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Brian Leiter's Legal Claims:

Keith Burgess-Jackson runs a site that's strongly critical of Texas law professor Brian Leiter. That site used to be http://brianleiter.powerblogs.com, but powerblogs has moved it to http://academicthug.powerblogs.com following this letter from Brian Leiter:

Dear Mr. Landsown [sic]:

I am writing to put you and your company, American Powerblogs Inc., on notice that a user of your service, Powerblogs, has engaged in tortious misappropriation of my name in order to advertise and draw attention to his web site. Keith Burgess-Jackson, who runs the site in question (www.brianleiter.powerblogs.com), has not received my permission to register my name, or any variation of my name, or to otherwise utilize my name, or any variation of my name, in order to promote or otherwise identify his site. Please close down that particular URL immediately. Thank you for your prompt attention to this matter.

Very truly yours, Brian Leiter Joseph D. Jamail Centennial Chair in Law, Professor of Philosophy, and Director of the Law & Philosophy Program The University of Texas at Austin ...

Here's my question for those who know tort law, and especially Texas tort law: Is Prof. Leiter's legal claim at all sound? My sense is that it is not:

(1) There's no right of publicity claim, I think, both because the site doesn't make any money and is thus not commercial, and because it's opinion writing rather than advertising or merchandising.

(2) There's no right of privacy claim (at least in the disclosure of private facts sense), because no embarrassing private information is being disclosed.

(3) One could argue a "false light" invasion of privacy theory, claiming that the use of Leiter's name would suggest to some readers that he is the one posting to the site, but I strongly doubt readers would draw such an inference, given the site's obvious content.

Am I mistaken? Are there some special Texas doctrines that cut in Prof. Leiter's favor? Please post only if you are knowledgeable about tort law; I'm curious what the legal rules are, not what they in theory ought to be. (The ethics of the situation, as opposed to the law of it, are also a separate matter that I leave aside for this post.)

Armando (mail):
I think he could have a Section 43(a) Lanham Act claim, depnding upon whether users are confused.

I know nothing about Texas law.
3.30.2006 3:51pm
Kazinski:
You are probably right about the legal issue, but it seems like a resonable corporate policy for Powerblogs to require that a blog with the same name as a specific person be authorized by that person. "BrianLeiterSucks.Powerblogs.com" would be a good compromise. It seems accurate both as a matter of fact, and reduces any possible confusion over whether it is Leiter's own blog.
3.30.2006 3:56pm
jdd6y:
If that is the federal "cybersquatting" statute, I think there is case law allowing for registration of domain names that are similar without violating the statute if the purpose is commentary/critcism or something of that nature.
3.30.2006 3:56pm
chancemeeting (mail):
It seems accurate both as a matter of fact, and reduces any possible confusion over whether it is Leiter's own blog.


Okay, now this was funny. Understated, as well.
3.30.2006 4:00pm
David Maquera (mail) (www):
Regardless of Texas law, I believe American Powerblogs, Inc., can successfully assert a defense under section 230 of the Communications Decency Act. See 47 USC 230.

Section 230(e)(3) expressly states, "no cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section."

Accordingly, section 230(c)(1) expressly states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Thus, American Powerblogs is likely immune from Texas tort claims by Professor Leiter under section 230 of the CDA. See Carafano v Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir 2003) (holding that section 230 affords republishing immunity from lawsuits on claims of invasion of privacy, misappropriation, defamation, and negligence).
3.30.2006 4:02pm
Anonymous coward:
I would have thought that the AntiCybersquatting Act (part of the Lanham Act) might also support a claim. I don't know whether Texas has a privacy 'flavor' such as appropriation of one's name/likeness, as exists in common law elsewhere, but if so this may be a violation of that right.
3.30.2006 4:03pm
Hans Bader (mail):
Leiter has no AntiCybersquatting claim.

