A Great Response to a Cease and Desist Letter(abovethelaw.com)
abovethelaw.com
A Great Response to a Cease and Desist Letter
http://abovethelaw.com/2013/06/how-to-write-a-great-response-to-a-cease-and-desist-letter
171 comments
It's true that most cease-and-desist letters contain awful legalese, but here's a great example of a well-written, classy one: https://brokenpianoforpresident.files.wordpress.com/2012/07/...
What's nice about that one is it appears to fulfill their obligation to show that they are policing unauthorized uses of their trademark without causing any real harm to anyone else.
Wow, that nearly brought a tear to my eye (which probably says more about past abusive C&Ds I've seen than this one in particular)
wow. It's amazing how phrasing and tone can change your posture and make your compliant or resistant to demands.
A form of mental/monetary Judo. Thanks for the example.
A form of mental/monetary Judo. Thanks for the example.
Why does JD have a trademark claim here in the first place?
AIUI, trademark is not a tool to protect the manufacturer/seller of a product, but a tool to protect the consumer, to help them avoid confusion in believing that a similar-looking product is from the brand "owning" the trademark.
How can a book (especially an ebook!) be confused as a Jack Daniels product? Surely the purchaser has no expectation that they'll be able to drink from the book.
My understanding is that similar names in unrelated industries do not clash over trademark. For example, Gibson Guitars and Gibson performance cat-back exhausts are so vastly different (despite both making sweet sounds) that nobody is going to be confused
AIUI, trademark is not a tool to protect the manufacturer/seller of a product, but a tool to protect the consumer, to help them avoid confusion in believing that a similar-looking product is from the brand "owning" the trademark.
How can a book (especially an ebook!) be confused as a Jack Daniels product? Surely the purchaser has no expectation that they'll be able to drink from the book.
My understanding is that similar names in unrelated industries do not clash over trademark. For example, Gibson Guitars and Gibson performance cat-back exhausts are so vastly different (despite both making sweet sounds) that nobody is going to be confused
You can buy a Jack Daniels T-shirt with the label printed on it. Presumably, no one thinks they can drink a T-shirt, but the product is produced by (or at least licensed by) Jack Daniels.
If the controversy were over copyrights (presumably JD holds a copyright on their label), where the book cover reproduces that copyrighted work, then I'd get it. The T-shirt would be subject to the same copyright concerns, and need to license the image.
But the referenced letter explicitly says it's a trademark issue. I can't see how consumers are potentially confused between a book bearing a particular product on its cover, and that product itself.
But the referenced letter explicitly says it's a trademark issue. I can't see how consumers are potentially confused between a book bearing a particular product on its cover, and that product itself.
If the average person understood the vagaries of intellectual property law and the distinction between copyright and trademark, then a swoopy design that looks a lot like the Jack Daniels label wouldn't cause confusion in the marketplace.
Unfortunately, it looks like such kindly worded cease and desist orders do not actually produce results, the person here doesn't appear to have changed the cover of the book at all.
http://www.amazon.com/dp/1621050203
http://www.amazon.com/dp/1621050203
That page is for the first edition of the book.
Indeed, here is the second edition: http://www.amazon.com/Broken-Piano-President-Patrick-Wensink...
Awesome, thanks for the info.
He still didn't remove the obvious branding ties all over his website, but at least he did change the physical cover, I'm still not convinced it worked out as well as JD would have liked.
He still didn't remove the obvious branding ties all over his website, but at least he did change the physical cover, I'm still not convinced it worked out as well as JD would have liked.
I remember back when I was 16, I did a web page about my home town, claremont nh. I did this site: http://digitalsushi.com/midashi/claremont/ I was working for an ISP in town, and someone with the town called up the ISP to ask whom owned the site. Since I worked there, I was simply transferred the phone call. You can imagine how contextually confusing that would be, to be handed a call that technically had nothing to do with working there, and also, being a dumb 16 year old on tech support.
Well, the guy was asking all sorts of questions. I felt very intimidated. I remember clearly a phrase he left me with: "Well, this is just Big Brother checking in and making sure you're acting in good faith." He decided that I was, that I was not on a mission to sully the good city of claremont, and that was the end of it. But it really stuck with me, probably just out of my young age and the authority of a city official grilling me. 17 years later, the troll I have turned into would have loved the chance to bring out the worst in me, so it's probably good this happened when it did.
This article really brought me back to that time. Also, it's terrifying I have web content I published over 50% of my entire life ago. I know some of you have worse percentages, but that middle mark... yikes.
Well, the guy was asking all sorts of questions. I felt very intimidated. I remember clearly a phrase he left me with: "Well, this is just Big Brother checking in and making sure you're acting in good faith." He decided that I was, that I was not on a mission to sully the good city of claremont, and that was the end of it. But it really stuck with me, probably just out of my young age and the authority of a city official grilling me. 17 years later, the troll I have turned into would have loved the chance to bring out the worst in me, so it's probably good this happened when it did.
This article really brought me back to that time. Also, it's terrifying I have web content I published over 50% of my entire life ago. I know some of you have worse percentages, but that middle mark... yikes.
"ask who owned" not "ask whom owned". "whom" isn't just a word to put in to sound educated - it's used only when the "who" is an object. Here it is not.
For all intensive purposes, your right, but is they're really any need to go over things with a fine toothcomb? As me and everybody else seems to feel, the point hear is mute, and I'm sure yourself agrees. Its clear enough what was meaned.
very impressive and equally painful, how long did that take you?
Excellent comment.
You don't have to be a dick about it. I thought 'whom' was right because the subject of the sentence was 'someone'.
Next time, just say that the object case on the pronoun was licensed by an elided preposition. Continuing to call out the dickish behavior of the other poster works, too.
Gramma who under you prepose right would be?
