realitybasedcommunity » Trademark

The Ownership of Occupy Wall St.

rbc3 — Wed, 26 Oct 2011 17:06:28 +0000

I’m going to post something more generally about Occupy Wall Street [hereinafter #ows] soon but in the meantime, I want to comment on a tangentially related issue that arose after one protester at Zuccotti Park took it upon himself to file a trademark application for the term “Occupy Wall St.” [Original Smoking Gun story here; Daily News story here] … and the subsequent negative fallout from amateur foray into intellectual property law [Village Voice story where Maresca denies being a “jerk” here].

Maresca claims to have visited Zuccotti Park at least a half-dozen times, where he would hand out t-shirts he made with magic markers bearing the phrase “We Are the 99%” … with “You Matter” on the back. He first attempted to trademark the term “We Are the 99%” but noticed that someone had beaten him to it [per the PTO, that dubious honor goes to Brooklynite Ian McLaughlin, who seeks to use the mark in connection with the sale of clothing, bags, and bumper stickers]. Maresca then looked up the second most popular #ows protester chant–”Occupy Wall St.”–and plunked down $975, registering the mark in his wife’s name.

It’s not hard to figure out why Maresca was immediately reviled by those sympathetic to the protesters. The act of trademarking a term which grew organically to describe not just the protests at Zuccotti Park, but indeed the country, and indeed the world, is prima facie evidence of crass commercialism. How dare a single person try and co-opt the identity of a leaderless army!

But before we crucify Robert Maresca to that huge red sculpture at the southeast corner of Zuccotti Park, let’s take him at his word and take those words in the most favorable light, because (a) his intentions may have been less crass than at first appears; and (b) he’s clearly confused as to how intellectual property works and that may only be partly his fault.

First, let’s step back and be clear as to what Maresca’s $975 would buy him (assuming the application is granted). A trademark registrant owns what amounts to a limited government-backed monopoly on a word, phrase, image, and even a scent. In order to exercise this monopoly, the registrant must use the mark “in commerce.” But it’s more than a use it or lose it policy–you must also protect the mark by actively preventing others from using it. This way, not only is your investment in the good will symbolized by the mark protected, the public is likewise protected by the elimination of consumer confusion of the source of goods and services.

But, again, taking him at his words, Maresca doesn’t appear to have filed for the mark for crass commercial purposes:

“When I checked, it was available for anyone to trademark. And if I didn’t file, who’s to say who else might have grabbed it? Everybody had a right to it, and it’s important to keep it away from people who would try to use it for negative[.]“

and

He said the trademark “isn’t about me getting rich. If it turns into a big moneymaker, I would like some of it to go back to the group.”

[both quotes from Daily News story]

The existence of the public domain apparently never occurred to Maresca before he spent nearly a thousand dollars to own a term that has come to define and defend the public domain as belonging to people and not corporations. Likewise, Ian McLaughlin’s attempt to own “We Are the 99%” is similarly ironic in a forehead-smacking way–how can Mr. McLaughlin, who comprises perhaps .000000003% of the US population, own 99%?

In an interview with the Village Voice (responding to the negative publicity surrounding his application), Maresca responded to the notion that the term Occupy Wall St. may be in the public domain.

“I just wanted to protect myself,” he says. “I didn’t know that once something has been used enough like that it enters the public domain. I think that’s great. That’s how it should be.”

It’s great that Maresca thinks it’s great that the term entered the public domain, but what he perhaps doesn’t yet realize is that the public domain is incompatible with his profiting from the mark. It’s one or the other–he wouldn’t get to restrict what he considers “negative” uses while granting him permission to distribute free perpetual licenses for uses he agrees with. That’s not how monopolies work. I would expect the PTO to reject the application and render my speculation moot but you never know.

Maresca’s instinct to buy up “Occupy Wall St.” (“defensively” or not) may be less his fault than the fault of our brand-saturated society. After all, how much of what surrounds us isn’t already owned and exploited? How many similar popular phrases or terms can you name that didn’t get there via an identifiable owner? How often are terms organically propelled into the national discourse? Trademark law and the public domain rarely intersect as a matter of law (though perhaps they should more)–and when they do intersect it’s more often with respect to an individual’s fair use rights of particularly famous marks, whose ubiquity leaves it vulnerable to popular culture uses, unlike here where a mark simply sprouted from the earth for all, on behalf of all.

Then again, a search of the US Patent & Trademark Office search system for “Tea Party” returned 176 records.

