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Lanham Act, Monopolistic Housing Institute, err, Manufactured Housing Institute, Legal Bullies, and You

February 4th, 2019 Comments off

 

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Attorneys learn to think systematically. So too do engineers, philosophers, mathematicians, MDs, and other scientists.

 

Ideally, attorneys and other thinkers consider not only their own position, but other perspectives too. The better an attorney understands their opponent’s argument(s), the more effective they can be in representing their client’s interests.

It goes without saying to longtime readers here that MHProNews’ management are not attorneys. But we can read, research, analyze, and think. We can and do cite sources, first, because it is the right thing to do.  But also because crediting the source is what the law suggests should occur.  The Daily Business News on MHProNews does not knowingly use another party’s writing or images, without giving proper credit.

For media and certain kinds of critical analysis, there’s a legal principle involved – and its know as “fair use.”

A well known, third-party example will help illustrate and make the point of fair use.  CNN, MSNBC, and Fox News are among the mainstream media that routinely use each other’s logos, quote each other’s work, and use each other’s video clips.  Since the work of all mainstream media is copyrighted, and their trade marks are registered, how is it possible for each news outlet to use the other’s work legally?

Because such use is covered under the well-established principle used by media known as “Fair Use.”  The composite images show below are from this date, and are shown under fair-use guidelines.

 

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For the sake of MHI’s attorneys, we’ll make our third-party fair use disclaimer logo larger today than we normally do. We also routinely place a notice at the end of each column, with our byline, disclaimers, and notices. We often use a smaller version of an image like the above on third-party sourced images, citing that source.  Some variation of that is what the law requires. Thus, we are neither stealing copyrighted content, nor claiming to be endorsed by MHI, etc. Anyone who thoughtfully, carefully reads an article by us knows that MHProNews is engaged in fact-checking, analysis, and often critiquing MHI and their puppet-master’s work. That kind of analysis by media is precisely what is permitted under fair use. MHI themselves referred to us as news, so they logically have no solid argument.

 

How Is MHI Spending Members Dues?

The Arlington, VA based Manufactured Housing Institute (MHI) apparently decided some time ago that it is okay to spend untold thousands in dues and other revenue money defending themselves and/or Clayton Homes, or their related lending units.  Meanwhile, they routinely refuse to defend the industry at large that they claim to represent.

 

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Who levels the charge that MHI isn’t acting in the best interests of most of their own members? Answer, past and current MHI members.  Even MHI’s prior president, see linked report further below, arguably took some polite-but-pointed parting shots at his own prior bosses.

The quotes that follow are for newcomers to MHProNews, which are attracted day-by-day to this industry-leading trade publication.

The following quotes serve to make the point that MHARR’s founding president and former MHI VP likewise made, or that the new NAMHCO association’s founder made, when they announced their break with MHI over their failures to perform.  Following these quotes below, we will springboard to the headline topic, after these thought-provoking examples.

 

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What is MHI Actually Accomplishing?

MHI is what we’ve editorially and satirically have called the:

  • Monopolistic Housing Institute, or the
  • Machiavellian Housing Institute, or the
  • Manipulative Housing Institute, with each satirical alternative title intended to provoke thought and analysis by industry professionals and observers. Are any or all of those alternative titles an apt description, or not?
ManipulativeHousingInstituteMHILogoManufacturedHousingInstitutelogoMHProNews

Satire is a form of approved fair use, according to the courts.

 

Perhaps the bigger or better question is why does MHI target MHProNews – a pro-sustainable and pro-ethical growth trade publisher, that for years was an MHI member – instead of spending those resources defending the industry at large? If MHI were doing their jobs, they would have arguably have no concerns from our analysis, critiques, and commentaries, would they?

So, whatever MHI says to their allies privately, what is increasingly apparent is the validity of the concerns of those industry members noted above about topics like those linked from this report.

The related reports, further below the byline and notices, are but the most recent reasons why a growing number of industry professionals are alarmed at what MHI allows – and what their puppet masters do.

