RE: Asking Permission (was Re: trademark question)

From: Tyler Ochoa <tochoa[_at_]law.whittier.edu>
Date: Fri, 11 Oct 2002 16:27:36 -0700

Mr. Grierson's points are well taken. My experience is that the denizens of the list are in general well aware of such limitations, and are willing to accept the risk that general academic discussion may not be applicable to their particular fact situation. I contribute to the list based on that understanding. I believe most of the list is in agreement on this point, but it certainly doesn't hurt to reiterate it now and then. - Tyler Ochoa

>>> kgrierson[_at_]wilsav.com 10/01/02 05:29AM >>>
Although this list is not as bad as some (Gigalaw's comes to mind), I always get concerned when I see what appears to be a non-lawyer seeking legal advice for a specific fact pattern as opposed to merely asking general questions about the law.

My concern really two-fold. First, as a general matter, it's dangerous to seek or give legal advice over the internet without some understanding between the parties as to what their relationship is. Second, what makes getting information from a listserv particularly dangerous is that the participants tend to approach questions as academic matters and discuss what the "right" answer is, often with no regard for either the risk tolerance of a particular individual in that situation or a consideration of the likelihood of suit, regardless of the possibility of success on the merits. While such considerations may not be relevant to the "right" answer as to whether or not (for example) certain conduct infringes the IP rights of another, it could make a world of difference to a party that has no desire to defend a lawsuit in federal court regardless of how "right" their position is.

Kevin Grierson

Kevin W. Grierson
Willcox & Savage, P.C.
1800 Bank of America Center
One Commercial Place
Norfolk, Virginia 23510

mailto:kgrierson[_at_]wilsav.com
ph: 757/628-5603 fx: 757/628-5566
http://www.wilsav.com

>>> chrismohr[_at_]sprintmail.com 09/30/02 10:44AM >>>

I don't think that that's a fair characterization. Many folks who ask questions on this list are trying to do the right thing--to abide by the
law, but without acceding to the unreasonable demands of either an IP owner or user. That helps neither side.

 Look, if someone wants to rely on answers that they find here, that's their prerogative. If a basic statement of the legal principle and some
general direction and analysis is enough to assuage that person's general concerns, then great. It would be a shame, however, if they relied on what they got off the internet and then got sued because either (a) the poster was wrong; or (b) they didn't disclose something that would have changed the advice they received because of the fact dependency of a particular legal doctrine. When the initial post suggests that the poster is looking for advice on how to handle a particular fact pattern, the 'find a lawyer' caveat tries to prevent that from happening. It seems to me to be a sign of responsible behavior.

Cheers,
Chris

-----Original Message-----
From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org]

On Behalf Of Edward Barrow
Sent: Friday, September 27, 2002 3:41 AM To: Multiple recipients of list
Subject: RE: Asking Permission (was Re: trademark question)

On Thursday, September 26, 2002 1:51 PM, Kevin Grierson 
[SMTP:kgrierson[_at_]wilsav.com] wrote:

> I'm with Tyler, with one caveat: I don't think it's ever a good
idea
to
attempt to make a decision about a legal determination based on feedback

from a listserv, even one with obviously well-qualified participants. We
haven't seen the design, and we don't have an opportunity to ask relevant
background questions, the answers to which might change the analysis or

even moot it (if, for example, the Junior Mints folks were aware of the

plans and had threatened to sue, the decision about whether to proceed

would depend a lot on the school's willingness to litigate, even if they're
sure they're right).
>
> Find a lawyer and talk details. You may find an alumnus/alumna
willing
to investigate for free, or even someone from this list (or the INTA trademark list) who will do the work on a reduced fee or pro bono basis,

but don't rely on advice from a bunch of faceless posters who (as should
be
evident by now) will treat the issue more as an academic exercise than as a
real life problem they have an obligation to solve.
>
> Kevin Grierson
>
> Kevin W. Grierson
> Willcox & Savage, P.C.
> 1800 Bank of America Center
> One Commercial Place
> Norfolk, Virginia 23510
>
> mailto:kgrierson[_at_]wilsav.com
> ph: 757/628-5603 fx: 757/628-5566
> http://www.wilsav.com
>

Isn't "always ask a lawyer before asking the rightsholder" just as dangerous as "always ask the rightsholder"- except it ends up benefiting

lawyers rather than artists and authors?

Especially as most lawyers have one eye on possible negligence suits when
framing their advice....

Edward Barrow
New Media Copyright Consultant
http://www.copyweb.co.uk/
***Important: see http://www.copyweb.co.uk/email.htm for information

about the legal status of this email *** Received on Fri Oct 11 2002 - 23:29:28 GMT