cease and desist – Techdirt (original) (raw)

Groq Sends Elon’s ‘Grok’ A Cease & Desist, Though A Funny One

from the the-likelihood-of-confusion dept

One of things we enjoy here at Techdirt is when even those with legitimate gripes about trademark law take a bemused view about the whole thing, rather than immediately jumping to angry and overly aggressive threats. No one likes a trademark bully, even when the trademark holder might have a legitimate claim.

A few weeks ago, we mentioned that Elon Musk probably should have checked with trademark lawyers (or just done a basic internet search) before naming his xAI large language model “Grok” because there was already a well-known AI chip company in the space named Groq. Groq seems mildly annoyed at the confusion this is causing (and literally yesterday when I mentioned testing something on Groq’s AI system someone asked me why I was using Elon’s AI…), but is mostly taking it in good strides.

Initially, Groq’s CEO, Jonathan Ross (who was the guest on this week’s Techdirt podcast, which was entertaining) used his own AI tools to suggest a new name for Elon’s LLM. The solution they came up with was Slartibartfast, which (unlike “Grok”) is actually from Hitchhiker’s Guide to the Galaxy, which Elon keeps insisting is what his AI is trained to be like.

Then Ross used the situation to highlight just how much faster AI running on Groq’s chips are, compared to using the old, tired, slow way that Elon’s appears to be using:

Now, Ross has taken it up a notch with a clearer cease and desist, though still keeping it amusing.

Did you know that when you announced the new xAI chatbot, you used our name? Your chatbot is called Grok and our company is called Groq, so you can see how this might create confusion among people. Groq (us) sounds a lot like (identical) to Grok (you), and the difference of one consonant (q, k) only matters to scrabblers and spell checkers. Plus, we own the trademark.

We can see why you might want to adopt our name. You like fast things (rockets, hyperloops, one-letter company names) and our product, the Groq LPU™ Inference Engine, is the fastest way to run large language models (LLMs) and other generative AI applications. However, we must ask you to please choose another name, and fast.

I stand by my recommendation to name it Slartibartfast. It’s both on message with your idea of a sarcastic bot inspired by Hitchhiker’s Guide to the Galaxy and sounds sufficiently distinct from any other AI company or product (which is why I wouldn’t recommend calling it Giggle or OpenXi). Win-win! But, your call.

In making this request, we’re thinking about you as much as us. It must be annoying having all those people hitting you up on X, asking how the Groq LPU Inference Engine is able to deliver 10X better performance and precision at scale? Or how it is 10X more energy efficient and 10X more cost-effective? That’s plenty of Xs, even for you, especially when it’s not your Groq.

I get it. It was annoying when my great Aunt asked me about my new snarky chatbot over Thanksgiving dinner, but I passed her the mashed potatoes anyway.

#GroqOn

Of course, Elon has (so far) ignored all of this, and there’s a decent chance he’ll continue to do so. But I’d like to no longer need to explain every time I talk about Groq (which is doing some pretty cool stuff) that I’m not using Elon’s glitchy tech, so hopefully Elon gets around to actually changing the name.

As we’ve explained for years, of the three customary fields often linked together under the terrible and misleading term “intellectual property,” trademark is the most defensible, though only for its original intended purpose: to avoid consumer confusion. As a consumer protection tool that accurately designates the origin of a product, trademark serves a useful process (it’s only when it’s being used for bullying/censorship that gets us upset). But here, Groq appears to have a very clear legitimate claim. The likelihood of confusion is extremely clear (I keep experiencing it personally!).

But, I guess it’s up to Elon if he’s actually going to change the name. He could ask Grok, but I’m guessing the responses might come a little too slowly.

Filed Under: ai, cease and desist, elon musk, grok, jonathan ross, likelihood of confusion, trademark
Companies: groq, twitter, x

Free Speech Absolutist Elon Musk Demands Take Down Of (Likely Misleading) Videos Of Teslas Running Over Child-Sized Mannequins

from the running-over-kids dept

It appears that free speech absolutist Elon Musk is, once again, not such a fan of free speech when it criticizes him or his companies. Perhaps he’s too busy penning columns for China’s official internet censor to know this, but given other reports about how much he micromanages things happening at Tesla, you have to assume he’s well aware that Tesla’s lawyers are busy sending cease-and-desist letters to a group called The Dawn Project, which produced a (likely sketchy — read ahead) commercial attacking Tesla’s “Full Self-Driving” (FSD) claims. You can see the commercial here:

Electrek has noted, pretty convincingly, that the footage in the ad is, at best, misleading. And possibly directly deceptive. In some of the footage it appears that FSD wasn’t properly engaged, and in follow-up footage where it is shown to be engaged the end result is not identical to the parts shown in the video. In other words, the video is questionable, at best.

And, the guy behind The Dawn Project is not reacting particularly well to questions being raised about the tests he ran. He calls the reporter from Electrek, Fred Lambert, “a moron” and refuses to answer his questions. It’s not a good look.

That said, even as it looks like FSD was not engaged in at least some of the tests, it seems notable that the driver seems to think it’s engaged, which seems like a health hazard in its own way.

Incredibly, as the Washington Post notes, this ad resulted in one of Musk’s biggest stans literally trying to recreate the “test” in the ad… with real kids.

To be fair, that dude did run the experiment (with both child mannequins and real humans) and the FSD did not run over anyone (phew) … but also the video of him testing it out has been removed from YouTube for violating community guidelines.

I saw the video before it was removed from YouTube, and I’m guessing the concern was… that it might encourage others to test FSD running over kids? I dunno. I think the video was fine and probably should have been left online. (Update: YouTube says it was taken down because “YouTube doesn’t allow content showing a minor participating in dangerous activities or encouraging minors to do dangerous activities.”)

All that said, having your lawyers send an angry cease-and-desist doesn’t seem very free speechy. The takedown demands that The Dawn Project remove the video, issue a public retraction, “disclose all sources of funding for the purported ‘tests’,” and “disclose all recognized regulatory agencies that endorsed your testing methodology and/or results.”