Years ago, someone taught me a very handy trick for determining whether to use the subject or object form: rephrase the sentence somehow so instead of who/whom, you're using he/him (or she/her, if you're so inclined). If "she" sounds right, use "who"; if "him" sounds right, it's "whom".
Your advice isn't very clear, as you're switching genders. Stick with one, lest someone think "whom" is for men and "who" for women:
If "he" sounds right, use "who"; if "him" sounds right, it's "whom".
If "he" sounds right, use "who"; if "him" sounds right, it's "whom".
I learnt an even better trick: don't use it.
Or rather, only use it if you intend to go the whole hog and comply with all the pedantic, pseudo-latinate prescriptions of traditional formal English grammar.
"It is I."
"Bad grammar is something up with which I shall not put."
"This is an historic occasion."
And so on....
Or rather, only use it if you intend to go the whole hog and comply with all the pedantic, pseudo-latinate prescriptions of traditional formal English grammar.
"It is I."
"Bad grammar is something up with which I shall not put."
"This is an historic occasion."
And so on....
That's an okay strategy if you're going for "maximin": the best possible worst result. More refined speakers of English will notice and take umbrage at your mistakes, but a wrong "who" is so much less irritating than a wrong "whom."
> Or rather, only use it if you intend to go the whole hog and comply with all the pedantic, pseudo-latinate prescriptions of traditional formal English grammar.
The who/whom I/me distinction isn't a pseudo-Latinate grammatical prescription - it's the last vestages of overt case marking in English. An + words starting with "h" is a phonological side-effect of h-dropping in some dialects.
The preposition stranding thing, though, is pseudo-Latinate prescriptivism. That and the supposed wrongness of split infinitives are my two biggest annoyances with "proper" grammar.
The who/whom I/me distinction isn't a pseudo-Latinate grammatical prescription - it's the last vestages of overt case marking in English. An + words starting with "h" is a phonological side-effect of h-dropping in some dialects.
The preposition stranding thing, though, is pseudo-Latinate prescriptivism. That and the supposed wrongness of split infinitives are my two biggest annoyances with "proper" grammar.
> "This is an historic occasion."
What's wrong with this? I cannot think of another way in which to say this?
What's wrong with this? I cannot think of another way in which to say this?
"an" or "a"?
It's a long story. If you've never had to deal with this quaint piece of British pedantry, count yourself lucky. But you can still sometimes here BBC journalists who say "This is an historic occasion." with both the "n" and the "h" pronounced clearly.
It's a long story. If you've never had to deal with this quaint piece of British pedantry, count yourself lucky. But you can still sometimes here BBC journalists who say "This is an historic occasion." with both the "n" and the "h" pronounced clearly.
"Whom" is archaic and generally not used in English anymore anyways. Overzealous and misguided efforts to save the word have scarred generations of youngsters.
Whom is fine, but so is using "who" in its place. If in doubt, use who.
On that note, it reminds me of a company I did some work for recently. They never used "me", only "myself": "Yes, he gave it to myself on Tuesday."
I doubt anyone would argue that "myself" is archaic, but people using it incorrectly is definitely jarring.
On that note, it reminds me of a company I did some work for recently. They never used "me", only "myself": "Yes, he gave it to myself on Tuesday."
I doubt anyone would argue that "myself" is archaic, but people using it incorrectly is definitely jarring.
> Whom is fine, but so is using "who" in its place. If in doubt, use who.
Probably better advice. There's a bit of research literature on the death of "whom". I can't remember when exactly, but I want to say around the beginning of the 20th century it pretty much died out from the language. It's a nice progression, English doesn't use thee, thine, thy or thou anymore either.
re:myself.
That's just plain weird.
Probably better advice. There's a bit of research literature on the death of "whom". I can't remember when exactly, but I want to say around the beginning of the 20th century it pretty much died out from the language. It's a nice progression, English doesn't use thee, thine, thy or thou anymore either.
re:myself.
That's just plain weird.
People do however use "y'all" and "you guys", and others. Just because we don't have the words doesn't mean that they're unnecessary.
We must speak with different people, because I hear it commonly used in the correct manner.
I can guarantee with near 100% certainty that unless you deal with people who speak in a formal style as their normal vernacular, you do not hear it either commonly nor consistently used in a correct manner.
- the OED remarks "whom is 'no longer current in natural colloquial speech'" and notes multiple cases in Shakespeare, Defoe, Chaucer and the King James Bible where "whom" is used "incorrectly" by modern standards
- Howard Lasnik and Nicholas Sobin describe whom as "It is commonly assumed that the English interrogative/relative pronoun whom is parallel to him and them in manifesting objective pronominal Case...Whom in modern English derives from a set of extra-grammatical rules...[used to generate] products that have a 'prestige' status. Whom differs markedly from intuitions about the use of personal pronouns. http://ling.umd.edu/~lasnik/ and the presentation http://academics.utep.edu/Portals/878/papers/whom_paper_vanc...
- Edward Sapir dedicated significant studies to the obsoletion of whom. In "Language: Intro to Study Speech" he remarks: "It is safe to prophesy that within a couple of hundred years from to-day not even the most learned jurist will be saying "Whom did you see!" By that time the 'whom' will be as delightfully archaic as the Elizabethan 'his' for 'its.' No logical or historical argument will avail to save this hapless 'whom'"
- Thurber provided this example: "A common rule for determining whether 'who' or 'whom' is right is to substitute 'she' for 'who', and 'her' for 'whom', and see which sounds better. Take the sentence, 'He met a woman who they said was an actress'. Now if 'who' is correct then 'she' can be used in its place...'He met a woman she they said was an actress'.
- Chomsky wrote that similar non-grammatical structures that only exist in grammar books are: "...a violation of natural law. In fact, a good deal of what's taught is taught because it's wrong. You don't have to teach people their native language because it grows in their minds, but if you want people to say, "He and I were here" and not "Him and me were here," then you have to teach them because it's probably wrong.
