immediately from a lender. When they called, I'd break the bad news to them. I'd tell them that I wasn't even a homeowner, but was instead a title attorney trying to get their business. Some were understanding, but others were furious. You see, they didn't actually send me the email. Some spamming service sent it and received my response, which the spamming service then sold to the lender. So, not only did I get to make a sales pitch, but they had to pay to hear it.
I realized very quickly that this probably wasn't the way to do business. If I angered all the lenders, I'd never get any referrals from them.
You, on the other hand (and me with respect to other spammers), are in a very different position.
If we all respond to the spammers, running up their advertising bills, it becomes financially impractical for them to use spamming services to advertise. The spamming services then lose their business and go broke. The result: no more spam.
There are two potential drawbacks.
#1: Most of the spam requires you to enter a phone number. If that's the case, either you're going to have to put up with a single call from them (at the end of which you tell them never to call you again), or you have to give them a fake number. If that number is unlisted, okay. If that number is the local pizza parlor or FCC hotline, see #2 below.
#2: I haven't researched the legality of this practice. My gut has me concerned that it could be some sort of misuse of telecommunications technology -- especially if you're giving another's phone number to the spammer -- which could result in civil or criminal penalties. On the other hand, I'm responding to their request addressed specifically to me. I wouldn't be a bit surprised if there were a way to do it that's 100% legal, or if illegal, never enforced or impossible to prove.
One of these days, I'll probably get around to researching the legality of this practice. In the mean time, I have work to do, and you shouldn't practice it unless you've gotten an attorney's advice on its legality.
Sooner or later, we'll get the bastards.
]]>I don't hate these guys, but this is an awfully large expenditure of time and money just to pat some people on the back.
S.RES.326: A resolution recognizing the 40th anniversary of the George Bush Intercontinental Airport in Houston, Texas.
I'm a Republican, but isn't naming an airport after someone recognition enough? Does this have to go on for 40 years?
]]>I have a long-standing pet peeve: Sham enforcement of traffic laws. It’s clearly not about safety; it’s about raising revenue for the state. Essentially, it’s a tax wrapped up in a dishonest justification. And that would be fine (and Constitutional) if there weren’t punishment attached to the fine. For some of them, you could have your license revoked, your record tarnished (higher insurance rates, anyone?), and even have to serve jail time.
Now, some of you might be thinking, “But Rob, it’s about safety.”
No, it isn’t. If it were about safety, traffic laws wouldn’t be enforced randomly. If it were about safety, people would be stopped for crossing over solid white lines and running stop signs, relatively low-cost violations, instead of “speeding.” I put speeding in quotes because if the speed limit for I-95 in southern Virginia is less than 90 mph, than the speed limit isn’t about safety. It’s about $afety.
Now, some of you might be thinking, “But Rob, I was driving in the 1920’s, and in my day . . . .”
Well, stop right there old timer. If you were driving in those days, you were used to cars with suspension systems (among other things) that are vastly inferior to what’s built today. The technology is different, and it makes driving easier. Ever drive, or even ride in, a Porsche? The ride is so smooth that 60 mph feels like 20 mph. However, even in my 2002 Mustang, I can safely drive 81 mph (easily) on I-95 in southern Virginia on a clear day. Well, guess what? According to § 46.2-862, that’s reckless driving, which according to § 46.2-868, is a Class 1 misdemeanor, a criminal offense punishable by up to one year in jail and a $2500 fine (§ 18.2-11). (Your state’s laws are probably similar.) I won’t get a year in jail for my first offense, but am I really a criminal?
Okay, so that brings me to traffic cameras. Most cameras designed to catch speeders are in areas where the limit clearly shouldn’t be 90 mph, and red light cameras are trying to stop a real danger. Sounds great, huh? Well, I’m suspicious, so let’s dig deeper.
You should know about this little thing called “service of process,” which seems to be lacking in these cases. Pay careful attention to what I’ve said there: “service of process.” I didn’t say “due process,” which is a different idea. Lawmakers have “set up a strawman” (an argument no one disagrees with, so that it'll seem they won something) by claiming guys like me are yelling, “due process violation.” Ignore that. Despite hearing many people defend against the argument for lack of due process, I’ve never heard a single person ever make it. We’re talking service of process.
