Legalese and Threats

     Noted: There's quite a bit of people threatening to sue critics, bloggers, book reviewers and others these days. It appears that within the troubled teen troubled industry, Scott Chandler, who owns Tierra Blanca Ranch is suing people: https://www.kob.com/article/stories/s3591656.shtml#.VFr1dPnF98F  and Diamond Ranch is also suing people: https://jilliestake.blogspot.com/2014/10/diamond-ranch-academy-vs-schofields.html
and https://jilliestake.blogspot.com/2014/11/diamond-ranch-academy-doubles-down-with.html .

     Suing or threatening to sue seems to be a popular notion these days. It is a way of getting people to shut up. That, and telling a critic that files have been forwarded to the F.B.I. 

     As popehat has indicated with a blog post about being threatened with a defamation suit, this particular post is not legal advice. It is not to be construed or imagined to be legal advice. I am a blogger, not an attorney. Period.

     In scouring the Interwebz, I found bunches of sites willing to tell me in simple terms what all the legalese means. First, under defamation of character, I learned that libel refers to written or published material and slander is spoken. I also learned that the material or statement has to be a pack of lies that hurts the plaintiff in some way. If the action concerns alleged defamation of character, standing will also depend upon what states the plaintiff and the defendant live in and whether or not the plaintiff knows people or does business in the state where the defendant lives. 

     Having a bad opinion about a plaintiff or a plaintiff's alleged actions or behavior and publishing one's bad opinion is not equivalent to defamation of character. The criticism in the form of a book review is actually a valid defense to a defamation of character lawsuit. On the other hand, prefacing any statement with "this is my opinion" may not protect the defendant from legal action, especially if the defendant is lying about the plaintiff on purpose and being a big meanie poop-head in the process. Further, if the plaintiff is famous in some way and exposed to the public eye, that plaintiff must prove actual malice in court. The standard is thus higher for plaintiffs who are public figures than for regular folks.

     A demand letter-- so-called because the plaintiff is demanding stuff near as I can figure-- must lay out the facts of the alleged defamation of character, quote relevant laws, state what the plaintiff intends to do and how much money the plaintiff wants. There are sample demand letters to be had on the Interwebz, although one would think that a fancy attorney would do that for his or her plaintifficating client.

     The area of the law referring to trademarks versus trade-names requires close reading. What I got from the sites I checked is that trademarks can involve logos and stuff like that but trade-names cannot. (And a trademark or TM refers to goods like sneakers. A service mark or SM refers to services such as coaching).

     The swoosh on a sneaker is a trademark, the name of the company involved with said sneakers is a trade-name. I cannot reproduce a trademark because a company does have complete control over their logos, slogans, and symbols. This is as it should be.

     A trade-name may be one's legal name or it may be an assumed name. It is the name under which someone is doing business as or d.b.a. One may register a trade-name as limited liability corporation but ought not to use the trade-name in the way that a trademark is used.  An application to register a trade-name that is common may very well be rejected. Thus, wanting to register "John Smith" may be tough to pull off. Wanting to register "John Smith Marijuana Brownie Company" may be more in the realm of probability.

     People such as singers may actually trade-name their own name but it is best to apply for this on the federal level and not just in the state of primary residence. The trade-name of a performer (for example) represents the brand (his or her performing). 

     What is most interesting to me about trade-names is that legally the registrant of a trade-name DOES NOT control all appearances of that name. Thus, it is legal for me-- according to how I read the laws regulating trade-names-- to mention someone's name, even if a registered trade-name, on my blog site. The idea that I am violating copyright law by mentioning the name of an author in the course of a book review is a false idea. Period.

     Furthermore, there is a search engine that will tell me whether or not a specific word or group of words has been registered as either a trademark or a trade-name.

radical sapphoq says: These days, knowledge is power. Or at the very least it can relieve anxiety. Just saying. So who's being a bully? It ain't me.

References:

https://www.chillingeffects.org/topics/1   [*wonderful site]

http://www.popehat.com/2013/09/26/so-youve-been-threatened-with-a-defamation-suit/  [*personal favorite]


https://www.eff.org/issues/bloggers/legal/liability/defamation  [*I love the 

E.F.F.].


https://www.dmlp.org/legal-guide/defamation


https://www.bmartin.cc/dissent/documents/defamation.html



defamation of character

https://www.nolo.com/legal-encyclopedia/defamation-law-made-simple-29718.html 

 https://www.nolo.com/legal-encyclopedia/defamation-slander-libel

https://www.nolo.com/legal-encyclopedia/social-media-online-defamation.html

https://www.nolo.com/legal-encyclopedia/privileges-defenses-defamation-cases.html  

https://legal-dictionary.thefreedictionary.com/Defamation+of+character
definitions

https://www.alllaw.com/articles/nolo/personal-injury/defamation-character-lawsuit-proving-harm.html  

https://www.alllaw.com/articles/nolo/personal-injury/defamation-character-free-speech.html  

https://www.alllaw.com/articles/nolo/personal-injury/defamation-character.html

https://www.alllaw.com/articles/nolo/personal-injury/demand-letter-defamation-case.html 

