Website Name (not domain) Legal Issues Help needed
Andrew
and trademarks stuff. I've done some hard late at night researching on
the legal issues of copyrights and trademarks but I have not found a
clear answer to my question. I was hoping you guys of the usenet can
help me out here. Anyways, here is my question:
Lets say I want to make a fan website with the name of 'XYZ4'. I go on
the TESS thing and I search 'XYZ4' and it turns out that there is a
trademark for XYZ4. Can I still name my site 'XYZ4'??? also, I don't
plan on purchasing a trademark or a domain for 'XYZ4'.
Thanks in advance.
Barry Margolin
repuls...@yahoo.com (Andrew) wrote:
> Lets say I want to make a fan website with the name of 'XYZ4'. I go on
> the TESS thing and I search 'XYZ4' and it turns out that there is a
> trademark for XYZ4. Can I still name my site 'XYZ4'??? also, I don't
> plan on purchasing a trademark or a domain for 'XYZ4'.
IANAL, but I understand that trademarks often only apply within a
specific geographical area and/or to a specific type of business. If
the existing trademark is limited like this, and your use doesn't
overlap, then I don't think there would be any infringement.
However, some trademarks enjoy fairly broad scope. These are typically
unusual, coined words and famous marks. For instance, I expect that
just about any use of "Xerox" in trade would infringe Xerox Corp's
trademark.
--
Barry Margolin, bar...@alum.mit.edu
Genuity, Inc., Woburn, MA
Doc O'Leary
Mandatory IANAL.
> Lets say I want to make a fan website with the name of 'XYZ4'. I go on
> the TESS thing and I search 'XYZ4' and it turns out that there is a
> trademark for XYZ4. Can I still name my site 'XYZ4'??? also, I don't
> plan on purchasing a trademark or a domain for 'XYZ4'.
Trademarks are for a purpose, the "trade" in question. Just because MS
uses Windows in one context doesn't give them rights to the word in all
contexts, nor does Apple control all uses of *that* word. I jokingly
make reference to this sort of thing in the announcement of some of our
software:
http://www.subsume.com/static/WebObjects/SubsumeSite/SubsumeSite/News/200
1/29-Nov-2001.html
If your usage is unlikely to cause confusion in the marketplace, you
really shouldn't worry much (even if some corporate lawyer *does* decide
to get cease-and-desist happy). If, however, you *are* trying to
exploit the value of that mark in the same marketplace, you might be in
for a bit of hurting. As you chose to share only "XYZ4" instead of the
actual details, very little can be said about possible outcomes.
Paul Tauger
"Barry Margolin" <bar...@alum.mit.edu> wrote in message
news:barmar-8E1BBF....@netnews.attbi.com...
> In article <4549e74e.02070...@posting.google.com>,
> repuls...@yahoo.com (Andrew) wrote:
>
> > Lets say I want to make a fan website with the name of 'XYZ4'. I go on
> > the TESS thing and I search 'XYZ4' and it turns out that there is a
> > trademark for XYZ4. Can I still name my site 'XYZ4'??? also, I don't
> > plan on purchasing a trademark or a domain for 'XYZ4'.
>
> IANAL,
And you should have left it at taht.
> but I understand that trademarks often only apply within a
> specific geographical area and/or to a specific type of business.
Wrong. Registered marks (which are the only ones which appear in the
USPTO's on-line data base) are entitled to nation-wide preemption. Only
unregistered common-law marks are restrited to the geographic area in which
the mark has acquired reputation.
The test for infringement is likelihood of consumer confusion as to source
which, in most jurisidictions, is an 8-prong test, of which "type of
business" (actually "class of goods or services") is only one
non-dispositive prong.
There is a "related goods" doctrine which provides that dissimilar, but
related products, can satisfy the class of goods or services test.
> If
> the existing trademark is limited like this, and your use doesn't
> overlap, then I don't think there would be any infringement.
ICANN will cancel or transfer any domain name which contains or is identical
to a previously-registered trademark.
>
> However, some trademarks enjoy fairly broad scope. These are typically
> unusual, coined words and famous marks. For instance, I expect that
> just about any use of "Xerox" in trade would infringe Xerox Corp's
> trademark.
That's correct. However, even for descriptive marks (protectable upon a
showing of secondary meaning), use of the mark as domain name by a junior
user could result in infringement under the momentary confusion doctrine.
Paul Tauger
"Doc O'Leary" <drolear...@subsume.com> wrote in message
news:droleary.usenet-E1...@corp.supernews.com...
Take a look at 15 U.S.C. Section 1125(c) (Section 43(c) of the Lanham Act).
Even non-infringing use of a famous mark can constitute actionable dilution
which, at minimum, will result in injunctive relief and, since the recent
revisions to the Lanham Act, can, in certain circumstances, result in
liability for damages.
Andrew
Well, its just gonna be an about-me kinda site showcasing my graphic design stuff.
Barry Margolin
"Paul Tauger" <ptauger...@earthlink.net> wrote:
> > If
> > the existing trademark is limited like this, and your use doesn't
> > overlap, then I don't think there would be any infringement.
>
> ICANN will cancel or transfer any domain name which contains or is identical
> to a previously-registered trademark.
That's a separate issue. Just because ICANN takes away your domain
doesn't mean you're infringing.
Anyway, the OP wasn't planning on using the similar term in a domain
name, he's just planning on using it in the page name (by which I
interpret him to mean titles and/or parts of the URL *after* the domain
name).
Isaac
> In article <aghddi$lrei1$1...@ID-101118.news.dfncis.de>,
> "Paul Tauger" <ptauger...@earthlink.net> wrote:
>
>> > If
>> > the existing trademark is limited like this, and your use doesn't
>> > overlap, then I don't think there would be any infringement.
>>
>> ICANN will cancel or transfer any domain name which contains or is identical
>> to a previously-registered trademark.
>
> That's a separate issue. Just because ICANN takes away your domain
> doesn't mean you're infringing.
Absolutely. Since we've already had one reference to the 8 factors
for determining that a likelihood of confusion exists, it seems appropriate
to point out that similarity to a registered trademark is again only one
of the factors.
As an example consider 2600's recent successful defense of a domain name
containing "generalmotors"
Isaac
Paul Tauger
> In article <aghddi$lrei1$1...@ID-101118.news.dfncis.de>,
> "Paul Tauger" <ptauger...@earthlink.net> wrote:
>
> > > If
> > > the existing trademark is limited like this, and your use doesn't
> > > overlap, then I don't think there would be any infringement.
> >
> > ICANN will cancel or transfer any domain name which contains or is
identical
> > to a previously-registered trademark.
>
> That's a separate issue. Just because ICANN takes away your domain
> doesn't mean you're infringing.
True, but I was addressing your erroneous assertion that it is not
infringement, "If the existing trademark is limited like this [geographic
scope], and your use doesn't overlap, then I don't think there would be any
infringement."
As I explained, and you snipped, federally-registered trademarks are not
limited in geographic scope, and the test for similarity of goods and
services vis-a-vis likelihood of confusion is not whether they "overlap."
The "related goods" doctrine recognizes likelihood of confusion for
different goods and services, and even where the goods are entirely
different, there _still_ may be infringement under the expansion prong of
likelihood of confusion analysis. Finally, per 15 USC 1125(c), there can be
dilution, resulting in injunction and, in some instances, damages, even
where there is no likelihood of consumer confusion.
>
> Anyway, the OP wasn't planning on using the similar term in a domain
> name, he's just planning on using it in the page name (by which I
> interpret him to mean titles and/or parts of the URL *after* the domain
> name).
I won't make any such interpretation, nor will I offer the OP legal advice
(nor will any other lawyer who posts here). However, it is not a defense to
infringement to say, "I didn't register someone else's trademark as a
domain, I only used it as a title or parts of the URL after the domain."
Bill Silverstein
Barry, Paul:
What I didn't see in this thread is the mention of proper use of
trademark to identify a product or service.
As in one of my domains, mattelabuse.com, barbieslapp.com, and in the
url http://wwwww.sorehands.com/mattel I am properly using
trademark to identify Mattel's abuse, barbie related SLAPPs, and a
section of my site talking about Mattel.
If I have a printer toner business, it would be proper to have a
directory xerox, to identify that directory as having toner or
information on xerox printers. And to say that these products is for
Xerox printers.
If trademark enforcement actions are allowed against these
usages, this can be used to eliminate competition. You can't complain
about a company because you can't mention their trademarked name or
product name. You can't advertise you repair fords, because you can't
use the ford name without permission and ford has an interest in
protecting their authorized dealers. Look at Mattel v. MCA records.
-----------------------------------------------------
http://www.barbieslapp.com
Mattel, SLAPP terrorists intent on destroying free speech.
Barry Margolin
"Paul Tauger" <ptauger...@earthlink.net> wrote:
> "Barry Margolin" <bar...@alum.mit.edu> wrote in message
> news:barmar-BC2F6D....@netnews.attbi.com...
> > Anyway, the OP wasn't planning on using the similar term in a domain
> > name, he's just planning on using it in the page name (by which I
> > interpret him to mean titles and/or parts of the URL *after* the domain
> > name).
>
> I won't make any such interpretation, nor will I offer the OP legal advice
> (nor will any other lawyer who posts here). However, it is not a defense to
> infringement to say, "I didn't register someone else's trademark as a
> domain, I only used it as a title or parts of the URL after the domain."
Make up your mind, are you talking about infringement or ICANN taking
away your domain?
ICANN may take away your domain if it's similar to someone's registered
trademark, even if you're not legally infringing. That's what I meant
about them being unrelated issues.
Paul Tauger
> In article <agminj$n0ss8$1...@ID-101118.news.dfncis.de>,
> "Paul Tauger" <ptauger...@earthlink.net> wrote:
>
> > "Barry Margolin" <bar...@alum.mit.edu> wrote in message
> > news:barmar-BC2F6D....@netnews.attbi.com...
> > > Anyway, the OP wasn't planning on using the similar term in a domain
> > > name, he's just planning on using it in the page name (by which I
> > > interpret him to mean titles and/or parts of the URL *after* the domain
> > > name).
> >
> > I won't make any such interpretation, nor will I offer the OP legal advice
> > (nor will any other lawyer who posts here). However, it is not a defense to
> > infringement to say, "I didn't register someone else's trademark as a
> > domain, I only used it as a title or parts of the URL after the domain."
>
> Make up your mind, are you talking about infringement or ICANN taking
> away your domain?
Are you having trouble reading the thread? We're talking about
infringement. Read the post to which you just replied.
>
> ICANN may take away your domain if it's similar to someone's registered
> trademark, even if you're not legally infringing. That's what I meant
> about them being unrelated issues.
What you "meant" was that you were wrong about the trademark issues,
but rather than admit it, would rather quote out-of-context, ignore
what other have said, and generally try to save face by disparaging
others.
Now you know the danger of playing lawyer wannabe on the internet --
you simply wind up looking foolish.
You can have the last word. This is no longer about infringement
issues, but your own ego, and I'm just not interested in playing.
Isaac
>
> What you "meant" was that you were wrong about the trademark issues,
> but rather than admit it, would rather quote out-of-context, ignore
> what other have said, and generally try to save face by disparaging
> others.
I think that's a little harsh. I think the major mistake that he
made was not noticing that the poster searched his trademark in the
USPTO's database.
He was wrong about the geographic limits on the mark, but the rest
of the comments in his original post seemed to be correct.
Isaac
Barry Margolin
tauge...@usa.net (Paul Tauger) wrote:
> Barry Margolin <bar...@alum.mit.edu> wrote in message
> news:<barmar-099557....@netnews.attbi.com>...
> > In article <agminj$n0ss8$1...@ID-101118.news.dfncis.de>,
> > "Paul Tauger" <ptauger...@earthlink.net> wrote:
> >
> > > "Barry Margolin" <bar...@alum.mit.edu> wrote in message
> > > news:barmar-BC2F6D....@netnews.attbi.com...
> > > > Anyway, the OP wasn't planning on using the similar term in a domain
> > > > name, he's just planning on using it in the page name (by which I
> > > > interpret him to mean titles and/or parts of the URL *after* the domain
> > > > name).
> > >
> > > I won't make any such interpretation, nor will I offer the OP legal
> > > advice
> > > (nor will any other lawyer who posts here). However, it is not a defense
> > > to
> > > infringement to say, "I didn't register someone else's trademark as a
> > > domain, I only used it as a title or parts of the URL after the domain."
> >
> > Make up your mind, are you talking about infringement or ICANN taking
> > away your domain?
>
> Are you having trouble reading the thread? We're talking about
> infringement. Read the post to which you just replied.
But then you wrote a post about ICANN revoking domain names, and that's
the tangent I'm on.
Paul Tauger
"Isaac" <is...@latveria.castledoom.org> wrote in message
news:slrnaj236...@latveria.castledoom.org...
> On 13 Jul 2002 15:57:57 -0700, Paul Tauger <tauge...@usa.net> wrote:
> >
> > What you "meant" was that you were wrong about the trademark issues,
> > but rather than admit it, would rather quote out-of-context, ignore
> > what other have said, and generally try to save face by disparaging
> > others.
>
> I think that's a little harsh.
It is harsh, but he's trying to playing one-up with me, rather than
discussing law, and I'm just not interested in playing.
>I think the major mistake that he
> made was not noticing that the poster searched his trademark in the
> USPTO's database.
Three mistakes:
1. Registered marks are not limtied in geographic scope (there's actually
an exception to this, as well).
2. Infringement doesn't require that marks be used for the same type of
goods or services.
3. Dilution under the Lanham Act doesn't require a finding of likelihood of
confusion, i.e. infringement, at all.
The second and third points are particularly important, since the OP could
incur liability if he had relied on the post.
I've said it many, many times in this newsgroup -- this is a great place to
discuss general principles of law and ask generalized or hypothetical
questions (provided they are true hypotheticals, and not real-life problems
couched in hypothetical language). It is, however, a very, very bad idea to
ask for specific legal advice, because the only people who will provide
advice in this forum are _non_ lawyers who, by definition, are not competent
to do so.
There are some very knowledgable lay people (including Barry) who post here,
and I'm frequently pleasantly surprised by the level and sophistication of
knowledge about the law that I find here. However, it's just plain
dangerous to give advice about law (or, for that matter, anything) based on
a dilettante understanding.
Isaac
<ptauger...@earthlink.net> wrote:
>
>
> Three mistakes:
>
> 1. Registered marks are not limtied in geographic scope (there's actually
> an exception to this, as well).
> 2. Infringement doesn't require that marks be used for the same type of
> goods or services.
> 3. Dilution under the Lanham Act doesn't require a finding of likelihood of
> confusion, i.e. infringement, at all.
>
> The second and third points are particularly important, since the OP could
> incur liability if he had relied on the post.
>
Dilution under the Lanham Act is limited to famous marks right? Possibly
important since we don't know what the mark in question is. But there is
still a factor analysis to go through to evaluate the likelihood of
dilution.
For point two, as you suggested you have to look at all of the factors.
The types of goods or services is one of the factors. Heightening
the importance of any of the factors in isolation is a serious over
simplification. Of course that includes simply looking at the similarity
of the word to a registered mark.
That's the reason for questioning your dragging in ICANN policy. If
I remember correctly, the original poster wasn't talking about a domain
name, but a usage on his page, so it seemed to me that you were shortcutting
the analysis similar to the way Barry did. Who cares what ICANN's policy
is if (as people regularly complain) it's not the same as infringement.
Isaac
Paul Tauger
> On Sun, 14 Jul 2002 00:57:32 -0700, Paul Tauger
> <ptauger...@earthlink.net> wrote:
> >
> >
> > Three mistakes:
> >
> > 1. Registered marks are not limtied in geographic scope (there's
actually
> > an exception to this, as well).
> > 2. Infringement doesn't require that marks be used for the same type of
> > goods or services.
> > 3. Dilution under the Lanham Act doesn't require a finding of
likelihood of
> > confusion, i.e. infringement, at all.
> >
> > The second and third points are particularly important, since the OP
could
> > incur liability if he had relied on the post.
> >
>
> Dilution under the Lanham Act is limited to famous marks right?
Right.
> Possibly
> important since we don't know what the mark in question is.
The OP had said a "fan site." It's not unreasonable to assume that someone
who has fans is famous. However, you're right -- no one can tell from the
OP's post what mark was at issue, which is why it's particularly
inappropriate to provide any advice or analysis.
>But there is
> still a factor analysis to go through to evaluate the likelihood of
> dilution.
>
> For point two, as you suggested you have to look at all of the factors.
> The types of goods or services is one of the factors.
No, that's not what I said. "Related products" doctrine doesn't require
that goods or services be identical for there to be likelihood of confusion.
The "likelihood of expansion" prong specifically contemplates disparate
markets and disparate goods. It is therefore wrong to say that that the
protection accorded to marks is limited to those situations involving
similar goods or services.
>Heightening
> the importance of any of the factors in isolation is a serious over
> simplification. Of course that includes simply looking at the similarity
> of the word to a registered mark.
Right, though some factors, e.g. existence of actual confusion and
defendant's intent, are accorded more weight than others and, in some
circumstances, can be virtually dispositive of likelihood of confusion.
>
> That's the reason for questioning your dragging in ICANN policy.
I didn't "drag in" ICANN policy. ICANN will, generally, cancel a domain if
it is identical to a pre-existing registered trademark, which is another
consideration, separate and apart from infringement and dilution, that must
be considered.
>If
> I remember correctly, the original poster wasn't talking about a domain
> name, but a usage on his page, so it seemed to me that you were
shortcutting
> the analysis similar to the way Barry did. Who cares what ICANN's policy
> is if (as people regularly complain) it's not the same as infringement.
Who cares? Anyone who registers a domain name identical to a pre-existing
registered trademark.
As I've said, over and over again, I don't and won't give legal advice over
the internet (nor will any other lawyer who posts here). _I_ discuss
general legal principles and, in this case, I was addressing a rather gross
misstatement regarding potential issues in adopting a mark for a website.
>
> Isaac
Isaac
wrote:
>
> who has fans is famous. However, you're right -- no one can tell from the
> OP's post what mark was at issue, which is why it's particularly
> inappropriate to provide any advice or analysis.
No one really gave any advice, but I think it's silly to say that no
analysis should be provided. That's bascially the same as saying that
we shouldn't discuss it.
As long as the limitations of facts and expertise are made clear, there's
nothing wrong with discussing something or attempting to apply logic.
It seems that you feel any opinion which does not include a statement of
possible liability is advice. I'd suggest that an opinion which is clearly
annotated to be based on something someone heard from some unknown third
party isn't advice.
>>But there is
>> still a factor analysis to go through to evaluate the likelihood of
>> dilution.
>>
>> For point two, as you suggested you have to look at all of the factors.
>> The types of goods or services is one of the factors.
>
> No, that's not what I said. "Related products" doctrine doesn't require
> that goods or services be identical for there to be likelihood of confusion.
> The "likelihood of expansion" prong specifically contemplates disparate
> markets and disparate goods. It is therefore wrong to say that that the
> protection accorded to marks is limited to those situations involving
> similar goods or services.
In other words consider the other factors or prongs.
> I didn't "drag in" ICANN policy. ICANN will, generally, cancel a domain if
> it is identical to a pre-existing registered trademark, which is another
> consideration, separate and apart from infringement and dilution, that must
> be considered.
But who was talking about domain names. No one was until you brought it up.
It just wasn't relevant. We might as well add that if the use of the
trademark is involved in a libelous statement, then that too is actionable.
Isaac
Paul Tauger
> On Sun, 14 Jul 2002 12:56:09 -0700, Paul Tauger
<ptauger...@earthlink.net>
> wrote:
> >
> > The OP had said a "fan site." It's not unreasonable to assume that
someone
> > who has fans is famous. However, you're right -- no one can tell from
the
> > OP's post what mark was at issue, which is why it's particularly
> > inappropriate to provide any advice or analysis.
>
> No one really gave any advice, but I think it's silly to say that no
> analysis should be provided. That's bascially the same as saying that
> we shouldn't discuss it.
Exactly right. If someone comes here and asks for advice (and the OP did),
you're not doing him any favor by "discussing it" when no one here willing
to discuss it has sufficient knowledge to do so.
>
> As long as the limitations of facts and expertise are made clear, there's
> nothing wrong with discussing something or attempting to apply logic.