- Mair notes that: "whom is moribund as an element of the core grammar of English, but is very much alive as a style marker whose correct use is acquired in the educational system [, where it is taught]. [The use of whom] is highly restricted, but rather than disappear entirely, the form is likely to remain in use for some time to come because of its over prestige in writing."
- the OED remarks "whom is 'no longer current in natural colloquial speech'" and notes multiple cases in Shakespeare, Defoe, Chaucer and the King James Bible where "whom" is used "incorrectly" by modern standards
- Howard Lasnik and Nicholas Sobin describe whom as "It is commonly assumed that the English interrogative/relative pronoun whom is parallel to him and them in manifesting objective pronominal Case...Whom in modern English derives from a set of extra-grammatical rules...[used to generate] products that have a 'prestige' status. Whom differs markedly from intuitions about the use of personal pronouns. http://ling.umd.edu/~lasnik/ and the presentation http://academics.utep.edu/Portals/878/papers/whom_paper_vanc...
- Edward Sapir dedicated significant studies to the obsoletion of whom. In "Language: Intro to Study Speech" he remarks: "It is safe to prophesy that within a couple of hundred years from to-day not even the most learned jurist will be saying "Whom did you see!" By that time the 'whom' will be as delightfully archaic as the Elizabethan 'his' for 'its.' No logical or historical argument will avail to save this hapless 'whom'"
- Thurber provided this example: "A common rule for determining whether 'who' or 'whom' is right is to substitute 'she' for 'who', and 'her' for 'whom', and see which sounds better. Take the sentence, 'He met a woman who they said was an actress'. Now if 'who' is correct then 'she' can be used in its place...'He met a woman she they said was an actress'.
- Chomsky wrote that similar non-grammatical structures that only exist in grammar books are: "...a violation of natural law. In fact, a good deal of what's taught is taught because it's wrong. You don't have to teach people their native language because it grows in their minds, but if you want people to say, "He and I were here" and not "Him and me were here," then you have to teach them because it's probably wrong.
- Mair notes that: "whom is moribund as an element of the core grammar of English, but is very much alive as a style marker whose correct use is acquired in the educational system [, where it is taught]. [The use of whom] is highly restricted, but rather than disappear entirely, the form is likely to remain in use for some time to come because of its over prestige in writing."
Perhaps they asked "to whom the site belonged?".
Ask not to whom the site belongs, it belongs to thee.
You started the funniest thread on Hacker News I've seen in a long, long time.
For back in the day that's actually a fairly well-designed site.
And a great favicon to boot.
Don't agree with the humor and tact of this letter even though "it worked".
"Shmucking" someone can backfire in many cases and cause a bigger problem.
To be spiteful (I mean do we really know the mental state of the attorney writing the c and d?) maybe he would decide pro bono to file some action even knowing it might fail, on his own time, to defend his honor. Which this attorney would then have to defend pro bono.
The other thing with regard to the listed domains is as they always say "don't ask a question you don't know the answer to". They probably don't know whether the others have been approached or not. And it doesn't matter at this stage anyway. So what. Maybe he was the first one.
Lastly Kaplitt isn't known for expertise in either domain names or IP. If he was he would know that very often people with bogus claims are able to wrestle domains from people for bogus reasons.
Oh one last thing. In his letter he states that "ICANN rulings have held that..." (or something like that). ICANN doesn't issue "rulings" like that for this (.com). He is almost certainly referring to the UDRP cases not ICANN.
"Shmucking" someone can backfire in many cases and cause a bigger problem.
To be spiteful (I mean do we really know the mental state of the attorney writing the c and d?) maybe he would decide pro bono to file some action even knowing it might fail, on his own time, to defend his honor. Which this attorney would then have to defend pro bono.
The other thing with regard to the listed domains is as they always say "don't ask a question you don't know the answer to". They probably don't know whether the others have been approached or not. And it doesn't matter at this stage anyway. So what. Maybe he was the first one.
Lastly Kaplitt isn't known for expertise in either domain names or IP. If he was he would know that very often people with bogus claims are able to wrestle domains from people for bogus reasons.
Oh one last thing. In his letter he states that "ICANN rulings have held that..." (or something like that). ICANN doesn't issue "rulings" like that for this (.com). He is almost certainly referring to the UDRP cases not ICANN.
> Don't agree with the humor and tact of this letter even though "it worked".
Personally, in the UK, I would have written: "We refer you to the reply given in the case of Arkell v. Pressdram".
The reply in question was "Fuck off". This is well-known in the UK amongst journalists, lawyers and people who follow media law.
http://jackofkent.blogspot.com.es/2010/05/reply-given-in-ark...
Personally, in the UK, I would have written: "We refer you to the reply given in the case of Arkell v. Pressdram".
The reply in question was "Fuck off". This is well-known in the UK amongst journalists, lawyers and people who follow media law.
http://jackofkent.blogspot.com.es/2010/05/reply-given-in-ark...
I totally agree. It's great for entertainment value but further down the line, if there are other legal disagreements, this letter could come back to haunt.
I think the humor was there because the two lawyers graduated from he same place, perhaps knew or know of each other.
Agreed, I think he took it too far. I wouldn't want that letter to end up in front of a judge if this thing did end up in court.
I don't think such letters have much weight in court except insofar as they might involve breaches of professional conduct. I assume the writer has something to back his claim of excessive property tax, so it seems pretty safe. It also seems like there's some history involved.
An article that showed up here a few months ago, by someone who's been through a lot of stuff like this, argued that the more blustery the C&D, and the more impressive the legal firm sending it, the more rude and dismissive you should be in response. Generally, people go for impressive scary letters when they don't actually have a leg to stand on, so it's best to just make it obvious that it won't work.
