The Fuzzy Line Between Blogging and the Real World

Some commentators and active readers of our blog have asked us why we haven't covered certain noteworthy and topical stories that are related to brand protection and intellectual property in the news recently.

For example, we deliberately haven't blogged about the Apple / Samsung case, the Zephyrs / Victoria's Secret litigation, and several other major cases in the news that relate to brand protection.

The reason is simple:  We may be (or were at some point) involved in those cases as litigation counsel and/or consultants to the parties, and our clients understandably prefer that we confine our statements about those cases to the courtroom or to client-approved press releases.

To be sure, the dividing line between new forms of social media/blogging and being a practicing lawyer can become blurry.

Bar Associations have struggled with offering guidance to practitioners as to when and how to use blogs and social media with respect to cases they are directly involved in.  The ABA Journal notes that blogging can be dangerous and can even lead to serious ethics violations.

As a general matter, we have found that the best solution is for us to confine our blogging and commentary to cases that we are not directly involved in.  Thank you for your understanding!

Sanctions Against "Rogue" Porn-Copyright Attorney Upheld by 5th Circuit

A federal appeals court has affirmed monetary sanctions assessed against an Intellectual Property lawyer who represents a maker of adult films in a series of copyright-infringement-by-downloading cases.

U.S. District Court Judge David C. Godbey in Dallas had ruled in January that attorney Evan Stone of Denton, Texas had abused the discovery process, and termed him a “rogue attorney" with "staggering chutzpah" in a blistering decision.

In a July 12 ruling, the 5th U.S. Circuit Court of Appeals  affirmed the District Court's sanctions levied against Stone.

Stone represents Germany’s Mick Haig Productions E.K. against a large number of unnamed "John Doe" Defendants who stand accused of downloading Haig’s “Der Gute Onkel” film without authorization. 

Stone, no stranger to controversy, was depicted strangling pirates near scantily-clad porn stars in a recent Dallas Observer article.

The District Court had appointed attorneys from Electronic Frontier Foundation and Public Citizen as "ad litem" attorneys to represent the interests of the John Doe defendants and it was these lawyers who had sought the sanctions in District Court. The sanctions included attorneys' fees of more than $22,000, and $500 per day for each day Stone failed to comply with a court order.

Stone filed an appeal to the 5th Circuit, arguing the sanctions were unjustified and that the court-appointed attorneys lacked standing to seek them.

The appeals court flatly rejected Stone's argument.  It specifically held that “no miscarriage of justice will result from the sanctions” that were imposed “as a result of Stone’s flagrant violation” of court rules.

The appeals court said Stone committed the violations by using the subpoena power of the court to find the identity of anonymous Internet users “then shaming or intimidating them to settle for thousands of dollars” each.

The appeal is captioned Mick Haig Productions E.K. v. Does 1-670, 11- 10977, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The District Court case is Mick Haig Products E.K. v. Does 1-670, U.S. District Court, Northern District of Texas (Dallas).

The tactic of using the threat of John Doe subpoena discovery against pornography downloaders has come under recent fire in high-profile class action litigations against a number of adult film companies.