A Moron In A Hurry

September 14, 2006

NY to Outlaw Lawyer Blogs

Filed under: Uncategorized — nick @ 7:33 pm

Looks like NY is in the process of changing its ethics laws so that a blog would be considered advertising, which is strictly regulated by the state.  Under the changes, any communication made by a lawyer about a lawyer would be considered an advertisement.  While its understandable to view a blog as an advertisement, one question is whether there is a real problem this law is trying to solve.  How many blawgs might confuse or misleas consumers versus how much would we be hurt if the costs of writing to a blawg becomes to high?  It recalls a NYT article about lawyers’ disproportionate share of the blogosphere.

September 6, 2006

Court to Seize OJ’s Ego

Filed under: right of publicity — nick @ 1:14 am

Courts are increasingly inclined to protect the money-making personas of celebrities under the principle of publicity rights.  Based on state law, whether through statute or common law (California has both), the right of publicity is a property right rather than one arising under tort law that prevents others from commercially capitalizing on another’s fame in ways that are unfair.  It is similar in many ways to trademark, as in both are concerned with preventing public confusion and in making fame profitable. 
Now there’s news that Fred Goldman, the father of Ron Goldman, is asking the Los Angeles County Superior Court to grant him control of OJ Simpson’s publicity rights because OJ has failed to pay up on Goldman’s 1997 wrongful death suit:

Simpson has avoided paying the civil judgment because his National Football League pension and his Florida home cannot legally be seized. However, Goldman’s petition contends Simpson has continued to earn money through appearances and autograph signings.

Goldman said he wants to take from Simpson “what we perceive is probably the most important thing to him, and that’s his ego, and that’s the opportunity to use his name and likeness to earn money.”

Celebrities have enforced their right of publicity against others seeking to capitalize on their fame (recently, see Tony Twist and MLB), but this may well be the first time a court has been asked to seize someone’s persona to settle an outstanding judgment.  Though this is a “property” right, it is not property like a yacht or a house, a distinction that often gets conflated in many discussions over similar forms of intellectual property.  It is also a privacy right as well and one required to maintain personal integrity.  Or maybe this development is just desserts for those in our celebrity obsessed culture who have sought to commodify their fame.  It will be interesting to see how far this case goes.

August 22, 2006

Dylan on Tech

Filed under: copyright — nick @ 4:41 pm

Quote of the day, courtesy of Bob Dylan:

Noting the music industry’s complaints that illegal downloading means people are getting their music for free, he said, “Well, why not? It ain’t worth nothing anyway.”

To be fair (and to put it in context), he was referring to his belief that new technology doesn’t make his music sound nearly as good as it sounds in the studio.  He is right though.  Even if Dylan gave mp3s of his songs away for free he would still make tons of money touring, most of which would go straight into his pocket.

Solving Link Rot With NYTimes.com

Filed under: Uncategorized — nick @ 1:56 pm

This seems infinitely useful.  This site has made it possible to link to NYT articles on your blog and ensure that access to the full article is always permitted.  It really is annoying to follow a link and find out that the original source is unreadable without some sort of subscription or paying a $5 fee.  According to Backend.Userland.com, this goes along with a new NYT policy that allows links from blogs even after their free view is over, which is immeasurably sensible.

August 15, 2006

What’s the Opposite of a Knock Off?

Filed under: trademark — nick @ 1:51 pm

A knock up, which may not be as legally troublesome as the knock off.  From Counterfeit Chic.  Seems to me that an upscale luxury version of a popular item is still trading on the good will of the original product, a central argument that luxury brands use against thier imitators, which raises the question of at what point does a fashion homage cross the line?

Making Digital Backups of Our Culture

Filed under: copyright, internet — nick @ 1:25 am

One of the problems with locking up major cultural moments behind the walled garden of IP law is that it’s up to those who “own” them to preserve and maintain them for future generations. For all the talk that piracy and unauthorized copying hurt the short term financial prospects of such things, it’s also equally true that having millions of people with their own copies of such things will help ensure that they are always around. Strength in numbers and all. That’s why it’s so alarming to here that NASA can’t find the original recording of Neil Armstrong’s epic statement of “one small step for man, one giant leap for mankind.” In all, NASA reports that “some 700 boxes of transmissions from the Apollo lunar missions are missing.”

Not to say that NASA doesn’t care about preserving such things, but it’s not their top priority, especially when faced with increasing budget cuts while at the same time being asked to plan for more ambitious missions (like to Mars). If it’s possible to lose that recording – possibly the greatest moment of mankind since maybe harnessing fire – shouldn’t we be thinking harder about not letting such things disappear?