I have no way to evaluate that claim but it sounds like the tone of the response isn't likely to hurt you in front of a judge.
I have no way to evaluate that claim but it sounds like the tone of the response isn't likely to hurt you in front of a judge.
Scribd is a parasite.
EDIT: oh look, the document is viewable again. I'm guessing someone paid scribd their ransom fee.
EDIT: oh look, the document is viewable again. I'm guessing someone paid scribd their ransom fee.
Well, yeah. They are. They are also really good at book warez.
And all you need "feed" them is a PDF that's full of garbage text and a few images. Uniquely generated from LibreOffice and wikipedia.
And all you need "feed" them is a PDF that's full of garbage text and a few images. Uniquely generated from LibreOffice and wikipedia.
I love requiring javascript to view text. The mind spins.
It's till better than needing a plugin or stand-alone app to read text in the original PDF format.
They could at least give you the choice, especially now that ~60% of web users use a web browser with a built in PDF viewer and I'd bet that a large part of the remaining 40% already have a PDF viewer with a browser plugin installed.
Sadly, the letter is unreadable on Firefox Android. It's like everything is a widget these days, web pages are no longer self-contained, and usability, among other things, suffers.
Here is the text: http://pastebin.com/enQyYvsQ
Original source here: http://localforums.org/westorange/forum/index.php?PHPSESSID=... Images of the pages: [1](http://www.westorange.info/images/cease-and-desist-letter/Re...), [2](http://www.westorange.info/images/cease-and-desist-letter/Re...), [3](http://www.westorange.info/images/cease-and-desist-letter/Re...)
Original source here: http://localforums.org/westorange/forum/index.php?PHPSESSID=... Images of the pages: [1](http://www.westorange.info/images/cease-and-desist-letter/Re...), [2](http://www.westorange.info/images/cease-and-desist-letter/Re...), [3](http://www.westorange.info/images/cease-and-desist-letter/Re...)
Also unreadable where i work where scribd is basically useless. Would be nice if people linked to pdfs instead of scribd.
Has scribd been useful anywhere?
Hear hear, I dont understand why people do it either, it just seems like all it adds is pagination and embedding for their pdf document which already has readers custom built for the task?
If you want to make something for presentation on the web dont make a pdf.
If you want to make something for presentation on the web dont make a pdf.
PDF is excellent for presenting information on the web, but sribd certainly sucks.
"PDF is excellent for presenting information on the web"
Except when you want to link to somewhere in the middle of it, or view it on a resource-constrained device, or reflow the text to a window size of your own choosing, or or or...
More here: http://www.nngroup.com/articles/pdf-unfit-for-human-consumpt...
Except when you want to link to somewhere in the middle of it, or view it on a resource-constrained device, or reflow the text to a window size of your own choosing, or or or...
More here: http://www.nngroup.com/articles/pdf-unfit-for-human-consumpt...
You can actually embed fragment identifiers inside PDFs, but I don't know if any web browsers can understand them. Your other points are of course known to everybody - I even know these things myself, and yet I maintain that "PDF is excellent for presenting information on the web". Especially PDFs designed for delivery on the web, rather than 20 MB files designed for printing. HTML solves problems, like reflow, that are unsolved by PDF, but PDF is still the best choice if precise control over typography and layout are needed, as they are for some documents. The article you link to was right on target in 2003, when it appeared, but is obsolete now. Browsers no longer crash when asked to render a PDF; no external readers are needed, if you use the right browser. In Chrome I can navigate into and out of PDF documents completely seemlessly; if used carefully they can be an integral part of the web.
I could have sworn they invented web pages for that.
I have found copies of ridiculously priced textbooks there, but the pain to search through them almost outweighs their free-ness.
same here. was looking forward to read but scribd is blocked at where I am
When someone submits a PDF to HN it'll be automatically changed to a scribd link, so that's why you see so many scribd links to HN.
I know that doesn't help with this particular article.
I know that doesn't help with this particular article.
I think a scribd link gets added to the end rather than substituted for the entire link?
Why? And what if the pdf doesn't exist on scribd?
[deleted]
Works fine on my stock Android browser. Android 4.2.2 on a Nexus 7.
For what it's worth, the stock browser on the nexus 7 is chrome (unless you root and sideload the actual stock aosp browser or use a custom Rom with it).
The browser on a Nexus 7 when an app requests a webview is WebKit 534.30.
Chrome 27.0.1452.90 on Android 4.2.2 is WebKit 537.36.
Appears there are two 'stock' browsers, no rooting or sideloading necessary.
I'm aware WebViews are not part of Chome, since they're part of AOSP. However, WebView isn't very helpful though unless one is planning on making their own app. An end user cannot launch a WebView activity themselves past apps that take advantage of them. In short, it's an html/js rendering engine, not a browser.
Can I play?
http://web.archive.org/web/20080402062531/http://pturing.fir...
http://web.archive.org/web/20080402062531/http://pturing.fir...
http://web.archive.org/web/20080402062531/http://pturing.fir...
http://web.archive.org/web/20080402062531/http://pturing.fir...
The source of the above lawyer letter was headsurfer.net a site poking fun at Robert Marsh, thin-skinned Houston internet magnate who often referred to himself as "teh HeadSurfer" and employer of last resort for many college students at U of H http://web.archive.org/web/20040103044611/http://www.headsur...
More details: http://web.archive.org/web/20031017004205/http://www.headsur...
More details: http://web.archive.org/web/20031017004205/http://www.headsur...
This reminds me about how important it is to have a solid lawyer, and an understanding of the legal ecosystem. Even in cases like this with typos, "respond in ten (10) days" can be quite intimidating, especially when there's a money/legal power asymmetry.
In one such case, Monster Cable issued a C&D to a much smaller, Blue Jeans Cable. The founder actually worked in litigation for 19 years and I found this portion of his response informative:
I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.
