Our mission is to expose and remedy corruption in the Probate Court of Cook County, Illinois. We assist, educate and enlighten families of the dead, the dying, the disabled and the aged to better understand their rights in order to protect themselves from the excesses of the Probate Court of Cook County. ProbateSharks.com is dedicated to networking the human element of people to people. We join together in reforming the corrupt Cook County Probate Court system.
Is the rise of eDiscovery and the proliferation of relevant social networks getting you down? Not as much as it’s bugging federal judges who have to make decisions about the admissibility of posts on Woo Woo while they’re still struggling to figure out a Speak and Spell.
That may be a bit of an exaggeration, but not much, according to the Southern District of New York’s Judge Shira Scheindlin, one of the more tech-savvy judges in the federal system. Judge Scheindlin told the Big Law Business Summit on VCR tape that “[a]ll of us over 60 are getting nervous. But the rules have changed and require attorneys to be competent in technology.”
Judge Scheindlin could only think of one group with less technological knowhow than federal trial judges: “I can tell you that appellate judges know nothing about it.”
Burn.
Check out the whole video below:
Editor's note: This Shark recalls that many of the unethical, illegal and repulsive conduct stated below were reported to the IARDC regarding the estate of Alice R. Gore, a 99 year old disabled ward of the Probate Court of Cook County. The IARDC action...nothing! The thieves were protected. Lucius Verenus, Schoolmaster, ProbateSharks.com
The Florida Supreme Court disciplined 7 South Florida attorneys in recent actions brought by The Florida Bar. The actions: •Herbert Wingfield Biggs, of Jupiter, was suspended for one year, effective 30 days from a Nov. 20 court order. Biggs failed to supervise a non-lawyer with whom he had a business relationship. When Biggs was absent from his law office, handling matters in Nevada, the non-lawyer, a convicted felon, solicited business, accepted funds from clients, used Biggs' letterhead and forged the attorney's signature. Further, Biggs shall pay restitution of more than $53,000 to two clients. •James Whitcomb J. Carpenter, of Fort Lauderdale, was suspended for 90 days, effective Dec. 23, after modification of the Dec. 4 court order. Further, Carpenter shall attend ethics school and comply with other conditions. After the death of his stepfather, Carpenter initially failed to correctly identify all of the potential beneficiaries to the probate court.
•Michael Ralph Casey, of Oakland Park, was disbarred following a Nov. 21 court order. Casey is accused of defrauding hundreds of investors worldwide out of approximately $20 million. In September 2012, he was charged in federal court, with conspiracy to commit mail and wire fraud. On April 29, Casey failed to appear for a court hearing and a bench warrant was issued for his arrest by the U.S. District Court, Southern District of Florida. The FBI Wanted poster indicates that Casey "should be considered armed and dangerous." •Robert James Julia, of Miami Lakes, was suspended for six months, effective 30 days from a Nov. 20 court order. Further, Julia shall pay restitution of $3,000 to one client. Julia engaged in improper business dealings with a long-time family friend. As a result of him taking a tax loss that was attributable to the investor, Julia received tax benefits to which he has not entitled. •S. Tracy Long, of Delray Beach, was suspended for one year, effective 30 days from a Nov. 20 court order. Long shall also pay restitution totaling $11,500 to three clients. In one instance, Long hired non-lawyers to provide paralegal services and market foreclosure defense and loan modification and shared fees with them. In another case, Long was retained to help clients with a foreclosure matter. They continued to pay him, believing that he was working on saving the home. The clients were subsequently forced to vacate the premises. •Louis Randolf Townsend Jr., of West Palm Beach, was suspended for 91 days, effective 30 days from a Dec. 17 court order. Townsend was found in contempt for practicing law while suspended. •Stuart Barry Yanofsky, of Plantation, is to be publicly reprimanded following a Nov. 14 court order. Yanofsky was found in contempt for failing to respond to Florida Bar inquiries in a timely manner.
Shaun Bevan is the digital producer for the South Florida Business Journal. Stay on top of the latest business news with our free daily newsletter. Click here to subscribe.
Editor's note: The Probate Court of Cook County lawyers don't have to bilk their own firms...they bilk the helpless wards of the court. Lucius Verenus, Schoolmaster, ProbateSharks.com Mayer Brown’s Former CIO Charged With Defrauding the Firm Out of a Whole Bunch of Money By Christopher Danzig
In a time when many law firms are relatively less stable than their employees would like, it’s definitely not good to hear about a Biglaw executive allegedly defrauding his firm out of hundreds of thousands of dollars.
But such is the world we live in. So let’s get to it: which former executive at Chicago-based Mayer Brown is facing pretty egregious fraud charges?
