6.27.13 CEASE AND DESIST THIS

This article originally appeared in the 6.27.13 issue of Metroland

One very funny bit blew through the web last week involving a cease and desist letter from the town of West Orange, New Jersey, trying to wrest the domain name “westorange.info” away from a blogger.  The response, from the blogger’s pro-bono attorney, was a brilliant, funny, scholarly, and scathing take-down of the town and every “argument” its lawyer had tried to make.  The responding lawyer even asked for a property tax refund for himself in a footnote.  Not only did this stop the town’s bullying dead in its tracks, it became an international sensation.  And, hopefully, an inspiration for recipients of bogus C&D letters in the future.

            C&D letters are a lawyer’s stock in trade.  Especially in the world of IP, when a rights owner finds somebody violating those rights, out goes the C&D.  The templates are ready; five minutes cutting and pasting and it's gone.  They’re cheap and they’re effective.  As a general rule, people don’t like getting letters from lawyers.  The creeping sense of dread followed by the bad news that one’s been caught usually ends the infringement quickly.

            C&D letters come in an assortment of lengths and temperatures. I tend to vary mine depending on things like: how blatant the infringement is, whether my client has already told the other party to stop, how big and sophisticated the other party is, how important it is to stop the infringement immediately, and whether the dispute is of a nature that the C&D letter might go public, in which case I’m in a position to affect the public’s perception of my client.   Even if you’re 100% in the right legally, an overbearing C&D letter can backfire and be a PR disaster.

            And, of course, sometimes you can’t win no matter what you do.  A few months ago a band-client contacted me, frantic because another band with the same name had just been discovered gigging on the west coast.  My guys have been around for years, they’ve toured and garnered nationwide press, and while they aren’t exactly famous, they’ve got a name and a reputation worth protecting.  And when they called me they were about to release a new album and do a bunch of dates across the country.  And now here’s this other band with the exact same name announcing a big tour out west.  My guys found out about it when a promoter sent over the itinerary from an online rock magazine with the message “WTF is this you guys?”

            Simply put, you can’t have two bands with the exact same name.  Even if they play vastly different kinds of music.  There’s iTunes, Amazon, Spotify... and there’s only room for one band per name.  A few years ago local heroes Hair Of The Dog called me after a fan bought a Hair Of The Dog album and the lead track was a screaming metal number entitled “Whiskey Dick.”  Turns out there was an LA hair-metal band called Hair Of The Dog that had just released their first album.  Not a good situation.  Out goes the C&D letter, conversations ensued, and the LA band recalled the album and changed their name.

            I wasn’t quite so lucky this time.  Since my guys’ new album and tour was imminent, and since the west coast band’s tour was starting in a matter of days, I needed to get their attention, so I wrote a medium-hot C&D letter: stop using the name and tell the clubs you’re booked into to stop advertising you under that name.  NOW!

            Apparently, the west coast guys were kids, and a couple of them had a show-biz daddy who responded on their behalf by telling me that my music sucked (not my client’s music, my music!), that I was a sucky drummer, that my clients were creeps whom he had never heard of, etc. and so on.  He also contacted one of the schools I teach at and demanded that they fire me!  Who knows what else he tried to do, although he quieted down pretty quick.  Maybe he went to a lawyer who advised him that I was right and that he should STFU.

            Urgh, there’s more to this story, but I need to make this point:  because C&D letters are cheap to reel out, there’s typically little downside to sending them out even when one doesn’t have a case.  And this leads to bullying.  Lots of bullying.  And lots of threats of lawsuits that are totally bogus.  So just because you’ve received a four page C&D letter from some fat white-guy law firm with six last names on the letterhead and offices in 12 cities doesn’t mean you’ve done anything wrong.  And just because Getty Images has sent you a blistering C&D letter with an invoice for $300 for the use of that puppy picture on your website doesn’t mean they’re going to federal court if you ignore them.  Do your homework and stand your ground.

Paul Rapp is a woodsman and IP attorney who was up ‘til 2AM last night yanking porcupine quills out of his dog’s face.