So what is it? If you’re sued by someone or accused of a crime, you must be “served.” This has nothing to do with dancing in South Park, Colorado. It means there must be a reliable way the other party gives you notice of the law suit. Otherwise, I could sue you, never tell you about it, and win by default because you never showed up even if my law suit was a sham.
What about violations of the cameras? Is there ever service of process? The answer is no. They just mail you the ticket. They just send a ticket to the owner of the car (who may not have even been driving), telling them that they either pay a $50-$100 fine, or take a day off from work (which costs even more) to defend themselves in court. They don’t even bother to spend the extra money for registered mail to at least prove someone received the notice. (That still wouldn’t be good, because it wouldn’t prove that the right person received the notice, but it would be a little better.)
Why do they do this? Because they know most people will say, “To hell with this,” and just pay it. Nice little scam, huh?
But wait! It gets worse! This is supposedly about safety, right? Some jurisdictions have actually shortened the time a yellow light lasts. Now why would they do that? The longer the yellow light, the easier it is to react to it, so shortening it makes things a little less safe by giving people less time to stop. However, it also results in more violations, doesn’t it? More people will accidentally run a red light. For those that stop, they’ll be forced to stop a little more suddenly, which would likely increase fender benders. So why do it?
Can you gue$$?
On top of this, many jurisdictions are using private companies to maintain the cameras and pass out the tickets. With no requirement to serve process, and all that incentive to send out more tickets, what did you expect?
And now – finally – here’s the worst part. Most people seem to be against these cameras, yet the cameras are popping up everywhere. If we’re a democracy, and the majority opposes these cameras, why aren’t they gone yet?
Think about it. These cameras don’t rise to the level of slavery or concentration camps, but doesn’t it at least bother you a little bit that your opinion doesn’t seem to matter?
$afety Fir$t
Larson cited his prosecutorial experience and Girardi & Keese's variety of cases as reasons for choosing the firm.
]]>The U.S. Court of Appeals for the District of Columbia Circuit has given the Washington Redskins something they couldn’t seem to get on their own lately: a meaningful victory. In Pro Football, Inc. v. Harjo, et al., No. 03-7162 (decided May 15, 2009), the appellate court affirmed a decision of the U.S. District Court for the District of Columbia that, on remand, reassessed its analysis under the doctrine of laches. The district court found that, because the plaintiffs brought the suit 8 years later than they could have, the loss of evidence due to the death of the former Redskins president, Edward Bennett, and the economic prejudice that would be suffered due to the delay was too much to overcome. The appellate court, reviewing under the standard of abuse of discretion, refused to overrule the judgment of the district court.
EDIT September 27, 2009: In response to some comments I received, here is some additional information. You can find the last district court decision here. (The district court is where the trial occurs, and almost all the fact finding is done.) Most criticisms of the opinion were made by people refusing to read the 10-page appellate court case, so I doubt those same critics will be willing to read the 84-page district court opinion. The best I can do, though, is point out that the district court found "substantial evidence" that the term "Redskin(s)" had lost its insulting meaning no less than 60 years ago, even among American Indians. It is clear that this archaic meaning (which, by the way, was most likely created by an American Indian), was resurrected in order for the plaintiffs to get their 15 minutes of fame. Moreover, though not discussed in the case at length, the owner at the time of the mark's registration went out of his way to visit with American Indian leaders before registering the mark, and those leaders were appreciative of how the team had improved the image of American Indians through the use of the term "Redskin(s)" and their various logos.
Not only do the plaintiffs in this case have terribly unclean hands, but they have done a tremendous disservice to the cause they claim to represent. I guess that's not bad for them considering they get to be on television and radio.
BTW, the Supreme Court has granted the Plaintiff's appeal.
Full disclosure: I'm a lifelong Washington Redskins fan, but I have zealously defended the use of Orangemen (hate Syracuse), Redmen (hate St. John's), and Fighting Irish (I'm 1/4 Irish, and find it interesting that they usually receive no attention in this discussion).