The Internet, and digital technology in general, allows us the opportunity to never even have to worry about such things ever again. When such a defining moment happens these days it ought to be recorded digitally and sent out so that people will see it, be amazed, realize it’s important, and download it to their computers. Fortunately, something similar has happened with NASA, as it appears the only copies available now are those that were sent to television stations for broadcast. Again, strength in numbers.

In a way that gets little attention, this is what Google is trying to do with Book Search. There are millions of books whose “owners” are not properly motivated enough to ensure that they will be read in the future. Rather then allow for such a valuable project to proceed, the “owners” think it better to sue under the thinking they might get a few extra nickels out of the deal. Though Google is only one, it is better than no digital backups, which was the problem NASA had with the original recordings.

The larger point to remember is that when control of important works is entrusted to a select few, the odds of losing a significant moment that defines a culture, a species even, is more likely to be lost than if it were widely distributed. Preservation seems to get little attention these days when it comes to IP issues and the Internet, unless you take the position that locking things up produces more, because if it gets lost, then the only choice is to create more to fill the void in the market.

August 9, 2006

Raiding Poor Countries for Trademarks

Filed under: trademark — nick @ 1:56 pm

Though I don’t know much about plants or medicine, there is a great post on BoingBoing about Brazil’s efforts to prevent foreign corporations from grabbing patents and trademarks from naturally occurring third-world fauna.  Brazil has apparently filed a list of more than 5,000 names of plants with the WIPO and the WTO in an attempt to show that these names are already in use and thus can’t be trademarked by foreign corporations.  It’s not all bad news, however, as BoingBoing points out that UC-Berkeley signed an agreement with the Samoan government to share any royalties from an anti-AIDS drug developed from the use of a native Samoan tree.  While it might be troubling that a nation can claim “national sovereignty over the gene sequence” of an indigenous plant, such an agreement is a better solution than having a foreign corporation assert similar rights through IP law.  Afterall, if Alaskan residents get a $1,000 check each year from the state’s oil revenues, why shouldn’t Brazil or Samoa be entitled to reward their citizens similarly for a native plant being a cure for a terrible disease?  Sounds like the beginning of a territorial moral right.

August 1, 2006

Dooby Dooby Dew

Filed under: trademark — nick @ 5:30 pm

Usually I’m a Pepsi drinker, something about the flatter and more sugary taste than Coke does it for me, but today I decided to live dangerously and bought a can of Mountain Dew. A futile attempt to liven up my life by switching brands, which is a flawed strategy that is also a waste of money.

I haven’t had a Dew in years – my fellow intern Prasanna says it’s so “premillenium” – so I was startled by the new look of the can. The new design has caused some concern for being pro-communist, but even more troubling is what appears to be blatant IP infringement going on right there in front of us.

Dew. Be Dew. Be Dew.

Upon noticing that little slogan at the bottom I had trouble figuring it out. Then it hit me. Dew. Be. Dew. Be. Dew is also easily written as Dooby Dooby Do. And we all remember that as the jingle from the Bud Ice Penguin ads of years back.

So being an aspiring IP attorney, I have to ask if this means anything. Is Dooby Dooby Do trademarked? According to the USPTO ‘Dooby Dooby Do’ was an Anheuser-Busch mark from 1997 to 2004, when the mark was cancelled. All I know is that I am in the awkward position of staring at a can of Mountain Dew while singing the Bud Ice Penguin song to myself. If that isn’t a prime example of being confused (in probably multiple senses) then I’m not sure what is.

Perhaps copyright then, since Dooby Dooby Do comes from a song (have to protect those musicians) and is also from a commercial; someone has to have some claim over it, right? Perhaps not, since short phrases and slogans are not covered by copyright.

In the end, it appears that Mountain Dew is thus free use a homonym of Bud Ice’s cancelled mark on its can without fear of lawsuit. But of course, if anyone at Bud was paying attention, they might want to let some free advertising work itself out. After all, the beauty of the Bud Ice Penguin was that it would lurk in the shadows while it kept people in constant fear – quite subliminal – which is exactly what is happening now. Man I’d like a beer. Dew me barkeep.

July 22, 2006

Name that Smell

Filed under: copyright, patents, trademark — nick @ 11:18 am

There has been lots of discussion on-line recently as to the IP status of scents.  Here is a quick round-up of the discussion and a technological development that could change everything.