Such a claim would be similar to Jerry Falwell's claim against Falwell.com, a site devoted to ridiculing him, which the Fourth Circuit held was no Cybersquatting but protected speech.
3.30.2006 4:07pm
David Maquera (mail) (www):
TO JDD6Y: You are correct pursuant to a federal district court decision from the 6th Circuit. See Lucas Nursery &Landscaping, Inc. v. Grosse, 359 F.3d 806 (E.D. Mich. 2004) (where district court held that a disgruntled former customer who set up a website for the sole purpose of complaining about a landscaping service did not violate the anti-cybersquatting statute). Disclaimer: this decision was successfully litigated by my law firm.
3.30.2006 4:14pm
Hans Bader (mail):
The case I referred to indicating that Leiter has no viable cybersquatting claim is Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005) (rejecting lawsuit against Falwell.com, which used Jerry Falwell's own name to publicly criticize him).
3.30.2006 4:16pm
frankcross (mail):
The interest protected by the misappropriation of name tort "is the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or others." RESTATEMENT (SECOND) OF TORTS sec. 652C cmt. a (1977).

The claim may run afoul of the Falwell cases, but the owner probably should change the site to make clear that he is not Brian Leiter but is instead anti-Brian Leiter. Suppose somebody wanted to learn what Brian Leiter said and googled. The URL would make it look like this is a good site for that. Although the reader would soon discover reality, it's still a waste of time and a little misleading.
3.30.2006 4:20pm
William Spieler (mail) (www):
"Even assuming Express One had a legal right to sue for invasion of privacy by virtue of the alleged misappropriation of its name, we conclude it produced no evidence to support its cause of action. The three elements of invasion of privacy by misappropriation are: (1) the defendant appropriated the plaintiff's name or likeness for the value associated with it; (2) the plaintiff can be identified from the publication; and (3) there was some advantage or benefit to the defendant. Texas law does not protect a name per se, but the value associated with it. Liability for invasion of privacy arises only when the defendant appropriates for his own benefit the commercial standing, reputation, or other values associated with the plaintiff's name." Express One Intern., Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex. App. 2001) (citations omitted).
3.30.2006 4:23pm
Dave!:
The "domain" in question is also not a TLD... it's a subdomain. There would not be any domain ownership issues because the TLD is "powerblogs.com" which Leiter has no claim to whatsoever. Just a point to keep the discussion from getting side tracked on the domain issue, and back to the torts.
3.30.2006 4:27pm
Anonimo:
Leiter has no legal claim under either Texas law or federal cybersquatting law.

He is just a pompous bully.
3.30.2006 4:27pm
keith_hilzendeger:
As far as I know, see 35 Ariz. St. L.J. 187, 199-200 (2003) (discussing Crumrine v. Harte-Hanks Television, Inc., 37 S.W.3d 124 (Tex. App. 2001)), Texas follows the Restatement approach, which breaks down the invasion of privacy tort into four categories, three of which you have analyzed in your post. I agree with you that Professor Leiter has no claim under Texas law.
3.30.2006 4:41pm
Anon3453 (mail):

(3) One could argue a "false light" invasion of privacy theory, claiming that the use of Leiter's name would suggest to some readers that he is the one posting to the site, but I strongly doubt readers would draw such an inference, given the site's obvious content.


The false light tort doesn't exist in Texas, so Leiter's out of luck there. See Cain v. Hearst Corp., 878 S.W.2d 577, 579 (Tex. 1994).
3.30.2006 4:43pm
Alice Marie Beard (mail):
This old memo from my law school days might be of interest:
http://members.aol.com/alicebeard/law/samples/sample03.html

Did he have his name trademarked? ;-)

Oh, boy. Internet fights.
3.30.2006 5:27pm
Eh Nonymous (mail) (www):
KBJ (as Leiter took to abbrving him, possibly because it takes too long to write out Kook, Bitter Joke) is rather calmly (with much invective) discussed here, and I must say, he needs a hobby. Suck-blogging (as I hereby dub the maintenance of blogs such as the hypothetical BrianLeiterSucks) is an activity for someone with a grudge. Or a chip. Or a need to get out more.

