Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Fifty Year Old Broadcast Leads to Current Tussle

    Feb 04, 2016
    A friend sent this article my way the other day. It’s the story of Troy Haupt – the owner of the only copy of the television broadcast of the first Super Bowl. Although NBC and CBS both broadcast the game, neither networks saved a copy. The NFL Network recently showed a broadcast of the game, but that was pieced together from game film. Haupt’s father used a primitive Quadruplex taping machine to record the CBS broadcast – commercials (including one for True cigarettes) and all. It appears to be the one and only copy in the world.

    And that would seem to make them incredibly valuable. Except that the NFL is doing what it does best – being arrogant and litigious and pretty much ruining the story for Mr. Haupt. The NFL made a lowball offer for the tapes, which Haupt rejected. The League then told Haupt if he sold the tapes to anyone else, he’d be sued for copyright infringement. The New York Times article suggests that the NFL’s legal position is solid.

    But not so fast. On further review, that call may not stand. Here’s a piece from the Washington Post suggesting that Mr. Haupt may be able to sell the tapes to anyone he chooses. The NFL clearly owned the copyright to the broadcast of the game. But the question seems to be whether Haupt’s father legally copied the broadcast. If so, according to the Washington Post, he can sell the tangible copy to another person under the “first sale doctrine.” It’s not a terribly complicated concept. If I buy a DVD of a movie, I can’t put it on a big screen in my back yard and charge my neighbors admission to come and watch it. That’s an unauthorized use. But I can sell the DVD at a yard sale. Haupt is interested in the latter here, not the former. But the NFL, which should he busy spending its time figuring out how to stop the CTE epidemic among its players, is too busy sticking it to some poor fan.
    Go comment!
  • Zombies and the First Amendment

    Feb 02, 2016
    Until recently, had you mentioned Zombies to me, I would have immediately thought of one of my all-time favorite, classic rock hits.

    “She’s Not There” was the great hit by the band the Zombies. But now, when I hear Zombies, I’m thinking about this.

    Seems that a group of protestors dressed as zombies protested at the Hamilton County Ohio courthouse this week to voice their support for Jasen Dixon, who is facing $13,000 in fines for assembling a zombie nativity scene on his front lawn.

    I doubt the founding fathers had zombies on their minds when they enacted the First Amendment, but I like to think they’d be rooting for them in this case.  
    Go comment!
  • Criminally Stupid

    Jan 27, 2016
    I heard a cop one time say that his job was made easier by the fact that most criminals are basically dumb.  And I assume the criminals he was referring to were primarily petty thieves and other low level operators who sloppily left clues, making them easy to track down. I suspect he was not talking about college professors. But in the case of University of Missouri Communications Professor Dr. Melissa Click, he may have been.   

    Dr. Click is the professor who achieved some notoriety last year when she tried to “get some muscle” to help forcibly remove a reporter from the campus newspaper away from a gathering of students concerned about the University’s handling of a number of racial incidents.  The student activists had gathered outside on a publicly accessible space on campus in an effort to “be alone” (I am not making this up).  The campus newspaper reporter, Mark Schierbecker was videotaping the efforts of the group to shoo away photographer Tim Tai, when Click decided enough was enough.   

    Click (who really should know better) pushed Schierbecker’s video camera to one side and called out for “some muscle.”  Click’s disregard for the First Amendment, common courtesy and logic wound up getting her charged this past Monday with third degree assault charges.  She could face up to 15 days in jail.  

    To all of which I say YES!!!!!
    Go comment!
  • Curb Your Enthusiasm for Retaliation

    Jan 20, 2016
    NPR ran a piece yesterday morning about the U.S. Supreme Court case of Heffernan v. City of Patterson case, and noted that the facts sound like a "Curb Your Enthusiasm" episode.  The Supreme Court heard argument on the case yesterday.  

    For those readers with a richer live than me, and who are not familiar with "Curb" let me give some quick background. It is the funniest comedy that has ever run on TV.  It stars (I'm using the present tense because I want it to come back!) Larry David as "Larry David."  David was the co-creator of Seinfeld, and the inspiration for George Costanza.  In the HBO series, Larry routinely finds himself in the wrong place, at the wrong time, doing the wrong thing.  And hilarity ensues.  