After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.
There are several obvious points to be made here, but there's a subtle one, too. These hit-and-run settlements depend fundamentally on the compliance of isolated companies. If a larger organization asserts control over a smaller one (like the township-->$3.17 website, here, or on a larger scale Monster-->Blue Jeans), it often does make "economic sense" to settle.
It's almost a negative version of the Tragedy of the Commons / Public Goods Dilemma. If every small company stood up and said "no, we will not settle" then there would be far less incentive to pursue bogus infringement claims. On the other hand, it always, locally, makes sense not to challenge claims and let some other small company deal with it.
This brings me to one broader point, and that's the idea of standing for something on principle. I don't mean this in the sense of "be a moral person", but in the sense of larger organizations assuming (often correctly) that the short-term economic sense of individual actors will outweigh any principled objections they hold to the circumstances imposed by the power asymmetry. Cultivation of principles which favor the latter instead of the former course of action might be a good solution to the public goods dilemma outside of a difficult to ensure coordination of action.
It's worth thinking about this in the context of Google and its recent stance against an entity with an enormous amount of legal power.
http://www.audioholics.com/news/industry-news/blue-jeans-str...
In one such case, Monster Cable issued a C&D to a much smaller, Blue Jeans Cable. The founder actually worked in litigation for 19 years and I found this portion of his response informative:
I have seen Monster Cable take untenable IP positions in various different scenarios in the past, and am generally familiar with what seems to be Monster Cable's modus operandi in these matters. I therefore think that it is important that, before closing, I make you aware of a few points.
After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs' practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am "uncompromising" in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.
There are several obvious points to be made here, but there's a subtle one, too. These hit-and-run settlements depend fundamentally on the compliance of isolated companies. If a larger organization asserts control over a smaller one (like the township-->$3.17 website, here, or on a larger scale Monster-->Blue Jeans), it often does make "economic sense" to settle.
It's almost a negative version of the Tragedy of the Commons / Public Goods Dilemma. If every small company stood up and said "no, we will not settle" then there would be far less incentive to pursue bogus infringement claims. On the other hand, it always, locally, makes sense not to challenge claims and let some other small company deal with it.
This brings me to one broader point, and that's the idea of standing for something on principle. I don't mean this in the sense of "be a moral person", but in the sense of larger organizations assuming (often correctly) that the short-term economic sense of individual actors will outweigh any principled objections they hold to the circumstances imposed by the power asymmetry. Cultivation of principles which favor the latter instead of the former course of action might be a good solution to the public goods dilemma outside of a difficult to ensure coordination of action.
It's worth thinking about this in the context of Google and its recent stance against an entity with an enormous amount of legal power.
http://www.audioholics.com/news/industry-news/blue-jeans-str...
> On the other hand, it always, locally, makes sense not to challenge claims and let some other small company deal with it.
I would argue in favor of fighting back in most cases, even from a local standpoint. "Millions for defense, but not one cent for tribute." How you behave towards bullies sends a powerful signal to other bullies. Your response can either encourage more bullying, and thus a cycle that ends in your own destruction, or ward them all off.
I very much agree with your comments overall, though.
I would argue in favor of fighting back in most cases, even from a local standpoint. "Millions for defense, but not one cent for tribute." How you behave towards bullies sends a powerful signal to other bullies. Your response can either encourage more bullying, and thus a cycle that ends in your own destruction, or ward them all off.
I very much agree with your comments overall, though.
Kipling put it well:
It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: --
"We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!"This is an ideal time to bring up the Mongols. Anyone in Eastern Europe that paid the Mongol tax still exists. The inverse can be said for those that didn't pay, or decided to fight.
http://en.wikipedia.org/wiki/Destruction_under_the_Mongol_Em...
I respect Kipling's quote - but history shows YMMV. If in doubt, just ask why you don't hear of the Khwarezmid Empire - who were one of the biggest empires around at the time of the Mongols.
http://en.wikipedia.org/wiki/Destruction_under_the_Mongol_Em...
I respect Kipling's quote - but history shows YMMV. If in doubt, just ask why you don't hear of the Khwarezmid Empire - who were one of the biggest empires around at the time of the Mongols.
fascinating. a definite counterargument to the kipling quote.
Awesome!, thank you.
welcome. leslie fish has a great musical setting of the poem on her "cold iron" album (highly recommended if you're a kipling fan at all). this one's not up on youtube, sadly, but http://www.youtube.com/watch?v=6gYvS8L0nDY is her (also great) setting of "rimini" from "puck of pook's hill", which should give you some idea of her style.
It's an excellent example of the prisoner's dilemma. We are all better off if we all cooperate, but any one of us is better off if we defect.
When you start to iterate it, the equation changes. But it can be hard for people to look beyond the immediate lawsuit.
When you start to iterate it, the equation changes. But it can be hard for people to look beyond the immediate lawsuit.
It's not really an iterated prisoner's dilemma, as on each iteration one of the prisoner is replaced by a new one. Therefore if you don't consider the eventual consequences to all the replaced prisoners as a whole, it is reasonable for the one that is about to be removed from the game to defect.
It's iterated if there are multiple patent trolls or similar entities that might gun for you and your industry. It's probably hard to tell in advance whether this is true, though.
The best line of that letter:
Not only am I unintimidated by litigation; I sometimes rather miss it.If quoted verbatim, the semicolon is used incorrectly. It should be a comma.
Looks correct to me; it joins two independent but topically related clauses.
https://en.wikipedia.org/wiki/Semicolon#Usage
https://en.wikipedia.org/wiki/Semicolon#Usage
what are the rules of semicolon/colon use?
Semicolons are used in two ways, to separate related independent clauses: "I entered the room; it stank." and as a kind of "super comma" when separating lists of items that themselves contain commas: spam; eggs and spam; spam, egg, sausage, and spam; and spam, spam, spam, eggs, and spam.
