Sounds like he made the biggest mistake by caving the first time around. If he'd stood his ground at first, maybe pointed out if there was any potential for confusion (a key point in trademark law), it was the other way around, as he was the one with an established user base and a 10-year history.
I never tried to sell them the application. I offered to build a Windows Mobile and Windows Phone 7 application for free. Also, their offer doesn't seem very generous when you consider the extreme likelihood that if they obtained my application, it would never be integrated with their network. Since their offer was a 33% revenue share of that application's revenue, I would never see a dime. Building this was never really only about money anyways. WhosHere has no concept of community within their app. I didn't set out to build an app or a company, I wanted to build a community.
Brian, the only damage control you should be doing now is apologizing profusely to everyone for trying to manipulate this community. You spun a very sad story and left out incredibly crucial facts that did not serve you. That is simply unacceptable. This is clearly the act of a very immature person who is not ready for the world of business.
Your post is now clearly shameful; the fact that you went even further and began accepting donation money only escalates that shamefulness. Did you really think that the details you left out wouldn't come to light?
You've handled this very poorly. Apologize to the community, apologize to WhosHere before you get smacked with a defamation suit, and hire a damned lawyer to deal with your legitimate trademark and breach of contract lawsuit in a court of law instead of wasting time dancing around in the court of public opinion.
People will eventually become cynical, and stop contributing after they realize there are two sides to each story. I find often that the sob stories you read on the internet exaggerate the tragedy of the situation.
Just make users sign something that says the story they put forward is accurate. Details should come out in the trial, and if there's a mismatch, asking for money based on false information is fraud.
I know the developer and I just let him know that he is getting attention here ... and to get a donation link up ASAP ... He is a good guy and this has been an awful experience for him ... I've told him to get an account and start posting to this thread, so hopefully he'll be here soon ...
Merely a 'Donate' button is not enough. It should show how much has been donated so far (it gives people more motivation to donate, if they see that this 'donate' thing actually works and for example, $1900 has been raised so far).
In spite of only having one side of the story I'm going to decide to choose my ground and ask this:
What if we started a Kickstarter campaign to fund the legal fees to counter-sue this company? The precedence set in a success would be profitable to the builders of the startup community. And I'd sleep better at night.
You want to completely buy in to one side's story without any context or response from the other side, then start a Kickstarter to fund a legal assault upon that company? Really?
Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?
It concerns me that I'm attacked personally for advocating for common sense when it comes to the law. Being sued? Shut up. Don't post to HN. Don't comment on the case. Don't challenge the other party to Quake 3 on Twitter. Don't give people legal advice after saying "I'm not a lawyer and this isn't legal advice". Stop being stupid.
This advice transcends my allegiance, which is to nobody involved in this discussion (and which doesn't matter at all, frankly), and I'm annoyed that you think I'm stupid enough to involve myself in something I'm personally vested in.
I too am perplexed by the negative reactions you've received.
I've often been known to comment on legal matters on HN, but I always steer clear of giving legal advice. (At least I hope I've never slipped up and done so.) And, as you well know, that's the proper course for anyone, regardless of whether they're a lawyer or not.
So just to echo and build on jsprinkles' various comments: It's OK to discuss the law in a general sense. I.e. you can talk about how things work, without giving an opinion as to the case at hand. But it's irresponsible and generally illegal to advise an individual on how s/he should proceed.
Example of a comment that's OK: "Trademark disputes often depend in part on the likelihood of consumers being confused by the respective marks."
Example of a comment that's not OK: "Trademark disputes often depend in part on the likelihood of consumers being confused by the respective marks. Since the OP's mark isn't going to confuse anyone, the plaintiff will probably lose."
For someone who posts things like "Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?", it takes a lot of temerity to act offended at personal attacks.
There's a difference between giving advice from a position of authority and exploring the subject from a variety of angles. It feels to me as though you're accusing folks doing the latter of engaging in the former. Playing around with an idea and throwing out possibilities--some of them foolish or ill-advised, certainly--is at the core of the hacker culture, and I'd like to discourage you from criticizing people for doing so, while still maintaining your healthy skepticism.
It concerns me that I'm attacked personally for advocating for common sense when it comes to the law
I think that it's not as much that you're advocating for common sense, but that you're being really aggressive about it. Everyone can read and understand your point of view. Not everyone has to agree with it. You don't have a moral or ethical obligation to argue with people until they realize that you're right. Reasonable people can disagree, and on the internet, the standard of "reasonable" is often pretty low.
I personally agree with you in that I would never discuss pending legal matters with an online community. It seems too risky.
It also saddens me, as a tech-geek and business-geek and law-geek that we can't have transparent and "hackerly" discussions of these kinds of conflicts and possible ideas (not exactly full-on advice) for addressing and/or preventing them.
FYI, what I wrote is not an ad hominem argument, and "ad-hominem argument" is not an a.k.a. for "personal attack" (neither of which my comment is, for what it's worth).
Thanks for the clarification on "ad hominem" versus personal attacks. Now I understand that it's only ad hominem if the basis of the argument relies on the personal attack.
All that aside, your comment above, reproduced here, is clearly a personal attack:
> Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?
Yes. Try the following: "You are a moron who has no idea what they are talking about?", or an actual question "Are you a moron who has no idea what they are talking about?"
Both lower the tone. Both cause unnecessary battles and derail discussions.
"You want to X? Really?" typically carries an implicit, "How could you be so [some negative quality]?" This is not an ad hominem argument unless it's actually used in an argument ("Don't believe claim Y; this person even wants to X!" would be), but it is an oblique personal attack.
Hi. I've decided to completely buy in to the OP's side because there is nothing at stake for me except thinking of a way that this problem could be solved.
Having admitted this in the comment you replied to, I thought it'd be obvious enough that I agree I don't know enough about the situation to be an involved party.
To the insult: You don't think it would be cool to crowd source a legal case in order to upset the typical advantage that money brings into law?
Anyway, I'll let that attack brush off - I do have better things to hack on ;)
EDIT: No worries jsprinkles, thanks for the apology!
"Here's to hoping that someone like Grellas can find time to comment "
Facts matter. Grellas isn't going to offer any opinion without having a chance to review all the documents that have been filed as well as communications and that is going to take time.
Somewhat unrelated, but I ask the legal experts here.
If someone sues you for some bogus claim, is it possible to submit a written plain english rebuttal and have the court throw it out before it gets too serious? I mean if I sue some company for something absurd and demand $10 million dollars, are they forced to actually entertain my lawsuit or can it be dismissed readily without a lawyer?
The short answer is this: It's possible, but hard to pull off.
First, you would have to do some basic research on court filing procedures. It's not rocket science, but you can't just pop an envelope in the mail addressed to the judge.
Once you figure out how to file documents for the case, you need to determine what type of documents to file. E.g. a motion to dismiss might be appropriate if you think the claim is utterly bogus.
It can be "plain English," as Smattiso suggested, and indeed, judges always appreciate clarity. Legalese isn't required, but valid legal reasoning is. Contrary to popular belief, "legal reasoning" doesn't have to be arcane. It's pretty much just a matter of using everyday logic to apply legal principles to the facts of the case.
It's a lot like learning to program. There's no magic involved. It's just a matter of reading the relevant documentation, looking at examples, and using your innate reasoning abilities to put something together in accordance with the rules. And yet, as with programming, reasoning and writing about the law take practice to do well. You can hack together a simple CRUD app with zero programming experience and a lot of motivation. But you wouldn't want to bet your entire net worth on it. Likewise for legal writing. You can spend a few evenings of hard work learning the anatomy of a motion to dismiss and the basics of trademark law, and then you can write your motion. But I wouldn't do it if my personal finances were on the line.
In a situation such as the OP describes, there is an additional challenge. According to the OP, the plaintiff is using and perhaps abusing quirks of court procedure to his advantage. (I'm referring to the bit about default judgement and the alleged absence of certain documents.) That, too, could in principal be dealt with by a non-lawyer, but it would be quite difficult. You'd have to learn a great deal about the finer points of court procedure. This is especially difficult because it's not uniform across jurisdictions.
EDIT: You would also need to determine whether this would constitute unlicensed practice of law in your jurisdiction. Generally, you're allowed to represent yourself in court ("pro se.") But the rules about representing your business are a little more complicated. Sometimes it's OK, sometimes it's not.
So, yes, you can sometimes write something up and get a case dismissed without hiring a lawyer, provided you're willing to learn a great deal very quickly. But you'd be taking a tremendous risk. Probably not a good idea.
Just to be clear: I'm not at all recommending that the OP do this. I'm just answering the question posed in the parent comment. The OP really does need a lawyer, especially considering the plaintiff has allegedly shown a willingness to play procedural games.
What a screwed up system. Seemingly there should a vetting process where the court system determines a claim at least has merits before the defendant has to waste his/her resources fighting it.
As it stands it is way too easy to use as a weapon to sue people into submission. Although I think this is already well known.
That might not be a terrible idea. It might help weed out some truly frivolous lawsuits.
But consider this: To be fair to plaintiffs, the bar for "not frivolous" would have to be fairly low. I suspect that a fair pre-vetting system would only weed out a tiny fraction of lawsuits. Probably, even most lawsuits that end with a successful motion to dismiss would make it past the type of preliminary review by the court that you're proposing.
So it's a good idea, but I think something more would be needed to help protect the little gal/guy from legal bullying. (BTW, I'm not saying this particular case is an instance of legal bullying. We only have one party's perspective.)
It seems reasonable to me that the plaintiff would have to establish the elements of their case before requiring any response from a defendant (though of course response should be allowed). Only after a court has found that the defendant needs to mount a defense should he need to hire a lawyer. Instead, our courts generally work the other way -- if you don't show up, you lose no matter how ridiculous the other guy's claims are.
The legal system would benefit greatly from being framed as a cost/benefit optimization problem instead of as reasoning in a byzantine para-consistent logic.
This is the kind of information that I would be most interested in. I understand that the legal system is very complex (like a programming language with funky syntax), but there IS a process and there ARE standard ways to go about doing things, even if there are particularities for different locations. I suppose this is the kind of thing you learn in law school or from experience in a courtroom, but there is no reason that it can't be taught outside of those environments.
Is there a repository for learning the basics (and maybe more advanced) legal processes? What forms to send to whom, and when, and what to be sure to do, and what to never do?
It's learn-able if there is a resource that teaches it. An online Khan Academy-like resource. Or even maybe an educational game. The only lawyer sim I've seen is Phoenix Wright.
Sure, I'd still prefer an experienced lawyer to do the driving if something comes up, but I'd feel more confident with some solid legal knowledge of my own.
Ok, so here goes. This is by no means a suggestion that anyone become an amateur lawyer, practice law without a license, handle a particular case pro se, or do any other such thing. This is just useful info for anyone who might want to learn some law. (Nothing wrong with learning as much about the world as you can.)
I'm not aware of any single repository of such information other than law school. But if you're willing to consult multiple sources, you can definitely find the information.
For starters, one can always get a copy of the reading lists for various law school classes. You could also look at commercially prepared law school study guides. Pretty much everything you would learn in law school is available in book form, in one place or another. Obviously, law professors and lecturers contribute a great deal of value added in the form of their own experience and idiosyncratic knowledge. But the core material is all written down in various places.
