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The Parties Are Advised...

Remember that song "Barbie Girl" by Aqua? Matel sued them. Following the more relevant issues of trademark dilution, Judge Kozinski's concluding passage (the last line in particular) got a grin out of me:

After Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a "social commentary [that was] not created or approved by the makers of the doll," a Mattel representative responded by saying, "That's unacceptable.... It's akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal." He later characterized the song as a "theft" of "another company's property."

MCA filed a counterclaim for defamation based on the Mattel representative's use of the words "bank robber," "heist," "crime" and "theft." But all of these are variants of the invective most often hurled at accused infringers, namely "piracy." No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable "rhetorical hyperbole." The parties are advised to chill.

Mattel, Inc. v. MCA Records, Inc. 296 F.3d 894, 9th Circuit, 2002.

Spidey

My Entertainment prof had a friend who defended Sony in the Sherwood 48 v Sony case (213 F Supp 2d 376). Sherwood sued Sony because Sony digitally altered the exterior of several buildings in Times Square for the Spiderman movie. The plaintiff was pissed off about it because the exterior of the buildings had advertisements on them - paid ads. Sony digitally changed the ads.

My prof quoted an amusing line from his friend during the trial:
“[The plaintiffs are] worried that the buildings and the billboards aren’t real. But judge, we’ve go news for them: Spiderman isn’t real either."

Sony won.

Like a Native

Last night in Copyright class it was getting late, and we were all tired, and no one would raise their hand to talk about the Feist case. So I raise my hand because this was probably the third time I'd studied the damn Feist case (established the rule for copyrighting compilations of facts - the telephone book case). I tell my prof about the facts, the issue, the reasoning. And then she asked me a question, I can't remember what it was about, and I thought a second and then responded. And she looked at me a second and said, "You sound like a defense lawyer." She said it with a wry smile, but I was thrilled!

It reminds me of when I spent a summer in Mexico City. Towards the end of my stay I was arguing amiably about something with a Mexican friend over lunch, and after a stream of speech on my end, he looked at me and said in amazement (in Spanish), "You just sounded exactly like a native speaker."

Welcome

I'm taking a seminar course on IP, and our prof is an older guy who had worked his entire life at a fairly prestigious firm in the Bay Area. The class is limited, which means only 20 kids can take it. One kid was an extra, but he stuck around for the first few weeks to see if he could get into the class anyway. Apparently my prof convinced the registrar to let him in.

After class today, he said, "Also, I spoke to the registrar and I'd like to officially welcome Mr. [Doe] to the firm."

A burst of laughter from us, and someone quips, "Lucky!"

My prof: "Ah, I mean, to the class."

Puffery

Love this:

"Literally false statements are distinguishable from puffery, which the Eighth Circuit has defined as 'exaggerated advertising, blustering, and boasting upon which no reasonable buyer would rely and is not actionable' under the Lanham Act...Such non-acitonable puffery includes representations of product superiority that are vague or highly subjective." (Solvay Pharmaceuticals v. Global Pharmaceuticals, 419 F. Supp. 2d 1133).

I never knew puffery was a legal term. They don't even couch it in quotes. Rad.

Bowling, Anyone?

My Cyberlaw book on why geographic communities are more meaningful to people than other types of communities:

"It would be difficult to deny that national loyalty has great power for many people. After all, people are far more willing to die for their country than, say, for their bowling league."

UCE

Along the lines of calling my internet law class "Cyberspace Law," the courts demonstrate the origins of this archaic and downright silly terminology.

Washington v. Heckel, a case from Oregon in 2001 (2001!) refers to "unsolicited commercial e-mail." Instead of writing "spam," they refer consistently throughout the case to "UCE." Craziness.

In a related vein, I'm on a mission to drop the hyphen from "e-mail." It's unnecessary and wasteful. "Email" is universally recognized, and smoother on the typing fingers.

Turn on, Tune in...

My girl dropped out. I'm shaken by it, I can't lie. After getting herself off academic probation, she decided to take a leave of absence, giving her the opportunity to return.

I hope she returns.

She said she knew she didn't want to be a lawyer, and that she didn't want to invest more money into something she wasn't interested in. But she was halfway through...and a JD can't hurt you...

She got engaged a few weeks ago. The timing is regrettable because of the inferences. She says no correlation exists, but again, the timing is regrettable. She says the reason she stayed with it so long was fear of what other people would think, and I know exactly what she means. And she says she can't worry now what other people think, and that is so true.

