Metabolife’s Lawyer Assures C’box He Won’t Sue

A warning to Chatterbox’s critics in the Fray: This item, like its predecessor, willnot inform you about whether Metabolife’s herbal diet suppliment is safe and effective, or unsafe and ineffective. If you want that kind of consumer information, try this piece in Newsweek

Chatterbox spent most of today continuing to quake with fear at the prospect of getting sued for doing precisely what Metabolife says it wants everyone in America to do: Namely, log on to its Web site. As Chatterbox explained yesterday (see “Metabolife: Read This! No, Wait, Don’t Read This!“), Metabolife makes a diet pill that ABC News’ 20/20 is expected to report on in a forthcoming (but as yet unscheduled) report. Believing that 20/20 is out to do a story that is both highly critical and unfair, Metabolife put its own videotape of the unedited 20/20 interview on a special Web site and (in an advertisement in the New York Times) urged the public to compare that with “what is actually broadcast” when the program airs. But when Chatterbox actually went to the Web site, he was confronted by an elaborate “user agreement” that essentially threatened to sue anyone who used the information on the Web site for journalistic purposes. Chatterbox then phoned Metabolife’s public relations firm, and was told to ignore the bullying legal language and proceed.

But Chatterbox wasn’t going to do anything without talking to a lawyer. He phoned Metabolife’s attorney, Steve Mansfield, who works for Akin, Gump in Los Angeles. Did Mansfield intend to sue Chatterbox if he quoted from the Metabolife Web site?  “I shouldn’t be in a position of providing legal advice to you,” Mansfield said. “I don’t think that’s appropriate for you and for me.” Chatterbox explained that he couldn’t very well take up Metabolife’s invitation to consider the information it had gone to some expense to publicize without some assurance that Metabolife was not going to punish him for sharing said information with his readers. Mansfield said he would have to check with the other lawyers and get back to Chatterbox.

When Mansfield phoned back, he said, “You can certainly quote portions of the transcript under the fair use doctrine, and you also can certainly take still frames, make still frames, of the videotaped interview under the fair use doctrine as well.” He said Chatterbox could also link to the Web site, which was a great relief to hear, because Chatterbox had already done that in the earlier item. Mansfield declined, however, to tell Chatterbox what the rationale was behind all the legal mumbo-jumbo on Metabolife’s Web site, or why Metabolife was (according to its PR firm) unwilling to let ABC News’ broadcast rivals help themselves to the unedited videotape of the 20/20 interview, or how Metabolife could own the copyright on an interview conducted by someone else (incorporating, Chatterbox might have added, audio fed to Metabolife from ABC’s technicians). To do so, he said, would violate attorney-client privilege.

Chatterbox couldn’t resist asking: How much did Akin, Gump charge Metabolife to write up the elaborate legal warning on its 20/20 Web site, which he was now more or less telling Chatterbox to ignore?

“I don’t know what possible basis you would have for that question,” he said.

Was it more than $5,000?

“I’m not going to respond to that,” Mansfield answered.

Mansfield called back a little later to tell Chatterbox that the legal language on the Metabolife Web site hadn’t kept it from receiving more than a million hits on the first day it was up. He also said that if Slatewas going to criticize the legal terminology on Metabolife’s Web site, it ought to acknowledge its own “much lengthier, more intimidating set of disclaimers that goes on page after page after page.” Chatterbox had no idea what Mansfield was talking about (which should give you some idea about how little prominence Slate’s table of contents page gives these “terms of use“; look for the teensy blue type at the very bottom). Mansfield acknowledged Slate’s growly legal language was much harder to find, but said that when you read it, it was “frankly more ominous” than Metabolife’s growly legal language. Well, judge for yourself. Chatterbox thinks that the few obsessives who wander onto this page, which enunciates terms of use for all Microsoft Web sites, and not just Slate, will realize that Slateis out to protect its published material from being stolen or plagiarized, but, like every other publication in the world, on the Web or elsewhere, is more than happy to have its published material quoted in accordance with fair use.

By now it was dinnertime, and Mrs. Chatterbox and the Chatterchildren were urging Chatterbox to come home. Chatterbox will report on his visit to Metabolife’s Web site tomorrow.