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Paul Levy
Cyberlitigator on free speech issues at Public Citizen
Recent Activity
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by Paul Alan Levy The city of Mesa, Arizona, has threatened suit against a local businessman, Jeremy Whittaker, who is running for city council in opposition to a longtime city employee who enjoys endorsements from several current elected city officials.... Continue reading
Posted May 23, 2016 at CL&P Blog
by Paul Alan Levy When I saw the Popehat Signal a few years ago, seeking counsel to help Todd DeShong fend off a lawsuit in federal court in Texas claiming that he defamed Clark Baker on his "HIV Innocence Group... Continue reading
Posted May 3, 2016 at CL&P Blog
It is generally our practice not to allow comments posted in an effort to draw paying business to a commercial web site. However the comment above from "Jason Yungbluth" includes a substantive comment as well as trying to sell his own product: basically, if you follow the hyperlink in his comment, you will see that he argues that the Liberty Maniacs Sanders parody is indefensible because it does not change the Sanders campaign's logo. In a comment on his site, I tried to set him straight; he, in turn, responded to me. I then posted a more direct response, which he has so far "held pending moderation" -- perhaps it hits too close to home? Given that Yungbluth is unwilling to face trenchant criticism in the comments, I am posting them here (with some typos corrected, and switch from second to third person; readers will only be able to understand my criticisms on the context of his blog post and comments; apologies for the inconvenience): Yungbluth has gone seriously astray in three respects. First, he is apparently focused on ways in which people do parodies of logos – certainly if it is the logo that is being parodied, then you make changes in the logo. But if the objective is to parody the trademark owner, then by all means the logo can be used to identify the trademark owner. We often see that with respect to attacks on Barack Obama, which use his familiar Obama rising sun logo, unchanged, in the context of disagreeable criticism (for example, here http://www.cafepress.com/mf/35147984/antiobama-sticker-bo-stink_bumper-sticker?productId=443885599 and here http://www.cafepress.com/+obama_parody_car_magnet_10_x_3,572488382. Similarly, we often see attacks on Wal-Mart, using its familiar blue-block name with a star in the middle, perhaps with the cursive Always, but coupled with words that express disdain for what Wal-Mart “always” does (for example here https://www.etsy.com/listing/235133042/walmart-always-low-wages-always-funny and here http://walmart--sucks.blogspot.com/). Similarly, what McCall did here is use the Sanders campaign’s logo to make clear which “Bernie” is the target of his design’s commentary, and he does it in a way that poses no likelihood of confusion about whether the campaign is behind it. Second, Yungbluth's blog post and particularly his chat with McCall incorrectly suggest that one needs “permission” from a trademark owner to do a parody using its logo. That is a foolish suggestion: parody is protected both by the fair use defense to the Lanham Act and by the First Amendment; indeed, when a parody is plainly a parody, it does not create an actionable likelihood of confusion (if the mark is “famous,” then dilution considerations come into play and the analysis is a bit different). In fact, although Yungbluth's reproduction of the “chat” he conducted with Dan McCall elides this part of the conversation, McCall told him exactly that. I was a bit suspicious and so I asked both of them about that. When Yungbluth and I spoke on the phone, he equivocated but ultimately denied having been told by McCall that he did not need permission. However, McCall has supplied me with an unexpurgated version of the chat, and at the location where Yungbluth's image of the chat says “a bit of the chat got lost when my computer crashed,” McCall told Yungbluth that, if what he was doing was a parody, Yungbluth didn’t need his (McCzll's) permission. Certainly that was a convenient “computer crash.” But I do not appreciate the fact that Yungbluth lied to me when we spoke. Finally, Yungbluth has asked me a number of times to tell me whether “my client” objects to what he characterizes as a “hilarious parody.” I have tried to explain to him that I am not McCall’s general counsel. I have represented McCall a few times to defend some of his parodies. I have never represented him in affirmative enforcement of HIS intellectual property. And he has not asked me for help in addressing Yungbluth's design; thus I have no occasion to address whether he has done a parody. (Readers are welcome to express their opinions) In fact, to my knowledge, McCall has done nothing to stop Yungbluth. Whether that is because he thinks what this image http://www.whatisdeepfried.com/wp-content/uploads/2016/04/libertymaniacs_parody.jpg is a protected parody, or whether it is because he thinks Yungbluth is making a play for attention by trying to bait McCall into objecting so that Yungbluth can make a stink about it, you would have to ask McCall.
