Tag Archive for: sued

Sons Of Confederate Veterans Sued Over Bogus DMCA Takedown

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As you’ll recall, earlier this month we wrote about this bizarre situation in North Carolina, in which the University of North Carolina agreed to give a bunch of racists $ 2.5 million to settle a lawsuit before the lawsuit had even been filed. The details of the story came out due to some inquisitive digging by North Carolina lawyer Greg Doucette. And, in response to him publishing the details, including a “victory” letter sent by the head of the North Carolina Sons of Confederate Veterans (in which it is admitted that they obviously had no legal standing to sue), Doucette’s Dropbox account was blocked thanks to a bogus DMCA letter from the group. Doucette retained lawyer Marc Randazza, who sent the Sons a letter demanding they use the $ 2.5 million to fund scholarships for African American UNC students or face a lawsuit for the bogus takedown. That letter argued that the bogus DMCA notice violated Section 512(f) of the DMCA, which (in theory) is supposed to stop abusive takedowns by punishing “misrepresentations” in takedown notices.

As I noted at the time, Section 512(f) of the DMCA is effectively dead, as courts rarely enforce anything about it and, at best, have said that those issuing a DMCA notice simply only need to consider fair use and if they, in their minds, think it’s not, can still send the takedown. However, Randazza and Doucette have decided to move forward anyway and have sued the NC Sons of Confederate Veterans, along with its leader Kevin Stone, and Dropbox (who blocked Doucette’s account). As is fairly typical of a Randazza filing, it’s an entertaining read:

Some claim that memorials like these are there to celebrate “southern heritage” rather than as memorials to the subjugation of African Americans.

When Silent Sam was unveiled in 1913, KKK supporter Julian Carr announced that the Confederate soldiers it honored had saved “the very life of the Anglo Saxon race in the South,” and told the following story:

“One hundred yards from where we stand, less than ninety days perhaps after my return from Appomattox, I horse-whipped a negro wench until her skirts hung in shreds, because upon the streets of this quiet village she had publicly insulted and maligned a Southern lady, and then rushed for protection to these University buildings where was stationed a garrison of 100 Federal soldiers. I performed the pleasing duty in the immediate presence of the entire garrison, and for thirty nights afterwards slept with a double-barrel shotgun under my head.”

With a metaphorical flamethrower taken to this myth of “southern pride,” student protesters tore the statue down on Monday, August 20, 2018. The University of North Carolina did not restore the statue to its former “glory.”

On November 27, 2019, the Sons of Confederate Veterans filed a lawsuit against UNC for its failure to return Silent Sam to his location, despite lacking standing (and knowing it) to bring such a suit. Despite the fact that the NCSCV lacked standing, seven minutes after the suit was filed, a state court judge approved a settlement between the parties.

The lawsuit has been filed not in North Carolina, but in Norther California (the other NC). The reasoning here is that because this lawsuit is over a DMCA takedown notice to Dropbox and Dropbox terms require users to consent to Northern California jurisdiction:

This Court has personal jurisdiction over Defendants because a) in using Dropbox, they consented to personal jurisdiction and venue in the state and Federal courts in San Francisco, California; and b) the sending of the takedown notice at issue constitutes sufficient minimum contacts under Cal. Code Civ. Proc. § 410.10 and U.S. Const., Amdt. XIV, where Defendants purposefully directed their acts toward California, committing an intentional act, expressly aimed at California, causing Plaintiffs harm in California as they have been deprived of the full use of their California-based Dropbox account.

This also appears to be the sole reason that Dropbox is listed as a defendant in the case. The complaint notes that it is not asking for any money from Dropbox, just to have Doucette’s account restored:

Dropbox is named as a defendant herein only to achieve complete relief; Plaintiffs seek no damages against Dropbox.

Well, these are the stated reasons for filing in California. I am assuming that the actual reason for suing in Northern California is that probably the only two successful 512(f) lawsuits both came in the Northern District of California and the 9th Circuit has probably the most caselaw on such claims — but that includes an appellate ruling that the “good faith” requirement is subjective. That is, if the takedown notice filer believes in their minds that the DMCA notice was legit, that’s enough. Of course, one other possible reason for filing in Northern California rather than North Carolina? Folks in California might not be quite as sympathetic to the Confederacy as folks in North Carolina.