    Here are the Heffernan facts, courtesy of the SCOTUSblog:  

    Jeffrey Heffernan was a twenty-year veteran police officer in Paterson, N.J., promoted to detective in 2005 and assigned to the office of the chief of police. In April 2006, Paterson was in the midst of a mayoral election. The incumbent had the support of the chief of police (Heffernan’s ultimate supervisor) and the chief’s executive officer (Heffernan’s immediate supervisor). The challenger was a former Paterson police chief and friend of Heffernan; although Heffernan spoke regularly with his friend, he did not work on the campaign and was not even eligible to vote in the election because he did not live in the city. But Heffernan’s bedridden mother did. One afternoon, while off duty, Heffernan was at the challenger’s campaign center to get his mother a new yard sign (her old one had been stolen), when a member of the mayor’s security detail who happened to be driving by spotted him holding the sign. Word quickly spread through the department. The next day, Heffernan was demoted to patrol officer and assigned to a walking patrol post, explicitly because of his support for and involvement in the challenger’s campaign. The district court and the U.S. Court of Appeals for the Third Circuit rejected Heffernan’s claim that his demotion violated the First Amendment, holding that a retaliation claim lies only when the government retaliated against an employee who actually exercised his First Amendment rights.  

    Let’s recap here.  There seems to be no dispute that the city of Paterson demoted Heffernan because it believed, erroneously, that Heffernan was actively supporting the candidate challenging the incumbent mayor. That is, on its face, a First Amendment violation.  But apparently, Paterson gets off the hook because of its mistaken impression.  Of course, Heffernan really did get demoted and the decision really was motivated by a desire to punish him for exercising his First Amendment rights.  I can absolutely hear Larry David bemoaning the injustice of it.  But this isn’t really funny. And I hope the Supreme Court rules in Officer Heffernan’s favor.  

    In the Bengal Steeler playoff debacle two weeks ago, William Gay picked up a fumble and ran it in for a touchdown.  Gay then did what Steelers do – celebrated like a jackass.  He was flagged for excessive celebration.  But as it turned out, the refs had called a penalty on the play, meaning no touchdown, and the Bengals got the ball back.  Under Paterson’s view of the world, Gay’s celebration penalty should have been nullified since the touchdown he was celebrating never really happened.  But in this one isolated instance, common sense prevailed in the NFL and the penalty was enforced.   

    And if common sense prevails at the Supreme Court, I think Heffernan should prevail.  A city ought not be permitted to retaliate against protected First Amendment activity. And if a city’s actions are motivated by that intent, it should be punished.  The fact that the city administration is inept to adopt a ready, fire, aim approach rally ought not get it off the hook.  

    But I may be wrong. And maybe when his playing days are over William Gay should run for mayor of Paterson. 
    Go comment!
  • Farewell to a Good Man

    Jan 19, 2016
    James “Archie” Manning died recently. His visitation is tomorrow.  Jim was a big guy, and he simply loved sports.  He refereed basketball at the CYO and high school level.  He attended Purcell, but migrated to the West side, where he became a huge Elder fan. I think his son went there.  I heard a story once that he was officiating a close game at Elder, and late in the game, the ball bounced off the opponent’s leg and went out of bounds. According to the story, Archie blew his whistle and in his excitement yelled “Our ball!”  I can’t confirm that, but I can’t possibly deny it either.  

    Where I got to know him best, along with literally hundreds of other lawyers, was in his role as the commissioner of the Cincinnati Lawyers Softball League.  Archie ran it for as long as I can remember.  He did the scheduling, and he umpired many of the games. His son Tim helped out.   

    One of my favorite rituals, and one I will surely miss, is every year’s first at bat when I would step in the box, and have Archie say “Greinz, how you doing?”  He truly loved the lawyers league.  Which was not easy.  I mean, imagine a group of some of the most self-centered, argumentative, uber-competitive people you’ve ever met.  Now multiply it by 10.  That’s pretty much the league’s makeup.  And in the middle of it all was Archie.  Loving it.  I can’t imagine what it will be like this summer. But it won’t be the same.  

    Paul Daugherty  wrote a column today about Pete Rose.   Pete purports to love the game.  But following his MLB suspension he never once considered coaching at the high school or college level. He never volunteered his time with inner city youth baseball. He certainly never put in the kind of time that Archie did.  And that is the difference I think.  Pete loves Pete.  Archie loved the game.  
    Go comment!
  • Welcome to the Neighborhood

    Jan 14, 2016
    I'm working today in our firm's new office space in Cincinnati's Over the Rhine neighborhood. It's on Main Street, near Liberty. We're calling it "Graydon on Main" which is accurate if not terribly clever. In any event, on my way to work, I stopped for some coffee at Shadeau Breads. I introduced myself to the manager and told him about our new space. He pointed across the street and suggested there might be a legal fight brewing. What he was pointing to was this:

    From what I can surmise, The Tax Place on Main, a local small business, is none too pleased with the presence of an H&R Block office directly across the street. Hence, the sign.

