Thursday, May 20, 2010

The "Right" to Anonymity and Free Speech Limitations

Jonathan Turley, author of Registering Publius: The Supreme Court and the Right to Anonymity, reports in

Pennsylvania Attorney General Tom Corbett Issues Subpoenas To Strip Anonymity From Critics that:
"Pennsylvania Attorney General Tom Corbett has subpoenas to learn the identity of two critics on Twitter who chastised Corbett for his “Bonusgate” investigation of legislative corruption. The tweets objected to Corbett’s handling of the trials of 25 former and current state lawmakers charged with using taxpayer dollars for campaign purposes....

The prosecutors insist that Signor Ferrari is ... a former legislative aide who was convicted on charges of theft of service, conflict of interest and conspiracy to commit conflict of interest. Corbett wants to show that ... is using a pseudonym to “deny responsibility for his criminal conduct and to attack and malign the investigative and prosecutorial process.”"
Anonymous speech online has opened up a real weakness in modern legal interpretation because maliciously false and/or libelous material posted to the Internet has a nearly unlimited life, creating a far greater danger to the reputation of persons targeted now than in the days when all that one had to fear was merely the printed word, where nothing was as old as yesterday's news.

"Libel today, gone tomorrow" was often the state of the art prior to the digital age. The libel wandered into the archives. Today on the Internet it is "libel today, still there tomorrow, for everyone to see". The damage that one can inflict on others is far out of proportion to the alleged free speech right involved.

Hence, courts must be much more severe in their treatment of online libel and/or the posting of maliciously false information than they have been up to now because the damage inflicted to the reputation of persons can otherwise be permanent. The alleged right to freedom of speech involved here is much smaller than the need to protect every person's right to be able to challenge libelous statements and defamatory utterances. It can not be that be criminals have greater rights than law-abiding citizens. Freedom of speech does not mean the freedom to libel or the freedom to maliciously publish false information. The rights of anonymous Internet posters can not be greater than the rights of online posters who reveal their true identities.

The theoretical standard is that "legal speech" is constitutionally protected, also if it is anonymous, though the Constitution does not explicitly say that. However, illegal speech has no constitutional protection and libeled parties should not be forced to have to move heaven and earth to obtain the identity of libelers or people who maliciously post false information. Quite the contrary, the criminal penalties for such criminals should be increased to create a deterrent to a breakdown of normal standards of discourse on the Internet.

ComputerWorld.com quotes Eugene Volokh, Professor of Law at UCLA, in the year 2009 about a case in which an Illinois politician sought to identify an anonymous poster who allegedly libeled her son during a hotly contested political election:
"[T]he case [in question in the respective article] serves as another reminder that online anonymity does not provide immunity against libel charges.

Individuals who libel or defame others online, anonymously or otherwise, are just as exposed to lawsuits as they are in the physical world and cannot expect First Amendment rights to automatically protect them."
We have posted about the topic of anonymity before at:

Anonymous Heinous Postings Directed at Two Female Yale Law School Students Lead to Revelation of Poster Identities : Free Speech Law in Need of Change

Peter Thiel, the Stanford Law School Connection to Facebook: PayPal Founder was First Angel Investor in Facebook

What makes a successful company? Money helps.

We were reading up on Facebook
and discovered that the first Angel Investor to invest in Facebook
(in 2004, when Facebook was just a small operation running out of an apartment)
was Peter Thiel,
a 1992 Stanford Law School graduate.

See what is written about Thiel at the Wikipedia.

Jury finds Callaway Golf Ball Patents Invalid for Obviousness in Patent Infringement Lawsuit against Acushnet, the maker of Titleist Golf Balls

We are a bit late in our comment, but we are dealing here with a patent decision that truly matters - the jury invalidation for obviousness of four Callaway patents on golf ball technology. All the world's golfers, especially the users of Titleist Pro VI golf balls, can breathe a sigh of relief.

Ever since the LawPundit began playing golf, which is more than 50 years ago, Titleist golf balls, as made by Acushnet (now a part of Fortune Brands), have led the golf ball market. As written at the Wikipedia under Titleist:
"The Titleist Pro V1 and Pro V1x are the most used golf balls on the PGA Tour, European Tour, Japanese Tour, LPGA Tour, Asian Tour, and Nationwide Tour.
First played in the U.S. Open in 1949, Titleist golf balls are the top-selling golf balls in the United States.[1]"
So what was the Callaway patent claim? The Wikipedia tells the story:
"The [Titleist] Pro V1 made its debut on the PGA Tour at Las Vegas on October 11, 2000, the first week it was available to the pros. A longtime Titleist user, Billy Andrade, won that first tournament with the new ball. The Pro V1 was available to the public by December. The Pro V1 was a dramatic departure for Titleist, which had traditionally used a wound-ball construction (with a liquid-filled core center) for its top-of-the-line golf balls
In December 2007, Titleist lost a patent infringement suit brought by Callaway.[1] The following November, Callaway won an injunction in a Delaware court, ruling that sales of the Pro V1 golf balls should be stopped from January 1, 2009, with professionals being able to continue with their use until the end of the year. Acushnet immediately announced that they would be appealing against the decision.[2] Titleist has redesigned the Pro-V1 with a more durable shell and other minor changes that saved the acclaimed performance but differentiated the ball enough to continue distributing the ball without a concern of patent infringement. However, on August 14, 2009, the Court of Appeals for the Federal Circuit vacated the judgment against Titleist and ordered a new trial.[3]"
See the Jolt Digest and the Slip Opinion in Callaway Golf Co. v. Acushnet Co., 2009-1076 (Fed. Cir. Aug. 14, 2009).

The jury in the subsequent trial in the case Callaway Golf Co. v. Acushnet Co., 06cv91 (SLR), U.S. District Court, Delaware (Wilmington) determined that the four patents in question -- 6,210,293, 6,503,156, 6,506,130 and 6,595,873 -- were obvious.

As written at the Los Angeles Times by Nathan Olivarez-Giles:
"Callaway had patented the use of multiple layers of different materials inside its golf balls, which Titleist contended was an obvious approach to construction."
The court order that Callaway had initially obtained against Acushnet to stop it from selling Titleist VI golf balls can now be ignored.

One thing is sure after this legal case - we will NEVER buy a Callaway product again. The place for golf ball manufacturers to win or lose customers is on the golf course, on the pro golf tours, in the golf pro shops and golf stores -- but not in patent court. This is especially true since the unnecessarily strict regulations of golf's ruling bodies on golf clubs and golf ball specifications make any real innovation in golf ball design unlikely. The balls must meet certain standards and limitations, so, beyond changing the number, size, shape and depth of dimples and playing around with the surface and interior layers, what's to invent? The "window of invention" allowed in golf has been rendered very small by the United States Golf Association and the Royal and Ancient Golf Club of St. Andrews.  Any really significant innovational change would make golf balls non-conforming.

Hat tip to IP-Contingency-Lawyer.com at Court rules Callaway Golf patents invalid in patent infringement lawsuit against Acushnet.

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