And if it’s true that the commercial is misleading, you can certainly understand why Tesla and Musk would be ticked off about the videos. But a true “free speech absolutist” would counter the videos with more speech debunking them, and not with legal threats demanding not just silence, but detailed information on funding.

Honestly, this is a case where no one comes out of this looking very good (well, Elektrek’s reporting looks good).

But, the underlying issue is here: if full self-driving is going to actually be safe and productive (which would be great, and which I’d still like to come to pass), then Tesla needs to be upfront about it and open to discussing its potential flaws and responding to critics. And, even when that criticism may be exaggerated or problematic, just the fact that Telsa immediately resorts to the legal threats is somewhat chilling even for those who might make a more competent study of the issue. As we’ve documented in the past, Musk has a bit of a history of shutting down more trustworthy critics as well.

And, indeed, in an even more recent Elektrek article by Lambert, it’s noted that Musk is directly telling FSD beta testers to stop complaining about problems with FSD.

That’s also not at all free speech supporting, and is kind of worrisome. We should want beta testers to be critical. That’s how the technology gets better and it’s how we all are more likely to get a safer system out of all of this. And, telling the testers to shut up isn’t helping anyone.

Filed Under: cease and desist, criticism, defamation, free speech, full self-driving
Companies: tesla, the dawn project

Angry Crypto Firm Posts Weird Cease & Desist Letter To Its Own Blog; DMs It To Critics

from the that's-not-how-any-of-this-works dept

You know things are going just great in crypto-land when a cryptocurrency company has to post a vague cease-and-desist letter to its own blog. Everything about this is bizarre, but it culminated in this very strange cease-and-desist blog post by Nexo.

There is a separate blog post that sort of, but not quite, tries to explain what’s going on, noting that a Twitter user has started to spread a false story about the company. And, indeed, Nexo makes a compelling case that the Twitter user “otteroooo” posted a blatantly false (and most likely defamatory — something I don’t say lightly) claim about Nexo’s co-founder, possibly confusing him (whether on purpose or not) with a very different individual who has a somewhat similar (but really not that close) name.

So, yes, sure, I can totally understand Nexo being mad. And I can totally understand and appreciate Nexo posting its compelling argument for why otterroooo’s claims are full of shit.

But… that still doesn’t explain posting a cease-and-desist to your blog. For that, you have to look elsewhere, and see that Nexo is apparently sending Direct Messages to people on social media when they retweet the otteroooo tweets, and (1) sharing with them the explanation blog post and (2) the cease-and-desist.

Except, even then, this doesn’t make much sense. The cease-and-desist is not specific (because, how can it be when it’s just out there for everyone) and completely overstates what is “unlawful.”

If they want to send a cease-and-desist letter to people spreading false information, there are ways to do that, but posting it to your blog seems like a way to call negative attention to yourself, and get you ridiculed, much more than it is likely to get anyone to cease or desist even if you have a decent argument for why people should cease and desist.

Filed Under: cease and desist, defamation
Companies: nexo

LA Sheriff Threatens To 'Subject' City Council To 'Defamation Law' If They Won't Stop Calling His Deputies 'Gang Members'

The man presiding over a law enforcement agency filled with gangs and cliques would prefer city officials stop referring to his employees as gang members.

Los Angeles County Sheriff Alex Villanueva has stated that there are no gangs within the Sheriff’s Department, a claim he is obviously unable to back up with facts, because the facts make it clear that the LASD has been (and apparently still is) home to multiple gangs composed of deputies. There’s even a Wikipedia page dedicated to the gangs infesting the Sheriff’s Department.

If you distrust the info on the anyone-can-edit Wikipedia page, there’s also this comprehensive database compiled by journalist Cerise Castle for Knock LA — one that pulls info from public records and court documents to list suspected and verified members of LASD gangs.

Sheriff Villanueva continues to claim there are no gangs within his department. He has also instituted a policy to address the problem he says doesn’t exist, forbidding deputies from “joining any group that commits misconduct.” You’d think this policy would forbid any deputy from being employed by the Los Angeles Sheriff’s Department, but I guess that’s not how Villanueva reads his edict.

As for Villanueva’s claim gangs and cliques don’t exist within his department? Well, let’s take a look at what his employees say:

Hundreds of Los Angeles County sheriff’s deputies said they have been recruited to join secretive, sometimes gang-like cliques that operate within department stations, according to the findings of a survey by independent researchers.

The anticipated study into the problematic fraternities — which L.A. County officials commissioned the Rand Corp. to conduct in 2019 — found 16% of the 1,608 deputies and supervisors who anonymously answered survey questions had been invited to join a clique, with some invitations having come in the last five years.

Well, all evidence to the contrary aside, Sheriff Villanueva is no longer going to stand idly by while city officials continue to make accurate statements about his problematic agency. He’s issued a… well, not really a “cease and desist” letter [PDF] to the Los Angeles Board of Supervisors demanding (but not really) they stop saying his department has a gang problem. (h/t Adam Steinbaugh)

The letter is a fun read, even more so because Sheriff Villanueva definitely did not want his vaguely threatening fluff to be considered enjoyable for all the wrong reasons. Behold the semi-coherent wrath of a pissed off public servant.

As the elected Sheriff of Los Angeles County, I demand you and other elected leaders, as well as your appointees, immediately cease and desist from using the derogatory term “deputy gangs” when referring to members of the Los Angeles County Sheriff’s Department (Department). This willful defamation of character has injured both individuals and the organization. It also serves no purpose other than to fuel hatred and increase the probability of assault and negative confrontations against our people.

So, it looks like a cease-and-desist (it even uses the words!), but the Sheriff has no power to make this demand. And Villanueva is hopefully using the phrase “defamation of character” in the colloquial, no-relation-to-the-legal-meaning sense of the words, because there’s plenty of evidence out there that would make any accusations about LASD gangs “substantially true” and, therefore, not defamation at all. I know we (and by “we,” I mostly mean courts) don’t expect law enforcement officers to be legal experts, which is good, I guess, because they clearly fucking aren’t.

The letter continues in the same vein: Villanueva bitching, mostly ineffectively, that it’s unfair to his department when city officials say bad things about him and his employees. The next paragraph of the letter basically says the Sheriff’s Department has all the heroes and the Board of Supervisors has all the hypocritical assholes.