    I imagine H&R Block is not happy with the sign, but it remains in place. There are several possible reasons for this. First, it's tax season, which means no one at H&R Block has time to look out the window. Second, it's possible H&R Block is working on a sign that says something along the lines of "I'm rubber and you're glue . . . "  We'll wait and see if that happens. Third, H&R Block may have concluded that there isn't much of a legal claim here.

    If the explanation is #3, that's probably wise. While H&R Bock likely has trademark protection for its name, the Tax Place's use of it in the sign would probably be deemed a "nominative use." Nominative use just means another person is using the mark to refer to the company. You actually see this a lot, albeit in less hostile circumstances. Chevy, for instance, may say in an ad that the Malibu costs less than a Toyota Camry. It's okay to use the competitor's mark to make a comparison. Arguably, that is what the Tax Place is doing. The implied comparison here, I suppose is "H&R Block Sucks, but we don't."

    And that raises another potential claim -- business disparagement. This is essentially a defamation claim. But it's likely H&R Block wouldn't win this one either. Whether one "sucks" is a matter of opinion. And it really can't be proven false. It's not like a more factual charge -- for instance if the Tax Place said "H&R Block sucks because it gives false tax advice." That statement can be proven true -- either H&R Block does or doesn't give false tax advice. But the more generic "sucks" is too vague. 

    So I don't expect to see any legal action over the sign. Which means, I suspect it will remain in place. And we'll try to stay on the good side of all our new neighbors!
    Go comment!
  • Unintended Consequences

    Jan 12, 2016
    Big data apparently can lead to big trouble.  At least that is the word from the Federal Trade Commission.   The FTC is warning marketers and financial institutions that big data and algorithms used to target advertising to specific demographic groups may result in the unintended consequence of unlawful discrimination.   

    The FTC report is here.  And here’s one example of a trap for the unwary.   It would be a clear violation of the Equal Credit Opportunity Act to prohibit single women from applying for a prime credit card.  But what if, as a result of some algorithm, the only ads delivered to single women – even women who would qualify for the prime product – are for subprime cards?  Blind reliance on the data could lead to big trouble.  

    So how to avoid the problems?  The report suggests several safeguards, but the most basic may be simply this:  "It may be worthwhile to have human oversight of data and algorithms when big data tools are used to make important decisions, such as those implicating health, credit, and employment."  Seems pretty sensible.
    Go comment!
  • Patently Ridiculous

    Jan 11, 2016
    I saw this post today and I assume it is for real.  In short, the National Organization of Women Foundation sent an open letter to  the President of the University of Virginia demanding that President Sullivan take steps to put a stop to the a defamation lawsuit filed by Assistant Dean Nicole Eramo against Rolling Stone Magazine.  The suit arises from Rolling Stone’s botched investigative report on an alleged gang rape of a student known only as “Jackie.”  The organization demanding that the suit be dropped believes the suit will further victimize “Jackie.”  

    “Jackie’s” account of the night has been debunked in a number of material ways by the Columbia Journalism Review.   And it appears that Assistant Dean Eramo, who comes off in the article as an unfeeling, soulless bureaucrat, may have a very legitimate libel claim.   And the idea that her boss – President Sullivan -- should somehow force Eramo to give up her right to clear her reputation is absurd.   
    Go comment!
  • Is Yik Yak Yucky?

    Jan 08, 2016
    I’m not sure what to think about this New York Times article.  It recounts tragic events at the University of Mary Washington.  A female student there was murdered following a controversy involving the rugby team and some vile threats on the site Yik Yak app.   The Yik Yak app allows people to create and view discussion threads within a 5 mile radius.  And it’s anonymous.  The proximity feature and the anonymity feature make it popular on college campuses.  

    And unfortunately, it’s not uncommon for people to use Yik Yak to make incredibly demeaning, offensive comments. In the Mary Washington situation, the comments escalated to threats and one of the targets of the threats was murdered.  

    Even before the murder, students at Mary Washington were demanding that the university close down Yik Yak on campus, and ban the service from U.M.W.'s Wi-Fi.  Debra Katz, a lawyer involved in the matter is quoted in the New York Times article saying “Universities wouldn’t allow students to run around with megaphones and chant racist and sexist and horrible things if it was affecting the environment for other students. Why don’t they do anything when it’s happening via cyberspace? In some respects, it’s more damaging.”  

    The linked article seems sympathetic to the notion that Yik Yak is the problem. The concluding sentence of the article says: “Ms. Katz said she was confident that an ‘enforcement action’ would be brought against the university. Let’s hope that is so, and that this is the beginning of the end for Yik Yak.”  

