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.)
I know nothing about Texas law.
Okay, now this was funny. Understated, as well.
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).
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.
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.
He is just a pompous bully.
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).
http://members.aol.com/alicebeard/law/samples/sample03.html
Did he have his name trademarked? ;-)
Oh, boy. Internet fights.
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.
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.
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.
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.
"someone's" name as well.
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....
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.
On a different note, are you aware that Keith Burgess-Jackson is a lunatic?
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?
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
Hi Brian!
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:
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:
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!
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.
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."
Are you obtusely missing the point or just being sophistical? PWNED either way.
Brian also reads this thread, by the way. Hi Brian!
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.
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.
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"?
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.
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.