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Loose Talk Online has Real-Life Consequences

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I’ve said it before, and I’ll say it again: sometimes, words have legal consequences. You can commit serious legal wrongs (fraud, defamation, solicitation, conspiracy, etc.) using words alone. Furthermore, speaking without thinking can hurt your legal position in other ways, inadvertently defeating an essential element of a claim or defense in a civil case.

I should also note, again, that these legal consequences apply whether you say something in the real world, or on the Internet. And since anything you say on the Internet generally has the potential to reach far more people than something said in the physical world, you should generally be more guarded about what you say online. But, for whatever reason, most people seem to do the opposite – typing out the first thing that pops into their heads, for the world to see.

Today brings yet another case (also seen here) of somebody saying something online, and negatively affecting their legal situation. Though this one is a bit more amusing than most. This case involved a divorcee who was awarded $850 per month in spousal support, partly because she claimed she was unable to work, due to a back injury.

However, the court found out that she was very fond of belly dancing, which, from my limited experience, looks like it would be pretty physically taxing – not exactly something for people who can’t work (even as a legal secretary, which is what our friend did before all this) due to a back injury.

So, how did the court find out that she had recently taken up belly dancing? Why, her blog, of course!

She made posts about how she “swirled around,” “danced herself silly,” and the like. And, of course, either her ex-husband, his lawyer, or the judge found these posts (she must not have made much of an effort to remain anonymous online), and asked her to reconcile this with her claim that she suffered so much back pain that she couldn’t work as a legal secretary.

Rather than fessing up, she claimed that her activities were prescribed by her doctor, as a form of physical therapy. Her doctor was called in, and he testified that he had no idea she was belly dancing on the side. Good work!

In addition to denying her petition for an order of spousal support, the judge ordered her to pay her husband over $5,000 in attorney’s fees. Ouch. This is one of the more boneheaded examples of loose online talk getting people into some sort of legal trouble (or defeating a legal claim that they might have had).

However, it’s gotten to the point that people are so reliable in revealing personal information online, that many older “high-tech” investigative tactics are becoming obsolete.

For example, it’s still pretty common for insurance companies to hire private investigators to keep an eye on plaintiffs in personal injury lawsuits against the insurance company’s policyholders. Just a few years ago, the most high-tech investigative technique they had at their disposal was surreptitious videotaping. They’d set up a hidden camera outside the plaintiff’s house, and look at what type of physical activities they’re engaged in. If they see the person working out, moving heavy objects, climbing on a ladder, playing sports in the front yard, etc., they can be pretty sure that his or her injuries are not as severe as they’re claiming.

Nowadays, however, they sometimes don’t even have to bother: the people they’re investigating will voluntarily post incriminating statements, photos, and videos on Facebook.

What is it about the Internet that it creates this massive blind spot in our discretion in sharing our personal information? I really don’t know. Perhaps it’s the illusion of anonymity. Perhaps it’s the fact that everyone else is cavalier with their personal information online.

In any case, we’ve known for years that this type of carelessness can get us into trouble. Yet, it seems that most people have to learn the hard way just how much damage it can do in real life.

One would think that, the more time we spend online, the more we’d start treating it as we treat real life – you know, thinking about what we say, and what information we share. But it seems that just the opposite has happened: we’ve completely lost any expectation of privacy. Or, if we expect to remain private online, we do next to nothing to protect that privacy, and are for some reason surprised when people find out things about us that we might not want them to know.

I have no idea how to change this. And I think it’s a pretty serious concern. With the Internet, our whole attitude towards privacy is changing, and the long-term effects this could have on society are impossible to predict.

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Prozac Ad Model Sues Because She Doesn’t Have Depression, Irony Ensues

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Right next to celebrated artist, Armored Core pilot, and professional Guitar Hero player, one of the many failed careers lining the interior of my failed/never-attempted/impossible dream closet is modeling.  So what if I’m not over six-feet tall? Tom Cruise is barely 5′ 7” and he did fine, right?

Fortunately though, unlike the parents of the professional Guitar Hero player, mine were well aware that there was a good chance that the bottoms of my many ill-conceived dreams were likely to fall out and discouraged me accordingly with a combination of verbal and occasional physical abuse.  It worked out alright though; now I’m in the legal profession and I don’t have to worry about modeling related nonsense, like being hit on by creepy old people or waking up one morning to find that I’ve suddenly been pegged the world over as a sufferer of depression.

Just joking, by the way.  I never wanted to be a model… *sniff…  Any who, like with most awkward moments in my life, I simply barrel through one by drawing attention to another.  In this case, it’s the very real story of a Manhattan model by the name of Gwendolyn Bucci who recently found herself in that very situation.

