Different River

”You can never step in the same river twice.” –Heraclitus

October 13, 2006

A Chilling Effect on Free Speech

Filed under: — Different River @ 2:19 am

One of my favorite blogs, Likelihood of Confusion reports that it is in danger of being shut down by draconian regulations. See, that blog is written by a lawyer licensed in New York, and if certain proposed rules are put into effect, blogging will considered a prohibited form of advertising for lawyers:

Public Citizen’s CL&P (Consumer Law and Policy) Blog wrote last month that New York is considering draconian advertising rules that would essentially make it impossible for lawyers to maintain blogs. I am excerpting liberally, but urge you to follow the link and the discussion at the CL&P Blog:

Stripped to their essence, the proposed amendments would define the term “advertisement” extremely broadly as any public communication made “by . . . a lawyer . . . about a lawyer.” Sec. 1200.1(k). This definition explicitly includes all forms of communication on the Internet, including websites, email, and instant messaging. Sec. 1200.1(m). There is no requirement that the speech be commercial in nature or related to the lawyer’s practice of law.

You might think, given my opinions on some issues, that I’d think it’s a good idea to shut lawyers up. But you would be wrong.

First, I am a strong believer in free speech, and I don’t think one’s speech should be restricted because of one’s choice of profession. I understand there are certain things about their professions that people can’t talk about (e.g., attorney-client privileged information, classified information, trade secrets, etc.), but that’s no reason to restrict speech that is not “related to the lawyer’s practice of law” or anyone else’s practice of any other profession.

Second, any damage that might be done by lawyers (as a class) to society is not done by lawyers blogging, or exercising free speech in any other way. It usually comes about by abusing the court system, with or without the assistance of an equally abusive client. (“Without” in the case of class actions.) How this can happen is a subject for another post — but it has nothing to do with blogging, emailing, instant messaging, or writing articles for newspapers or journals. Or even, usually, with advertising. While there are no doubt some sleazy “ambulance-chaser” types who advertise for socially damaging services, that’s not a big part of the problem, in my view.

Third, there are an awful lot of very good blogs written by lawyers. Likelihood of Confusion by Ronald Coleman is a fascinating blog about trademark law. The Volokh Conspiracy is a great group blog about (mostly) constitutional law and law education. There are several more linked on the blogroll to your right.

But the over-riding concern here is free speech. I’d be against this rule even if all the law blogs were bad. The great thing about the internet is that if thery were bad, they wouldn’t be read.

As Mr. Coleman points out:

You can comment on the proposed rules by writing to:

Michael Colodner, Esq.
Counsel
Office of Court Administration
25 Beaver Street
New York, New York 10004

by November 15, 2006. I encourage it.

Meanwhile, before it’s too late, I’d be interested in Mr. Coleman’s opinion on this case:

“The producer of the canned pork product Spam has lost a bid to claim the word as a trademark for unsolicited e-mails. EU trademark officials rejected Hormel Foods Corp.’s appeal, dealing the company another setback in its struggle to prevent software companies from using the word ‘spam’ in their products, a practice it argued was diluting its brand name. The European Office of Trade Marks and Designs, noting that the vast majority of the hits yielded by a Google search for the word made no reference to the food, said that ‘the most evident meaning of the term SPAM for the consumers … will certainly be unsolicited, usually commercial e-mail, rather than a designation for canned spicy ham.’”

Seems to me that if Hormel had acted earlier — before the use of the word “spam” for junk e-mail were so widespread, they might have had a better case. Is that right? Then again, that’s based on what I (think I) know about U.S. trademark law. The E.U. could have different rules.

November 24, 2005

Pajamas Media

Filed under: — Different River @ 12:30 pm

So many of the luminaries of the blogosphere and other “alternative” media such as talk radio, and even some people from non-alternative outlets like Random House and the New York Times are getting together in something called Pajamas Media.

The name, of course, is a reference to the former CBS executive who defended Dan Rather and CBS by saying that the people who caught them forging documents were just people “sitting in their living room in their pajamas.” They tried to change their name to something that would sound a little more dignified, but the name they picked, “Open Source Media,” was taken already — by another loud, decentralized, internet-based “alternative” crowd!

