Orin blogged about this below, linking to Ben Sheffner’s analysis at Copyrights & Campaigns. I agree with Sheffner that the lawsuit (see the Complaint) is a loser. In part, it’s even downright frivolous:
1. The false light invasion of privacy claim is frivolous because the Florida Supreme Court has expressly and recently held that no such claim is recognized under Florida law (which is the law that would govern this dispute). I would think that this would be an occasion for Rule 11 sanctions against the plaintiff, though I defer on that to others who are experienced in federal civil litigation.
2. The invasion of privacy claim is a loser because (among other things) the First Amendment protects the right to reveal public records such as arrest reports. That’s true even when the arrest report contains the name of a rape victim; it would be equally true when it contains the name of the accused, even if the accused turns out to be innocent (as Prof. Jones claims he is). It’s also possible, as Sheffner points out, that 47 U.S.C. § 230 protects Above The Law because David Lat just posted something that was passed along by someone else (see Batzel v. Smith (9th Cir.)), but it’s not completely certain that the Eleventh Circuit will take this view; nonetheless, Above The Law doesn’t need this immunity, because it’s protected by the First Amendment and likely by the built-in limitations of state tort law.
3. The copyright claim, based on use of Prof. Jones’ picture, seems to be a likely loser because it’s highly unlikely that Jones owns the copyright in the picture — the complaint says that the picture was “stolen from the UM website without permission,” and in my experience such photos are generally taken by the school or an independent photographer, and the copyrights remain with the school or the photographer. But even if Prof. Jones has acquired the copyright in the photograph, it seems very likely that its use in the blog post is fair use.
Anderson says:
On the bright side, Prof. Jones has made sure that thousands of people like myself, who never knew he’d been arrested for paying a putative putain, now know all about it.
He should amend his complaint to sue himself.
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November 3, 2009, 12:51 pmcirby says:
Sounds like a good use of the famous “plaintiff is a doofus” defense...
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November 3, 2009, 1:06 pmlawyer who read the complaint says:
Having read the complaint, I have to ask: is it even possible for a tenured professor of law to write like that? If a new lawyer turned in that complaint to a partner, his job could be instantly over.
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November 3, 2009, 1:09 pmCurious says:
“Plaintiff demands a trial by jury on all issue that are friable”
Barrack Obama.
Really? Tenured professor? Probably dictated, never read.
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November 3, 2009, 1:18 pmDMagnum says:
The 11th Circuit interprets the Copyright Act as requiring an actual copyright registration as a matter of subject matter jurisdiction before a copyright infringement suit may be filed. I see no evidence that the professor has actually filed for or received a copyright registration on this photograph.
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November 3, 2009, 1:28 pmSteve says:
Perhaps the University of Miami Law School will be adding Orly Taitz to the faculty soon.
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November 3, 2009, 1:32 pmEric S. says:
From the complaint:
“Driving a Mercedes in the wrong part of town.”
RACIST!
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November 3, 2009, 1:37 pmkrs says:
“Curious,” maybe the professor doesn’t know that the death penalty isn’t available in civil suits.
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November 3, 2009, 1:38 pmtvk says:
Besides which, the photograph would need to be registered as a prerequisite to a civil copyright infringement claim, and I highly doubt it has.
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November 3, 2009, 1:48 pmJasonF says:
This complaint should be tossed out on its ear, but you need to do a lot worse than simply plead a non-existent cause of action — even one that has been specifically and explicitly disavowed by the state Supreme Court — before any judge I’ve ever seen will award Rule 11 sanctions.
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November 3, 2009, 2:08 pmChad says:
Professor Jones’ faculty bio describes him as ‘public intellectual’.
In certain cultures ‘public house’ is a synonym for bordello, unlike the better known British ‘pub’.
Can the term ‘public intellectual’ also connote a connection to prostitution?
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November 3, 2009, 2:18 pmqns says:
Between “friable” and “Barrack”, it seems most likely that this was fed through spellcheck without looking to see if the corrections made sense.
