Damien Shields said:
Precisely this! And don’t forget your children’s private handwritten diary entries can now be published as Mark Twain literature. As long as the publisher ‘didn’t know’ it’s not Twain’s work & as long as consumers are creating a ‘public debate’ by alleging that the work is fake.
Gosh, when will they learn they are not understanding the ruling at all?
Selling forgeries is illegal (in the USA in general and in California, too, the Californian Civil Code makes that very clear [besides that it's illegal in a lot of countries]).
The appeal court's ruling didn't say anything contrary in that regard. What it did say is that the examples given by Serova's lawyers do not constitute "commercial speech", instead they fall under "freedom of expression" which is granted to all parties by the First Amendment. Thus there's nothing relevant for going after Sony/Estate the way the case has been built.
The public debate is a separate issue that is only connected with the anti-SLAPP motion in this case - and the Supreme Court will without a doubt uphold the current ruling.
Sony/Estate have not been charged with fraud claims, THAT was a huge error in reasoning by Serova's lawyers. Only in a trial there could be a ruling whether any actual fraud did occur or not and Sony/Estate could not have been dropped from the case this easily.
Even good lawyers can oversee a strategic mistake like that.
But again: What Shields & his pals don't get is that there has been absolutely NO(!) precedence and NO(!!!) court ruling that would allegedly legalize selling forgeries.
Facts are important. Twisting a court ruling intentionally or due to severe lack of knowledge/understanding of the law isn't the right way.
If the publisher didn't know about selling forgeries, it's still a case of constructive fraud which is a felony in California (see its Civil Code).
And for something to be a forgery, it doesn't matter what some folks in a "public debate" might say...
If for example, the case against Cascio/Porte were to prove what the plaintiff claims, Sony/Estate would then thereafter be forced by the law to stop selling the songs among other things. These are facts.
PS: I've seen them saying stuff like "this would not have happened in the UK" and citing a fraud definition by UK law. Probably because that's all Thomson could come up with. It's NOT any different in California, USA. Wonder why Thomson is unable to extend his research to the law that matters - it's not UK.
Since Serova's lawyers have not explained this detail to her, I conclude that the case was mishandled in that regard because anti-SLAPP is a common strategic device used by corporate defendants very often and a fraud claim including constructive fraud would have been essential.