****sucks.com revisited

rbc3 — Tue, 29 Mar 2011 16:14:02 +0000

A friend asked me a question about a domain name he was considering registering but was hesitant because his proposed domain used the trademarked name of a corporate entity that his proposed website intended to criticize. The name of the domain name isn’t important to the minor point I want to raise (and I obviously won’t spoil), but nevertheless it’s much different from, say, paypalsucks.com, which exists primarily to criticize Paypal. [For the record I have nothing against Paypal.]

I foraged up some links for my friend such as information about the UDRP arbitration process, which is basically an international mechanism to resolve domain name disputes between trademark holders and domain name holders. The most basic problem with the UDRP is that its decisions are more or less not binding–there’s little stopping the losing party from seeking a second bite at the apple in an actual court; and UDRP decisions are more or less all over the place.

That said, the trend has been toward a general consensus that sites using trademark protected terms are permitted to do so in instances where free speech is at issue, such as our paypalsucks.com example ( See also walmart-blows.com, bestbuysux.org, et al).

But what happens where the domain name at issue is owned by a competitor of the company that, er, sucks? Such was the case where Valley Goldmine, an Arizona cash-for-gold company pursued a UDRP claim against valleygoldminesucks.com and won when the arbitrator found that the domain holder was a competitor, finding bad faith, and concluding:

Although cloaked in the mantle of a gripe site, Respondent’s website is quite clearly a platform for Respondent to cast aspersions on the reliability of a report that portrayed his company in a negative light and his competitor in a positive light, and to otherwise sling mud.

If UDRP decisions were consistent enough to constitute a real body of law I might worry that this decision might serve the ill purpose of nibbling at the fair use exception to trademark law. After all, in a fair use analysis commercial use is only one aspect–so should the fact that the *sucks.com domain name is owned by a competitor automatically preclude its protection? I’m not sure. While I generally applaud decisions that poke beneath the surface to get at shenanigans, such as here, I’d worry that this principle extrapolated could adversely affect legitimate fair use examples where a “commercial use” is also present (it needn’t not be a competitor).

And that’s as worked up as I’m going to get in attempting to find sympathy for any cash-for-gold company.

Delorme McKee-Stovall and Santa Clara County – Defamation or False Light against Scientology protesters?

rbc3 — Sun, 28 Feb 2010 03:27:35 +0000

[UPDATED a/o 8:56 pm 2/28-- I've made some tweaks and corrections to this article, and may do so again, but the bulk will remain the same]

The “Network for a Hate Free Community” [site here] is an outgrowth of the County of Santa Clara, California, and headed by Delorme McKee-Stovall, who has taken up Scientology’s jihad against members of Anonymous and ex-Scientologists who regularly protest the nearby San Jose org. At the apparent behest of Scientology (most likely via Scientologist John Allender, who began a campaign: see here), McKee-Stovall recently republished a possibly libelous flier [page one, two] targeting the protesters after she met and threatened them with publication of the flier if their protests against Scientology continued (She reportedly told one of the protesters, “If you cancel your protest tomorrow, we will cancel our flier distribution.” [see here]). The protesters McKee-Stovall met with declined the offer.

Obviously, this raises serious questions about the role of McKee-Stovall’s office and the County of Santa Clara in the potential defamation of its own citizens, and possibly even whether the protesters’ civil rights were violated.

Initially, though, was the publication defamatory?

The flier specifically targets “members of a group wearing masks and calling themselves ‘Anonymous’ and disaffected members of the Church of Scientology,” and implies the protesters are responsible for “e-mail and faxes communicating death threats, bomb threats and other forms of demeaning messages” and alleges the “burning of an elementary school bus, slashed auto tires, cut gas lines, broken windows and demeaning hate slogans spray painted on walls. Most recently one of the participants was arrested for failure to register as a sex offender and for carrying a concealed weapon at a protest here in Santa Clara County.”

Since the flier does not name any specific person, but instead targets a group (or groups, as this flier would have it), a preliminary question exists as to whether a cause of action exists for members of a defamed group. The language in the flier clearly enough makes a connection between the group members and the laundry list of crimes alleged to have occurred, but the connection is indirect–only one allegation is directly connected to a “participant.”

Generally, a member of a group has no cause of action where the defamatory statement targets the group. See Debra T. Landis, Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618 (2008). An exception to this rule exists where (a) “the group or class is so small that the matter can reasonably be understood to refer to the member”; and (b) “the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.” Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 897 (W.D. Mich. 1980).

