Almost a year ago, I blogged about an unusual trademark lawsuit, Johnson & Johnson Sues Red Cross, which I introduced as “a trademark lawsuit today that sounds as if it wants to be a law school exam, or maybe the background noise for a legal thriller.”
Well, most of the case got decided this week and it didn't go well for J&J: Judge Sides With Red Cross Over Trademark. Interestingly, the court relied most heavily on 18 U.S.C. § 706, which hadn't been part of my first take on the case, although it was pointed out by James Grimmelman in a comment.
Being a big fan of Grant McCracken's “This Blog Sits at the Intersection of Anthropology and Economics” I was a little startled to see a post snippet pop up in my feed reader that said,
I was talking in Vancouver yesterday. The slide that everyone seemed to like the best has “shoot the lawyers” as its title.
Fortunately, when you go to the full text, the above is immediately followed by,
My argument is that we have to be much more free with our intellectual property.
I'm OK with that, and in time it should be possible to explain to Prof. McCracken that current IP policies are not primarily the fault of lawyers but rather of incumbent content-provision industries trying to protect their business models. Yes, they often hire lawyers (and Senators) to do their dirty work, but those are just the means not the sources.
Basically, these two celebs claim a right of privacy and a violation of their right of publicity because a store they shop at has been blabbing the details of their purchases.
I'm interested in this because back when I was writing one of the early articles about digital certificates, The Essential Role of Trusted Third Parties in Electronic Commerce, 75 Ore. L. Rev. 49 (1996), I had a heck of a time finding relevant law on the subject of the ownership of transaction information, a problem that persisted into the writing of The Death of Privacy?, 52 STAN L. REV. 1461 (2000). I finally concluded that for ordinary transactions, where there was no special duty of confidentiality (e.g. lawyer, doctor) or celebrity with a special right of publicity, the basic rule was that customer and merchant both own the facts and can do what they wish with them.
The right of publicity claim is a narrow one: the shop can't claim endorsement by the celebrity (e.g. by using their images in an ad), but that doesn't amount to a gag order. For example, the shopkeeper can certainly brag to customers so long as s/he doesn't imply or claim an endorsment.
But the privacy claim? Absent either a contractual or legal duty, it's just not there. Maybe it should be, but that will take a change in the law.
Gen. Wesley Clark is running a nice stunt in which he'll go and spend a day doing community service in a district where a progressive democrat is running. The stunt part is that where he goes will be chosen on the basis of an online vote (aka email address harvesting operation).
But if you're willing to give up your email address to what will undoubtedly be a polititcal ad blasting operation, why not go over to Serve with the General – Pick a District and vote for FL-18 [Annette Taddeo] or FL-25 [Joe Garcia].