Sorry, but "IANAL" doesn't cover it. As for "applying logic" to law, it
seems that everyone is willing to assume that that's all that's involved in
practicing law. Would you perform surgery soley by "using logic"?
>
> It seems that you feel any opinion which does not include a statement of
> possible liability is advice.
No. I feel an incomplete and inaccurate analysis by a layperson is
dangerous and serves no one.
> I'd suggest that an opinion which is clearly
> annotated to be based on something someone heard from some unknown third
> party isn't advice.
I have no idea what you're talking about. I'm talking about _this_ thread,
where the OP asked a question and was provided with an erroneous answer.
>
> >>But there is
> >> still a factor analysis to go through to evaluate the likelihood of
> >> dilution.
> >>
> >> For point two, as you suggested you have to look at all of the factors.
> >> The types of goods or services is one of the factors.
> >
> > No, that's not what I said. "Related products" doctrine doesn't require
> > that goods or services be identical for there to be likelihood of
confusion.
> > The "likelihood of expansion" prong specifically contemplates disparate
> > markets and disparate goods. It is therefore wrong to say that that the
> > protection accorded to marks is limited to those situations involving
> > similar goods or services.
>
> In other words consider the other factors or prongs.
No, not "in other words." I'm not repeating what I've already written.
>
> > I didn't "drag in" ICANN policy. ICANN will, generally, cancel a domain
if
> > it is identical to a pre-existing registered trademark, which is another
> > consideration, separate and apart from infringement and dilution, that
must
> > be considered.
>
> But who was talking about domain names. No one was until you brought it
up.
> It just wasn't relevant.
It wasn't clear to me what the OP was planning to do and, in any event, I
wasn't writing in response to the OP, but to the wrong information he was
given.
>We might as well add that if the use of the
> trademark is involved in a libelous statement, then that too is
actionable.
What you've written makes no sense.
>
> Isaac
Roger Schlafly
> > No one really gave any advice, but I think it's silly to say that no
> > analysis should be provided. That's bascially the same as saying that
> > we shouldn't discuss it.
> Exactly right. If someone comes here and asks for advice (and the OP
did),
> you're not doing him any favor by "discussing it" when no one here willing
> to discuss it has sufficient knowledge to do so.
Maybe he is, and maybe he's not. If you don't know enough to have
an opinion, then you don't know enough to say whether the discussion
is useful. If you don't want to discuss it, then don't.
Isaac
<ptauger...@earthlink.net> wrote:
>
> "Isaac" <is...@latveria.castledoom.org> wrote in message
> news:slrnaj3qp...@latveria.castledoom.org...
>> analysis should be provided. That's bascially the same as saying that
>> we shouldn't discuss it.
>
> Exactly right. If someone comes here and asks for advice (and the OP did),
> you're not doing him any favor by "discussing it" when no one here willing
> to discuss it has sufficient knowledge to do so.
Perhaps now I better understand your position concerning past
discussions.
We discuss it because we find it interesting despite the fact that we
don't help anyone. This isn't a forum for even experts to provide
advice.
My own style is to stick to spotting a few issues as I understand them
but others are going to discuss things from their own perspective.
> Sorry, but "IANAL" doesn't cover it. As for "applying logic" to law, it
> seems that everyone is willing to assume that that's all that's involved in
> practicing law. Would you perform surgery soley by "using logic"?
Of course not. But who's practicing law here? We're discussing. Sometimes
those discussing things are going to be wrong. If we're lucky, one of
you practitioners will help point out the mistakes.
>> But who was talking about domain names. No one was until you brought it
> up.
>> It just wasn't relevant.
>
> It wasn't clear to me what the OP was planning to do and, in any event, I
> wasn't writing in response to the OP, but to the wrong information he was
> given.
Okay, but the title of the thread says he isn't talking about a domain
name.
Isaac
Paul Tauger
"Roger Schlafly" <rog...@mindspring.com> wrote in message
news:30qY8.763$GZ4.43...@twister1.starband.net...
No, Roger. As you will know, when the self-appointed non-lawyer "experts"
in this ng persist in giving dangerous and erroneous advice, I'll jump in.
>
>
Paul Tauger
> On Sun, 14 Jul 2002 17:24:29 -0700, Paul Tauger
> <ptauger...@earthlink.net> wrote:
> >
> > "Isaac" <is...@latveria.castledoom.org> wrote in message
> > news:slrnaj3qp...@latveria.castledoom.org...
> >> No one really gave any advice, but I think it's silly to say that no
> >> analysis should be provided. That's bascially the same as saying that
> >> we shouldn't discuss it.
> >
> > Exactly right. If someone comes here and asks for advice (and the OP
did),
> > you're not doing him any favor by "discussing it" when no one here
willing
> > to discuss it has sufficient knowledge to do so.
>
> Perhaps now I better understand your position concerning past
> discussions.
>
> We discuss it because we find it interesting despite the fact that we
> don't help anyone. This isn't a forum for even experts to provide
> advice.
And that's exactly as it should be. It's one thing to discuss something
because it's interesting, and another entirely different to attempt to
answer questions from posters about specific situations. I've never taken
anyone to task simply for discussing the law and its application (in a
general sense) -- I think that's a terrific thing.
>
> My own style is to stick to spotting a few issues as I understand them
> but others are going to discuss things from their own perspective.
And discussing things is fine. It stops being a discussion of academic
interest when people attempt to provide legal guidance to posters who wander
in here looking for help.
>
> > Sorry, but "IANAL" doesn't cover it. As for "applying logic" to law, it
> > seems that everyone is willing to assume that that's all that's involved
in
> > practicing law. Would you perform surgery soley by "using logic"?
>
> Of course not. But who's practicing law here? We're discussing.
You're not discussing when a poster asks a question about a specific
situation and you attempt provide an answer based in law. I'm not going
down the UPL slippery-slope again. That doesn't matter. What does matter
is that people who don't know better come into this ng thinking they can get
legal advice about computer-related subjects. No one here is in a position
to provide that advice.
> Sometimes
> those discussing things are going to be wrong. If we're lucky, one of
> you practitioners will help point out the mistakes.
And, if you've read my posts from time to time, you know that I take an
entirely different tone when it truly is a discussion. As I said, I think
it's great that people are interested in discussing law, and if I can make a
contribution to that discussion, I'll do it happily, respectfully and
courteously. I react very differently when I see people trying to provide
legal guidance and advice to newcomers to this ng who don't recognize the
difference between a Usenet group and a lawyer's office.
>
> >> But who was talking about domain names. No one was until you brought
it
> > up.
> >> It just wasn't relevant.
> >
> > It wasn't clear to me what the OP was planning to do and, in any event,
I
> > wasn't writing in response to the OP, but to the wrong information he
was
> > given.
>
> Okay, but the title of the thread says he isn't talking about a domain
> name.
True, and I didn't focus on the thread title.
>
> Isaac
Christopher C. Stacy
Paul> And discussing things is fine. It stops being a discussion of
Paul> academic interest when people attempt to provide legal guidance
Paul> to posters who wander in here looking for help.
That appears to be one lawyer's opinion.
Here's mine.
Absent extraordinary contexts, ordinary people in the USA are free
not only to discuss arbitrary things among themselves, but to give
advice to anyone on any subject whenever they feel like.
It would be inappropriate for random people to pose as laywers,
and there are ways of determining whether someone is holding forth
in that manner. These newsgroups are not professional forums,
nor are they establishments that purport to provide legal advice.
Internet newsgroups are well-understood to merely be people talking
to each other at an open-invitation party, and nothing more.
It's not going to be held reasonable that people are acting
inappropriately by discussing legal issues, or even giving advice,
in such a forum. No reasonable person can have any expectation that
they are talking to anybody who knows anything; they are fairly aware
that they don't even know whether they are talking to a lawyer, a law
student, an educated person, an AI program, a lunatic, a child, or my cat.
Even small children nowadays understand that.
The people giving advice here don't claim to be lawyers, or even
explicate any claim to specific knowledge of the law beyond citations
they found on web sites, and they often make a point of mentioning it.
Also, the questioners know they're not talking to lawyers, and often
even say that they don't know if they really need a lawyer, or they
mention that they cannot afford one. They're just asking their virtual
next-door neighbors, who may or may not have heard the term UPL,
for an opinion, -- and a reasonable person knows what that is worth!
This is very different from someone who is somehow taking clients,
or lawyers or other professionals (such as paralegals or notaries
or others engaged as agents in practices that include legal concerns)
acting beyond their bounds (for example, giving specific legal opinions).
It is also very different from, for example, that web site in Ohio,
where Palmer was obviously holding forth (offering a service, citing
credentials, etc.). In that case, although there seemed to be some
elements of UPL, he got away with it anyway because he was not found
to be tailoring specific responses.
In the case of newsgroups, there is not even a service being offered.
The newsgroups are just people talking, nothing more.
And people say stupid things all the time, and luckily for them,
they don't have to worry about it, because they're not professionals.
We have some lawyers on this newsgroup who spend a relatively
large amount of their time here trying to intimidate the lay
people into shutting up, claiming that they are practicing law.
Even though this seems to happen when someone tries to argue
with their facts or argumentation tactics, let us suppose that
these professionals are neither belligerent or ignorant, and are
wishing to act for the general good by not having questioners
steered wrong. Bear in mind that lawyers are the professionals
whom we hire to perform (sometimes outragous) "legal" intimidation.
Even still, it is surprising that they make comments here that cause
them appear to be thugs or jerks who don't want anyone "practicing law",
and demanding censorship. In any event, it should be obvious that
that's not a very successful strategy: nobody is positively impressed
by such actions, it's frankly ridiculous, and in the end it just
makes more useless distracting noise.
Providing good discussion information to everybody is far more productive.
Of course, there is no bright-line definition of what constitutes UPL.
So, like everything, if you actually give someone your personal advice
in this newsgroup, you really are taking your chances with some kook
reporting you to your state's bar association. But I think the bar
has better things to do than trying to make cases about how ordinary
citizens may not exchange personal opinions with one another.
Of course, that's all just my opinion, and I'm certainly no lawyer!
I have raised this point in the past here, and in those posts asked
the professionals to respond if they were interested. The alleged
lawyers in question did not respond. If someone wanted to teach us all
how what I've said here is wrong, I for one would still be interested
to be entertained and perhaps educated by such a discussion.
Jeffrey Siegal
> We have some lawyers on this newsgroup who spend a relatively
> large amount of their time here trying to intimidate the lay
> people into shutting up, claiming that they are practicing law.
Only one, really. The other lawyers here seem more interested in making
substantive contributions to a discussion (or just staying out) rather
than taking every opportunity to wave their guild membership cards around.
Paul Tauger
"Christopher C. Stacy" <cst...@dtpq.com> wrote in message
news:uu1n07i6...@dtpq.com...
> >>>>> On Sun, 14 Jul 2002 20:22:28 -0700, Paul Tauger ("Paul") writes:
> Paul> And discussing things is fine. It stops being a discussion of
> Paul> academic interest when people attempt to provide legal guidance
> Paul> to posters who wander in here looking for help.
>
> That appears to be one lawyer's opinion.
>
> Here's mine.
>
> Absent extraordinary contexts, ordinary people in the USA are free
> not only to discuss arbitrary things among themselves, but to give
> advice to anyone on any subject whenever they feel like.
1. Read my post carefully. I specifically stated that I wasn't getting
into UPL issues.
2. Regardless of your constitutional right of self-expression, it is stupid
and dangerous to give legal advice to others if you don't know what you are
talking about. Period. Someone came into this ng and asked a question about
a specific situation. A _non lawyer_ gave him an answer that contained
wrong information that could, potentially, result in liability for the OP.
Do you think that's a good, constructive exercise of freedom of speech?
Christopher C. Stacy
Paul> 2. Regardless of your constitutional right of self-expression, it is stupid
Paul> and dangerous to give legal advice to others if you don't know what you are
Paul> talking about. Period. Someone came into this ng and asked a question about
Paul> a specific situation. A _non lawyer_ gave him an answer that contained
Paul> wrong information that could, potentially, result in liability for the OP.
What would be the basis of the liability?
Paul> Do you think that's a good, constructive exercise of freedom of speech?
Yes, of course the freedom for people to say stupid things is an
excellent exercise of the right of the freedom of speech, as is
the freedom to ignore people who are saying stupid things.
Whether I think it's ethical for someone who is intelligent and trying
to be helpfup, and knows anything at all about the legal system to give
out random advice to a stranger, even with disclaimers, without mentioning
to them that it's almost always wise to consult lawyers about that sort
of thing, is another matter.
L: "So, WHO told you to do THAT?"
A: "Some guy said it on the Internet."
L: "A lawyer?"
A: "No, he said he wasn't a lawyer or anything, but he looked up
something in the library for me and thought it was the answer.
But I also saw the same advice on TV on Alley McBeal!"
L: "Well, how did you know this person?"
A: "I didn't know him at all."
L: "Can we go take a look at look at his web site?"
A: "It wasn't a web site or anything, just a free-for-all discussion
group with people asking questions and some people saying what
they thought it meant. Some of them were lawyers, but they were
mean and just didn't want to answer my question."
L: "So, what made you think you should take his advice?"
A: "He sounded like he was smarter than me?"
Christopher C. Stacy
Paul> 2. Regardless of your constitutional right of self-expression, it is stupid
Paul> and dangerous to give legal advice to others if you don't know what you are
Paul> talking about. Period. Someone came into this ng and asked a question about
Paul> a specific situation. A _non lawyer_ gave him an answer that contained
Paul> wrong information that could, potentially, result in liability for the OP.
Paul> Do you think that's a good, constructive exercise of freedom of speech?
I misread your post above and responded on a slight tangent, perhaps
accidently setting up a strawman (that the advice-giver was incurring
liability with respect to the questioner); I apologize for that.
However, my post did include a response to your real point.
(It's good free speech, but it may not be ethical or helpful.)
Paul Tauger
> >>>>> On Mon, 15 Jul 2002 16:11:26 -0500, Paul Tauger ("Paul") writes:
>
> Paul> 2. Regardless of your constitutional right of self-expression, it
is stupid
> Paul> and dangerous to give legal advice to others if you don't know what
you are
> Paul> talking about. Period. Someone came into this ng and asked a
question about
> Paul> a specific situation. A _non lawyer_ gave him an answer that
contained
> Paul> wrong information that could, potentially, result in liability for
the OP.
>
> What would be the basis of the liability?
Go back and read the thread. I've explained it several times.
>
> Paul> Do you think that's a good, constructive exercise of freedom of
speech?
>
> Yes, of course the freedom for people to say stupid things is an
> excellent exercise of the right of the freedom of speech, as is
> the freedom to ignore people who are saying stupid things.
Fine. In that case, you should have no objection when I step and warn
another poster that what has been said is stupid and dangerous.
>
> Whether I think it's ethical for someone who is intelligent and trying
> to be helpfup, and knows anything at all about the legal system to give
> out random advice to a stranger, even with disclaimers, without mentioning
> to them that it's almost always wise to consult lawyers about that sort
> of thing, is another matter.
Disclaimers mean nothing. Warnings me nothing. There is only one correct
response to someone who says, "Is it legal if I . . .?" or something
similar, and that is: "I don't know."
I've mentioned before that I hang out in alt.support.headaches.migraines
because I get migraines from time to time. Lots of people post questions
along the lines of, "I'm experiencing such and such a symptom. Is that a
migraine?" _No_one_ in that group will answer that question, except to say,
"You must consult your doctor!" I don't know what it is about law that
makes some people think that common sense is an acceptable substitute for
law school and years of experience in practice. Law is no different than
medicine -- only the experts should give advice.
There are a couple of people here (and only a couple) who like to play
usenet-lawyer-wannabee -- you know them. They're the ones who are always
the first to provide answers (frequently wrong) to poster's specific
inquiries, who challenge the real lawyers on this ng, and who resort to
insults when they're shown to be wrong.
As I said, I think it's great to discuss the law . . . in the abstract or in
the general case. No lawyer in the ng (or any other) will provide legal
advice to anyone seeking it (and for a variety of reasons). Lay people who
think they are competent to advise someone else about their legal liability
and potential risks are, to put it charitably, deluded. by their own sense
of self-importance.
>
>
> L: "So, WHO told you to do THAT?"
> A: "Some guy said it on the Internet."
> L: "A lawyer?"
> A: "No, he said he wasn't a lawyer or anything, but he looked up
> something in the library for me and thought it was the answer.
> But I also saw the same advice on TV on Alley McBeal!"
> L: "Well, how did you know this person?"
> A: "I didn't know him at all."
> L: "Can we go take a look at look at his web site?"
> A: "It wasn't a web site or anything, just a free-for-all discussion
> group with people asking questions and some people saying what
> they thought it meant. Some of them were lawyers, but they were
> mean and just didn't want to answer my question."
> L: "So, what made you think you should take his advice?"
> A: "He sounded like he was smarter than me?"
You're raising a separate issue, though: should fools be protected from
themselves?
However, I'm not sure that that is an accurate analysis of what happens
here. I routinely seek advice on the internet. Within the last couple of
weeks, I asked about what kind of mobile phone I needed to work in Asia and
Europe, what were good restaurants to eat in in Las Vegas, and whether it
would be a good idea to buy the discontinued Sony TRV-900 camcorder. In
each instance, I was given a variety of answers by a variety of people, and
was able to form an opinion as to the answer. It is absolutely reasonable
that someone, seeing the name of this newsgroup, would come in here thinking
their post would be read by lawyers (true) and answers provided (NOT true .
. . at least not by the lawyers). I wouldn't expect a lay person to know
that a lawyer will NEVER (absent the most extraordinary circumstances)
provide legal advice in response to a brief post to the internet by a
stranger. It's not unreasonable for the OP to have asked the question.
What is most unreasonable, however, is to be provided answers by people who
_do_not_know_ the answers, yet who _sound_like_ they do.
So I don't agree with your basic premise: I don't think someone is
necessarily foolish to come into this ng and ask the question in the first
place.
Paul Tauger
> >>>>> On Mon, 15 Jul 2002 16:11:26 -0500, Paul Tauger ("Paul") writes:
>
> Paul> 2. Regardless of your constitutional right of self-expression, it
is stupid
> Paul> and dangerous to give legal advice to others if you don't know what
you are
> Paul> talking about. Period. Someone came into this ng and asked a
question about
> Paul> a specific situation. A _non lawyer_ gave him an answer that
contained
> Paul> wrong information that could, potentially, result in liability for
the OP.
>
> Paul> Do you think that's a good, constructive exercise of freedom of
speech?
>
> I misread your post above and responded on a slight tangent, perhaps
> accidently setting up a strawman (that the advice-giver was incurring
> liability with respect to the questioner); I apologize for that.
No problem. I thought you were asking about the potential bases for
liability of the OP. I misread your misreading.
> However, my post did include a response to your real point.
> (It's good free speech, but it may not be ethical or helpful.)
And I've addressed your response.
Barry Margolin
"Paul Tauger" <ptauger...@earthlink.net> wrote:
> No. I feel an incomplete and inaccurate analysis by a layperson is
> dangerous and serves no one.
I didn't do any analysis, but you responded as if I had. All I did was
point out that there are a number of factors that *may* limit the scope
of a trademark, such as geography and type of business. I never advised
him that this made him safe, all I did was point out that it's not as
simple as "the name is the same". This is essentially the same thing
you said, although you clarified it much further (e.g. that geography
doesn't apply in the case of a federally-registered mark).
IMHO, Usenet is an informal discussion forum. I feel free to say the
same things here that I might say in idle conversation at a party, at
work, etc. I give the caveat "IANAL" so that people know to give my
advice the same credence they would if they were discussing it with
their friends.
BTW, probably most of what I know I've learned by osmosis from you.
Barry Margolin
"Paul Tauger" <ptauger...@earthlink.net> wrote:
> 2. Regardless of your constitutional right of self-expression, it is stupid
> and dangerous to give legal advice to others if you don't know what you are
> talking about. Period. Someone came into this ng and asked a question about
> a specific situation. A _non lawyer_ gave him an answer that contained
> wrong information that could, potentially, result in liability for the OP.
Well, it appears that I owe an apology. In my last post I said that I
only pointed out that he "may" not be infringing, but I just reread my
original post and I said "I don't think there would be any infringement".
