EFF, CloudFlare Asks Court Not to Force the Internet to Enforce Trademarks
eff.org
eff.org
E.g.
> Often this order is initially drafted by the entertainment companies.
Courts usually require parties making a motion for some relief to submit a proposed order that has the desired effect. It saves time and makes it clear to the court exactly what the party is asking it to do.
The article also uses the phrase "secret order" like a million times. Obviously they're not secret because links are posted right in the article. What they're talking about is a (temporarily) sealed temporary restraining order.
15 USC 1116(d)(8) states: "An order under this subsection, together with the supporting documents, shall be sealed until the person against whom the order is directed has an opportunity to contest such order, except that any person against whom such order is issued shall have access to such order and supporting documents after the seizure has been carried out."
If you read two provisions before that, 15 USC 1116(d)(6), you find why the order is sealed: "The court shall take appropriate action to protect the person against whom an order under this subsection is directed from publicity, by or at the behest of the plaintiff, about such order and any seizure under such order."
Same here too, Hacker News is not invulnerable to the same tactic. To think otherwise is foolish.
But does it imply misleading?
When speaking to an audience receptive to logical argument, use the most effective possible logical argument and evidence. When speaking to an audience moved primarily by emotion (outrage, pity, righteousness, take your pick), use the most effective possible appeal to those emotions. When you can do both, do both. Find the argumentative tactic that works with your audience and use it.
"CloudFlare makes websites faster and more secure, but can’t suspend a site’s domain name or render it unreachable."
Obviously it can render a site unreachable (at least as long as the site is using cloudflare DNS servers) which is the point.
http://foo.com/some/content //blocked
http://foo.com/download/content?id=baz //blocked
It's a huge technical challenge to block this content in compliance with the law as it stands... let alone to expect companies to proactively block potentially infringing content... even Google doesn't do very well at this and they have far more resources than most.
I don't follow the complaint here. What the article said was correct then, right? And if the EFF feels it's bad that media companies are drafting the orders (setting aside whether they're right nor not), why not mention it?
Lawyers know that submitting a proposed order is routine (not just for injunctions, but almost any motion), and that the judge will strike or rewrite anything he or she does not agree with. But when you phrase it the way the article does--that the media companies get to write the order (as if everyone else doesn't)--that falsely implies special treatment and influence.
The court doesn't want you to say "this code is dumb, it should sort numbers better."
The court does want you to say "here is how the code should sort numbers: <diff.txt>" And the opposing side can critique your diff.txt.
If you cannot arrange your thoughts sufficiently to get into the second format, you do not belong in the courtroom yet.
Suppose you get in a dispute with someone. You got to court asking that the court order the other person to stop doing something, or to hand over the money they owe you, or do whatever it is you think they should do that made you sue them. The judge will tell your lawyer to draft the order that you (the client) would like the judge to sign. How do you think the defenedant will feel about this if you win the case? 'OMG it was so unfair, the order was actually written by fenomas' lawyer and all the judge did was rubber-stamp it, what has our justice system come to etc. etc. etc.'...unless the dispute goes int eh defendant's favor in which case you'll probably say the same thing about the defendant's lawyer writing the motion that the judge signed off on.
This is the normal operation of our adversarial legal system. the EFF should be using their position to educate people about that and then explaining where they disagree with the merits of the media companies' arguments, instead of pretending that there is some sort of procedural sleight-of-hand going on. After all, when the EFF goes to court the EFF's lawyers submit the motions that they would like the judges to sign, just like in any other dispute.
except for the fact that there is sleight of and going on, the MAFFIA get ex parte rulings all the time, this is not "adversarial" this is the court system bending to the will of large corporations.
The MAFFIA believes it alone should be the sole arbitrator of who is allowed and not allowed to post content to the Internet, and the courts have been more than willing to cede this power to them with rubber stamp orders.
They've been doing that a lot in recent years, and the more they do it the lower my support gets. They're implicitly lying to their strongest supporters, and there are enough attorneys on the staff that I wonder why this is considered an acceptable way to communicate with the public. Arguments like this would rightly be derided if the other side advanced them in a legal filing, why are they being foisted on the public?