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November 3, 2009, 2:20 pmTamerlane says:
It would be amusing to offer Professor Jones a chance to defend himself on this blog. Please, Professor Volokh! Pretty please with sugar and spice!
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November 3, 2009, 2:23 pmmamiejane says:
Actually, the copyright claim might be a winner but not for Professor Jones. If every new use were a fair use, photographers would have no income at all.
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November 3, 2009, 2:26 pmDudeman says:
Curious:
Really? Tenured professor? Probably dictated, never read.
I believe that makes it even worse. Knowing this complaint would be a “blog topic” should have made the esteemed professor even more careful as to what was contained therein.
Any bets as to whether he will avail himself of the Rule 11 “safe harbor?”
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November 3, 2009, 2:27 pmlawyer who read the complaint says:
Having spent a lot of my career dictating, I find “dictated, never read” to be extremely implausible. Do you mean that he dictated a federal complaint and had it formatted and filed by someone else without ever seeing it? (That’s the typical case with “dictated but not read,” where an admin or secretary takes the dictation, formats it, and sends it out.) Or that he dictated it and formatted it, but never reviewed for content typos, and so on?
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November 3, 2009, 2:41 pmMike McDougal says:
That complaint is horrible. What an embarrassment to his school.
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November 3, 2009, 2:42 pmCDU says:
So, how long until he sues Scribd for defaming him by hosting a copy of his embarrassingly bad complaint?
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November 3, 2009, 3:21 pmThe Volokh Conspiracy » Blog Archive » Law Professor Seeks Clearly Unconstitutional Injunction says:
[...] also wanted to note that in his lawsuit against Above The Law, Prof. Jones seeks a clearly unconstitutional remedy: “Enjoining Abovethelaw to remove all [...]
Ted says:
Putting aside the legal issues, the quality of that complaint is abysmal. I am astounded that this man managed to become a law professor.
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November 3, 2009, 3:25 pmohwilleke says:
The argument that New York law rather than Florida law should apply is a strong one.
But, New York is also an unfavorable forum. New York has abolished both false light and public disclosure of private facts torts, and has a one year statute of limitations for defamation (Above the Law made four posts, three more than two years before the suit was filed, one a couple days less than two years before the suit was filed; Florida’s statute of limitations for defamation is two years, for public disclosure of private facts the statute of limitations is four years).
The strongest claim is probably commercial appropriation of likeness (recognized in both New York and Florida) but that isn’t plead, doesn’t carry $22 million in damages, and could still be subject to a fair use defense similar to the defense applicable to a copyright claim.
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November 3, 2009, 4:03 pmBen P says:
I would assume the former.
We really have two potential options for the complaint being in the state that it is:
1. Jones wrote the complaint himself and is personally responsible for the poor quality. Therefore he is either a poor writer, or is sufficiently lazy that he doesn’t care about the grammar in his complaint.
2. Jones dictated the complaint, and it was written and filed by someone else. (Typically this would be a legal secretary or assistant of some sort).
I’m familiar with a number of lawyers that do the second for many more minor pleadings, giving the document only a cursory look when they sign it. But this is also typically accompanied by a certain level of trust or familiarity with ones assistant that they’re aware of the necessity for properly written pleadings and know how to write.
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November 3, 2009, 4:31 pmChiara Brown says:
It’s unfortunate that Above the Law likes to “have fun” with people’s lives in that way. Having had someone close to me wrongly accused of a career-ending crime, and seeing his face plastered everywhere with lots of bloggers “having fun” at his expense — even after the charges were dropped and the false accusers and incompetent, biased police reprimanded by the judge — I understand the professor’s desire for revenge.
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November 3, 2009, 4:50 pmwfjag says:
Amazing that all of you Law Professors and practicing attorneys fail to recognize a Clean Air Act violation allegation when you see one. When your case stinks so badly, blame it on the beans.
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November 3, 2009, 5:00 pmDavid Schwartz says:
Is there somewhere the Professor explains his side of the incident? That is, is there someplace he explains what interaction he had with the officer and how it lead to his arrest. Or does he dispute that he was arrested, even though the incident report says he was?
