Almost three years ago, a team of pro bono attorneys (D. Gill Sperlein, Paul Alan Levy, Gary Krupkin and Neal Hoffman) took up the defense of Jeffrey DeShong, an HIV-positive blogger who had been served a bogus trademark infringement lawsuit by Clark Baker, a retired LAPD officer who spends his free time defending people who have hidden their HIV-positive status from sexual partners.
Baker had no legal basis for his claims, but was obviously hoping airy claims of Lanham Act violations based on URL similarities would be all that was needed to shut up a vocal critic. He was wrong. The lawsuit was tossed in the pleading stages by the district court and that decision was upheld by the Fifth Circuit Court.
What the appeals court did not address the first time around -- shifting legal fees to the vexatious litigant -- has now been addressed. The Fifth Circuit Court of Appeals, at the urging of DeShong's defense team, has taken a new approach to its standard for fee shifting in obviously bogus lawsuits. Paul Alan Levy explains:
The federal court in Dallas readily dismissed the trademark claims on the face of the complaint, then declined to retain jurisdiction over the state-law defamation claims; in that way, the trial judge avoiding having to address DeShong's anti-SLAPP motion. But even though our path to overruling the Fifth Circuit's rule got easier when the Supreme Court held, in Octane Fitness, that the term "exceptional cases" in the Patent Code is not limited to lawsuits brought in bad faith, the trial judge was unwilling to buck clear Fifth Circuit precedent: he denied our fee motion relying on the Fifth Circuit's bad faith standard. Today, however, the Fifth Circuit held that its previous bad faith standard (and its requirement of clear and convincing evidence) has been effectively superseded by the Supreme Court's ruling in Octane Fitness. Henceforth, "an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party's litigating position; or (2) the unsuccessful party has litigated the case in an 'unreasonable manner.'"This new standard will make it easier for defendants facing SLAPP-type lawsuits to retain counsel, as there's a significantly better chance for fee awards once courts have examined the case. Levy, however, notes that this won't help much in this lawsuit, as the trademark bully filed for bankruptcy while the appeal was pending. This not only means it's highly unlikely the $50,000 in fees requested will ever make their way to DeShong's defense team, but the filing also allowed Baker to drag out the appeals process for an additional year.
This outcome doesn't help the defense team's bottom line but for free speech defenders like Paul Levy and his partners in this case, the precedent set here is the bigger win. This should act as a deterrent against future acts of censorship-via-litigation in the Fifth Circuit's jurisdiction and lays another brick on the path towards a unified judicial stance against censorship through litigation.
Permalink | Comments | Email This Story
If you’ve ever needed an example of colossal failure of government actors, you need only to look at Flint, Michigan’s water crisis. After the city of Flint changed water supplies from Detroit to the Flint river, city officials failed to add the correct corrosion inhibitors. This meant that lead dissolved into the water, thousands of children were exposed to lead in drinking water, a government coverup ensued, [Erin Brockovich] showed up, the foreman of the Flint water plant was found dead, and the City Hall office containing the water records was broken into.
Perhaps inspired by Flint, [Matthew] is working on an Open Source Lead Tester for his entry into the 2016 Hackaday Prize.
[Matthew]’s lead tester doesn’t test the water directly. Instead, it uses a photodiode and RGB LED to look at the color of a lead test strip. These results are recorded, and with a bit of a software backend, an entire city can be mapped for lead contamination in a few days with just a few of these devices.
One problem [Matthew] has run into is the fact the Pi does not have analog to digital conversion, making reading a photodiode a little harder than just plugging a single part into a pin header and watching an analog value rise and fall. That really shouldn’t be a problem – ADCs are cheap, especially if you only need a single channel of analog input with low resolution. [Matthew] is also looking into using the Pi webcam for measuring the lead test strip. There are a lot of decisions to make, but any functional device that comes out of this project will be very useful in normal, functioning governments. And hopefully in Flint, Michigan too.
Filed under: Raspberry Pi, The Hackaday Prize
I suspect the Germans have an overwrought seven-syllable word for extreme irony, but even they’d have a hard time describing this. The Shenhua Group, the largest coal producer in China, the nation producing the most coal, is building a giant solar plant.