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August 25, 2003

Posted by Teresa at 09:43 PM *

Three days after their initial request for an injunction was laughed out of court, Fox News has dropped its lawsuit against Al Franken.

“It’s time to return Al Franken to the obscurity that he’s normally accustomed to,” Fox News spokeswoman Irena Steffen said, once again displaying the sophisticated wit and the concern for accuracy that have characterized Fox’s participation throughout the case.

(see also August 11th, 22nd, and 23rd.)

Comments on Denouement:
#1 ::: Kenneth G. Cavness ::: (view all by) ::: August 25, 2003, 10:08 PM:

Well, that's delightful news.

#2 ::: Stefan Jones ::: (view all by) ::: August 26, 2003, 01:15 AM:

Obscurity. Riggggghhhhttt:

" Sales Rank: 1"

#3 ::: Superskepticalman ::: (view all by) ::: August 26, 2003, 05:16 AM:

From a legal/historical view, Franken's work is the likely basis for an insightful dissertation on the power of political/satirical writing. O'Reilly's "work" is more likely the basis for a chilling poli-sci or psychology/sociology dissertation on the abuse of information and communications technology and its role in government propaganda and mass hysteria. The former would satisfy the skeptic in our nature; the latter, the cynic.

Reading both would meet the intellectual cravings many of us have similar to that infrequent craving for carry-out Chinese sweet-and-sour. :)

We'll have to see.

#4 ::: Cathy ::: (view all by) ::: August 26, 2003, 08:31 AM:

And CNN this morning while showing a clip on the matter said "to be fair and balanced, Franken's book is now number one on Amazon."

#5 ::: Adam Lipkin ::: (view all by) ::: August 26, 2003, 10:02 AM:

If it didn't carry the Simpsons, Fox would have not a single thing to recommend it. I'm already halfway out the door on them, considering their absolutely ghastly treatment of Futurama.

(Consider: Since Fox effectively cancelled Futurama in February of '02,

-the show wins an Emmy (nominated for another this year), an Animation Writing Award, one Annie out of 2 nominations, and a Writers Guild of America award. Matt Groening named NCS Cartoonist of the Year. [NCS=National Cartoonists Society]
-DVD volume 1 is released in US, becomes huge seller. Volume 2 is release in Europe, becomes huge seller.
-Cartoon Network starts airing it, becomes huge ratings success like they've never seen.
-A petition is handed in: 130,000 fan signatures.

Fox's reaction? "      ". I.e, nothing. Total indifference. This on top of three or four years of constant preemption and utter lack of promotion. Aargh.)

#6 ::: Kellie ::: (view all by) ::: August 26, 2003, 10:46 AM:

Wow. How gracious of Fox to have reached down into the humble, teeming masses and grabbed Franken out of the rabble for all the world to see. And now they're ever so kindly easing him back into the throng from which they - for a few spectacular and special weeks - rescued him. I wonder who they'll decide to "promote" next. Oh who will be the lucky John Doe to whom Fox gives fifteen minutes of fame? Will it be me? Three cheers for Fox! For saving Franken from a few tedious weeks in the painful world of obscurity! Hip, hip, hooray!

So this quote would indicate that Fox has wisened up to the fact that their lawsuit did nothing more than help Franken's book sales. Or is this just another lame way to try and save face? Methinks the latter.

#7 ::: Jim Meadows ::: (view all by) ::: August 26, 2003, 10:51 AM:

After watching this whole Fox/Franken charade play out, I've started wondering exactly what the legal precedent in cases where common phrases are trademarked. I'm reminded of the Hardee's fast food chain, which, to promote its breakfast biscuits back in the 1970s, trademarked the phrase "made from scratch". This is a phrase many restaurants could use in their advertising truthfully; if they did, would they face a lawsuit from Hardee's? Would they be forced by court order to instead use a more literal phrase, like "made from fresh, basic ingredients, not from a mix"? It's been a quarter century since "made from scratch" became a Hardee's trademark, and one would think there would be some legal rulings set down that would apply to the Fox case, but I haven't heard of them.

#8 ::: John Farrell ::: (view all by) ::: August 26, 2003, 11:49 AM:

I'm currently reading a British mystery by Minette Walters by the amusing title:

Fox Evil. :)

Unfortunately, it's not about overweening news executives.

#9 ::: tavella ::: (view all by) ::: August 26, 2003, 01:57 PM:

I'm still hoping that Franken's lawyers will move for Rule 11 and ask for costs.

#10 ::: Stefan Jones ::: (view all by) ::: August 26, 2003, 02:04 PM:

If I were Franken I'd be gracious and *not* ask for costs. I'd announce this at a news conference where I'd hold up a chart showing the sales of my new book.