Those types of materials will teach you the basics of American law. The next step is to research the statutes and case law in your jurisdiction. That means federal, state, county, and municipal laws. The statutes can be found by Googling, for example, "Illinois Statutes," or "Chicago Municipal Code." As for case law, assuming you don't have a subscription to a legal database, you can use some Google-fu to find articles that address whatever legal question you're researching. You can also buy a "treatise" on the field of law you're researching; they're packed full of case citations.
As for court procedure--well, first, let me just say that you probably don't want to litigate your own cases unless you're in small claims court. And even then, having a lawyer really, really helps. But if for some reason you want to learn procedure, that'a a bit harder. There are books specific to individual jurisdictions. Also, courts often publish their own procedural rules. All of this can be found through Google.
Again, this won't make you a lawyer, and it won't eliminate the need for one. But I'm a firm believer that anyone can benefit concretely from a solid understanding of the law. There's no better combination than a smart lawyer and a smart client.
IANAL, but here are some other things that others involved in the system have related to me:
A lot of what the lawyers do is to prepare the case and documents in order to save work for the judge. If there's a amateur doing it, it can mean a lot more work for the judge and he may not be real thrilled about it.
Be prepared to explain why do you don't have a lawyer doing it. It's hard to know how well the answer "because I didn't want to pay lawyer's rates" is going to go over because the judge and all of his professional peers are lawyers.
In a smaller city it's quite possible that everyone in the room (including the opposing lawyer) will know each other well and lunch together on a regular basis. Except you.
I stopped reading when I came across Lightbank. I've spent time in Chicago, got to know a few of those guys and companies they've funded, and have since stayed as far away as possible. Anyone in the area should do the same.
Based on corroborating evidence from people I know who have interacted with Lightbank, I would say yes.
They are the Groupon mafia, which should set some alarm bells off to begin with given Groupon's shady behavior toward investors (fudging numbers, cashing out most of their billion dollar round to shareholders, etc). I've heard stories self-indulgent term negotiation, deceptive terms, and dragging their feet before scuttling deals.
So in other words, dirty tricks sound right up their alley.
Also it appears that WhosHere launched in July 2008, so 2 years before your product appeared? Or is that incorrect? Regardless you should fight these dudes as I'm sure they would not relent to you in kind.
The adage "An attorney who represents himself has a fool for a client" has some relevance, but in the information society self represeration can have major advantages. The best way to be a Pro Se is to hire outside counsel to advise you, but to do all the dirty litigation work yourself. If this company has hired an outside attorney to litigate, this person could make that a very, very expensive proposition for them. I think this company's board would grow very concerned at legal expenses exceeding $100k with no hope of recovering from the defendant. My advise is hire counsel to advise you, educate yourself of self representation and court procedures, and rake these fuckers over the coals.
> My advise is hire counsel to advise you, educate yourself of self representation and court procedures, and rake these fuckers over the coals.
This is terrible advice. Unless you're a duly licensed attorney in OP's jurisdiction, don't offer legal advice. You're practicing law without a license, which is a crime. Moreover, were OP to rely on that advice to his detriment, you may find yourself named as a defendant in a civil suit.
Can you find some documents under which circumstances this is a crime? I find that you should not do that for money or in court on wikipedia, but I somehow fail to find that "giving advice" or even "drafting legal documents" can be a crime.
"[A]s the term is generally understood, the practice of the law is the doing and performing services in a court of justice in any matter depending therein through its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such
matter may or may not be depending in a court of law." (People v. Merchants Protective Corp. (1922) 189 Cal. 31, 535, quoting Eley v. Miller (1893) 7 Ind. App. 529 [emphasis added]).
And none of that mentions "posting offhand comments on a random Internet forum."
Here's some unauthorized legal advice for ya: Posting your opinion on random legal matters on HN has about 0.00000000000000000000000000000000000000000000000000000000000
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probability of every resulting in any legal backlash for the commenter. And in a country which is supposed to cherish free speech as a principle, we should absolutely all feel good about giving our opinions, and if the courts have a problem with that, telling the courts to go fuck themselves.
Doesn't someone have to advertise that they are practicing law and take a fee despite not having credentials to back it up for what you quoted to matter? But maybe you can't answer that because it would qualify as the unauthorized practice of law to do so. Maybe your quote alone is enough to put you in jail, it sure looks like you're offering advice/opinion regarding a law.
Someone on the Internet explaining how to file for divorce, bankruptcy, or commenting about legal issues related to a startup seems outside of the scope of "unauthorized practice of law".
Does this mean legal advice on the Internet is good advice? No. But I think it's far from illegal unless someone claims to be a lawyer & accepts fees for services.
But now I am probably going to jail thanks to expressing an opinion on how I viewed the law you quoted.
Perhaps you should read my advice to the OP a second time, which clearly says "My advice is hire counsel to advise you, educate yourself...". In what bizarre lawyer-universe is telling someone to hire counsel and educate themselves on the Internet practicing law? You must be smoking crack, my friend, and a lot of it.
You might do well to wait for both sides of the story before lighting your pitchfork and calling to "rake these fuckers over the coals". Because looking at some of Brian Hamachek's emails to WhosHere, it appears you've been had by an untruthful sob story.
Wow ... this is shocking! Can someone explain how this is even remotely trademark infringement?
I'd also suggest you dig up research papers in conferences such as UbiComp and Pervasive. The "who is near me" app has been around for years. Also, check out papers on the cooltown project. I'm not totally sure what a defense to a trademark infringement claim would be. Perhaps if a researcher used the same name in a paper, that might help?
I'm clueles, but what if you hired a lawyer for equity, then raise some money and utterly crushed them? Obviously there's a valuable market and you are good at what you do. So, is it unrealistic to think that's possible?
I know it shouldn't, and I know the "hacker" or VC communities are huge with tons of diversity, but it annoys and saddens me to see some people just being bullies and jerks like this.
If that's the case and their app predates Who's Near Me, I have to say that the OP is probably going to lose this. The names and apps certainly do seem confusingly similar.
really? Confusingly similar? How about Who's Online, Who's In Town, Who's Out Tonight?
Genuinely curious. Do you think they have owners ship of "who" in the context of a social network. Surely using such an obvious descriptive name should count give you less rights to similar names. IE If I have "The Family Teacup Company" I can't complain about "The Swedish Teacup Company."
I am not a lawyer but have been involved in various trademark registrations and disputes.
The trademark is for the concatenation 'whoshere'. Given that both are common words obvious to the topic I would have thought the interpretation would be very narrow and 'who's near me' is suitably different. I certainly don't think you should give in to their somewhat extortionate demands.
Even given a very narrow interpretation, "here" and "near me" are basically synonyms. And as I understand it the apps are very equivalent too, they're selling the same product under a near-identical name.
"Red" and "Hat" are common words too, but you'd never get away with trying to sell a linux distro named "Red Cap".
I would have thought inadvertent trademark infringement is unlikely to lead to any damages. I would feel the other party would have to show continued use after some prior cease and desist (or agreement between the parties a year ago) and also shown they had financially suffered a a result.
Who do you think is going to be confused by a compound two-word term, and a plain-English three word phrase that shares only one word, and that word is unclaimably common?
> -Start tweeting about it & create a hashtag #WhosHereThieves
IANAL, but I think it's a very bad idea. I don't have the faintest idea if it's considered defamation in the court, but I suspect it might be, and thus should be avoided.
> -Start tweeting about it & create a hashtag #WhosHereThieves
IANAL, but I think it's a very bad idea. I don't have the faintest idea if it's considered defamation in the court, but I suspect it might be, and thus should be avoided.
To what extent did they 'agree' to the change of name a year ago? You say you 'agreed' to do it. But did they agree to the new name? Eg did you inform them
about your name or reach any sense of resolution.
Unless they could somehow prove you have wilfully be continuing to violate their trademark I don't see how any damages are valid. I would certainly not give in to their threats.
What about the origins/timeline of the name and the trademarks. Who was using it first? What exactly is their trademark?
Subject to answers above, and given that this is a side project to you - I would suggest you simply write back stating you don't feel you are violating their trademarks, but would consider a rebrand in your mutual interests to avoid any potential for customer confusion provided they contributed to the cost of paying an advertising agency to create a new logo and other menu costs and estimate their share of those costs as $5,100 (eg they pay you what they are asking from you)
I never went to law school so there's no way I could be a lawyer, I'm just giving my thoughts on things I would do in this situation. This isn't legal advice.
I sympathize with your situation and I'm sure there are a couple lessons learned here- namely that they used negotiation with email to apparently cause you to forget that there was court case pending. But saying that doesn't help you.
I've been in the situation where lawyers told me I didn't have a case, and it sounds like this is what you're hearing too-- but I think you might be missing something- you may have a case, you just haven't found it yet. The lawyers are looking to hear something that gets them excited-- something that they can really use for their profit. Since you don't have a lot of cash, the bar is higher to get them interested.
At this point, you just haven't figured out what the case is. I suspect you probably have a good one, however, if you've been running your service since 2008 or before 2010, or based on the contract they entered into with you.
If you find a case, you'll likely find a lawyer eager to take your case on contingency because both of you can make out profitably. (though of course they will settle when they realize that you have a case, but that still can be profitable.) Until you find it, though, there's no obvious case on the face of it.
This means you need to do the legwork. Start going thru every communication you have with them and organize your documents as best you can. I would strongly suggest you get a timeline going. Dig up that old agreement where you changed the name-- did they agree that doing so would settle the matter? Even in writing in an email? If that's the case, then you may have them violating a legally binding contract by bringing this case.
Build this timeline going back to the beginning and gather evidence proving each step (Eg: your receipt for registering the domain name, etc.)
Find where they have done you wrong- failing to serve you correctly is one example. You need more.
Find the relevant laws-- the cybersquatting laws give you rights against "reverse cybersquatting" where someone tries to steal a legitimate domain name.
Go to the USPTO.gov website and research their trademark application. Do they actually have one? Does it actually cover the area of what you're doing? For instance, I found a registration number 3885293 for "WHOSHERE" which shows a first use in commerce claim of 2008. Does your service predate them? Can you find evidence of you using the name "Whose near me" or whatever, including registering that domain prior to that date in 2008? How about prior to the date they filed for the trademark in 2010? When looking at their trademark, find the "TARR STATUS" button, click that, then find the "Trademark Document Retrieval" link near the top of the page, go and select all the documents for their trademark and download them as a PDF. You may find that the trademark examiner has done footwork for you, limiting their possible use of the TM, and they may be in violation of that... this will give you even more cause.
Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it.
The stress they are causing you, and any actions they have engaged in that are dishonest or violating the law or agreements give you cause to sue them for damages, I believe.
The odds are pretty good that they know you are young and don't have a lot of resources and they are attempting to abuse the system as a result.... simply doing this research and showing how they d...
I appreciate what you're doing, but you just wrote an essay full of legal advice, including conclusions on how the proceedings will go -- something you really shouldn't predict. By putting the words "this isn't legal advice" before your comment, you aren't magically making it okay to give your opinion in the guise of advice. Just be aware of that.
How messed up is it that someone can't share what they know (or think they know) because they don't have a credential?
Edit: I'm convinced. Don't give or accept legal advice over the Internet. Establish a relationship with an attorney and only discuss it with them. If you don't like the answers they give you, you can find another attorney.
In this case, there are legal repercussions and serious consequences to doing most of things on this page. This is stuff to talk about with a lawyer, not the fucking Internet, and the person I replied to is already giving frighteningly bad advice.
You know how in criminal proceedings, they say "anything you say can and will be used against you?" It's the exact same for civil actions like this, which is why Public Relations 101 (which should be of interest to most in this audience who want to do their own startup) says "being sued or otherwise challenged legally? STFU. No comment."