My personnel routinely place themselves in harm’s way while serving our community and ask nothing in return, other than a paycheck and maybe a little respect for the tough job they perform. Elected officials have no problem attending the funeral of a peace officer killed in the line of duty and often fight for the opportunity to speak at the podium, but the manner in which some have enthusiastically branded my personnel as “gang members” every opportunity they get is disgusting.

It is completely possible for officials to show their respect for an officer killed in the line of duty while still suspecting the law enforcement agency they work for is home to groups of officers who commit serious misconduct while engaging in gang-like behavior: violent acts, tattoos/clothing/insignias/etc., codes of silence, et al. You know, just like it’s possible for officers of the law to recognize the War on Drugs harms more than it helps.

According to the sheriff’s letter, the only reason board members might refer to deputies as gang members stems from a dismissed lawsuit brought by a former LASD deputy. The letter claims this is the only “evidence” anyone has ever had and that other research arriving at the same conclusions is completely undermined because a single source of information was declared to be untrustworthy by a court decision. That willfully ignores the years of data that shows deputies have formed cliques/gangs within the department. And while that may not be the sole contributing factor to large amounts of misconduct, it certainly hasn’t helped neutralize the “us vs. them” mentality that is the root of so many casual abuses of rights.

From there it gets truly laughable, with Sheriff Villanueva again demonstrating his inability to understand speech-related laws before claiming that referring to LASD gangs is actually a form of bigotry.

Those who want to further undermine the perception of law enforcement use it as hate speech to promote their own agendas, such as defunding law enforcement and redirecting those funds to their own non-profit organizations, many of which are nothing more than sham corporations who operate with virtually zero accountability. Further use of the term will be evidence of your actual underlying intent, which appears to be a campaign to inflict harm upon the reputation of the Department and myself.

First off, calling someone a gang member or implying there are gangs in the LASD isn’t hate speech. It’s not even hate speech in the most ignorant sense of the word. Speech someone doesn’t like is not hate speech, and that’s all that’s really happening here. The Sheriff and his deputies aren’t a protected class, nor is being employed by the LASD an immutable characteristic that can trigger hate crime laws when derogatory language is used. The rest of this is no less stupid. “Further use… will be evidence of your actual underlying intent” to harm the Department. Whatever. This isn’t legally binding and further use will be evidence of nothing.

So very stupid.

As the first fluently Spanish speaking Latino Sheriff in over a hundred years, who supervises a majority Latino workforce, I hope you can see the blatant racial inferences your conscious bias displays every time you choose to attack our Department with this derogatory term.

Um, people were saying the LASD was gang-infested long before you took office, Sheriff. That they’re still saying it doesn’t reflect on you or your multilingual skills. All it says is that the problem persists and it’s now your problem, Sheriff.

Finally, the Sheriff appears to believe this somehow is a valid legal threat, despite the fact he’s unlikely to prevail in a defamation lawsuit against city council members. Here’s how the letter wraps up:

I openly challenge every elected leader, or their appointees, to provide facts to me and name individuals who they can prove are “gang members,” as defined by California Penal Code Section 13670, and subject yourself to defamation laws if wrong.

LOL. Well, this shouldn’t be too hard. Here’s the relevant part of the California Code:

“Law enforcement gang” means a group of peace officers within a law enforcement agency who may identify themselves by a name and may be associated with an identifying symbol, including, but not limited to, matching tattoos, and who engage in a pattern of on-duty behavior that intentionally violates the law or fundamental principles of professional policing, including, but not limited to, excluding, harassing, or discriminating against any individual based on a protected category under federal or state antidiscrimination laws, engaging in or promoting conduct that violates the rights of other employees or members of the public, violating agency policy, the persistent practice of unlawful detention or use of excessive force in circumstances where it is known to be unjustified, falsifying police reports, fabricating or destroying evidence, targeting persons for enforcement based solely on protected characteristics of those persons, theft, unauthorized use of alcohol or drugs on duty, unlawful or unauthorized protection of other members from disciplinary actions, and retaliation against other officers who threaten or interfere with the activities of the group.

To sum up: the Los Angeles Sheriff’s Department is a gang associated with an identifying symbol that engages in all of the listed behavior. Therefore, it should be declared illegal under state law and disbanded.

There are few things more enjoyable than sternly-worded letters that are 50% bluster, 50% unintentionally hilarious. Recipients of this letter should take the Sheriff up on his dare and let him know just how many bad apples he’s overseeing. If nothing else, council members should send Villanueva a “Thanks for the laugh. I really needed that.” in response to his declaration of keyboard war.

Filed Under: alex villanueva, cease and desist, defamation, deputy gangs, gangs, hate speech, la, lasd

The Intersection Of Section 230, SLAPP Threats, The Streisand Effect And Sex Discrimination In Corporate Structures

from the so,-so-much dept

Make sure you read the update at the end

This is a story that appears like it was created just to get Techdirt coverage, given how many issues we cover it touches on. Here’s how it starts: Tulane law professor Ann Lipton, an expert on corporate governance and corporate law, wrote an academic paper about “Capital Discrimination.” It’s really interesting, and you should read it — and a lot more people have been reading it over the last few days because of the situation I’m about to describe. The gist of the paper is that sex and gender discrimination happens in disputes regarding corporate structures/ownership, but that we don’t generally have language in typical discussions of corporate ownership that recognize this very real dynamic. The article highlights multiple examples where courts try to apply the more traditional language of corporate ownership disputes in cases where there is clearly an element of sex discrimination.