The use here is the first case, and it's incorrect because (as another respondent has pointed out) the first clause is not independent (i.e. cannot stand on its own).
The use here is the first case, and it's incorrect because (as another respondent has pointed out) the first clause is not independent (i.e. cannot stand on its own).
Not to detract from that excellent, excellent response but refusing to pay he has every reason to overstate his eagerness for litigation in hopes of scaring Monster Cable off. Of course, in making that statement publicly he also nailed his colors to the mast, making it far more difficult to back down even if he might have otherwise. And now that he's made that public and gotten press coverage other companies know not to hassle him too.
He didn't hear from monster cable again, so it seems to have worked.
Choosing a stupidly generic word for a trademark seems to mean spending a lot of money on lawyers to protect that mark, especially if you're aggressive as Monster is about it.
(http://online.wsj.com/article/SB123869022704882969.html#arti...) alternate location (http://www.tabberone.com/Trademarks/HallOfShame/MonsterCable...) (The rest of that website is rather unpleasant).
Choosing a stupidly generic word for a trademark seems to mean spending a lot of money on lawyers to protect that mark, especially if you're aggressive as Monster is about it.
(http://online.wsj.com/article/SB123869022704882969.html#arti...) alternate location (http://www.tabberone.com/Trademarks/HallOfShame/MonsterCable...) (The rest of that website is rather unpleasant).
A while ago, some folks in my country of origin started to make efforts towards a bill that (had it passed -- needless to say, it had no chance) might have provided some form of solution here. The essence of the bill was that, if one of these bullies sent an unfounded cease and desist letter that failed to explicitly cite its legal basis and was aimed at a company for whom full legal procedures would have had a significant financial impact, it would be assimilated as blackmail and treated accordingly. Blackmail is treated fairly seriously by the legal system, and makes quite the reputation. Do you think this could be a solution for cases like these?
Alternatively, how about the possibility of allowing small companies to demonstrate that they cannot withstand the costs of a trial upfront, in which case the trial would be paid for by the state; if the trial is lost, the owners pay (fair enough...). Otherwise, the state can get its money back from the damages paid by the suing company.
Alternatively, how about the possibility of allowing small companies to demonstrate that they cannot withstand the costs of a trial upfront, in which case the trial would be paid for by the state; if the trial is lost, the owners pay (fair enough...). Otherwise, the state can get its money back from the damages paid by the suing company.
It is not the duty of the state to provide legal funds to a private company. If the company goes bankrupts in the middle of or shortly after the trial, the taxpayers have paid for it and will never get that money back.
From the quoted letter, and to some of your points as well:
"I would rather spend fifty thousand dollars on defense"
There are other costs, it's not just money. There is time (even if someone else is footing the legal bill), uncertainty, aggravation, stress for a process that can take years. Involvement in legal matters is not trivial. While I think that anyone who has been involved in the psychological aspects of litigation is well aware of the point that I am making I believe that it is felt by some that Microsoft's antitrust problems in the 90's caused them to miss many opportunities on the internet.
You really really need to understand the entire impact of decisions to litigate and it should not be taken lightly.
"I would rather spend fifty thousand dollars on defense"
There are other costs, it's not just money. There is time (even if someone else is footing the legal bill), uncertainty, aggravation, stress for a process that can take years. Involvement in legal matters is not trivial. While I think that anyone who has been involved in the psychological aspects of litigation is well aware of the point that I am making I believe that it is felt by some that Microsoft's antitrust problems in the 90's caused them to miss many opportunities on the internet.
You really really need to understand the entire impact of decisions to litigate and it should not be taken lightly.
> I believe that it is felt by some that
What is your opinion?
What is your opinion?
Nice response to the usage of peacock terms :-)
If big companies would be made to pay for the costs of the other party when they lost, then small companies would be eager to fight back. The way it works in the U.S. is just crazy (for my third-world mind).
> It's almost a negative version of the Tragedy of the Commons / Public Goods Dilemma. If every small company stood up and said "no, we will not settle" then there would be far less incentive to pursue bogus infringement claims. On the other hand, it always, locally, makes sense not to challenge claims and let some other small company deal with it.
If you're looking for the name of that dynamic, that's a pretty classic Prisoner's Dilemma. :)
If you're looking for the name of that dynamic, that's a pretty classic Prisoner's Dilemma. :)
Excellent stuff, and so are Blue Jeans cables.
This reply to monster seems a lot more productive than the one from the OP. It got me to look up blue jeans cables and I found a youtube video[1] where Kurt Denke (the person who wrote the C&D reply) talks about the difference between a $17 and a $150 HDMI cable. It's quite long but it's refreshing to see information about cables being spread without the usual marketing lies.
1. http://www.youtube.com/watch?v=JHjkb1m7Y7s
1. http://www.youtube.com/watch?v=JHjkb1m7Y7s
Why is there no push for "the looser pays all the costs" in the US? It works in many countries around the world, and it would prevent unjustified legal bullying.
Would that also prevent smaller entities from suing larger ones for fear of having to eat the gigantic legal fees if they lost?
I see the benefits from both systems, not sure which I would be a proponent of.
I see the benefits from both systems, not sure which I would be a proponent of.
No system should refund all the cost, just the basic "necessary" costs, for example the costs of one lawyer for small cases or a small team of lawyers for large cases.
I think it is how it works in many countries. Otherwise, what would prevent a party that is sure that it will win to hire 1000 lawyers in the last day of trial just to inflate the costs of the loosing party?
I think it is how it works in many countries. Otherwise, what would prevent a party that is sure that it will win to hire 1000 lawyers in the last day of trial just to inflate the costs of the loosing party?
The right system is the one which gives the judge a discretion as to who pays costs, guided by court rules as well as economic sense and equitable principles.