It’s the former chief information officer, David Tresch, who stands accused of defrauding the company out of nearly a million dollars. From the Chicago Tribune:
A former executive at Mayer Brown was arrested Thursday on federal charges that he allegedly defrauded the Chicago law firm of at least $850,000.
David Tresch, 51, of Itasca was Mayer Brown’s former chief information officer. He allegedly approved payments to a vendor for work that had not been performed and pocketed hundreds of thousands of dollars from that vendor, according to the U.S. attorney’s office in Chicago.
FBI agents seized Thursday approximately $210,000 in bank accounts controlled by Tresch, as well as a camping trailer, a van, and a luxury automobile.
Tresch was released on a $100,000 partially-secured bond.
Ohhh boy. This does not look good. It’s kind of like a weird variation of that scene in Michael Clayton: We’re not the guys you steal from. We’re the guys who fight in court for a living! Are you so f**king blind that you don’t even see what we are?
Biglaw attorneys work hard for their bucks. I imagine Mayer Brown partners are steaming mad about this. But at least it sounds like they are on top of the situation.
According to the Tribune, Tresch was fired in June “following an internal investigation” after working at Mayer Brown since 2004. When he was terminated, the firm also turned the case over to federal prosecutors.
Apparently the firm asked Tresch to stop using the unnamed IT vendor early last year due to cost cutting measures, but Tresch allegedly continued approving invoices and collecting checks anyway.
Well, at least we know he’s got the cash for a decent defense attorney. Former Mayer Brown CIO arrested on fraud charge [Chicago Tribune]
Editor's note: Your ProbateShark finds it interesting that within the ProbateShark.com blog there is a link to a special older newsletter authored by an attorney. This newsletter and its video describe the complete technique of "Elder Cleansing". Lucius Verenus, Schoolmaster, ProbateSharks.com
Ever since December 9, 2002, when I launched my first blog, MyShingle.com, I’ve extolled the virtues of blogging for lawyers all over the Internet, every chance I’d get. Way back in 2003, before the term “blog” entered the vernacular, I created a comprehensive presentation on the 13 benefits of blogging (in blog format, naturally) that’s largely still relevant today. I also published dozens of articles and blog posts about blogging, spoke about blogging, and produced a short video on blogging as the centerpiece of social media campaign. My blogging has lead to a couple of clients and many professional opportunities; most recently, a blog post that I penned right here at ATL earned me a twenty-second spot on the Daily Show. Heck, I’ve even been sued for blogging!
Yet in spite of my love affair blogging, these days, I no longer believe as ardently as I once did that solo and small firm lawyers should take up blogging to market their practice or to show what they know to prospective clients. Sure, there are exceptions. For lawyers who’ve already taken up blogging in law school or who have a unique viewpoint about practice area that they yearn to share, starting a blog is a no-brainer. Likewise, blogging makes sense if writing about the challenges of practicing law or handling particular types of cases offers a pleasurable release from the stress. If mind and computer keyboard operate as a seamless unit, with thoughts effortlessly transforming into cogent and compelling prose, then blogging makes sense as well.
But let’s face it: most lawyers aren’t built that way….
The reality is that most lawyers, particularly those just out of school, are strapped for time or still learning the craft and the pressure to write even more after a tough day at the office is really the last thing they want to do. At the same time, having been led to believe by persistent marketers that blogging is the end all and be all, many lawyers waste thousands of dollars a year on pallid, SEO-laden, canned, ghost-written blog content that does little to generate web traffic or clients. Other lawyers start a blog with the best of intentions, only to have it wither and die on the vine just a few months later.
It’s not just lawyers’ schedules that stand in the way of blogging success. There’s also substantially more online content competing for consumer attention than ever before – though the number of potential clients reading blogs hasn’t increased in the same proportions. And while large firms have the manpower, in the form of associates and paralegals, to keep churning out blog content, most solos simply don’t have the resources to compete. The confluence of all of these factors means that there’s less ROI (return on investment) from blogging — at least in its current form — than ever before.