Meanwhile, MHI’s attorney’s target MHProNews’ publisher.  Isn’t their action a stealth attack on the First Amendment?

Since that’s their apparent tactic, we’ll look below at some claims from their purported outside counsel, which is citing the Lanham Act as their claimed grounds for possible legal action against this platform’s publisher.

 

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In a letter dated 12.21.2108 to MHProNews’ parent company’s managing member, attorney John J. Greiner, of Graydon Head & Richey, LLP gave numerous examples of his complaints, referencing the Lanham Act.  Perhaps Greiner doesn’t think we can read, research, or think for ourselves?

Consider but a few of the legal references that arguably refute Greiner’s claim.

 

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A common tactic used by an opponent willing to abuse the legal system is to file suit, even if they are wrong. Some opponents want to drive an opposing firm or operation into financial insolvency, which could be done through costly legal battles. But that tactic is predicated on hiring an attorney to defend against a claim in the first place. People and organizations can act pro-se or pro-per until such time as they may want to shift strategies.

 

It is worth noting that a specific article Greiner mentioned is this one:

 

“Lots of Sizzle,” Clayton Sales Performance, Other MHI & Clayton Homes News Tips

 

Note that it mentions Clayton Homes, as well as MHI?

Greiner says “Again, we demand that you immediately pull this material from your blog and cease and desist any further copyright violations going forward.”

First, while our website is made up of several blogs, it is more properly trade media. Moving on from that minor point, Greiner ominously stated what MHProNews has said for years, “We will monitor your site to ensure that you comply.”  That’s Greiner stating the obvious. MHProNews has been read by MHI staff, plus large, medium, and small industry members for years.  The quote below is one of many examples.

 

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Note, Barry Cole’s prior anniversary kudos message raises an important point. Most publications in the MH space failed or closed years ago. Some have since tried to make the cut, inspired by MHProNews’ success. Some noteworthy efforts have also since been suspended. MHProNews has stood the test of time, and the slings and arrows of the industry’s outrageous fortunes.

 

Response to MHI’s Disputed Allegations

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L. A. ‘Tony’ Kovach is the managing member of LifeStyle Factory Homes, LLC, the publisher of MHProNews.com, MHLivingNews.com and MH Consultant.

Our publisher and managing member said, “We reject this claim by MHI, their purported attorney, and object to the notion that we’ve ever intentionally misused their logo or name.  Anyone of sound mind who objectively reads our various fact-checks, analysis, and critiques of MHI and their puppet-masters knows that we are not claiming to be MHI. Far from it, we’re holding them accountable for their various actions and/or failures to act.  We are not claiming to be MHI, nor have we claimed to be endorsed by them.  Let others bear the burden of being ‘endorsed’ by MHI, which reportedly has many of its top people under investigation.”

That’s L. A. ‘Tony’ Kovach’s tongue-in-cheek way of saying that several of MHI’s top members are facing various forms of legal and media scrutiny.

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“An objective reading of what we do would logically reduce their attorney’s argument to a bluff, wrong-headed, or an otherwise misuse of the law, in my lay view.  If they want to insist that we are incorrect, that is what juries are for, and we believe in the jury system.”  said Tony Kovach.  “Furthermore, to be crystal clear, we place a third-party fair use notice routinely on articles.  So we believe that we are well covered by the proper understanding of the principle of fair use under the law.” 

First let’s note that the Daily Business News on MHProNews uses various kinds and sizes of logos, some of which – see the example logos below – specifically state that the item it is attached to is being provided under fair use guidelines.  That is an approved method of citing fair use, per the law.  So Greiner and his clients in Omaha-Knoxville-Arlington axis are sure to see it, here is how a big version of that logo looks.

 

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We also use smaller versions of that same logo above, here is but one example, that has the same disclaimer.

But even if that disclaimer above the logo was missing, MHProNews has for years noted at the end of each article that third-party images and references are provided under fair use guidelines.  That are other ways that MHProNews has taken prudential steps at defending our rightful exercise of fair use.

