Prenda Lawyers: The Zaniness Just Keeps On Coming — But When Are These Guys Going to Get Zapped?

“So, what’s the latest with Prenda?” asked my client, and instead of filling him in on things personally, I thought I’d just post an update here.

First of all, you may remember Prenda (we’ve been following their antics for awhile now). Now, there’s even a nice summary page over at Wikipedia, where the Prenda Law Firm is described as “… a Chicago, Illinois-based law firm that claims it battles copyright piracy, but is also strongly identified with copyright trolling.”

BoingBoing labels them grifters, but whatever.

Prenda, or following what’s happening in courts all over the country delving into Prenda-activities, is just a hoot. Yes, maybe a geeky-lawyer hoot, but a hoot nevertheless.

For the latest, check out Techdirt’s latest (they’ve been doing a great job of tracking Prenda stuff), “Report From The Court Room On Latest Prenda Hearing In Minnesota: Another Hearing, Another Mess,” by Nancy Sims as well as its recap, “Prenda Soap Opera: Steele Contradicts His Own Previous Claims, Lutz Disappears Again... And The Mother-in-Law Surprise.”

For even more, there’s Boing Boing’s article “Porno copyright troll John Steele accused of identity theft -- by his mother-in-law,” which includes a link to their earlier coverage.

A tidbit of things:  Prenda’s Mark Lutz never seems to show up. He’s been a no show in court, he’s failed to come to depositions, and the excuses as to why Lutz isn’t where he’s suppose to be are amazing not only in how long it takes to provide one, but the reasons for his no-show are worthy of a jaw-drop in their own right.

There’s simply too much here to share in a short blog post, but hopefully these links will help you catch up with this infamous Porno Copyright as a Practice Area law firm.

Copyright Infringement of Recipes: Elizabeth Warren, Pow Wow Chow, and me.

Over the past week, I’ve been reading about Elizabeth Warren, currently a candidate in Massachusetts for the United States Senate and former head of the Consumer Financial Protection Bureau and apparently, NOT an American Indian.

I remember Elizabeth Warren as my law school professor at UT-Austin, long ago: she taught me one-half of the two semester long UCC course. Can’t remember which one.

I do remember visiting with Elizabeth Warren in her office several times; she and I shared the unique (masochistic?) resume builder of driving 3 hours a day to attend law school (me, back and forth from San Antonio to Austin in a refurbished 68 VW Bug; I can’t remember what she drove, but I do remember it was some place with lots of snow in the winter). 

I do not remember any American Indian references then; I have no recollection of tribal artifacts in her small office, nor do I remember anyone at UT thinking of Elizabeth Warren as a “woman of color.”  I thought we were two blonde, blue-eyed women sharing the difficulties of commuting to a top law school while being married and living on a shoestring budget.  She had me beat: she did one year of her commute while pregnant. 

I admired her then.  Now, I wonder how much that young, scared, law student believed was true and what may have been stretched.  Especially after reading the Wikipedia bio.  But I digress. 

Of course, no one really references her time in Austin, because why would they if she moved on to Harvard.  Yeah, I know. 

Somewhere between then and now it seems that Elizabeth Warren acknowledged an American Indian Heritage and with it, apparently, the desire to contribute to an American Indian cookbook entitled “Pow Wow Chow.”

What a name.  I cannot wait for Saturday Night Live on this one. 

Okay, here’s my point.  Elizabeth Warren is being accused of copyright infringement of RECIPES if not downright plagiarism because she submitted several recipes for publication as her own, and which were published in Pow Wow Chow – but seem to have an eerie similarity to some pretty high-falutin’ recipe sources. 

And by “eerie similarity” I mean they look exactly the same.  But you knew that.

Recipe Copyright Infringement and Plagiarism Claims Are Tricky

There are just so many ways you can cook some things, and the U.S. Copyright Office recognizes this.  You don’t violate a recipe copyright by listing ingredients for a dish, or by itemizing how those ingredients are to be put together and cooked into a finished product. 

You violate a recipe copyright by grabbing up the actual language used in the recipe as your own.  The description, the know-how stuff, that goes into the recipe along with the ingredients list and the amount of time it needs to bake at 350 degrees. 

It’s a hard case to prove, sure.  But recipe copyright infringement claims are real. 

• Remember the lawsuit filed against Jerry Seinfeld’s wife over her cookbook with recipes on how to get kids to eat their veggies (key – hide them with other stuff kids like)? 
• Or the Food Network show that got cancelled after its recipes were said to be plagarism of icons like Ina Garten and Martha Stewart?

Did Elizabeth Warren infringe on copyrights?  That’s a legal issue but consider this:  she apparently took three recipes verbatim from the New York Times and allowed them to appear as her own, under her byline as a Cherokee, in the Pow Wow Cookbook. 

Read the details here.
 
As for the claim to be an American Indian, I leave the commentary on that infringement to an American Indian, who wrote this open letter to Elizabeth Warren on the blog Polly’s Granddaughter, which I discovered while reading Michael Graham’s piece in the Boston Herald this week.

Using Media Content on Your Blog or Web Site: First, Just Ask Permission.

