Defamation in the Era of Fake News

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When I was a kid there were three major television networks and a relatively limited number of print publications. A great deal of capital was needed to become one of the few voices in mass media.

Now, in the Internet era, anyone with a computer and an Internet connection can be a publisher. This has democratized media, for better or for worse. The better part – lower barriers to entry for speakers – has been offset by, shall we say, degraded standards for accuracy and journalistic integrity. Witness the current dialogue over “fake news.”

With the proliferation of speakers has come a proliferation of people claiming that they have been defamed. read more

Supreme Court Slightly Smooths Difficult Path for Copyright Plaintiffs in Kirtsaeng

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I’ve had the pleasure of representing both plaintiffs and defendants in copyright cases.  See https://spillaneplc.com/ten-year-old-perfect-10-v-ccbill-decision-withstands-test-of-time/  The intake conversation varies dramatically, however, depending on which side of a case I am asked to represent, because of the court’s discretion to award attorneys’ fees to the prevailing party in a copyright case.  17 USC § 505.

On the defense side, I have represented companies with significant operating capital.  Having been sued, unless there is an immediate settlement available they have no choice but to appear and defend the case.  While the risk of paying not only damages but attorneys’ fees to a prevailing plaintiff is an important consideration, this would not have been catastrophic to my clients.  read more

You Just Lost The Trial, or Did You? Motions During and After Trial Can Reverse a Bad Result

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I have tried numerous business cases with a fine record of success.  Trials are, however, an uncertain process, and if one tries enough cases, the most skilled trial lawyer will eventually lose a jury verdict.

When a trial lawyer hears an adverse verdict in court, should s/he walk away, shoulders slumped, counting for vindication on the power of an appellate brief due many months hence?  No.  A trial lawyer’s efforts to reverse an adverse jury verdict begins while the jury is still standing in the jury box.

The first question one must ask, seconds after hearing an adverse verdict, is whether the verdict is ambiguous or contradictory.  read more

The Fading Enforceability of Passive Browsewrap Agreements

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Recently Dick’s Sporting Goods, Barnes & Noble and Proflowers.com have been on the losing side of court cases that involve enforcement of their websites’ terms of use. In each case, the defendants relied unsuccessfully on so-called “browsewrap” agreements, where a website’s terms and conditions of use are generally posted on the website via hyperlink.

The “wrap” moniker came from the brick and mortar notion that if a consumer tore open the shrink wrap on a tangible good, this constituted assent to the terms of sale printed somewhere in the packaging.  Online retailers picked up this notion by relying on “clickwrap” agreements, where consumers must check a box on a web page saying “I agree” before they can complete a transaction.  read more

Rights of Publicity Often Collide with First Amendment

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In law school we all learned about the “four privacy rights” in first year torts class: (1) intrusion into plaintiff’s private affairs; (2) public disclosure of embarrassing private facts; (3) publicity that places plaintiff in a false light; and (4) appropriation of the plaintiff’s name or likeness.

The reason that these are called rights of “privacy” is that they all serve the value of being left alone in a society where technology multiplies the risk of intrusion into our solitude and dignity.

The fourth right, appropriation of name or likeness, alone among the four privacy rights has taken on a twin character.  read more