It seems that the stink first wafted over the Atlantic due to recent decisions in France and the Netherlands that have recognized copyrights in perfumes. Counterfeit Chic was the first to report on this and the NYT followed (or here) up a few weeks later.

Info/Law thinks that a smell, more specifically a perfume, should be protected by patent law rather than copyright, but also notes the way that the French are much more protective of the moral rights of artists.

There’s also the question of trademarking a smell. As The Trademark Blog has pointed out, a Lituanian pizza parlor is arguing that the smell of their pizza has secondary meaning that affords it trademark protection:

“Opinion polls show that many consumers in Lithuania identify the pleasure of eating pizza with our trademark,” said Mindaugas Gumauskas, marketing director of the [pizza chain]. “This makes us believe that the scent of freshly baked pizza is a subject to our copyright.”

If the request is granted, it does not mean that other pizzerias would have to stop making the oven-baked dish, but only [the chain] would be able to make the claim that its food smells like freshly baked pizza.

Thus highlighting the potential peril of such an expansion of intellectual property rights.

Since trademark is all about brand protection, there are always people looking to protect nontraditional marks such as smells, tastes, feels, and etc. Here’s also a bit of history behind protecting nontraditional marks.

Generally speaking, smells have usually been denied protection because there is no good way to define one. For instance, registering a trademark requires a graphical representation of the mark, which is impossible for a smell, as the Court of First Instance of the EC ruled in Eden v. OHIM in denying trademark protection for the smell of strawberries.

A patent requires both that the subject being patented be new and non-obvious.  Using the smell of strawberries as an example, the scent is clearly neither new nor non-obvious; everyone knows and can recognize the smell of strawberries.  However, gene patents have become fairly commonplace since a case, Diamond v. Chakrabarty, 447 US 303(1980), first loosened the accepted ban on patenting living organisms.  There, SCOTUS said a man-made organism was patentable.  Gene and other bio patent seekers attempt to exploit this kind of loophole, with moderate success, through the drafting of narrow claims over extracted or purified biological elements.  Thus, while a regularly occurring gene as it occurs in nature might not be patentable, using mechanical processes to isolate it increases the odds that the lab version can be patentable.  Though, gene patents are hotly contested as being incompatible with the plain meaning of patent law, especially as more obvious biological phenomena are being patented.

So what do gene patents have to do with scents?  In 2004, Dr. Richard Axel and Linda Buck were awarded the Nobel Prize for scientifically describing how scents are processed by the nose.  It should be no surprise then that, based on this discovery, researchers are working on a machine that is able to record a smell and play it back.  If successful, not only does this mean that the smell of my mother’s one of a kind apple pie – using a mix of McIntosh and McCoun apples with cinnamon, nutmeg, and a dash of cardamom – could be recorded and coded (ie. fixed in tangible form), it could also be duplicated for all sorts of uses.

And once there’s money to be made the IP lawyers and suits will follow.  If you fix it, they will come.  Such a smell machine would break down many of the practical barriers in denying scents IP protection.  Copyright?  Here’s the olfactory code of my smell, much like a computer program.  Trademark?  With the ability to reproduce at will and package ingeniously, building secondary meaning is no longer so difficult or implausible.  Patent?  Like with gene patents, if I modify the smell of strawberries and can isolate it from its natural source, what’s stopping the USPTO from giving me a patent?  All of a sudden, what seems practical – scents are too ill-defined for IP protection – starts to smell a bit fishy.

July 19, 2006

YouTube or YouScrewed?

Filed under: Uncategorized — nick @ 9:55 am

I never realized this before reading this post on Wired, but YouTube’s Terms & Conditions grants it the right to use and distribute (royalty free of course) any material you upload to the site however it wishes.  Also, it seems as if MySpace is in the process of changing its terms of use.  Any time I see somthing like this, something that I’m sure someone would have noticed and mentioned before, I turn to the Wayback Machine to double check for any hanky panky.  What does it say when a company blocks the Wayback Machine from keeping tabs on companies making sneaky changes to their Terms & Conditions?

If anyone knows whether YouTube’s terms have been changed recently or have always been this way, please let me know.

July 18, 2006

Judges Not Above the Rest of Us

Filed under: Judiciary, trademark — nick @ 7:30 pm

What would happen if a judge, who confesses to owning counterfeit goods, presided over a trademark case involving counterfeiting? An interesting anecdote from Counterfeit Chic.

