Jones Day is an international law firm (2,300+ lawyers). BlockShopper is a real estate news website.

According to the Slate story, Jones Day sued BlockShopper for trademark infringement when BlockShopper reported that two Jones Day lawyers had purchased certain real estate. The heart of Jones Day’s complaint was that Blockshopper had formatted the lawyers’ names with hyperlinks to the lawyers’ bios on the Jones Day website – a type of formatting you see everywhere online (I’m using it in the three hyperlinks above).  

Trademark infringement is when you use someone’s trademark (or something confusingly similar) to sell your own products. Jones Day argued that using the lawyers’ hyperlinked names would make people think Jones Day was associated with BlockShopper. How and why, I am at a loss to explain. Per Slate:

The idea that readers of a real estate news site would somehow be confused by links to Jones Day, on the other hand, shouldn’t have passed the straight-face test. One legal blogger proposed that the attorneys who brought the suit take ethics classes. Paul Alan Levy of Public Citizen described the lawsuit as a “new entry in the contest for ‘grossest abuse of trademark law to suppress speech the plaintiff doesn’t like.’ ” The digital rights groups Public Citizen, Electronic Frontier Foundation, Citizen Media Law Project, and Public Knowledge tried to file a friend-of-the-court brief asking for the case to be dismissed.

Blockshopper fought the law firm for a while – wracking up “six figures” (!!!) in legal bills – but settled after a federal judge denied Blockshopper’s motion for summary judgment. The settlement is even more crazy than the lawsuit. Get this:

[T]he real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting “Tiedt is an associate,” the site will write “Tiedt (http://www.jonesday.com/jtiedt/) is an associate.” (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm’s Web site.)

Talk about form over function! It changes nothing. Nothing! But it means the law firm controls how BlockShopper writes about it. What if lots of major companies dictated to news organizations the details of how hyperlinks must be formatted, with no consistent standard? It would be extremely burdensome trying to write a story while keeping all the requirements straight. I don’t think this type of restriction has a chance in court, and it’s too bad the case didn’t go all the way to a verdict. I’ll be interested to see if this sort of thing comes up again any time soon.

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Lest I be accused of copyright violation and have to raise the Fair Use defense, I’ll just admit the above compilation is an Associated Press image, and the first pic to ever appear on the USLegal Blog. Yay.

You can read all about the Fair Use defense in Wikipedia, and make up your mind. My vote is: fair use, no infringement. Will update when the case concludes.

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LATimes.com reports the Supreme Court will hear an appeal by Major League Baseball from a loss to a ”fantasy” baseball league. The for-profit fantasy league says it is just disseminating publicly available statistics (in line with First Amendment Free Speech), but MLB says that when linked to the names of players — who have a right to control their own publicity — the statistics are proprietary. The Circuit Courts are split on the issue.

[I]t could disrupt “billions of dollars” of licensing deals in pro-sports, lawyers for Major League Baseball said in their appeal to the Supreme Court. “Celebrities and athletes have enforceable publicity rights,” they argued, and the 1st Amendment has never been understood to give other companies a right “to exploit players’ identities for commercial gain.”

A lawyer for the St. Louis-based fantasy league countered that baseball and its daily box scores were available to the public. “The mere dissemination of facts or statistics is protected. And all our clients are doing is disseminating the same information that newspapers put in the sports pages every day,” said Rudolph Telscher, a lawyer who won the ruling in St. Louis.

Not so, replies Major Baseball League. The dispute involves famous names, not mere statistics, the league argues. Though the names of players such as Albert Pujols or Derek Jeter may be published or broadcast every day, “those names may not be incorporated without the famous persons’ consent primarily for commercial purposes into a product — be it a coffee mug, a poster, a board game or an Internet game — without consent,” the league said.

Washingtonpost.com reports that “Footprints in the Sand,” a famous “anonymous” religious poem, now has multiple competing claims of authorship resulting in a federal lawsuit for copyright infringement. Millions have been made printing the poem on various paraphernalia, and the newest claimant wants a piece.