However, in my defense, I had hoped that my "IANAL" preface and the
wishy-washy wording ("I don't think there would be" rather than "there
is not") would get this point across.
Paul Tauger
> In article <agt4nu$ocego$1...@ID-101118.news.dfncis.de>,
> "Paul Tauger" <ptauger...@earthlink.net> wrote:
>
> > No. I feel an incomplete and inaccurate analysis by a layperson is
> > dangerous and serves no one.
>
> I didn't do any analysis, but you responded as if I had.
Because it sounded to the OP like you had. Yes, you said IANAL, but then
you proceded to supply answer. Is it any different if I say, "I am a not a
doctor, but I don't think those chest pains are anything serious -- have
another cigarette and don't worry about."?
> All I did was
> point out that there are a number of factors that *may* limit the scope
> of a trademark, such as geography and type of business. I never advised
> him that this made him safe, all I did was point out that it's not as
> simple as "the name is the same". This is essentially the same thing
I think a lot of people underestimate the power of their words on usenet.
First, you, like me, post under your real name. I think, to many, this is
indicia of credibility (it shouldn't be, but it is). Your words, like mine,
are archived, probably forever, at Google and similar services. People with
questions about infringement and websites are going to do Google searches,
and find your posts (and mine).
As I explained in another post in this thread, it's too facile to dismiss
anyone who would rely on what they read on Usenet as foolish. I think it is
inherently reasonable that someone, coming in to m.l.c., would expect that
if they asked a specific question, they'll get answers. The problem is, and
as you've acknowledged, the determination of whether specific conduct is
infringing or not is, generally, not a simple call -- almost without
exception, it is impossible for a poster to provide sufficient information
for anyone to make that determination.
> you said, although you clarified it much further (e.g. that geography
> doesn't apply in the case of a federally-registered mark).
Well, I guess I better let the other shoe drop. Federally-registered marks
_may_ be geographically limited. This will occur if a senior user has
established preemptive rights through secondary meaning prior to the
registration issuing. It can even occur if a good-faith _junior_ user has
established preemptive rights in an area that hasn't yet been reached by the
registered mark and the registered mark owner is unlikely to expand there.
The point is, for trademark, it is virtually impossible to predict whether a
given use will constitute infringement without knowing an awful lot about
the use (which, necessarily entails knowing the mark itself), and then
performing a full trademark search (registered and common law uses).
>
> IMHO, Usenet is an informal discussion forum. I feel free to say the
> same things here that I might say in idle conversation at a party, at
> work, etc.
Well, IMHO Usenet, informal though it may be, is not the same as idle
conversation at parties or at work. There are a couple of key differences:
here, everyone is a stranger, and our words are read an a large and silent
audience. A better analogy might be this: it's like setting up a table at a
mall underg sign that says "Law and Computing." Gathered 'round the table
are all sorts of people -- people who work with computers for a living,
people with an interest in law, lawyers, people who delight in fooling other
people, etc. Someone comes up to the table and says, "Can anyone tell me if
doing xyz will infringe?" Three strangers raise their hands and say,
"Sure!"
>I give the caveat "IANAL" so that people know to give my
> advice the same credence they would if they were discussing it with
> their friends.
Except that it's "IANAL, but . . ." and the "but" suggests that the poster
has enough knowledge to provide an answer to the question. Most laypeople
think the law is a pretty black and white thing, i.e. that, if they ask what
seems to them to be a simple question, they can receive a simple yes-or-no
answer. _You_ know that's not the case, but they don't.
There are lots of discussions, here, about law in the general case -- I see
them all the time and they're fine, and they're interesting, and they're the
kind of thing that makes Usenet worth reading.
>
> BTW, probably most of what I know I've learned by osmosis from you.
Well, thank you. I don't know what to say, except I'm flattered.
Roger Schlafly
> Fine. In that case, you should have no objection when I step and warn
> another poster that what has been said is stupid and dangerous.
Go ahead and express your opinion.
> I've mentioned before that I hang out in alt.support.headaches.migraines
> because I get migraines from time to time. Lots of people post questions
> along the lines of, "I'm experiencing such and such a symptom. Is that a
> migraine?" _No_one_ in that group will answer that question, except to
say,
> "You must consult your doctor!" I don't know what it is about law that
> makes some people think that common sense is an acceptable substitute for
> law school and years of experience in practice. Law is no different than
> medicine -- only the experts should give advice.
What you say is stupid and dangerous. Many people in medical or
legal predicaments get useful information and advice from friends,
neighbors, books, the web, etc. The local physician or lawyer might
be a more reliable source, and maybe what he says should be
weighted more heavily, but maybe not. I wouldn't trust my neighbor
to do brain surgery, but I've got some valuable advice that I was
able to independently verify. I would be foolish to completely
ignore a reliable source of advice.
IANAL.
(The UPL is not really an issue for internet discussions because
even lawyers are only licensed within a particular state, and they
do not consider these discussions to be part of what they are
licensed to do.)
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > Fine. In that case, you should have no objection when I step and warn
> > another poster that what has been said is stupid and dangerous.
>
> Go ahead and express your opinion.
>
> > I've mentioned before that I hang out in alt.support.headaches.migraines
> > because I get migraines from time to time. Lots of people post
questions
> > along the lines of, "I'm experiencing such and such a symptom. Is that
a
> > migraine?" _No_one_ in that group will answer that question, except to
> say,
> > "You must consult your doctor!" I don't know what it is about law that
> > makes some people think that common sense is an acceptable substitute
for
> > law school and years of experience in practice. Law is no different
than
> > medicine -- only the experts should give advice.
>
> What you say is stupid and dangerous. Many people in medical or
> legal predicaments get useful information and advice from friends,
> neighbors, books, the web, etc. The local physician or lawyer might
> be a more reliable source,
"Might" be a more reliable source? "Might"?
> and maybe what he says should be
> weighted more heavily, but maybe not. I wouldn't trust my neighbor
> to do brain surgery, but I've got some valuable advice that I was
> able to independently verify.
Okay, I'll avoid the flip answer, because to indulge would be rude.
Instead, I'll just say that I find it incredible that anyone, facing brain
surgery, would consult with friends and neighbors instead of consulting with
doctors.
>I would be foolish to completely
> ignore a reliable source of advice.
>
> IANAL.
Exactly. And you are not a reliable source of advice on the law. The fact
that you think you are should be proof enough to the others in this ng of
what I've been saying.
> (The UPL is not really an issue for internet discussions because
> even lawyers are only licensed within a particular state, and they
> do not consider these discussions to be part of what they are
> licensed to do.)
This has nothing to do with UPL. You're still stuck in other threads when
we've had similar disagreements.
>
>
Christopher C. Stacy
Paul> Fine. In that case, you should have no objection when I step and warn
Paul> another poster that what has been said is stupid and dangerous.
I think it's very helpful of you to share your knowledge and
opinions about the law, in historical or speculative hypotheticals.
Correcting posters about incorrect information, and warning people
that they are getting bad advice, is also very helpful.
It may also be helpful to remind questioners that they're generally
talking to people who don't know what they are talking about.
I also think it's helpful of you to advise questioners that they
should consult a lawyer. Some regular readers of this newsgroup
may get bored of hearing that mantra, but it's usually wise advice.
Telling them what kind of lawyer they want, and how to contact their
state's referral program, and clueing them in about the usual cheap
initial consultation would be nice, too, since they're usually afraid
about the expenses.
Paul> Disclaimers mean nothing. Warnings me nothing.
When someone says, "I am not a lawyer, but...", that certainly
means something. It means, "You must have known this, but just
in case you are having a lapse of common sense or something,
there is no particular reason why you should believe that I
have a fucking clue. You don't even know if I can spell non
compos mentis. If I give you some advice, that and a $2.75
will get you an espresso from an overpierced teenager."
And I think anybody understands that it means that.
People also understand things like, "I think you should assault
your next-door neighbor over what he said about the way you smell,
but you might want to check with a lawyer about that, first."
What they don't understand are things like, "I can't ever tell you
for sure what the court will say, and I won't give you my opinion
unless we enter into a formal relationship, which we haven't",
or, "I'm not a lawyer, but I have some knowledge of the law
and will advise you on specific matters in drafting your will".
Advice like, "You should sue the bastard for infringement, look
here what I read about that...", in an informal random public
setting (like a newsgroup) doesn't form the kind of relationship
or confusion that UPL statutes are intended to protect people from.
By contrast, establishing a controlled locus that purports to
give legal advice on specific matters on a regular basis - whether
it's a web site or a table at Au Bon Pain in Harvard Square --
that would pretty surely be construed as an illegal No-No.
Paul> There is only one correct response to someone who says,
Paul>"Is it legal if I . . .?" or something similar,
Paul> and that is: "I don't know."
I think that it is very helpful for you to inform people of
that most basic point (that is, that law is a system, not just
common sense, nor some totally objective logic or letters).
I am not so sure that it's particularly helpful to advise the
wannabees that they are doing stupid and dangerous things.
For one thing, they aren't interested in listening to you about
that, so it won't have any useful effect. Anyway, wouldn't that
be construed as you yourself giving them specific legal advice? :)
What I find objectionable is the assertion that ordinary people
can't talk to each other and exchange opinions or give advice
on any subject matter they choose to talk about.
There's nothing wrong with warning people who are hanging out
some kind of shingle, though. But I feel strongly that merely
talking on a newsgroup does not even come close to that line,
and am offended by attempts to censor public chatting.
Paul> I've mentioned before that I hang out in
Paul> alt.support.headaches.migraines because I get migraines from time
Paul> to time. Lots of people post questions along the lines of,
Paul> "I'm experiencing such and such a symptom. Is that a migraine?"
Paul> _No_one_ in that group will answer that question, except to say,
Paul> "You must consult your doctor!"
That's good advice, but it doesn't sound like a very useful discussion.
But they do ask questions like, "I have daily headaches and migraines
and they're worse during the first two weeks of my menstrual cycle.
It's worse right after I eat. Why could this be happening?"
And responses come back like: "Maybe it's TMJ, or maybe it has to
do with blood pressure spikes after eating"; "Maybe it's an allergy,
or triggered by caffeine in something you're eating"; "Doctors think
I'm crazy but I get that, and it's because my nerves are sensitive
when I'm loaded with estrogen. Vioxx does seem to fix my problem";
"I read something in a Fibro M. book..."; "Eating causes a shift
in blood directed away from the head into the gut...Eat smaller
meals more times a day."
The form of the questions and answers (and advice) looks very
similar to the traffic on the misc.legal groups. But on that
one thread I looked at, which was 10 messages long, there were
no professional responses at all.
Paul> I don't know what it is about law that makes some people think
Paul> that common sense is an acceptable substitute for law school
Paul> and years of experience in practice. Law is no different than
Paul> medicine -- only the experts should give advice.
People think that law is about social convention, and they've been
navigating that through most of their life without professional
assistance, so they assume that it will be a logical extension.
And maybe they can figure it out.
So maybe a real expert is not needed. Indeed, sometimes, one isn't.
People even go to civil and criminal courts without lawyers all the
time and are successful. So it's easy to understand why people don't
necessarily know quite how to evaluate their situation and recognize
when they're about to get in over their heads.
On the other side of the coin, the people who give advice or
information -- to them it's approximately the same thing -- are
generally trying to be helpful, for all the usual various motivations.
They may or may not be educated enough to know whether their opinions
are probably good ones or not. But it's just a cocktail party, anyway.
Paul> There are a couple of people here (and only a couple) who like to play
Paul> usenet-lawyer-wannabee -- you know them. They're the ones who are always
Paul> the first to provide answers (frequently wrong) to poster's specific
Paul> inquiries, who challenge the real lawyers on this ng, and who resort to
Paul> insults when they're shown to be wrong.
It's the same in many newsgroups, and at most parties I've been to.
(Oddly, especially where there are lots of highly educated people.)
Paul> As I said, I think it's great to discuss the law . . . in the abstract or in
Paul> the general case. No lawyer in the ng (or any other) will provide legal
Paul> advice to anyone seeking it (and for a variety of reasons). Lay people who
Paul> think they are competent to advise someone else about their legal liability
Paul> and potential risks are, to put it charitably, deluded. by their own sense
Paul> of self-importance.
I've met some lawyers who were shockingly clueless, and plenty of
other professionals who were clueless and deluded, too.
>> L: "So, what made you think you should take his advice?"
>> A: "He sounded like he was smarter than me?"
Paul> You're raising a separate issue, though: should fools be protected from
Paul> themselves?
Paul> However, I'm not sure that that is an accurate analysis of what happens
[...]
Paul> It is absolutely reasonable that someone, seeing the name of
Paul> this newsgroup, would come in here thinking their post would be
Paul> read by lawyers (true) and answers provided (NOT true . . . at
Paul> least not by the lawyers). I wouldn't expect a lay person to
Paul> know that a lawyer will NEVER (absent the most extraordinary
Paul> circumstances) provide legal advice in response to a brief post
Paul> to the internet by a stranger. It's not unreasonable for the
Paul> OP to have asked the question.
When I first showed up, I expected that some lawyers would be reading
and commenting on things. But I also assumed that most of the people
who were commenting would be lay people, or at best, law students, and
that they're comments would not be reliable advice. I figured most of
the people here would be random curious individuals like myself, and
lots of people seeking advice or having academic questions.
But people coming here with questions know they're not getting a
lawyer, just as they know they might get unreliable advice about
their migraines or what cell phones to buy. The name of the
newsgroup is not "misc.legal.advice.from-lawyers.moderated".
When folks do encounter a lawyer here, that's maybe what they hoped for,
but not what the expected. And depending on the form of the response
from a lawyer, anyone might think they were getting legal advice from
them. So lawyers here do need to disabuse them from thinking they're
giving legal advice on their specific matter.
So people come here, ask their questions, get general information and
advice-to-seek from lawyers, and general information and maybe even
actual advice from randoms, and they are aware that they got mostly
unreliable information. Most of the time it's obvious that they knew
it wasn't going to be reliable -- they often make statements indicating
that they know they are not consulting a lawyer.
Paul> What is most unreasonable, however, is to be provided answers by
Paul> people who _do_not_know_ the answers, yet who _sound_like_ they do.
This is where we seem to part ways. I think it's reasonable for people
to talk to other random people and get advice from them about anything.
I have known, since I was about eight years old, that you can't believe
everything you read, and a little later on, that some people are full of
crap but will desperately try to convince you that they're experts.
Certainly all adults have encountered such people in all walks of life.
On the Internet, people nowadays understand that those rules apply.
Fuerther, on newsgroups/chat rooms/discussion boards/etc, people
understand that they are just talking to their next door neighbor('s dog).
Paul> So I don't agree with your basic premise: I don't think someone
Paul> is necessarily foolish to come into this ng and ask the
Paul> question in the first place.
I only think they're foolish if they consider legal advice from unknown
random non-lawyers (including themselves) to be very reliable.
I think most people sense that the law is trickier than medicine,
and are more likely to take their neighbor's comprehensible home
remedy advice than someone's authentic-sounding legal advice.
Maybe our disagreement is at least in part about the nature of
a newsgroup and what people's expectations about them are.
Christopher C. Stacy
because I think it goes to the heart of our disucssion.
>>>>> On Mon, 15 Jul 2002 20:42:04 -0700, Paul Tauger ("Paul") writes:
>> "Barry Margolin" <bar...@alum.mit.edu> wrote:
Barry>> IMHO, Usenet is an informal discussion forum.
Barry>> I feel free tosay the same things here that I might say in
Barry>> idle conversation at a party, at work, etc.
Paul> Well, IMHO Usenet, informal though it may be, is not the same
Paul> as idle conversation at parties or at work. There are a couple
Paul> of key differences: here, everyone is a stranger, and our words
Paul> are read an a large and silent audience. A better analogy
Paul> might be this: it's like setting up a table at a mall underg
Paul> sign that says "Law and Computing." Gathered 'round the table
Paul> are all sorts of people -- people who work with computers for a
Paul> living, people with an interest in law, lawyers, people who
Paul> delight in fooling other people, etc. Someone comes up to the
Paul> table and says, "Can anyone tell me if doing xyz will infringe?"
Paul> Three strangers raise their hands and say, "Sure!"
My contention is that in that scenario, the person asking the question
can tell that those "experts" at the table are possibly stoned, and
some of them may be playing hookey from high-school. One way the
questioner knows this, is that he was sitting at the nearby table
answering questions about cell phones on the previous Tuesday afternoon,
and his brother-in-law the plumber is currently at the table to the left,
dispensing advice about migranes to the woman who is having her period.
Christopher C. Stacy
Bruce Hayden
To some extent, the difference is because in medicine, there are
typically black and white answers, whereas in law, there often are not.
But both the physicians and their patients mistake that there
are black and white answers with believing that physicians have
those answers. Some times they do, but some times they do not.
I have friends and relatives with doctorates in pharmacy and
nutrition, and they face continuous frustration in the medical
field where physicians are considered to have the definitive
answers, when in actuality, they often know very little about
what they are opining about (esp. compared to those with doctorates
in the relevant subjects).
Over the last couple of months, my girlfriend has suffered
through a number of physicians. Each one stated authoritatively
either what the problem was, or probably was, and what the best
course of treatment was at that point. Turns out that the problem
is a dozen or so stomach ulcers caused by a combination of bacteria,
high acid discharge, and damage to her stomach lining when she
was about 3 or 4 years old. With the correct diagnosis, she is
rapidly recovering. But most of what the previous physicians did
only made the problem worse - in at least one case, much worse
where Cipro (yes, the same drug prescribed for inhalation Anthrax)
was prescribed to rule out parasites and the like. That resulted in
an emergency room visit (and another physician's mistaken diagnosis).
In this case, as in many, there was a definitive, correct, answer.
It is just that most of the physicians involved did not know it.
The law of course is much grayer. Most often, there is no definitive
answer, just probabilities.
So, I would suggest that the reluctance to diagnose migraines by the
laity, as opposed to Roger's (and others') willingness to declaim
on legal subjects is more a function of the way that physicians hold
themselves out and treat the public than any realistic difference
between the professions. I would further suggest that many of the
licensed physicians out there, in other specialties, are more likely
to misdiagnose migraines than many of those who have suffered with
them and have done their research.
Roger Schlafly wrote:
> "Paul Tauger" <ptauger...@earthlink.net> wrote
>>I've mentioned before that I hang out in alt.support.headaches.migraines
>>because I get migraines from time to time. Lots of people post questions
>>along the lines of, "I'm experiencing such and such a symptom. Is that a
>>migraine?" _No_one_ in that group will answer that question, except to
>>say,
>>"You must consult your doctor!" I don't know what it is about law that
>>makes some people think that common sense is an acceptable substitute for
>>law school and years of experience in practice. Law is no different than
>>medicine -- only the experts should give advice.
> What you say is stupid and dangerous. Many people in medical or
> legal predicaments get useful information and advice from friends,
> neighbors, books, the web, etc. The local physician or lawyer might
> be a more reliable source, and maybe what he says should be
> weighted more heavily, but maybe not. I wouldn't trust my neighbor
> to do brain surgery, but I've got some valuable advice that I was
> able to independently verify. I would be foolish to completely
> ignore a reliable source of advice.
--
--------------------------------------------------------------------
The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 2002 Bruce E. Hayden,all rights reserved
My work may be copied in whole or part, with proper attribution,
as long as the copying is not for commercial gain.
--------------------------------------------------------------------
Bruce E. Hayden bha...@ieee.org
Phoenix, Arizona bha...@highdown.com
bha...@copatlaw.com
Bruce Hayden
> Because it sounded to the OP like you had. Yes, you said IANAL, but then
> you proceded to supply answer. Is it any different if I say, "I am a not a
> doctor, but I don't think those chest pains are anything serious -- have
> another cigarette and don't worry about."?
Actually, I would suggest that the difference here is simply a
function of the perception of the two professions. If you say
the later, then pretty much no one is going to listen to you.
But it is more likely that someone is believed even after saying IANAL.
We all "know" that only physicians can diagnose things
(even when they can't). But that is really only because they
have us all believing that they are some sorts of minor (or major)
deities.
Paul Tauger
> >>>>> On Mon, 15 Jul 2002 19:48:32 -0700, Paul Tauger ("Paul") writes:
> When someone says, "I am not a lawyer, but...", that certainly
> means something. It means, "You must have known this, but just
> in case you are having a lapse of common sense or something,
> there is no particular reason why you should believe that I
> have a fucking clue. You don't even know if I can spell non
> compos mentis. If I give you some advice, that and a $2.75
> will get you an espresso from an overpierced teenager."