Pirate Hunting Merit Badges

Filed under: china, copyright — nick @ 10:00 am

The NYT reports today on the Boy Scouts of Hong Kong and their new Intellectual Property Badge Award Program:

Starting this summer the Hong Kong government plans to have 200,000 youths search Internet discussion sites for illegal copies of copyrighted songs and movies, and report them to the authorities. The campaign has delighted the entertainment industry

One of the concerns that the program, helped put in place by the Motion Picture Association, raises is that these Scouts are going to be teased and labeled uncool by their friends. In response, the MPA is flying in a bunch of movie stars to meet with the Scouts to make them feel cooler about what they’re doing.

The program actually could be good for the Scouts, even if the program was rolled out here, so long as the kids were taught both sides of copyright without all the propaganda. The Boy Scouts should be aiming to teach kids the things they need to know to be good citizens that they aren’t taught in school and teaching about copyright is a brilliant move. Of course, the lack of a Fair Use Merit Badge shows that this program is helplessly out of balance.

July 11, 2006

Are We All Pirates?

Filed under: copyright — nick @ 10:49 am

The LA Times posts an editorial We Aren’t All Pirates, criticizing Hollywood’s efforts to put the balance that copyright law is supposed to create between artists and the public out of whack, declaring that:

Lawmakers shouldn’t assume all consumers are bootleggers and every digital device is a hand grenade aimed at Hollywood.

That many of Hollywood’s actions involving copyright stiffle innovation isn’t news, but that Hollywood’s local paper agrees seems surprising.

July 8, 2006

Copying in Music Not All Bad

Filed under: Uncategorized — nick @ 4:18 pm

Wired has an article on the booming musical instrument business and the Gibson lawsuit.  In late 2005, the Sixth Circuit held that Gibson competitor PRS Guitars could market and sell guitars that imitated the distinctive Gibson look.  As to consumer confusion, one of Gibson’s attorney’s even admitted at oral argument that “You’d have to be an idiot not to know which guitar you’re buying.”  The article suggests that the decision is good for instrument makers, if not music in general, since most musicians start out emulating thier favorite stars.  A prime example of the theory that less stringent IP laws can actually improve a market and create more wealth, and with numbers that appear to back it up.

July 7, 2006

OED Says Google is a Verb

Filed under: trademark — nick @ 4:13 pm

The OED has officially announced that using Google as a verb is now an acceptable use of the English language. The announcement means that Google’s efforts to protect it’s name from becoming a generic term for Internet search must begin in earnest.

Here are some historical cases of famous marks becoming generic:

Here’s an overview of trademark law and includes a helpful section on the danger of genericism.

An interesting thought is whether Google could sue the OED over this. It could be argued that by validating the use of “Google” as a verb, the OED in effect is diluting the strength of the mark, especially since the OED is the authorotative source on the usage of the English language. If that were to occur, I would like to see the OED argue that its definitions are subject to its own subjective editorial discretion, and thus that they’re not at fault, just as Google tries to defend itself in disputes over its listings.

Evan Brown of InternetCases fame has a good look at verbs and genericide.

Yell Sues Yellowikis

Filed under: trademark, Wikis — nick @ 2:32 pm

Yell, the largest publisher of Yellow Pages in the world, has reportedly threatened to sue the site Yellowikis out of existence, claiming trademark infringement:

Yell is demanding that Paul and Rosa close down the website, transfer the domain names to Yell and agree to pay damages to Yell for loss of profits. Yell made $2.4bn in 2005, whereas Yellowikis had a loss of $500. The $500 was used to print T-shirts promoting Yellowikis at the Wikimania conference in Frankfurt.

The term Yellow Pages should probably be considered generic at this point, since many wouldn’t be able to connect the term with a company and generally consider Yellow Pages to apply to any yellow book that contains a directory, regardless of its source. In addition, infringement would require some showing of consumer confusion, and finding a sufficient number of people who confuse Yell with Yellowikis doesn’t seem likely. And according to Wikipedia, the term Yellow Pages and the walking fingers logo have been in the public domain since the 1950s when AT&T failed to renew their registrations.

Yellowikis was founded by Paul Youltin and his 14 year old daughter who thought it unfair that small businesses couldn’t be added to Wikipedia since they were deemed “non-encyclopedic.” ZDNet has a case study of Yellowikis from last year, noting that the company has the potential to be disruptive in its market by utilizing the wiki; that is, disruptive in the sense of being cheaper, bigger, and better. It’s should be obvious now that advertising supported physical phonebooks are on the way out, as the number of people who use the internet to find businesses is ever increasing, making phonebooks irrelevant.