As much as I’d like to see better rulings on 512(f) (or for Congress to fix it so that it has some teeth), I find it unlikely that this case will get very far — and, frankly, the California filing feels a bit like jurisdiction shopping. It’s not totally egregious as such (Dropbox is here in northern California and there are legit arguments for why the recipient of the takedown may be the proper party for determining jurisdiction), but… it’s still a stretch. The declaratory judgment for non-infringement seem like much stronger claims, though they won’t generate monetary returns.

In the meantime, the situation with UNC and the statue itself is far from over. Outcry and protests over the sketchy deal has resulted in at least one UNC funder pulling a $ 1.5 million grant to the University. And it doesn’t sound like the outcry and protests are calming down. Separately, a group of UNC students have moved to intervene in the original case (the one that was filed and settled in mere minutes) trying to have the settlement tossed and then the case dismissed entirely.

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California Man Gets Sued After Trying To Trademark Bully A Theme Park

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We’ve seen a great many examples of trademark lawsuits here at Techdirt. In most cases, those lawsuits are levied by individuals and companies that are the trademark bully, but that’s not always the case. We also see plenty of suits that are raised in defense of such bullying, in which the entity suing asks the court to simply affirm that its use is not infringing. Trademark bullies, of course, don’t like when that sort of thing happens.

Meet Scott D’Avanzo of California. Scott did a pretty cool thing and created a haunted house attraction in his garage, naming it the “Mystic Motel.” Then he came across the plans of the Silver Dollar City theme park near Branson for its new “Mystic River Falls” water rafting ride. At that point, he did the very un-cool thing of contacting Mystic River over the trademark he had on his haunted house and demanding to speak about the name of the new ride.

Scott D’Avanzo said he sent Silver Dollar City a letter earlier this year asking the theme park to contact him about the name, which he claims is similar to the “Mystic Motel” name he used for a haunted house attraction he started out of his garage.

“You have to police your trademarks,” D’Avanzo said. “That’s all we were doing is protecting what was ours.”

D’Avanzo said he has sent many letters to other businesses that are similar to the one he sent Silver Dollar City. He said his letters are usually followed by a phone call where the two parties can work out some parameters for use of the name.

Silver Dollar City, however, didn’t bend the knee to D’Avanzo. Instead, the theme park filed a lawsuit, seeking to have the court declare that the name of its ride at a large-ish theme park doesn’t somehow violate the trademark rights for a garage-based haunted house. The reported arguments Silver Dollar City makes are the ones you would expect; namely, that its use of the word “Mystic” isn’t going to cause confusion among the public for a “family project and neighborhood attraction.” That’s all the theme park wants: the reasonable use of the name of its ride.

But Silver Dollar City doesn’t stop there. The theme park also points out that D’Avanzo didn’t oppose its trademark application, didn’t say a word about it until it came time for a money-grab, and, oh, D’Avanzo destroyed his Mystic Motel setup entirely some time ago.

Upon information and belief, both the “Mystic Motel” “dark house” and the Christmas-themed “Journey to Polar Point” family projects were destroyed or deconstructed at some time. Upon information and belief, the “Mystic Motel” and “Journey to Polar Point” marks were not in continuous use with those projects during certain years. Upon information and belief, the “Mystic Motel” and “Journey to Polar Point” marks were not used at all or in interstate commerce with those projects during certain years. Upon information and belief, the “MYSTIC MOTEL” mark does not appear to be in use at this time. Upon information and belief, Mr. D’Avanzo and his family are not currently living in the Ladera Ranch house and they appear to have no ability to offer the “dark house” attraction under the “MYSTIC MOTEL” mark for Halloween this year.

In fact, the filing goes so far as to claim that D’Avanzo’s trademark application itself may have been built on lies, where he claims to be using the “Mystic Motel” mark in interstate commerce, but never did. On top of that, D’Avanzo created a separate company, Adrenaline Attractions, to which he assigned the trademark. Adrenaline Attractions doesn’t provide amusement attractions, but instead consults with parks to design rides, which isn’t the market designation for which D’Avanzo has his trademark. Also, Adrenaline Attractions appears to have exactly one customer. Again, this is not a story about confusion in commerce, but about a money-grab.

This, somehow, rates with D’Avanzo as bullying.