“Shimke”’s comment above asks whether the Sanders campaign might not have had better support for its takedown demand had it accused Dan McCall of defamation, in that McCall has, in Shimke’s view, created a false association with some hateful historical figures. But Sanders could not possibly bring a libel claim, because McCall’s montage of images expresses no more than an opinion about political similarities between Sanders and the historical figures pictures along side him. Now, Shimke might well contend that it is an ill-informed opinion, in that the comparison glosses over the many significant differences between a social democrat such as Sanders has been over the years and the dictators who took millions of lives in Russia and China — indeed, it over looks the intensely anti-Communist stance to which many socialists have adhered over time — but libel claims can be brought only over false statements of fact, not over opinions. As the Supreme Court said in Gertz v. Welch, “Under the First Amendment, there is no such thing as a false idea.” Shimke suggests that the shirt design could be understood as reflecting a statement by Sanders about his own understandings of comradeship, but again I think not, not least because the phrase is written in the third person by someone supposedly calling Sanders the speaker's "comrade." I might add that, although this demand was directed at the author of the parody and not at the host, trademark owners often prefer to invoke trademark law to attack speech that they don't like because trademark claims are generally understood to be within the "intellectual property" exception to section 230 immunity.
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What is it about presidential campaigns that brings out some of the worst examples of trademark bullying? Two years ago, we shot down bogus a trademark demand by the Ready for Hillary pre-campaign PAC, which tried to suppress Liberty Maniac's... Continue reading
Posted Apr 15, 2016 at CL&P Blog
by Paul Alan Levy Ted Frank’s comment on my post yesterday about the y-y-yuge sanction imposed on Donald Trump for bringing a frivolous defamation claim hit the nail on the head – this was an April Fools Day prank. But... Continue reading
Posted Apr 2, 2016 at CL&P Blog
by Paul Alan Levy Could a $500,000,000 sanction for frivolous litigation be large enough that even Donald Trump would start taking the First Amendment seriously, and stop trying to use the courts to suppress lawful speech that he doesn’t like?... Continue reading
Posted Apr 1, 2016 at CL&P Blog
by Paul Alan Levy Techdirt carries word of an ingenious scheme that two California lawyers have been running to get unflattering reviews removed from Google’s search results without ever proving defamation in an adversary proceeding and, indeed, without risk of... Continue reading
Posted Mar 31, 2016 at CL&P Blog
Resolving an ambiguity in the District of Columbia's Anti-SLAPP law, the DC Court of Appeals held today in Doe No. 1 v. Burke that a defendant who succeeds in a special motion to quash a subpoena for the defendant's identifying... Continue reading
Posted Mar 10, 2016 at CL&P Blog
An article by Paul Farhi in this morning’s Washington Post discusses a lawsuit filed by Donald Trump against the Timothy O'Brien, a financial author who wrote a book about Trump's business career. Among other things, the book questioned whether Trump... Continue reading
Posted Mar 9, 2016 at CL&P Blog
by Paul Alan Levy A comment to my recent blog post about Prestigious Pets, a Dallas pet care company that recently sued two of its customers for negative reviews, suggested an interesting approach for dealing with businesses that use non-disparagement... Continue reading
Posted Feb 26, 2016 at CL&P Blog
by Paul Alan Levy Until recently, a Dallas, Texas pet-sitting service called Prestigious Pets enjoyed a fairly high rating on Yelp – most of the reviews gave it five stars. There were, however, two one-star dissents, one from Michelle D... Continue reading