While the threat of a suit may not proceed any further, in a sense, Yell is almost obligated to make a fuss in order to defend whatever trademark claims it thinks it has, much in the same way that Xerox has to police the use of its name to prevent it from becoming a generic term for photocopying, for once a mark becomes generic it loses its trademark protection.

Jordan Lookalike Sues Jordan

Filed under: right of publicity — nick @ 12:36 pm

What do you do if you look like someone famous and people bring it up all the time? One man who looks like MJ thinks:

… suing Jordan for defamation and permanent injury and emotional pain and suffering. He’s suing Knight for defamation and permanent injury for promoting Jordan and making him one of the most recognized men in the world

is the best solution. Allen Heckard, the MJ lookalike, is suing MJ and Knight for $416 million each because, as he says:

Well, you figure with my age and you multiply that times seven and ah, then I turn around and ah I figure that’s what it all boils down to.

Right. Dear Michael, I am suing you because you look like me and had the nerve to become the greatest basketball player of all time, making my life miserable. People hassle me every time I lace up my Nikes to play ball and it’s all your fault.

It’s like trying to sue a celebrity who shares the same name, as if your name was Michael Bolton, but only more subjective. Suing, however, is not the only way to cash in on being a celebrity lookalike.

July 5, 2006

Stealing Coke’s Secret Formula

Filed under: Uncategorized — nick @ 7:49 pm

Three people have been charged with stealing classified documents from Coca-Cola and trying to sell them to rival Pepsi Co., though it remains unclear whether documents contained the secret formula for Coke Classic or for a new product being developed.  Pepsi contacted Coke and the FBI after the perps offered to sell it the information.

What a potential coup it would have been for a soda company, especially Pepsi, to get its hands on such a vaunted secret.  It would have put Pepsi in a difficult position because the Coke recipe is one of the primo examples of the definition of a trade secret, but regardless, Pepsi should be commended for its upstanding behavior (disclosure: I’m a die-hard member of the Generation Next).

One thing that caught my attention is that the group’s point man asked to be addressed as “Dirk.”  It seems worth asking whether adopting a porn name gives credibility to an anonymous person peddling in secrets or whether it is a sign of amateurishness (Deep Throat being the exception).  I guess the process works, since a porn star and an informant both have something stashed away that they’re looking to share.

July 3, 2006

Christians and the Media

Filed under: Uncategorized — nick @ 10:35 pm

Two developments in the culture war that deserve mention.

A few weeks ago CBS was fined $3.3 million by the FCC for an episode of Without a Trace feating a flashback to an afterschool orgy (without any nudity).  The Parents Television council manufactured all but 2 of the over 4,000 complaints the FCC recieved.  The really sad part is that the episode originally aired months earlier, drawing no complaints, and the complaints that the rerun drew were not submitted until weeks after, once the PTC hosted the clip on its website and asked visitors to generate complaints.  CBS has, not surprisingly, challenged the FCC’s fine by declaring the complaints invalid since none were written by people who actually saw the show.

Ars lays out the whole story, while Copyfight questions the FCC’s latest attempt at censorship, both of which are worth reading.

Best of all, the PTC originally hosted a clip of the scene on its website (courtesy of the Wayback Machine), but has since taken it down and altered the page.  I can’t help but wonder if CBS threatened to sue for copyright infringement – I mean, people have been sued for less – and perhaps that would be an effective strategy against future manufactured PTC complaints.

The second part of this story involves outrage that the movie Facing the Giants, a Christian-themed movie, recieved a PG rating rather than GAccording to its website, the movie:

Follows the story of a football coach at a Christian high school who uses his faith in God to guide and strengthen the decisions he makes at home and on the field with his players.

The website also offers several testimonials, from college football coaches to NFL players, attesting to the power of Christianity in football.  This time Rep. Roy Blunt is leading the crusade in accusing the MPAA of giving the movie a PG rating because of its religiosity.  The MPAA denies this, duh, but Blunt trumps this as a further sign that the MPAA ratings process is a bunch of bunk.

Shit.  No one complained when Radio was rated PG and I can’t imagine this movie being any more tame that that.  It’s football!  And football involves at least a modicum of violence.  Little Giants: PG.  Remember the Titans: PG.  Rudy: PG.  Come to think of it, has any football movie ever been G rated?