#11 ::: the (fair and balanced) talking dog ::: (view all by) ::: August 26, 2003, 03:01 PM:

Fair and balanced sour grapes. We report-- you decide.

AS to Al Franken-- obscure? He's good enough, he's smart enough, and doggone it, people like him.

#12 ::: Rich McAllister ::: (view all by) ::: August 26, 2003, 04:57 PM:

the legal precedent in cases where common phrases are trademarked

Nolo Press has a pretty concise rundown (, the whole URL is too long and fragile looking to make it a link, just look up "trademarks" in their encyclopedia.

"Trademarks that describe some feature or quality of the goods or that are based on someone's name or a geographic term are usually considered to be weak and unprotectible under trademark law. However, once the trademark owner can demonstrate substantial sales, advertising or other public awareness of a weak trademark (known as 'secondary meaning'), the trademark will be considered distinctive.."

The bits in the original Fox complaint about use of the term, their ratings and audience sizes, etc. were trying to make a case that Fox had achieved "secondary meaning" in the phrase.

When Judge Chin remarked in his ruling that the trademark was extremely weak, he was effectively warning Fox that he wasn't having any -- he didn't believe that such a common phrase could possibly be defended as being distinctive. Thus pursuing this suit would result in Fox losing the trademark registration. Since there's a certain value to having the trademark registration -- it makes it easier to chase off small fry with threatening letters -- I'm sure it was a factor in Fox realizing that they were not only doing Al Franken a big favor, they were about to inflict harm on themselves, and had better drop the case before things got worse for them.

Personally I think the USPTO is way too lenient and should never have allowed Fox to register "fair and balanced" (or Hardee's to register "made from scratch") but it's hardly the only way they stretch the rules to accomodate corporations...

#13 ::: Ter ::: (view all by) ::: August 26, 2003, 06:23 PM:

I enjoyed Franken's Q&A here:,9171,1101030901-477919,00.html

#14 ::: Jon Hansen ::: (view all by) ::: August 26, 2003, 09:27 PM:

I'm sad. Went to my local B&N to pick up the book and they didn't have it (neither did Borders, but I knew that already). Very apologetic they were: 70 copies, should've been here by now, didn't know what the problem was. I visited my folks over the weekend they had their copy sitting on the coffee table with a bookmark at the halfway point. Very tempted to shout "Look over there!" and run out with it, but couldn't sink that low. Besides, Dad would've tripped me.

Sigh. Blasted self-restraint.

Not a wasted trip, fortunately. Found something else worth my time. :)

#15 ::: Stefan Jones ::: (view all by) ::: August 27, 2003, 12:16 PM:

You stole a Steven Brust fantasy from your parents?

What kind of rat bastard son are you?


#16 ::: Tom Whitmore ::: (view all by) ::: August 27, 2003, 01:44 PM:

You used Amazon rather than an independent bookseller?


(with a partial smiley, and a partial interest as an independent bookseller who wishes he could lose billions of dollars and be on the cover of TIME)

Tom W.

#17 ::: Jon Hansen ::: (view all by) ::: August 27, 2003, 01:57 PM:

Stefan: no, no, no. I'm the Good Son. Should've worded that better. I bought the Brust at B&N as a substitute for Franken, which they (B&N) didn't have. Besides, I couldn't've stole it (Brust) from my parents, as they wouldn't have it. Dad only reads non-fiction. Mom reads SF/F, but she's not into Brust. I've tried. It won't take. I can't explain it.

Tom: Only a link. Didn't buy the book there. It probably won't make you any happier to learn that where I live is a sea of B&N and Borders, with nary an independent bookstore worth visiting within reasonable travel time. Well, some used bookstores, but I'm betting they're not much better for these purposes.

#18 ::: Stefan Jones ::: (view all by) ::: August 27, 2003, 02:05 PM:

Awww, I figured that out. But the ambiguity was worth a gag.

#19 ::: Jon Hansen ::: (view all by) ::: August 27, 2003, 02:44 PM:

Oh, thank God.

It *was* a poorly constructed paragraph, wasn't it?

#20 ::: Tom Whitmore ::: (view all by) ::: August 27, 2003, 03:16 PM:

Ditto Stephan's, with a nod to Chad Mulligan rather than Rush Limbaugh.


#21 ::: sara ::: (view all by) ::: August 29, 2003, 11:51 AM:

Slightly OT, but does anyone have any inside information on how manages its customer reviews?