> And I think anybody understands that it means that.
It should mean that, but it doesn't. The problem is that law, particularly
intellectual property law, appears arcane and impenetrable to the average
person. When they encounter someone who appears knowledgable about law (and
a number of people here have considerably more than a lay person's
understanding), the natural tendency is to defer to that person. As I
mentioned in another post, everyone, including myself, seeks advice on the
internet. There are some fields, though, were advice is best left to the
experts. And, at the risk of igniting another firestorm, I'd humbly suggest
that those fields are best distinguished by their requirement of a license
before someone can practice.
>
> People also understand things like, "I think you should assault
> your next-door neighbor over what he said about the way you smell,
> but you might want to check with a lawyer about that, first."
>
> What they don't understand are things like, "I can't ever tell you
> for sure what the court will say, and I won't give you my opinion
> unless we enter into a formal relationship, which we haven't",
I don't know about that. I've rarely had people complain when I've
explained why I can't provide advice over the internet. Of course, for
people with legitimate problems in areas of law that I practice, I've
invited them to contact me privately and provide a free consultation (my
firm's malpractice insurance covers that). Though I've never wound
representing anyone this way, I've been able to resolve a number of issues
fairly expeditiously in a single relatively short phone call.
And, of course, most lawyers will do the same thing, which is why the
standard advice that I _do_ offer on internet is: call your local bar
association and ask for a referral; the initial consultation will, almost
certainly, be free.
> or, "I'm not a lawyer, but I have some knowledge of the law
> and will advise you on specific matters in drafting your will".
>
> Advice like, "You should sue the bastard for infringement, look
> here what I read about that...", in an informal random public
> setting (like a newsgroup) doesn't form the kind of relationship
> or confusion that UPL statutes are intended to protect people from.
> By contrast, establishing a controlled locus that purports to
> give legal advice on specific matters on a regular basis - whether
> it's a web site or a table at Au Bon Pain in Harvard Square --
> that would pretty surely be construed as an illegal No-No.
>
> Paul> There is only one correct response to someone who says,
> Paul>"Is it legal if I . . .?" or something similar,
> Paul> and that is: "I don't know."
>
> I think that it is very helpful for you to inform people of
> that most basic point (that is, that law is a system, not just
> common sense, nor some totally objective logic or letters).
>
> I am not so sure that it's particularly helpful to advise the
> wannabees that they are doing stupid and dangerous things.
Let me be clear: I only jump in if a wannabe gives erroneous information.
If they're right, or the information is general and not specific, I have no
reason to say anything. When I do jump in, it is only to correct the error
and caution against going into areas best left to professional counsel. The
only time "stupid and dangerous" comes into play is when a wannabe either
tries to take me on about the law (and I don't mean discussing differing
points of view, but playing "I'm right and you're wrong"), or tries to
defend their "right" to play lawyer. A couple of people did that in this
thread, most did not.
> For one thing, they aren't interested in listening to you about
> that, so it won't have any useful effect.
True, but it may warn away the OP who started it all.
> Anyway, wouldn't that
> be construed as you yourself giving them specific legal advice? :)
Sure, but you know what? I feel absolutely comfortable in giving advice
along the lines of: "Don't listen to strangers on the internet, legal
problems can be complex and are always very fact specific, consult a
competent attorney near you." Yes, that's legal advice, but I'm not about
to get sued for providing it.
>
> What I find objectionable is the assertion that ordinary people
> can't talk to each other and exchange opinions or give advice
> on any subject matter they choose to talk about.
I've never made any such assertion. In fact, quite the contrary, I've
consistently said that I think it's a great thing that people want to get
together in this ng and discuss the law. There have been fascinating
discussions by the _non-lawyers_ in this group, and I've found the opinions
expressed not only informative, but they've given me food for thought.
The only line that I draw is when anyone purports to advise a stranger on
what course of action to take in response to a specific legal question.
>
> There's nothing wrong with warning people who are hanging out
> some kind of shingle, though. But I feel strongly that merely
> talking on a newsgroup does not even come close to that line,
> and am offended by attempts to censor public chatting.
I agree that merely talking doesn't come close to that line. Here's how I
see the difference:
Poster A: "Hi, guys. Does anyone know whether usenet posts are in the
public domain?"
Anyone is free to respond, e.g. "IANAL, but my understanding is that they
are protected by copyright, etc. . . ."
Poster B: "Hi. I received a cease-and-desist letter from someone at the XYZ
Company about my website. All that I have on there are press releases that
come from the XYZ Company. Aren't those automatically in the public
domain?"
The only response that should be given to Poster B is: "This isn't something
you want to fool around with yourself. You need to talk to a lawyer."
If someone responds (and I've seen this response _here_ in this ng): "Oh, I
wouldn't worry about a cease-and-desist letter. If XYZ Company sent out the
press release, it's because they want people to reprint it, so that's like
an implied license for anyone to reproduce it," then you better believe that
I'll jump in and say, "Whoa . . . that's not the law, we don't know the
facts, and no one but a lawyer should be advising this person."
That's not censorship.
>
> Paul> I've mentioned before that I hang out in
> Paul> alt.support.headaches.migraines because I get migraines from time
> Paul> to time. Lots of people post questions along the lines of,
> Paul> "I'm experiencing such and such a symptom. Is that a migraine?"
> Paul> _No_one_ in that group will answer that question, except to say,
> Paul> "You must consult your doctor!"
>
> That's good advice, but it doesn't sound like a very useful discussion.
Actually, the discussions usually go something like this: "Hmmm. I
sometimes experience what you've described, so I hope that's all it is.
Still, you should get yourself to a doctor and find out." And there are
lots of other useful discussions about what medication seems to work for
what person, how best to approach doctors, many of whom seem to keep
themselves willfully ignorant of migraines, etc.
>
> But they do ask questions like, "I have daily headaches and migraines
> and they're worse during the first two weeks of my menstrual cycle.
> It's worse right after I eat. Why could this be happening?"
>
> And responses come back like: "Maybe it's TMJ, or maybe it has to
> do with blood pressure spikes after eating"; "Maybe it's an allergy,
> or triggered by caffeine in something you're eating";
But they also _always_ say: "Ask your doctor." There's nothing wrong with
suggesting possible causes (a common thread is, "what are your triggers?"),
but _no one_ on that group will offer a diagnosis. Incidently, there are a
couple of MDs that monitor the ng, and THEY won't offer a diagnosis either.
They'll post along the lines of, "it may be [fill in your factor], but you
need to get checked by your own doc."
>"Doctors think
> I'm crazy but I get that, and it's because my nerves are sensitive
> when I'm loaded with estrogen. Vioxx does seem to fix my problem";
> "I read something in a Fibro M. book..."; "Eating causes a shift
> in blood directed away from the head into the gut...Eat smaller
> meals more times a day."
>
> The form of the questions and answers (and advice) looks very
> similar to the traffic on the misc.legal groups.
Nope, not really. I read a.s.c.m every day, and we routinely get newbies
who post, "I woke up this morning with a horrible headache and the right
side of my face was numb. Is this a migraine?" The answer is ALWAYS, "It
might be, but get to a doctor and get checked."
>But on that
> one thread I looked at, which was 10 messages long, there were
> no professional responses at all.
I don't know which thread to which you're referring. I've never seen anyone
offer medical advice in a.s.h.m.
>
> Paul> I don't know what it is about law that makes some people think
> Paul> that common sense is an acceptable substitute for law school
> Paul> and years of experience in practice. Law is no different than
> Paul> medicine -- only the experts should give advice.
>
> People think that law is about social convention, and they've been
> navigating that through most of their life without professional
> assistance, so they assume that it will be a logical extension.
> And maybe they can figure it out.
You're probably right, at least with respect to why people think they can
figure it out. The problem is, usually they can't. I'm in the middle of a
particularly ugly piece of litigation. When it's finished, and I can talk
about, I'll give you an example of an otherwise intelligent person who
thought he could figure out the law of trademark infringement and contract,
and placed himself in a whole world of hurt as result.
>
> So maybe a real expert is not needed. Indeed, sometimes, one isn't.
I can think of very few questions involving _application_ of intellectual
property law that _could_ be adquately answered by a lay person. There is a
reason why experienced IP lawyers are paid as much as they are.
> People even go to civil and criminal courts without lawyers all the
> time and are successful.
I have, from time to time, opposed pro se and pro per parties. They've
never won, never came close, and never failed to tick off the judge. There
are lawyers in my office that represent a rather large corporation with
respect to employment issues. They routinely defend and prosecute matters
against pro ses and pro pers. They've never lost won, never came close and,
more times than not, wind up getting awarded sanctions against the other
party.
Yes, there people can, and do, successfully represent themselves in court,
and there are some matters that can, and perhaps even should, be handled
without representation. However, I can't think of _any_ IP matter that is
appropriate for a lay person to handle themselves.
> So it's easy to understand why people don't
> necessarily know quite how to evaluate their situation and recognize
> when they're about to get in over their heads.
True.
>
> On the other side of the coin, the people who give advice or
> information -- to them it's approximately the same thing -- are
> generally trying to be helpful, for all the usual various motivations.
I know it's done with the best of intentions. However, the road to hell . .
. and all that.
> They may or may not be educated enough to know whether their opinions
> are probably good ones or not. But it's just a cocktail party, anyway.
Ah, but it's not. Sometimes it feels like a cocktail party, particularly
among the regulars. The newbie who comes here seeking specific advice,
though, doesn't think he's coming to a cocktail party.
>
> Paul> There are a couple of people here (and only a couple) who like to
play
> Paul> usenet-lawyer-wannabee -- you know them. They're the ones who are
always
> Paul> the first to provide answers (frequently wrong) to poster's
specific
> Paul> inquiries, who challenge the real lawyers on this ng, and who
resort to
> Paul> insults when they're shown to be wrong.
>
> It's the same in many newsgroups, and at most parties I've been to.
> (Oddly, especially where there are lots of highly educated people.)
Yep.
>
> Paul> As I said, I think it's great to discuss the law . . . in the
abstract or in
> Paul> the general case. No lawyer in the ng (or any other) will provide
legal
> Paul> advice to anyone seeking it (and for a variety of reasons). Lay
people who
> Paul> think they are competent to advise someone else about their legal
liability
> Paul> and potential risks are, to put it charitably, deluded. by their
own sense
> Paul> of self-importance.
>
> I've met some lawyers who were shockingly clueless, and plenty of
> other professionals who were clueless and deluded, too.
Right. I encounter clueless lawyers, too. The point is, there is recourse
if a clueless lawyer gives bad advice. There is none (usually, not always)
if a lay person gives an opinion in a ng.
>
> >> L: "So, what made you think you should take his advice?"
> >> A: "He sounded like he was smarter than me?"
>
> Paul> You're raising a separate issue, though: should fools be protected
from
> Paul> themselves?
>
> Paul> However, I'm not sure that that is an accurate analysis of what
happens
> [...]
> Paul> It is absolutely reasonable that someone, seeing the name of
> Paul> this newsgroup, would come in here thinking their post would be
> Paul> read by lawyers (true) and answers provided (NOT true . . . at
> Paul> least not by the lawyers). I wouldn't expect a lay person to
> Paul> know that a lawyer will NEVER (absent the most extraordinary
> Paul> circumstances) provide legal advice in response to a brief post
> Paul> to the internet by a stranger. It's not unreasonable for the
> Paul> OP to have asked the question.
>
> When I first showed up, I expected that some lawyers would be reading
> and commenting on things. But I also assumed that most of the people
> who were commenting would be lay people, or at best, law students, and
> that they're comments would not be reliable advice.
Giving legal advice is a quick way for a law student to insure that they'll
never become a lawyer.
> I figured most of
> the people here would be random curious individuals like myself, and
> lots of people seeking advice or having academic questions.
Did you come here with a specific legal problem for which you sought advice,
or because you were interested in the subject matter of the ng?
>
> But people coming here with questions know they're not getting a
> lawyer, just as they know they might get unreliable advice about
> their migraines or what cell phones to buy. The name of the
> newsgroup is not "misc.legal.advice.from-lawyers.moderated".
And if you get bad advice about which cell phone to buy, you're out about
$100 bucks. If you get bad advice about trademark infringement, you could
be ruined. Little bit of a difference, there.
I don't care whether the group is moderated or not. As a licensed attorney,
I have an ethical (though not legal) obligation to try and protect the
public from bad legal advice. I answer to the State Bar, my law firm (and
my malpractice carrier) and my brother lawyers, not to my ISP.
>
> When folks do encounter a lawyer here, that's maybe what they hoped for,
> but not what the expected.
I really don't think that's true. I think the people who come here with
specific problems _are_ expecting a lawyer or, at least, competent legal
advice.
> And depending on the form of the response
> from a lawyer, anyone might think they were getting legal advice from
> them. So lawyers here do need to disabuse them from thinking they're
> giving legal advice on their specific matter.
>
> So people come here, ask their questions, get general information and
> advice-to-seek from lawyers, and general information and maybe even
> actual advice from randoms, and they are aware that they got mostly
> unreliable information. Most of the time it's obvious that they knew
> it wasn't going to be reliable -- they often make statements indicating
> that they know they are not consulting a lawyer.
>
> Paul> What is most unreasonable, however, is to be provided answers by
> Paul> people who _do_not_know_ the answers, yet who _sound_like_ they do.
>
> This is where we seem to part ways. I think it's reasonable for people
> to talk to other random people and get advice from them about anything.
Right, this is where we part ways. I believe that no one has any business
offering legal advice in a ng.
>
> I have known, since I was about eight years old, that you can't believe
> everything you read, and a little later on, that some people are full of
> crap but will desperately try to convince you that they're experts.
> Certainly all adults have encountered such people in all walks of life.
> On the Internet, people nowadays understand that those rules apply.
> Fuerther, on newsgroups/chat rooms/discussion boards/etc, people
> understand that they are just talking to their next door neighbor('s dog).
>
> Paul> So I don't agree with your basic premise: I don't think someone
> Paul> is necessarily foolish to come into this ng and ask the
> Paul> question in the first place.
>
> I only think they're foolish if they consider legal advice from unknown
> random non-lawyers (including themselves) to be very reliable.
>
> I think most people sense that the law is trickier than medicine,
Most people don't. That's the problem. Almost all of my clients are
corporations. The people that _I_ work with certainly know that legal
issues require a lawyer, which is why they have in-house counsel, and employ
me and my firm. The average person, though, watches People's Court and
Judge Judy and thinks the law is black-and-white common-sense.
Christopher C. Stacy
Chris>> When someone says, "I am not a lawyer, but...", that certainly
Chris>> means something. It means, "You must have known this, but just
Chris>> in case you are having a lapse of common sense or something,
Chris>> there is no particular reason why you should believe that I
Paul> It should mean that, but it doesn't.
Paul> The problem is that law, particularly intellectual property law,
Paul> appears arcane and impenetrable to the average person. When they
Paul> encounter someone who appears knowledgable about law (and a number
I think most areas of expertise are like that, and I'm accustomed to
encountering bullshitters all over the place. I'm thinking about
people who fix my car, fix my body (totally different opinions on
diagnosis and courses of actions from doctors), dancing, and of course:
computers. Probably just about anything that involves knowledge and
interpretation. Medicine is the other obvious example - people are
always giving each other diagnosis and advice about both common and
serious issues.
With the Internet, it's easier for anyone to research these arcane areas,
and learn some beginning theory and fancy words. Lots of people intuit
their legal knowledge from watching all the lawyer and cop shows on TV.
That's been happenning since Perry Mason, but the TV shows are more
sophisticated now, and there are more kinds of them. Right at this hour,
I could turn on the tube and watch four different "Judge" shows.
There are also lots of legal advice call-in programs on the radio: around
here, there are at least two local and three nationally syndicated ones.
So, I'm not so sure that people are all that convinced that randoms
know what they're talking about, even if they appear to have knowledge.
But on the Internet, people are generally aware that the quality of
information is always dubious. (Maybe at the very first they weren't,
but by now they have got that idea.) So I think they're going to
discount it, especially chat rooms or newsgroups, perhaps even more than
random advice they get at the in-person cocktail party.
I believe that most people know, "Don't believe everything you read,
and less on the Internet", and (of others): "a little knowledge is a
dangerous thing". Usually they have electrocute themselves or
something before applying the latter to themselves, though.
Paul> If someone responds (and I've seen this response _here_ in this
Paul> ng): "Oh, I wouldn't worry about a cease-and-desist letter.
Paul> If XYZ Company sent out the press release, it's because they want
Paul> people to reprint it, so that's like an implied license for anyone
Paul> to reproduce it," then you better believe that I'll jump in and
Paul> say, "Whoa . . . that's not the law, we don't know the facts,
Paul> and no one but a lawyer should be advising this person."
Paul> That's not censorship.
We totally agree that this is helpful.
(I doubt that anyone would disagree!)
Paul> I don't know which thread to which you're referring.
Paul> I've never seen anyone offer medical advice in a.s.h.m.
All those excerpts I gave were just from the first thread that came
up for a.s.h.m ("Subject: Pain after eating?" started on 2002-07-10).
It had people providing diagnosis, perscribing medical advice,
and nobody suggesting that they should see a doctor (although at least
two people were denigrating their own doctors). Maybe I just stumbled
upon an unusual thread there my first time out, but what I saw was
typical conversation at cocktail parties, and even at support group
gatherings that I've attended.
Paul> You're probably right, at least with respect to why people think
Paul> they can figure it out. The problem is, usually they can't.
Paul> I'm in the middle of a particularly ugly piece of litigation.
Paul> When it's finished, and I can talk about, I'll give you an example
Paul> of an otherwise intelligent person who thought he could figure out
Paul> the law of trademark infringement and contract, and placed himself
Paul> in a whole world of hurt as result.
Yup. (And, thank you in advance for sharing!)
Paul> I can think of very few questions involving _application_ of
Paul> intellectual property law that _could_ be adquately answered by a
Paul> lay person. There is a reason why experienced IP lawyers are paid
Paul> as much as they are.
Well, there are lots of trivial questions that can be accurately
answered to the effect of, "No, you can't really do that".
But on the other side, even the trivial answers about, say, parodies,
have the potential to incur liability. Ethical people should think
about that, and about the apparent sophistication and intentions of
the questioner when they give out advice, even at cocktail parties.
>> People even go to civil and criminal courts without lawyers all the
>> time and are successful.
Paul> I have, from time to time, opposed pro se and pro per parties. They've
Paul> never won, never came close, and never failed to tick off the judge.
I was thinking specifically of small claims court and the district
courts where smaller (eg. traffic related) bench trials are held.
I don't know any statistics or anything, but I am under the impression
that people who represent themselves in more serious matters, most
usually lose. But that was just an example of where people sometimes
do not use a lawyer, and navigate the system on their own.
I offered this as a possible reason why people would think
they don't need a lawyer in general.
Well, this was my last post on the subject for now (although maybe
you or some other people will want to say some more); I think I'm
closer to understanding your position. We agree on many things,
and it was interesting. We have some contrasting outlooks on the
nature of Internet newsgroups.
cheers,
Chris
Paul Tauger
> >>>>> On Tue, 16 Jul 2002 11:06:27 -0500, Paul Tauger ("Paul") writes:
> Paul> If someone responds (and I've seen this response _here_ in this
> Paul> ng): "Oh, I wouldn't worry about a cease-and-desist letter.
> Paul> If XYZ Company sent out the press release, it's because they want
> Paul> people to reprint it, so that's like an implied license for anyone
> Paul> to reproduce it," then you better believe that I'll jump in and
> Paul> say, "Whoa . . . that's not the law, we don't know the facts,
> Paul> and no one but a lawyer should be advising this person."
> Paul> That's not censorship.
>
> We totally agree that this is helpful.
> (I doubt that anyone would disagree!)
Oh, take a look at Google -- you'll find at least two who did.
<snip>
> Paul> I can think of very few questions involving _application_ of
> Paul> intellectual property law that _could_ be adquately answered by a
> Paul> lay person. There is a reason why experienced IP lawyers are paid
> Paul> as much as they are.
>
> Well, there are lots of trivial questions that can be accurately
> answered to the effect of, "No, you can't really do that".