California recognizes this exception, acknowledging, in (ironically enough) Church of Scientology v. Adams [584 F.2d 893, 898 (9th Cir. Cal. 1978)], that “recovery may be allowed when suit is brought by a member of a small group where the defamation applied to all members of a group [citation omitted], this court has stated that ‘libels against groups consisting of large numbers of persons cannot satisfy the fundamental requirements of the law of libel ….’ Golden North Airways, Inc. v. Tanana Publishing Co., 218 F.2d 612, 620 (9th Cir. 1954)”. California courts have additionally found a group defamation exception where there is “certainty as to the individuals accused.” Smith v. Harnish, 167 Cal App 2d 115 (Cal App 4th Dist., 1959), citing Noral v. Hearst Publications, Inc., 40 Cal App 2d 348 (Cal App 4th Dist., 1940)

As larger groups generally have no cause of action, the size of the group described by the flier is material, and here, open to some interpretation. The flier targets “members of a group wearing masks and calling themselves ‘Anonymous’ and disaffected members of the Church of Scientology,” On one hand, the group that refers to itself as Anonymous is large–indeed, worldwide. However, the particular group of protesters in Santa Clara County is far smaller–fewer than 25 people. As the flier is actually tageting two groups, “disaffected [ex-Scientologists],” it may be the case that one group is more qualified under the group exception than the other; here, I would suspect that the protesting ex-members are more identifiable than the members of Anonymous, particularly moreso than those Anonymous members who remain anonymous. One important aspect of defamation is that damages are keyed to others being exposed to the defamation; you cannot be damaged if no one knows you’ve been defamed.

Moreover, the publisher of the flier, McKee-Stovall, met with particular members of the group targeted, even going so far as to threaten them with publication in exchange for the group’s promise to cease protesting [see account here]. It would be difficult for McKee-Stovall to maintain that the flier did not target individual members since she threatened particular members of the group with its publication. The protesters routinely protested, and the County became aware of them by Scientology’s complaints–surely McKee-Stovall could not have thought she was negotiating with a group larger than one which she apparently believed could be controlled by the few members with whom she met. It would appear that the group targeted by the flier satisfies the exception to the general prohibition against group defamation causes of action.

Assuming then that members of the group targeted by the flier could maintain a cause of action for defamation, the question becomes whether the flier is defamatory.

California Civil Code § 45 defines libel as a “false and unprivileged publication [...] which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

There is no question that had the flier falsely accused a particular member of the group by name of committing any of the acts therein, that person would have a cause of action for defamation. The closer question is whether the information in the flier is false.

The falsity requirement is problematic in that the flier appears to carefully avoid stating that any particular member of the group (with one exception) committed the itemized criminal acts.

It does strongly imply, however, that the group members are responsible for these acts. Courts have recognized “implied libel,” one of them even involving Scientology. See Southern Air Transp., Inc. v. American Broadcasting Cos., 877 F.2d 1010, 1012 (D.C. Cir. 1989) (“The applicable law holds that a defamatory inference may be derived from a factually accurate news report.”); Church of Scientology v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (“The arrangement and phrasing of apparently nonlibelous statements cannot hide the existence of a defamatory meaning”). Such instances are rare but seem particularly applicable here, as the language could easily be read as having been designed to circumvent defamation’s technical requirements; that is, the publisher of the flier wants the reader to believe that the protesters are responsible for the listed criminal acts, but wants to avoid the consequences for having done so. Indeed, there are few other plausible interpretations as to the intent of the flier’s publisher.

It’s worth noting in addition to aforementioned that according to one of the protesters McKee-Stovall spoke with, she admitted that the elementary school bus burning mentioned in the flier occurred next to a Church of Scientology, and that the police “had suspicions it was directed at Scientology.”

If defamation is inapplicable for any of the aforementioned reasons, another possible cause of action exists:

The tort of false light invasion of privacy has been compared to the similar torts of libel and slander in that all share such similarities as the necessity for proof of material falsehood in the representation of the plaintiff communication subject and, in most instances, the necessity that the falsehood in question be published or disseminated with constitutional “actual malice’ consisting of a knowledge of that falsity or a reckless disregard whether the statement or impression is true or false. One major point of difference between false light invasion of privacy and the defamation torts, however, is the fact that while false light may be defamatory and often is pleaded together with, or as an alternative to, defamation on a single set of alleged facts, it need not be defamatory in a technical sense in order to be actionable, so long as it is “highly offensive to a reasonable person.”