This isn't about credentials, it's about being smart when it comes to threats that can genuinely hose your business, and not listening to a bunch of armchair lawyers on HN who think they have the best course of action without any sort of context.
Let me start by saying: OP should get a lawyer -- like yesterday -- if he cares about the future of his company. Now, moving on...
> In this case, there are legal repercussions and serious consequences to doing most of things on this page. This is stuff to talk about with a lawyer, not the fucking Internet, and the person I replied to is already giving frighteningly bad advice.
There are legal repercussions and serious consequences to many choices we make in life; while this is a particularly tricky terrain to navigate, that doesn't mean he should go in completely blind. If you think that the advice is "frighteningly bad", point out specifics.
> This isn't about credentials, it's about being smart when it comes to threats that can genuinely hose your business, and not listening to a bunch of armchair lawyers on HN who think they have the best course of action without any sort of context.
This isn't a conversation you're engaging in; you're simply shouting down the parent(s). That's not what HN is all about. Please rethink your approach and come back to this from a constructive angle; it sounds like you have valuable knowledge that could come in handy for OP and others, but you can't see past "holy crap, legal advice on the internet!"
My valuable knowledge is that this discussion shouldn't be happening, because I've seen firsthand what an Internet comment can do legally, both to plaintiff and defendant. So yes, I would prefer it be shot down. I am not legally permitted to discuss the cases in question nor provide specifics of my knowledge, nor will I create liability for myself by refuting specific legal advice being given in this thread.
In that case, might I suggest you end this thread now? Comments on HN should be submitted when they add value; if you're not willing to actually participate in a conversation and attempt to add value, I'd say that the comments have little to no place on the site. Especially in the other parts of the thread where you and another commenter got into it and it ended with "Fuck you."
As mentioned above, jsprinkles is adding value to the discussion by explaining that this discussion should not happen here. Clearly he has experience in the matter. You act as if he is being malicious towards the OP by trying to shout down the advice of non-lawyers. He is, in fact, trying to help OP by doing the same.
I would say if he really wanted just to help, he could of stopped after the first comment he left. That was him helping, the rest I'm not so sure about.
Federal courts generally aren't courts of equity (with bankruptcy courts being the sole exception); they're courts of law. They have a strictly enforced set of procedural rules the nonobservance of which can result in a claim being dismissed with prejudice or a judgment in your opponent's favor. You could learn anything that a lawyer knows--the material isn't difficult at all. What a lawyer provides, however, is insulation from procedural errors. When a lawyer misses a filing deadline, you might have a cause of action against the lawyer in malpractice. If you, a pro se litigant, miss a filing deadline, you're generally SOL. That's why you shouldn't share what you think you know: the consequences are serious and the nuances are subtle.
I agree with jsprinkles for the most part. There is a great deal of legal advice packed in there. The OP needs a lawyer.
But on the other hand, I have to agree with nirvana about one thing. A certain amount of work must necessarily fall on the OP to find the right lawyer for the case. As nirvana says, there will be plenty of lawyers who aren't really interested and just say "roll over," while there will be others who would want to aggressively pursue the case. I'm not saying the former type is wrong and the latter right. But it's worth considering that different lawyers will have fundamentally different attitudes about the case and different styles. The OP should be cognizant of that when picking a lawyer.
You don't have to do any work to find a lawyer beyond calling your county bar association's lawyer referral service (or the ABA lawyer referral service). Lawyers are obligated to turn down cases on which they would be unable to provide competent representation. They will ask you for information, you will provide it, and they will determine whether they can competently provide representation. Trust them.
But surely you're not suggesting that all lawyers are equally effective, have the same style (level of aggressiveness, etc.), or would have the same opinion about a given case?
I can say with certainty, from firsthand experience, that none of these three things is true. I've also seen lawyers replaced because their performance was inadequate.
Given that, how could one possibly avoid having to carefully and deliberately choose a lawyer?
Consider finding a lawyer like dating: if the first date (initial consultation, which is generally free) leaves you with a bad taste in your mouth, move on.
I found a missing "possibly" and a spot where I clarified that something was my perception, but to be honest nearly every perspective I give is qualified with a "may" or a "it appears" or some other similar language.
Nowhere did I give a single bit of legal advice. I merely illuminated a variety of ways that he could do some research that might show that he has more of a case than the lawyers he originally talked to concluded, towards the goal of getting a lawyer interested in the case.
----
Edit to add: The opposition continues to dishonestly claim that I am giving legal advice. I have not. I have merely suggested avenues of the law that could be researched and then discussed with a lawyer.
There is zero risk in someone reading the law and then talking it over with a lawyer. There is zero liability in me suggesting someone get a lawyer and offering suggestions for how they might get one.
I find it astounding that this comment has been down voted by %75 because persistently dishonest people have continued to claim that I'm "giving legal advice" when I am not, and have convinced people to punish me for trying to help this guy.
I mean, I actually went to the USPTO and pulled up the relevant mark and read the examiners comments!
Yet on HN, lying about me and attacking me carries 3 times the weight, apparently.
> nearly every perspective I give is qualified with a "may" or a "it appears" or some other similar language.
That's called weasel wording.
> Nowhere did I give a single bit of legal advice.
Uh, your entire comment is how to respond to this legal threat, which is legal advice. The only advice anyone on Hacker News should ever give to someone in legal trouble is "consult an attorney", not how to consult an attorney, research to do ahead of time, bupkis.
I do not apologize for responding on the topic and attempting to help this guy. I brought up a lot of possible avenues that could be useful for him building a case.
You have merely engaged in ad hominem and quite successfully derailed the discussion. Thanks for the down vote brigade, by the way.
I must conclude that actually trying to help people on HN is not tolerated if the person attempting to help has offended someone who feels comfortable in the level of dishonesty you are.
>Rather than considering possible ways that he might build a case, as I am attempting to do, you are successfully derailing and discussion of the actual topic with your attacks and dishonesty.
It is not the author's responsibility to build the case. That's what lawyers are for. They're the ones that are supposed to build the case.
That's the second time I've been accused of ad hominem attacks in this thread, and the second time it's been flatly wrong. An ad hominem is me refuting your point by implying that you personally are not qualified to give it. I am not refuting your point, at all, and I have been careful to do so except to generally label some of your advice bad. I am telling you to shut up and stop giving advice on a case you're not personally familiar with. You are aware that there is legal liability for YOU being created as we speak, right?
> and quite successfully derailed the discussion
Good. It needs it. Your comment in particular.
> Thanks for the down vote brigade, by the way.
This is a tall accusation, and I do not have a "down vote brigade". I downvoted your parent post and nothing else. I suggest, since you have been around the block of Hacker News a few times, that you step back and take a few breaths and think about what you're saying.
> I must conclude that actually trying to help people on HN is not tolerated if the person attempting to help has offended someone who feels comfortable in the level of dishonesty you are.
Fuck you. I seriously have no other response to that, and I'm ashamed that I've gone there, but really: fuck you, and everything you stand for, with that little remark.
>An ad hominem is me refuting your point by implying that you personally are not qualified to give it.
Your claim that I am not a lawyer and therefore shouldn't be giving legal advice is, by definition "implying that you personally are not qualified to give it."
Now add to that ad hominem the fact that I wasn't giving legal advice, and your repeated insistence that I am, is a dishonest characterization of the argument, akin to claiming I'm not qualified to beat my wife and therefore should stop.
The fact that I'm not actually beating my wife means that your dishonesty about this is an attempt to characterize me in a derogatory fashion. Thus, personal attack as well.
>Good. It needs it. Your comment in particular.
Glad to have you on the record admitting that your intention is to block productive discussion.
>Fuck you. I seriously have no other response to that, and I'm ashamed that I've gone there, but really: fuck you, and everything you stand for, with that little remark.
It is a simple fact that you have been completely dishonest about my remark. You have been characterizing it dishonestly from the beginning, and when I pointed out that I wasn't claiming what you said I was claiming you evade the fact that this proved you to be lying by claiming those were "weasel wordS". Yes, exactly the point of "weasel words" is to emphasize that you don't know all the facts at hand and you're providing possibilities. Which, in fact, shows your claim that I am giving legal advice to be a wholesale fabrication.
You should be ashamed that you are willingly and proudly derailing a conversation whereby a poster to HN might get some advice for how to solve his problem of finding legal council.
Notice that I was attempting to help him get legal council, not giving him legal advise that would render such council unnecessary as you claim.
So, you have lied about what I have said, you have admitted trolling, and you have evaded every counter argument I have made to the point where all you're left with is "fuck you".
I suggest you consider -- just for a second-- the fact that everything I've said is true, that you went off the handle at me for the "crime" of trying to help someone, and that the entire basis for your admitted attempt to derail this thread is false.
I wasn't giving him legal advice, I was trying to help him get enough info to get a lawyer interested.
You are intentionally being disingenuous, now, because you're upset. That's fairly transparent in your reply. Multiple people have told you that you are giving legal advice, and suggested that you stop, and pointed out how I am correct, and yet you're sticking to your guns that I'm a troll.
I can't even begin to attack the amount of stupid in this comment, so I'm cutting my losses, adding your name and company mentally to my personal blacklist for doing business or hiring, and getting out of the thread before this consumes even more of my time.
>You are intentionally being disingenuous, now, because you're upset.
I think curious is the appropriate word to describe my mental state. HN is populated by people who should be able to think fairly logically-- I would assume more logically than the general population.
I understand why you made the false claim originally, and why you have chosen to characterize me in a derogatory fashion at every turn, including this last missive.
What I cannot fathom is why you feel so compelled to prevent productive discussion that you would impeach your own integrity with a lie? Or why, having never supported that lie, failed to provide even a single quote from my post showing me giving legal advice?
Or why, having had this refuted repeatedly you are sticking to your guns. Surely an understanding of logic must compel you to recognize that you cannot provide any evidence of me giving legal advice, let alone attaching liability to myself.
I think its hilarious that your thesis has that lawyers can say "this is not legal advice" as a disclaimer but non-lawyers cannot. But maybe I'm wrong? If you're right, you should be able to provide evidence. You have never done so, as you have never done so for any of your claims.
Again where you have an opportunity pursuade me by providing evidence you choose not to. Hell, even if I rejected that evidence you could have more confidence in your own position.
Why have you not even meet such a low bar for evidence as that, yet you feel comfortable characterizing me?
I am having to guess that you are not equipped to engage in logical debate. I'm curious as to why this is, and why this seems to not be uncommon on HN. I don't observe this phenomena among people of my age group.
----
Responding to your deleted response:
Here's what you actually said:
" you just wrote an essay full of legal advice, including conclusions on how the proceedings will go"
All of which is false. Making your claim that the disclaimer is toothless irrelevant. Further, post hoc ergo proctor hoc.
You did give legal advice, dude. Here's some legal advice for you to protect yourself in the future, a disclaimer you can place before you do something similar in the future: "The following [X] is/are not legal advice. It/They is/are intended as background material for use in preparing to knowledgeably discuss the situation with the lawyer who will be representing you in this matter."
I know for a fact that this language is sufficient in the Sixth Circuit. YMMV, but a disclaimer is a very handy way to shield yourself. Jsprinkles may disagree, but I've seen and handled cases in which disclaimers were the only thing saving someone from a ruinous malpractice suit for stuff they posted online (or published).