The difficult thing, from an IP perspective, is there really isn't such a
thing as a trivial question. There are exceptions to everything in IP law,
and then exceptions to the exceptions.
> But on the other side, even the trivial answers about, say, parodies,
Parody is a good example. For the moment, I'll just address the parody
exception to copyright infringement. Parody is, technically, a fair use
defense. By definition, fair use is an equitable defense, meaning it is
fact specific and subject to the discretion of the judge. I can give you
examples of what seem to be identical _types_ of parodies, one of which was
held to be fair use, the other not (for example, "I Love Sodom," a Saturday
Night Live parody of "I Love New York" was held to be fair use parody,
whereas "When Sunny Sniffs Glue," a parody by DJ Rick Dees of "When Sunny
Gets Blue," was held to not come within fair use.) What justified the
disparate treatment? Well, nothing you'll ever find in a statute or a
reported case. There is a distinguishing factor nonetheless: there is a
judicial gloss that's been applied to fair use doctrine that holds,
essentially, that something which is "dirty" -- not "obscene," mind you,
which has a legal standard -- but simply "dirty," will not be found to
constitute a fair use. This "doctrine" isn't written down anywhere (except,
perhaps, in Nimmer on Copyright, and I'm not even sure it's there), but it
is as much a part of U.S. jurisprudence as the Bill of Rights.
I have, frequently, seen people in this ng raise "fair use," including
parody, as a supposed defense to all kinds of activities that could (and
would) result in infringement liability. Fair use is an arcane doctrine,
yes, but a lot of people here are familiar with it. Some are also familiar
with parody fair use. How many, though, understand the "conjure up" test
(see Walt Disney v. Air Pirates) and how and when it is applied,
particularly in the context of "dirty is bad" judicial gloss that I've
described above.
This stuff just isn't that simple.
> have the potential to incur liability. Ethical people should think
> about that, and about the apparent sophistication and intentions of
> the questioner when they give out advice, even at cocktail parties.
>
> >> People even go to civil and criminal courts without lawyers all the
> >> time and are successful.
>
> Paul> I have, from time to time, opposed pro se and pro per parties.
They've
> Paul> never won, never came close, and never failed to tick off the
judge.
>
> I was thinking specifically of small claims court and the district
> courts where smaller (eg. traffic related) bench trials are held.
In my jurisidiction, California, you are not allowed to be represented by
counsel. I suppose representing yourself in opposition to a speeding ticket
is fine (though I've seen some rather stupid approaches taken by would-be
Perry Masons). Representing yourself in a trademark infringement action is
a whole other kettle of fish.
> I don't know any statistics or anything, but I am under the impression
> that people who represent themselves in more serious matters, most
> usually lose.
If you go by my office's experience, that figure would be 100%.
> But that was just an example of where people sometimes
> do not use a lawyer, and navigate the system on their own.
Small claims court and traffic court are designed to be navigated by lay
people. Federal court and state courts above the infraction level are not.
Barry Margolin
"Paul Tauger" <ptauger...@earthlink.net> wrote:
> "Barry Margolin" <bar...@alum.mit.edu> wrote in message
> news:barmar-064806....@netnews.attbi.com...
> > In article <agt4nu$ocego$1...@ID-101118.news.dfncis.de>,
> > "Paul Tauger" <ptauger...@earthlink.net> wrote:
> >
> > > No. I feel an incomplete and inaccurate analysis by a layperson is
> > > dangerous and serves no one.
> >
> > I didn't do any analysis, but you responded as if I had.
>
> Because it sounded to the OP like you had. Yes, you said IANAL, but then
> you proceded to supply answer. Is it any different if I say, "I am a not a
> doctor, but I don't think those chest pains are anything serious -- have
> another cigarette and don't worry about."?
Yet people do it all the time. If someone mentions they have an ache, I
might offer them an aspirin or ibuprofin. Is that unauthorized practice
of medicine? Until something gets serious, amateurs play doctor on
themselves and each other. And most of the time, common sense works
fine.
Paul Tauger
> In article <ah04m9$odars$1...@ID-101118.news.dfncis.de>,
> "Paul Tauger" <ptauger...@earthlink.net> wrote:
>
> > "Barry Margolin" <bar...@alum.mit.edu> wrote in message
> > news:barmar-064806....@netnews.attbi.com...
> > > In article <agt4nu$ocego$1...@ID-101118.news.dfncis.de>,
> > > "Paul Tauger" <ptauger...@earthlink.net> wrote:
> > >
> > > > No. I feel an incomplete and inaccurate analysis by a layperson is
> > > > dangerous and serves no one.
> > >
> > > I didn't do any analysis, but you responded as if I had.
> >
> > Because it sounded to the OP like you had. Yes, you said IANAL, but
then
> > you proceded to supply answer. Is it any different if I say, "I am a
not a
> > doctor, but I don't think those chest pains are anything serious -- have
> > another cigarette and don't worry about."?
>
> Yet people do it all the time. If someone mentions they have an ache, I
> might offer them an aspirin or ibuprofin. Is that unauthorized practice
> of medicine?
As I said, this isn't a UPL issue.
> Until something gets serious, amateurs play doctor on
> themselves and each other. And most of the time, common sense works
> fine.
I can't agree that that's a valid approach to legal problems.
Isaac
wrote:
>
> "Christopher C. Stacy" <cst...@dtpq.com> wrote in message
> news:uznwsx...@dtpq.com...
>> >>>>> On Mon, 15 Jul 2002 19:48:32 -0700, Paul Tauger ("Paul") writes:
><snip>
>
>> When someone says, "I am not a lawyer, but...", that certainly
>> means something. It means, "You must have known this, but just
>> in case you are having a lapse of common sense or something,
>> there is no particular reason why you should believe that I
>> have a fucking clue. You don't even know if I can spell non
>> compos mentis. If I give you some advice, that and a $2.75
>> will get you an espresso from an overpierced teenager."
>> And I think anybody understands that it means that.
>
> It should mean that, but it doesn't. The problem is that law, particularly
> intellectual property law, appears arcane and impenetrable to the average
> person. When they encounter someone who appears knowledgable about law (and
> a number of people here have considerably more than a lay person's
> understanding), the natural tendency is to defer to that person. As I
> mentioned in another post, everyone, including myself, seeks advice on the
> internet. There are some fields, though, were advice is best left to the
> experts. And, at the risk of igniting another firestorm, I'd humbly suggest
> that those fields are best distinguished by their requirement of a license
> before someone can practice.
I'd suggest that there are just as many licenses that are little more
than turf protecting as there are licenses that are more meaningful
guarantees that the holder is knowledgable. There are also plenty
of unlicensed experts (physicists, software engineers) for whom
deference is due. While a law license may be a good indicator,
licenses in general, even those requiring an exam are not.
> Let me be clear: I only jump in if a wannabe gives erroneous information.
> If they're right, or the information is general and not specific, I have no
> reason to say anything. When I do jump in, it is only to correct the error
Hmm, so the only way to get your opinion is for us laypersons to give
dangerous advice.
> I agree that merely talking doesn't come close to that line. Here's how I
> see the difference:
>
> Poster A: "Hi, guys. Does anyone know whether usenet posts are in the
> public domain?"
>
> Anyone is free to respond, e.g. "IANAL, but my understanding is that they
> are protected by copyright, etc. . . ."
But if anyone responds with "IANAL, but my understanding is that they are
not protected by copyright, etc...", won't you consider that to be dangerous
advice if you see that the responder is wrong? That's basically kind of
response Barry gave initially.
>
> Poster B: "Hi. I received a cease-and-desist letter from someone at the XYZ
> Company about my website. All that I have on there are press releases that
> come from the XYZ Company. Aren't those automatically in the public
> domain?"
>
> The only response that should be given to Poster B is: "This isn't something
> you want to fool around with yourself. You need to talk to a lawyer."
>
> If someone responds (and I've seen this response _here_ in this ng): "Oh, I
> wouldn't worry about a cease-and-desist letter. If XYZ Company sent out the
> press release, it's because they want people to reprint it, so that's like
> an implied license for anyone to reproduce it," then you better believe that
> I'll jump in and say, "Whoa . . . that's not the law, we don't know the
> facts, and no one but a lawyer should be advising this person."
>
> That's not censorship.
Of course it is not censorship, and there's nothing wrong with such a
comment on your part.
For that matter none of your comments, no matter how close they come to
saying "shut up" constitute censorship.
Isaac
Paul Tauger
Not the case with law, though. A license may not be a "guarantee," but it
does mean that the attorney who has one attended and graduated law school
and passed the bar examination.
> There are also plenty
> of unlicensed experts (physicists, software engineers) for whom
> deference is due.
Again, not true of law. I suspect that, somewhere, there may be a law
professor or two who are pure academics and never bothered to get licensed,
but I can think of only one (a talk show host in LA who graduated law school
but went into radio instead of practice) who deserves deference when it
comes to law (and even he is the first to say that he's not a lawyer and
shouldn't be regarded as a legal expert).
> While a law license may be a good indicator,
> licenses in general, even those requiring an exam are not.
You've got it backward. A law license isn't a guarantee of competence.
Lack of a law license is a guarantee of insufficient competence to practice
law.
>
> > Let me be clear: I only jump in if a wannabe gives erroneous
information.
> > If they're right, or the information is general and not specific, I have
no
> > reason to say anything. When I do jump in, it is only to correct the
error
>
> Hmm, so the only way to get your opinion is for us laypersons to give
> dangerous advice.
Or retain me. I don't advise non-clients and, in any event, people posting
specific problem questions to this ng never give enough information to
provide an opinion, anyway.
If you want my opinion on topics of general interest, or even specific
_hypotheticals_, just ask. I won't provide legal advice, however.
>
> > I agree that merely talking doesn't come close to that line. Here's how
I
> > see the difference:
> >
> > Poster A: "Hi, guys. Does anyone know whether usenet posts are in the
> > public domain?"
> >
> > Anyone is free to respond, e.g. "IANAL, but my understanding is that
they
> > are protected by copyright, etc. . . ."
>
> But if anyone responds with "IANAL, but my understanding is that they are
> not protected by copyright, etc...", won't you consider that to be
dangerous
> advice if you see that the responder is wrong?
No, I just think it's a wrong answer and will jump in, sans lecture, and
provide the right one.
> That's basically kind of
> response Barry gave initially.
I disagree. His response wasn't directed to a general question, but a
specific situation.
>
> >
> > Poster B: "Hi. I received a cease-and-desist letter from someone at the
XYZ
> > Company about my website. All that I have on there are press releases
that
> > come from the XYZ Company. Aren't those automatically in the public
> > domain?"
> >
> > The only response that should be given to Poster B is: "This isn't
something
> > you want to fool around with yourself. You need to talk to a lawyer."
> >
> > If someone responds (and I've seen this response _here_ in this ng):
"Oh, I
> > wouldn't worry about a cease-and-desist letter. If XYZ Company sent out
the
> > press release, it's because they want people to reprint it, so that's
like
> > an implied license for anyone to reproduce it," then you better believe
that
> > I'll jump in and say, "Whoa . . . that's not the law, we don't know the
> > facts, and no one but a lawyer should be advising this person."
> >
> > That's not censorship.
>
> Of course it is not censorship, and there's nothing wrong with such a
> comment on your part.
>
> For that matter none of your comments, no matter how close they come to
> saying "shut up" constitute censorship.
Thank you. I'm glad you appreciate that. A couple of people here don't.
>
> Isaac
Roger Schlafly
> So, I would suggest that the reluctance to diagnose migraines by the
> laity, as opposed to Roger's (and others') willingness to declaim
> on legal subjects is more a function of the way that physicians hold
> themselves out and treat the public than any realistic difference
> between the professions.
Another difference is that law is a little more accessible. Anyone
can watch the OJ trial or read the Pledge Of Allegiance decision
and form an opinion about it that is as valid as those of big-shot
law professors.
But the fact is that non-physicians trade info about migraines
all the time. I personally know a couple of people who got vitally
useful info about migraines from other sufferers that they were
never able to get from physicians. The idea that one should only
get migraine advice from a licensed physician is stupid and foolish.
Paul Tauger
> "Bruce Hayden" <bha...@ieee.org> wrote
> > So, I would suggest that the reluctance to diagnose migraines by the
> > laity, as opposed to Roger's (and others') willingness to declaim
> > on legal subjects is more a function of the way that physicians hold
> > themselves out and treat the public than any realistic difference
> > between the professions.
>
> Another difference is that law is a little more accessible. Anyone
> can watch the OJ trial or read the Pledge Of Allegiance decision
> and form an opinion about it that is as valid as those of big-shot
> law professors.
What an utterly prepostereous statement. Yes, anyone can watch the OJ trial
or read the Pledge of Allegiance and form an opinion. But an opinion that
is as valid as people who teach and practice the law professionally? Oh,
please! Common sense is not a substitute for knowledge. Watching CNN is
not a substitute for education. Belief is not a substitute for
understanding.
A statement like yours merely proves my point: lay people have no business
giving anyone legal advice.
>
> But the fact is that non-physicians trade info about migraines
> all the time. I personally know a couple of people who got vitally
> useful info about migraines from other sufferers that they were
> never able to get from physicians. The idea that one should only
> get migraine advice from a licensed physician is stupid and foolish.
I agree. No one in this thread has suggested that one should only get
migraine advice from a licensed physician.
>
>
Isaac
wrote:
>> There are also plenty
>> of unlicensed experts (physicists, software engineers) for whom
>> deference is due.
>
> Again, not true of law. I suspect that, somewhere, there may be a law
> professor or two who are pure academics and never bothered to get licensed,
> but I can think of only one (a talk show host in LA who graduated law school
> but went into radio instead of practice) who deserves deference when it
> comes to law (and even he is the first to say that he's not a lawyer and
> shouldn't be regarded as a legal expert).
>
>> While a law license may be a good indicator,
>> licenses in general, even those requiring an exam are not.
>
> You've got it backward. A law license isn't a guarantee of competence.
> Lack of a law license is a guarantee of insufficient competence to practice
> law.
I said it might be indicative of a profession where lay opinions were often
wrong. That's the context in which we raised the issue of licensing.
Where did I say anything about individual competence? We were only talking
about licensed or unlicensed experts who presumably ARE competent.
I think you lost track of what we are disagreeing about.
I'm only arguing about the general rule you espoused concerning licensed
professions. Apparently you're backing off of your original statement.
Isaac
Isaac
wrote:
>
> whereas "When Sunny Sniffs Glue," a parody by DJ Rick Dees of "When Sunny
> Gets Blue," was held to not come within fair use.) What justified the
> disparate treatment? Well, nothing you'll ever find in a statute or a
> reported case. There is a distinguishing factor nonetheless: there is a
Something seems a little off here. My understanding is that in both of
those cases the parodies were held to within be fair use. Further there
is the Two Live Crew Parody of "Pretty Woman" which was at least a little
dirty but which the Supreme Court found to be fair use. I find it a
little amusing to think about the Justices getting a chance to enjoy
some of the Crew's less offensive work.
Perhaps you refer to the Mickey Mouse parody case.
But that case can be distinguished because it's more satire than parody.
At least arguably the Disney characters were not being used to make
fun of Disney, but as source material for the work.
Isaac
Lee Hollaar
>On Tue, 16 Jul 2002 14:55:51 -0500, Paul Tauger <ptauger...@earthlink.net>
>wrote:
>>
>> Parody is a good example. For the moment, I'll just address the parody
>> Night Live parody of "I Love New York" was held to be fair use parody,
>> whereas "When Sunny Sniffs Glue," a parody by DJ Rick Dees of "When Sunny
>> Gets Blue," was held to not come within fair use.) What justified the
>> disparate treatment? Well, nothing you'll ever find in a statute or a
>> reported case. There is a distinguishing factor nonetheless: there is a
>
>Something seems a little off here. My understanding is that in both of
>those cases the parodies were held to within be fair use.
"When Sunny Sniffs Glue" was held by the trial court, in summary judgment,
to be a fair use. That holding was affirmed by the Ninth Circuit on
appeal. 794 F2d 432, 230 USPQ 421. So, no disparate treatment to
resolve with the two cases.
> Further there
>is the Two Live Crew Parody of "Pretty Woman" which was at least a little
>dirty but which the Supreme Court found to be fair use.
Well, no, they didn't find fair use. The Sixth Circuit, reversing the
trial court's summary judgment of fair use, found that the commercial
nature of the work made it presumptively unfair, citing some unfortunate
language in the Supreme Court's Sony betamax decision. The Supreme
Court said that all four factors needed to be considered and remanded
the case. (There was little on the record regarding the fourth factor,
effect on the potential market.)
Paul Tauger
Your statement:
> >> There are also plenty
> >> of unlicensed experts (physicists, software engineers) for whom
> >> deference is due.
My statement:
> > Again, not true of law.
What "general rule" was I espousing?
>
> Isaac
Paul Tauger
"Lee Hollaar" <hol...@faith.cs.utah.edu> wrote in message
news:ah6akj$8v9$1...@coward.ks.cc.utah.edu...
> In article Isaac <is...@latveria.castledoom.org> writes:
> >On Tue, 16 Jul 2002 14:55:51 -0500, Paul Tauger
<ptauger...@earthlink.net>
> >wrote:
> >>
> >> Parody is a good example. For the moment, I'll just address the parody
> >> Night Live parody of "I Love New York" was held to be fair use parody,
> >> whereas "When Sunny Sniffs Glue," a parody by DJ Rick Dees of "When
Sunny
> >> Gets Blue," was held to not come within fair use.) What justified the
> >> disparate treatment? Well, nothing you'll ever find in a statute or a
> >> reported case. There is a distinguishing factor nonetheless: there is
a
> >
> >Something seems a little off here. My understanding is that in both of
> >those cases the parodies were held to within be fair use.
>
> "When Sunny Sniffs Glue" was held by the trial court, in summary judgment,
> to be a fair use. That holding was affirmed by the Ninth Circuit on
> appeal. 794 F2d 432, 230 USPQ 421. So, no disparate treatment to
> resolve with the two cases.
Thanks for the cite. I'm unhappy that I remembered the case wrong -- must
be creeping senility. ;)
Roger Schlafly
> What an utterly prepostereous statement. Yes, anyone can watch the OJ
trial
> or read the Pledge of Allegiance and form an opinion. But an opinion that
> is as valid as people who teach and practice the law professionally?
Absolutely. Just look at all the silly and contradictory opinions from law
profs on these subjects.
> > But the fact is that non-physicians trade info about migraines
> > all the time. I personally know a couple of people who got vitally
> > useful info about migraines from other sufferers that they were
> > never able to get from physicians. The idea that one should only
> > get migraine advice from a licensed physician is stupid and foolish.
> I agree. No one in this thread has suggested that one should only get
> migraine advice from a licensed physician.
You said, on 7/15/2002, "Law is no different than medicine -- only
Isaac
wrote:
>
>> >> There are also plenty
>> >> of unlicensed experts (physicists, software engineers) for whom
>> >> deference is due.
>
> My statement:
>> > Again, not true of law.
>
> What "general rule" was I espousing?
I'll repost your comment here:
"There are some fields, though, were advice is best left to the
experts. And, at the risk of igniting another firestorm, I'd humbly
suggest that those fields are best distinguished by their requirement
of a license before someone can practice."
Isaac
Paul Tauger
This is getting tiresome. You said, in response to my statement that you
quoted above:
>> There are also plenty
>> of unlicensed experts (physicists, software engineers) for whom
>> deference is due.
This discussion is about whether lay people have any business giving legal
advice. I said you can usually identify fields for which lay people
shouldn't give advice by their requirement of a license for practice.
What does your statement, which is about fields requiring no license for
practice, have to do with mine or, for that matter, non-lawyers giving legal
advice? Of course there are fields where experts are distinguished by
licenses. So what? Law isn't one of them.
>
> Isaac
Roger Schlafly
> advice? Of course there are fields where experts are distinguished by
> licenses. So what? Law isn't one of them.
I agree with this. Eg, Lee Hollaar sometimes posts here and he is an
expert in copyright law, but he does not have a law license. But how
does this support your argument?
Isaac
wrote:
>
> practice, have to do with mine or, for that matter, non-lawyers giving legal
> advice? Of course there are fields where experts are distinguished by
> licenses. So what? Law isn't one of them.