You want to use content from a news article or television station's web site in your blog post - this could cover many things.  For lawyers, news coverage about big victories in the courtroom usually means a desire to place that coverage on their bio page at the law firm's web site.  The 21st Century's version of an Ego Wall.

However, as I've discussed here before on more than one occasion, if a lawyer pulls that story or that video and puts it on the firm's website willy-nilly, then copyright infringement may occur.  Those media stories (including photos and videos and audio interviews) are all the copyrighted work of these media outlets and should be respected.

What to do?  First things first, just ask.  Call or email the media source (this is really easy if you have the contact information of the reporter who just did your interview) and ask permission.  Alternatively, surf their site for words like "reprint" or "permission" and you will find things like this:

San Antonio Express News
Dallas Morning News
Houston Chronicle
The Associated Press.

Will you have to pay?  Maybe.  It's called a "licensing fee."  Balance that cost against dealing with a cease and desist letter (if you get one, Righthaven never bothered) or a claim for copyright infringement by the media's IP litigators. 

Plagiarism: The Gerald Posner v Miami New Times Story

"Gerald Posner Hires Attorney Mark Lane in Legal Fight Against Miami New Times' Plagiarism Claims," reports MediaBistro/GalleyCat this week. Seems that Gerald Posner believes that he's got a case for damages against The Miami New Times after they've outed him for alleged repeated acts of plagiarism.

Posner's gone and got himself a Big Gun for the fight. Mark Lane - the JFK Conspiracy guy.  You remember him.

Who is Gerald Posner and What The Heck is This Lawsuit?

Basis of the controversy: the Miami New Times has claimed not only that Mr. Posner has been lifting passages from New Times and using them in his investigative writing for Tina Brown's The Daily Beast but that he's also done this in his nonfiction work -- and now there's a press release for all to read, where Lane/Posner are challenging all this hoopla as a "campaign to destroy his [Posner's] opportunity to work in his profession."   (Read Lane's release here.)

Lane's threatening a lawsuit is about to be filed based upon tortious interference and infliction of emotional distress, apparently because MNT wrote Random House - one of Posner's book publishers - and in doing so, exceeded their legal boundaries and caused legal harm to Posner. 

Was There Plagiarism?  Doesn't Seem to Be a Fact in Controversy That There Was.  Yepper.

Gerald Posner, by the way, is a lawyer.  He's also the author of numerous investigative nonfiction works on a range of topics from Motown to Hitler. Until the plagiarism controversy hit the presses last February, Posner served as Chief Investigative Reporter for Brown's Beast.

As for whether or not "lifting" occurred, that doesn't appear to be a fact in controversy. The Daily Beast published an admission that five lines from its story on Ben Novack's death had been "inadvertently copied" from a Miami Herald story written by reporter Julie Brown two days earlier.  The Lane press release recognizes multiple admissions, followed by apologies and attempts to correct errors. 

This snowball began its downhill run last winter, when the Novack story segued into investigations that were being made into Posner's work at The Daily Beast. And by investigations, I mean Slate's Jack Shafer revelations.

Seems a Shafer reader initially discovered the Novack story similarities, brought his findings to Jack Shafer, and Shafer took it from there. Shafer found lots of examples of what he considered to be Posner's plagiarism, and published them.

Gawker, among others, waits with baited breath ....

Over at Gawker, they're breathless with anticipation of this lawsuit, where an admitted plagiarist is suing the publication that was plagiarized for damages to him.  Gawker's already dubbed Posner a contender for "World Plagiarism Record" with his sixteen (16) instances that the Miami New Times has reported. 

My question: where's the probable cause for the threatened torts?

There may be many who are wondering how there is a distinctive difference between Random House editors reading Slate magazine and the Miami New Times and learning one of their authors is making serious admissions about his work (not fiction work, remember, but nonfiction: the kind of work that we readers assume to be factually accurate and trustworthy).  Me too.

Here's my question:  If the MNT wrote Random House, was the MNT reporter blabbing a secret?  Is the letter really the probable cause of any harm to Posner's reputation and his future career?  Really????

I was a litigator for many years, and I was raised in the Rambo era. I know the best defense is a good offense.  I know being a plaintiff is much, much better than being a defendant in a trial.  Let's see if the lawsuit is filed: I really, really, really want to read the pleadings. 

What is Plagiarism?

Plagiarism and copyright infringement are not synonymous terms.  For a good example of plagiarism, you can check admitted examples already published in the Posner stories of Slate and the Miami New Times. To learn more about plagiarism, check out A Plagiarism Guide for Students. Suffice to say, it's a complicated thing.

Free Online Plagiarism Checkers

There are sites offering free "checkers" where you can cut and paste your text, and the site will surf the web to insure your writing is dangerously close to another's online work. One site (which I haven't tested) is Article Checker. And, there are also sites that offer a free service where you can check to see if your web writing has been lifted, like Copyscape.

I can report on Copyscape -- it did help a client of mine discover that some of their law firm blog posts had been cut and pasted into an individual blog. After a cease and desist letter was sent, the offending copy was removed from the individual's site. Maybe not the sexy story of Gerald Posner and the Miami New Times, but a good example of how big this problem may be (and probably is) out there on the Internet.