Why would there be any asymetry of legal fees depending on company size?
Suing a small entity would take exactly as much lawyers on both sides as suing a huge entity. If you're fighting Bigcorp and they're somehow justifying $10million of lawyers for the case, and you feel that you're right, then you'll be justified in bringing $10million of lawyers on your side, paid in full by them.
Suing a small entity would take exactly as much lawyers on both sides as suing a huge entity. If you're fighting Bigcorp and they're somehow justifying $10million of lawyers for the case, and you feel that you're right, then you'll be justified in bringing $10million of lawyers on your side, paid in full by them.
Obviously, you'd be expecting to win the case, but litigation doesn't always go as planned. If I'm SmallCorp suing BigCorp, I may have one in house lawyer who is handling the litigation. SmallCorp Lawyer charges hourly rate X. BigCorp has a large legal team and put many times as many lawyer man-hours at rate X into the case, and somehow pulls out a litigation victory.
There is always a non-zero risk of losing the suit. BigCorp doesn't have to worry as much existential risk if they lose, since the penalty of paying legal fees may not cripple them.
There is always a non-zero risk of losing the suit. BigCorp doesn't have to worry as much existential risk if they lose, since the penalty of paying legal fees may not cripple them.
An equitable system would ensure the tight also pay.
We should start a consortium whose sole purpose is to put million dollar backings behind small companies trying to ward off trolls and assholes.
In the early heydays of the Internet, I recall ati.com featuring a comment to the effect "there are 147 companies claiming rights to our domain name. Get in line."
There was a confusing bit in the "P.S." section in this letter which read like some kind of veiled threat to expose the city for tax fraud, or for some kind of tax-related misdeeds.
What was that all about?
Is it generally a good idea to put veiled threats in responses to cease-and-desist letters?
What was that all about?
Is it generally a good idea to put veiled threats in responses to cease-and-desist letters?
Perhaps, but there was a more serious, barely veiled threat of disbarment or sanctions against this lawyer for misrepresenting the law in his C & D. This may be why Kaplitt was able to have such a rollicking good time with no worries about blowback: he knew he had this ass over a barrel. (I thought the response was awesome.)
The amount was the same as the town paid for their web site. ($5,000/yr for hosting? Ludicrous.)
I really enjoyed reading the Something Awful legal threats (although I didn't read the site itself):
http://www.somethingawful.com/d/legal-threats/
It's unclear if Lowtax just got bored of responding or people stopped sending them.
http://www.somethingawful.com/d/legal-threats/
It's unclear if Lowtax just got bored of responding or people stopped sending them.
I secretly wish I had the background law knowledge to screw with people who attempt to send these letters. I get C&D letters from youtube because my videos allegedly contain copyright music. The funny part is that my videos only contain my voice, which I'm pretty sure is not copyrighted.
> The funny part is that my videos only contain my voice, which I'm pretty sure is not copyrighted
From the moment you saved your recording of your voice, you were granted copyright protection to that work. The only recordings for which a copyright doesn't exist are those old enough to be in the public domain. Even a recording that infringes someone else's copyright is still protected by its own copyright rights; you can't distribute it without causing damages to the other rights holder, but the author still has exclusive rights to their creation.
From the moment you saved your recording of your voice, you were granted copyright protection to that work. The only recordings for which a copyright doesn't exist are those old enough to be in the public domain. Even a recording that infringes someone else's copyright is still protected by its own copyright rights; you can't distribute it without causing damages to the other rights holder, but the author still has exclusive rights to their creation.
my videos only contain my voice, which I'm pretty sure is not copyrighted
Your voice isn't copyrighted, but you might infringe if you were singing a copyrighted song.
Your voice isn't copyrighted, but you might infringe if you were singing a copyrighted song.
>you might infringe if you were singing a copyrighted song
Or if your video happens to be one of those which youtube partners don't like. Youtube, apparently, has a deal independent of the DMCA, which allows big media compan(ies) to ban any video on youtube.
There was a discussion earlier today on HN, in which I said I still trust Google. This is one incidence where Google could have tried to follow its motto of "Do not be evil". Youtube exists because of DMCA safe harbour. Even though DMCA has shortcomings, without it youtube would have to face a lawsuit for every infringement. But, Youtube still chose to overturn DMCA, which allows the user to file a counter-claim. And apparently, Youtube made a deal with media companies allowing them to ban any video whatsoever without any repercussions, which is downright evil.
http://torrentfreak.com/youtube-deal-with-universal-blocks-d...
Or if your video happens to be one of those which youtube partners don't like. Youtube, apparently, has a deal independent of the DMCA, which allows big media compan(ies) to ban any video on youtube.
There was a discussion earlier today on HN, in which I said I still trust Google. This is one incidence where Google could have tried to follow its motto of "Do not be evil". Youtube exists because of DMCA safe harbour. Even though DMCA has shortcomings, without it youtube would have to face a lawsuit for every infringement. But, Youtube still chose to overturn DMCA, which allows the user to file a counter-claim. And apparently, Youtube made a deal with media companies allowing them to ban any video whatsoever without any repercussions, which is downright evil.
http://torrentfreak.com/youtube-deal-with-universal-blocks-d...
You could argue that this is the only arrangement in which YouTube can exist; is having the site with overzealous copyright enforcement worse than having no site at all?
Google may prevail in court if sued for the millions of instances of infringement it hosts, but it'd still have to become the largest US employer of lawyers to handle and fund the dozens of major lawsuits it'd face every year. Is it profitable enough to do that? Does Google want to dedicate so much of its resources to court battles instead of its core competencies? Even with the DMCA, they still get sued.
