Celebrity Baby Spread Gets Copyleft License

Who says celebrities have to be Paris Hilton's or Jane Fonda's, either too stupid or too radical to make a practical impact on the habits of ordinary people? There is a happy medium for the privacy challenged apple of the press’ eye, where their actions can influence even the contentious halls of IP licensing. The exhibit A of this phenomenon: Gwen Stefani, who, with her hubby, shunned the typical diamond soaked tabloid contract for centerfold picture spreads of her newborn. Demonstrating both a post election “maverick” streak and an unnerving knowledge of alternative licensing schemes, Stefani instead hired her own photographer and licensed the resulting photos through a Creative Commons license. No that’s not a typo. She licensed her photographs for creative sharing and limited commercial use. Gwen is more than fuel for the dance floor, she’s a copyleft progressive in pop diva clothes. That being said, she did opt for the standard issue space case rock star name for the licensed babe, Zuma Nesta Rock Rossdale. Yeah.

Lego Hits a Rainbow Colored Brick Wall

Who has not dreamed of building a life size Lego house or the life size Lego statue of oneself? If you don't raise your hand, you are either lying or you were raised by wolves. Everyone loves Lego and it has been a uniquely iconic fixture of the modern childhood. Its charm has inspired more than a few adults to realize their fantasies in bricks that come from rainbow factories.

Apparently the Court of First Instance doesn't share that enthusiasm as it upheld a 2004 decision to cancel the brick's trademark status. Essentially it has ruled that Lego cannot avail itself of trademark protection from a EU trademark registered in 1999 to prevent competition from making mock blocks. The ruling came in response to a dispute between Lego and a Canadian company, Mega Brands, which manufactures blocks that were so similar as to be compatible with Lego. This is a major event that will greatly the landscape, but only once the case is further appealed to the European Court of Justice.

Even Curmudgeon Lawyers Get Social

The near universal euphoria over social media marketing has even reached the most ad phobic professionals, lawyers. Considering the myriad ethical and professional restraints on the who, what, where, and how of legal marketing, it is both heartening and worrisome (lawyers love structural ambiguity, it keeps us contract attorneys employed) to see us venture into this realm. A Law.com article that touches on some approaches taken by lawyers thus far is here.

Breaking the Code—A Code of Ethics Emerges for Social Media Marketing

In an increasingly social media dominated world where the old “word of mouth” adage has been steroided up with the power of the net, there is a palpable sense that rules and boundaries are needed. Attempting to step into the void, the Word of Mouth Marketing Association (WOMMA) has promulgated a Code of Ethics. That code calls for openness and transparency in the relationship and identity of the parties, the primacy of communications rules, and the protection of privacy and minors. While WOMMA’s code may appear toothless at first blush, it does address certain real world social marketing conduct such as "astroturfing." That’s where a brand will have a few pose online as a mass community of men and women on the street to support its products.

WHERE SHOULD I ORGANIZE / SET UP / MARRY MY CORPORATION OR LLC?

Choosing which state in which to setup your LLC or corporation is like dating 50 people at once and being forced to marry one. As we all know, choosing a mate for life is simply an unscientific affair. And with choosing between states as opposed to mates, there is still the usual sorting through quirks annoyances and whether or not a state may simply look ugly the morning after the ceremony. Further confusing the process us the maze of state idiosyncrasies, from unique fees to unique common law and statutory frameworks.

There are however some major criteria one can use to cut through the din if confusing choices.

TAX QUIRKS
First and foremost does the state have quirky or imposing tax rules? For example some states charge special franchise fees that are either exorbitant or difficult to navigate. Sometimes the taxes are "hidden". In New York there is a little glitch when it comes to filing taxes for a LLC. The state charges a fifty dollar fee for each member of the LLC. So for an LLC that has many members you are looking at a significant fee. Even worse for an llc that has allot of passive members that came on board through some kind of private offering, it can mean thousands of dollars in tax filing fees. Hence this is a consideration for an operation that is really seeking to raise funds for deployment overseas. In that case, the LLC really doesn't have a state footprint and can elect to be formed in the more tax friendly jurisdiction.

MINORITY SHAREHOLDER’S
Another consideration is the state's approach to minority interest holders' rights. Some states such as New York actually have a separate minority shareholders doctrine to protect against abuse by the majority shareholder. The presence of this doctrine can cut both ways in terms of the parties' interests. Therefore it is another important factor to keep in mind when selecting an entity. For example one may ask whether they represent a minority investor stake or a dominant controlling or management stake when approaching this aspect of the equation. Delaware is more friendly to the majority position than NY is (which is why it is often a choice for large publicly traded corporations).