We get that he wasn’t charged with, or even precisely accused, of an actual crime. But that’s not the question. The question is what circumstances led the police to file the incident report they did. For example, did the police make up the $20 figure? Or did that come from somewhere?
If he’s trying to clear his name, it would help a lot if he told his side of the story. We get that there are defects in the other side.
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November 3, 2009, 5:04 pmMore Importantly... says:
I predict this plaintiff will go down harder and faster than a $20 whore.
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November 3, 2009, 5:04 pmFlair Trade says:
This complaint should be easily 12(b)(6)ed (if memory serves) since Jones fails to plead personal jurisdiction and (on the copyright claim) he didn’t even allege that he was the owner of the picture in question.
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November 3, 2009, 5:14 pmGoat Scape says:
Putting aside the legal issues, the quality of that complaint is abysmal. I am astounded that this man managed to become a law professor.
He became a law professor the same way he was admitted to law school–via an “affirmative action” quota. Being admitted, and hired, because the school sought “diversity,” rather than competence is the very simple rationale. And if you look at the array of articles he’s written on various forms of victimization, you have a pretty fair picture of what he’s about.
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November 3, 2009, 5:42 pmDoug says:
Yes, but the good Professor has dredged this all back up in a very poorly thought out and written way.
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November 3, 2009, 5:54 pmHow a Smart Person Can Look Stupid « Tim Nuccio’s Blog says:
[...] coverage. We have already added new links from the ABA Journal, the WSJ Law Blog, and the Volokh Conspiracy, among other [...]
Tim says:
The best part is that it’s not even just the arguments he makes that are horrible. It’s written at a level that I wouldn’t even allow on my blog, and it’s full of grammatical errors. What a moron.
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November 3, 2009, 6:20 pmuberVU - social comments says:
Social comments and analytics for this post...
This post was mentioned on Twitter by bensheffner: Eugene Volokh on law professor’s suit vs. “Above the Law”: it’s “a loser...downright frivolous”: http://bit.ly/2xSGdL...
A. says:
mamiejane, please provide an example of a use of a photograph that you would consider fair use.
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November 3, 2009, 9:22 pmJ. says:
Professor Jones was most assuredly charged with a crime and appeared in court for it. He agreed to take a Pretrial Diversion plea, where he had to attend a few classes and pay court costs and a fine. Upon completion of the program, the charges were dropped and his record was eligible to be expunged.
That complaint is an outright fabrication. The A-form speaks for itself.
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November 3, 2009, 10:31 pmUM Law prof sues Above the Law « Florida Media Lawyer says:
[...] leave the legal analysis to the many folks who already have done a superb job of hitting the highlights. You can find a copy of the [...]
Above the Law(Suit) « Siouxsie Law says:
[...] See, e.g, New York Personal Injury Law Blog; The Business Insider; Copyrights and Campaigns Blog; the Volokh Conspiracy; andMenage A [...]
More on Prof. Jones’s suit against Above the Law says:
[...] Volokh, a preeminent free speech analyst, weighs in on the complaint and is anything but complimentary. Above the Law itself collects links here, and [...]
Tweets that mention The Volokh Conspiracy » Blog Archive » Prof. Donald Jones’ Lawsuit Against Above The Law -- Topsy.com says:
[...] This post was mentioned on Twitter by Ben Sheffner and Moshe Glickman, RickHorowitz. RickHorowitz said: RT @mglickman: Prof. Donald Jones’ Lawsuit Against Above The Law http://ff.im/-aVV7c [...]
PeteP says:
Didn’t this guy lose a pair of pants at the dry cleaners a while back ?
WOW ! He’s an actual LAW PROFESSOR ??? At an actual law school ? This is how / what he teaches students who want to become LAWYERS ???
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November 4, 2009, 12:56 pmBlog Sued for $22 Million | KEYTLaw says:
[...] Blog Sued for $22 Million By Richard Keyt, on November 3rd, 2009 Above the Law: “For the first time in over three years of operation, Above the Law has been sued. We feel the lawsuit has no merit, but we will not comment further on this ongoing litigation.” See the complaint. Law professor Eugene Volokh takes a dim view of the plaintiff’s case in ”Prof. Donald Jones’ Lawsuit Against Above The Law.” [...]