            

6.13.13 NOBODY'S WATCHING YOU

This article originally appeared in the 6.13.13 issue of Metroland.

‘Spose I have to write about this NSA spying mess, right?  I shudder at the thought.  I’ve only been following it casually, and just the conflicting headlines make my brain hurt.  It’s a huge story, but it’s not a new story, and the mainstream press, to the extent it’s covering this at all, is once again doing us a huge disservice with a total lack of critical insight as to what’s happening.

            First of all, no, there are no government brown-shirts pouring over your flirty texts to your boyfriend, your prescription refill call to Rite Aid, or your latest Facebook post about some poor pooch who’s gonna be gassed in the morning at a dog pound in Texas unless somebody does something.  That’s not happening.  No, Obama hasn’t jack-booted the reigns of power or black-helicoptered your inner-most thoughts.  You wouldn’t know that, though, if all you see are the headlines.

            It doesn’t even appear that the administration has broken the law.  And that’s not to say things are OK.  But things aren’t as bad as the media is portraying them.  Keep in mind, this is a thread that includes the phony IRS scandal that the media loved, followed quickly by the Department of Justice leak investigations of a couple of reporters that caused the media to rise up in righteous indignation, maybe even more so than when the media wasn’t allowed to follow Obama around the golf course a few months ago.  Sigh.

           What appears to be happening is that the government is getting enforceable orders from a secret court to seize huge datasets from telephone, internet, and social media companies, datasets that contain tracking info, metadata, of foreign communications that it deems to be suspicious.  These huge datasets also contain lots of tracking info of domestic calls, because that’s apparently how the data is constructed.  The government claims it is only interested in the foreign traffic, and disregards the domestic stuff.  The government doesn’t get any of the actual content of the communications, just info regarding source, recipient, duration, etc.   And all of this is dutifully reported to Congress on a periodic basis.  And it’s all totally within the law and it’s been going on for years.

            Oh, and the various communications companies don’t appear to be letting government spooks run willy-nilly through your stuff either.  Rather, when served with a secret order from the secret court, the companies (some of which may have challenged the orders, and lost) secretly gather up the required info and more or less secretly dropbox it to the government. 

            Now, the proceeding paragraphs could very well be big loads of crap, but it’s the most logical explanation I can concoct from distilling the best sources I could find out there. 

            So it’s the law that allows this that’s the problem. Or is it?  In the days following 9-11, we allowed a lot of our privacy to get pissed away with Congress’ passage of the Patriot Act because we were all a-skeered of them crazy Ay-rabs flying more jets into our skyscrapers.   And the laws have been reauthorized, broadened, deepened and strengthened by Congress over and over again.  What you’re reading about now isn’t new.  A handful of Senators and lots of scholars and commentators have been bemoaning the death of privacy for a long time.  We’ve been doing it right here for as long as we’ve been right here.

            So while you probably haven’t been violated as badly as you’ve been led to believe, yeah, you’ve probably been violated.  Do you care?  I mean, most of us don’t care that our online browsing habits are closely monitored by marketing companies, so when we spend 20 minutes online looking at, say, spatulas, for the next several weeks we’re targeted with ads for spatulas.  It’s not magic!   We accept it.  It’s actually kind of cool, right?  So we really don’t mind that kind of surveillance, but now we’re furiously beating our chests because the broad contours of our communications may end up in a digital stew that the government uses to keep crazy people from blowing us up?

            Yes that was a rhetorical question.  Of course I don’t trust the government, either.  But the data is out there, and the question isn’t so much whether it should be used but how, and under what conditions?   Secret laws, secret courts, and secret orders subject only to secret “congressional oversight” is not acceptable.  This is tantamount to sending rodeo clowns in to do heart surgery.  Notions of privacy are changing at an almost incomprehensible pace, but we haven’t yet and need not devolve into an Orwellian or Kafkaesque state.  I hope.

Paul Rapp is an attorney in the Berkshires who not only wears a tin foil hat 24-7, he makes his dogs wear them, too.