From Lenz v. Universal Music Corp. (N.D. Cal. Feb. 25, 2010), “Stephanie Lenz’s lawsuit against Universal Music over the ‘Let’s Go Crazy’ dancing baby takedown” (emphasis added):
Plaintiff Stephanie Lenz (“Lenz”) moves for partial summary judgment … with regard to six affirmative defenses asserted by Defendants Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group ….On July 24, 2007, Lenz filed suit against Universal alleging misrepresentation pursuant to 17 U.S.C. § 512(f) …. She also sought a judicial declaration that she did not infringe on Universal’s copyrights….
Universal … argues [as a defense to Lenz's lawsuit] that there are triable issues of fact as to whether Lenz has “prosecuted in good faith the assertion that she has been damaged” by Universal’s alleged violation of § 512(f). This argument is based on four separate contentions…. [The fourth is] that an email exchange between Lenz and one of her friends shows that Lenz does not believe that she was injured substantially and irreparably by the takedown notice. In the exchange, Lenz responds to her friend’s comment that the friend “love[s] how [Lenz has] been injured ‘substantially and irreparably’ ;-)” by writing “I have ;-).” The (“;-)”) symbol, according to Lenz, is a “winky” emoticon which signifies something along the lines of “just kidding.”
At her deposition, Lenz testified that she believed her friend’s use of the emoticon “was kind of a reference back to [the] lawyerese” of the “substantially and irreparbly harmed” language and that her use of the emoticon was “a reply to the wink that [her friend] used.” Lenz maintains that the fact that she “believes that lawyers sometimes use stilted language is not evidence of bad faith.” …
Universal’s proffered evidence is insufficient to establish that Lenz acted in bad faith in claiming injury as a result of the takedown notice. Further, given the state of the law on damages under the statute and the unfamiliarity of lay people with statutory language, no reasonable jury could find that Lenz’s allegations of “substantial and irreparable injury” are the kind of unconscionable acts against which the defenses of bad faith and unclean hands are intended to guard. This is not to say Universal has no recourse. If Universal believes that Lenz or her counsel have engaged in litigation misconduct that warrants sanctions, it may raise that issue by motion….
Mike McDougal says:
Just try to do a text search for ;-) in Westlaw or Lexis.
March 4, 2010, 6:54 pmOff Kilter says:
:->
March 4, 2010, 7:05 pmAnonsters says:
I prefer :D, myself.
March 4, 2010, 7:17 pmSteve says:
I very much doubt that Universal expected to win the emoticon argument, but that’s the kind of document you want to make sure the judge sees whether you have a good reason or not.
March 4, 2010, 7:35 pmTNeloms says:
The legal issues surrounding emoticons are one thing, but the grammatical issues are much more important: http://xkcd.com/541/.
I’m surprised EV hasn’t taken this on, given his interest in language and writing styles.
March 4, 2010, 7:50 pmBC says:
I’ve taken a liking to XD, personally. XD
March 4, 2010, 8:35 pmjcm says:
Unless the jury is made of 12 angry Sheldon Copper , they will understand sarcasm
March 4, 2010, 8:39 pmBob from Ohio says:
I don’t know anything about the merits but I sure hope Lenz loses. Anyone who actually uses a “winky” emoticon deserves to lose and pay much, much in the way of attorney fees.
We abandoned hieroglyphs about 5000 years ago. No need to revisit them.
March 4, 2010, 9:00 pmSoronel Haetir says:
At least hieroglyphs are phonetic, emoticons don’t even have that saving grace.
March 4, 2010, 9:07 pmAnonsters says:
You guys are no fun! ;) :D :P
March 4, 2010, 9:22 pmLee Peters says:
Related satire: Speaker Pelosi Assures Reluctant Democrats a “Winky” Emoticon Will Appear at End of Government-Run Health Care Bill
March 4, 2010, 10:49 pmgwinje says:
Yeah, non-phonetic symbols have clearly outlived their usefulness.
I’d wager foldin’ money that I’m near the top of the anti-emoticon-snob pile, but come on. . . have we “abandoned” split infinitives and the singular they, too?
March 5, 2010, 3:57 amPersonFromPorlock says:
So, where are our emoticons?
March 5, 2010, 8:18 amMCM says:
Conservatives and their results-driven jurisprudence!
March 5, 2010, 10:51 amMSN Emoticons Pequenos mas poucos muito poucos says:
[...] The Volokh Conspiracy » Blog Archive » Emoticons and the Law [...]
March 5, 2010, 10:52 amMaryanna says:
I was talking to Mr. Language Person last night and they told me that it is wrong to ever split an infinitive.
March 5, 2010, 12:49 pmTaking sides over… wait for it…. emoticons « So anyway… #1 says:
[...] out these comments. I particularly like the input by Bob from Ohio, who thinks I “deserve[] to lose and pay [...]
March 5, 2010, 4:21 pmEmoticons garota pão nervosinha e estressada | Emoticons Engraçados says:
[...] The Volokh Conspiracy » Blog Archive » Emoticons and the Law [...]
March 7, 2010, 4:44 am