STICKING TO YOUR STATE
Another overriding question is the location, size and scope of your operation. It is generally best for small companies to organize in their home state. This is especially true where the “footprint” of the company (i.e., office and employee location, source of income, etc.) is limited to that state. Secondly, small companies often do not require complex financing and are really partnerships at heart, shrinking the allure of a Delaware state company. When organizing an entity in a foreign state (e.g., your business “footprint” is in NY but you organize an LLC in DE) you will likely have to pay redundant fees for a variety of things and negate any cost savings. For example, though NY has a costly “publication” requirement, if you form an LLC in DE and want a bank account in NY, you will have to satisfy NY’s “foreign LLC” requirements, meaning you will have to pay the publication fees anyway. Also, there tends to be greater variation between state corporation laws than between state LLC law, further negating any interstate advantage.

Knowing the Trollz’ Name—Using the Courts to Identify Online Defamers

There is no question that the final name calling frontier is the internet--the world wide web of mean. No other invention since the Gutenberg press has made it as easy to cast stones from the safety of one's own home. And on the way to work, we even twitter our slurs.

Though the enemies of good character have found the net's weapons numerous, victims have found little to no solace due to technical, geographic, and legal constraints. It is all about as fair as a gun duel at a convention for the blind and the character casualties are mounting.

Undaunted, there are those that still resort to legal action in the hope of restoring their good name. After all, it’s still illegal to make defamatory comments even if the web wizard is out of harm’s way when behind the curtain (the Communications Decency Act (“CDA”) makes web operators nearly immune from the defamatory conduct of their users). So given the near absolute in its protection of web site operators, injured parties now seek the identity of the actual defamer. Yet the law on forcing the wizard to cough up names is as fluid as the "identities" of chronic net trollz. It's all in flux and up for grabs as the lower courts wrestle with concepts that will have global implications.

The recent New York Supreme Court decision in Ottinger v. The New York Journal News (for those of you not in the know the operation state court in new York state is referred to as "supreme") illustrates just how urgent, nascent, and malleable this conversation is. There the court hashed out some basic criteria in determining whether it had the authority to order the New York Journal news newspaper which hosts the "loHUD" blog to reveal the identity of users who had posted defamatory content.

The action was styled as a complaint against Jane and John Does, since the posters were anonymous. In February, the plaintiffs served the newspaper with a subpoena seeking the identities of the posters. The newspaper responded by trying to quash the subpoena. The court noted that higher New York courts had not yet ruled on the issue (the closest instance being a 2007 case against Google which didn't reach the issue because the statements at issue were deemed not defamatory).

Not easily deterred from heeding the call of justice, the court made reference to two cases from different jurisdictions. Relying on a pair of New Jersey and Delaware state court decisions, the court engaged in an analysis to craft a solution.

The analysis was:

1. With regard to the constitutional requirement that the allegedly defamatory party must have actually intended to defame a public figure, the court held that since the identity of the poster was not yet known it would not view this as an obstacle to obtaining the party’s identity;
2. The court then examined the sufficiency of the evidence provided by the plaintiff to determine if a prima facie (that means a cause of action on its face seems valid) defamation case had been established;
3. Among other things, since the plaintiff provided the exact statement made by the two Does, the court could conclude that the statements were prima facie defamatory;
4. Based on the above, the court concluded sufficient basis exists to order the disclosure of the identities of the parties that made the statements

This is not a miracle case that will revolutionize online defamation law. However it does provide a significant boost to the victims, by leveling the playing field somewhat. Moreover, this case and its peers will bolster the further development of case law in this realm. From my perspective this is a welcome thing as the "conversation" so far has been entirely one sided in favor of the trollz.

Canada's Hit New Viral Video on Privacy and Social Networks

Star Wars Kid fatigue? Leave Britney Alone Angst? Tired of vids that are viral but not educational? For those of you who are awakening to the awakening of privacy leftists versus the Facebook's of the world, a little known button up office of the Canadian government has just the viral vid for you. Guaranteed to give you all the tools and user friendly color coded charts and graphs to make you a an online privacy professor, it is remarkably informative, interesting, and mildly disturbing--just what you want from a three minute tour de force of infotainment.

You can see the video here.