Occasionally I hear people stalking 'the court of public opinion' having different rules from the law courts. Fuck that bullshit, if you'll excuse my language. The EFF is ain a great position to educate people on how the law actually functions and why cases are so intricate and drag on for so long, but they choose not to. It disturbs me.
Incidentally, in another of Wikileaks' public interest projects, consider pledging some cash to uncover TPP @ https://wikileaks.org/pledge/
[1] Business context, not domain name. So "computers", or "food".
Perhaps you can see where I am going here.
What is the legal basis for this?
"Grooveshark" is long and unique, but by this principle, could King.com shut down every domain that contains the word "candy"?
You can quickly lose a trademark if you don't actively defend it (weird, considering patents and copyrights) so companies quickly get over zealous.
That said... For reasons that defy explanation, courts have been known to uphold trademark protections for common words ("Windows") even though trademark law explicitly forbids trademarks on common language words and phrases.
[0] https://en.m.wikipedia.org/wiki/Microsoft_vs._MikeRoweSoft
It's oft repeated but not true AFAICT. Genericisation can be a problem, but another company using something as a trademark for a distinct type of good/service won't make your mark more generic. You lose a registered trademark by not paying your renewal fee.
If you wanted to codify someone else's use then you could grant them a license, you don't have to sue them or start infringement proceedings or whatever. You're free to ignore one infringement and pursue another.
This is like saying you have to prosecute every person who steps on your land or you lose the right to prosecute trespassers; if you allow a right of way to be established then yes that's probably not going to help you. But you're allowed to let someone in to your garden and you're allowed not to sue people who make incidental incursions.
> What is the legal basis for this?
I wonder about that too. The court is ordering CloudFlare to disrupt the businesses of companies not party to the suit, who have likely not been notified and may have been found to be not infringing if they were in court.
GPL relies on copyright completely, if it didn't exist, I would guess the FSF would come up with some alternative like basing contribution/releases/disclosure/etc around contract law.
There's an almost visceral opposition to IP protection among some factions on HN; but imagine if every time you start a company, a competitor instantly starts using your name. Imagine if every piece of content you create is instantly cloned by a competitor. You'd never be able to succeed because you'd have no way to differentiate yourself from the other company of the exact same name doing the exact same thing as you using your exact code and selling to your customers using your information. It's kind of like a world with absolutely zero friction.
I'm sorry to say this, but the Apple scenario you've set out isn't always going to be true. There's a thing called "Reverse Confusion" which says effectively (in my non-lawery words):
Why should some tiny wee company stop the well established brand reputation of a larger company? Big company has so much goodwill and reputation under this mark (from overseas or something like that), they should be able to use it.
On the face of it, it doesn't make much sense, but there's case law around it. If you're worried about something like that, definitely talk to a lawyer. Obviously this depends entirely on where you live and your local laws, but this case has come up in New Zealand very recently (I think it might still be being tried) with Uber. The taxi company were still able to use their trade mark, even though someone already had a mark in a vaguely similar domain before Uber were even around.
here's the first link I found on it if you wanted to read up about it more.
http://definitions.uslegal.com/r/reverse-confusion-trademark...
The first user [the smaller company] is virtually always the prevailing party in any trademark litigation.
The doctrine of reverse confusion is intended to enable small, senior users to protect their trademark rights against junior users whose marks have gained commercial strength through extensive marketing.
reverse confusion can be a powerful weapon in the arsenal of lesser known companies in terms of protecting their trademark rights and as leverage against larger users.
Looks like US treats reverse confusion as if it were simply direct confusion. I'm pretty sure that's not the case where I live.
The consumer-protection aspect of trademark (preventing deceptive goods) is clearly not what this is about. It is using a thin layer of trademark veneer to force this into an already-rejected legal hole.
I think the error in the case is really determining that CF are in active concert with Grooveshark. Like EFF say, it shifts the obligation to determine infringement on to the wrong person. Even the proposed solution (having a record company notify CF regarding infringement) is flawed. CF are still in the position of either a) automatically complying or b) expending resources determining whether it is appropriate to take down, leaving you in a similar position to previously.
It might sound stupid, but they would at least have to learn a little bit about the internet before they made their next move.
With any luck, they'll think it's their own fault.