Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar Counseling and Legal Strategy in the Digital Age CLASS #1 Monday, September 14, 2015 Introduction: Clients' Goals, Lawyers' Tools, and Solving Problems Overview: • Assessing clients' primary goals and needs • Legal "issue spotting" meets practical "need spotting" • Counseling to avoid legal problems and legal threats • Ways to solve problems other than through litigation • Strategic considerations in threatening, avoiding, pursuing and defending litigation • Sending and responding to takedown notices, cease and desist letters and other threats Required Readings: Grimmelmann • Grimmelmann, pp. 57-66 ("Technical Primer: The Internet") • Grimmelmann, pp. 530-539 ("Section 512," Lenz v. Universal Music Corp. 572 F. Supp. 2d 1150 (N.D. Cal. 2008)) Cease & Desist Letters and Responses • October 17, 2007 cease & desist letter from Wal-Mart (counsel: Gary J. Rinkerman, Baker & Hostetler LLP) to BFADS.NET, read all • Platinum Equity LLC-San Diego Reader Dispute: 1. Don Bauder, " If You Use This, I'll Sue (Links to an external site.)," San Diego Weekly Reader, July 15, 2009, read all 2. June 26, 2009 cease & desist letter (Links to an external site.) from Platinum Equity LLC (counsel: Martin D. Singer, Lavely & Singer) to San Diego Reader, read all • December 6, 2011 letter (Links to an external site.) from Facebook (counsel: Joseph Cutler, Perkins Coie) to Hunter Moore, read all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar • Louis Vuitton - Penn Law Intellectual Property Group controversy: 1. February 29, 2012 cease & desist letter (Links to an external site.) from Louis Vuitton (counsel: Michael Pantalony) to Dean Michael Fitts, read all 2. March 2, 2012 reply letter (Links to an external site.) from University of Pennsylvania (counsel: Robert Firestone) to Michael Pantalony, read all 3. Ron Coleman, "Louis Louis (Links to an external site.)," Likelihood of Confusion blog, March 13, 2012, read all (main post only, NOT comments) • DirectBuy-Justin Leonard Dispute: 1. September 21, 2007 cease & desist letter (Links to an external site.) from DirectBuy, Inc. (counsel: Donald E. Morris, Dozier InternetLaw, P.C.), to Justin Leonard, read all 2. October 5, 2007 response letter (Links to an external site.) from Justin Leonard (counsel Paul Levy, Public Citizen) to DirectBuy's counsel, read all • Steps to 'Internet-Proof' Your Cease and Desist Letter (Links to an external site.)," Technology & Marketing Law Blog, June 29, 2010, read all • WestOrange.info Dispute: 1. Richard D. Trenk, May 23, 2013 cease and desist letter, read all 2. Stephen B. Kaplitt, June 17, 2013 response to cease and desist letter (Links to an external site.), read all • FunnyJunk v. TheOatmeal.com (Carreon v. Inman, et al., No. CV 12-3112 (ND Cal.): 1. June 2, 2012 demand letter (Links to an external site.) from Charles Carreon to Matthew Inman, read all 2. June 11, 2012 response letter (Links to an external site.) from TheOatmeal.com (counsel: Venkat Balasubramani) to Charles Carreon, read all 3. Annotated response (Links to an external site.) from Matthew Inman on TheOatmeal.com, read all (original post and letter only, NOT comments) 4. EFF, " Charles Carreon Drops Bogus Lawsuit Against The Oatmeal Creator: Suit Was Blatant Rett aliation Against a Public Critic (Links to an external site.)," EFF Press Release, July 3, 2012 • Veoh Networks v. UMG Recordings, No. 07-CV-1568 (S.D.Cal.), 522 F. Supp. 2d 1265 (S.D.Cal. 2007) (Order Granting Motion to Dismiss), skim all DMCA Takedown Notices Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar • Eric Goldman, " Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices -- Amaretto Ranch Breedables v. Ozimals (Links to an external site.)," January 03, 2011, read all • David Kravets, " The $105 Fix That Could Protect You From Copyright-Troll Lawsuits (Links to an external site.)," Wired Threat Level blog, October 27, 2010, read all (main post only, NOT comments) Optional Readings: Grimmelmann • Grimmelmann, pp. 567-476 ("Copyright Overview," "The Exclusive Rights") • Grimmelmann, pp. 514-529 ("Direct and Secondary Liability") Cease & Desist Letters and Responses • Techdirt-Jeffrey Morris Dispute: 1. August 13, 2010 cease & desist letter from Morris (counsel: Addlestone Keane) to Mike Masnick, read all 2. Mike Masnick, "Legal Threat Demands We Shut Down Techdirt (Links to an external site.)," Techdirt blog post, August 26, 2010, read all (main post only, not comments) • FBI / Wikipedia Foundation Dispute: 1. John Schwartz, " F.B.I., Challenging Use of Seal, Gets Back a Primer on the Law (Links to an external site.)," New York Times, August 2, 2010, read all 2. July 22, 2010 cease & desist letter (Links to an external site.) from FBI (counsel: David C. Larson, General Counsel) to Wikipedia/Wikimedia