]]>"Simply put, in the context of a patent or copyright license, a transfer occurs any time an entity other than the one to which the license was expressly granted gains possession of the license" (emphasis in original).
This federal common law was recently enforced by the US Court of Appeals for the Sixth Circuit in Cincom Systems, Inc. v. Novelis Corp., No. 07-4142 (September 25, 2009), and what it means is that before you buy a company, or even absorb your own subsidiary (i.e., child company) into your parent company, make sure you do your homework on what licenses that company has. Here's why:
Alcan had a license to use two copyrighted software programs owned by Cincom. The license prohibited Alcan from transferring the license to anyone else without the express, written consent of Cincom. After a series of corporate mergers and name changes, Alcan essentially disappeared, and Novelis became owners of the licenses by operation of Ohio state law (i.e., automatically). Because Cincom didn't consent in writing to the transfer -- actually, they weren't even notified -- the use of the software by Novelis was copyright infringement, and Cincom was awarded almost $460,000.00 in damages.
So, let's say you own ABC Publishing Corporation. You want to buy XYZ Publishing Corporation. XYZ Publishing Company has a license to use the images and storylines of my sci-fi novels. If, under the law of the state governing the license, the license will automatically transfer from XYZ to ABC, and if ABC continues to use my images and storylines, I'm going to sue ABC for copyright infringement, and I'm going to win. The same result occurs even if ABC Publishing Corporation owns XYZ Publishing Corporation and is simply merging XYZ into ABC. Also note that under federal law it is always assumed that the license may not be transferred without permission.
The lesson: If you seek to purchase or absorb a company that works with copyrighted or patented material that's owned by another party, get a hold of and read the licenses! Unless they actually say that the license can be transferred (or assigned) without permission, pick up the phone and start negotiating a new license -- or just don't use that material. Otherwise, you're in trouble, especially if the owner is an attorney. :^)
]]>Among other changes, Suzan Miller becomes interim general counsel, and all major product divisions are being consolidated under the newly formed Intel Architecture Group.
]]>In Janky v. Lake County Convention and Visitors Bureau, Nos. 07-2350, 07-2762, and 08-1606 (August 3, 2009), the US Court of Appeals for the Seventh Circuit answered that question. The Bureau was looking for someone to write a song for their promotional campaign. Band-member Farag learned of the search, and so Band-member Janky wrote a song, Wonders of Indiana, and copyrighted it in her own name. Farag and the Bureau liked the song but felt its lyrics needed to be focused less on Indiana generally and more on Lake County in particular. Farag’s contributions represented 10% of the lyrical content of the revised song (although Farag claimed he changed the melody as well), which was then copyrighted again by Janky, this time with Farag listed as a “co-author,” and the work identified as a “joint work.” The Bureau was issued a non-exclusive license to the song, a copy of a music video for use in the promotion, and a live performance by the band at the opening of a new visitors’ center.
After some unspecified fall-out, Janky re-registered the copyright, intending to correct the “mistake” she made on the previous form by removing Farag as an owner. Janky then informed the Bureau that their license to the song was invalid, and they no longer had permission to use it. The Bureau continued to use the video and song until the law suit was filed in which Janky alleged the Bureau’s continued use of the video and song was copyright infringement.
The US District Court for the Northern District of Indiana granted summary judgment to Janky (that is, ruled for Janky without a trial because of the legal strength of her case), but the Seventh Circuit reversed that decision, granting summary judgment for the Bureau. The Seventh Circuit pointed out that, under 17 U.S.C. § 201(a), co-authors to a “joint work” have an undivided interest in the work regardless of how much each artist contributed. In other words, even if Farag contributed only 10% of the work, Farag would have the same rights to the song as Janky, which includes the right to license the song to the Bureau. So, if Farag were a co-author and gave the Bureau permission to use the song, Janky’s permission wouldn’t have been needed, and there could be no copyright infringement.
This brought the Seventh Circuit to the central issue in the case: Is Farag a co-author? In 17 U.S.C. § 101, the Copyright Act defines work as a “joint work” if (1) there is an intent to create a joint work at the time of registration, and (2) each author contributed material that by itself would be copyrightable. The intent was obviously present because in the second application Janky credited Farag as a coauthor and characterized the song as a “joint work.”