Leiter's legal claim may be weak. At least he doesn't have a soft head. No disrespect to those who would prefer to have faith in creationism rather than examine evidence or understand the nature, claims, and methodology of science, but Leiter's really not wrong to criticize hopelessness.

Calling the attempt to push creationism into science classes and sabotage biology an effort to foster "honest debate" is just sleazy. I don't know if it was due to ignorance, hopeful gullibility, or simple knavery. Also, the suck-blogger's raving really is a bit much. Leiter may be distasteful to some VC readers. But he's not a simp.
3.30.2006 5:28pm
TomH (mail):
What this country needs in this day and age, is a Constituional Amendment regarding privacy. The privacy of one's identity and body.

It is an issue of overwhelming access to information that simply did not exist in the 18th Century.

Now someone go write something cogent and concise that has exactly the correct amount of obligation and right.
3.30.2006 5:33pm
Adam (mail):
Tom: "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." (Montana Constitution)
3.30.2006 5:36pm
Albert Z. Nealstron:
Are you sure there is no false light tort in Texas? Link? Also, White girls with asian guys.
3.30.2006 5:49pm
John Jenkins (mail):
TomH, what government action is involved here (other than using the courts to enforce a private right)?
3.30.2006 5:52pm
gr (www):
I could be a "false designation of origin" type claim.
3.30.2006 6:27pm
Stephen M (Ethesis) (www):
I actually litigated man of these questions and won on summary judgment in a Texas court last year. The law isn't clear enough for me to offer an opinion on all of the issues.

On the other hand, it is particularly obnoxious to misuse someones name, regardless of the legalities involved.

Anyway, interesting questions, should be interesting should the entire mess ever end up in court down in Austin. I trust both of the parties have the slander riders on their home insurance.
3.30.2006 7:59pm
MR (mail):
While it may be protected for content, 230 is not going to protect the service provider where the provider is the sub-domain name provider and the provider is on notice.

This is a no brainer trademark infringement case (Lanham Act) - the domain name uses the name, a name which is also associated with a "business" in commerce, namely the original blog. Use of the name for a site that causes competition is an infringement. What if it were microsoft.powerblogs.com? Easy question. The fact that it is a lesser known name is not terribly relevant, so long as the owner has prior use and so long as there would be confusion.

Of course, there is a first amendment/fair use defense, but it isn't here. The suggestion to add "sucks" is a good one.
3.30.2006 8:13pm
Stephen M (Ethesis) (www):
Darn. I need to get a new keyboard or actually watch the screen while I type. Probably both. Should be "many" not "man" of these issues.

"someone's" name as well.
3.30.2006 8:17pm
I:
Reminds me of the story of Carl Sagan and Apple Computer. As I remember it, Apple named a version of its OS under development "Sagan." The professor's lawyers wrote a nasty letter, so Apple changed the name to "Butthead Astronomer."
3.30.2006 8:53pm
David Matthews (mail):
"Please post only if you are knowledgeable about tort law."

Forgive me, I'm going to post a question (on topic, I hope), even though I'm knowledgeable about nothing (not being a lawyer.)

Very simply, what's the difference (tort law-wise) between my taking out a domain name like "Wal-MartSucks.com" (similar to which I've heard that Wal-Mart has successfully enveighed against) and "MaryMatthewsSucks.com" (not my ex's real name, but pretend it is -- and not that I have any intention of wasting what little I have left after child support on such an enterprise!). Why might the second be OK, while the first isn't?

My concern is that it seems to me that quite often corporations, rather than having the same rights as individuals, actually have far more....
3.30.2006 10:53pm
SimonD (www):
Dave:
The "domain" in question is also not a TLD... it's a subdomain. There would not be any domain ownership issues because the TLD is "powerblogs.com" which Leiter has no claim to whatsoever. Just a point to keep the discussion from getting side tracked on the domain issue, and back to the torts.
If this is the legal understanding, it is wrong from a technical perspective. The TLD in brianleiter.powerblogs.com is not powerblogs.com, it is .com; the relationship between powerblogs.com and the .com namespace is no different as a technical matter to the relationship between brianleiter.powerblogs.com and a notional powerblogs.com namespace.