That’s not to say that solos and smalls should give up on content marketing. Instead, they need to seek out a more effective way to disseminate content. And in my view, that’s the e-newsletter — a newsletter that’s distributed entirely by email. Here’s six reasons why. 1. More Depth, Less Frequency
Although I write endless blog posts (this one being Exhibit A), many web readers lack the attention for a 2,000-word blog posts. Yet often, short posts result in over-simplification of issues that can be misleading for consumer clients and not particularly useful for a more sophisticated business audience. Newsletters allow more flexibility for longer articles, since readers are more likely to print out or save newsletters than blog posts. On the other hand, newsletters don’t demand the same consistency as blog posts. If you start a blog and only write every month or two, chances are, you’ll lose most of the audience. By contrast, lawyers can send just 2-3 newsletters a year and retain the same level of readership. 2. Ability to Build Contact Lists
Because blogs are publicly posted, they’re available to anyone who happens by. Trouble is, even if a blog receives hundreds of visitors daily, that’s useless from a marketing perspective if a lawyer doesn’t know who those readers are and has no way of contacting them. An e-newsletter enables lawyers to build the all-important contact list. Each time a user registers for the newsletter, or you add a contact with their permission, you build a valuable contact list that you can use to promote law firm events or offer new services such as business audits or a free consultation.
A blog simply isn’t as effective for this purpose. If you blog erratically, chances are no one will see any of your announcements, and if you have a substantial following, you may wind up giving away benefits to a far larger audience than anticipated. Contact lists are the lifeblood of law firm business marketing. E-newsletters help build them. Blogs don’t. 3. Ability to Share Higher Quality and Personal Content
For all the talk about free sharing of information, no one wants to — or should, for that matter — put out valuable content with nothing in return. Certainly, when lawyers blog, they want to write in enough detail to demonstrate command of a practice area. But let’s face it, no one wants to publicly post a step-by-step game plan for handling a case that every other competitor law firm can pick up and use for its own benefit. By putting quality information into a newsletter, you have more control over where it’s disseminated. In addition, many times lawyers want to share tidbits of personal information about hobbies or even photos of their family or pets — but may feel uncomfortable doing so publicly on a blog. By contrast, if you choose to share this information in a newsletter, it won’t be available to the entire Internet (unless of course, as discussed below, you decide to post the newsletter publicly). 4. More Likely To Attract Readers
Perhaps it’s anecdotal, but even when I blogged regularly on energy regulatory topics, I had few readers. It wasn’t the content; rather, it’s just that most of my target audience — small energy developers and entrepreneurs, corporate utility counsel and large firm lawyers — generally keep up to date on developments through one or two paid news services and rarely if ever read blogs. When I finally understood my potential clients’ reading preferences, I decided to launch an e-newsletter, which generated far better feedback than my blogs ever had. For example, I noticed through the tracking tool that at least half of the subscribers were opening the newsletter and clicking on the article. In addition, at least every issue of the newsletter generates one or two complimentary emails from readers or acknowledgements during conversations at industry events. So for me, e-newsletters have been far more effective in reaching my target audience in my energy practice than blogging — though your mileage may vary, of course. 5. Cheaper and Easier to Set Up
It’s not difficult to set up a blog using out-of-the-box platforms like WordPress or Tumblr or Blogger — but it can be tough to actually make your blog look decent. By contrast, most newsletter templates like Mail Chimp or Constant Contact are easier to create and personalize. Plus, MailChimp offers a free service so you can experiment without commitment. 6. Best of Both Worlds
Understandably, some lawyers may be reluctant to focus their efforts on e-newsletters instead of increasing online visibility through blogging and SEO. But with e-newsletters, you don’t have to choose. Once you’ve issued a newsletter, you can re-circulate it either through a blog (if you choose to maintain one) or post it on JD Supra (as I do here or here). You can also generate links to newsletter content and disseminate them on Twitter or Facebook. As you introduce more readers to your newsletter through other sources, they may decide to subscribe as well.
Interested in getting started on your own e-newsletter? For added inspiration, check out this collection of solo and small firm newsletters that I’ve gathered — and feel free to drop me a line if you’d like to add your own. And feel free to add your comments to the blogging versus e-newsletter marketing smackdown below.
P.S. Speaking of newsletters, you can sign up for ATL’s various newsletters here. Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.com since 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at elefant@myshingle.com or follow her on Twitter at @carolynelefant.
In our post yesterday about Judge Alex Kozinski’s horrifically bad ruling in favor of Cindy Garcia, an actress who briefly appeared in the infamous YouTube video “Innocence of Muslims,” we also mentioned the astounding gag order that Kozinski placed on Google/YouTube, saying that the company was simply not allowed to tell the world that the video had been ordered censored by a court for at least a week. However, the gag order is so crazy that it seemed worth a second post. It already appears to be a classic First Amendment violation to order Google to take down all copies of the video (and prevent new ones from being uploaded), but Kozinski seems to double the First Amendment problems with that gag order.