“That’s what they are is a big bully,” D’Avanzo said of Silver Dollar City.  “I’m not a stranger to the court,” D’Avanzo said. “And if I have to fight, I will.”

Any reasonable assessment of the situation would result in Silver Dollar City’s request for declaratory judgement to be granted. I’d only like to add that it takes chops to bully a company over a trademark, have that company ask the court to defend it from the bullying, and then call the company the trademark bully.

Maybe D’Avanzo can add an IP wing to his haunted house, except he doesn’t appear to actually have one any longer.

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Office Of Legal Counsel Sued For Refusing To Turn Over Legal Memos Congress Said Aren’t Exempt From FOIA Law

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Another lawsuit has arisen from the Office of Legal Counsel’s ongoing refusal to allow the general public to see its legal memos. The OLC claims these are categorically exempt from FOIA law because they constitute “deliberative” documents and/or are protected by attorney-client privilege.

But they’re not “deliberative.” In some cases — if not many cases — the OLC’s guidance tells government agencies what they can and can’t do legally, providing justification for warrantless searches, extrajudicial drone strikes, and lots of domestic surveillance.

In essence, the OLC is creating secret laws. Stupid amateurs (meaning the citizens who pay for the office that refuses to speak with them on an FOIA basis) apparently have no business knowing what the government has decided its okay for it to do.

Once in a long while, a FOIA lawsuit forces a legal memo out of the office’s hands. But for the most part, an unknown number of legal opinions remain locked up out of the reach of the citizens the government is supposed to be accountable to.

The Knight First Amendment Institute is hoping a lawsuit will finally trigger a document dump from the opacity-prone OLC. FOIA law has changed in recent years, but the OLC has apparently chosen to ignore this.

In 2016… Congress amended the Freedom of Information Act to prohibit agencies from withholding as “deliberative” records more than 25 years old.

[…]

On February 15, 2019, the Knight Institute submitted a request to the OLC for all of its formal written opinions issued prior to February 15, 1994. To date, the government has failed to comply with the request.  

Since Congress has said older opinions can’t be considered “deliberative” any longer, it’s assumed the OLC will now claim these documents are protected by attorney-client privilege. The problem for litigants is the OLC’s unending relationship with the government agencies it advises. These attorneys and clients are eternally inseparable.

The OLC can’t even be bothered with half-assed compliance. This goes hand-in-hand with its barely-there transparency efforts over the past few decades.

As the lawsuit [PDF] points out, the OLC has been (very selectively) releasing decades-old legal opinions. But even with 40+ years lead time, the OLC still can’t bring itself to release more than a small percentage of its secret law stuff.

In 1977, the OLC began to publish a volume of selected opinions given “their value as precedents and as a body of executive law on important matters.” According to the foreword to the first volume, however, approximately 75 percent of the 1977 opinions were excluded from publication.

After 1977, the OLC stopped revealing how many opinions were excluded from its volumes. Some OLC volumes note that a “significant” number were excluded. These statements are consistent with the views of at least one former OLC official, who has stated that the “published opinions are only the tip of the iceberg.” For example, the same OLC official noted that the office “gave 625 opinions to outside agencies in 1991.” But the 1991 volume of OLC opinions published only 13 opinions, or about 2%.

More recently, the Sunlight Foundation obtained the OLC’s internal list of OLC opinions issued between 1998 and 2012. Comparing the list with the OLC opinions that the office had made public either through its volumes or through FOIA productions, the Sunlight Foundation found that the OLC kept almost 40 percent of the office’s opinions secret over that period.

Hopefully, this litigation will force the agency to take a bright line approach to its legal opinions. They’re given the full weight of the law by the agencies that comply with them, and yet the OLC continues to claim these are just suggestions and attorney-client conversations. But they’re far more than that. They’re laws the public can’t read, can’t comply with, and can’t seek to have changed if they disagree with them.

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First American Financial Sued Over Alleged Data Breach – Data Center Knowledge

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  1. First American Financial Sued Over Alleged Data Breach  Data Center Knowledge
  2. Major financial company, First American Financial, leaks millions of Americans’ personal data thr…  Komando
  3. First American plunges most since 2011 on data breach concerns  National Mortgage News
  4. First American Hit With Class Action Lawsuit Over Massive Data Exposure  Forbes
  5. View full coverage on read more

“data breach” – read more