Russell G. Donaldson, False Light Invasion of Privacy – Disparaging but Noncriminal Depiction, 60 A.L.R.4th 51 (1988). [Emphasis added]

If the flier, due to its technical lack of falsity, doesn’t lend itself to a cause of action for defamation, “false light” may be a better fit. Like defamation, it requires actual malice, its content must be “highly offensive,” but unlike defamation, need not be technically false–merely misleading. Most states recognize false light and California is no different, first acknowledging the tort in Gill v. Curtis Publ’g Co., 239 P.2d 630 (Cal. 1952), where it found that the Ladies Home Journal was liable where it included, in an article criticizing “love at first sight,” a photo of an unaware couple with a caption implying that they were engaged in an illicit affiar. As in the defamation analysis, if McKee had named particular persons, the question of false light would be easily resolved. However, because she targeted a group, the question arises: is there a false light ‘group exception’ analogue to the group exception in defamation? For the federal district court of Western Michigan, the answer was yes, although it ruled that the group before it was too large to bring a false light claim. The analysis, however, was the same: a group can maintain a false light claim if the group is so small that the publicity can be reasonably understood to refer to the plaintiff, and the circumstances surrounding the publicity give rise to the inference that the publication refers to the individual. See Michigan United Conservation Clubs v CBS News, 485 F.Supp. 893 (W.D. Mich, 1980).

By ascribing heinous criminal acts to the Scientology protesters without knowledge of the allegations’ truth, McKee-Stovall recklessly communicated that criminality to the fliers’ audience–the neighbors of the protesters and citizens of Santa Clara. The group of protesters is small enough that it can be reasonably inferred that the flier targets those individuals. Protesters harmed by the publication of this flier have a valid cause of action for the tort of false light.

Hard evidence of Scientology’s illegal e-meter policy

rbc3 — Sun, 18 May 2008 02:57:22 +0000

Not long ago I posted about Scientology’s abuse of eBay’s VeRO program, which permits intellectual property holders to determine what constitutes an infringement and thus unchecked permission to remove sale listings. eBay’s VeRO program thus encourages overreaching by rightsholders.

One of the most notorious VeRO overreachers has been the Church of Scientology, which predicates its routine removal of e-meter listings on vague and specious intellectual property bases such as patent and trademark law.

Scientology does this in order to control the secondary market for used e-meters for both economic reasons—if used e-meters were more available, Scientology would have a difficult time selling new ones for thousands of dollars; and cultish reasons—by making itself the sole sales source for e-meters, Scientology imbues the e-meter with a religious mystique, albeit an unwarranted one, as the device is basically a crudely designed lie-detector.

If there were any doubt about the illegitimacy of Scientology’s intellectual property claims with regard to the e-meter sales on eBay, the following letter should put that to rest. Ruth Lorenzen is a recently departed ex-member of Scientology, and her departure was somewhat acrimonious—she was declared a suppressive person and even her business partner (a Scientologist) was instructed to cease communicating with her. They also sent her the following letter pertaining to the e-meter Ruth purchased during her time as a Scientologist [PDF here from Ruth’s site, my transcription below, with my emphasis added]:

[FLAG LOGO]
Church of Scientology Flag Service Organization
PO Box 31751
Tampa, Florida 33631-3751, U.S.A.
(727) 467-5000, email: flagserviceorg@flag.org

[Ruth's personal address withheld]

9 August 2007

Dear Ruth,

Have you now completed a review of the documents you have?

You had mentioned a meter earlier. What org did you get this from? It cannot be sold in any other way than back to an org. Please see the qualifying tag on the meter regarding ministers.* It is a separate matter to doing the Claims Verification Board routing form but it does need to be handled.

It has been since the 1st of July that you wrote to the Claims Verification Board Secretrary [sic] and this matter should be resolved by now.

Do let me know by return communication what has to be done to complete this cycle.

Sincerely,

[Signature]
Bob Bolger
FSO

This letter demonstrates how Scientology views its ex-members as being so beneath contempt that their right to resell goods is somehow magically nullified by a tag on the item. Like so much else in Scientology, the language on the tag is legal bluster meant to intimidate and is without much legal weight, if any. The unfortunate part is that legal bluffs are somewhat effective, especially against cult members, and even ex-members.