Yes, certain court rulings are kept under seal for some period of time, but here’s a case where a key video of public interest and discussion was not only being censored, but where the company being ordered to censor the video couldn’t even tell anyone what happened for nearly a week. The order to pull down the video came on February 19th, and it was only revealed on the 26th. It now comes out that Google’s lawyers went reasonably ballistic over the gag order. Google’s fullmotion seeking an emergency stay highlights just how insane both the takedown and the gag orders are.
A temporary stay is particularly warranted here because the panel’s order amounts to a dramatic, and highly unusual, intrusion on Google’s First Amendment and due process rights. It requires Google to remove a film from public display — a classic incursion on the First Amendment — without even telling Google why, and without any opinion explaining the rationale. The panel took this extraordinary step in an order that it placed under seal, making it difficult (to say the least) for Google to explain to the world why it is removing the Film from the public eye. And, last but not least, the Order imposes a restraint on Google that is broader than anything Ms. Garcia has even requested. Ms. Garcia asked only that the five seconds of footage in which she appeared be removed from Google’s websites. See Reply Br. 5 (“Ms. Garcia seeks only to enjoin the unauthorized posting of her own performance.”). The Order, by contrast, requires that the entire film be taken down, and that Google block anyone from uploading it in the future. The Order also appears to extend to copies of the Film that were not identified in any takedown demand by Ms. Garcia. See 17 U.S.C. 512(c), (j). There is no possible justification for such an order. The vast bulk of the Film has nothing to do with Ms. Garcia, and she asserts no copyright claim over it. This is, in short, a stunning order, both as a matter of substance and procedure. And to make matters worse, it is difficult for the Defendants to even understand how to fully comply with the Order, given the variety of copies of the Film now available on the Internet and the variety of platforms operated by Google. The Order’s uncertain scope only adds to the urgency of a temporary stay. The Film is not defined with reference to any URL, upload date, or any other meaningful description. A search for “Innocence of Muslims” on YouTube returns over 58,000 results as of this filing, many of which could well contain commentary, news stories, and other works that merely contain some or all of the original video. Google and YouTube will, of course, try to comply with the Order forthwith, but strongly believe the Order should be stayed so that this Court can consider the issues.
The filing goes on to point out that the gag order is clearly illegal:
In addition, the Order unjustifiably gags the defendants from publicly discussing the Order itself, and denies the public access to judicial documents. Under this Court’s case law, when it comes to this Court’s records, “ ‘a strong presumption in favor of access’ is the starting point.” … In order to withhold documents from public view, the court “must ‘base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.’ ” The Court’s order did none of those things before directing it be kept from the public docket. For this reason, too, the Order harms Google and the public and should be vacated.
It also points out that it’s preposterous to order all such videos (again broadly described) be taken down within 24 hours, given that the film has been online for nearly two years, and keeping it up for a short while longer is hardly going to increase any level of harm (though interfering with First Amendment rights does create harm). It further notes that even Garcia’s own lawyers didn’t ask for a 24 hours turnaround time on blocking videos.
The whole thing is quite incredible when you think about it. First, ordering the prior restraint of the video is a clear First Amendment violation. But to add a gag order to that doubles the problems. Here’s a judge who’s not only ordering a result that violates the First Amendment, but is then compounding the problems by violating the First Amendment in blocking anyone from talking about the First Amendment violation in the first place.
As we mentioned in the original post, we’re still perplexed at Kozinski’s reasoning on all of this (and I’ve yet to see a single lawyer I know have anything positive to say about the ruling or the gag order). As we’ve said in the past, generally speaking, Judge Kozinski is one of the more interestingjudges out there, and I tend to agree with his rulings more often than not. However, as we pointed out a few years ago, it seems like one serious blind spot for Judge Kozinski is his dislike of the internet and willingness to blame tech companies for actions of users on the internet. In covering a speech he gave in 2011 concerning Section 230 of the CDA (which provides liability protections for internet companies based on actions of their users), we noted:
It turns out that Kozinski is a bit of a closet luddite. When it was pointed out that many of the wonderful things online are probably only there because of safe harbors like Section 230, he pushed back. He pointed out that the internet really isn’t that great, and if he had the option of flipping a switch to turn it off, he’s not entirely convinced that he would leave it on. He said he’s just not sure it’s really done that much good, and that we might be better off without it. [...]Kozinski did point out that many people don’t realize what it’s like to be the subject of an anonymous internet attack, and people might feel differently if they were. Now, to be fair, Kozinski has been subject to just such attacks, including a highly publicized situation a few years ago in which an anonymous Kozinski-hater got a bunch of attention directed at Kozinski, after discovering that Kozinski had (sloppily) stored a bunch of jokey viral content on a server that he failed to secure, which got twisted into a claim that he had “obscene” content, leading to a rash ofmisleading press coverage, and an investigation (which eventually cleared him of any wrong doing).