Predictably, if any book is substantially left of center and well known, the customer review section fills up with rabid atacks by freepers. These are useless except to show that the book is "controversial."

I wonder if the customer reviews are entirely automated, sans moderators, in which case the freepers are spamming the reviews in the manner of packing a poll, or if Amazon has a right-wing bias and favors including these reviews.

As a test of this I will be looking at Franken's customer reviews in a little while (give people time to actually read the work, though in the case of freepers this is dubious).

#22 ::: Teresa Nielsen Hayden ::: (view all by) ::: August 29, 2003, 01:26 PM:

There's some moderation, but not much. A bunch of pranksters once posted a long series of abstruse postmodlitcrit reviews of a Family Circle collection. It took a long time for that one to go away.

The reason a left-of-center book has to be well-known to get freeper attention is because many of them aren't actually interested in politics in any normal sense. They like being amused by buffoons like Coulter and O'Reilly and Hannity. They also like feeling like they have the necessary ammo to "win" arguments, though they do it using their role models' tactics: shouting down their opponents, bullying and grossly misrepresenting them, and silencing the ones who reply effectively. They get fed their football-cheer slogans and counterfactual analyses by a relatively small number of feeder sources much higher up the hierarchy, and in return for being fed their preferred diet, they act as the semiotic shock troops of the mindless right.

I'm sure Franken's books are forevermore going to get spraypainted and trashed via freeper reviews. That's because they've now heard of him, and understand him to be their enemy. To which one can only say, "the dogs bark, but the caravan moves on."

#23 ::: sara ::: (view all by) ::: August 29, 2003, 02:42 PM:

Perhaps "freeper" isn't quite the word for these reviewers. They are of a slightly higher class (Reptilia, say, vs. Insecta). That is, they do apparently read, even if only following the lead of reviewers in _Commentary_ and such.

When a book positions itself on the left side of the academic "culture wars," as Lawrence M. Levine's _Opening of the American Mind_ (1996), written in response to Allan Bloom et al., the reptiles rush to review it on Amazon. It is so bad that I often can't bear to read the customer reviews of a left-wing author on Amazon.

#24 ::: Kip W ::: (view all by) ::: August 29, 2003, 05:46 PM:

The Family Circus reviews can be understood in light of the (sadly defunct) web site, "The Dysfunctional Family Circus," in which captions were provided by legions of sarcastic readers to uncaptioned strips provided by the webmaster. After Spinnwebe finally took the site down (saying that a talk with Bil Keane had given him a change of heart about the whole thing), various of the denizens discovered the review section at Amazon and set about peopling it with references to favorite DFC situations and characters ("Uncle Roy").

The DFC often went way too far, though sometimes the funniest captions were way out there. Besides the typical uses of crudity, incest and drug use, much fun was made of inconsistent representations of the house, incorrect perspective, and absent scenery. Googling sometimes turns up a new outbreak of DFC (or a new temporary host for the 499 panels that it ran). At the least, one can find a couple of samples that show some of the distinctly perverse charm of it all.

Favorite captions:
Jeffy stands nude in front of Thel. "Thank you, and now for my next number. Ahem. 'In days of old a glimpse of stocking was looked on as something shocking, now heaven knows...'"

The boys are looking out the window at a driving rainstorm. "Bil's not even trying to get in any more. Now he's just sitting on the curb, crying."

Eh, you hadda be there.

Oh, and AL RULES! HA! Take that, O'Reilly!

#25 ::: Darkhawk ::: (view all by) ::: August 31, 2003, 11:13 PM:

So, I was adding a book I saw recommended to Electrolite to my wishlist (which is really mostly a list-of-books-to-get-sometime-from-somewhere-all-in-one-place-so-I-don't-lose-them-list rather than a wishlist, but whichever) and got that little 'People who bought this book also bought. . .' page.

One of the items was related. One was the Two Towers Extended DVD. And one was the Franken book. I cackled, and mentioned this to Kevin, suggesting that this was probably attributable to anyone who buys anything getting one of those. He sniggered, and then asked me what the Franken book was.

He didn't know.

I just spent a gleeful fifteen minutes or so giving him the precis of the situation and reading choice bits at him while he was playing computer games. I think the laughter made some of his combats a little more fraught than would otherwise be the case.

His comment as I was reading the judge bits: He was having fun, wasn't he?

His comment as I was reading one of your summaries: She was having fun, too.

Thank you for providing such an entertaining and hazardous to the survival of my husband's Diablo characters resource. We are much amused.

#26 ::: James D. Macdonald ::: (view all by) ::: September 01, 2003, 01:32 AM:

You can find some DFC cartoons here.

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