A similar legal bluff Scientology employs is what Professor Dave Touretzky has accurately termed the “Lisa Clause”—a broadly worded waiver of every personal and procedural right Scientology’s lawyers could imagine, intended to shield itself from the sort of liability that arose in the case of Lisa McPherson. If challenged, their proposed release form (which every Scientologist is forced to sign) would crumble fast on any number of bases (adhesion, unconscionability, lack of consideration are the first things that come to mind), but these agreements are rarely challenged, and it’s likely that Scientology even knows that. But the purpose of the Lisa Clause is identical in form to the e-meter tag: it’s not intended to withstand a challenge, only prevent challenges from arising in the first place.

* Tag language is as follows: "By itself, this meter does nothing. It is solely for the guide of Ministers of the Church in Confessionals and pastoral counseling. The Electrometer is not medically or scientifically capable of improving the health or bodily function of anyone and is for religious use by students and Ministers of the Church of Scientology only."

Yet Another E-meter, This Time for Real

rbc3 — Thu, 28 Feb 2008 01:20:12 +0000

The two e-meters in the previous post were indeed sold on eBay. However, the sale of the first e-meter ended after one day–five days early. The sale of the second e-meter is curious too, as no picture was included in the listing. This may have had the effect of robbing Scientology of its only thin basis for removal, that being that the listed e-meter was a counterfeit, and the listing thus a trademark infringement. Without the picture, it is impossible to ascertain the authenticity and thus impossible to claim trademark infringement. It may also be noteworthy that the second e-meter was listed by a British user.

Onto new e-meters! Well, one new e-meter. eBay listing here, and screenshot here, in case it disappears. The listing is due to expire in 4 days and can be “bought now” for $1400. The seller is from the US, and the e-meter is relatively new (a Mark Super VII Quantum).

New E-Meters For Sale on eBay

rbc3 — Thu, 21 Feb 2008 20:32:14 +0000

And with a very low $50 starting bid! It’s an older model, a Mark VI, and from the looks of it as well as the description, used. Here’s the link to the e-meter. Here’s a screenshot of the listing, in case it suffers the same fate as countless e-meters before it. With so much attention now trained on both eBay and Scientology, it will be interesting to see if this older model squeaks through. Bidding ends on February 28 at 10:12 PST, and the seller is from the United States.

UPDATE/CORRECTION:
There are TWO e-meters for sale on eBay. This other e-meter (a Mark Super VII) doesn’t attach a picture, however. Link to sale here. Link to screenshot here. The bidding is up to $260 on this model, and the seller is from London.

traffic!

rbc3 — Wed, 20 Feb 2008 13:02:49 +0000

I never expected all this hoopla (and you can quote me on that!). The hoopla I’m speaking of is for the 45,000+ ‘unique visitors’ to this site yesterday, from Slashdot, Digg, Reddit, Guy Fawkes, and Emma, all to read my post on Scientology’s abuse of eBay’s VeRO system. You all caused me to lose sleep while I tried to reconfigure the bandwidth of the site; the site crashed but was back up within ten minutes. I also received a few emails, some with interesting points I’ll try to address later.

One thing I would like address up front, however, is that the title of the Slashdot article linking here is a bit misleading. The VeRO program doesn’t quite give Scientology access to eBay’s database–it’s an administrative tool whereby VeRO members can remove listings. It’s not a slight distinction and should at least be pointed out. That said, it is true that the VeRO program allows rightsholders to police infringements themselves without interference from any human at eBay; these dynamics (including the prohibitive cost of responsive litigation by sellers) dictate a scenario where overreaching is inevitable.
Another point a few emailers made is that the DMCA safe harbor rule would come into play here, and if sellers wanted to restore listings that were removed, all they would need to do is counternotify. This is true only in the context of an alleged copyright violation, however. Trademark and patent law are not covered by the DMCA safe harbor provision, and it is trademark and patent which has served so far as the bases for removal when Scientology has complained, based on emails and conversations I’ve had with affected sellers. So counternotifying is generally not an option for sellers of e-meters on eBay. See the EFF’s Safe Harbor FAQ for more on this.