https://www.alllaw.com/articles/nolo/personal-injury/sample-demand-letters.html  

https://www.wikihow.com/Sue-for-Defamation 



fair criticism

http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4043&context=ndlr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Fcse%3Fq%3Ddefamation%2Bof%2Bcharacter%26cref%3Dhttp%253A%252F%252Fwww.thesocialsearcher.com%252Fcse%252Fv1.xml#search=%22defamation%20character%22 
examples of authors suing critics page 4



registered trademark trade-name

https://www.sba.gov/blogs/difference-between-trade-name-and-trademark-and-why-you-cant-overlook-either


https://www.veritrademark.com/articles/difference-trademark-tradename

https://www.invention-protection.com/ip/publications/docs/Legal_Name_Trade_Name_Trademark.html

https://biznik.com/articles/the-difference-between-a-trade-name-and-a-trademark-and-why-you-should-care

https://smallbusiness.chron.com/difference-between-trade-name-trademark-3219.html


https://smallbusiness.chron.com/trademark-performers-name-56300.html

https://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4810:zn482m.1.1

https://smallbusiness.chron.com/file-trademark-name-government-60979.html

It Happens

     Some overly-sensitive/ false egomaniac/ don't-you-know-who-I-am sort of author doesn't like a book review and threatens to sue.

     Some copyright troll/ copyright monopolist/ Big Hollywood type issues a take-down notice and threatens court action.

     Screw the first amendment.

     Screw fair use doctrine.

     What is justice when you don't have money to fight back???




     As for the first example, it has happened to me. I consulted legal counsel and followed their instruction.

     The thing is, if you are going to claim "special" knowledge then at some point you ought to think about how you are going to prove that you have taken courses, gotten a degree and another degree, do indeed possess special knowledge far and above that of most human beings on the planet. 
     Hiding behind the idea of "it was a secret ritual" doesn't cut it. Period.
     A diploma on your wall from a mail-order university that accepted thirty-five pages of your poorly written "thesis" about your personal experiences proves nothing. I can get that same "degree" for fifty bucks from that same company. Yes, I checked. The idea that bunches of people "love" you is not good enough.
     Fraud is fraud. Using your fake degree to charge insurance companies a rate similar to the rate that properly credentialed PhDs charge is fraud. That the insurance companies are too stupid to know it does not excuse your actions. 
     Claiming worldly success and having a lover verbally abuse you on-line does not require that I hang out to watch. Having a lover physically and emotionally abuse you in your home [and you denying that you want help to get out of it] means I excuse myself from your friendship. I refuse to bear witness to something that you feel is "love." I hope you are able to get out someday. Even if we never are able to become friends again, I hope you find the support and courage to split from that scene.

     The second example has not happened to me as of yet. I absolutely refuse to purchase anything with that D.R.M. crap on it. Whatever else I do-- if I do anything else-- to fight the unfair enforcement of copyright laws is not something I will publish here. There are far too many egofags around. And informants. The current number of informants seem to be hovering around twenty-five percent. 


radical sapphoq says: If you are in the fight, then shut up about it. If you aren't, then you may want to consider getting educated. Check out what Anonymous is doing. Check out what Electronic Frontier Foundation is doing. Check out what your lawmakers are doing. If you don't know what is happening around you, then you are subject to the illusion that "all is right with the world." It isn't. Justice is not always just. Word.
     

Forty Bit Ain't

Once upon a time in a cold country there existed someone who liked to play with code.  This someone, along with one or two unnamed cohorts from one or two other countries whose weather wasn't quite as cold, was interested in solving a problem.  The problem was that there was not a program which allowed users running Linux to play D.V.D.s on their computers.  This someone was partly or primarily responsible for creating the first version of DeCSS [De C.S.S., commonly pronounced as DeSis].  This first entry into the history of coding and other subjects was not designed to crack the CSS [C.S.S.] in order to distribute copies of D.V.D.s on the torrents.  This first entry was designed so that way Linux users could play their legally owned copies of D.V.D.s on their Linux-running computers.

For his troubles, the young man was arrested and interrogated for seven hours without a food break.  The young man's father was questioned at home because he was ill.  This action caused a big outcry among bunches of people, but being way back in or around 2000, this whole thing was quickly forgotten.  The young man had two computers and a cell phone confiscated by the authorities.  For his troubles, he had to go to trial and re-trial, facing two or three years in prison for writing a code.  Wisely, the authorities gave up.  But not without causing more butt-hurt for other people along the way.

Into the fray marched creators of t-shirts and a creator of a neck tie.  The t-shirts and the neck tie featured certain lines of code.  The judge ruled that just because you can put something on a t-shirt, it does not automatically follow that it ought to be protected as free speech.  It is more than likely that you cannot buy the t-shirt today, although links on the net still point to where you used to be able to buy one.  There are some people in the state known as California who are legally enjoined not to wear said t-shirt.  The rest of us may be able to wear it but we just can't find any places to buy it.