While the issue here is slightly different, both in context and in statute, Kozinski has shown in the past that he’s skeptical of the internet, and appears to overreact to attacks based on things on the internet. That may suggest how he got to the point where such a twisted ruling made sense. However, even if we grant that, it’s still impossible to see how it could then possibly make sense to gag Google from explaining why it had taken down such a high profile video.
The full video is available on the next page…
Editor's note: Your ProbateShark suggests that the IARDC et al, including Mr. Larkin should attend this conference. Lucius Verenus, Schoolmaster, ProbateSharks.com
Then you should attend Above the Law’s inaugural Attorney@Blog conference. One of the nation’s preeminent First Amendment litigators, Floyd Abrams of Cahill Gordon, will deliver opening remarks. And then I will moderate a panel on free speech online, featuring the following distinguished panelists:
Marc Randazza of the Randazza Legal Group, a leading First Amendment lawyer — he has represented ATL in various matters — and editor of the the Legal Satyricon;
Nabiha Syed of Levine Sullivan Koch & Schulz, recently recognized by Forbes as “one of the best emerging free speech lawyers,” for her work representing such clients as the New York Times and The Guardian U.S. (of WikiLeaks fame); and
The panel will discuss emerging free speech issues and offer practical advice on how to avoid legal pitfalls online. If you’re a media lawyer, a journalist, a blogger, or just someone interested in these topics, you should definitely attend.
For more information and for tickets to the conference, please click here. The conference includes lunch and CLE credits (including coveted ethics credits). We hope to see you on March 14! Attorney@Blog Conference [Above the Law]
Editor's note: Your ProbateShark suggests that you click onAndrew Mancilla, Esq.A most interesting post... Lucius Verenus, Schoolmaster, ProbateSharks.com
* Wal-Mart may recall loads of donkey meat from their stores. Not because they sold donkey meat — they intended to do that — but because there was fox meat mixed in. What does the Fox Say? Nothing, because it was ground into donkey meat. The end. [MSN Money]
* Of course Colorado got rid of mile marker 420. But it’s not because they don’t like weed — it’s legal there, after all — check out the real reason. [Lowering the Bar]
* Judges are reading briefs on iPads now? Here’s how you write a brief for a judge who has an app for “law.” [Columbia Business Law Review] * A listing of this lawyer’s previous representations. In the words of our tipster: “Don’t know what’s worse: Courtney Love or the Gambino crime family.” [Andrew Mancilla, Esq.]
* The Ninth Circuit gave the go-ahead for about 60,000 tech workers to sue Google, Apple, and other companies for artificially driving down wages by agreeing not to poach each others’ employees. Hey, give these folks some love, not every one of them is going to go start a new video game company. [Reuters]
* A lot of Cuban-American families in Miami blow a lot of money on quinceañeras. Here’s a way to recoup some funds: throw a completely innocent party and wait for the cops to come by and commit police brutality. This guy netted $90,000 that way. [Miami New Times]
John Yoo, who famously wrote the legal rationale for allowing the US government to torture people, has already defended the NSA’s activities, arguing that it takes too long for the NSA to obey the Constitution, so it shouldn’t have to. Given that, it was hardly a surprise to see his reaction to the recent ruling saying that the NSA’s bulk metadata collection program was likely unconstitutional and should be stopped. Yoo is… not a fan of this ruling. In fact, he uses it to rail against judges daring to make any determination about whether or not something violates the 4th Amendment. According to him (and only him) that’s the job of Congress, not the courts….
In fact, I do not think that this is fundamentally the job of judges. It may be time to reconceive the rules of search and seizure in light of new Internet technologies — but that is the responsibility of our elected representatives. Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the last people to fairly claim they have their fingers on the pulse of the American people. Only our elected representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack. Judges are far too insulated and lack the expertise to make effective judgments on national-security and foreign affairs. The president and Congress must take up their duty and work out the rules to govern surveillance to protect the nation’s security, and when they don’t, it is left up to the branch least capable of doing so, the judiciary.
There seems to be no basis for this other than that Yoo believes it to be the case. Courts have always had the role of determining whether or not the actions were unconstitutional. The idea that only “national security” and “foreign affairs” insiders can determine the rules is a recipe for massive regulatory capture by surveillance extremists like Yoo.
Yoo is also embarrassingly misstating Judge Leon’s ruling. He insists that, despite pages of detailed reasoning, Leon cannot claim that the outdated ruling in Maryland v. Smith doesn’t apply here:
Judge Leon cannot claim that the reasoning of Smith does not cover the telephone metadata at issue here, because the data collected are exactly the same as the kind held unprotected in Smith. Leon’s decision instead argues that technology has changed so much that Smith is no longer good law.