So, consider a university: fictional.edu. The TLD is .edu, and control over the fictional.edu namespace is delegated to name servers controlled by the college. Now imagine the host www.law.fictional.edu: the administrator of fictional.edu can delegate management of the law.fictional.edu namespace to a sub-admin, just as the administrator of the .edu namespace delegates control over the fictional.edu namespace to the college admin. Once you understand the nature of the DNS, you see that it makes little sense to say that a duty owed by an admin at one level should not be matched by a comparable incumbency deeper down the well.

The point being that there is no reason why cybersquatting rules would apply to, say, hillaryclinton.com, but not to brianleiter.powerblogs.com.
3.30.2006 11:38pm
Texas Tort Lawyer (mail):
Tortious misappropriation is a well-established tort in every state in the union. It's a bit surprising that a First Amendment lawyer doesn't know about it.

On a different note, are you aware that Keith Burgess-Jackson is a lunatic?
3.31.2006 1:07am
Grand CRU (mail):
If Leiter had an Anticybersquatting claim, there would still be a safe harbor: if KBJ lacked bad faith. But disparaging comments (against Brian Leiter) are proof of bad faith under the AntiCybersquatting Protection Act (15 U.S.C. sec. 1125(d)), so the nature of the site automatically deprives KBJ of a defense. See Virtual Works, Inc. v. Volkswagen of America, Inc., 238 F.3d 264 (4th Cir. 2001). Let's turn to BL's claim.

Given that bad faith is in the bank, all BL need prove is KBJ used a domain name that is identical to or confusingly similar or dilutive of BL's famous mark. Let us assume that BL has a right to his own name. BL is famous. KBJ's website diverted users from BL's site to KBJ's, just as in Volkswagen, to BL's commercial loss (advertising dollars from site traffic that could have gone to BL instead went to KBJ; those convinced by KBJ's disparaging remarks would not visit BL's site again).

Put aside the empirical question whether BL lost any actual profit. The question focuses on KBJ. Did KBJ intend to profit from BL's famous mark in bad faith? The answer would be yes.

It does not matter whether BL has a suit under Texas law, because the ACPA is federal law. My questions are as follows:
1. Does a name satisfy the requirement of a famous mark, or need one have trademarked one's name (I doubt the rule is that someone else can beat you to trademarking your own name, Pierson v. Post-style)? Or does one acquire a trademark in one's name as soon as one becomes famous?
2. Does KBJ's website count as a "domain name" under the ACPA?
3.31.2006 6:42am
Grand CRU (mail):
Oh, and I got this analysis from my 1L Property casebook. I knew it would come in handy someday.
3.31.2006 6:49am
bud (mail):
IANAL, so I'm only going to comment on the practical aspects, which are so obvious to the rest of us, but may not be to academic lawyers.

American Powerblogs did the practical thing in changing the name. Yes, they may well have prevailed when it got to court, but how many dollars would they spend in legal fees getting there?

As the saying goes, "Anyone can sue anyone for anything. Is this a great country or what?"

email is human readable - aloud
3.31.2006 11:31am
o' connuh j.:
Texas Tort Lawyer -

Hi Brian!
3.31.2006 12:19pm
Chris Lansdown (mail) (www):
Grand CRU,

What on earth does Virtual Works, Inc. v. Volkswagen of America, Inc., 238 F.3d 264 have to do with this? Here's the summary from the opinion:

Volkswagen challenges Virtual Works, Inc.'s use of the domain name vw.net under the 1999 Anticybersquatting Consumer Protection Act (ACPA). Volkswagen claims that Virtual Works registered vw.net with the purpose of one day selling it to Volkswagen. The district court agreed, holding that Virtual Works had a bad faith intent to profit from the vw.net domain name and that its use of vw.net diluted and infringed upon the VW mark. Virtual Works, Inc. v. Network Solutions, Inc., 106 F. Supp.2d 845 (E.D. Va. 2000). The district court therefore ordered Virtual Works to relinquish to Volkswagen the rights to vw.net. Because the district court did not err in holding that Virtual Works violated the ACPA, we affirm the judgment.