Foundation, read all 3. July 30, 2010 response letter (Links to an external site.) from Wikimedia Foundation (counsel: Mike Godwin, General Counsel) to FBI, read all 4. Statute Cited (18 U.S.C. § 701 (Links to an external site.), Official Badges, Identification Cards, Other Insignia), read all • Newport Television - Free Press dispute: 1. Josh Stearns, " Free Press to Newport: We Won't Be Silenced! (Links to an external site.)," July 11, 2011, read all 2. Newport Television cease and desist letter (Links to an external site.), July 1, 2011, read all 3. Free Press response letter (Links to an external site.) to Newport C&D, July 8, 2011, read all Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar • July 2, 2010 cease & desist letter (Links to an external site.) from Friends of Sharron Angle (counsel: Cleta Mitchell, Foley & Lardner) to Reid campaign, read all • January 12, 2012 letter from Scott Metzger (Links to an external site.) of Freetail Brewing Co., re: Hopasauraus Rex cease & desist letter, read all • July 12, 2012 cease & desist letter from Jack Daniels (Counsel: Christy Susman) to Patrick Wensink, read all • Daniel Wakin, " Web Page About the Met Closes at Opera's Request (Links to an external site.)," New York Times, August 17, 2011, read all • Sam Bayard, " Copyright Misuse and Cease-and-Desist Letters (Links to an external site.)," Citizen Media Law Project ("CMLP") blog post, October 11, 2007, read all DMCA Takedown Notices • Lenz v. Universal Music Publishing Group, No. C 07-03783-MEJ (N.D.Cal.): Second Amended Complaint (Links to an external site.) (filed April 18, 2008), skim all Miscellaneous • Kashmir Hill, " How Hunter Moore Could Get Into Legal Trouble For The Revenge Porn On IsAnyoneUp (Links to an external site.)," Forbes.com, November 22, 2011, read all • Study Re: Lawyers' Estimations of Litigation Success: Jane Goodman-Delahunty, Pär Anders Granhag, Maria Hartwig, Elizabeth F. Loftus, " Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes (Links to an external site.),"Psychology, Public Policy, and Law, 2010, Vol. 16, No. 2, 133-157, skim 133-135, 138-144 Issues to consider: • How do you determine what your client's true needs and goals are? How do you assess and address mixed legal, business, technological and personal goals? • How can you use the law to help and not hurt the most important goals and needs? • How can your client avoid legal problems, legal threats and lawsuits in the first place? • When is litigation a good solution? When is it not? Why? • What considerations should go into deciding whether or not to send a cease and desist letter, DMCA takedown notice, or other legal notice? • What tone should a C&D take, and how much information should it include? Why? Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar • How are each of the above considerations different if you know your client is not likely to or cannot actually file suit? What alternatives do you have? • What considerations should go into how you draft a response to a C&D? How much factual and legal detail should you include, and why? What tone should you take? • How are those considerations different if you know your client is not likely to or cannot actually defend a suit if one is filed? • How does the DMCA 512 safe harbor operate? How do you advise your client about the importance and logistics of ensuring the safe harbor protections? • What are DMCA takedown notices? When should you send one? How should your client respond to one? • How do the risks of sending a C&D differ from those of sending a DMCA takedown notice? Counseling and Legal Strategy in the Digital Age CLASS #2 Monday, September 21, 2015 Stages of Litigation (1 of 3): Articulating a Core Theory of the Case andDeveloping Effective Long-Term Strategies Overview: • Shaping the case . and the defense • Anticipating answers and drafting answers • The power of analogies • Anticipating media attention and integrating the media into the litigation strategy • Establishing and promoting a consistent narrative, before and after a case is filed • Drafting the complaint – balancing telling a compelling "story" with satisfying legal requirements • Addressing complexity in plain language • Framing issues Bavitz, Christopher Ritvo, Dalia Counseling and Legal Strategy in the Digital Age Fall 2015 seminar Required Readings: Grimmelmann • Grimmelmann, pp. 505-514 ("Fair Use") • Grimmelmann, pp. 511-513 (Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007)) Framing Arguments • Lessig v. Liberation Music, No. 1:13-cv-12028 (D. Mass.), Complaint (Links to an external site.) (August 22, 2013), read pars. 1-3, 13-61; skim pars. 62-70 • Shepard Fairey v. The Associated Press, No. 09-01123 (AKH) (S.D.N.Y.): 1. Complaint (Links to an external site.), (February 9, 2009), read paragraphs 1-2, 9-40, skim the exhibits 2.