Google may prevail in court if sued for the millions of instances of infringement it hosts, but it'd still have to become the largest US employer of lawyers to handle and fund the dozens of major lawsuits it'd face every year. Is it profitable enough to do that? Does Google want to dedicate so much of its resources to court battles instead of its core competencies? Even with the DMCA, they still get sued.
Would YT get sued by Universal even with DMCA, if YT did not have a special arrangement with Universal?
Without the option of counter-claiming, Youtube is a monarchy. I do expect a public company to have some sort of democracy, especially one who claims to follow "Do not be evil".
Without the option of counter-claiming, Youtube is a monarchy. I do expect a public company to have some sort of democracy, especially one who claims to follow "Do not be evil".
> Would YT get sued by Universal even with DMCA, if YT did not have a special arrangement with Universal?
Why not? Viacom sued despite the DMCA defense.
Why not? Viacom sued despite the DMCA defense.
I concede. You have a point.
It was a joke but I didn't know that (hence my secret desire to learn more about law). They are simple computer tutorials.
Your voice may not be subject to performance copyright violations, but it can assuredly invoke lyrical copyright violations. edit, cached, i lost the race.
Interesting, as C&D letters or as DMCA takedowns sent to YouTube?
It's hard to talk about great C&Ds without mentioning Chilling Effects, http://www.chillingeffects.org/notice.cgi, a repository/database of many C&Ds and copyright claims, which receives copies automatically of many letters sent to large websites.
Some of the content in there is particularly golden for humor value (search "perfect 10"), but more importantly, it serves as a first step to quantifying how many of these letters get sent and how many of those are legitimate. Chilling Effects doesn't track what happens afterwards, but it's one step above anecdote, anyway.
Some of the content in there is particularly golden for humor value (search "perfect 10"), but more importantly, it serves as a first step to quantifying how many of these letters get sent and how many of those are legitimate. Chilling Effects doesn't track what happens afterwards, but it's one step above anecdote, anyway.
Worked ok in Safari browser.
One wonders why more lawyers aren't humorous. Is it because it causes their clients harm? Or because they are afraid they can't generate fees if they don't look professional?
Here is another great example, between the Cleveland Browns and a fan. I cite Snopes, otherwise I wouldn't believe it to be true. http://www.snopes.com/business/consumer/browns.asp
One wonders why more lawyers aren't humorous. Is it because it causes their clients harm? Or because they are afraid they can't generate fees if they don't look professional?
Here is another great example, between the Cleveland Browns and a fan. I cite Snopes, otherwise I wouldn't believe it to be true. http://www.snopes.com/business/consumer/browns.asp
It's because lawyers are often (to make a broad generalization), terribly risk-averse. Judges can sometimes disapprove of not giving the law it's "proper respect" (see Chad Johnson's recent stint in jail after being let off). Also, oftentimes lawyers can just drop the relevant facts at hand into a template. I'd bet the lawyer sending the C&D has sent a huge number of other C&D's worded pretty much identically.
The joys of using Word templates at $500/hour. :-)
The first time the page displayed for me, the response was shown as a 400 Bad Request Nginx error, which would have been a great response to this kind of C&D letter.
Best Part -
"Jake swears that was his actual cost. Looking at his website, I believe him." LOL
"Jake swears that was his actual cost. Looking at his website, I believe him." LOL
This is just another sad reminder of how broke the legal system is in the States. A simple fix, for this and many other types of legal bullying, make the protesting party pay ALL legal fees and a stiff penalty if they lose in court. Protects the clear cut owners who get infringed, yet weeds out bs cases like this one. Since it makes sense, is fair, and would simplify things - you know it will NEVER happen.
That's not strictly better. You can be discouraged from suing big parties because they may run up their own bills, which you would have to pay if you lost. And losing doesn't mean your case was without merit.
There is no perfect answer. It beats the old days where people would have to fight to the death to settle disputes, at least.
There is no perfect answer. It beats the old days where people would have to fight to the death to settle disputes, at least.
Starting a company in teh USA is similar to plugging a winxp sp1 machine into the network. Only a few seconds til the first law suit/virus.
Zing!
I'm sure tort reform will happen eventually — after we abolish the Electoral College and rewrite the tax code, it seems like a good next step for the legislature to consider. /s
enjoyable read.
i'm not a lawyer.. but i found myself wondering, if the Township followed with suit, this wouldn't also qualify as a SLAPP[1]?
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_publi...
edit: New Jersey hasn't enacted any anti-SLAPP legislation.
i'm not a lawyer.. but i found myself wondering, if the Township followed with suit, this wouldn't also qualify as a SLAPP[1]?
http://en.wikipedia.org/wiki/Strategic_lawsuit_against_publi...
edit: New Jersey hasn't enacted any anti-SLAPP legislation.
The town of West Orange has been the subject of ridicule for some time: https://www.youtube.com/watch?v=sUzs5dlLrm0
Pleasant Valley Way, the subject of the tune, is in West Orange. https://en.wikipedia.org/wiki/Pleasant_Valley_Sunday
Pleasant Valley Way, the subject of the tune, is in West Orange. https://en.wikipedia.org/wiki/Pleasant_Valley_Sunday
In the spirit of great and hilarious legalese writing... http://www.chattanoogan.com/2008/2/26/122772/Chattanooga-Sen...
I'm a fan of Lowtax's response to Ubisoft's cease and desist: http://forums.somethingawful.com/showthread.php?threadid=268...
Your link appears to be behind a paywall (must pay for archives access), but I think this is it? http://www.dmlp.org/threats/ubisoft-v-kyanka
I'm not a lawyer, but is the P.P.S. portion some sort of thinly-veiled reference to the way the original (c&d-sending) lawyer perhaps works with the township?
This is a master piece, thanks for submitting it.
It should be printed in A0 and glued in Law Colleges.
It should be printed in A0 and glued in Law Colleges.
This indeed is a great response. The domain owner is pissed an understandably so.
Love it.
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