Bucci’s image was used on advertising material distributed by the pharmaceutical company Eli Lilly & Company in order to market Prozac, the company’s anti-depression medication.  Bucci alleges she was unaware of her image being used for the advertising and states that she never authorized Eli Lilly to use it in their Prozac campaign.  You can probably guess what happened next.  Bucci orders Eli Lilly to remove her image, but, of course, the company refuses to do so.  And now she’s locked in a legal battle with them where she is suing Eli Lilly for $450,000 in damages.

The problem is that Bucci, in my opinion, has no chance of ever winning a dime of that $450k.

Though I haven’t had the chance to get a hold of her complaint, it seems pretty certain based on the facts that at least two of Bucci’s possible claims are for infringement to her right of publicity and defamation.

The right of publicity is a law that basically protects your image, likeness, voice, name or performance style from being used without your permission to sell or endorse a product.  To establish a claim under this law, one generally must prove three basic elements: (1) the image used is of you, (2) your image was used for commercial purposes to endorse or sell a product, and (3) the public must be able to identify your image.  Seems pretty straight-forward, right?

Bucci can easily prove the first two elements as the image is of her and that it also appears in a commercial advertisement for Prozac where viewers would likely infer that she used the drug and that it cured her depression (in essence, an endorsement).  However, the problem is the last element.  As painful as it is for any model/actress to hear this, it’s very unlikely that any court or jury would find that Bucci has any mass public recognition.  I mean, I had to Google her name and look through her IMDb profile to figure who she was, and even then I’m still not a hundred percent sure the profile I found is actually of her.

For most people suing under this law, this last element is where their case generally falls apart.  Because unlike when Tom Cruise and Nicole Kidman sued Sephora for using their images without permission to sell Sephora products, Bucci’s suit lacks the same teeth because most of the public have no idea who Bucci is and probably couldn’t pick her out of a police line-up.

Bucci’s other potential claim, defamation, is on equally shaky ground.  Defamation can be either slander, which is spoken statement, or libel, which is what it’s called if it’s done in print.  Of the two, libel is applicable in Bucci’s case since she alleges her image was used in a Prozac print ad.  In case you haven’t seen “The People vs. Larry Flynt,” defamation laws protect a person from having false and malicious statements or portrayals made about them to the public which injure that person’s reputation.

The elements to establish a defamation claim are very similar to the right of publicity.  Essentially, one must show that a false statement or portrayal of a person was communicated to a nonessential third party and that it was harmful to that person’s reputation.  Once again, this seems like a very simple analysis in Bucci’s favor, but like all things in law, problems are often more complicated than they initially seem.

Here, though Bucci once again has no problem showing the ad falsely portrays her as a depression sufferer and Prozac user, she’ll likely have issues showing that it actually harmed her reputation.  This is because once again the public has no idea who she is.  Though the law only requires that it be communicated to a nonessential third party, there likely isn’t any harm because anyone who knows her would probably also be aware that she’s a model and thus often has her image used to endorse all sorts of things.  Therefore, once again Bucci doesn’t have a leg to stand on.

However, on top of all this, Eli Lilly probably has a wonderful defense against Bucci’s lawsuit because more likely than not the company probably purchased the photos of Bucci from a modeling or advertising firm that owned and was authorized to sell her image for marketing purposes.

Though you still got to hurt somewhat for Bucci, even though she probably can’t prove harm on a legal level, no doubt it’s got to suck being the butt of your friends and family’s Prozac jokes.

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Google Books Settlement Raises Copyright Concerns

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The amazing world of reading has certainly felt the effects of digital technology.  Bookstores and magazine stands are quickly being replaced by online literature, electronic readers, and podcasts.  Even the act of reading itself may be slowly getting outdated.  As we’ve blogged about before, many e-book readers have audio reading functions that read aloud to you so you can proceed with your all-important multi-tasking while listening.

And recently Google was poised to take over the world of digital books.  For the last several years, Google has been in the process of acquiring and scanning the world’s books to build their online library collection.  It appears that Google was well on its way to creating the ultimate online beast of a library, if not for a federal judge who rejected a massive Google book agreement.

Google’s proposed agreement would have accomplished several things:  first, it would allow Google to be compensated for the book scanning and collecting it had done in the past.  Secondly, the agreement would have allowed Google to work in conjunction with several publishers to expand the library to create a massive multi-million title Google bookstore.

The deal would also have been effective internationally, and would allow Google to obtain and sell “orphan works”, or works where the author isn’t immediately known.  It would also allow Google to provide much longer scanned snippets of text for consumers to view before they finally purchase the literature.

Google’s proposed settlement has been initially rejected by Judge Chin in the case of Author’s Guild vs. Google.  Judge Chin cites three reasons why the Google Books agreement is bunk:  first, it would basically allow Google to monopolize the book search field; second, it would allow for invasions of personal privacy; and third, the $125 million deal would allow Google to appropriate copyrighted work without permission.