One of the examples cited is In re: Shawe & Elting LLC, et al., which involves a somewhat incredible dispute between two people, Philip Shawe and Elizabeth Elting, who founded a company together, Transperfect Global. Without getting into all of the sordid details, Shawe and Elting had been in a relationship very early on, around the time of the formation of the business. At some point they were engaged to be married, though, according to the documents, Elting called off the engagement in 1997. From all of the details discussed in the opinion in the legal dispute between them, one could surmise that Shawe and Elting — despite working together as co-CEOs, being the only two members of the board, and building up the company into a massive success, employing thousands of employees, and making hundreds of millions of dollars in revenue a year — spent an awful lot of time fighting with each other in incredibly immature ways. It seems like they had been able to work together semi-amicably for over a decade after their personal relationship broke off, but things went off the rails sometime around 2012. The opinion linked above has detail after detail of incredibly petty and ridiculous behavior, sometimes on both of their parts, but quite frequently driven by Shawe. Here’s just one example from the ruling:

On February 6, 2013, Elting was asked to approve a bonus for an employee working in one of the divisions (TDC) Shawe managed. Elting was willing to approve the bonus if Shawe approved other ?raises that [were] being held up.? Intent on eliminating dual approvals, Shawe would not sign off on the raises Elting wanted to implement unless she would agree that ?other small TPT/TDC decisions go through with eitherpartner?s approval…to avoid hostaging and eventual nuclear war.? Elting would not agree: ?No, Phil. Not how it works here . . . the arrangement is to share it all with both of us. If there is good justification and transparency I will never hold things up.? Shawe would not relent. He instructed Boodram not to release any of the raises: ?They will remain hostaged… until we figure out how to make decisions in general without hostaging.? The episode was played out in an email string on which many of the Company?s senior managers were copied.

In an email exchange on February 14, 2013, Shawe put a new hire for one of Elting?s divisions (TPT) ?[o]n hold? to pressure Elting to abandon dual approvals. Kevin Obarski, Senior Vice President of Sales, who was copied on the email string, chimed in with a private email to Shawe telling him that he was acting like a child:

> You told me in New Orleans that I should tell Liz when she is being crazy- This is me telling you that you are being crazy. I know you are going through a tough time- but you are acting like a child, ruining the rep that you have spent two decade[s] to build and all for what. Because you need to run things by people. It is wasting your own and everyone?s time- just so you can be right. Who cares about being right. We are about to change the world and you are wasting your energy and time on something that does not matter.

In his private response to Obarski, Shawe revealed his plan to ?create constant pain? for Elting until she acquiesced to his demands. He wrote, in relevant part:

> I will not run small things by anyone for my divisions. I will make decisions for my division…and I will hold up Liz?s TPT stuff till they are pushed through. I cannot fight on every small decision. I cannot and will not live that way. I will not change my position. I will simply create constant pain until we go back to the old way of doing things…

There are multiple stories along these lines — many of which appeared to be petty disputes between two co-CEOs posturing over who had power (there’s a side issue in which technically Elting owned 50% of the business and Shawe 49%, but the other 1% was ostensibly held by Shawe’s mother, in order to take advantage of being a “majority woman-owned business,” but in practice, Shawe controlled his mother’s share, so it was a 50/50 company). Many of the business disputes seem incredibly counter-productive, and seem to involve trying to make life difficult for the other one by delaying/hindering business decision making. As they argued, some of the behavior went into really, really questionable territory:

On the evening of December 31, 2013, when he knew ?[w]ith virtual certainty? that Elting would not be in her office, Shawe secretly accessed her locked office on four different occasions using a master key card with the intent to obtain the hard drive from her computer. Having gained this access, Shawe dismantled Elting?s computer, removed the hard drive, made a mirror image of it, and reinstalled the hard drive later that night. A log of the key card access reflects that Shawe entered Elting?s office on New ear?s Eve at 4:29 p.m., 5:34 p.m., 7:22 p.m., and 7:47 p.m. Shawe began reviewing the contents of the hard drive image the next day.

In addition to breaking in to Elting?s computer, Shawe arranged to access the hard drive on her office computer remotely. Using the personal identification number he had previously obtained from the back of Elting?s computer, he mapped to her hard drive from his computer through the Company?s computer network. Shawe accessed Elting?s computer in this manner on at least twenty separate occasions from April 3, 2014, to July 23, 2014. At some point, either through reviewing the hard drive image or his remote access snooping (he could not remember precisely when or which method he used), Shawe discovered that there was a .pst file of Elting?s Gmails on her hard drive. Thereafter, when Shawe remotely accessed Elting?s hard drive, he downloaded a replica of the .pst file of Elting?s Gmails (each later .pst file having accumulated more of Elting?s Gmails) to thumb drives so he could view Elting?s Gmails privately on his laptop, which allowed him to conceal what he was doing. Through these stealthy actions, Shawe gained access to approximately 19,000 of Elting?s Gmails, including approximately 12,000 privileged communications with her counsel at Kramer Levin and her Delaware counsel in this litigation. Presumably concerned about the nature of Shawe?s actions, Sullivan & Cromwell LLP, Shawe?s lead litigation counsel in this Court, told him at the outset of its retention in March 2014 not to send information about the substance of Elting?s Gmails to anyone at the firm.

But some of the issues go way beyond arguments over how the business should be run or how its finances should work — including some pointers that suggest odd behavior in response to the failure of the personal relationship. From a footnote:

Elting?s testimony on these events gives color to her and Shawe?s relationship. After the break-up, Shawe became very angry and ?got under the bed and he stayed there for at least a half hour.? Shawe repeated the same bizarre behavior years later when Elting was in Buenos Aires, Argentina, on business. Shawe showed up unannounced at Elting?s hotel room, refused to leave and again ?got under the bed? for about a half hour. Shawe also oddly invited himself and his mother (Ms. Shawe) to Elting?s wedding in Montego Bay, Jamaica. Id. 13-17 (Elting). Shawe did not deny taking any of these actions.

You can see how this dispute was of interest to Lipton’s paper. It’s one of multiple examples that fits right in and she quotes from the opinion directly. A draft of her paper was uploaded (like many pre-publication papers) to the Elsevier-owned SSRN website, and it was scheduled to be published in the Houston Law Review. However, if you go to the SSRN link now it shows the following:

This paper has been removed from SSRN at the request of the author, SSRN, or the rights holder.

It was not removed at the request of the author or of “the rights holder.” It was removed by SSRN because Shawe had a lawyer send a ridiculous SLAPPy cease-and-desist letter, claiming that the law review article was defamatory. The cease and desist, from lawyer Martin Russo demands that the article be removed.