You said that required licensing is an indicator of fields where non experts
shouldn't give advice. I suggested that such a statement was not
correct. I suggested that some licenses were poor indicators because they
were mainly for turf protection, while other fields just as arcane as law
did not require a license. Examples of either type discredit your statement.
None of those counter points say anything about law, but then you're the one
who made the general statement. If it's not relevant and if it's
apparently not even true, why did you bother making it? What was your
point about licensing?
Isaac
Paul Tauger
I already answered this, but you snipped it:
"This discussion is about whether lay people have any business giving legal
advice. I said you can usually identify fields for which lay people
shouldn't give advice by their requirement of a license for practice."
>
> Isaac
Paul Tauger
Lee Hollaar is a university professor (in computing, I believe) and,
as such, apparently better educated and better read than many who post
here. I've reviewed Google, though, and, though he is clearly well
acquainted with the copyright statutes, I don't see anything to
indicate he is an "expert" (and, in fact, I found a few posts in which
I had to correct, or at least clarify, something he had posted. More
to the point, I didn't see any post in which he attempted to offer
legal advice to someone.
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > What an utterly prepostereous statement. Yes, anyone can watch the OJ
> trial
> > or read the Pledge of Allegiance and form an opinion. But an opinion that
> > is as valid as people who teach and practice the law professionally?
>
> Absolutely. Just look at all the silly and contradictory opinions from law
> profs on these subjects.
I haven't seen "silly and contradictory opinions from law professors"
on these subjects. Specifically what opinions are you referencing?
>
> > > But the fact is that non-physicians trade info about migraines
> > > all the time. I personally know a couple of people who got vitally
> > > useful info about migraines from other sufferers that they were
> > > never able to get from physicians. The idea that one should only
> > > get migraine advice from a licensed physician is stupid and foolish.
> > I agree. No one in this thread has suggested that one should only get
> > migraine advice from a licensed physician.
>
> You said, on 7/15/2002, "Law is no different than medicine -- only
> the experts should give advice."
Read for context, Roger.
Bruce Hayden
> Lee Hollaar is a university professor (in computing, I believe) and,
> as such, apparently better educated and better read than many who post
> here. I've reviewed Google, though, and, though he is clearly well
> acquainted with the copyright statutes, I don't see anything to
> indicate he is an "expert" (and, in fact, I found a few posts in which
> I had to correct, or at least clarify, something he had posted. More
> to the point, I didn't see any post in which he attempted to offer
> legal advice to someone.
And he is chair of the IEEE Intellectual Property Committee (which
also has a number of IP attorneys). Lee is also one of the best
versed non-attorneys I have ever met in antitrust, given his
experiences as an expert witness in that area.
At one level, copyright law is not rocket science. But surprisingly,
few attorneys (even IP attorneys) understand it that well.
On the other hand, some of the ambiguities discussed here are
sure to cause all except the very best copyright attorneys
some consternation.
Paul Tauger
"Bruce Hayden" <bha...@ieee.org> wrote in message
news:3D382313...@ieee.org...
> Paul Tauger wrote:
>
>
> > Lee Hollaar is a university professor (in computing, I believe) and,
> > as such, apparently better educated and better read than many who post
> > here. I've reviewed Google, though, and, though he is clearly well
> > acquainted with the copyright statutes, I don't see anything to
> > indicate he is an "expert" (and, in fact, I found a few posts in which
> > I had to correct, or at least clarify, something he had posted. More
> > to the point, I didn't see any post in which he attempted to offer
> > legal advice to someone.
>
>
> And he is chair of the IEEE Intellectual Property Committee (which
>
> also has a number of IP attorneys). Lee is also one of the best
> versed non-attorneys I have ever met in antitrust, given his
> experiences as an expert witness in that area.
In that case, I'd concur . . . he's an expert. How many people like him do
you think there are posting in this newsgroup?
>
> At one level, copyright law is not rocket science. But surprisingly,
> few attorneys (even IP attorneys) understand it that well.
> On the other hand, some of the ambiguities discussed here are
> sure to cause all except the very best copyright attorneys
> some consternation.
Again, the only consternation on my part is when non-lawyers give legal
advice.
Roger Schlafly
> > > here. I've reviewed Google, though, and, though he is clearly well
> > > acquainted with the copyright statutes, I don't see anything to
> > And he is chair of the IEEE Intellectual Property Committee (which
Based on some credential, even tho you disagree with his posts?
I think you have a little too much faith in credentials. It should be
obvious from Lee's posts that he is an expert. He knows what he
writes about. If you and he disagreed on some issue, I'd be a lot
more likely to believe him than you.
OTOH, there are a lot of licensed lawyers who don't know beans
about copyright law. Copyright law is a fairly trivial area of the
law, but someone could get thru law school and a bar exam without
knowing anything about it.
> Again, the only consternation on my part is when non-lawyers give legal
> advice.
IOW, your concern is UPL.
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > > > here. I've reviewed Google, though, and, though he is clearly well
> > > > acquainted with the copyright statutes, I don't see anything to
> > > > indicate he is an "expert" ...
> > > And he is chair of the IEEE Intellectual Property Committee (which
> > In that case, I'd concur . . . he's an expert.
>
> Based on some credential, even tho you disagree with his posts?
No. I'm familiar with the IEEE Intellectual Property Committee. And I
don't "disagree with is posts." I have, however, corrected and clarified
some of his statements in this and other legal ngs.
> I think you have a little too much faith in credentials.
I think you don't understand the meaning of a credential.
> It should be
> obvious from Lee's posts that he is an expert. He knows what he
> writes about. If you and he disagreed on some issue, I'd be a lot
> more likely to believe him than you.
And, as I've told you many, many times before, I have absolutely no interest
in who you believe.
What is obvious from Lee's posts (at least those that I reviewed on Google)
is that he is very familiar with the Copyright Statute, and the construction
he accords to its language is, generally, compatible with the courts'
construction. What was also obvious is that he constrains himself to
discussing copyright theory in an academic sense, and doesn't purport to
advise anyone with specific problems, i.e. he is an academician and not an
attorney.
Since the vast majority of what Lee has to say about copyright is correct,
and he has demonstrated a reasonably thorough understanding of the copyright
statutes, and participates in a nationally-recognized standards committee
that, by its nature, addresses intellectual property issues, I have no
problem in acknowledging him as one of those very rare creatures: an IP
expert who is _not_ a licensed attorney.
However, THIS discussion isn't about Lee and never was. It is about whether
people in this newsgroup have any business giving legal advice. The answer
remains a resounding "NO." Lee shouldn't, and doesn't, do it, and, as best
as I can tell, he has the best credentials, knowledge and understanding of
any of the non-lawyers on this ng.
>
> OTOH, there are a lot of licensed lawyers who don't know beans
> about copyright law.
Obviously. I don't know beans about securities law -- I don't practice it.
> Copyright law is a fairly trivial area of the
> law,
It constantly amazes me how willing you are to demonstrate your complete and
utter lack of knowledge of the law and legal practice. The top firms are
desparate for qualified IP practioners and, not surprisingly, lawyers who
practice this "trivial" area of the law are among the highest paid.
>but someone could get thru law school and a bar exam without
> knowing anything about it.
Of course. However, you've simply missed the point.
I said, "lawyers are the only people qualified to give legal advice about
IP." That does not mean that "all lawyers are qualified to give legal
advice about IP." It means that _non-lawyers are_not_ qualified to give
legal advice about IP.
>
> > Again, the only consternation on my part is when non-lawyers give legal
> > advice.
>
> IOW, your concern is UPL.
No. My concern is newbie posters who don't know better will listen to
erroneous advice given to them by non-lawyers in this ng, and find
themselves incurring liability as a result. I don't care what you do,
whether it is practicing law or prophecying the second coming. I do care
when others are harmed by what you do.
>
>
Rahul Dhesi
<ptauger...@earthlink.net> writes:
>2. Regardless of your constitutional right of self-expression, it is stupid
>and dangerous to give legal advice to others if you don't know what you are
>talking about. Period. Someone came into this ng and asked a question about
>a specific situation. A _non lawyer_ gave him an answer that contained
>wrong information that could, potentially, result in liability for the OP.
If you wish to be credible, you should focus on the wrongness of the
advice, not the status of the person giving the advice. It should be
sufficient to say "don't give wrong advice". If you emphasize the
status of the person ("A _non lawyer_") your message becomes much less
effective.
--
Rahul
Rahul Dhesi
<ptauger...@earthlink.net> writes:
>Again, the only consternation on my part is when non-lawyers give legal
>advice.
The consternation on your part ought to be on the wrongness of advice,
not on the status of the person offering it.
My concern is that you are using repeatedly using the phrase "legal
advice" (and have been doing so for some weeks) without defining it.
This phrase means different things to different people, so anything you
say using this phrase might be taken wrongly by the reader. I think
you should define it first.
--
Rahul
Paul Tauger
"Rahul Dhesi" <c.c....@25.usenet.us.com> wrote in message
news:aha7pv$hkq$1...@samba.rahul.net...
> In <agvl0c$p441b$1...@ID-101118.news.dfncis.de> "Paul Tauger"
> <ptauger...@earthlink.net> writes:
>
> >2. Regardless of your constitutional right of self-expression, it is
stupid
> >and dangerous to give legal advice to others if you don't know what you
are
> >talking about. Period. Someone came into this ng and asked a question
about
> >a specific situation. A _non lawyer_ gave him an answer that contained
> >wrong information that could, potentially, result in liability for the
OP.
>
> If you wish to be credible,
"If I wish to be credible . . ."? Oh, please.
> you should focus on the wrongness of the
> advice, not the status of the person giving the advice.
Then you've missed the point as well. Only someone who practices
intellectual property law is qualified, by both education and experience, to
provide legal advice about intellectual property law. By definition, the
only people with experience practicing intellectual law are licensed
attorneys, since no one else is allowed to do so, as a matter of law.
I've said, many, many times, that no one, lawyer or not, can glean enough
information from a "What should I do?" post in a Usenet newsgroup to provide
a competent analysis. Accordingly, the mere act of a non-lawyer trying to
provide advice, regardless of the content of that advice, merits criticism
(and, again, you will note that _no_ lawyer here provides specific legal
advice to anyone).
> It should be
> sufficient to say "don't give wrong advice".
But doesn't that imply that it's okay to give "right" advice? It's not.
Paul Tauger
> In <ah9qqa$rteoq$1...@ID-101118.news.dfncis.de> "Paul Tauger"
> <ptauger...@earthlink.net> writes:
>
> >Again, the only consternation on my part is when non-lawyers give legal
> >advice.
>
> The consternation on your part ought to be on the wrongness of advice,
> not on the status of the person offering it.
>
> My concern is that you are using repeatedly using the phrase "legal
> advice" (and have been doing so for some weeks) without defining it.
On the contrary, I've been very specific about what is and is not legal
advice. Read back through this thread.
Roger Schlafly
> Only someone who practices
> intellectual property law is qualified, by both education and experience,
to
> provide legal advice about intellectual property law. By definition, the
> only people with experience practicing intellectual law are licensed
> attorneys, since no one else is allowed to do so, as a matter of law.
You sound like a teachers union lobbyist, arguing that only
certified teachers should teach.
This is usenet. People express opinions. Get over it.
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > Only someone who practices
> > intellectual property law is qualified, by both education and
experience,
> to
> > provide legal advice about intellectual property law. By definition,
the
> > only people with experience practicing intellectual law are licensed
> > attorneys, since no one else is allowed to do so, as a matter of law.
>
> You sound like a teachers union lobbyist, arguing that only
> certified teachers should teach.
Well, Roger, what do you propose? That people like you should give legal
advice?
>
> This is usenet. People express opinions. Get over it.
You're right, Roger, this is the internet, and people express opinions. You
know mine, and the more you post the more you validate it.
Get over that.
>
>
Roger Schlafly
> > You sound like a teachers union lobbyist, arguing that only
> > certified teachers should teach.
> Well, Roger, what do you propose? That people like you should give legal
> advice?
IANAL. I give opinions and advice on a variety of topics. Ok
with me if others do the same.
> > This is usenet. People express opinions. Get over it.
> You're right, Roger, this is the internet, and people express opinions.
You
> know mine, and the more you post the more you validate it.
Actually, your opinions seem to change every day. Sometimes you give
legal advice, sometimes you object to anyone giving legal advice,
sometimes you only object to nonlawyers giving legal advice.
Sometimes you seem hung up on the UPL, and other times you
claim it is not an issue. All I get out of your posts is that you don't
like to be corrected.
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > > You sound like a teachers union lobbyist, arguing that only
> > > certified teachers should teach.
> > Well, Roger, what do you propose? That people like you should give
legal
> > advice?
>
> IANAL. I give opinions and advice on a variety of topics. Ok
> with me if others do the same.
And not okay with me, when you (and only one or two others) play lawyer and
try to give people legal advice.
>
> > > This is usenet. People express opinions. Get over it.
> > You're right, Roger, this is the internet, and people express opinions.
> You
> > know mine, and the more you post the more you validate it.
>
> Actually, your opinions seem to change every day. Sometimes you give
> legal advice, sometimes you object to anyone giving legal advice,
> sometimes you only object to nonlawyers giving legal advice.
> Sometimes you seem hung up on the UPL, and other times you
> claim it is not an issue. All I get out of your posts is that you don't
> like to be corrected.
That's because you don't read them -- you're much more interested in proving
how your opinion is better than a lawyer's.
This discussion has reached a dead end.
You can have the last word.
>
>
Isaac
Didn't Lee correct you concerning an IP fine point in this very
thread? From my observation, Lee Hollaar is either very extremely
familiar with both the case law and the legislative history associated
with copyright statutes, or he researches well prior to posting.
Isaac
Paul Tauger
> On 19 Jul 2002 06:38:11 -0700, Paul Tauger <tauge...@usa.net> wrote:
> > "Roger Schlafly" <rog...@mindspring.com> wrote in message
news:<v4IZ8.1694$o73.70...@twister2.starband.net>...
> >> "Paul Tauger" <ptauger...@earthlink.net> wrote
> >> > advice? Of course there are fields where experts are distinguished
by
> >> > licenses. So what? Law isn't one of them.
> >>
> >> I agree with this. Eg, Lee Hollaar sometimes posts here and he is an
> >> expert in copyright law, but he does not have a law license. But how
> >> does this support your argument?
> >
> >
> > Lee Hollaar is a university professor (in computing, I believe) and,
> > as such, apparently better educated and better read than many who post
> > here. I've reviewed Google, though, and, though he is clearly well
> > acquainted with the copyright statutes, I don't see anything to
> > indicate he is an "expert" (and, in fact, I found a few posts in which
> > I had to correct, or at least clarify, something he had posted. More
>
> Didn't Lee correct you concerning an IP fine point in this very
> thread?
Not exactly. He corrected me on the holding of a case which I
misremembered. This wasn't an "IP fine point," and didn't contradict the
doctrine that I was discussing. But, yes, I did make a mistake regarding
how a particular case was decided.
What's your point?
> From my observation, Lee Hollaar is either very extremely
> familiar with both the case law and the legislative history associated
> with copyright statutes, or he researches well prior to posting.
Again, what's your point?
>
> Isaac
Isaac
wrote:
>
The point is that your having to sometimes correct or clarify Lee doesn't
indicate he isn't an expert. Yet it was part of your post disputing exactly
that.
For what it's worth it doesn't appear to me that you even correctly described
the doctrine. You claimed that there were parody cases with very similar
facts that were only distinguishable by the fact that one parody was dirty
resulting in differnt outcome. Well certainly there are cases where dirty
parodies/satire were not held to be fair use, but just how similar are they
to the ones you did cite?
You didn't simply misremember a holding. The cases you cited don't make
your point even if you got the holding correct. You must have complete
misremembered the holdings and the facts of at least one case, because
if one of those parodies is in fact dirty, it would completely counter
the point you attempted to make.
I don't think anyone should be lambasted for making a mistake, but when
you do it while pointing trying to describe your own knowledge of some
doctrine only known to experts, it certainly undermines your point.
Isaac
Rahul Dhesi
<rog...@mindspring.com> writes:
>Actually, your opinions seem to change every day. Sometimes you give
>legal advice, sometimes you object to anyone giving legal advice,
>sometimes you only object to nonlawyers giving legal advice.
Both you and Paul are continuing to use the phrase "legal advice"
without defining it.
--
Rahul
Paul Tauger
On the contrary, I've specifically said it is probably accurate to
characterize Lee as an expert. Re-read the thread.
Lee is that rare thing -- the non-lawyer expert at an area of law -- that
proves the rule. I assume that you (and Roger) are not claiming the same
level of expertise as Lee, are you?
What I _have_ said, however, is that Lee is not qualified to offer anyone
legal advice, nor is any non-lawyer. Expertise <> qualification to give
legal advice.
The problem with you (and Roger) is that you have ascribed to me positions I
don't hold and continually try to box me into them. I'm very specific about
what I say and what I mean.
>
> For what it's worth it doesn't appear to me that you even correctly
described
> the doctrine. You claimed that there were parody cases with very similar
> facts that were only distinguishable by the fact that one parody was dirty
> resulting in differnt outcome.
No, that's not quite what I said. I used "dirty" as short hand for "morally
repugnant to the deciding judge."Again, read what I wrote. I was mistaken
about the outcome of the Rick Dees case. I am not mistaken about parody
doctrine. If you think I am, let's make it interesting -- want to wager a
little money on it?
> Well certainly there are cases where dirty
> parodies/satire were not held to be fair use, but just how similar are
they
> to the ones you did cite?
Very similar. Take a look at the Cocaine/Coca Cola case (which, IIRC, was a
trademark case, but the doctrine is the same).
>
> You didn't simply misremember a holding. The cases you cited don't make
> your point even if you got the holding correct. You must have complete
> misremembered the holdings and the facts of at least one case, because
> if one of those parodies is in fact dirty, it would completely counter
> the point you attempted to make.
As I said, if you think I'm wrong, let's make it interesting. How much do
you want to bet that there is judicial gloss on parody doctrine, exactly as
I said?
>
> I don't think anyone should be lambasted for making a mistake, but when
> you do it while pointing trying to describe your own knowledge of some
> doctrine only known to experts, it certainly undermines your point.
Again, you need to read what I wrote. My point, to refresh _your_
recollection, was that IP law is filled with exceptions to exceptions to
exceptions. Your apparant ignorance of this particular area of parody
doctrine proves my point.
I'm at home this weekend. Monday I'll be in the office.
Care to take up my bet, and we'll see whether I'm wrong about the doctrine?
>
> Isaac
Roger Schlafly
> Both you and Paul are continuing to use the phrase "legal advice"
> without defining it.
I use the term to mean suggestions or opinions about the law, or
about some (hypothetical or real) legal predicament.
It would be possible to use the term in the narrower sense of opinions
that are given in the context of an attorney-client relationship. But I
don't think that anyone here is using the term in that sense. (Under
this narrower definition, there is no legal advice on this forum.)
Under my definition, there is lots of legal advice on this forum.
It is not illegal, unethical, or harmful. Sometimes I disagree with
opinions posted by others. Sometimes I even disagree with my
own opinion, after someone persuades me to the contrary.
Isaac
> news:slrnajj9c0...@latveria.castledoom.org...
< big snip of ground I hope not to cover again >
>>
>> The point is that your having to sometimes correct or clarify Lee doesn't
>> indicate he isn't an expert. Yet it was part of your post disputing
>> exactly that.
>
> On the contrary, I've specifically said it is probably accurate to
> characterize Lee as an expert. Re-read the thread.
Perhaps you did say that later, but in the post I'm discussing you said
the following:
"I've reviewed Google, though, and, though he is clearly well
acquainted with the copyright statutes, I don't see anything to
indicate he is an "expert" ...
I've elided the portion where you talk about having to correct/clarify
Lees in the past.
> Lee is that rare thing -- the non-lawyer expert at an area of law -- that
> proves the rule. I assume that you (and Roger) are not claiming the same
> level of expertise as Lee, are you?
I'm no expert. I've just had a few IP classes covering some of the
material under discussion. I'll admit that I enjoy attempting to
apply what little I know to stuff I see posted. I think I can
do that without hurting anyone.
> What I _have_ said, however, is that Lee is not qualified to offer anyone
> legal advice, nor is any non-lawyer. Expertise <> qualification to give
> legal advice.