The MPAA [M.P.A.A.] is a trade organization which has been formulated to increase the bottom line of Big Hollywood.  Its' members are prominent players in the industry.  The MPAA is understandably invested in the idea that users have no rights to the dissemination of their singular copies of movies and other things which they legally own.  There is on-going dispute about these things.  It used to be back in the glory days that we were allowed to make one copy of a movie or music piece that we had obtained legally in order to preserve said movie or music piece against damage.  In other words, I could take a legally purchased DVD home and make one copy.  I could play my one copy until it broke or until the cows came home.  If the copy broke, I was not out a bunch of money as I still had my original legally purchased DVD.  This consumer protection is no longer a law.  Instead, the MPAA argues that if my legally purchased DVD breaks or becomes inoperable, I have to utilize my filthy atheist bucks in order to buy another one.  Similarly, if I want to watch a movie which I purchased on a DVD format in my living room which for some reason has only an old VHS [V.H.S.] player, I am no longer legally allowed to port my DVD or copy my DVD onto a VHS tape.  The MPAA would want me to buy a VHS tape as well as the DVD.  And if I am radical enough to run Linux, I am just plain out of luck.  The MPAA would have me bow down to the Micro$oftie openings in the walls before allowing me to create or use a player designed for Linus which would strip the CSS from my DVD.  Because, according to the MPAA, everyone is a pirate.  Even those techies who are fans of Linux suddenly becomes a criminal.  Besides this, DVD players themselves will only play DVDs purchased in the zone that the DVD player is designed for.  Thus, my legally obtained DVD of a movie which I brought back from my trip to India will not play on my Untied Statsian DVD player.  The answer to this quandary is obvious.  Purchase a DVD player from the proper zone for each foreign movie I own-- there are seven zones in all-- or S.T.F.U. and forget about it.  The MPAA has a reason or an excuse for every action that they take.  Those of us who oppose the D.M.C.A. which a certain president had signed into law, C.I.S.P.A., A.C.T.A., R.I.A.A., W.I.P.O.,  and all other recent terrifying initials suspect that the bottom line involves profit.

The only bright part of this tale is that the young man was acquitted.  The horrifying part is that he was not a pirate.  He did not intent to distribute a copy of any DVD on the wires to other people who did not legally purchase their own copies.  He in fact did not share any DVDs with his friends.  He only wanted to play his legally purchased DVDs on his Linux box.  Although no evidence existed that he was a pirate of any sort, he was detained and had to go through a trial and a re-trial.  The DMCA does not require evidence of any illegal activity for there to be arrests of citizens of the world.  The disappointing part of this tale is that although as long as I stay out of the state known as California, there are few or no DeCSS t-shirts to be had for any price anywhere.

why the title: CSS uses forty-bit encryption.  Forty-bit is weak.  The word "bit" rhymes with the word "shit".

radical sapphoq on a bit of oft forgotten internet history 
I support the E.F.F.     https://www.eff.org/ 
I read 2600.                  http://www.2600.com/ 

p.s.  Due to the availability of MPlayer and also LinDVD, I believe that DeCSS is no longer needed in order to play legally purchased DVDs on a Linux OS.


references: 

https://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html
     http://decss.zoy.org/decss-read.mp3
     https://www.cs.cmu.edu/~dst/DeCSS/Gallery                                 /css_descramble_joe_wecker.mp3 
     https://www.cs.cmu.edu/~dst/DeCSS/Gallery/the_computer_code_hoedown_.mp3 
https://www.cs.cmu.edu/~dst/DeCSS/Gallery/Stego/index.html 

http://decss.zoy.org/ 
http://revjim.freeshell.org/decss.html 
http://www.wrongway.org/?decss


http://www.visi.com/~tneu/mpaafaq.html
https://cyber.law.harvard.edu/openlaw/DVD/dvd-discuss-faq.html 
http://features.slashdot.org/story/00/03/17/166237/feedback-who-owns-ideas 
http://www.bcgreen.com/decss/

https://en.wikipedia.org/wiki/DeCSS 
http://www.cmosnetworks.com/WatchingDVDsOnAnyGNULinuxDistro.html 
http://archive09.linux.com/articles/38597
http://go2linux.garron.me/play-protectec-css-cd-dvd-linux
http://www.techhive.com/article/34994/article.html 
https://en.wikipedia.org/wiki/LinDVD

http://www.linuxjournal.com/article/5050
http://www.linuxjournal.com/article/5072 
http://www.salon.com/2000/02/09/linuxdvd/ 
http://www.wired.com/politics/law/news/2000/06/36995
http://www.2600.com/dvd/docs/2000/0606-valenti.txt

http://yro.slashdot.org/story/00/04/05/1237247/mpaa-files-another-injunction-against-2600 
https://www.eff.org/deeplinks/2007/05/09-f9-legal-primer 

https://www.gnu.org/philosophy/not-ipr.html 
https://fsfe.org/activities/wipo/wiwo.en.html 

https://www.eff.org/node/55940
https://www.eff.org/node/56084 

http://news.slashdot.org/story/13/05/31/2045211/drm-how-book-publishers-failed-to-learn-from-the-music-industry 
https://www.eff.org/pages/unintended-consequences-fifteen-years-under-dmca