?The defamatory article defines ?capital discrimination? as ?when women principals experience sex discrimination? and then incorrectly identifies four alleged instances of litigated cases, including one involving Mr. Shawe, that demonstrate ?The Many Faces of Capital Discrimination.? The article admits that “sex discrimination was neither alleged nor proved,? but nonetheless falsely asserts that the lack of allegations and proof was “because there is no clear avenue of recourse? and that ?these stories exemplify instances where firm … partners acted against ?women principals for reasons that at least appear to have stemmed from the. principals? status as women, and the managers? relationship to the principals specifically as women… What these scenarios have in common is that the managers may have acted because of the woman’s sex.?

?The first of several false examples of alleged discrimination is called ?Clash of the Founders,? and details certain findings of the Delaware Chancery Court regarding Mr. Shawe?s alleged conduct. After one paragraph about a failed romantic relationship between Elizabeth Elting and Mr. Shawe in 1999, the article: factually ignores 12 years of profitable joint business operations to arrive at the 2012 disagreements between the co- CEOs over the direction of the company. What follows are anecdotes plucked from the record which have no obvious connection to sex or gender except for the fact that the co-CEO/founders were aman and a woman. Without any factual basis, the article falsely states *[rJeading the Delaware court? findings and the parties? submissions, the gendered aspects of the conflict are difficult to miss.? In fact, the gendered aspects of the conflict are dificult to find, because they do not exist. The article then goes on to more specifically falsely accuse Mr. Shawe of so-called capital discrimination by ?refusing to pay dividends? and ?making a low-ball buyout offer? to his former partner. Finally, the article falsely states, in the absence of any claim or proof of sex or gender-based conduct, that if ?Shawe?s stalking and undermining of Elting?s authority had been identified as gender-based harassment, his breach of fiduciary duty to the TransPerfect corporation may have persuaded the court to impose a non-competition order, allowing for a sales process that would have been more favorable to Elting.”

The crux of Shawe’s complaint is that their legal dispute had nothing to do with their previous relationship, and was entirely a more traditional business dispute. But… that’s an opinion. As is Lipton’s opinion regarding how it relates the thesis of her paper. And, opinions are not defamatory. Other elements in the paper, including the references to Shawe’s terrible behavior, seem obviously protected under fair reporting privilege. Honestly, the crux of Shawe/Russo’s complaint is that they don’t like how Lipton characterizes the nature of the dispute, but that’s easily protected opinion and not defamatory.

Also, if Shawe wants to contend that the behavior at issue in the lawsuit was solely because of differences in how the business should be run, and not having anything to do with his failed personal relationship with Elting, he maybe should not have done the following, as detailed in the court’s opinion:

Shawe sought to have Elting criminally prosecuted by referring to her as his ex-fianc?e seventeen years after the fact when filing a ?Domestic Incident Report? as a result of a seemingly minor altercation in her office.

So, maybe it wasn’t Lipton who was connecting the failed relationship with the business dispute — perhaps it was Shawe himself who sought to make use of the failed relationship claim to give him leverage in the business dispute, including seeking to have Elting criminally prosecuted by filing a “domestic incident report.”

Given all of this, it’s hard to see the cease and desist letter as anything more than blustery nonsense. But, ridiculously, SSRN pulled the paper, as has the Houston Law Review. To their credit, Lipton’s employer, Tulane University is standing behind her:

The article is a thorough and meticulously-source scholarly work. The factual assertions regarding Mr. Shave are sourced from publicly-available court opinions and filings in the litigation between Mr. Shawe and his former business partner. The source of each statement is set forth in the Article’s footnotes. The ?cease and desist? letter of December 23, 2021, does not contend that the facts attributed to Mr. Shawe are false. Rather, the letter takes issue with the Article’s conclusions and commentary on the facts presented (i.e., that Mr. Shawe?s conduct is an example of sex discrimination).

The Article?s conclusions constitute opinions protected by the First Amendment. As the United States Supreme Court has observed, ?[u]nder the First Amendment there is no such thing. as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.?

Furthermore, it is well-settled that a statement of opinion based on fully disclosed facts is not actionable unless the stated facts are themselves false and defamatory. The rationale behind this rule is clear: When the facts underlying a statement of opinion are disclosed, readers understand they are getting the authors interpretation of the facts presented. ?Because the reader understands that such supported opinions represent the writer’s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation.”

The letter also points out to SSRN that no terms of service have been violated, and they believe SSRN should repost the article.

So combine this all together and we have a situation in which Shawe is angry about how he is portrayed in the paper, but that doesn’t make it defamatory. The cease and desist letter has all the hallmarks of a frivolous SLAPPy legal threat. It highlights no false statements of fact, but merely calls out the statements of opinion made by Lipton in her paper, which are based on the facts that — again — Shawe’s letter does not dispute. So this seems like a pretty blatant SLAPP threat.

Then, let’s get to SSRN, which should not be pulling down the article. First, even a semi-competent review of the cease and desist would find that the defamation claims appear baseless. One would hope that SSRN would do such an analysis and not fall prey to a heckler’s veto. Second, even if there were defamatory content (and again, that seems like a huge stretch), SSRN would be easily protected under Section 230. SSRN is an interactive computer service under the law, and cannot be held liable for the speech of third party content providers, such as Lipton.

In fact, this situation highlights the importance of Section 230, in that without Section 230, bumptious threats like this one would enable anyone to get just about anything pulled off of an online host. The nature of Section 230’s immunity, is that it allows all sorts of different kinds of websites to host content, without having to freak out at the first sign of a legal threat over the content uploaded by a user. SSRN is within its own rights to pull down any content, of course, but the decision to do so here strongly suggests that (1) it did not carefully review the letter and the paper, or (2) that it doesn’t understand how Section 230 protects it here.

Finally, there’s the Streisand Effect. I’d never heard about this paper, or the dispute between Shawe and Elting. And now I and many, many, many more people have read the article (and I went and read the opinion in the Delaware Chancery Court with many, many, many more details on Shawe’s behavior). So, once again, in filing a highly questionable legal threat intended to suppress this information, Shawe and Russo have only served to make people much, much, much more aware of the court record regarding Shawe’s behavior.