No, I agree, I just think relying solely upon a disclaimer is dangerous. I certainly respect your take more than my own, though, as you do it for a living, and I'm definitely paying attention.
For those of you watching this unfold and wondering what "post hoc ergo proctor hoc" means, check this clip (from The West Wing) http://www.youtube.com/watch?v=HL_vHDjG5Wk/
(I would also like to say that this is in no way legal advice and should only be used as background material in research) I had to :)
Ignoring the rest of this (very, very sad) thread, this stuck out to me:
> I am telling you to shut up and stop giving advice on a case you're not personally familiar with. You are aware that there is legal liability for YOU being created as we speak, right?
Not everyone cares about creating legal liability for themselves if they believe they're doing the right thing. I've built my career (and life, for that matter) on wading neck-deep into the grey areas of the law where I firmly believed that my actions were positive. Whether or not he's creating liability for himself shouldn't be your concern.
True enough. I'm more concerned with the welfare of the person who blindly follows this advice, and the liability being created for people giving him advice is a close second.
Plus there's the fact that I wasn't giving legal advice, by any stretch.
Further, like you, I'm quite comfortable with what I've said, and I am supremely confident that no liability has attached to me in this discussion.
The claim that he's trying to protect me from such liability is a rationalization. His real intent is that he's offended that someone is talking about legal issues and he want's to shut it down.
If that weren't his motivation, why lie and claim I was giving legal advice?
I think what you're missing is that he's not lying. What you're doing could be construed as giving legal advice, with the way US laws work. That doesn't mean he's right, but I doubt he's thinking "pfft, of course it's not advice", thus lying about it. You guys may differ in opinion, but he's not lying.
Honestly, you guys are talking (screaming) past each other on about a dozen things here. Please, step away from the keyboard. Cool down. Think it through and then if you want to from there, engage in a rational discussion. Both of you are doing a disservice to this thread.
> You are aware that there is legal liability for YOU being created as we speak, right?
You keep asserting this repeatedly without citation (and are now doing so in a separate HN post you made on the issue). Kindly cite cases where damages have been successfully litigated around someone posting friendly advice in a web forum.
I have mentioned several times that I have firsthand involvement with unsolicited advice being given on the Internet resulting in consequences for people. I am simply not legally permitted to talk about it, nor will I say if I was the person found legally responsible.
Remember, a liability does not require a law, and there are such things as torts.
Nirvana, the issue is that you are providing a specific application of laws and rules to the OP's facts and suggesting a specific course of legal action. That is, by definition, the practice of law in every state in America. (Though perhaps not necessarily rising to the level of unauthorized practice, which could result in fines or other penalties.)
If you wanted to be on the safe side, you would have said "Generally, [Law X] says" or "Generally, in a situation like this, many people do [Y]."
In your specific case, I would have said, "Prior to hiring to a lawyer, if you do the following research, you'll be well prepared to talk to whatever attorney you select to represent you in this matter." All of your comment is no longer legal advice, it's merely information about how to prepare to knowledgeably talk to a lawyer who will handle the actual representation. (This could be construed as legal advice. IAAL.)
My understanding is that the "practice of law" is to essentially act as a lawyer. In the United States, every citizen is guaranteed the right to practice law in their own defense. "Practice of law" on someone else's behalf when you are not a lawyer may incur fines, as most jurisdictions try to protect their citizens from being represented by someone who has no idea what they're doing. The line between talking about someone's legal troubles and "practicing law" are somewhat fuzzy, however. Is it really that common for someone who has not represented themselves as an attorney to be held accountable for providing bad legal advice in a posting on a message board?
Yes, in their own defense, but not in the defense of others unless they are licensed to practice.
I have heard of a handful of cases (related to immigration law) where persons who offered legal advice were held accountable for providing bad advice online. They did not hold themselves out to be lawyers, but they did hold themselves out to be knowledgeable about immigration law. It's not common for people to be held accountable for this because not many people go so far as to cross the line into "unauthorized practice."
It seems that one of the tests is whether the person offering legal advice is being compensated somehow, and another is whether there is some kind of ongoing relationship. (I'm imagining a scenario where someone offered their services as an "immigration consultant" for a fee, for example, and they made promises that they could help you navigate the red tape of immigration.)
Maybe if one posted enough legal advice on a message board like this one, some kind of pattern could be established, and the person could get into some legal trouble.
I'm not scolding or anything. Just trying to be helpful, honestly. So in that spirit, here's an example (not the only one) of something from your post that would likely be deemed legal advice:
"Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it."
In this instance, you're making a lot of conclusions about the OP's case. See for reference:
You are, as per that definition, using "application of legal principles to facts" in order to "in effect [predict] a specific resolution of a legal issue."
Again, I'm not trying to make you feel bad or anything like that. I respect that you put in a major good faith effort to help the OP by writing your initial comment.
From the definition you've linked to (emphasis mine):
"The following is an example of one state’s definition of legal advice:
"An _attorney-client relationship exists_ and one is deemed to be practicing law whenever 'one undertakes _for compensation_, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.'"
I'm unclear at what point nirvana entered into a client-attorney relationship with the OP, and at what point he was compensated for his legal advice.
Is there any problem with giving legal advice? I thought that anyone can give legal advice, as long as they don't practice law (without authorization).
I guess the real question is, does legal advise always constitute the practice of law? I can go to an accountant, real estate agent, government department, police station, bank, or school and get something which technically constitutes legal advice.
I think it's a gray area, and I think the laws are a little vague (and vary with state law).
I'm pretty sure an offer "Ask me legal questions, even though I'm not a lawyer" would put you in hot water. I doubt you could create a forum specifically for non-lawyers to offer people advice.
I think there is a line somewhere between coincidental legal advice, and practicing law, and while I don't think anyone (even a lawyer) knows where that line is, I've never heard of a poster on an internet forum getting charged.
I just want to say thanks for writing such a detailed comment and that it provides value to our community. I hope it doesn't constitute legal advice, but I'm not convinced you can take the views of armchair lawyers that it does.
General advice for legal questions: it's fine to ask these sorts of questions, but please, for the love of god, don't listen to anyone who isn't a lawyer or who hasn't gone through something very similar to what you're going through. And, even in those cases, take their advice with a HUGE grain of salt. (If you disagree, please see below, where OP is variously advised to (1) commit unlicensed practice of law [serious repercussions], (2) commit fraud, (3) waste money, and (4) likely destroy his own case.)
As a lawyer (who doesn't have anywhere near enough facts to give you anything close to competent advice), my advice is to find a lawyer to represent you. If you can't afford one, try the EFF or similar organizations. If they won't take you, find a legal clinic nearby. If you're in the bay area, you have have two of the best lawschools in the country within bicycling distance of you (UC Hastings isn't half bad either...). They have legal clinics, generally led by highly respected and knowledgeable faculty that are happy to have cases like this.
Unless you really don't want to fight this, go get a lawyer who knows what he's doing. If you don't want to spend a lot of energy, possibly a lot of time, and likely some money, just roll over now. But, don't half-ass it and try to do this yourself. By blowing at least two deadlines, you've already shown you're not up for it.
The idea that only lawyers can know anything about the law, and therefore nobody else can suggest avenues of investigation is shockingly elitist.
Imagine what HN would be like if only state approved programmers were allowed to have an opinion on technical subjects.
You're being down voted because you are lying about what I said and attacking me for the "crime" of trying to suggest areas of investigation for this guy... who's primary problem is that he has been UNABLE to get a lawyer.
So, yeah, shame on me for trying to help him get a lawyer. I won't sleep tonight.
Sure they do, you can make technical decisions that ruin a company and that causes lawsuits (as many business deaths seem to). You can make technical decisions that get you sued for copyright, patent stuff, privacy violations, indecency laws, on and on. We all make legal decisions every day without having to consult a lawyer all the time.
You skipped right over where I said "in the general case," as I am certainly aware that there are exceptions as you are pointing out. Specific legal advice is almost universally dangerous. Specific technical discussion is almost universally not.
> Imagine what HN would be like if only state approved programmers were allowed to have an opinion on technical subjects.
Programming and law are two completely different fields, each with its own sets of requirements, regulations, practice, and repercussions. Please don't try to make them out to be the same.
It's called an "analogy". He didn't try to make them out to be the same. Personally, I feel it's an apt comparison and one that has occurred to me too many times.
The fact that each field has its "own set of requirements, regulations, practice, and repercussions" is obvious to everyone.
Perhaps a better way to respond to such an analogy is to explain how the similarities and differences make his analogy valid or invalid. That could be interesting and informative.
> The idea that only lawyers can know anything about the law, and therefore nobody else can suggest avenues of investigation is shockingly elitist.
It is elitist and shitty, but also true. It's not because lawyers are smarter than the rest of us. It's because the legal code in the US is ridiculously complicated, vague, and fraught with landmines.
"It's because the legal code in the US is ridiculously complicated, vague, and fraught with landmines."
Dealing with these situations does not just involve legal knowledge. It also involves strategy as well as some practical examples of what others have done in the same situation.
Lawyers (with obvious exceptions) tend to be pretty weak on common sense strategies and tend to frame things totally based upon their legal knowledge and training. This can be a trap that prevents them from seeing a very obvious solution to a problem that a non-lawyer can come up with.
Lawyers being officers of the court have to act in ethical ways. And most importantly they have something to loose which is their law license. That's a powerful motivator to not take any chances.
A layman on the other hand can engage in different types of manipulation that an attorney can't do even if they had the same idea.
Lawyers (with obvious exceptions) tend to be pretty weak on common sense strategies and tend to frame things totally based upon their legal knowledge and training.
OK, one data point is just an anecdote, but I saw a good example of a lawyer using some basic strategy a while back. I had a legal situation of my own, hired a lawyer and went to court with the lawyer. The situation wasn't settled the first day, so my lawyer looked at the court schedule, figured out that if we asked for a continuance we'd come back to court when a different judge was presiding, who he believed - based on his knowledge of the judge's personal life - would be more favorable to our position.
We came back two weeks later, sat in front of the new judge, and the judge came down pretty clearly on our side, and the situation was resolved amicably. Had we tested our luck with a different judge, things might not have turned out so well (then again, maybe they would). But, anyway, is struck me as a fairly subtle, but effective technique.
That said, I understand that - in general - the courts don't like it when lawyers try to "pick their judge" to YMMV.
You're absolutely correct when it comes to legal advice, as such would need to avoid such land mines.
But that's not the issue here. The issue here is whether one can suggest possible legal avenues of investigation that could be used to get a lawyer interested in the case.
There is zero risk in reading the law and then talking to a lawyer about what you find there.
>But that's not the issue here. The issue here is whether one can suggest possible legal avenues of investigation that could be used to get a lawyer interested in the case.
Here's how you get a lawyer interested in the case:
1. Find the phone number of a lawyer. Contact the EFF, or the local bar association for a lawyer that's listed as knowledgeable with the part of law that you're dealing with(in this case, copyright and trademark law).
2. Call the lawyer, arrange a meeting. Gather up everything they ask for when you call them.
3. Meet with the lawyer. If it doesn't go well, go back to step 1. Repeat until done.
4. There is no step 4.
This should be the only piece of advice in this thread.
oh Mr. Very Important and his "this should be the only piece of advice in this thread."
A few days ago there was this post #1 on YC News about a guys whose kid had this super-rare genetic disorder. Now, what, this guy should only listen to the Doctors and forget about turning on his own brain?