Also, can you cite the part of 15 U.S.C. sec. 1125(d) which includes "disparaging comments" as proof of bad faith? I can't find it among the list (though of course it's a permissive list). The closest I could come was this:

(V) the person's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;


But clearly KBJ was not intending to create a likelihood of confusion. Any reasonable person who read so much as the title and sub-head would know that the site was about Brian Leiter, not by him.

Would you mind clarifying, then, which part classifies "disparaging comments" as proof of bad faith?

Thanks!
3.31.2006 12:57pm
Colin (mail):
Chris,

I don't think it's at all clear that KBJ wasn't trying to create, or at least benefit from, confusion. Using Leiter's name as the sole unique part of the address makes it likely that random visitors will hit that site while looking for Leiter's blog, his information about philosophy departments, or more objective information about him. The use of his full name in the address might even have bumped KBJ's site in pagerank, although that's merely speculation.
3.31.2006 4:36pm
William Spieler (mail) (www):
How on earth can you get a trademark on a human name? I don't want to wind up being sued by another William Spieler, who appears to be a named partner at Leslie Spieler &Fulford in Union, MO, once I'm out of law school, because I can't imagine how there's no likelihood of confusion under the Lanham Act there. Hell, they even do bankruptcy work, apparently, and I once interned in Bankruptcy Court. The possibilities for confusion are endless!
3.31.2006 5:17pm
AF:
"Is Prof. Leiter's legal claim at all sound? . . . I'm curious what the legal rules are, not what they in theory ought to be. (The ethics of the situation, as opposed to the law of it, are also a separate matter that I leave aside for this post.)""

Respectfully, Professor Volokh, I think your framing of the question is unfair to Professor Leiter. Technically, Leiter has not made a "legal claim." He has made an assertion in a letter about his legal rights. The "sound[ness]" of that assertion is not equivalent to the soundness of a future legal claim that Leiter might bring. It is perfectly sound, I think, to assert in a letter that your rights have been violated if you believe in good faith that they have -- irrespective of whether you believe a court would recognize those rights. You acknowledge this distinction by stating that you are leaving aside the "ethics of the situation." But in fact, the "ethics of the situation" are the only legitimate grounds for evaluating whether Leiter's "claim" in the letter is "sound."
3.31.2006 9:33pm
o' connuh j.:
What are you babbling about,"AF". The "assertion about his legal rights" IS a legal claim to rights. Either he has a legal foot to stand on re: said 'rights' or he doesn't, and Volokh is evaluating THAT claim _qua_ legal claim.

Are you obtusely missing the point or just being sophistical? PWNED either way.
4.1.2006 7:11am
o' connuh j.:
Leittter has a history of making spurious legal claims by way of intimidation. See his threat of legal action against posters at the law admissions website xoxohth.com. Comical stuff :)

Brian also reads this thread, by the way. Hi Brian!
4.1.2006 7:17am
Grand CRU (mail):
How can you trademark a human name?

Well, I would agree that it makes no sense for a nonfamous person. Whether that logic applies to cases involving famous persons is another matter.

Chris Lansdown,

As to VW mention of "disparaging comments" : "With respect to the fifth factor, the district court held that the disparaging comments posted by Virtual Works harmed the goodwill of the VW mark." The foregoing sentence is not in the summary, but it is in the opinion, if one reads it. What is the old saying? If the law is against you, don't read it...?

As to the theory of profit: advertising dollars diverted from one site to another through use of a similar mark. Maintaining the confusing domain name to steal away market share is cybersquatting too. See Colin's comment above.

As to likelihood of confusion: One would only ascertain that the site was not Brian Leiter's after reading disparaging comments about him that, if believed, would cause one not to return to Leiter's site. That would lock-in the loss of advertising dollars to Brian Leiter caused by the disparaging comments. See Colin's comment above.