Christopher Cooke says:
I agree that the claims in the complaint are poorly pleaded and subject to dismissal, but I am not sure the lawsuit is frivolous. For example, I think Professor Jones might have an action for defamation, commercial misappropriation of his likeness and unfair competition (I don’t know about Florida law on these points). These are not the claims he pled, but are related to them. So, I would dismiss with leave to amend.
The copyright issue turns on ownership. I had a client whose picture was taken from his employer’s website and used to ridicule him in internet posts. We got the employer to authorize a take down notice to the website, which worked. Fair use is a mushy defense and would depend on the context. If Above the Law is seeking, as the professor alleges, to use his photo and blog posts to steer buyers away from his books and to its website and its publications/competitor products, that might impact whether Above the Law is making fair use of his photo (which is likely owned by the university).
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November 4, 2009, 4:13 pmChristopher Cooke says:
Jones voluntarily dismissed his lawsuit. Also, I neglected to note that claims for defamation, etc., may well be barred by the statute of limitations, and, having read the Above the Law posts, I am not sure that there were any actionable defamatory remarks on Above the Law’s site. So, all is likely well that ends well.
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November 4, 2009, 5:29 pmDavid Nieporent says:
I fail to see how a lawsuit is not frivolous if all of its claims are meritless merely because different claims would not be meritless. (Even if I agreed with you about the merit of those different claims, which I do not.)
It might, except that’s a ludicrous claim. Obviously all commercial media publications are, in a sense, attempting to use their content to drive the public to their advertisers. But it’s ridiculous to claim that — except via ridicule, which is not a copyright-related argument — AtL is trying to steer buyers away from his books.
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November 5, 2009, 5:59 amChristopher Cooke says:
David: probably the truth would not help the good Professor anyway, so he really had no case.
Obviously, if he was arrested for solicitation because he did in fact offer an undercover police officer, posing as a female prostitute, $20 to engage in a sexual act, and then pleaded no contest to this charge, and received pre-trial diversion and later, an expungement (note: I am repeating others’ allegations, of which I course do not have any knowledge, I do not know if these allegations are true), then I do not see anything untruthful or defamatory in any of the ATL postings or anything actionable. If, on the other hand, he was arrested because the police officer “jumped the gun” and assumed he was soliciting sex, when he was just asking for directions, etc. (his story), then there could be a claim of some sort for defamation and misappropriation/use of commercial likeness, barring some statute of limitations problems. Repeating false allegations of criminal conduct is defamation per se. Using someone’s likeness/photo without his permisssion to sell ads/drive internet traffic, can also give rise to tort liability. Yes, there would be an interesting issue about “public figure” and what standard applies, but ATL is not immune anymore than any print newspaper would be immune, from defamation liability.
The photo doesn’t belong to him so he can’t bring a copyright claim. My only point about fair use is that it is frequently, but improperly, invoked as a defense and it is hard to obtain a dismissal at the pleadings stage if the attorney pleading the copyright infringement claim has half a brain.
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November 5, 2009, 12:29 pmLaw Professor (?!?) Claims Copyright Infringement Because Blog Uses Faculty Photo In Blog Post [Update] « ThisGlobe.com says:
[...] in fact, drop the charges and expunge the record. Jones makes a few different claims against ATL, all of which seem frivolous and unlikely to stand, but the most ridiculous of all is the claim that his copyright was violated [...]
Accident Attorney Advice.com » Above the Law Sued By Law Prof (And How It Should All End) says:
[...] Prof. Donald Jones’ Lawsuit Against Above The Law (Eugene Volokh @ Volokh Conspiracy) [...]
Arrest Public Records – Latest Arrest Public Records news – The Volokh Conspiracy » Blog Archive » Prof. Donald Jones’ Lawsuit … says:
[...] The Volokh Conspiracy » Blog Archive » Prof. Donald Jones’ Lawsuit … [...]