Now, it’s not so much the first two concerns that grab my attention- everyone knows that Google is already dominating the web, and our privacy is already shot to pieces.  Rather, it’s the copyrighting issues that concern me.  Google’s band-aid solution to the copyright question was this- concerned authors would be allowed to “opt out” of the settlement to protect their works.  Google even created a Book Rights Registry where copyright holders could submit claim forms for their works.

Is it just me, or does this seem completely backwards to you?  This is basically like saying, “we are appropriating your copyrighted works, and if you don’t like our program, we are being generous enough to allow you to opt out”.  Judge Chin recognized this and suggested that Google substitute an “opt-in” choice for the nonsensical opt-out procedure.

Before I continue my rant, I’d just like to say that I do think online and digital libraries are a great idea.  Electronic books certainly allow consumers to access titles that may be difficult to come across.  This is especially true with older titles and international works that aren’t available in the U.S.  And Google’s bookstore would potentially allow access to some of the most well-respected university libraries, such as the ones at Oxford and Harvard, an idea which I like very much.

But on the other hand, if you’re going to build an online digital book collection, it’s got to be done correctly!  You can’t just use people’s protected pulp without their permission.

And it has taken humanity’s lifetime to amass all the book knowledge- so really there shouldn’t be any rush to catalogue everything, especially without giving credit where it is due.

This case will definitely affect the literary world more than we may realize.  Judge Chin’s recent findings teach us the importance of protecting one’s intellectual and artistic creations.  It appears that the author of the (near) future may have to be as keen on their copyrights as they are on the stories they have to tell.  We may see the emergence of the author-lawyer who is skilled in the art of legal self-defense.

I believe that basic copyright knowledge will probably have to be integrated into any educational path towards authorship.  Part of the reason why “orphan works” exist is because writers don’t know about their literary rights to begin with.  Maybe as early as middle or high school, young writers should at least be informed of the great changes that are happening within literary channels, including all the different devices out there.  By the time college rolls around, potential authors should be allowed to take courses teaching them how to protect their works.

In the past, much knowledge was lost whenever a document or script was lost.  But the new challenge here doesn’t have to do with the books but with the authors themselves.  Trampling on author’s rights could create an even bigger mess than the destruction of the Alexandrian library.

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Thoughts on the Proposed Mobile Privacy Legislation

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There’s a very interesting proposal in the U.S. Senate. Legislation is currently being drafted that would require police to obtain a warrant before using a GPS device (or other tracking technology) on a car or cell phone in order to track a person’s location. The Supreme Court has held that the Constitution does not require a warrant for such activity.

However, Congress can enact statutes that extend privacy rights beyond the minimum requirements of the Constitution. Remember, the Constitution (particularly the Bill of Rights) is meant to serve as the floor of protection for individual liberties, not the ceiling. So, there’s clearly no constitutional issue with this bill.

However, is it good policy? That’s a more difficult question. There is no doubt that the many decades-old laws need to be updated to deal with the unique issues that modern technology creates. Some laws, especially those dealing with privacy, are woefully out of date, meaning that courts have very little legislative guidance when deciding legal issues involving today’s technology. Virtually everyone agrees that this is a problem.

Of course, there’s plenty of disagreement about how the law should endeavor to solve this problem. Obviously, civil libertarians, privacy advocates, and phone companies (which often have to participate in law-enforcement activities in a less-than-voluntary manner) would support this law.

Law enforcement agencies, on the other hand, are likely to mount a very strong opposition, and no member of Congress wants to be perceived as soft on crime.

A very good case can be made for the notion that a person doesn’t have much of an expectation of privacy with respect to their location (after all, all this technology does is reveal a person’s location, or past location, not what they’re saying or doing at that location), especially when they’re out in the open, or in a car on a public highway.

The law has another major provision that privacy advocates are likely to love (and that law enforcement, and “law and order” types are sure to dislike): it allows anyone whose location is tracked in violation of the law to sue the authority that violated the law, recovering a minimum of $10,000 in statutory damages, or whatever actual damages they suffer as a result, if they’re higher.

This is in stark contrast to what the Supreme Court has ruled constitutes an appropriate remedy for an unlawful search by the police: the evidence gathered from an illegal search cannot be used in court. But the constitution does not require any monetary compensation.

While I can understand the sentiments behind requiring a warrant for “searches” like this, I don’t know if the monetary compensation for violations of the law is necessarily warranted. After all, most violations of the constitution don’t entitle victims of such violations to compensation, unless a statute has been enacted that specifically authorizes it.