Scientology Abuses eBay’s VeRO Program to Practice Religious, Price Discrimination

rbc3 — Mon, 18 Feb 2008 06:48:46 +0000

By the time Bill (not his real name) left the Church of Scientology a few years ago, he had amassed quite a collection of Scientology material—mostly books, tapes, e-meters. But ex-members of Scientology (especially staff members) find themselves in a difficult spot in this regard when they leave Scientology: their books, tapes, and e-meters are only valued by Scientologists, who, quite inconveniently, are strongly discouraged (read: disallowed) from communicating with ex-members—as any ex-Scientologist will tell you.

Not surprisingly, he turned to eBay, where a Scientologist buyer can remain blissfully unaware that his seller is a declared suppressive person. But every time he attempts to sell his e-meter on eBay, the listing is removed within hours by the Church of Scientology, which claims that the listing violates their intellectual property rights. See screenshots of the auctions while they were up here [update; personal info redacted] and here, and respective “Invalid Item” eBay pages here and here. And it’s not just Bill—I’ve watched numerous e-meter listings from other sellers removed before they even receive a bid.

If you’re uninitiated to eBay, you’d probably think that for each of these removals, the Church of Scientology informs eBay of the violation of its rights, eBay considers the merits of their argument, and then only then does eBay yank the listing. But that’s not what happens at all. Instead, eBay effectively deputizes Scientology, which logs into eBay and removes the listings itself.

The mechanism that permits the Church of Scientology (and others) such broad access and discretion is called the Verified Rights Owner (“VeRO“) Program. Membership in VeRO is obtained simply by submitting a form to eBay explaining that you are an Intellectual Property rights holder.

It should come as little surprise that VeRO members routinely overreach, as the cost of challenging a listing removal is almost always prohibitive. (See my paper on this subject here, and see the brave husband and wife exception to this rule here.) The VeRO Program makes a great deal of sense for some types of listings—counterfeit Rolexes and Gucci handbags appear on eBay with such frequent regularity that those companies would be hard pressed to handle these trademark violations any other way.

But Bill’s e-meters (and the e-meters other ex-Scientologists have attempted to sell on eBay) are not counterfeits and do not violate the Church of Scientology’s trademarks, patents, or copyrights. Some sellers have even included the serial number found at the bottom of each e-meter in their listings in order to authenticate them. There is no source confusion, as every seller whose e-meters have been removed have made it clear that they took the photo of the e-meter, and that they are not affiliated with the Church of Scientology. Patent law doesn’t prevent the resale of patented items, and patent law barely covers e-meters anyway, the first having run out years ago and the 2000 patent only covering “improvements” on the “Quantum” e-meter. And copyright law barely applies here—all of the listings I’ve observed have been originally written, for one thing, and regardless, Scientology (from what I can gather) has only issued VeRO complaints under patent and trademark bases.

In short, the Church of Scientology is at least constructively aware that the e-meters being listed on eBay are authentic, and so have no basis under trademark—or under any other intellectual property basis, for removing these listings. What’s actually going on here is that Scientology is abusing eBay’s VeRO program, knowingly alleging Intellectual Property violations that clearly don’t exist, so that they can limit the secondary market for e-Meters, controlling both the price and who can get them.

It shouldn’t shock anyone that Scientology is trying to limit (if not eliminate) the secondary marketplace for e-meters, since they have a strong motivation to control the price on e-meters from their own production line (they update to a newer more expensive model every few years), and a strong motivation to control to whom they’re sold. The economic motivation should be clear enough—Scientology doesn’t want what few members it has being exposed to a secondary market because it would undermine their monopoly on a prohibitively expensive and infrequently purchased item.

Scientology’s other motivation for wanting to be the only game in town is intrinsically cultish—it has long perpetuated the idea that e-meters should never be used outside of the auspices of the Church. In other words, not only should Scientology be the sole sale source, but it should also be able to dictate every element of the post-sale environment—who can use it, how it can be used, etc. If e-meters are being sold on eBay, it doesn’t know the purchaser and can’t therefore control how and by whom it’s used.

Indeed, the warning label at the bottom of each e-meter demonstrates the kind of control to which I’m referring. The need for a label came about after the FDA took offense at Scientology’s claim that the e-meter retained medical benefits; the court eventually agreed with the FDA and mandated a disclaimer, which has morphed from the original into the following:

By itself, this meter does nothing. It is solely for the guide of Ministers of the Church in Confessionals and pastoral counseling. The Electrometer is not medically or scientifically capable of improving the health or bodily function of anyone and is for religious use by students and Ministers of the Church of Scientology only. (emphasis added)

But if the Church of Scientology has no real legal basis by which to remove eBay listings of e-meters, why would it assert, under penalty of perjury (as it must do to use eBay’s VeRO program), that it has “good faith belief” that the listing they are removing constitutes an infringement? It’s a roll of the dice no doubt, but the odds are in its favor that Bill—like almost anyone else similarly situated—will not sue to have the listing restored, litigation being profoundly cost prohibitive, especially against the Scientology litigation machine, even where the item removed could have sold for up to $5,000.