I think you're equivocating on the word advice. I'm not qualified to
provide attorney/client advice. But I don't do that. I do discuss
situations hypothetical and real that are posted to usenet. I generally
do my best to point out the limitations in my expertise, lack of knowledge
of enough facts, and that listening to non-lawyers is not wise.
> The problem with you (and Roger) is that you have ascribed to me positions I
> don't hold and continually try to box me into them. I'm very specific about
> what I say and what I mean.
I'll admit to not completely understanding what you mean. I'm not trying
to box you in. I'm trying to make sense out of what you do say. I have
posted some hypotheses concerning your position in hopes that you'll
clarify it.
> No, that's not quite what I said. I used "dirty" as short hand for "morally
> repugnant to the deciding judge."Again, read what I wrote. I was mistaken
> about the outcome of the Rick Dees case. I am not mistaken about parody
> doctrine. If you think I am, let's make it interesting -- want to wager a
> little money on it?
Perhaps if we can clarify what your position really is, there will be
something to base a wager on. What it appears that you said is that
"moral repugnance to the deciding judge" can make a difference
in the outcome of cases otherwise factually similar to "I Love Sodom"
and "When Sunny sniffs glue". I'm guessing that you aren't going
to say that any longer.
I'm suggesting that we could probably find other disimilarities in
those repugnancy cases.
But that's only half of the point.
You say you missed only the holding of Dees. But the question would be
why you even cited the case at all. Either the case isn't relevant at
all, in which case it seems you must have missed more than the holding,
or it's counter to your point. Did you think that the Dees parody
was morally repugnant to the judge?
I see in google that you've made the same case citing mistake at least a
couple of other times.
> Very similar. Take a look at the Cocaine/Coca Cola case (which, IIRC, was a
> trademark case, but the doctrine is the same).
I'm not willing to agree that trademark cases are the same, because
fair use doctrine is less well developed in the trademark area. I think
we'd find significant differences in tolerance for fair use of trademarks
between the circuits for even non dirty parodies. At least one circuit
seems to give nearly dispositive weight to the affect on the parodied
work. Perhaps that's the right thing to do for a trademark.
> Care to take up my bet, and we'll see whether I'm wrong about the doctrine?
Clarify your position first.
Isaac
Paul Tauger
> On Sat, 20 Jul 2002 12:03:03 -0700, Paul Tauger
<ptauger...@earthlink.net>
> wrote:
> >
> > "Isaac" <is...@latveria.castledoom.org> wrote in message
> > news:slrnajj9c0...@latveria.castledoom.org...
>
> < big snip of ground I hope not to cover again >
> >>
> >> The point is that your having to sometimes correct or clarify Lee
doesn't
> >> indicate he isn't an expert. Yet it was part of your post disputing
> >> exactly that.
> >
> > On the contrary, I've specifically said it is probably accurate to
> > characterize Lee as an expert. Re-read the thread.
>
> Perhaps you did say that later, but in the post I'm discussing you said
> the following:
>
> "I've reviewed Google, though, and, though he is clearly well
> acquainted with the copyright statutes, I don't see anything to
> indicate he is an "expert" ...
And then someone (Roger? You?) told me Lee's credentials. Sheesh. This is
getting really boring -- you're not interested in having a discussion,
you're just interested in proving me wrong. When I'm wrong I admit it (as
with my misremembered reliance on the Rick Dees case). I have absolutely no
interest in continuing this discussion if all you're going to do is quote
little snippets of posts out context and out chronological order.
>
> I've elided the portion where you talk about having to correct/clarify
> Lees in the past.
You elide a lot.
>
> > Lee is that rare thing -- the non-lawyer expert at an area of law --
that
> > proves the rule. I assume that you (and Roger) are not claiming the
same
> > level of expertise as Lee, are you?
>
> I'm no expert. I've just had a few IP classes covering some of the
> material under discussion. I'll admit that I enjoy attempting to
> apply what little I know to stuff I see posted. I think I can
> do that without hurting anyone.
If by "applying what little [you know] to stuff [you] see posted" means
giving people advice about legal problems, then you're wrong, and it
explains why you are trying, so strenuously, to prove that I'm wrong at so
many turns.
>
> > What I _have_ said, however, is that Lee is not qualified to offer
anyone
> > legal advice, nor is any non-lawyer. Expertise <> qualification to give
> > legal advice.
>
> I think you're equivocating on the word advice. I'm not qualified to
> provide attorney/client advice.
You're not qualified to advise people with legal problems about what they
should do or how they should resolve them. "Attorney/client" is a legal
term of art for a relationship that can only exist when one of the parties
is an attorney, which you are not.
And if you think I'm equivocating about the meaning of the word advice, you
haven't paid any attention to what I've written, several times, in this
thread. I've been very, very clear about the kinds of things that
constitute providing legal advice and the kinds of things which don't.
> But I don't do that. I do discuss
> situations hypothetical and real that are posted to usenet.
I don't know what you do, and I'm not going back through Google to see what
you have done. I know that a couple of people in this ng have attempted to
advise people about legal issues. That's not discussing hypothetical
situations or, for that matter, "real" legal questions. It's posing as an
expert and offering legal advise, though totally unqualified to do so.
> I generally
> do my best to point out the limitations in my expertise, lack of knowledge
> of enough facts, and that listening to non-lawyers is not wise.
Then why give advise if you KNOW that anyone listenting to it would be
unwise?
>
> > The problem with you (and Roger) is that you have ascribed to me
positions I
> > don't hold and continually try to box me into them. I'm very specific
about
> > what I say and what I mean.
>
> I'll admit to not completely understanding what you mean. I'm not trying
> to box you in.
Really? See above. What is the relevance of Lee to this discussion at all?
> I'm trying to make sense out of what you do say.
Then read for content rather for fodder for attack.
> I have
> posted some hypotheses concerning your position in hopes that you'll
> clarify it.
You haven't posted "hyposthese concerning [my] position." You've made up
positions that I don't hold, apparently because you thought they'd be easier
to attack. That's called a strawman argument and it's sophistry at its
worst.
>
> > No, that's not quite what I said. I used "dirty" as short hand for
"morally
> > repugnant to the deciding judge."Again, read what I wrote. I was
mistaken
> > about the outcome of the Rick Dees case. I am not mistaken about parody
> > doctrine. If you think I am, let's make it interesting -- want to wager
a
> > little money on it?
>
> Perhaps if we can clarify what your position really is, there will be
> something to base a wager on.
I'v explained at great length what the doctrine is and how it works. Read
my posts again.
> What it appears that you said is that
> "moral repugnance to the deciding judge" can make a difference
> in the outcome of cases otherwise factually similar to "I Love Sodom"
> and "When Sunny sniffs glue". I'm guessing that you aren't going
> to say that any longer.
Right, because I misremembered the holding of the Rick Dees case. You've
apparently misremembered my reference to Walt Disney v. Air Pirates, which
is a classic application of the "it's dirty so it's not parody" judicial
gloss which has been applied to this particular niche of fair use doctrine.
What you've also misremembered is that I raised this niche doctrine as an
example of a fairly arcane principle of IP law that is not generally known,
which is why non-experts have absolutely no business giving legal advice.
>
> I'm suggesting that we could probably find other disimilarities in
> those repugnancy cases.
>
> But that's only half of the point.
That's not the point at all. See above.
>
> You say you missed only the holding of Dees. But the question would be
> why you even cited the case at all.
Obviously, because I misremembered the holding as going the other way.
> Either the case isn't relevant at
> all, in which case it seems you must have missed more than the holding,
> or it's counter to your point. Did you think that the Dees parody
> was morally repugnant to the judge?
Obviously, it was not.
>
> I see in google that you've made the same case citing mistake at least a
> couple of other times.
Yep. It's been many years since I looked at this line of cases, and I
simply remembered what I remembered. I was wrong about this case, but not
about the doctrine for which I [mis]cited it.
>
> > Very similar. Take a look at the Cocaine/Coca Cola case (which, IIRC,
was a
> > trademark case, but the doctrine is the same).
>
> I'm not willing to agree that trademark cases are the same, because
> fair use doctrine is less well developed in the trademark area.
I don't care whether you're willing to agree or not -- there is most
definitely a well-established fair use doctrine in trademark. The primary
difference is that it's not codified in the trademark statutes (except in
the dilution statute), the way fair use is in the copyright statutes.
However, since fair use is an equitable doctrine, the codification is, for
the purposes of this discussion, superflous.
However, as I've already pointed out, you've conveniently ignored my
citation to Air Pirates.
>I think
> we'd find significant differences in tolerance for fair use of trademarks
> between the circuits for even non dirty parodies. '
Is that what you think? Based on what? There is a difference, but not in
the way or for the reasons that you might think.
> At least one circuit
> seems to give nearly dispositive weight to the affect on the parodied
> work.
I'm not sure what you mean by "affect on the parodied work." All circuits
consider the four non-dispositive factors in the fair use statute, one of
which is effect on the market for the parodied work. Is that what you
meant?
> Perhaps that's the right thing to do for a trademark.
I don't know what "that" is that you're referring to. Read the unfair
competition statute, 15 U.S.C. 1125(a), if you want to know what is the
right thing to do with respect to trademarks.
>
> > Care to take up my bet, and we'll see whether I'm wrong about the
doctrine?
>
> Clarify your position first.
Sorry, my "position" is crystal clear.
>
> Isaac
Rahul Dhesi
<rog...@mindspring.com> writes:
>"Rahul Dhesi" <c.c....@25.usenet.us.com> wrote
>> Both you and Paul are continuing to use the phrase "legal advice"
>> without defining it.
>I use the term to mean suggestions or opinions about the law, or
>about some (hypothetical or real) legal predicament.
Good. Now we can better understand what you write.
We still do not know with what meaning Paul is using the phrase "legal
advice", so we are not in a good position to understand what he writes.
--
Rahul
Rahul Dhesi
<ptauger...@earthlink.net> writes:
>You're not qualified to advise people with legal problems about what
>they should do or how they should resolve them....
"Qualified" is another word that you have used several times without
clarifying which which of its several several you are using the word. I
suspect you are incorrectly using "qualified" to mean "permitted by
law", but I cannot be sure due to the vagueness of your language and
your claims.
Many misunderstandings occur because different people inadvertently use
the same words with different meanings. But some misunderstandings
occur when words are used by a writer with meanings other than those
commonly understood by readers. Until we have a clarification from you,
I will assume that the latter is the situation here.
You still have not clarified with what meaning you are repeatedly using
the phrase "legal advice". I see vague references to unspecified prior
postings, but no message-id that would allow a specific posting to be
consulted.
--
Rahul
Roger Schlafly
> > "I've reviewed Google, though, and, though he is clearly well
> > acquainted with the copyright statutes, I don't see anything to
> > indicate he is an "expert" ...
> And then someone (Roger? You?) told me Lee's credentials. Sheesh.
You are deciding who is an expert based only on credentials.
> > I think you're equivocating on the word advice. I'm not qualified to
> > provide attorney/client advice.
> You're not qualified to advise people with legal problems about what they
> should do or how they should resolve them. "Attorney/client" is a legal
> term of art for a relationship that can only exist when one of the parties
> is an attorney, which you are not.
> And if you think I'm equivocating about the meaning of the word advice,
you
> haven't paid any attention to what I've written, several times, in this
> thread. I've been very, very clear about the kinds of things that
> constitute providing legal advice and the kinds of things which don't.
You, you are severely confused about what is or is not legal advice.
You have not defined the term, and you do not use it consistently.
Sometimes you use it for a licensed client consultation by an attorney,
and sometimes for opinions expressed on usenet. When you use it for
the latter, there is no consistency to what you call legal advice, and
what you do not. When asked to discuss example of advice, your
statements are contradictory.
I think you went to a legal seminar once, and you jotted down some
notes about not giving legal advice on the internet, but you weren't
paying attention when "legal advice" was defined.
Roger Schlafly
> >I use the term to mean suggestions or opinions about the law, or
> >about some (hypothetical or real) legal predicament.
> Good. Now we can better understand what you write.
> We still do not know with what meaning Paul is using the phrase "legal
> advice", so we are not in a good position to understand what he writes.
Right, we don't. When he makes statements to the effect that only
licensed lawyers are qualified to give legal advice on usenet, it is
hard to think of a definition that makes sense in that context.
IMO, Paul is giving wrong legal advice when he says stuff like that.
Paul Tauger
Read the thread. I've described exactly what I mean a number of times.
> --
> Rahul
>
Paul Tauger
> In <ahf2b9$sshjg$2...@ID-101118.news.dfncis.de> "Paul Tauger"
> <ptauger...@earthlink.net> writes:
>
> >You're not qualified to advise people with legal problems about what
> >they should do or how they should resolve them....
>
> "Qualified" is another word that you have used several times without
> clarifying which which of its several several you are using the word. I
> suspect you are incorrectly using "qualified" to mean "permitted by
> law", but I cannot be sure due to the vagueness of your language and
> your claims.
No, I not using it that way. I'm using it in its colloquial sense, i.e.
lacking the qualificaions -- experience, education and understanding -- to
give legal advice to another.
You can try to make this about UPL as much as you want -- it's not.
>
> Many misunderstandings occur because different people inadvertently use
> the same words with different meanings. But some misunderstandings
> occur when words are used by a writer with meanings other than those
> commonly understood by readers. Until we have a clarification from you,
> I will assume that the latter is the situation here.
You've had my clarification (and also ignored several others).
>
> You still have not clarified with what meaning you are repeatedly using
> the phrase "legal advice". I see vague references to unspecified prior
> postings, but no message-id that would allow a specific posting to be
> consulted.
Do a google search. I'm not doing your work for you, particularly when,
apparently, you haven't bothered to read what I wrote and are much more
interested in "assuming" what I mean.
> --
> Rahul
>
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > > "I've reviewed Google, though, and, though he is clearly well
> > > acquainted with the copyright statutes, I don't see anything to
> > > indicate he is an "expert" ...
> > And then someone (Roger? You?) told me Lee's credentials. Sheesh.
>
> You are deciding who is an expert based only on credentials.
No, Roger. For someone who seems reasonably intelligent, you seem to have a
lot of trouble with some basic reading comprehenison issues.
I'll spell it out for you, since you seem intent on snipping single
sentences out-of-context:
I'm willing to accept Lee as an expert after reviewing his Google postings,
and learning from someone, that he is an academic (I don't recall now where
he teaches), as well as chair (or something similar) of an IEEE committee on
IP. The combination of all of these suggests a certain level of expertise.
He is still not qualified to give legal advice.
Are we clear now?
>
> > > I think you're equivocating on the word advice. I'm not qualified to
> > > provide attorney/client advice.
> > You're not qualified to advise people with legal problems about what
they
> > should do or how they should resolve them. "Attorney/client" is a legal
> > term of art for a relationship that can only exist when one of the
parties
> > is an attorney, which you are not.
> > And if you think I'm equivocating about the meaning of the word advice,
> you
> > haven't paid any attention to what I've written, several times, in this
> > thread. I've been very, very clear about the kinds of things that
> > constitute providing legal advice and the kinds of things which don't.
>
> You, you are severely confused about what is or is not legal advice.
> You have not defined the term, and you do not use it consistently.
Oh, nonsense. "Legal advice" is advising someone about their course of
action and/or potential rights and remedies with respect to a specific,
non-hypothetical situation. Okay?
As I've said, many, many times:
If someone comes here and says, "Do people think that the AHRA is in
conflict with the DMCA?", everyone here is free to give their opinion.
If someone comes here and says, "I received a cease-and-desist letter
because I'm using a product name on my website -- what should I do?", no
non-lawyer here is qualified to provided an answer, and no licensed lawyer
will.
Now, you 've had a definition and an illustration.
> Sometimes you use it for a licensed client consultation by an attorney,
> and sometimes for opinions expressed on usenet.
I use it for any instance in which someone tries to advise someone else
about their legal rights and remedies with respect to specific
non-hypothetical stuations. I'm absolutely consistent in how I've used it.
> When you use it for
> the latter, there is no consistency to what you call legal advice, and
> what you do not. When asked to discuss example of advice, your
> statements are contradictory.
More nonsense. I've given the example above at least three times in this
thread. I've never made contradictory statements about it.
>
> I think you went to a legal seminar once, and you jotted down some
> notes about not giving legal advice on the internet, but you weren't
> paying attention when "legal advice" was defined.
No, Roger. I went to law school, and then on to practice for 10 years.
You're the one who's taken a legal seminar once (maybe) and thinks he knows
the law as well or better than licensed attorneys.
>
>
Roger Schlafly
> I'm willing to accept Lee as an expert ...
> He is still not qualified to give legal advice.
Because that would be UPL if he did?
> If someone comes here and says, "I received a cease-and-desist letter
> because I'm using a product name on my website -- what should I do?", no
> non-lawyer here is qualified to provided an answer, and no licensed lawyer
> will.
Before you said only experts should give advice. Now you are saying
that only licensed lawyers are qualified to answer a question like that.
Since there are non-lawyer experts who know far more about that
question than the average lawyer, you must be referring to UPL here.
Some licensed lawyers answers questions like that. Eg, there is a
lawyer in N. Calif. who does a radio talk show and answers legal
questions of that sort.
Paul Tauger
> "Paul Tauger" <ptauger...@earthlink.net> wrote
> > I'm willing to accept Lee as an expert ...
> > He is still not qualified to give legal advice.
>
> Because that would be UPL if he did?
No, Roger -- because he lacks the experience and knowledge to advise someone
about legal problems.
>
> > If someone comes here and says, "I received a cease-and-desist letter
> > because I'm using a product name on my website -- what should I do?", no
> > non-lawyer here is qualified to provided an answer, and no licensed
lawyer
> > will.
>
> Before you said only experts should give advice.
Nope. I said only lawyers should give legal advice.
> Now you are saying
> that only licensed lawyers are qualified to answer a question like that.
That's right. Because there is more to the practice of law than just
knowing the law. Answering a question about potential trademark liability
also requires a thorough understanding of the litigation process, the costs
involved in litigating, the likelihood of success if litigated (or litigated
against),e tc.
> Since there are non-lawyer experts who know far more about that
> question than the average lawyer, you must be referring to UPL here.
No, Roger. Get off your fixation with UPL.
>
> Some licensed lawyers answers questions like that. Eg, there is a
> lawyer in N. Calif. who does a radio talk show and answers legal
> questions of that sort.
So what?
>
>
>
Isaac
wrote:
>
> should do or how they should resolve them. "Attorney/client" is a legal
> term of art for a relationship that can only exist when one of the parties
> is an attorney, which you are not.
You have a broad definition of what constitutes advising.
It's possible to post an incorrect analysis (or a correct one) without
providing advice. Even if I went so far as to say what I might do in
the same situation, even that IMO is not necessarily advice.
What I read from your statement above is that you don't believe that
to be the case. Now that's my reading, and not a box for you to live in.
I could be wrong.
> And if you think I'm equivocating about the meaning of the word advice, you
> haven't paid any attention to what I've written, several times, in this
> thread. I've been very, very clear about the kinds of things that
> constitute providing legal advice and the kinds of things which don't.
What I understand you to mean when you say advice seems to includes some
things which I agree shouldn't be done here and some things which
are completely harmless. I don't necessarily agree with Roger about
where the line is drawn, but I do agree that you draw it too conservatively.
What I mean by equivocating is this. I agree that I shouldn't be advising
anyone on legal issues. I might even be willing to agree that everything
you've suggest to be inappropriate could be loosely labeled as advice.
But I wouldn't agree that that everything that could be loosely labeled as
advice is inappropriate.
I think that's basically the point Rahul is making as well.
> I don't know what you do, and I'm not going back through Google to see what
> you have done. I know that a couple of people in this ng have attempted to
> advise people about legal issues. That's not discussing hypothetical
> situations or, for that matter, "real" legal questions. It's posing as an
> expert and offering legal advise, though totally unqualified to do so.
I didn't think Barry posed as an expert. Perhaps he did recommend a course
of action. It's not clear to me that he did so. But he clearly indicated
that his opinion was based on something he'd heard from an unnamed source.
I can't think of many ways to appear less like an expert. Giving incorrect
advice would be one such way.
>
>> I generally
>> do my best to point out the limitations in my expertise, lack of knowledge
>> of enough facts, and that listening to non-lawyers is not wise.
