GMacGuffin's Favorite Techdirt Posts Of The Week

Techdirt

from the back-again dept

Pre-postscript: I realized down at the end of this that it’s all about uncool lawyering, and I didn’t get to the most uncoolest of them all, the DOJ. Steel up, because scary DOJ stories roll in at an alarming pace.

That said, we’re working an attorney theme today from Hey, to Schadenfreude, then on to Censorious Douchebaggery.

The Hey: I am an Internet Lawyer in San Diego, which essentially means that I am a business litigation and transactional attorney who is deeply into internet and technology. I like to maintain a modicum of separation between my personal opinions and my professional life, hence the handle. I read Techdirt and other tech/law blogs regularly because … well, things have changed — radically — several times, over the eight years I have been focused on Internet Law, and you gotta stay on top of this stuff.

My job is not to file lawsuits — it is to resolve problems that the client needs resolved; to be the buffer between my client and the other guy. Lawsuits are what you do when nothing else works. It feels good to be me because I help people who need my skills. Yet, some lawyers can’t seem to remember that they are nothing but a particular skill set and their own reputation, i.e., that being ethical actually does pay. Cue the trolls.

I have had it in for legal trolls and shakedown lawyers for over a decade — first brought to my attention by the Trevor Law Group who used CA’s wonderful unfair competition law (UCL @ Bus. & Prof. Code §17200 et seq.) to shake down small-time hair salons and auto repair shops, etc. for a couple grand over alleged minor code violations. Those attorneys ultimately resigned to dodge being disbarred.

Trolls subvert the legal process; make things worse for the good guys; do nothing for the greater good — or, often, even their clients (if they really have one). They royally piss me off. So yeah, watching Prenda flame out across my universe is about as enjoyable as listening to the garbage they spout is infuriating (and hilarious). The hubris. Watching Prenda help to sound the national death knell for copyright trolling in general is … heartening. (Certain commenters’ ill-formed beliefs notwithstanding, the Prenda debacle is a big deal of epic scale.)

The Schadenfreude: And so the blitzblurb of the Prenda stories going down this week: First Paul Hansmeier asks the Appeals Court to stay Judge Wright’s hefty sanctions order … except, you have to ask Judge Wright in District Court, not the 9th Dist. App. Ct., which same court notes that meanwhile, “you can’t play here in your other class-action objection appeal thingy, Paul.” Ouch. Other Prendites also request a stay the same way, and get the same result, with a Special Added Bonus Benchslap for the failure to pay and improper last minute filing: $1,000 per day, per individual party, for each day they don’t pay or post bond, and an OSC to explain themselves regardless. Yikes. If you are an individual and the shell companies … do the math. (As a general rule, Judges do not like last minute requests; really don’t like ongoing patterns of last minute requests; and especially don’t like them when coming from parties who have already caused the Court paroxysms of judicial fury.)

Then we move over to Minnesota (man, I had some serious fun there in my youth), where the real Alan Cooper had sued Prenda and some Prendites over that silly misappropriation-of-Cooper’s-name-on-legal-documents business. We had a quick report by TD on a default hearing, then a lovely writeup by non-lawyer observer Matthew Sparby, who appears to have nailed the overtly emotional proceeding, with the Court throwing nasty words like “fraud” around freely. I, too, can attest that this judicial response as reported was most unusual. But I add that in 16 years of litigation practice, here’s what to expect at any hearing, no matter how prepared you are: Whatever you didn’t think of beforehand.

But there was actually kind-of-good news for the Prendites with two cases likely going away less painfully than what could have been, and we move on to Prenda in Georgia, with Jacques Nazaire. God I love this lawyer! He stacks on the nutty like gobs of Nutella on Milton’s Multi-Grain. Frankly, I don’t know what he was talking about — I just see Chewbacca Defense — so just read the story.

In legal parlance, there’s this thing called the “laugh test.” You might have heard of it. We have a duty to zealously advocate, and can make untested good-faith arguments, but you want to pass the laugh test even when your case is not receiving widespread coverage.

Censorious DBs: Speaking of nutty, we had DH’s story about Ferrero’s Nutella brand spread, and its C&D Brand Brigade (temporarily) shutting down an avid fan’s World Nutella Day, an unmitigated Nutella lovefest run by a fan whom Ferrero had worked with for years. This ties in with the story about the NY Times going all … well, NY Timesey with NYT’s overreaching “brand protection” efforts. As I noted in the comments, I’ve seen firsthand their legal department’s attitude. It does not appear to be about the better good of the publication, or the big picture at all. It’s one thing to C&D a party who reproduced their lauded multimedia piece as an example of the party’s new publishing software. Forgivable at best. It’s quite another thing to say: “You need to remove any reference to the New York Times from your website…” Er, you need to stop being a censorious asshat … infinity! Let’s see if she complies.

I’m super freaking happy to learn that Nutella backed down (per the article update). Was it overzealous lawyers or public backlash? Probably both. Nutelladay.com posts Ferrero’s release about the “fix,” saying it was a “routine brand defense procedure.” Ahh, so that’s what causes all this crap to rain down on those who mention a brand. Here in the 9th Circuit, it’s called Nominative Use. It’s not trademark infringement to reference a mark if that’s the only practical way to get the point across. (Please pay attention, Super Bowl. Yeah, I said it. Super Bowl Super Bowl Super Bowl.)

As to the overzealous brand lawyers, I’m being diplomatic with the term. I recall a stupid lawsuit over PPC keyword advertising filed out-of-state against my client. No real warning, no asking nicely; no merit — {insertion codes} were putting the other Co’s name in my client’s ad. Easy fix had they asked before suing. I was not at all subtle with these guys — to the point that local counsel had to play “good cop” — and after all this back and forth, opposing counsel finally says, “We brought the client into the loop, and ….” WTF? Client wasn’t in the loop during lawsuit filing and negotiations? The law firm was driving the bus? Yeah, there’s some incentive to resolve problems, eh?

Stunningly weirdly, about the time I finished the previous couple paragraphs and took a food break, TD posted a discussion of the Adam Savage interview about unreasonable brand control. I had this closing bit in mind to sum my hypothesis of the above, and basically Mr. Savage says it for me right there. So I’ll just post what he said:

The other thing is to make a qualifiable assessment of what the best business practices for them are. In so many corporations you end up with this battle between the PR department — who really does understand how to reach out to the fans and put everyone under a nice umbrella — and the legal department which wants nothing to do with them… and is somehow anti-the fans…. So wake up legal departments. We know that you guys work hard and are smart people. But you need to understand a little bit more about this before you send these nastygrams.

Manually Drafted and Coded by Yours Truly,

GMacGuffin

Twitter @gmacguffin (baseball & random); @tcjlaw (tech/law)