At least a dozen people have insisted that the lines of “Footprints in the Sand” came to them alone, usually by divine spark, differing only by a few words here and there. The stanzas all tell a similar story: Narrator dreams he is walking on a beach with the Lord (sometimes God, sometimes Jesus). After a while, narrator turns around and sees only one set of footprints. What gives? the narrator asks the Lord — You promised You would walk with me, even in the bad times, but I see from my lone set of footprints that You weren’t there! Ah, but, the Lord replies : The single set of footprints are when I carried you through the bad times. (Cue the gulls, the gentle sound of waves and the warmth of insight.)

The only problem is one of nagging details: proof of authorship, original publication, copyright, notarization, that sort of thing. “Footprints” has been adapted into different languages, and worse, a pop song co-produced by Simon Cowell. As a sure sign of its familiarity, it has also been wickedly parodied. (”Bull-[bleep], Jesus, Those Are Obviously My Footprints,” joked an Onion headline 10 years ago.)

Finally, nysun.com has a story on Justice Scalia’s speech to a Jewish group on his views of the Establishment Clause of the First Amendment.

The justice didn’t make any radical departures from positions he has taken on the high bench, echoing language in his dissent in a 2005 case involving the displays of the Ten Commandments that two counties in Kentucky had installed in their courthouses. But his remarks appeared intended to inspirit and encourage the largest grass roots organization of fervently religious Jews in America, an organization that is engaged in the constitutional debate in the country on such issues as gay marriage, parochial schools, and civil rights for religious individuals.

Justice Scalia began speech last night, as he did his dissent in the Kentucky case, McCreary County v ACLU, by recalling President Bush’s valediction in a speech delivered shortly after the terrorist attacks of September 11, 2001: “God bless America.” Such a statement, Justice Scalia said, would be “absolutely forbidden” in many countries in Europe. Justice Scalia was in Rome at the time of the attacks, attending a conference of judges and lawyers.

Speaking last night, Justice Scalia cautioned the audience against being “so quick to believe” that the Jeffersonian principle of separation between church and state is represented by the “type of separation found in Europe.” Justice Scalia noted approvingly that in America the Supreme Court has upheld tax exemptions for houses of worship as well as the constitutionality of allowing ministers to open legislative hearings with a prayer.

I thought “the power to tax is the power to destroy” and it follows that tax exemptions for churches are allowed, indeed demanded, by the Free Exercise clause of the First Amendment (rather than by a “traditionally proper bending” of the Establishment Clause as Scalia implies), but I’m not a supreme court justice. Yet.

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A Slate.com article turned me on to hacking Apple’s iPhone last night, wherein the legalities and technicalities were discussed. Why would you? See the third paragraph below. Here are some highlights, but the real point of this post is further down.

Part of the copyright code, Section 1201 of the famous Digital Millennium Copyright Act of 1998, makes it illegal to break digital locks to get at copyrighted works. But that doesn’t make unlockers criminals. The reason is an explicit exemption for personal unlocking issued by the librarian of Congress in 2006. As the librarian wrote, the locks “are used by wireless carriers to limit the ability of subscribers to switch to other carriers, a business decision that has nothing whatsoever to do with the interests protected by copyright.”

…

Even with good instructions, activating and unlocking your iPhone isn’t very easy. It’s a cinch for a supergeek, but for regular humans without technical superpowers, the experience is more like, say, scuba diving: If you do everything right, you’ll be fine, but you really don’t want to make a mistake. … During the “jailbreak” phase of the activation process, you stare at an image of prison bars for two minutes. This is not reassuring. At the penultimate stage, you need to trust your iPhone to an entity named “Cyberduck.”

… 

The good news is that my iPhone works flawlessly. With my existing T-Mobile account, I get 1,300 more minutes of talk time than I would have received from AT&T [the only option in the iPhone factory set-up] for a comparably priced plan; I also now have a phone that I can take to Asia and Europe. I avoided a $200 termination fee, AT&T’s activation fee, and having to wait for AT&T to port my existing number.

What made my week was reading the documented chronology of the insurgent engineering assault on the restrictive aspects of the iPhone following its release. This is really brilliant, and you must read it:

The Complete iPhone Unlock Star Wars Timeline.

Q: Isn’t that illegal?

A: No, we don’t live within the US, there are a lot free countries that allow you to break or modify stuff on your own.

You’re welcome.

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On a philosophically related note, acclaimed band Radiohead is letting people decide on the price of its latest CD. $0 is apparently an option! Download “In Rainbows” for whatever you want to shell out, starting October 10, here. Revolutionary idea.

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