But complaining about a Christian-themed movie getting a PG rating – the position being that a “Christian” movie should have a G rating almost by definition – is amusing for two reasons.  First, it seems as if it’s just desserts for religious inspired complaints against the FCC.  The FCC is supposed to protect “the public” and not every parent wants to bring their child to a Christian movie.  That’s a fair choice for a parent to make, hence the “Parental Guidance Suggested” label.  Second, it gives a little fodder for the “what rating would the MPAA give the Bible” debate.  Murder, rape, incest, fire and brimstone, mass smotings, and epic battles, all conducted under the watchful eye of a vengeful deity, would probably not recieve a G rating.

Seems to me that the groups that complain most about parents not having the tools to protect their kids aren’t so keen about having the tables turned on them.

June 29, 2006

Obeying a Takedown Letter a Binding Contract

Filed under: Uncategorized — nick @ 12:16 pm

TechDirt reports today on a vexing case out of Pennsylvania dealing with contract, defamation, and website take-down letters.  Apparently, the Pennsylvania Supreme Court of Philadelphia believes that obeying a take-down letter constitutes a binding contract and any reposting of the material constitutes a breach, despite any legal justification for posting the information at issue.

The case deals with Dominic Morgan, a Philadelphia man who had Lasik surgery in 1998 and whose doctors, Herbert Nevyas and Anita Nevyas-Wallace, he later sued for malpractice because he was left legally blind and was awarded only paltry damages.  Still unhappy, Morgan started www.LASIKsucks4u.com on which he wrote about his experience and dissatisfaction with his doctors.  The Nevyas sent Morgan a letter claiming his site was defamatory and demanded that all references to them be removed from the site (if he did, they promised not to sue).  As almost every lawyer would recommend, Morgan immediately removed the material at issue and proceeded to seek advice from a lawyer about the letter.  After determining that the Nevyas’ claim of defamation was weak, Morgan reposted the material and the Nevyas sued.

In April, the court found that

The parties had agreed that in exchange for the Nevyas’ agreement to refrain from  filing a lawsuit against Morgan for Defamation, Morgan would remove all defamatory statements from the site and refrain from doing so in the future. This Court found that Morgan agreed to this, even providing proof to the Nevyases of his agreement and compliance therewith… Essentially the Court found an offer, acceptance, including Morgan’s compliance with the agreement to alter the web site, removing the Nevyas name, and consideration.  Nevyas v. Morgan, No. 946, 2006 Phila. Ct. Com. Pl. LEXIS 203, 3 (PA. 2006).

So Morgan’s act of reposting the alleged defamatory material, though its defamatory nature was never discussed by the court, constituted a breach of contract between Morgan and the Nevyas.

Morgan is being represented by Public Citizen and has just filed his appeal (read here).  The appeal notes that not only did the correspondence between Morgan and the Nevyas not constitute a contract to not criticize the Nevyas, but that finding that it does is an impermissible waiver of Morgan’s free speech rights.  At some level, Morgan’s criticisms are mere accounts of what factually happened to him and as such he has every right to report that info to the public.  A fair and true report would not be defamatory, but the court never bothered to address the issue in basing its decision in contract.

As Public Citizen’s press release regarding the appeal points out, it is common practice for companies to threaten companies and individuals with take-letters in response to legitimate criticism and just as common for the information to be removed to avoid costly litigation.  If abiding by a take-down notice is determined to be a binding agreement, essentially an admission of guilt, such a practice could create numerous problems.  The time it takes for an individual to consult with a lawyer may create an undue delay, creating more severe penalties in the event of a lawsuit.  Further, because of the immediate need to respond to a take-down letter, legal advice might be hurried and less than thorough.  It could lead to information being removed in order to prevent litigation, and because such would create a binding contract, free speech would be greatly infringed upon because, in essence, even a retraction and a correction would be a breach.

The decision could also increase the number of people who flat out reject take-down letters, since they might be less likely to remove the disputed information if they feel that common sense and justice should be on their side.  Being up against a wall like this, more people might feel obligated to fight the take-down request, causing headaches for those sending out the letters, and in a round about kind of way might actually decrease the number of such requests issued.  As of now, it makes sense for companies and people to send out frivolous take-down notices because the costs are low (most people take the stuff down).  If more people fight the letters, costs will escalate, and those that issue such letters might be forced to pick and choose their battles more carefully.  This would not be such a bad result.

Interpreting the situation as one creating a binding contract ignores the strong first amendment argument that would hold this kind of expression as protected.  To make an end run around the first amendment by characterizing this as an offer and acceptance is most troubling, and likely (I would hope) an argument that will be rejected on appeal.

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