As to intent at time of registration: clearly, this is what KBJ intended to do. His site explicitly exists to harm Brian Leiter's reputation and elevate his own, i.e., drive site traffic (which is monetizable) from Brian Leiter's site to his own by disparaging Brian Leiter's famous name. For an example of this, see the KBJ post on Ronald Dworkin/Peter Railton. If that isn't intent to profit from bad faith by registration of a domain name, then nothing is.
4.1.2006 12:35pm
AF:
o'connuh:

Technically, a legal claim is an assertion of legal rights made to a court. If it isn't made to a court, it shoudn't be called a "legal claim." And as a matter of common sense, if it isn't made to a court, its soundness shouldn't be evaluated based on whether a court would accept it.

Of course, it's an interesting question whether a court would accept it, but it's a different question from evaluating the soundness of Leiter's "legal claim." It's a subtle distinction, but an important one because it goes to whether or not Leiter (as opposed to a nonexistent legal claim) can be fairly criticized.
4.1.2006 12:42pm
Grand CRU (mail):
Doesn't Leiter fudge the distinction between the legal system and the legal regime? If so, the fact that a legal argument is made outside of the courthouse rather than inside of it after a gavel has been banged is of little import. The question is what impact it has. If it causes Person X to comport himself with some legal standard that he otherwise would not have comported with, then why would we pretend that is not a part of our "legal system" properly conceived. That's what happens in all settlements not supervised or certified by a court.
4.1.2006 12:54pm
Grand CRU (mail):
In other words, Leiter said XYZ, and KBJ changed his behavior. Many of us believe that KBJ's behavior could reasonably be said to have violated legal principles ABC and so KBJ might have lost in court. Clearly, KBJ didn't want to risk it. Why doesn't that count as an operation of a legal rule?

1. Once BL communicated XYZ to KBJ, he knew what "the law" was.
2. KBJ changed his behavior in accordance with both his and BL's interests.

So why isn't a claim about the operation of a legal rule a "legal claim"?
4.1.2006 1:03pm
AF:
Grand CRU,

By your logic, whether or not a court would have accepted Leiter's assertion is irrelevant to the soundness of his "legal claim." Which leads to the same conclusion as mine: it's unfair to criticize Leiter for making an assertion that a court may not accept.
4.1.2006 1:54pm
Grand CRU (mail):
No, AF, that is wrong.

By my logic, whether or not a court would have accepted Leiter's assertion is irrelevant to the validity of his "legal claim". Which leads to a different conclusion than yours: it might be fair to criticize Leiter for making an assertion that a court may not accept, depending on the circumstances.
4.1.2006 3:18pm
Grand CRU (mail):
Hey, Brian, since you read this thread, why don't you explain the difference between validity and soundness to AF?
4.1.2006 3:20pm
AF:
Under these circumstances it is unfair.
4.1.2006 5:49pm
GrandCRU (mail):
Well, I disagree with you. I think Leiter has a claim under the ACPA that has a high probability of winning in court. I do not like the outlandish comments on Leiter's website (nor did I like his habit of digressing pointlessly while on PhilosophyTalk), but I do not evaluate legal claims on the basis of personal animus and I think Leiter's site can be a forum for high quality philosophical debate. What KBJ is doing is wrong by any measure. He should challenge Leiter's ideas in scholarly journals, not use deceptive websites to launch personal attacks that are calculated to steal Leiter's fame to KBJ's profit. I also do not understand how you can criticize Leiter for his claim -- which was one of tortious misappropriation -- without thoroughly understanding that legal theory: please elucidate why Leiter has no claim under tortious misappropriation and remember to show your work, AF.
4.2.2006 12:04am
T. Gracchus (mail):
Burgess-Jackson is in the Texas Philosphy Department. Had lovely letters from Feinberg, back in the day, as I recall.
4.2.2006 1:45pm
Grand CRU (mail):
Does that make stealing OK?
4.3.2006 4:55am