I think that a good lawyer will listen to his Client and appreciate the Client who is interested enough in his case to propose solutions based on this readings/understanding of the Law. Or even discuss the stuff he saw here.
Why on Earth everybody such a pain about legal advise and when it comes to much more important thing in life - health, life threatning disease - nobody's complaining when questions are asked and resolutions proposed.
HN as I understand it is to exchange and share information. Not to censor it. Go to Cuba with your attitude dude. Or just relax.
That child's doctors personally examined the child, have expertise to deal with the situation, and are aware of any details which are important. A HN commenter has not personally met either party, in most cases is not a lawyer so he does not have expertise to deal with the situation, and most importantly, are only aware of what one party has told them. There is a significant difference.
You should take a look at an exchange between that guy and a guy with the bio: "Software development, web design ; interested in movies, animation and humor." [1]
Should they both just shut up and let the big boys handle it? Or should he take another person's input and use his head to determine it's value? People are capable of offering valuable input without expertise and full details.
As PG said, "Don't trust stuff you read on forums." He didn't say ignore it. It might even save his son's life. I'm strongly inclined to believe this can work in law as it can work with extremely rare medical conditions.
> The idea that only lawyers can know anything
> about the law, and therefore nobody else can
> suggest avenues of investigation is shockingly
> elitist.
My personal experience is that disclaimers such as you gave have very little legal standing, and that what you said can be regarded as legal advice, regardless of the "if"s, "but"s, "possibly"s, and "maybe"s that you so carefully sprinkled throughout.
You certainly can share what you know about these things, but advice given to me in the past about similar situations is that by doing so you can be regarded by some as taking some of the responsibility for the advice you think you haven't given.
The law is complicated, and while you may share what you know, doing so can put you personally at serious and considerable risk. Further, it doesn't always make sense to those who have not studied it (and sometimes even to those who have), so while what you have said may seem perfectly sensible, a lawyer may disagreed strongly with several of your suggestions, and following them may put the person you are trying to help in more trouble.
So despite the fact that you are trying to help, and despite the apparent soundness of your advice, you are not a lawyer, and there are very likely to be implications of which you are unaware. I applaud your willingness to take on the personal risk of what you said, but I am concerned that you are not helping, and may be making things worse.
> you can be regarded by some as taking some of the responsibility for the advice you think you haven't given
That sounds bogus to me, has anyone heard of any lawsuits of that type? That is, someone who is not a lawyer and is not presenting themselves as a lawyer being sued for giving bad legal advice?
> Do not meddle in the affairs of dragons,
> for you are crunchy, and taste good with
> ketchup.
I am passing on, almost verbatim, the advice I was given most strenuously. Included in that advice was the comment that not everything in legal circles passes the "That sounds right" test.
Certainly in this case, no, I can't quote cases where this has happened. But, you know, like, I'm not a lawyer. There are things that happen in legal circles that I don't know about, but which I have been given legal advice about.
So feel free to ignore it all and take a chance that you're right, and the advice given to me was misplaced. Heaven forbid that you should think I'm advising you.
I'll reiterate this for the benefit of context at this very location, but I have personal experience with a very similar scenario that I am not legally permitted to discuss; it was a situation of unsolicited advice resulting in consequences for people. I cannot say who. I think you'll find if it's a common experience, most people are (wisely) not going to discuss it.
As someone else has asked you already, provide an example you were NOT personally involved in.
Also: I doubt that you can talk about the specifics of the case, but there should be nothing stopping you from quoting the court case so we could look it up ourselves.
Incidentally, it appears that are providing us with legal advise here. The legal advise is that we shouldn't provide legal advise.
If I understand correctly, no client-attorney relationship is established just by sharing your opinion of legal matters with someone.[1]
(edit: The rules are different if you are an attorney.)
(2nd edit: This debate seems to be about whether one can be held legally accountable if someone acts on your naive legal opinions and whether it's a good idea to share your legal opinions when--admit it--you really have no idea what you're talking about.[2] Then again, is it a good idea to follow free legal advice provided by a non-lawyer?)
So if I understand correctly, according to this, nirvana can offer advice without bothering to add any kinds of disclaimers (although he did), and everyone thinks that's completely fine, and can have no possible repercussions.
On the other hand, jsprinkles and I, when we offer comments about our personal experiences, and pass on to nirvana advice that we received from our actual lawyers, we're somehow in the wrong.
Just wanted to be clear. I will now be much more literal about the advice I got from my lawyers and comment no further on these matters.
Disclaimers have legal effect. If you include a disclaimer that you are not providing legal advice, and that your discussion is limited solely to specific issues (and may not include all issues raised by the fact pattern at hand), you will not be liable.
That does not mean you cannot be sued; anyone can be sued. But it does mean that you would win any lawsuit against.
I am a lawyer. (In my particular field, the magical disclaimer is the Circular 230 Notice regarding tax advice.)
Given that your advice is at odds with advice I have received in the past, I will now make no further attempts to share my experiences in these matters.
Your experience is still relevant -- disclaimers don't work in every context. The danger is more relevant for a practitioner than a non-practitioner, since courts will interpret disclaiming language in favor of the "client".
However, based on your comment, it sounds more like you are referring to "hedging language" about the reliability of advice offered rather than an explicit disclaimers that the content is not legal advice.
I too am a lawyer and while I agree that disclaimers have legal effect, I disagree that including a disclaimer necessarily relieves one of liability. In my jurisdiction, what is more critical is whether the recipient of the information believes it to be legal advice and whether the giver of information should realize the recipient may so believe.
Same in Ohio and Cali; that is why the disclaimer must explicitly state that legal advice is not being provided. The key is that it must be reasonable for the recipient to believe that they are receiving legal advice. If they are explicitly told that they are not receiving legal advice, they cannot reasonably rely on what they are told.
I agree. I have received plenty of awful advice from lawyers, especially when I only have a couple grand to spare, which this guy might not even want to spend considering it's a hobby. The idea that some cheap inexperienced lawyer is going to give better advice than HN which is full of experienced entrepreneurs with tons of business related legal experience is ridiculous.
Yeah, this is like using Wikipedia as a starting point in researching an unfamiliar topic. It might be poorly written and do more harm than good but likely you'll get enough from it to pursue further.
"Don't trust stuff you read on forums", as PG said; use your head and maybe you'll find something worth pursuing.
This is the second time in two days I've seen really great advice from a lawyer on HN. I would really like a way to a do virtual "ask a lawyer" office hours on HN.
One of my lawyers put her job description quite succinctly, and it fits particularly well here. 'Lawyers are better defined as Risk Assessment. Our expertise is required so that we can give a client our best assessment of the risk entailed in any course of action the client chooses'
Think about the myriad of actions you could take here...wouldn't it be wise to have an idea of where the risk lies?
I agree that it is smart to say "get a lawyer" in this situation. It does seem very hairy.
But now something off topic...
I noticed that these kind of answers ("get a lawyer") are used also to answer question even when people are just curious or they just want to learn something. It is nearly impossible to learn what needs to be read or investigated in order to evaluate the situation.
For example, I don't need a lawyer for small claims court but where to get some advise?
In other words, even the most common sense questions regarding law, health, taxes, etc are answered with "get a lawyer, see a doctor, get tax advisor, get accountant, etc".
It does seems that market of legal, health, tax, and similar professionals is due to a disruption.
Is there a cheap lawyer service? Something like not visiting doctor but just visiting nurse.
The problem really is that all three of those fields(law, taxes, and health) are highly personal. To get to the right answer in most non-trivial situations, a lot more personal information is required.
Because of that, while anecdotes are very helpful in making a person feel better about their situation, they might not be the right information that the person needs.
It's better to consult with experts who should be able to assist with the specific situation.
The issue with law is that laws are dissimilar from jurisdiction to jurisdiction, in meaningful enough ways that giving advice based on the laws for one jurisdiction might be entirely useless in another. Moreover, even I were to live in that jurisdiction, unless I am intimately familiar with the aspect of law questioned about (which is highly unlikely, even extremely experienced attorneys do legal research), I will have to spend time researching. If I spend time researching, I expect to be paid, generally because the tools used to research are not, themselves, free, like Westlaw or LexisNexis. Moreover, I generally get paid to research to begin with so, in not doing paid research for other clients, I am potentially losing money I might otherwise be making.
Not to say that lawyers can never give good legal advice to legal questions without researching--but the paradigm that I just described is a big reason why people, including lawyers, answer legal questions with "hire a lawyer."
Not sure where you're situated but I met a founder of upcounsel.com last night which specialize in affordable outsourcing of startup legals. It seems timely that I just came across these guys, so may be worth a try?
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[ 9.5 ms ] story [ 198 ms ] threadYour post is now clearly shameful; the fact that you went even further and began accepting donation money only escalates that shamefulness. Did you really think that the details you left out wouldn't come to light?
You've handled this very poorly. Apologize to the community, apologize to WhosHere before you get smacked with a defamation suit, and hire a damned lawyer to deal with your legitimate trademark and breach of contract lawsuit in a court of law instead of wasting time dancing around in the court of public opinion.
https://whoshere.zendesk.com/entries/21514943-the-other-side...
Find a lawyer who will defend you for a part of the money if you win.
Turn it around. They obviously are acting to drag your service (company?) down.
Here's to hoping that someone like Grellas can find time to comment and tell you how to beat these guys.
If that result isn't possible, than I ask you to keep your head up, move on, and keep building.
Do your part to (soberly and safely) reduce the reputation of the founders and VC's behind this.
What if we started a Kickstarter campaign to fund the legal fees to counter-sue this company? The precedence set in a success would be profitable to the builders of the startup community. And I'd sleep better at night.
Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?
Disclaimer: I'm a random HN reader who has done work in the area of location aware computing. I have no connection with either party.
This advice transcends my allegiance, which is to nobody involved in this discussion (and which doesn't matter at all, frankly), and I'm annoyed that you think I'm stupid enough to involve myself in something I'm personally vested in.
I've often been known to comment on legal matters on HN, but I always steer clear of giving legal advice. (At least I hope I've never slipped up and done so.) And, as you well know, that's the proper course for anyone, regardless of whether they're a lawyer or not.
So just to echo and build on jsprinkles' various comments: It's OK to discuss the law in a general sense. I.e. you can talk about how things work, without giving an opinion as to the case at hand. But it's irresponsible and generally illegal to advise an individual on how s/he should proceed.
Example of a comment that's OK: "Trademark disputes often depend in part on the likelihood of consumers being confused by the respective marks."
Example of a comment that's not OK: "Trademark disputes often depend in part on the likelihood of consumers being confused by the respective marks. Since the OP's mark isn't going to confuse anyone, the plaintiff will probably lose."
There's a difference between giving advice from a position of authority and exploring the subject from a variety of angles. It feels to me as though you're accusing folks doing the latter of engaging in the former. Playing around with an idea and throwing out possibilities--some of them foolish or ill-advised, certainly--is at the core of the hacker culture, and I'd like to discourage you from criticizing people for doing so, while still maintaining your healthy skepticism.
I think that it's not as much that you're advocating for common sense, but that you're being really aggressive about it. Everyone can read and understand your point of view. Not everyone has to agree with it. You don't have a moral or ethical obligation to argue with people until they realize that you're right. Reasonable people can disagree, and on the internet, the standard of "reasonable" is often pretty low.
I personally agree with you in that I would never discuss pending legal matters with an online community. It seems too risky.
It also saddens me, as a tech-geek and business-geek and law-geek that we can't have transparent and "hackerly" discussions of these kinds of conflicts and possible ideas (not exactly full-on advice) for addressing and/or preventing them.