As for whether the contributions of Farag were independently copyrightable, the Seventh Circuit noted that mere “ideas, refinements, and suggestions” did not qualify as independently copyrightable contributions, but Farag’s contributions went much further than that.
Farag wielded considerable control over what the song finally looked like; one could say he demanded the changes. Farag’s contributions . . . were concrete expressions . . . . Farag’s changes may have accounted for only 10 percent of the lyrics, they were significant. They were important not only to the final sound, but also to its commercial viability. . . . The very purpose of copyright law [would be] defeated if important contributions are denied copyright protection.
Judge Ripple dissented from the case. Although agreeing that Janky should not have been granted summary judgment, Judge Ripple disagreed that the Bureau should have been granted summary judgment. Rather, the case should have been sent back to the district court for a trial.
]]>First, what is a patent? According to the United States Patent and Trademark Office FAQ, it’s “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.” The most common form of patent, the utility patent, is granted to “anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement” to one of those things.” So, if you invent something, you’re the only one who can take advantage of it in this country. Sometimes, that gives you a lot of market power.
The Federal government grants patents. It holds this power exclusively under the “arts and sciences” clause of the US Constitution, and so the states can’t grant patents; however,that doesn’t mean the states aren’t relevant to issues surrounding patents. For example, . . .
In Sky Technologies, LLC, v. SAP AG, 2009-1606 (August 20, 2009), the United States Court of Appeals for the Federal Circuit was faced with a dispute under both the federal Patent Act and Massachusetts state law. A patent owner, Ozro (a corporation), used its patent rights as collateral for a loan, much the way a homeowner will use a home as collateral for the loan to buy the house. Ozro and the lender, XACP, signed an agreement to secure the loan with the collateral (in the same way a homeowner and lender would sign a mortgage or deed of trust).
When Ozro defaulted on the loan, XACP foreclosed on the patents. Under Massachusetts state law, this automatically transferred ownership of the patents from Ozro to the XACP. XACP then transferred ownership of the patents to another company, plaintiff Sky Technologies, by written assignment.
When the defendant, SAP, made use of the patented invention, Sky sued SAP for patent infringement in the US District Court for the Eastern District of Texas. SAP asked the district court to throw out the case because Sky lacked standing. That is, SAP was arguing that Sky wasn’t the proper person to bring the lawsuit because Sky didn’t actually own the patents.
SAP argued that under the Patent Act, if a patent owner wants to transfer ownership of his patent to someone else, the assignment must be in writing, but there was no written assignment from Ozro to XACP, so XACP didn’t have the ability to assign the patents to Sky. Basically, SAP argued that the patent rights vanished into thin air when the company, Ozro, dissolved.
The Federal Circuit disagreed, stating that nothing in the Patent Act stated that an assignment was the only way to transfer ownership. Instead, any state law that transfered patent ownership automatically (that is, without the patent owner doing the transfer himself), was also valid. As support for its holding, the Federal Circuit relied on its prior holding in Akazawa v. Link New Technology Int’l, Inc., 520 F.3d 1354 (Fed. Cir. 2008), in which the patent owner died without a will, so his wife inherited the patent by operation of the state law governing inheritance.
So, if you want to take ownership of a patent directly from the current patent owner, that owner will have to execute a written statement giving you ownership. However, you can still inherit or otherwise receive ownership of a patent ‘automatically’ if a state law transfers the patent rights to you.
In George & Co., LLC v. Imagination Entm't Ltd., No. 08-1921 (July 27, 2009), Plaintiff George sued Defendant Imagination for infringement of George's trademarks, LEFT CENTER RIGHT and LCR. The district court granted summary judgment to the Defendant, finding that -- even if the Plaintiff's complaint was assumed to be completely accurate in its account of the facts -- the Plaintiff would still lose, so no trial was necessary.