Update… and just as I was putting the finishing touches on this post, SSRN put the paper back up. On Twitter, it explained itself as follows:

To add some detail, SSRN has always had the policy of taking down any paper related to a defamation or other legal claim while the claim was being investigated. To date, we have not had problems with this approach and I am sorry how this situation has played out. We have now had lengthy discussions with the legal department and will be amending the approach going forward. Your paper has been reposted, all counts are updated, and I apologize for the confusion.

And one can argue that taking it down while you investigate is a reasonable policy — though a key part of the way Section 230 works is that you don’t need to. And, frankly, that’s the appropriate setup, because it recognizes that the potential harm from suppressing legal speech is a huge problem. In the end, though, it’s good that SSRN appears to be revising its policy.

Filed Under: ann lipton, cease and desist, corporate structures, defamation, elizabeth elting, houston law review, martin russo, philip shawe, section 230, sex discrimination, slapp, streisand effect
Companies: elsevier, ssrn, transperfect global

Are Overly Aggressive Trademark Lawyers Learning Not To Be Such Assholes All The Time?

from the maybe! dept

It’s been just over 17 years since I coined the phrase “The Streisand Effect,” which has totally taken on a life of its own. A key reason for naming it was to hopefully wake up overly aggressive lawyers to the fact that sending a nasty, threatening cease and desist letters to try to suppress information or stop someone from doing something wasn’t a good idea. A few years later, a lawyer friend of mine mentioned that he thought that the concept of The Streisand Effect had done its job — and that many, many corporate lawyers were much more averse to sending out such aggressive letters, recognizing that there might be a better approach. However, I still find it’s pretty typical for many lawyers to immediately go for the the nasty threat letter, so it seemed like perhaps the lawyers hadn’t quite gotten the message.

So… it’s kind of a pleasant surprise to see how at least one large company — and possibly a bunch of large companies — handled the recent “drop” from the merry pranksters at MSCHF (who are no strangers to legal controversies). The new drop is the C&D Grand Prix, in which MSCHF was selling racecar-style shirts emblazoned with corporate logos from some of the biggest (and most legally aggressive in protecting their trademarks) brands out there:

People could buy each shirt, and then there was a special prize: anyone who bought the shirt of the “winner” of the Grand Prix would also get a MSCHF Grand Prix champion’s hat. How could a company “win”? By being the first company, whose logoed shirt was for sale, to send MSCHF a cease and desist.

What’s funny is that we had considered a remarkably similar idea at Techdirt many years ago (though a bit more focused on highlighting some absurdities of trademark law), but decided not to do it because we don’t have a giant bank account like MSCHF does.

Of course, there were some big questions about how would the various companies respond, and, incredibly, none of the companies (as far as we can tell) actually freaked out about this and went ballistic. It’s possible such letters are still coming. However, at least one of the companies prodded by the Grand Prix, Subway, actually took this all in good spirit. Very soon after MSCHF launched the Grand Prix, it tweeted “Two can play this game. Who’s interested in this bad boy?” and posted an image of a Subway colored shirt, but with MSCHF’s logo on the front:

Well played, Subway. Well, played.

Except, of course, to win the Grand Prix, someone had to send an actual cease and desist, and after a few users bugged Subway about it, the company complied:

The tweet says “You asked and you shall receive. Give the people hats @mschf.” And the posted image says:

Dear MSCHF,

It is with great pleasure and a distinct honor to send this cease and desist to MSCHF INC. We didn’t want to send this, we really didn’t, but with free hats on the line, how could we not.

With that being said… stop using our logo or we’ll sue you, lol. Now give the people free hats!

Strongly Worded Lawyer Sign-Off, Subway

Now, obviously, this is joking, but it appears that MSCHF has accepted it as the winning entry in the Grand Prix.

Now, some may be slightly upset that this stunt didn’t (yet?) provoke a “real” cease and desist letter, but I’m moderately happy with that fact, as it suggests that perhaps (maybe? really?) itchy trigger trademark lawyers at these big firms are (maybe? possibly?) realizing that shooting off a cease and desist letter at the first opportunity isn’t the best decision.

Of course, if they had decided to use the logo of a clothing company like The North Face, perhaps the outcome would have been a bit different…

Filed Under: c and d grand prix, cease and desist, streisand effect, trademark
Companies: mschf, subway

Nintendo Plays 'Control Inception', Cancelling Splatoon Broadcast After Teams Protest Canceling Smash Bros. Tourney

from the will-slip-through-your-fingers dept

If you’re one of what I assume are zillions of folks who come here for my rants about Nintendo, I owe you an apology. While I’m usually pretty good about bringing you every instance of Nintendo doing the Nintendo all over itself and its fans, one such instance from last month slipped through the cracks. The Big House is a high profile Super Smash Bros. tournament series and host. Unfortunately, Nintendo shut down what was supposed to be the latest tournament and broadcast of The Big House via a C&D notice. At issue appears to be the use of a mod called “slippi”, a fan-made mod that basically unbroke the nearly two decades old game when it came to online play. Without getting too technical, the mod simply made the game perform well over internet connections, whereas it was previously essentially unplayable. Given that The Big House tournament was rendered virtual this year due to you-all-know-what, the mod was essential to running the tournament. From Nintendo:

Unfortunately, the upcoming Big House tournament announced plans to host an online tournament for Super Smash Bros. Melee that requires use of illegally copied versions of the game in conjunction with a mod called ‘Slippi’ during their online event. Nintendo therefore contacted the tournament organizers to ask them to stop. They refused, leaving Nintendo no choice but to step in to protect its intellectual property and brands. Nintendo cannot condone or allow piracy of its intellectual property.

Which is a misleading statement at best. While The Big House confirmed most of those details, it’s also true that digitizing one’s own video game collection is not “illegal copying”. Unless Nintendo has reason to think players in the tournament were simply pirating the game, which would be insane, given the high profile nature of the tourney, that part of its statement is nonsense.

Nintendo does, however, meticulously control its image, how its games are broadcast, and any modifications to its games, a la the slippi mod.