Your objections could be worded in a way that is not a personal attack and could be just as informative, or more so.
All that aside, your comment above, reproduced here, is clearly a personal attack:
> Not only are you surprisingly easily manipulated, apparently, don't you have better things to hack on?
Both lower the tone. Both cause unnecessary battles and derail discussions.
Having admitted this in the comment you replied to, I thought it'd be obvious enough that I agree I don't know enough about the situation to be an involved party.
To the insult: You don't think it would be cool to crowd source a legal case in order to upset the typical advantage that money brings into law?
Anyway, I'll let that attack brush off - I do have better things to hack on ;)
EDIT: No worries jsprinkles, thanks for the apology!
https://whoshere.zendesk.com/entries/21514943-the-other-side...
Facts matter. Grellas isn't going to offer any opinion without having a chance to review all the documents that have been filed as well as communications and that is going to take time.
If someone sues you for some bogus claim, is it possible to submit a written plain english rebuttal and have the court throw it out before it gets too serious? I mean if I sue some company for something absurd and demand $10 million dollars, are they forced to actually entertain my lawsuit or can it be dismissed readily without a lawyer?
First, you would have to do some basic research on court filing procedures. It's not rocket science, but you can't just pop an envelope in the mail addressed to the judge.
Once you figure out how to file documents for the case, you need to determine what type of documents to file. E.g. a motion to dismiss might be appropriate if you think the claim is utterly bogus.
It can be "plain English," as Smattiso suggested, and indeed, judges always appreciate clarity. Legalese isn't required, but valid legal reasoning is. Contrary to popular belief, "legal reasoning" doesn't have to be arcane. It's pretty much just a matter of using everyday logic to apply legal principles to the facts of the case.
It's a lot like learning to program. There's no magic involved. It's just a matter of reading the relevant documentation, looking at examples, and using your innate reasoning abilities to put something together in accordance with the rules. And yet, as with programming, reasoning and writing about the law take practice to do well. You can hack together a simple CRUD app with zero programming experience and a lot of motivation. But you wouldn't want to bet your entire net worth on it. Likewise for legal writing. You can spend a few evenings of hard work learning the anatomy of a motion to dismiss and the basics of trademark law, and then you can write your motion. But I wouldn't do it if my personal finances were on the line.
In a situation such as the OP describes, there is an additional challenge. According to the OP, the plaintiff is using and perhaps abusing quirks of court procedure to his advantage. (I'm referring to the bit about default judgement and the alleged absence of certain documents.) That, too, could in principal be dealt with by a non-lawyer, but it would be quite difficult. You'd have to learn a great deal about the finer points of court procedure. This is especially difficult because it's not uniform across jurisdictions.
EDIT: You would also need to determine whether this would constitute unlicensed practice of law in your jurisdiction. Generally, you're allowed to represent yourself in court ("pro se.") But the rules about representing your business are a little more complicated. Sometimes it's OK, sometimes it's not.
So, yes, you can sometimes write something up and get a case dismissed without hiring a lawyer, provided you're willing to learn a great deal very quickly. But you'd be taking a tremendous risk. Probably not a good idea.
Just to be clear: I'm not at all recommending that the OP do this. I'm just answering the question posed in the parent comment. The OP really does need a lawyer, especially considering the plaintiff has allegedly shown a willingness to play procedural games.
As it stands it is way too easy to use as a weapon to sue people into submission. Although I think this is already well known.
But consider this: To be fair to plaintiffs, the bar for "not frivolous" would have to be fairly low. I suspect that a fair pre-vetting system would only weed out a tiny fraction of lawsuits. Probably, even most lawsuits that end with a successful motion to dismiss would make it past the type of preliminary review by the court that you're proposing.
So it's a good idea, but I think something more would be needed to help protect the little gal/guy from legal bullying. (BTW, I'm not saying this particular case is an instance of legal bullying. We only have one party's perspective.)
The legal system would benefit greatly from being framed as a cost/benefit optimization problem instead of as reasoning in a byzantine para-consistent logic.
Is there a repository for learning the basics (and maybe more advanced) legal processes? What forms to send to whom, and when, and what to be sure to do, and what to never do?
It's learn-able if there is a resource that teaches it. An online Khan Academy-like resource. Or even maybe an educational game. The only lawyer sim I've seen is Phoenix Wright.
Sure, I'd still prefer an experienced lawyer to do the driving if something comes up, but I'd feel more confident with some solid legal knowledge of my own.
I'm not aware of any single repository of such information other than law school. But if you're willing to consult multiple sources, you can definitely find the information.
For starters, one can always get a copy of the reading lists for various law school classes. You could also look at commercially prepared law school study guides. Pretty much everything you would learn in law school is available in book form, in one place or another. Obviously, law professors and lecturers contribute a great deal of value added in the form of their own experience and idiosyncratic knowledge. But the core material is all written down in various places.
Those types of materials will teach you the basics of American law. The next step is to research the statutes and case law in your jurisdiction. That means federal, state, county, and municipal laws. The statutes can be found by Googling, for example, "Illinois Statutes," or "Chicago Municipal Code." As for case law, assuming you don't have a subscription to a legal database, you can use some Google-fu to find articles that address whatever legal question you're researching. You can also buy a "treatise" on the field of law you're researching; they're packed full of case citations.
As for court procedure--well, first, let me just say that you probably don't want to litigate your own cases unless you're in small claims court. And even then, having a lawyer really, really helps. But if for some reason you want to learn procedure, that'a a bit harder. There are books specific to individual jurisdictions. Also, courts often publish their own procedural rules. All of this can be found through Google.
Again, this won't make you a lawyer, and it won't eliminate the need for one. But I'm a firm believer that anyone can benefit concretely from a solid understanding of the law. There's no better combination than a smart lawyer and a smart client.
A lot of what the lawyers do is to prepare the case and documents in order to save work for the judge. If there's a amateur doing it, it can mean a lot more work for the judge and he may not be real thrilled about it.
Be prepared to explain why do you don't have a lawyer doing it. It's hard to know how well the answer "because I didn't want to pay lawyer's rates" is going to go over because the judge and all of his professional peers are lawyers.
In a smaller city it's quite possible that everyone in the room (including the opposing lawyer) will know each other well and lunch together on a regular basis. Except you.
Curious? Look into their deal structures.
They are the Groupon mafia, which should set some alarm bells off to begin with given Groupon's shady behavior toward investors (fudging numbers, cashing out most of their billion dollar round to shareholders, etc). I've heard stories self-indulgent term negotiation, deceptive terms, and dragging their feet before scuttling deals.
So in other words, dirty tricks sound right up their alley.
YMMV...
This is terrible advice. Unless you're a duly licensed attorney in OP's jurisdiction, don't offer legal advice. You're practicing law without a license, which is a crime. Moreover, were OP to rely on that advice to his detriment, you may find yourself named as a defendant in a civil suit.
"[A]s the term is generally understood, the practice of the law is the doing and performing services in a court of justice in any matter depending therein through its various stages and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court of law." (People v. Merchants Protective Corp. (1922) 189 Cal. 31, 535, quoting Eley v. Miller (1893) 7 Ind. App. 529 [emphasis added]).
Here's some unauthorized legal advice for ya: Posting your opinion on random legal matters on HN has about 0.00000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000000000000000000000000000 0000000000000000000000000000000000000000000000000000000000000 00000000000000000000000000000000000000000000000000000001%
probability of every resulting in any legal backlash for the commenter. And in a country which is supposed to cherish free speech as a principle, we should absolutely all feel good about giving our opinions, and if the courts have a problem with that, telling the courts to go fuck themselves.
Someone on the Internet explaining how to file for divorce, bankruptcy, or commenting about legal issues related to a startup seems outside of the scope of "unauthorized practice of law".
Does this mean legal advice on the Internet is good advice? No. But I think it's far from illegal unless someone claims to be a lawyer & accepts fees for services.
But now I am probably going to jail thanks to expressing an opinion on how I viewed the law you quoted.
https://whoshere.zendesk.com/entries/21514943-the-other-side...
I'd also suggest you dig up research papers in conferences such as UbiComp and Pervasive. The "who is near me" app has been around for years. Also, check out papers on the cooltown project. I'm not totally sure what a defense to a trademark infringement claim would be. Perhaps if a researcher used the same name in a paper, that might help?
Frankly, I think they like his name better than theirs and are trying to steal that. It's indeed a better name.
If that's the case and their app predates Who's Near Me, I have to say that the OP is probably going to lose this. The names and apps certainly do seem confusingly similar.
Genuinely curious. Do you think they have owners ship of "who" in the context of a social network. Surely using such an obvious descriptive name should count give you less rights to similar names. IE If I have "The Family Teacup Company" I can't complain about "The Swedish Teacup Company."
The trademark is for the concatenation 'whoshere'. Given that both are common words obvious to the topic I would have thought the interpretation would be very narrow and 'who's near me' is suitably different. I certainly don't think you should give in to their somewhat extortionate demands.
"Red" and "Hat" are common words too, but you'd never get away with trying to sell a linux distro named "Red Cap".
Ideas:
-Start tweeting about it & create a hashtag #WhosHereThieves
-Get in touch with the TechCrunch author who wrote about about your app. This story is a big deal
-Reddit post
-Accept donations page
-The VC probably doesn't know anything about this, but they might respond if included in all the negative PR
IANAL, but I think it's a very bad idea. I don't have the faintest idea if it's considered defamation in the court, but I suspect it might be, and thus should be avoided.
IANAL, but I think it's a very bad idea. I don't have the faintest idea if it's considered defamation in the court, but I suspect it might be, and thus should be avoided.
Unless they could somehow prove you have wilfully be continuing to violate their trademark I don't see how any damages are valid. I would certainly not give in to their threats.
What about the origins/timeline of the name and the trademarks. Who was using it first? What exactly is their trademark?
Subject to answers above, and given that this is a side project to you - I would suggest you simply write back stating you don't feel you are violating their trademarks, but would consider a rebrand in your mutual interests to avoid any potential for customer confusion provided they contributed to the cost of paying an advertising agency to create a new logo and other menu costs and estimate their share of those costs as $5,100 (eg they pay you what they are asking from you)
I sympathize with your situation and I'm sure there are a couple lessons learned here- namely that they used negotiation with email to apparently cause you to forget that there was court case pending. But saying that doesn't help you.
I've been in the situation where lawyers told me I didn't have a case, and it sounds like this is what you're hearing too-- but I think you might be missing something- you may have a case, you just haven't found it yet. The lawyers are looking to hear something that gets them excited-- something that they can really use for their profit. Since you don't have a lot of cash, the bar is higher to get them interested.
At this point, you just haven't figured out what the case is. I suspect you probably have a good one, however, if you've been running your service since 2008 or before 2010, or based on the contract they entered into with you.
If you find a case, you'll likely find a lawyer eager to take your case on contingency because both of you can make out profitably. (though of course they will settle when they realize that you have a case, but that still can be profitable.) Until you find it, though, there's no obvious case on the face of it.
This means you need to do the legwork. Start going thru every communication you have with them and organize your documents as best you can. I would strongly suggest you get a timeline going. Dig up that old agreement where you changed the name-- did they agree that doing so would settle the matter? Even in writing in an email? If that's the case, then you may have them violating a legally binding contract by bringing this case.
Build this timeline going back to the beginning and gather evidence proving each step (Eg: your receipt for registering the domain name, etc.)