Posted Feb 22, 2016 at CL&P Blog
by Paul Alan Levy In an opinion that bristles with significant issues, the Court of Appeals for the Ninth Circuit has upheld the dismissal of a lawsuit by Sgt. Jeffrey Sarver asserting that a Hollywood studio could not release a... Continue reading
Posted Feb 18, 2016 at CL&P Blog
by Paul Alan Levy Last month I wrote about a proceeding in which Michigan’s Attorney Grievance Commission was investigating Steven Gursten, a Michigan lawyer who had criticized Dr. Rosalind Griffin, a member of the state disciplinary apparatus, for perjuring herself... Continue reading
Posted Feb 17, 2016 at CL&P Blog
by Paul Alan Levy The lawyers for Gordon Austin, the former Carrollton Georgia dentist who filed a lawsuit over the YouTube posting of a news report about his indictment for having beat his patients with a dental instrument when, insufficiently... Continue reading
Posted Feb 17, 2016 at CL&P Blog
by Paul Alan Levy Dr. Rosalind Griffin, a Michigan psychiatrist who apparently derives a significant part of her income by testifying as a medical expert for parties defending against tort claims, but also serves as a member of the Michigan... Continue reading
Posted Jan 28, 2016 at CL&P Blog
by Paul Alan Levy Over the past couple of weeks, several bloggers, most impressively Rebecca Tushnet, have published their analyses of a decision by Judge Jesse Furman granting summary judgment dismissing a lawsuit by Louis Vuitton Malletier against a tiny... Continue reading
Posted Jan 23, 2016 at CL&P Blog
by Paul Alan Levy A few years ago, Gordon Austin, a Georgia dentist from the small town of Carrollton, about 50 miles west of Atlanta, was indicted on multiple charges stemming in part from Medicare fraud and in part for... Continue reading
Posted Jan 15, 2016 at CL&P Blog
by Paul Alan Levy Last week the Seventh Circuit addressed several recurring issues pertaining to libel law in McCarthy v. Fuller, a case involving a falling out between by two sets of religious advocates pertaining to the holiness of certain... Continue reading
Posted Dec 23, 2015 at CL&P Blog
by Paul Alan Levy In a case litigated over the past few days, the Mall of America filed an action against several leaders of Black Lives Matter in Minneapolis who had called a demonstration, to be held inside the famous... Continue reading
Posted Dec 22, 2015 at CL&P Blog
by Paul Alan Levy This morning I attended a hearing at the D.C. Board of Zoning Adjustment in a case relating to a neighborhood issue in which I have been engaged – an appeal by our local Advisory Neighborhood Commission... Continue reading
Posted Dec 22, 2015 at CL&P Blog
by Paul Alan Levy In a decision issued today, the Court of Appeals for the Federal Circuit sitting en banc overruled a 1981 ruling by the U.S. Court of Customs and Patent Appeals and held that the portion of section... Continue reading
Posted Dec 22, 2015 at CL&P Blog
by Paul Alan Levy The Internet of Things and the world of smart devices has been heralded by industry giants like Philips for the conveniences that it provides for consumers, while allowing companies the “freedom to innovate,” but privacy advocates... Continue reading
Posted Dec 16, 2015 at CL&P Blog
by Paul Alan Levy Last month I criticized a Butte, Montana newspaper which, having decided to switch on January 1, 2016, from a commenting system that allowed users to choose pseudonyms to one that will demand the publishing of real... Continue reading
Posted Dec 15, 2015 at CL&P Blog
Since I published yesterday’s discussion of the Montana Standard’s retroactive elimination of anonymous commenting on its web site, there have been three informative developments. First, I was able to speak with the Standard’s editor, David McCumber, mostly off the record... Continue reading
Posted Nov 25, 2015 at CL&P Blog