And, apparently, it may also play authoritarian when it comes to how the players of its games choose to express their displeasure at Nintendo’s actions. That’s the speculation, given that just this past weekend, Nintendo pulled the broadcast for a Splatoon 2 tournament that was notable pretty much solely because a healthy chunk of the participating teams chose team names protesting the cancellation of The Big House.

Word of an issue broke to the public at large on Saturday evening when a gamer who goes by the name Slimy Tweeted that “the Splatoon community, in support of the Smash community, has 30% of the top teams in this weekend’s Spl2 NA Open with Team names in support of Melee and Smash.” They then noted that Nintendo then canceled plans to livestream the event. The tweet went viral.

Was it really the existence of team names such as InC #FreeMelee, Melee Nation, and #FreeMelee 227 that made Nintendo drop the stream? The company isn’t saying and hasn’t responded to Kotaku’s requests for comments.

Notably, when gaming sites asked Nintendo whether this was the reason, the company responded: “La, la, la, I can’t heeeeaar you!” Battlefy, the company hosting the event on Nintendo’s behalf, issued a vague statement saying the broadcast had to be cancelled due to “unexpected executional challenges.” Few in the Splatoon community appeared to believe this.

A fan-run streaming organization, however, had no issues taking over… and taking a shot at Nintendo at the same time, with more clever naming of this replacement tournament.

On Sunday morning, EndGameTV, a fan-run Splatoon and Smash streaming organization not connected to Nintendo, announced that the group, with the help of fans, would hold its own Splatoon 2 finals. The event would be called “The Squid House” a direct reference to The Big House. The Splatoon 2 teams who were supposed to play that day in the official Nintendo event dropped out of the tournament just hours before they were supposed to play, leading to the event not being held. On the Battlefy page for the event, the top four section seems to have been removed.

The Squid House competition, which was organized overnight, was held as planned on December 6, with team FTWaveDash winning the event and the prize pool of 25,000,whichhadbeenraisedbyfansduringthetournament.Thecompetitionalsoraisedover25,000, which had been raised by fans during the tournament. The competition also raised over 25,000,whichhadbeenraisedbyfansduringthetournament.Thecompetitionalsoraisedover3,000 for charity. According to Slimy, The Squid House prize pool was the largest seen in any western-held Splatoon 2 tournament.

And so, in an effort simply to play Grand Moff Tarkin and squeeze its fist around its own community, Nintendo instead allowed a fan-run streaming site to put on what might be the most successful Splatoon 2 tournament in our hemisphere. Success, it would seem, just not Nintendo’s.

Filed Under: cease and desist, mods, slippi, splatoon 2, super smash bros., the big house, tournaments
Companies: nintendo

Google Says Clearview's Site Scraping Is Wrong; Clearview Reminds Google It Scrapes Sites All The Time

from the twospidermans.jpg dept

Clearview’s business model has resulted in some mutual finger pointing. The most infamous of facial recognition tech companies outsources its database development. Rather than seeking input from interested parties, it scrapes sites for pictures of faces and whatever personal info accompanies them. The scraped info forms the contents of its facial recognition database, putting law enforcement only a few app clicks away from accessing over 3 billion images.

The companies being scraped have claimed this is a violation of their terms of service, if not actually illegal. It’s not clear that it’s actually illegal, even if it does violate the restrictions placed on users of these services. Twitter has already sent a cease-and-desist to Clearview, but it will probably take a court to make this stick. Unfortunately, Clearview’s actions could lead to some damaging precedent if Twitter forces the issue. Given the number of sites affected by Clearview’s scraping efforts, it’s probably only a matter of time before this gets litigious.

But the finger pointed by Google at Clearview hasn’t obtained the reaction Google may have hoped for. As CBS News reports, Clearview has returned fire by comparing its business model to Google’s business model.

Google and YouTube have sent a cease-and-desist letter to Clearview AI, a facial recognition app that scrapes images from websites and social media platforms, CBS News has learned.

[…]

[Clearview CEOP Hoan] Ton-That also argued that Clearview AI is essentially a search engine for faces. “Google can pull in information from all different websites,” he said. “So if it’s public and it’s out there and could be inside Google search engine, it can be inside ours as well.”

He’s not wrong. Google’s bots crawl the internet non-stop, building a database for its search engine. But there is one key difference: website owners can opt out of Google’s indexing.

“Most websites want to be included in Google Search, and we give webmasters control over what information from their site is included in our search results, including the option to opt-out entirely. Clearview secretly collected image data of individuals without their consent, and in violation of rules explicitly forbidding them from doing so,” [YouTube spokesperson Alex Thomas] said in the statement to CBS News.

There’s no way to opt out of Clearview’s “service,” other than just not existing on the internet. Ton-That is correct in assuming there’s very little legal exposure in scraping publicly-available images from the net, but these statements don’t make him or his company any more sympathetic. Ton-That is serving up untested AI to as many law enforcement agencies as possible, encouraging them to test drive the app using faces of friends and family even as the company states the software should only be used for approved law enforcement purposes.

It also claims an accuracy rate of 99.6% for searches, but that number hasn’t been rigorously tested. What appears to be happening is a mass rollout of untested AI to law enforcement agencies via demo/trial accounts. Clearview claims to be working with over 600 law enforcement agencies but very few agencies have stated publicly they’ve used Clearview to perform investigations.

Clearview’s packaging of public information into a law enforcement app is unpleasant, but likely legal. The same thing goes on behind the scenes of multiple data aggregators that sell info and analytics directly to government agencies. The main difference here is Clearview hasn’t been shy about its desire to pitch a cheap app/database to law enforcement even as its product remains unproven and untested. And it puts cops a lot closer to their dystopian dream of being able to demand identification from anyone they run into on the streets.

Filed Under: ai, cease and desist, facial recognition, scraping, terms of service
Companies: clearview, clearview ai, google, twitter

Alexander Vindman Now Threatens Bogus SLAPP Suit Against Fox News & Laura Ingraham

from the can-we-stop-with-the-slapps dept

SLAPP suits and SLAPP threats are flying back and forth these days. The latest is that Lt. Col. Alex Vindman, who is a key player in the impeachment hearings, is threatening a highly questionable defamation lawsuit against Fox News and Laura Ingraham, because she had on a guest who suggested Vindman was guilty of espionage (he’s not). The threat letter was sent by David Pressman, a lawyer who works for Boies Schiller Flexner, a law firm which has a history of sending around bogus threat letters to the media for doing reporting.