Find where they have done you wrong- failing to serve you correctly is one example. You need more.
Find the relevant laws-- the cybersquatting laws give you rights against "reverse cybersquatting" where someone tries to steal a legitimate domain name.
Go to the USPTO.gov website and research their trademark application. Do they actually have one? Does it actually cover the area of what you're doing? For instance, I found a registration number 3885293 for "WHOSHERE" which shows a first use in commerce claim of 2008. Does your service predate them? Can you find evidence of you using the name "Whose near me" or whatever, including registering that domain prior to that date in 2008? How about prior to the date they filed for the trademark in 2010? When looking at their trademark, find the "TARR STATUS" button, click that, then find the "Trademark Document Retrieval" link near the top of the page, go and select all the documents for their trademark and download them as a PDF. You may find that the trademark examiner has done footwork for you, limiting their possible use of the TM, and they may be in violation of that... this will give you even more cause.
Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it.
The stress they are causing you, and any actions they have engaged in that are dishonest or violating the law or agreements give you cause to sue them for damages, I believe.
The odds are pretty good that they know you are young and don't have a lot of resources and they are attempting to abuse the system as a result.... simply doing this research and showing how they d...
Edit: I'm convinced. Don't give or accept legal advice over the Internet. Establish a relationship with an attorney and only discuss it with them. If you don't like the answers they give you, you can find another attorney.
You know how in criminal proceedings, they say "anything you say can and will be used against you?" It's the exact same for civil actions like this, which is why Public Relations 101 (which should be of interest to most in this audience who want to do their own startup) says "being sued or otherwise challenged legally? STFU. No comment."
This isn't about credentials, it's about being smart when it comes to threats that can genuinely hose your business, and not listening to a bunch of armchair lawyers on HN who think they have the best course of action without any sort of context.
> In this case, there are legal repercussions and serious consequences to doing most of things on this page. This is stuff to talk about with a lawyer, not the fucking Internet, and the person I replied to is already giving frighteningly bad advice.
There are legal repercussions and serious consequences to many choices we make in life; while this is a particularly tricky terrain to navigate, that doesn't mean he should go in completely blind. If you think that the advice is "frighteningly bad", point out specifics.
> This isn't about credentials, it's about being smart when it comes to threats that can genuinely hose your business, and not listening to a bunch of armchair lawyers on HN who think they have the best course of action without any sort of context.
This isn't a conversation you're engaging in; you're simply shouting down the parent(s). That's not what HN is all about. Please rethink your approach and come back to this from a constructive angle; it sounds like you have valuable knowledge that could come in handy for OP and others, but you can't see past "holy crap, legal advice on the internet!"
Federal courts generally aren't courts of equity (with bankruptcy courts being the sole exception); they're courts of law. They have a strictly enforced set of procedural rules the nonobservance of which can result in a claim being dismissed with prejudice or a judgment in your opponent's favor. You could learn anything that a lawyer knows--the material isn't difficult at all. What a lawyer provides, however, is insulation from procedural errors. When a lawyer misses a filing deadline, you might have a cause of action against the lawyer in malpractice. If you, a pro se litigant, miss a filing deadline, you're generally SOL. That's why you shouldn't share what you think you know: the consequences are serious and the nuances are subtle.
But on the other hand, I have to agree with nirvana about one thing. A certain amount of work must necessarily fall on the OP to find the right lawyer for the case. As nirvana says, there will be plenty of lawyers who aren't really interested and just say "roll over," while there will be others who would want to aggressively pursue the case. I'm not saying the former type is wrong and the latter right. But it's worth considering that different lawyers will have fundamentally different attitudes about the case and different styles. The OP should be cognizant of that when picking a lawyer.
I can say with certainty, from firsthand experience, that none of these three things is true. I've also seen lawyers replaced because their performance was inadequate.
Given that, how could one possibly avoid having to carefully and deliberately choose a lawyer?
Consider finding a lawyer like dating: if the first date (initial consultation, which is generally free) leaves you with a bad taste in your mouth, move on.
Nowhere did I give a single bit of legal advice. I merely illuminated a variety of ways that he could do some research that might show that he has more of a case than the lawyers he originally talked to concluded, towards the goal of getting a lawyer interested in the case.
----
Edit to add: The opposition continues to dishonestly claim that I am giving legal advice. I have not. I have merely suggested avenues of the law that could be researched and then discussed with a lawyer.
There is zero risk in someone reading the law and then talking it over with a lawyer. There is zero liability in me suggesting someone get a lawyer and offering suggestions for how they might get one.
I find it astounding that this comment has been down voted by %75 because persistently dishonest people have continued to claim that I'm "giving legal advice" when I am not, and have convinced people to punish me for trying to help this guy.
I mean, I actually went to the USPTO and pulled up the relevant mark and read the examiners comments!
Yet on HN, lying about me and attacking me carries 3 times the weight, apparently.
That's a shame.
That's called weasel wording.
> Nowhere did I give a single bit of legal advice.
Uh, your entire comment is how to respond to this legal threat, which is legal advice. The only advice anyone on Hacker News should ever give to someone in legal trouble is "consult an attorney", not how to consult an attorney, research to do ahead of time, bupkis.
You have merely engaged in ad hominem and quite successfully derailed the discussion. Thanks for the down vote brigade, by the way.
I must conclude that actually trying to help people on HN is not tolerated if the person attempting to help has offended someone who feels comfortable in the level of dishonesty you are.
It is not the author's responsibility to build the case. That's what lawyers are for. They're the ones that are supposed to build the case.
> You have merely engaged in ad hominem
That's the second time I've been accused of ad hominem attacks in this thread, and the second time it's been flatly wrong. An ad hominem is me refuting your point by implying that you personally are not qualified to give it. I am not refuting your point, at all, and I have been careful to do so except to generally label some of your advice bad. I am telling you to shut up and stop giving advice on a case you're not personally familiar with. You are aware that there is legal liability for YOU being created as we speak, right?
> and quite successfully derailed the discussion
Good. It needs it. Your comment in particular.
> Thanks for the down vote brigade, by the way.
This is a tall accusation, and I do not have a "down vote brigade". I downvoted your parent post and nothing else. I suggest, since you have been around the block of Hacker News a few times, that you step back and take a few breaths and think about what you're saying.
> I must conclude that actually trying to help people on HN is not tolerated if the person attempting to help has offended someone who feels comfortable in the level of dishonesty you are.
Fuck you. I seriously have no other response to that, and I'm ashamed that I've gone there, but really: fuck you, and everything you stand for, with that little remark.
I wish you had.
>An ad hominem is me refuting your point by implying that you personally are not qualified to give it.
Your claim that I am not a lawyer and therefore shouldn't be giving legal advice is, by definition "implying that you personally are not qualified to give it."
Now add to that ad hominem the fact that I wasn't giving legal advice, and your repeated insistence that I am, is a dishonest characterization of the argument, akin to claiming I'm not qualified to beat my wife and therefore should stop.
The fact that I'm not actually beating my wife means that your dishonesty about this is an attempt to characterize me in a derogatory fashion. Thus, personal attack as well.
>Good. It needs it. Your comment in particular.
Glad to have you on the record admitting that your intention is to block productive discussion.
>Fuck you. I seriously have no other response to that, and I'm ashamed that I've gone there, but really: fuck you, and everything you stand for, with that little remark.
It is a simple fact that you have been completely dishonest about my remark. You have been characterizing it dishonestly from the beginning, and when I pointed out that I wasn't claiming what you said I was claiming you evade the fact that this proved you to be lying by claiming those were "weasel wordS". Yes, exactly the point of "weasel words" is to emphasize that you don't know all the facts at hand and you're providing possibilities. Which, in fact, shows your claim that I am giving legal advice to be a wholesale fabrication.
You should be ashamed that you are willingly and proudly derailing a conversation whereby a poster to HN might get some advice for how to solve his problem of finding legal council.
Notice that I was attempting to help him get legal council, not giving him legal advise that would render such council unnecessary as you claim.
So, you have lied about what I have said, you have admitted trolling, and you have evaded every counter argument I have made to the point where all you're left with is "fuck you".
I suggest you consider -- just for a second-- the fact that everything I've said is true, that you went off the handle at me for the "crime" of trying to help someone, and that the entire basis for your admitted attempt to derail this thread is false.
I wasn't giving him legal advice, I was trying to help him get enough info to get a lawyer interested.
Shame on you for opposing that!
I can't even begin to attack the amount of stupid in this comment, so I'm cutting my losses, adding your name and company mentally to my personal blacklist for doing business or hiring, and getting out of the thread before this consumes even more of my time.
I think curious is the appropriate word to describe my mental state. HN is populated by people who should be able to think fairly logically-- I would assume more logically than the general population.
I understand why you made the false claim originally, and why you have chosen to characterize me in a derogatory fashion at every turn, including this last missive.
What I cannot fathom is why you feel so compelled to prevent productive discussion that you would impeach your own integrity with a lie? Or why, having never supported that lie, failed to provide even a single quote from my post showing me giving legal advice?
Or why, having had this refuted repeatedly you are sticking to your guns. Surely an understanding of logic must compel you to recognize that you cannot provide any evidence of me giving legal advice, let alone attaching liability to myself.
I think its hilarious that your thesis has that lawyers can say "this is not legal advice" as a disclaimer but non-lawyers cannot. But maybe I'm wrong? If you're right, you should be able to provide evidence. You have never done so, as you have never done so for any of your claims.
Again where you have an opportunity pursuade me by providing evidence you choose not to. Hell, even if I rejected that evidence you could have more confidence in your own position.
Why have you not even meet such a low bar for evidence as that, yet you feel comfortable characterizing me?
I am having to guess that you are not equipped to engage in logical debate. I'm curious as to why this is, and why this seems to not be uncommon on HN. I don't observe this phenomena among people of my age group.
----
Responding to your deleted response:
Here's what you actually said: " you just wrote an essay full of legal advice, including conclusions on how the proceedings will go"
All of which is false. Making your claim that the disclaimer is toothless irrelevant. Further, post hoc ergo proctor hoc.
I know for a fact that this language is sufficient in the Sixth Circuit. YMMV, but a disclaimer is a very handy way to shield yourself. Jsprinkles may disagree, but I've seen and handled cases in which disclaimers were the only thing saving someone from a ruinous malpractice suit for stuff they posted online (or published).
(I would also like to say that this is in no way legal advice and should only be used as background material in research) I had to :)
> I am telling you to shut up and stop giving advice on a case you're not personally familiar with. You are aware that there is legal liability for YOU being created as we speak, right?
Not everyone cares about creating legal liability for themselves if they believe they're doing the right thing. I've built my career (and life, for that matter) on wading neck-deep into the grey areas of the law where I firmly believed that my actions were positive. Whether or not he's creating liability for himself shouldn't be your concern.
Further, like you, I'm quite comfortable with what I've said, and I am supremely confident that no liability has attached to me in this discussion.
The claim that he's trying to protect me from such liability is a rationalization. His real intent is that he's offended that someone is talking about legal issues and he want's to shut it down.
If that weren't his motivation, why lie and claim I was giving legal advice?
Honestly, you guys are talking (screaming) past each other on about a dozen things here. Please, step away from the keyboard. Cool down. Think it through and then if you want to from there, engage in a rational discussion. Both of you are doing a disservice to this thread.
You keep asserting this repeatedly without citation (and are now doing so in a separate HN post you made on the issue). Kindly cite cases where damages have been successfully litigated around someone posting friendly advice in a web forum.