I do admire her courage...she felt it wasn't right and had the balls to act on it. But what if the easy thing to do is to drop out? Wouldn't it then take more courage to stay the course?

I always lack the courage to deviate. I stay where I am no matter how unhappy I am. I see that as weakness, but I guess it's a type of strength too. But it means I can be unhappy for long periods of time, and that's a terrible way to live. Life's too short; I'm glad she had the courage to pursue her own happiness.

But I hope she returns.

Outside the Web (wink)

I should mention that I met F2F with a fellow blawger, Otherwise Occupied. We ended up in Cyberspace Law together, which is a tidy irony.

Prison

Got all my grades back, finally, after a week in classes. I am pleased! What a strange feeling. First time I've been happy about all my grades in law school. It's a different set of emotions going into the new semester, too. Instead of thinking, "I've got to do better," I'm thinking, "I just can't do worse!"

I was explaining to a [civilian] friend about grade conversations with schoolmates: you never ask someone, "What'd you get?" You ask, "How'd you do?" Like it's a faux pas to ask what grade they got directly. You have to feel it out first, give them the option of saying, "Eh, I did alright."

He responded, "Oh, I get it. It's like prison. You never ask, 'What're you in for?'"

Cyberspace

My first day of classes included Cyberspace Law with one of my favorite profs. (A friend of mine always shakes his head when I mention this class: "'Cyberspace' is like 'the Information Superhighway;' who says that anymore?!").

Obviously the famous Stanford law prof Lawrence Lessig came up a lot in our class discussions. I told my story of Lessig: A friend of mine Troubles in Paradox got us invited to the 4th birthday party of Creative Commons (Lessig's new-age copyright brain child). We were very excited because we thought Lessig was scheduled to speak at the party. Instead, he appeared as his online avatar from Second Life on a projected computer screen. Disappointing.

Anyway, my prof joked about Lessig's rise from a "boring law professor from Standford" into Coolness: "He grew a little goatee and started wearing black!"

Cheers

Grades are trickling in. God I'm terrified. I did get one back (Wills and Trusts), and it was good! My best law school grade so far. And I did feel good about that exam. But somehow that only increases the fear, because I'll be that much more disappointed when/if the rest of my grades don't live up. You see how I constantly keep myself from getting hopeful? Ah, the torture that law school renders on one's psyche.

Everyone I talk/IM with is immediately like, "Get any grades back?" And then we report back as each one comes in. Checking the grade post obsessively, fearfully.

I took my friendly commenter's advice and got myself a bottle of cheap wine. Cheers!

Lawyer-Agent

Excerpt from an article (by Stephen Galloway) on the transition of lawyers into the film agency business:

"A lot of people in law school tend to be a bit detached, and that doesn't necessarily serve a talent agent very well," Giordano acknowledges. "As an agent, you have to be there for your clients at all times and you have to be supportive, and a legal background doesn't teach you that."

Tenzer goes further, saying that being an attorney can bring its own negative baggage.

"The legal training will never be a disadvantage," he says. "But one of the things people need to look to when they are making that transition is to try to sound like an agent and not like a lawyer because that can be a little off-putting. Occasionally, you see people with a legal background focusing on legal issues when they should be dealing with marketing or creative issues."

In other ways, the former lawyers admit, there is an inherent disparity between lawyering and agenting.

"The movie business doesn't always lend itself neatly to a tidy, analytic framework," Barber says. "There is an instinctive part, a psychological part, a creative part -- and those three are often at odds with the way you are trained to think and function as a lawyer, where you learn to get rid of the psychological, get rid of the instinctive and get rid of the creative."

Grade Fever

One week till school starts again. I've been focusing hard on living in the present and not dreading it. What's the point of fearing it? Can't stop it.

Grades, on the other hand, can be feared. There's nothing I can do to change them of course, but maybe next semester I'll remember this fear and let it motivate me. Yeah, right.

It's a strange mix of emotions waiting for grades to get posted. I'm terrified of disappointment, and therefore I'm relieved they're not posted yet. On the other hand, the unknowing is torture. Last year I thought it was bullshit, how long they take to get the grades up. But now I'm wiser: why let it ruin your break? I know I didn't do terribly, but let's be real - I've never gotten straight A's in law school, and that's the only way I'd be satisfied.

Fear is kind of self-indulgent, now that I think about it. I punish myself by being afraid, to atone for failing to be perfect.