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Levy's Last Word on BlockShopper Case

We noted here earlier this month the settlement of the Goliath versus David trademark lawsuit in which international law firm Jones Day sued the small, locally focused real estate Web site BlockShopper.com. Earlier, in one of our first posts about the lawsuit, we highlighted the comments of Public Citizen lawyer Paul Alan Levy, who wrote in a post at the Consumer Law & Policy Blog that the lawsuit deserved a prize for "grossest abuse of trademark law to suppress speech the plaintiff doesn't like." (Public Citizen later participated in this case as an amicus on the side of BlockShopper.)

With the lawsuit now settled, Levy is revisiting the case and offering his thoughts on the lessons it has to teach. On one level, he writes, Jones Day achieved next to nothing from this litigation but for a lot of bad PR. What it got out of the settlement is virtually the same as what BlockShopper offered at the outset. And if the firm's real concern was protecting its lawyers' privacy, the settlement does little to address that. BlockShopper remains free to publish the same types of reports as before. But on another level, Levy says, Jones Day achieved quite a bit.

It has effectively sent a message to other defendants that it is not a firm to be trifled with, and that, when Jones Day "asks" you to do something, you had better do it or you are going to have to spend hundreds of thousands of dollars to defend yourselves. And Jones Day’s selection of trademark as the subject matter of its strike suit is no surprise, because the biannual AIPLA economic survey has consistently shown that trademark cases typically cost hundreds of thousands of dollars just to reach the summary judgment stage. ... In the end, the warning delivered by Judge Darrah to Blockshopper at the outset of the case -- Jones Day is just too big a law firm that you cannot afford to fight in litigation -- became a self-fulfilling prophecy.

Levy continues to believe that the lawsuit was abusive and that the law firm's opposition to deep linking was preposterous. "Hyperlinks are, after all, the very stuff that makes the World Wide Web a web," he says. To keep it that way, Levy urges a sort of hyperlinking guerilla warfare:

One might, however, suggest that the Internet community fight back against Jones Day, by repeatedly deep-linking from its name, and to its web site, in precisely the ways to which it objects, but which it cannot prevent through litigation. Jones Day’s bullies should learn that they cannot have their way. In addition to linking to Jones Day’s own web site, the community can use hyperlinks to show Jones Day what they think of its abuse of free speech online. Does Jones Day really believe in its theories of the case? Let’s find out. In the end, Jones Day will have to accept the limits of its bullying power.

I only wish the law concerning deep linking was as clear as Levy would like it to be. I agree with him that it is contrary to the core structure and purpose of the Web to oppose deep linking. But we can be sure that this will not be the last lawsuit to challenge it.

Posted by Robert J. Ambrogi on February 23, 2009 at 11:44 AM | Permalink | Comments (2)

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