That’s clearly not what Judge Leon ruled, and Yoo is being blatantly intellectually dishonest here. Leon noted that Smith covered a very specific legal question, and the legal question here is different. And part of the difference in the question involves collecting a single piece of information on a single person, as opposed to collecting all information on everyone and continuing to collect that information forever. As Judge Leon rightly noted, that’s an entirely different issue than was tackled in Smith. That’s not saying Smith itself is no longer good law (though it isn’t), but rather that the situations are vastly different. I can’t see how anyone can reasonably argue otherwise. Collecting a single piece of information on a single person is incredibly different than hoovering up all information on everyone.
It’s no surprise to see the NSA’s loudest apologists grasping at straws over all of this, but, really they might want to give it a rest for a bit, because their arguments are looking more and more desperate and less and less intelligent. Author Of Torture Memo Says Judges Are Too Out Of Touch To Determine If NSA Violated The 4th Amendment More Law-Related Stories From Techdirt: Pitch Perfect Satire: NSA Intercepted Children’s Letters To Santa FCC Finally Starts Process To Dump NFL Blackouts TSA Courts Next Generation Of Groping Victims With Cartoons And Coloring Pages
Lindsay Lohan, everyone’s favorite train-wreck, sure seems to come up in the world of intellectual property an awful lot. I’m not sure if this is because she has some over-inflated sense of entitlement, or if she’s just the devil-incarnate here to entertain me personally, but she’s gotten angry about being mocked in music, angry about a talking baby being named Lindsay (and being a “milkaholic”), and angry at the invention of the video camera for showing her stealing stuff that didn’t belong to her.
But now reports are that she’s looking to step up her game by going after Grand Theft Auto 5over their portrayal of her, except that (as with the E-Trade babies) it wasn’t a portrayal of her at all. Let’s take her reported claims to her lawyers in order:
– The video game cover shows a woman holding a cellphone who looks Lindsay-ish. There’s been debate over whether it looks more like Kate Upton or Shelby Welinder.
No, there’s no debate. Shelby Welinder was hired by Rockstar Games to serve as the game cover’s woman. Next.
– Part of the game features a mission where a Lindsay Lohan look-alike asks the player to take her home and escape the paparazzi.
If you’ve played the game, and I have, and you played the paparazzi missions and thought, “holy balls, they’re making fun of Lindsay Lohan!”, then you need severe psychiatric care. The character in question, Lacey Jonas, is an obvious composite character. The closest thing to referencing Lohan is that Lacey Jonas is famous and once starred in a “cheerleader competition” movie. Sounds like Lohan, except that all the other facts about the character don’t and the character doesn’t look like Lohan, which sort of kills the whole “they stole my likeness” claim. As does claiming you were also used for a completely different character.
Another part of the game shows another Lindsay-like character at a hotel resembling the Chateau Marmont hotel in West Hollywood — a place Lindsay not only frequents but once lived at — and the mission is to photograph her having sex on camera.
I’m always amazed when lawyers send clearly bogus DMCA notices. It shouldn’t be hard to figure out that doing so ends badly. I’m doubly surprised, however, when it comes from big companies that should know better. And, I’m quadruple surprised when one of these companies that should know better sends a completely bogus DMCA notice to a company that absolutely understands why the notice is bogus, and is also in a position to make the world know all about a company’s bogus DMCA notice. That’s what we have here. You see, this morning, Office Depot decided to send a DMCA to Reddit.
Yes, to Reddit….
Now, yes, it’s possible that someone posted copyrighted material to Reddit, for which a DMCA could possibly be appropriate. But this isn’t one of those cases. The complaint is about this r/circlejerk post by heisenberg69 from seven months ago. I imagine that post isn’t going anywhere, but just in case it is, I’ve also embedded the screenshot that Office Depot helpfully included with the DMCA notice to Reddit. As you can see, heisenberg69 posted a link to this imgur image of not-quite a swastika over the Office Depot logo. We’ll repost it here for you to see:
Of course, as the first comment points out, this isn’t even a swastika. It’s a sauwastika, the Buddhist symbol for peace. Basically, it’s a backwards swastika. Either way, let’s count the many, many, many ways in which this DMCA notice is bogus.
This is not copyright infringement. At all. Office Depot’s Corporate Counsel Jared Namm appears to admit this at the very beginning of his DMCA notice. While he first says it “violates the copyrights and trademarks of Office Depot,” at no point does he explain what copyright is violated, because he can’t. He later points only to “the Office Depot trademark.” But, you cannot use a DMCA for trademark. It is only for copyright. Pretending to use a DMCA claim for a trademark claim is an abuse of the DMCA.