Even if you think that Fox News is terrible (it is), that Ingraham is not to be trusted (she’s not), and that her guests are fools (they are), this threat is still completely bogus and silly.

During their exchange, Ms. Ingraham said, ?Here we have a U.S. national security official who is advising Ukraine, while working inside the White House, apparently against the president?s interest, and usually, they spoke in English. Isn?t that kind of an interesting angle on this story??

?I found that astounding,? Mr. Yoo replied. ?Some people might call that espionage.?

The Mr. Yoo in question is John Yoo, whose biggest claim to fame is writing the legal justifications for torture during the Bush administration. I wouldn’t trust him to throw a ball to a dog, let alone opine on matters regarding the administration, but that doesn’t mean that what he said was defamatory. As Ken “Popehat” White explained in a Twitter thread, even if everything Yoo and Ingraham said is ridiculous (and it is), there’s nothing in there that rises to the level of defamation:

/2 Defamation requires a provably false statement of fact. Arguments, characterizations, political rhetoric and hyperbole, and various forms of consciously performative bullshit don't qualify."Vindman's conduct we were just talking about is ESPIONAGE" is opinion, not defamation.

— IWantNothingHat (@Popehat) November 20, 2019

No matter which side of this you stand on, hopefully we can all agree that bogus threats of defamation, and silly cease and desist letters over people stating a (bad and dumb) opinion are not helping anyone.

Filed Under: 1st amendment, alexander vindman, cease and desist, david boies, david pressman, defamation, espionage, free speech, john yoo, lauara ingraham, slapp, threats
Companies: fox news

Billy Mitchell Threatens To Sue The Guinness World Record Folks For Removing His Records

from the not-how-it-works dept

Last time we wrote about Billy Mitchell — a man who appears to be famous for playing video games and pissing people off — he was losing his legal fight against Cartoon Network for having a character that was a parody of Mitchell named Garrett Bobby Ferguson on its “Regular Show.” The court was not impressed.

The GBF character resembles Plaintiff because both have long black hair and a beard. GBF also has a similar backstory to Plaintiff?s portrayal in The King of Kong, in that both held records at video games, and both are portrayed as arrogant yet successful, beloved by fans, and willing to go to great lengths to maintain their titles. But while GBF may be a less-than-subtle evocation of Plaintiff, GBF is not a literal representation of him. The television character does not match the Plaintiff in appearance: GBF appears as a non-human creature, a giant floating head with no body from outer space, while Plaintiff is a human being. Nor does GBF?s story exactly track Plaintiff?s biographical details. GBF holds the universe record at Broken Bonez; Plaintiff held the world record at Donkey Kong. GBF attempts to maintain his universe record through crying and lying about his backstory; Plaintiff maintained his world record by questioning his opponent?s equipment and the authenticity of his submission of a filmed high score. Plaintiff himself acknowledges that GBF is not a literal representation of him when he states that ?[t]he actions of this character . . . make me look like some sort of monster, or creature, with no heart or decency. This is simply not me.?

The court also noted that, unlike Mitchell, when Ferguson lost his video game record “the character literally explodes, unlike Plaintiff.” So there’s that.

Apparently, in early 2018, there was a big controversy when Twin Galaxies, who tracks video game records (including for the Guinness Book of World Records), stripped Mitchell of his various records after claiming that an investigation showed evidence that Mitchell did not follow the rules. The Guinness folks later removed Mitchell’s records as well, and later included Mitchell in a section called “The Records That Never Were”:

Now, a year and a half later, Mitchell had a law firm send a threat letter to both Guinness and Twin Galaxies, demanding a retraction. There’s also the, um, 156-page “evidence pack.” Notably, despite the legal threat letter demanding a “retraction” for “their defamatory statements made against him,” nowhere in the letter does it lay out which specific statements are actually defamatory. That’s kind of a key thing that you’re supposed to do if you have a legitimate claim of defamation. What actual statements the letter does mention don’t seem to come close to the standard for defamation. Instead, Mitchell’s lawyers are nitpicking about Guinness’ specific word choice. For example:

Notably, Guinness World Records then published its 2019 Gamer?s Edition Book (see Figure 1). Titled ?THE RECORDS THAT NEVER WERE,? Guinness World Records specifically cites the disqualification of Billy Mitchell?s ?highest score on PAC-Man and the first perfect score on PAC-Man.? Following that, Guinness stated that Mitchell?s ?submitted scores were obtained while using MAME.? In this statement, not only did Guinness World Records assert that Mitchell?s records, specifically his Pac-man records, ?NEVER WERE,? but its use of the generalized phrase, ?submitted scores,? also asserted that all his achievements were obtained while using MAME. These statements are factually false.

Defamation has to be pretty specific. Merely using a “generalized phrase” that might imply a conclusion that is different than what you want is not defamatory. The letter also demands that every record Mitchell had be restored, and insists that only partially restoring the scores won’t be enough to avoid litigation:

This request for retraction is for all of Billy Mitchell?s records; a partial retraction will not suffice. Both Twin Galaxies and Guinness World Records must retract their claims impugning Mitchell’s scores publicly, so the damages done to him will finally begin to reverse. There was a press release against Billy Mitchell, and there must be a reciprocal release in his favor.

Each corporation has a 14-day deadline to review the information and issue the retraction, or we will resort to legal recourse, our final option.

But, uh, not giving you a world record is not defamatory. What would they be suing over? I don’t see what kind of legal claim there might be. There are also at least some questions about the statute of limitation. The Guinness World Record people are based in NY. The Twin Galaxies boss appears to be in California — both of which have a 1-year statute of limitations for defamation. Of course, it’s possible that he could file elsewhere with a longer statute of limitations. Either way, it’s difficult to see what’s defamatory here, or what the actual legal claims are. We’ll wait and see what is said in response and if any litigation is actually filed.

Filed Under: billy mitchell, cease and desist, cheating, defamation, opinion, records, threats, video games
Companies: guinness world records, twin galaxies