We filed our brief today in response to Jenzabar’s appeal, pointing out the many ways in which its lawsuit was flawed from the get-go. But one more oddity has been added to the case – after Jenzabar complained that the descriptive snippet that Google was including in the search results was what might deceive customers looking for information about Jenzabar, Long Bow added a description meta tag referring to Jenzabar’s effort to censor the site. Google's search result snippet now reads: “Jenzabar has tried to censor this web page because it carries critical information about the software company that Chai Ling started with her husband.” But Jenzabar still claims that because the search result appears in the first set of Google results, it is still an “infringing use” because its customers might be deceived. Will its lawyer be able to argue that with a straight face?

The expense of defending the lawsuit came close to putting the documentarists out of business. A very nice amicus brief from the Berkman Center's newly-renamed Digital Media Law Project points out the danger posed by subjecting expressive uses to the trademark laws, given how expensive it is to pay for hundreds of hours of legal work, not to speaking of hiring the expert witnesses and conduct the consumer surveys that have become the typical meat of a trademark case.