Even if you look at the trademark issue, this is not a trademark issue. Making use of a logo in this manner is in no way an infringement on Office Depot’s trademark. There is no “use in commerce.” There is no likelihood of confusion. And there are many, many, many cases where simply parodying or mocking a logo of a company has been found to be non-infringing. Nazi-izing someone’s logo for the purpose of mocking the company is not infringement.
This is not copyright infringement, part two. After trying out the bogus trademark claim, Office Depot’s Namm claims that the posting is in violation of Reddit’s terms of service. Even if this were true, that’s not a reason to send a DMCA notice.
This is not a violation of Reddit’s terms of service. Again, even if you could send a DMCA based on a violation of the terms of service, this is not a violation of the terms of service. Office Depot argues that this is “defamatory, abusive, harassing, racist, hateful or violent.” I guess you could try to make an argument for “hateful,” but it’s difficult to see how that reaches the level of a terms of service violation.
Merely mocking a company such as Office Depot for having Nazi-like attributes is not hate speech. It may not make much sense, but that’s not how it works. It’s even more ridiculous when you realize this isn’t even a swastika. Amazingly, even Office Depot admits this in the DMCA letter, which Namm adds as if it’s a helpful tidbit:
A little history on the symbol as well: this particular design is not Nazi related but the original Sauwastika (facing left) vs. the Nazi Germany alteration (facing right). The left facing has been a symbol in Hindu/Buddhist art/texts that predate the Nazi usage by centuries. While this does not dismiss the use of the symbol in conjunction with our logo, in reviewing the posts it appears there is confusion on the symbol, but heisenberg69′s posting of the symbol over the Office Depot logo associates Office Depot with Nazi Germany.
So, Office Depot admits this isn’t a Nazi symbol, and sends a screenshot in which the top comment, with the most votes on the thread, is pointing out that this isn’t a Nazi symbol… and then still says this posting associates Office Depot with Nazis.
Jared Namm swore “under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.” Yet, despite mentioning copyright, nowhere does he name an actual copyright that’s been infringed, because there hasn’t been one. While he may be able to skate out from under perjury by arguing that the second half of that penalty of perjury clause was “owner of an exclusive right,” again no trademark law has been infringed and you can’t use the DMCA for trademark anyway. It’s not wise to swear under penalty of perjury to something that is almost certainly not true.
The image is not hosted on Reddit. But on Imgur. Which is a different company.
Oh yeah, and this was a Reddit r/circlejerk post from 7 months ago that didn’t get that much attention then and has all but disappeared from view entirely. And now, due entirely to the absolutely stupid decision by either Office Depot Corporate Counsel Jared Namm, or someone above him in management who told him to do this and who failed to heed any suggestion that this was (a) not infringement and (b) a monumentally stupid move, he went ahead and sent this notice, practically guaranteeing that the post and the image would suddenly get renewed life and attention.
And, finally, sending a totally bogus DMCA notice to Reddit? Reddit, who as a community was perhaps the most instrumental community in bringing down SOPA, has no love for bogus copyright claims. Remember, Reddit is the community who organized the massive GoDaddy boycott that got GoDaddy to back down from its support of SOPA (and to eventually turn over almost its entire management team). Poking Reddit with a bogus DMCA stick for what appears to be no reason at all just doesn’t seem smart at all.
Incredibly, Jared Namm’s LinkedIn profile claims that he advises Office Depot on a variety of intellectual property and social media initiatives. I would imagine that picking a bogus fight with Reddit is not exactly the wisest of “social media” strategies.
The DMCA Notification and Reddit thread at issue on the next page…
One technique in the world of pharma that has started appearinghere on Techdirt is “evergreening” — making small changes to a drug, often about to come off patent, in order to gain a new patent that extends its manufacturer’s control over it. The advantages for pharma companies are evident, but what about the public? What economic impact does evergreening have?
That’s what a fascinating new paper in the open access journal PLoS Medicine seeks to establish:
The researchers identified prescriptions of eight follow-on drugs issued by hospital and community pharmacists in Geneva between 2000 and 2008. To analyze the impact of evergreening strategies on healthcare spending, they calculated the market share score (an indicator of market competitiveness) for all prescriptions of the originally patented (brand) drug, the follow-on drug, and generic versions of the drug. The researchers then used hospital and community databases to analyze the costs of replacing brand and/or follow-on drugs with a corresponding generic drug (when available) under three scenarios (1) replacing all brand drug prescriptions, (2) replacing all follow-on drug prescriptions, and (3) replacing both follow-on and brand prescriptions.