The Court of Appeals affirmed (that is, upheld or validated the district court decision), going through each of the nine factors used to determine whether there is a likelihood of confusion between the Plaintiff's and Defendant's marks. Those factors are: 1.) The strength or distinctiveness of the plaintiff's mark as actually used in the marketplace; 2.) the similarity of the two marks to consumers; 3.) the similarity of the goods and services that the marks identify; 4.) the similarity of the facilities used by the market holders; 5.) the similarity of advertising used by the market holders; 6.) the Defendant's intent; 7.) actual confusion; 8.) the quality of the Defendant's product; and 9.) the sophistication of the consuming public.
Although the Court of Appeals recognized that there were some factors in Plaintiff's favor, it held that the most significant factor, actual confusion (#7), weighed heavily against the Plaintiff, because the Plaintiff sells about 500,000 gamers per year yet provided only two instances of actual customer confusion. Combined with a mark the Court of Appeals considered weak (#1) and disimilar to the Defendant's mark (#2), and without any evidence of bad intent by the Defendant (#6), the Court of Appeals held there was no likelihood of confusion, and so there was no trademark infringement.
Finally, the Court of Appeals held that George had abandoned his trademark for LEFT CENTER RIGHT in 1992, having used only LCR in connection with his dice game, so any claim for infringement of LEFT CENTER RIGHT must fail.
What was most interesting about this case is that the US Patent and Trademark Office granted the trademark, apparently on the grounds that the mark was "suggestive," which is stronger than a mark that is merely "descriptive."*** The district court also found that the mark was suggestive, and the Defendant conceded that the mark was suggestive. The Court of Appeals considered these positions questionable. The game required a player to move chips to the left, center, or right, depending on the roll of the dice, so the Court of Appeals "harbor[ed] doubt" that the mark was more than merely descriptive. Although the Court of Appeals was required to accept the finding of the district court that the mark was suggestive, it still found a way to hold the mark to be weak, and it chose to focus on other factors as being more significant.
The lesson: If the Court doesn't like what happened before, and it can't use direct means to reach its desired conclusion, it will always find a way. Sounds like an argument for legal realism to me.
*** Whereas a "descriptive" mark directly provides information to the purchaser of a product or service of what the mark represents, a suggestive mark requires that that the purchaser have to use some imagination to connect the mark with the goods, so a suggestive mark is considered "stronger" (factor #1). For example, 5 minute glue is descriptive of a glue that sets in 5 minutes, but Orange Crush is suggestive, not directly indicating that it applies to a carbonated beverage, but indirectly relevant because it claims to have a strong, orange flavor.
]]>In St. Luke's Cataract & Laser Inst., P.A. v. Sanderson, No. 08-11848 (July 9, 2009), Defendant Sanderson, an eye surgeon formerly employed by Plaintiff St. Luke's, had the registration information for two domain names changed to himself after leaving. Sanderson was found liable for both taking the domain names and for infringing the service mark, and St. Luke's was awarded damages (i.e., payment for harm) for both. Sanderson claimed that the two awards for damages were duplicate and, therefore, inappropriate.
The Court of Appeals disagreed.
First, the text of the Anti-Cybersquatting Protection Act ("ACPA"), 15 U.S.C. Sec. 1125(d)(3), states that any damages awarded under the ACPA shall be in addition to any other appropriate damages awarded in the case, and a claim of service mark infringement under the Lanham Act, 15 U.S.C. Sec. 1125(a), was appropriate in this case. So, even if the two damages awards are duplicative, the ACPA allows for both to be awarded. Second, however, these aren't duplicate awards. The key difference is that a case for cyberpiracy requires a showing of a "bad faith intent to profit" from a protected domain name, and so the award for damages served to punish Dr. Sanderson for his conduct in order to deter future violations of the ACPA by him. On the other hand, the award for damages under the Lanham Act was intended to compensate St. Luke's directly for its injuries and losses (for example, loss of business and profit) due to the service mark infringement.
The Court of Appeals added that this distinction between deterrence and direct compensation is consistent with how the Copyright Act (17 U.S.C. Sec. 504(c)(1)-(2)), a similarly worded statute, is interpreted, and as a result, other Federal Courts of Appeal have reached the same conclusion.
The lesson: If you steal the logo for "laserspecialist" and the domain laserspecialist.com, you'll pay for both.
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