    I am sympathetic to the students harmed by the actions of the idiots who misuse the app.  But isn’t the problem the idiots?  If those same idiots blanketed the campus with hand-made flyers would there be a demand to ban Sharpies? I am truly not trying to be flip about this.  And I suppose the hyper local/anonymous features of Yik Yak invite abuse.  But those same features could be very valuable. In a campus emergency, those features – including anonymity – could potentially alert first responders to trouble areas.  And students who may want to talk about intensely personal issues – sexual orientation or gender identification – my appreciate the ability to communicate with others in close proximity without disclosing their identities.   

    My point is, not only would the First Amendment pose a huge obstacle to the proposed “solutions” here, but as a matter of policy, they fail as well.    
    Go comment!
  • Native Advertising - Keeping it Real

    Jan 06, 2016
    Native advertising, according to the Federal Trade Commission, is “content that bears a similarity to the news, feature articles, product reviews, entertainment, and other material that surrounds it online.” That definition may or may not be accurate. But considering the FTC is the arm of the government that regulates this stuff, it’s probably a good idea to use it. And that definition explains the conundrum that native advertising presents.

    One of the reasons native advertising looks like “the content that surrounds it” is so people won’t skip over it. And while that makes business sense, the FTC worries that it’s potentially deceptive. From the FTC’s perspective, a consumers have the right to know what they’re getting into when they look at content. If consumers get sucked in by what looks like editorial content, only to be exposed to advertising, that’s a problem.

    But hey, as the famous saying goes, “the FTC is from the government and we’re here to help.” And that help comes in the form of a publication called “Native Advertising: A Guide for Business.” If you or you marketing firm are using (or thinking about using) native advertising, this is mandatory reading. And the good news is, it’s actually readable. One of the most helpful parts is a series of examples. Let’s take a look at a few of the examples in quiz form and see how my readers perform. The correct answers are set forth below.

    Example 1:
    Fitness Life, an online health and fitness magazine, features articles about exercise, training advice, and product reviews. An article on Fitness Life’s main page is titled “The 20 Most Beautiful Places to Vacation.”  The article displays images in a scrolling carousel of beautiful spots for fitness enthusiasts to visit. The Winged Mercury Company paid Fitness Life to create this article and publish it on Fitness Life’s site.  The article says it is “Presented By” Winged Mercury and includes an image of the company’s logo. Although Winged Mercury’s sponsorship of the article is a form of advertising, the article itself is not, as it does not promote any of Winged Mercury’s products.

    Question 1: Does the article require additional disclosures?  

    Example 2:
    Fitness Life publishes an article entitled “The 20 Most Beautiful Places to Vacation.”  No sponsoring advertiser paid Fitness Life to publish the article. However, a resort hotel pays Fitness Life to display a photo of its beach resort as the twenty-first image displayed in the article. The photo has the same look and feel as the images featured in the article.

    Question 2 : Does the article require additional disclosures?

    Example 3:
    The Winged Mercury Company disseminates an ad on Fitness Life. The ad is similar in format and content to regular articles on the site. The headline “Running Gear Up: Mistakes to Avoid” appears next to a photo of a runner. In addition to other training suggestions, the article recommends Winged Mercury shoes for injury prevention.  Consumers can access the article either from the Fitness Life main page or directly without viewing that page.

    Question 3: Does the article require additional disclosures?

    Answer to Question 1:

    No. Although Winged Mercury’s sponsorship of the article is a form of advertising, the article itself is not, as it does not promote any of Winged Mercury’s products. It only contains images of places where readers – including potential Winged Mercury customers – might like to visit. Thus, the article does not need to be identifiable as an ad before or after consumers click into it.

    Answer to Question 2: 
    Yes. There is no need to disclose to consumers on the Fitness Life main page that the article is accompanied by advertising. However, because the photo appears to be part of the article rather than an advertisement, a clear and prominent disclosure of the photo’s paid nature on the click-into page is likely necessary.

    Answer to Question 3:
    Yes. In this instance, consumers are likely to conclude that the article was written by a Fitness Life journalist and reflects the journalist’s independent views. To prevent consumer deception, a clear and prominent disclosure of the ad’s commercial nature on the main page of the publisher’s site is necessary. In addition, because consumers can access the article without clicking through from the Fitness Life main page, the ad on that click-into page also should be clearly and prominently identified as commercial.

    Answer Key

    0-1 Correct.  Call me when you get the FTC subpoena.
    2 Correct. To Quote Meatloaf, “Two Out Three Ain’t Bad.”
    3 Correct. Awesome. Let me know how you do on this one.  
    Go comment!
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