Of course, this law is presumably motivated by the idea that the constitution, at least as the Supreme Court currently interprets it, does not go far enough in protecting privacy. It could follow from that premise that the constitution also does not go far enough in providing specific redress for violations of its provisions. While I understand the desire to provide victims of lawbreaking by public officials redress, statutory money damages to criminal defendants, even when they’re warranted, often have a very negative PR effect. Every once in a while, we hear about a criminal defendant suing a police department for brutality or other violations of the law. In addition to sometimes getting charges against them dropped, the former defendant sometimes ends up collecting a large sum in monetary damages.

Again, there are plenty of cases where the facts warrant this. However, it’s very easy for talking heads in the media to selectively report the facts, and spin the situation into “just another case of a criminal getting a tax-dollar payday because of some little technical flub on the part of the police.” And then there is much wailing, rending of garments, and gnashing of teeth.

Obviously, legislators shouldn’t let a bunch of ratings-driven TV and radio pundits dictate government policy, especially when it comes to matters of individual liberty, but it’s naïve to say that it doesn’t happen. Most members of Congress want to be reelected, after all.

Ultimately, however, I think it’s more important that Congress and/or the federal courts fashion clear rules for police departments when it comes to using this technology, than what those rules actually entail. There have been many, many laws and Supreme Court cases that have reduced the discretion of police to conduct warrantless searches, wiretaps, and other invasions of privacy. Police departments complained that these rules made their jobs more difficult, and allowed some criminals to go free.

In the short term, they were probably right. However, police departments have proven themselves to be adaptable, and have been able to effectively investigate, arrest, and prosecute suspects, despite the constraints that have been put on them in recent years.

Ultimately, if this law does pass, I have no doubt that police departments and the FBI will continue to prove adaptable.

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Make Your Own Coca-Cola And Enjoy Lawsuits

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The great taste of Coca-Cola can now be yours . . . at home!

Yes, that’s right this month will forever mark the historic event when the Coca-Cola recipe was finally release online and millions the world over first began making and enjoying the iconic soft drink in the comfort of their own home, free from the manufacturer’s tyrannical prices.  That, or people will just keep buying the drink from the store because you know, it’s cheaper and no one wants to figure out how to extract coca fluid from a coca leaf.

I think that the best part of this whole story is that for consumers, it actually costs more to make the drink themselves than to buy it, not to mention it’s a whole lot more difficult and time consuming to make it.  Which is why it’s so funny that Coca-Cola has so vehemently denied that “This American Life” (the Ira Glass radio show that first broke the story) has the correct recipe for their sugary soda.  I mean, who the hell would want to make Coca-Cola after the initial novelty of making it yourself wears off?  It’s something you do once and never again.  The only consequence to all of this is that if you happen to actually try to make Coca-Cola, you’ll probably never want to drink it again after seeing how much 30 plus grams of sugar actually look like.

However, the other more likely reason for Coca-Cola’s adamant response is that they are probably more afraid of other companies co-opting the formula, and bottling and selling a bastardized version of the classic soda themselves, thereby cutting into the corporate cola giant’s profits.  In which case, if I were Coca-Cola, I would also probably be fuming mad at Ira Glass and company, as well.  You don’t mess with a person’s meal ticket, and if you do, expect to be fought tooth and nail all the way.

Anyway, in this global market of ours having a commodity that can be exclusive called your own is a valuable asset to possess.  Exclusivity means that if anyone wants what you have to offer, they’ll have to come to you to get it and that means huge profits for you.

The best example of this is the pharmaceutical industry where continued dominion over drug innovations can literally make or break a company.  The cost of researching and creating the drug on top of getting FDA approval is incredibly expensive, which is why drug companies fight so hard to hold onto their patents and sue anyone who they suspect are stealing the fruits of their labor for themselves.

But the problem of corporate espionage isn’t exclusive to the drug industry.  Competition is on a global scale these days and everyone from a small business owner in Topeka, KS to Coca-Cola can be susceptible to infringement of their intellectual property.

However, patent infringement is a tricky area of law, especially when it’s at an international level.  In the case of Coca-Cola, they probably don’t have a valid lawsuit for infringement against “This American Life” since the show isn’t profiting from exposing Coca-Cola’s formula insofar as they aren’t manufacturing and selling a soda that infringes on Coca-Cola’s trademark (since I don’t think any company has patented their cola formula, if someone knows please tell me).

But the company could claim there were financial harms when the show released their trade secret, the Coca-Cola formula.  However, by doing so Coca-Cola would be implicitly admitting the show found the correct formula.  Or Coca-Cola could argue that the show found a formula that people believe is correct, but isn’t, but that the false belief has cause the company to lose money.

Ultimately though, Coca-Cola would probably not want to sue at all because the subsequent press coverage would give the supposed formula more fame and trouble than if they just had just not spoken up to begin with.  See the problem now?  When you sue for infringement, you can sometimes end up hurting yourself more.

Law can be a hell of a drug.

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