The “Open Source Software” folks might do their thing in their pajamas also, for all anyone knows. And they produce a lot of darn good software, including the software that runs this blog. I wonder what it is about the phrase “open source” and pajamas.

October 17, 2005

Abrogating Patents?

Filed under: — Different River @ 5:14 pm

Some people (including, but not limited to, Stephen Gordon and Andrew Sullivan) have suggested that the U.S. government abrogate the patent on the antiviral drug Tamiflu to produce enough doses to be ready in case there is an outbreak of avian flu.

This is a very bad idea — not because of the practical limits of Tamflu, but mainly because (a) the U.S. government does not exactly have a drug facgtor lying around ready to make the stuff, and (b) this would basically guarantee that no company would bother inventing drugs for any infectious disease again. After all, why bother making something if the government is just going to come and take it whenever enough people need it to make it profitable?

This doesn’t mean there aren’t things the government can do. I don’t have time for a full-length post on this right now, but Tyler Cowen has a number of suggestions for things to do, all of which are good if it’s physically possible for Roche to produce a huge amount of Tamiflu in a short period of time. (Note for the record: Most of the comments on that post are seriously wrong-headed.)

Looking long-term, one of the problems with this is that flu vaccines take about 4 months to produce (they are grown in eggs), in a process that’s been around for a long time, probably since before the FDA started regulating vaccine production methods. I’ve read that there’s a faster method, but the FDA is taking forever to act on the application for approval (I’ll try to find a link later this week).

There is also the vaccine liability issue — basically, if you make a vaccine and the all 300 million people in the U.S. are vaccinated, and any of them get sick with anything in the near future, it’s your fault. (This is why the flu vaccine has a warning about Guillain-Barre Syndrome — in 1976 there was a massive vaccination against a flu epidemic and a few people got Guillain-Barre Syndrome afterwards. It was the about the same number of people that get it every year, but this time there was a flu vaccine, so they all sued.)

I’ll try to post more on this later, but now I’m going offline for a couple of days for the star of Sukkot — and I have huge stack of work waiting for me when I get back. See you Thursday!

(Thanks toThe Glittering Eye for the pointer!)

July 21, 2005

Microsoft Sues Google

Filed under: — Different River @ 4:52 pm

This lawsuit could be just what it seems — an issue of someone switching employers and possibly revealing proprietary information of the first employer to the second — or it could be part of a larger strategy by Microsof to keep Google from infringing on its territory as the most important and most financially successful company in the computer industry.

July 13, 2005

Web Archive Sued for Archiving

Filed under: — Different River @ 7:23 pm

The Internet WayBack Machine (AKA the Internet Archive) attempts to archive virtually everything on the internet. Just as Google crawls the web from link to link to index the pages, the Internet Archive crawls the web to store the pages. Forever, presumably. This can be very useful, since very nice web pages often get taken down when authors graduate from school, change ISPs, or change jobs, or simply lose interest. I’ve found quite a few gems in the archive over the years.

Now, the Internet Archive is being sued. Apparently, a company called “Healthcare Advocates” sued a company called “Health Advocates” for trademark infringement. The defendant’s lawyers used the Internet WayBack Machine to search for web pages the plantiff had posted in the past, and used that information in the defense. So, the plaintiff sued the law firm — for using the information — and the Internet Archive, for providing it!

Now this is interesting on at least three levels. First, I’ve never heard of a plaintiff suing a denfendant’s lawyers for defending them. I’m not a lawyer, so maybe this happens all the time, but it sounds odd to me.

Second, there’s the copyright angle. It would seem clear that the Internet Archive had every right to download those pages in the first place — after all, that’s what web pages on a publically-accessible web server are for. And I can’t imagine one would ever be required to get rid of some information one acquired legally. Whenever you view a web page, your browser stores a copy in the “cache”; the Internet Archive just has a really huge cache from which nothing (presumably) is ever deleted.

And third, it seems hard to argue they shouldn’t make that cache available to the public, since everything there was available to the public in the first place.

I think it would be interesting to see what Ron Coleman has to say about this. He is the foremost expert on the internet and intellectual property law, and he has a blog here.

(Hat tip: Slashdot.)

UPDATE:

Ron Coleman weighs in here.

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