Via Instapundit comes a link to an article about a proposed new Trademark dilution law. The law itself may or not be a good idea but the reaction of the artist interviewed in the article is interesting.
As Mr. Stewart asks rhetorically, “What is our country coming to when someone is liable for a lawsuit because they are being nice?”
Hah, hah, welcome to the world of business. I admit to a certain amount of schadenfreude when I read that. Poor, poor artist, he might get sueable even though he did nothing wrong! Wow, that never happens to anyone else!
In modern America, professions fall into two categories: the sueable and unsueable. The sueable work in areas where the law holds people and institutions rigorously responsible for their actions. Virtually every action they take can become the genesis of a lawsuit. Most businesses fall into this category. The unsueable work in areas that have no expectations of responsibility. They have to go out of their way to get sued. Artist of all types fall into this later category, so do journalist, academicians and to a lesser extent lawyers.
Not surprisingly the unsueable seldom see a problem with the contemporary tort system. Why should they? It seldom causes them any problems. Its easy for them to romanticize lawsuits because they themselves never experience the very real negatives of living under the constant and unpredictable chance they they will get sued. They don’t have to go on for months or years waiting for the outcome of a suit that could destroy everything they have worked for.
Of course, when presented with even the minor possibility that they might run the risk of being sueable, the unsueable react with hysterical outrage. How can they be held responsible for their actions? Don’t people understand how special they are! If they can’t tromp all over everyone else without consequence the heavens will fall!
I don’t know whether the new trademark law is a good idea or not on its own merits but if it provides a little education to the unsueable it would almost be worth it on that basis alone
Excuse me, on what planet are journalists not sueable? Here on Earth, journalists and their editors and publishers work very hard to produce work that does not draw libel suits. Publishers (the ones with the deep pockets) have lost many millions of dollars to libel suits.
Scott Ferguson,
Well, here on Earth in the good ol’US of A, it is almost impossible to successfully sue a journalist for libel. To be successful, one must prove that, not only did the journalist get the story wrong but that they intentionally got the story wrong. In other words, journalism is the only area I am aware of were claiming incompetence is a positive defense. A journalist can wreck someone’s life and get off scott-free if they can simply show that they were to drunk and incoherent to get the story straight.
The presumption in the legal system is definitely stacked in favor of journalist. Libel plaintiffs must fight uphill and something like 90% of libel actions fail.
Lawyers are sueable, Shannon. Happens all the time. It is a constant and expensive worry. All activities are undertaken with litigation risk as a factor to be considered. It is entirely false to suggest that even “to a lesser extent” that lawyers “work in areas that have no expectations of responsibility.”
Laywers are suable. However, they face much lower litigation costs than do most nonlawyer litigants, and are also likely to be more able to impose costs on opponents via counterclaims and procedural demands, so in practice nonlawyers are reluctant to sue lawyers unless the stakes and odds of success are high.
Also: A lot of lawyers do work in areas where they have no expectation of responsibility. When was the last time a lawyer working for an “activist” group or government agency faced personal accountability via lawsuit for enormous costs that he imposed, based on nothing more than ideological caprice, or other corruption, on businesses and individuals?
Meanwhile my physician doesn’t carry malpractice insurance, because it’s overpriced due to frivolous and opportunistic litigation, and I suspect keeps only minimal personal property (other than his house, which by law is relatively invulnerable to judgments) in his name. Otherwise, if he farted inappropriately in his office someone might sue him and win, never mind what would happen if he committed a real act of malfeasance.
Our junior college associations sell teacher/administrative insurance; at least once a year we are told at some meeting or other by our administration that we should take out such insurance because we are likely to be sued. (Such warnings don’t make us confident they intend to back us in such a suit, although they do have considerable insurance for such cases.)
Of course, this doesn’t exaactly contradict Shannon’s theory. It is not that we will be held responsible for the level of knowledge that somehow gets in our students’ heads–that would have to do with doing our jobs, etc. Rather we are warned that issues of sexual harrassment, not showing appropriate responses to the handicapped, or in some other way making the classroom an unwelcoming experience may make us vulnerable.
“…a lawyer working for an “activist” group..” Depends. But it happens. Anyone who represents indigent clients can be absolutely certain that some of them will sue their “free” lawyers whom they see as one more possible money bag. Appointed counsel for indigent criminals are sued routinely. Lawyers who bring genuinely frivolous suits can be sanctioned by the court or sued in return. All this happens. Government lawyers don’t get sued, but no one from the government gets sued. Sovereign immunity applies to all government employees, with specific exceptions.
I used to defend doctors. I saw a lot of cases where the doctor wasn’t liable. I saw none, zero, where patient had not suffered some serious harm. The issue was assigning fault, if any. Genuinely frivolous suits rarely get brought because plaintiff’s counsel don’t get paid unless they win and it costs a fortune to prosecute a med mal suit. It’s not worth it. Doctors, like everyone else, complain about the cost of doing business. Doctors, more than anyone else, resent anyone second-guessing them or pointing out when they have done a poor job. An interesting statistic — Doctors whom patients personally like do not get sued, even when they make a mistake. There is a lesson in there that few doctors are interested in learning.
> Our junior college associations sell teacher/administrative insurance; at least once a year we are told at some meeting or other by our administration that we should take out such insurance because we are likely to be sued.
Umm, one group is selling insurance and the other is covering its butt. Neither has any incentive to be a reliable source.
The sueable vs unsueable comparison is interesting but what’s even more interesting is that this trademark law change is really part of a broader parallel trend to give ever more control to the owners of copyrights.
There are others who know much more about this than I do but it seems to me that there is a lot of effort being put into extending the control copyright holders have over not only how material is sold but how it is used, when it is used and even how it is re-sold in secondary markets. Copyrights never seem to expire (as opposed to the other form of IP, Patents) but there seems to be a trend toward finding ways to make usage rights expire.
All this to say that the artist who complains is complaining about an unexpected impact of a larger trend that he no-doubt supports.
Re: Lex’s comment “An interesting statistic — Doctors whom patients personally like do not get sued, even when they make a mistake. There is a lesson in there that few doctors are interested in learning.” First part, completely agree. Second part – disagree, but maybe I’m in, or see myself in, the few doctors category. Medical school candidates are accepted essentially based on how much the school faculties like them – a group themselves divorced from the reality of medical practice, i.e., ‘the real world’, who like all selection groups take those most like themselves, interested in high academic achievement. If more were selected for their humane attributes, we might see a different medical profession, a little bit less narcissistic, a bit more open to criticism.
Sorry for the personal rant, had to get it off my chest.
To merge two Shannon postings … I’ve always wondered: Can the bozos who sell — er, offer — health recommendations that are later found to be worthless or flat-out bad be sued? If not, why not?
Me, I’m dying to hit those idiots who’ve been telling us that low-fat living is the way to go with a lawsuit …