>
> Then why give advise if you KNOW that anyone listenting to it would be
> unwise?
>
I think I stated exactly why I respond to such posters. I don't give advice.
I don't feel obligated to help or to refrain from discussing an interesting
topic simply because the poster has some other interest other than discussion.
Most likely my posts are of no help to the person asking the question. But
so what? Lots of threads diverge away from the purpose of the original
poster.
> You haven't posted "hyposthese concerning [my] position." You've made up
> positions that I don't hold, apparently because you thought they'd be easier
> to attack. That's called a strawman argument and it's sophistry at its
> worst.
I don't spell very well I notice. I'll try to at least run ispell on
my posts.
I'll try to express myself in ways that don't come across as attacks. I
probably have crossed the line on occasion. After I hit the send key on
my last post, I had second thoughts about some of the content and tone.
I don't mean to construct strawmen. I'll try to make it more clear when
I'm guessing what you mean, and when I believe I'm sure.
While I disagree with your position, I'm still forming my own opinion.
I appreciate that with this as long as you have.
>> I'm not willing to agree that trademark cases are the same, because
>> fair use doctrine is less well developed in the trademark area.
>
> I don't care whether you're willing to agree or not -- there is most
> definitely a well-established fair use doctrine in trademark. The primary
> difference is that it's not codified in the trademark statutes (except in
> the dilution statute), the way fair use is in the copyright statutes.
> However, since fair use is an equitable doctrine, the codification is, for
> the purposes of this discussion, superflous.
I think you can come up with other differences as well. The doctrine
of fair use with respect to trademarks is analogous but the dissimilarities
are important. The analysis is going to be different even if the same
four factors are used in trademark cases.
>
> However, as I've already pointed out, you've conveniently ignored my
> citation to Air Pirates.
I didn't ignore it. In fact I brought it up before you did. The facts in
Air Pirates case are very dissimilar to those of the other cases. So it's
pretty easy to distinguish that case from the others you've cited.
For one thing, the usage of Mickey in Air Pirates seems less like parody
and more like satire. If the usage is not for the purpose of commenting
on the original, less copying is going to be allowed as fair use than for
a true parody.
For another, in a non visual medium, more copying is required to invoke the
original, and thus more copying is allowable. In a visual medium, perhaps
just a few visual cues would be enough to invoke the original, and thus
less copying is going to be considered fair. I think that was suggested
in the cite to Air Pirates in the
>
>>I think
>> we'd find significant differences in tolerance for fair use of trademarks
>> between the circuits for even non dirty parodies. '
>
> Is that what you think? Based on what? There is a difference, but not in
> the way or for the reasons that you might think.
Based on notes I remember reading on the subject that I can't come up
with right now. I'll punt trying to support this for now. I can't even
remember which circuit was singled out.
It might well have been part of a discussion of the Coca Cola case, but
I'm not sure right now.
>
>> At least one circuit
>> seems to give nearly dispositive weight to the affect on the parodied
>> work.
>
> I'm not sure what you mean by "affect on the parodied work." All circuits
> consider the four non-dispositive factors in the fair use statute, one of
> which is effect on the market for the parodied work. Is that what you
> meant?
Sort of. See below.
>
>> Perhaps that's the right thing to do for a trademark.
>
> I don't know what "that" is that you're referring to. Read the unfair
> competition statute, 15 U.S.C. 1125(a), if you want to know what is the
> right thing to do with respect to trademarks.
My comments are limited to what should be part of a fair use analysis
of a trademark.
"That" meant give greater weight to the commercial affect of the parody on
the targeted trademark than would be given in a copyright case. After all
it wouldn't be fair to allow attacks that weaken a trademark as an
identifier. But use as an identifier simply isn't a factor in a copyright
fair use analysis.
>> Clarify your position first.
>
> Sorry, my "position" is crystal clear.
>
Okay. Let's say then that it's very unclear what would constitute our bet
and what would constitute winning the bet.
I don't disagree that "dirtiness" has some affect, but I think it can
be justified based on simply using the four factor analysis. Parody isn't
a get out of jail free card, but simply something that affects some of the
factor analysis. The Supreme Court has given us some guidance on how
parody should affect the analysis even in a commercial setting.
I suppose I'm still leaning on you about your original examples, so I would
say our bet should require "dirtiness" to affect a case more like Dees than
like Air Pirates or the Coca Cola case you mentioned. But are we ever going
to agree how similar the cases have to be? I don't think we're even going
to agree on my statement of what our disagreement is. Admittedly I've
stated it fairly narrowly, and in a way the supports my winning the bet.
Isaac
Isaac
I left out some words that make my post hard to read.
>
> While I disagree with your position, I'm still forming my own opinion.
> I appreciate that with this as long as you have.
Should be "I appreciate that you've stuck with this as long as you have."
> For another, in a non visual medium, more copying is required to invoke the
> original, and thus more copying is allowable. In a visual medium, perhaps
> just a few visual cues would be enough to invoke the original, and thus
> less copying is going to be considered fair. I think that was suggested
> in the cite to Air Pirates in the
Should be "in the cite to Air Pirates in Cambell v. Acuff-Rose Music (Pretty
Woman)"
Isaac
Roger Schlafly
> What I mean by equivocating is this. I agree that I shouldn't be advising
Why not? Is it because:
1. it would be UPL, and illegal?
2. you are unlikely to have sufficient complete info?
3. you might incur liability?
4. someone might get better advice elsewhere?
5. it might be embarrassing if the advice turns out bad?
Would you feel the same about giving advice about gardening,
or some other hobby of yours?
Paul Tauger
> On Sun, 21 Jul 2002 12:34:08 -0700, Paul Tauger
<ptauger...@earthlink.net>
> wrote:
> >
> > You're not qualified to advise people with legal problems about what
they
> > should do or how they should resolve them. "Attorney/client" is a legal
> > term of art for a relationship that can only exist when one of the
parties
> > is an attorney, which you are not.
>
> You have a broad definition of what constitutes advising.
>
> It's possible to post an incorrect analysis (or a correct one) without
> providing advice. Even if I went so far as to say what I might do in
> the same situation, even that IMO is not necessarily advice.
I'm not going to argue with you over what is the meaning of advice. If
someone asks a "what should I do?" question and you provide an answer,
you've given advice. You're not in a position to advise someone on what
they should or should not do.
>
> What I read from your statement above is that you don't believe that
> to be the case.
Don't believe what should be the case? The statement you've quoted is about
what constitutes an attorney/client relationship, not what constitutes
advice.
> Now that's my reading, and not a box for you to live in.
> I could be wrong.
>
> > And if you think I'm equivocating about the meaning of the word advice,
you
> > haven't paid any attention to what I've written, several times, in this
> > thread. I've been very, very clear about the kinds of things that
> > constitute providing legal advice and the kinds of things which don't.
>
> What I understand you to mean when you say advice seems to includes some
> things which I agree shouldn't be done here and some things which
> are completely harmless.
Well, you and I disagree about what is completely harmless.
> I don't necessarily agree with Roger about
> where the line is drawn, but I do agree that you draw it too
conservatively.
>
> What I mean by equivocating is this. I agree that I shouldn't be advising
> anyone on legal issues. I might even be willing to agree that everything
> you've suggest to be inappropriate could be loosely labeled as advice.
> But I wouldn't agree that that everything that could be loosely labeled as
> advice is inappropriate.
In what kinds of situations do you think it is appropriate to give legal
advice?
>
> I think that's basically the point Rahul is making as well.
>
> > I don't know what you do, and I'm not going back through Google to see
what
> > you have done. I know that a couple of people in this ng have attempted
to
> > advise people about legal issues. That's not discussing hypothetical
> > situations or, for that matter, "real" legal questions. It's posing as
an
> > expert and offering legal advise, though totally unqualified to do so.
>
> I didn't think Barry posed as an expert. Perhaps he did recommend a
course
> of action. It's not clear to me that he did so.
It was clear to Barry -- he agreed that he had phrased his response as
advice.
> But he clearly indicated
> that his opinion was based on something he'd heard from an unnamed source.
> I can't think of many ways to appear less like an expert. Giving
incorrect
> advice would be one such way.
We're going in circles, here. The name of this ng is misc.legal.computing.
People who post here generally know the jargon of IP law. Someone who comes
to this ng looking for answers is going to defer to _anyone_ who sounds like
they no more than the poster. Whether you say your an expert or not, by
providing an answer you're implying that you're sufficiently expert to know
what that answer should be. The poster seeking answers is not going to know
whether the answer is correct or not (unless someone like me jumps in, which
is how this long and exhauting thread got started in the first place).
>
> >
> >> I generally
> >> do my best to point out the limitations in my expertise, lack of
knowledge
> >> of enough facts, and that listening to non-lawyers is not wise.
> >
> > Then why give advise if you KNOW that anyone listenting to it would be
> > unwise?
> >
>
> I think I stated exactly why I respond to such posters. I don't give
advice.
> I don't feel obligated to help or to refrain from discussing an
interesting
> topic simply because the poster has some other interest other than
discussion.
Then talk about the interesting topic in the general sense -- don't offer
advice.
>
> Most likely my posts are of no help to the person asking the question.
But
> so what?
Because your posts may be harmful to the person asking the question.
> Lots of threads diverge away from the purpose of the original
> poster.
This has nothing to do with the purpose of the poster.
>
> > You haven't posted "hyposthese concerning [my] position." You've made
up
> > positions that I don't hold, apparently because you thought they'd be
easier
> > to attack. That's called a strawman argument and it's sophistry at its
> > worst.
>
> I don't spell very well I notice. I'll try to at least run ispell on
> my posts.
I make typos. I don't bother with spell check, and it certainly doesn't
bother me if others don't bother with spell check, either.
>
> I'll try to express myself in ways that don't come across as attacks. I
> probably have crossed the line on occasion. After I hit the send key on
> my last post, I had second thoughts about some of the content and tone.
>
> I don't mean to construct strawmen. I'll try to make it more clear when
> I'm guessing what you mean, and when I believe I'm sure.
>
> While I disagree with your position, I'm still forming my own opinion.
> I appreciate that with this as long as you have.
>
> >> I'm not willing to agree that trademark cases are the same, because
> >> fair use doctrine is less well developed in the trademark area.
> >
> > I don't care whether you're willing to agree or not -- there is most
> > definitely a well-established fair use doctrine in trademark. The
primary
> > difference is that it's not codified in the trademark statutes (except
in
> > the dilution statute), the way fair use is in the copyright statutes.
> > However, since fair use is an equitable doctrine, the codification is,
for
> > the purposes of this discussion, superflous.
>
> I think you can come up with other differences as well. The doctrine
> of fair use with respect to trademarks is analogous but the
dissimilarities
> are important. The analysis is going to be different even if the same
> four factors are used in trademark cases.
The analysis isn't that different -- they're both equitable doctrine. The
differences are due to the nature of the beneficiary of the right, as well
as the fact that commercial speech is accorded less protection than "pure
speech."
>
> >
> > However, as I've already pointed out, you've conveniently ignored my
> > citation to Air Pirates.
>
>
> I didn't ignore it. In fact I brought it up before you did. The facts in
> Air Pirates case are very dissimilar to those of the other cases. So it's
> pretty easy to distinguish that case from the others you've cited.
If you've read the opinion, then you know that, notwithstanding what the
court wrote, the problem with Air Pirates was the content of their parody.
Because the court didn't want to address it directly, we're stuck with the
awkward "conjure up" test, which is extremely subjective.
>
> For one thing, the usage of Mickey in Air Pirates seems less like parody
> and more like satire. If the usage is not for the purpose of commenting
> on the original, less copying is going to be allowed as fair use than for
> a true parody.
You're right about the rule, but wrong about Air Pirates -- it was
specifically poking fun at the style and content of Disney cartoons. IIRC
(and, at this point, I'm reluctant to rely on my recollection), the court
specifically acknowledged this.
> For another, in a non visual medium, more copying is required to invoke
the
> original, and thus more copying is allowable. In a visual medium, perhaps
> just a few visual cues would be enough to invoke the original, and thus
> less copying is going to be considered fair. I think that was suggested
> in the cite to Air Pirates in the
That's what the court _said_. However, as I've indicated, the "conjure up"
test is both extremely subjective and, when you think of it, doesn't make
any sense. If you're parodying protected expression, why should you be
limited to only the bare outlines of what "conjures up" the original?
>
> >
> >>I think
> >> we'd find significant differences in tolerance for fair use of
trademarks
> >> between the circuits for even non dirty parodies. '
> >
> > Is that what you think? Based on what? There is a difference, but not
in
> > the way or for the reasons that you might think.
>
> Based on notes I remember reading on the subject that I can't come up
> with right now. I'll punt trying to support this for now. I can't even
> remember which circuit was singled out.
>
> It might well have been part of a discussion of the Coca Cola case, but
> I'm not sure right now.
I don't recall at this point exactly what was discussed in the Coca Cola
case. However, as I said, the differences in application of fair use
doctrine are related to the differences in the nature of the rights
involved, as well as the fact that commercial speech is accorded less
protection than "pure speech."
>
> >
> >> At least one circuit
> >> seems to give nearly dispositive weight to the affect on the parodied
> >> work.
> >
> > I'm not sure what you mean by "affect on the parodied work." All
circuits
> > consider the four non-dispositive factors in the fair use statute, one
of
> > which is effect on the market for the parodied work. Is that what you
> > meant?
>
> Sort of. See below.
> >
> >> Perhaps that's the right thing to do for a trademark.
> >
> > I don't know what "that" is that you're referring to. Read the unfair
> > competition statute, 15 U.S.C. 1125(a), if you want to know what is the
> > right thing to do with respect to trademarks.
>
> My comments are limited to what should be part of a fair use analysis
> of a trademark.
>
> "That" meant give greater weight to the commercial affect of the parody on
> the targeted trademark than would be given in a copyright case. After all
> it wouldn't be fair to allow attacks that weaken a trademark as an
> identifier.
What you've described is the dilution statute, 15 U.S.C. 1125(c).
> But use as an identifier simply isn't a factor in a copyright
> fair use analysis.
Right. That's part of what I meant about the intended beneficiary of the
right.
>
> >> Clarify your position first.
> >
> > Sorry, my "position" is crystal clear.
> >
>
> Okay. Let's say then that it's very unclear what would constitute our bet
> and what would constitute winning the bet.
I said that there is judicial gloss applied to parody fair use that holds
that "dirty" uses, i.e. uses that a judge doesn't approve of because the use
is immoral, as opposed to obscene (which has a distinct legal definition),
will not be found fair use.
>
> I don't disagree that "dirtiness" has some affect, but I think it can
> be justified based on simply using the four factor analysis. Parody isn't
> a get out of jail free card, but simply something that affects some of the
> factor analysis. The Supreme Court has given us some guidance on how
> parody should affect the analysis even in a commercial setting.
>
> I suppose I'm still leaning on you about your original examples, so I
would
> say our bet should require "dirtiness" to affect a case more like Dees
than
> like Air Pirates or the Coca Cola case you mentioned.
Are you kidding? Do you remember Mickey and Minnie were doing in Air
Pirates? If you don't like Cocaine/Coca Cola, how about Debbie Does Dallas?
It's been too long since I've looked at that case -- I don't recall whether
it was based on dilution or infringement. However, the outcome was, use of
the cheerleaders' uniforms in the film was injoined.
> But are we ever going
> to agree how similar the cases have to be?
I'm not sure what you mean by "how similar" cases are. Cases are always
distinguishable -- always. You never have exactly the same fact pattern.
> I don't think we're even going
> to agree on my statement of what our disagreement is. Admittedly I've
> stated it fairly narrowly, and in a way the supports my winning the bet.
I'm still not sure what you've stated. I've provided a very clear statement
of the "dirty" doctrine.
>
> Isaac
Paul Tauger
I'm actually more familiar with Air Pirates than Campbell -- I thought the
latter was a poor decision, but no one asked me.
>
> Isaac
Roger Schlafly
> We're going in circles, here. The name of this ng is
misc.legal.computing.
> People who post here generally know the jargon of IP law. Someone who
comes
> to this ng looking for answers is going to defer to _anyone_ who sounds
like
> they no more than the poster. Whether you say your an expert or not, by
> providing an answer you're implying that you're sufficiently expert to
know
> what that answer should be. The poster seeking answers is not going to
know
> whether the answer is correct or not (unless someone like me jumps in,
which
> is how this long and exhauting thread got started in the first place).
And what -- the poster is going to magically know that you are always
right about everything?
If you say an answer is incorrect, then the original poster has 2
conflicting
pieces of advice. He knows that they cannot both be correct. The messages
may be helpful and illuminating to him (and maybe not). But as long as he
is getting alternate points of view, how can there be a problem?
Isaac
> "Isaac" <is...@latveria.castledoom.org> wrote
>> What I mean by equivocating is this. I agree that I shouldn't be advising
>> anyone on legal issues. ...
>
> Why not? Is it because:
Hmm. Well that depends on what I mean by advice. I was using the word
to mean offering legal services for free or for pay.
>
> 1. it would be UPL, and illegal?
> 2. you are unlikely to have sufficient complete info?
> 3. you might incur liability?
> 4. someone might get better advice elsewhere?
> 5. it might be embarrassing if the advice turns out bad?
Point 5 isn't important to me at all. If I was worried about being
embarrassed I wouldn't post at all. I guess the other points are
my concern to varying degrees with UPL being the most important when
it's relevant.
OTOH I think it's easy to for lay persons to avoid incurring liability
and to avoid UPL issues when discussing things on usenet.
> Would you feel the same about giving advice about gardening,
> or some other hobby of yours?
When the consequences of being wrong are less, I would feel
differently. If someone asked me what to feed a guinea pig, I
wouldn't bother to tell the person that I wasn't a vet.
But if someone asked me questions about farming rather than gardening,
and I felt that someone's livelihood was at stake, I'd probably
make sure that person was aware of my urban upbringing.
Isaac
Rahul Dhesi
<ptauger...@earthlink.net> writes:
[ denying that he has failed to define "legal advice" ]
>Do a google search. I'm not doing your work for you, particularly
>when, apparently, you haven't bothered to read what I wrote and are
>much more interested in "assuming" what I mean.
I went to http://groups.google.com/ and followed the 'Advanced Search'
link. where it asked for 'with all the words' I entered 'legal advice
definition'. Where it asked for newsgroup I entered
'misc.legal.computing'. Where it asked for author, I entered 'Paul
Trauger'. I specified the date range January 1, 2002 through
July 22, 2002.
Goggle found a total of 7 hits. In those 7 matching postings, I found
one posting in which a definition was offered. The definition was:
"Legal advice" is advising someone about their course of action and/or
potential rights and remedies with respect to a specific,
non-hypothetical situation.
The above was in a posting dated TODAY, i.e., July 21, 2002 PST. If
Paul has defined "legal advice" this year in this newsgroup before
today, Google does not seem to find it when I search as described above.
--
Rahul
Roger Schlafly
> Hmm. Well that depends on what I mean by advice. I was using the word
> to mean offering legal services for free or for pay.
> > 1. it would be UPL, and illegal?
> > 2. you are unlikely to have sufficient complete info?
> > 3. you might incur liability?
> > 4. someone might get better advice elsewhere?
> > 5. it might be embarrassing if the advice turns out bad?
> Point 5 isn't important to me at all. If I was worried about being
> embarrassed I wouldn't post at all. I guess the other points are
> my concern to varying degrees with UPL being the most important when
> it's relevant.
> OTOH I think it's easy to for lay persons to avoid incurring liability
> and to avoid UPL issues when discussing things on usenet.
I think that all of these concerns are of minimal consequence.
Take the thread last month, for example, about the employee
snarfing pictures from a competitor's web site. Some people
thought that he had substantial legal exposure. I disagreed.
Then Paul got all upset that I was offering legal advice.
It baffles me how Paul could think that there was anything harmful
about that discussion. I may have been wrong. I doubt it, but
even if so, my views were adequately rebutted. The employee
did not give us the complete facts, and did not get a clean
answer. Just a bunch of opinions that left him to sort things
out for himself. Whether he got enough info to decide whether
to quit his job, I don't know. I doubt it. But he got more legal
info than he started with, and he was certainly no worse off
for getting the info.
Paul cannot seem to articulate what is bad about it. I think
that either he is just offended at non-lawyers give opinions,
or he subscribes to some fallacious UPL or liability theory.