But Bill and the other similarly afflicted sellers are not without a legal basis for a complaint. It’s possible to argue that Scientology is engaging in price fixing, tortious interference with a contract, misrepresentation, perjury, unfair competition, discriminatory business practices, and religious discrimination, to name a few off the top of my head. Scientology’s intellectual property rights in its e-meter stop well short of being able to prevent a secondary market from existing, but eBay’s VeRO program permits them to essentially do just that.

This is not a new development—it’s been going on for nearly 8 years, as this Slashdot story shows. But it’s high time eBay did something about it.

Possible Scientology v. Gawker Empire copyright action

rbc3 — Thu, 17 Jan 2008 14:40:40 +0000

I attempted to leave the below comment at this thread on Gawker but it hasn’t yet appeared, so I’ll just post it here as well. The post includes a cease and desist letter from Ava Paquette and a reply by Gawker’s lawyer and VP, Gaby Darbyshire, claiming fair use.
—
A few points regarding fair use here. As others have pointed out, fair use is not quantifiable and is usually considered within a larger context (and varies court to court, minute to minute, etc.). One point in Denton’s favor is that the 9+ minute clip is part of a 1 hour video; it is an excerpt, despite the new life it’s taken on as ‘that creepy Tom Cruise video.’ That does help Denton’s fair use argument but I question how much; nine minutes is substantial, and the piece is uninterrupted by commentary. Publishing 1/6 of a medium size book would almost definitely not be considered fair use.

But Gaby Darbyshire’s response indicates that Denton plans to argue something more interesting: Because everyone was talking about the clip it somehow transformed itself into news, and can therefore be published as fair use. The problems with that argument are that (1) Denton helped turn it into news, and (2) there is a lack of case law supporting it. Indeed, the most obvious case on point works against Denton, that being Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997) (unlicensed broadcast of Reginald Denny beating during LA riots not fair use). So I don’t think this fair use argument will work if CSI decides to actually sue.

In Denton’s favor, it will be difficult for Scientology to show substantial damages, since the purpose of this video is by their own admission non-commercial, not to mention four years old. And while it’s obvious they’re being “damaged” in the sense that it’s airing is bad publicity for them, bad publicity isn’t calculated as damages in copyright law. Scientology can show enough damages to keep the suit from being dismissed, however, and since they’re not rational actors in the economic sense (they’ll spend $1000 in legal fees to get your $1 in order to either set a precedent or brand you a criminal), the possibility that they would bring a complex suit to bleed Denton of legal fees is real.

Fantasy Names and Statistics Are Free

rbc3 — Wed, 24 Oct 2007 13:45:41 +0000

I forget whether I commented on this case here before but I’m pleased at its end. A while back MLB sued the CBC fantasy sports empire over the right to use the baseball players’ names, claiming that its use was violation of the players’ right of publicity. The Eighth Circuit disagreed (pdf), affirming a lower court’s decision 2-1, saying that “It would be strange law that a person would not have a First Amendment right to use information that is available to everyone.” MLB sought to make a distinction between use of the names and statistics by the press and by a commercial entity (CBC).

Complicating the constitutional issue somewhat were a series of contracts presuming that the players’ names were indeed valuable: The MLBPA licensed to MLB the rights to their names for $50m and MLB in turn licensed to various entities for $2m a pop. The sole dissenting judge agreed with the majority’s free speech rationale, but argued that it should be held to the terms of its agreement with MLB, since the status of those rights were uncertain at the time it entered into the agreement.

While the opinion’s reach is limited to the Eighth Circuit, it seems unlikely that MLB–or any other pro sports league (most who were amici in the MLB case)–will litigate this issue elsewhere, having been shut down on the main issue by four judges total. Then again, a whole lot of contracts for a whole lot of money just became moot, so who knows what’ll happen–perhaps litigation to hash out the preexisting contracts. But the upshot is a breath of fresh air–the names and statistics produced by professional sports figures can no longer be owned and licensed because they belong to everyone.
ars technica story with deeper background on the case here.