And here’s what they found:
Using these methods, the researchers found that over the study period, the number of patients receiving either a brand or follow-on drug increased from 56,686 patients in 2001 to 131,193 patients in 2008. The total cost for all studied drugs was €171.5 million, of which €103.2 million was for brand drugs, €41.1 million was for follow-on drugs, and €27.2 million was for generic drugs. Based on scenario 1 (all brand drugs being replaced by generics) and scenario 2 (all follow-on drugs being replaced by generics), over the study period, the healthcare system could have saved €15.9 million and €14.4 million in extra costs, respectively. The researchers also found some evidence that hospital prescribing patterns (through a restrictive drug formulary [RDF]) influenced prescribing in the community: over the study period, the influence of hospital prescription patterns on the community resulted in an extra cost of €503,600 (mainly attributable to two drugs, esomeprazole and escitalopram). However, this influence also resulted in some savings because of a generic drug listed in the hospital formulary: use of the generic version of the drug cetirizine resulted in savings of €7,700.
Obviously, this is just one study, in one area, although on the plus side it involves quite a long time period, and many patients. Despite its limitations, it nonetheless offers a useful first analysis of the economic impact of evergreening drugs. It’s certainly an aspect of drug prescription that hospitals and doctors need to consider. As the study concludes:
Evergreening strategies have been successful in maintaining market share in Geneva, offsetting competition by generics and cost containment policies. Hospitals may be contributing to increased overall healthcare costs by listing follow-on drugs in their RDF. Therefore, healthcare providers and policy makers should be aware of the impact of evergreening strategies.
What Mr. [Richard] Trenk did was so egregiously sloppy that I’m told his name is entering the legal lexicon: “To Trenk” means “to show a lackadaisical attitude toward the law, with catastrophic results for the client.” A usage example might be: “We were doing great until the lawyer missed the filing deadline and Trenked the whole case.”
(What else happened at the meeting? I attended, and it was a hot mess, jam-packed with shouting and even tears. Read on to get the juicy details….)
When public comments were opened, residents of West Orange stepped up the podium, repeatedly, to denounce Richard Trenk’s actions taken on behalf of the town. One fellow noted that a friend of his, a lawyer from France, had called him about the cease-and-desist letter. He then went on to state that “this kind of behavior … is the MO of the town attorney.” He concluded by letting the Town Council know that he thought it was “time for Richard Trenk to hit the road.”
Other townspeople used phrases like “national embarrassment” to describe the situation the Town Council had put West Orange into after attorney Stephen Kaplitt’s response to Trenk’s C&D letter went viral. Truth be told, the sh*t really hit the fan after Freivald delivered his comments.
Here’s Council President Victor Cirilo defending Trenk’s cease-and-desist letter:
My favorite outburst: “Where did you get your law degree? All of a sudden you’re an attorney?”
The best part, hands down, was when Cirilo admitted that he wasn’t sure if Trenk’s “poorly researched [and] poorly written” letter had any legal basis or not, and was then asked why he was defending it publicly if that was the case. Shortly thereafter, Councilman Joe Krakoviak broke down in tears, telling the audience that it was the worst town council meeting he’d ever watched or been a part of.
It was definitely a night to remember, and it’s probably fair to say that Richard Trenk won’t be getting his contract renewed as town attorney. Sorry, but sh*t happens when shoddy legal work goes viral. (Flip to the next page to see the epic response to Trenk’s cease-and-desist letter, in case you missed it last week — or want to enjoy it again….)
In a time when many law firms are relatively less stable than their employees would like, it’s definitely not good to hear about a 
Ever since December 9, 2002, when I launched my first blog, 
In 
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* Wal-Mart may recall loads of donkey meat from their stores. Not because they sold donkey meat — they intended to do that — but because there was fox meat mixed in. What does the 
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Lindsay Lohan, everyone’s favorite train-wreck, sure seems to come up in the world of intellectual property an awful lot. I’m not sure if this is because she has some over-inflated sense of entitlement, or if she’s just the devil-incarnate here to entertain me personally, but she’s gotten angry about being 
I’m always amazed when lawyers send clearly bogus DMCA notices. It shouldn’t be hard to figure out that doing so ends badly. I’m doubly surprised, however, when it comes from big companies that should know better. And, I’m quadruple surprised when one of these companies that should know better sends a completely bogus DMCA notice to a company that absolutely understands why the notice is bogus, and is also in a position to make the world know all about a company’s bogus DMCA notice. That’s what we have here. You see, this morning, Office Depot decided to 
One technique in the world of pharma that has started 
What Mr.