As I understand it, in order to keep a trademark in US law, you have to prove that you have tried to defend it. What that often means is that when someone else uses a trademark, companies feel that they have to file lawsuits, even lawsuits that they know to be without merit and expect to lose, just because they need to show that they have tried to defend the trademark. If they didn't sue every time, some future use of "Fair and Balanced" that did violate their trademark might get thrown out of court on the grounds that Fox hadn't tried to keep Franken from using it.

It's stupid, but it is just possible that it isn't Fox' stupidtiy that's the problem this time.

One of the authors' organizations has filed -- what, an amicus brief? something like that? -- that among other things, points out the very large number of published books that use one or another trademarked phrase in their titles, including Cory Doctorow's Down and Out in the Magic Kingdom.

The question of defending a trademark was thrashed out at some length in the previous comment threads, if you're interested. I can't say the issue was settled, but it got a good workout.

I'm glad the judge mentioned the weakness of their claim on "fair & balanced". He was being polite. "Fair and balanced" is part of the basic terminology of journalism.

20:05 -- Bill talks about how he takes on the demagogues and doesn't call anyone a liar, or "big fat". He's interested in "elevating the discourse", which is amusing, since 20 minutes later he's shouting at Al to "shut up!"

22:50 -- Bill talks about the left's "hysteria" on the WMDs, and speaks of people blinded by ideology. Not technically relevant to the Bill-Al incident, but it stuck out for me.

25:55 -- Bill talks about how he doesn't call names.

36:55 -- Al speaks of how we know who the biased right-wing media are, waving towards Bill

40:30 -- Al starts the story of how Bill attacked Rob Reno to try to cover his lies about the Peabody

48:25 -- Bill goes for him, verbally

51:05 -- Molly Ivins comes in against Bill, in her demure Texan way, and suggests that the Peabody thing is the sort of thing that merited a retraction

52:30 -- Molly has a nice bit about being against the war on Iraq because she loves America, which is also not relevant to this particular post, but it was very nice

1:02:50 -- Bill denigrates Al's understanding of politics; they get in a spat over Bill's claims that he worked himself up from a poor background

1:13:20 -- Another nasty Bill-Al fight in which Bill calls Al a propagandist

1:16:45 -- Al grinningly mentions that it would help sales if Bill talked about Al's book on his show

1:21:10 -- In answer to a question, Bill talks about how he's not in the business of bringing people together to come to agreement about politics and how to move things forward; he's there because they need people to rattle cages and be a watchdog.

Really, it's exceedingly amusing to see what a hypocritical blind bastard Bill O'Reilly is; and I'm saying this as someone whose previous exposure to any of the people on this panel was solely from reading the occasional Ivins column. It's not a clip for the weak of stomach, though. It's a live flame war. Al trolls Bill, Bill's response is that of a complete *sshole.

I'd say, yes, based on this evidence, Bill's hand was all over the brief.

While trying to find more fun articles about the C-SPAN spat (I was very curious to see what quotes did and didn't make it into various papers), I found this article about Franken lying to Ashcroft. The author clearly has a problem with Franken, but I just found it interesting to see an article accusing Franken lying about something unrelated to the Fox business. Did anyone hear about this?

Cheers,
Tom

I watched the Franken/O'Reilly/Ivins/et al clip, and one of my favorite moments was Al holding up the cover of his book and saying something like, 'This is just a rough. Bill, we could use a better picture of you than this public domain shot. Do you have one we could use? Preferably with your mouth open.'

O'Reilly didn't put on anywhere near as good a show as, say, Eric Raymond on the "Revolutionary SF Writers in Kilts" panel at Con Jose last year. No foaming at the mouth, just rude and out of line.

Pat Schroeder gets high marks for staying civil and high-toned; but she really should do better at getting the microphone away from a loud-mouthed jackass.

And next con I'm going to, I'm telling the program people that I don't want to be on the same panels as Bill O'Reilly.

Judge Chin wasn't having any of it -- but Fox & etc., bank on the fact that a sufficient number of people will give the benefit of the doubt to skilled liars -- "authority figures" who represent themselves as experts and hand off simplified, distorted aphorisms.

Bush tells the public that we have to save the national forests by cutting down lots of trees. OK, the average recipient of this news isn't an ecology scholar with a degree in wilderness management. It's common sense that a fire is more likely to spread in an area that has more trees per square acre than in a less densely-wooded area. So maybe reducing the number of trees makes sense, right? "Who's to say?"

Well, obviously, all the people who have 20-year careers in Forest Management might have something to say about it. But, in this case, it's Bush and Fox News, not Judge Chin, who are presiding over the courtroom. The forest management guys are reduced to muttering under their breath and buttonholing stray reporters in the street.

I guess my point in belaboring the obvious is just that in the larger "courtroom" that's trying the Bush case, there is no Judge Chin. It's a jury trial.

And all of us have the responsibility of being the articulate-but-objective prosecuting attorneys. (This may be a tougher job than the metaphor makes it appear to be. I worry about it a lot.)

And thanks, C.E. for that comment. Note to self: don't hire Hogan & Hartson until pockets are lined with diamond. Hmmm...maybe not.

I guess it's a sign of the times that Lazlo Toth, to my recollection, never got raked over the coals like this.

I am soooooooo looking forward to watching Ann Coulter get old.

Waiter! Another plate of crow for our friends at FOX News!

Why, you think she might turn good-looking with age?

(Yeah, cheap shot, I know, but I really can't look at pictures of her without shuddering, and that has absolutely nothing to do with what she writes.)

As Marty Schwimmer said in his highly recommended Trademark Blog, as lawyers we have a responsibility to lay out the potential rewards and the potential risks for our clients. That is just not something that most large firms that live on insurance defense money are emotionally and/or culturally equipped to do. OTOH, I am not equipped to engage in decades-long scorched-earth litigation... because something that Marty did not say is that even after we lay out the risks and rewards for our clients, it is still the client's choice whether to proceed. See Rule of Professional Conduct 1.2(a).

Look, there's a reason that associates in large law firms have pasty complexions and never emerge during daylight hours. That line about "long hours in the library" is just a coverup.

"Naw, Ray," said the First-Draft Devil on my left shoulder. "You don't need to press 'PREVIEW' this time!"

"I'm back!" announced the Editing Angel, settling into place by my right ear. "Did I miss anything?"

Stephen Dedman, "Never Seen by Waking Eyes"