Remember, a liability does not require a law, and there are such things as torts.
If you wanted to be on the safe side, you would have said "Generally, [Law X] says" or "Generally, in a situation like this, many people do [Y]."
In your specific case, I would have said, "Prior to hiring to a lawyer, if you do the following research, you'll be well prepared to talk to whatever attorney you select to represent you in this matter." All of your comment is no longer legal advice, it's merely information about how to prepare to knowledgeably talk to a lawyer who will handle the actual representation. (This could be construed as legal advice. IAAL.)
I have heard of a handful of cases (related to immigration law) where persons who offered legal advice were held accountable for providing bad advice online. They did not hold themselves out to be lawyers, but they did hold themselves out to be knowledgeable about immigration law. It's not common for people to be held accountable for this because not many people go so far as to cross the line into "unauthorized practice."
Maybe if one posted enough legal advice on a message board like this one, some kind of pattern could be established, and the person could get into some legal trouble.
"Basically, if you have been using your name prior to 2008, and can prove it, then you are in good shape. If you stared your site between 2008-2010, and they cannot prove that they started in 2008 as they claimed then you're probably in good shape. If you started your site after 2010 then you're reduced to claiming that the marks are not confusing. But you also have the fact that you already have agreement with them (and their failure to attempt to enforce their trademark rights after you changed the name of your service per the agreement) to show they've abandoned it."
In this instance, you're making a lot of conclusions about the OP's case. See for reference:
http://definitions.uslegal.com/l/legal-advice/
You are, as per that definition, using "application of legal principles to facts" in order to "in effect [predict] a specific resolution of a legal issue."
Again, I'm not trying to make you feel bad or anything like that. I respect that you put in a major good faith effort to help the OP by writing your initial comment.
"The following is an example of one state’s definition of legal advice:
"An _attorney-client relationship exists_ and one is deemed to be practicing law whenever 'one undertakes _for compensation_, direct or indirect, to advise another, not his regular employer, in any matter involving the application of legal principles to facts or purposes or desires.'"
I'm unclear at what point nirvana entered into a client-attorney relationship with the OP, and at what point he was compensated for his legal advice.
When you are a lawyer, it's generally best to just not give legal advice.
It's a strange system, but there are different rules for different people.
Also, this is a state-by-state issue, and in Texas, at least, you are quite wrong.
http://www.legis.state.tx.us/tlodocs/76R/billtext/html/HB015...
Is there any problem with giving legal advice? I thought that anyone can give legal advice, as long as they don't practice law (without authorization).
I guess the real question is, does legal advise always constitute the practice of law? I can go to an accountant, real estate agent, government department, police station, bank, or school and get something which technically constitutes legal advice.
I think it's a gray area, and I think the laws are a little vague (and vary with state law).
I'm pretty sure an offer "Ask me legal questions, even though I'm not a lawyer" would put you in hot water. I doubt you could create a forum specifically for non-lawyers to offer people advice.
I think there is a line somewhere between coincidental legal advice, and practicing law, and while I don't think anyone (even a lawyer) knows where that line is, I've never heard of a poster on an internet forum getting charged.
Seriously.
As a lawyer (who doesn't have anywhere near enough facts to give you anything close to competent advice), my advice is to find a lawyer to represent you. If you can't afford one, try the EFF or similar organizations. If they won't take you, find a legal clinic nearby. If you're in the bay area, you have have two of the best lawschools in the country within bicycling distance of you (UC Hastings isn't half bad either...). They have legal clinics, generally led by highly respected and knowledgeable faculty that are happy to have cases like this.
Unless you really don't want to fight this, go get a lawyer who knows what he's doing. If you don't want to spend a lot of energy, possibly a lot of time, and likely some money, just roll over now. But, don't half-ass it and try to do this yourself. By blowing at least two deadlines, you've already shown you're not up for it.
Edit: I've made a "Ask PG" to ask for just that: http://news.ycombinator.com/item?id=4055661
Imagine what HN would be like if only state approved programmers were allowed to have an opinion on technical subjects.
You're being down voted because you are lying about what I said and attacking me for the "crime" of trying to suggest areas of investigation for this guy... who's primary problem is that he has been UNABLE to get a lawyer.
So, yeah, shame on me for trying to help him get a lawyer. I won't sleep tonight.
Technical subjects do not carry the risk of legal consequences in the general case, now do they?
Programming and law are two completely different fields, each with its own sets of requirements, regulations, practice, and repercussions. Please don't try to make them out to be the same.
The fact that each field has its "own set of requirements, regulations, practice, and repercussions" is obvious to everyone.
Perhaps a better way to respond to such an analogy is to explain how the similarities and differences make his analogy valid or invalid. That could be interesting and informative.
It is elitist and shitty, but also true. It's not because lawyers are smarter than the rest of us. It's because the legal code in the US is ridiculously complicated, vague, and fraught with landmines.
Dealing with these situations does not just involve legal knowledge. It also involves strategy as well as some practical examples of what others have done in the same situation.
Lawyers (with obvious exceptions) tend to be pretty weak on common sense strategies and tend to frame things totally based upon their legal knowledge and training. This can be a trap that prevents them from seeing a very obvious solution to a problem that a non-lawyer can come up with.
A layman on the other hand can engage in different types of manipulation that an attorney can't do even if they had the same idea.
OK, one data point is just an anecdote, but I saw a good example of a lawyer using some basic strategy a while back. I had a legal situation of my own, hired a lawyer and went to court with the lawyer. The situation wasn't settled the first day, so my lawyer looked at the court schedule, figured out that if we asked for a continuance we'd come back to court when a different judge was presiding, who he believed - based on his knowledge of the judge's personal life - would be more favorable to our position.
We came back two weeks later, sat in front of the new judge, and the judge came down pretty clearly on our side, and the situation was resolved amicably. Had we tested our luck with a different judge, things might not have turned out so well (then again, maybe they would). But, anyway, is struck me as a fairly subtle, but effective technique.
That said, I understand that - in general - the courts don't like it when lawyers try to "pick their judge" to YMMV.
But that's not the issue here. The issue here is whether one can suggest possible legal avenues of investigation that could be used to get a lawyer interested in the case.
There is zero risk in reading the law and then talking to a lawyer about what you find there.
Here's how you get a lawyer interested in the case:
1. Find the phone number of a lawyer. Contact the EFF, or the local bar association for a lawyer that's listed as knowledgeable with the part of law that you're dealing with(in this case, copyright and trademark law).
2. Call the lawyer, arrange a meeting. Gather up everything they ask for when you call them.
3. Meet with the lawyer. If it doesn't go well, go back to step 1. Repeat until done.
4. There is no step 4.
This should be the only piece of advice in this thread.
A few days ago there was this post #1 on YC News about a guys whose kid had this super-rare genetic disorder. Now, what, this guy should only listen to the Doctors and forget about turning on his own brain?
I think that a good lawyer will listen to his Client and appreciate the Client who is interested enough in his case to propose solutions based on this readings/understanding of the Law. Or even discuss the stuff he saw here.
Why on Earth everybody such a pain about legal advise and when it comes to much more important thing in life - health, life threatning disease - nobody's complaining when questions are asked and resolutions proposed.
HN as I understand it is to exchange and share information. Not to censor it. Go to Cuba with your attitude dude. Or just relax.
Should they both just shut up and let the big boys handle it? Or should he take another person's input and use his head to determine it's value? People are capable of offering valuable input without expertise and full details.
As PG said, "Don't trust stuff you read on forums." He didn't say ignore it. It might even save his son's life. I'm strongly inclined to believe this can work in law as it can work with extremely rare medical conditions.
[1] http://twitter.com/mattmight/status/207529584999153664
You certainly can share what you know about these things, but advice given to me in the past about similar situations is that by doing so you can be regarded by some as taking some of the responsibility for the advice you think you haven't given.
The law is complicated, and while you may share what you know, doing so can put you personally at serious and considerable risk. Further, it doesn't always make sense to those who have not studied it (and sometimes even to those who have), so while what you have said may seem perfectly sensible, a lawyer may disagreed strongly with several of your suggestions, and following them may put the person you are trying to help in more trouble.
So despite the fact that you are trying to help, and despite the apparent soundness of your advice, you are not a lawyer, and there are very likely to be implications of which you are unaware. I applaud your willingness to take on the personal risk of what you said, but I am concerned that you are not helping, and may be making things worse.
Edited for clarity
That sounds bogus to me, has anyone heard of any lawsuits of that type? That is, someone who is not a lawyer and is not presenting themselves as a lawyer being sued for giving bad legal advice?
Certainly in this case, no, I can't quote cases where this has happened. But, you know, like, I'm not a lawyer. There are things that happen in legal circles that I don't know about, but which I have been given legal advice about.
So feel free to ignore it all and take a chance that you're right, and the advice given to me was misplaced. Heaven forbid that you should think I'm advising you.
Also: I doubt that you can talk about the specifics of the case, but there should be nothing stopping you from quoting the court case so we could look it up ourselves.
Incidentally, it appears that are providing us with legal advise here. The legal advise is that we shouldn't provide legal advise.
(edit: The rules are different if you are an attorney.)
(2nd edit: This debate seems to be about whether one can be held legally accountable if someone acts on your naive legal opinions and whether it's a good idea to share your legal opinions when--admit it--you really have no idea what you're talking about.[2] Then again, is it a good idea to follow free legal advice provided by a non-lawyer?)
[1] http://meta.answers.onstartups.com/questions/113/do-i- need-to-add-a-disclaimer-when-i-answer-a-question-on-this-site
[2]http://www.thisamericanlife.org/radio-archives/episode/293/A...
On the other hand, jsprinkles and I, when we offer comments about our personal experiences, and pass on to nirvana advice that we received from our actual lawyers, we're somehow in the wrong.
Just wanted to be clear. I will now be much more literal about the advice I got from my lawyers and comment no further on these matters.
That does not mean you cannot be sued; anyone can be sued. But it does mean that you would win any lawsuit against.
I am a lawyer. (In my particular field, the magical disclaimer is the Circular 230 Notice regarding tax advice.)
Thank you for being clear and specific.
However, based on your comment, it sounds more like you are referring to "hedging language" about the reliability of advice offered rather than an explicit disclaimers that the content is not legal advice.
"Don't trust stuff you read on forums", as PG said; use your head and maybe you'll find something worth pursuing.
Edit: even better - do a virtual legal clinic.
Think about the myriad of actions you could take here...wouldn't it be wise to have an idea of where the risk lies?
Get a lawyer stat.
But now something off topic...
I noticed that these kind of answers ("get a lawyer") are used also to answer question even when people are just curious or they just want to learn something. It is nearly impossible to learn what needs to be read or investigated in order to evaluate the situation.
For example, I don't need a lawyer for small claims court but where to get some advise?
In other words, even the most common sense questions regarding law, health, taxes, etc are answered with "get a lawyer, see a doctor, get tax advisor, get accountant, etc".
It does seems that market of legal, health, tax, and similar professionals is due to a disruption.
Is there a cheap lawyer service? Something like not visiting doctor but just visiting nurse.
Because of that, while anecdotes are very helpful in making a person feel better about their situation, they might not be the right information that the person needs.
It's better to consult with experts who should be able to assist with the specific situation.
Not to say that lawyers can never give good legal advice to legal questions without researching--but the paradigm that I just described is a big reason why people, including lawyers, answer legal questions with "hire a lawyer."