We’re comfortable with the legality of that, based upon third-party legal experts. For example, see the quotations and citations, found as a download, referenced here.

With that disclaimer, let’s next look at what Greiner of Graydon Head & Richey, LLP has complained about.  Because it is illuminating for the industry’s professionals to see what they debatably are wrongfully demanding that MHProNews remove from our website.

 

 

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Notice that the “third party” “fair use” images notice was larger on this. Either Graydon’s research and attorney are not looking, or perhaps they are trying to bluff. If this is how MHI wants to spend dues money of their members, instead of going after those who harm the industry, c’est la vie.

 

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MHI and their ‘echo chamber’ supporters are either badly misinformed, or won’t look at the facts and their causes. MHI – in the video that the still above references – claims to be promoting the industry. If what they do is ‘promotion,’ why are the results so poor? Why is manufactured housing shipments still well under 50 percent of what their own member company called the long-term average since 1990? Is MHI just bad at fulfilling their claims?  Or is MHI’s failure to perform part of the plan to consolidate the industry into fewer hands at a discounted value? Why are MHI leaders getting bonuses, when they are failing to perform?

 

Bonuses, Bonuses! Manufactured Housing Struggles During Affordable Housing Crisis, While Top MHI Staffers Get Bonuses

 

JohnCGreinerAttorneyPhotoGraydonlawLogoDailyBusinessNewsMHproNewsWhat Greiner has not done is say, ‘gee, MHProNews/MHLivingNews, our clients are not willing to debate or discuss the issues you’ve raised in public. They can’t or won’t try to explain any of the allegations or concerns you’ve raised about MHI, Clayton, 21st et al.  So, we’d rather try various forms of intimidation tactics, hoping to silence your platform instead. Citing the Lanham Act is just a ploy.’

There are countless examples on MHProNews and MHLivingNews where we’ve used third party images and quotes, but always under legally protected third party media reports, critiques, and analysis guidelines.

As noted above, every day, mainstream media does the same thing.  Do you see Fox News suing CNN for showing their logo, when they critique their reports?  No.  Do you see CNN or MSNBC suing Fox News for showing their respective logos when they are doing an analysis, critique or commentary?  No.  Why not?

Because the law arguably allows for doing that, and that includes the fair use provisions and rulings under the Lanham Act.

Consider what the Society for Professional Journalists said in their Code of Ethics page.

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See the SPJ’s full code of ethics at this link here.

 

We’ll stand on our understanding of the law.  At some point, they will either sue, or try some other tactic.

But if MHI and their Omaha-Knoxville masters and their allies had the guts, wouldn’t they’d debate in public, instead of ducking public debate?  Wouldn’t they – at a minimum – rationally explain concerns over issues like those linked from this report?

 

Calling out BS

We’re once more accusing the Omaha-Knoxville-Arlington axis and their allies of arguably deceptive trade practices, violations of RICO, marketing rigging, and antitrust laws, among previously cited concerns.  Why not have their attorney’s explain those issues?

If their attorneys sue instead, then we’ll have little choice but to countersue, and use the discovery process to gain even more evidence against them. We’d ask for a jury trial, because the jury system is meant to sort out precisely such contests.

 

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If the Omaha-Knoxville-Arlington axis intentions are so pure, why don’t they explain it rationally?  But that doesn’t seem to be the path they’ve chosen – as Graydon’s attorney working for MHI exemplifies.  If so – if they launch a formal legal suit – then may justice be served, and may the best legal argument win.

But let’s be clear.  The latest salvo of the Omaha-Knoxville-Arlington axis isn’t so much directed against us.  Rather, isn’t MHI’s aim at keeping the industry at large in the dark about what MHI and their puppet masters are doing?

 

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Gus’ message came in response to a series of exposes on issues within manufactured housing, as well as tips, strategies and opportunities.

 

ICYMI, see what Clayton is said to be doing to their largest independent retailer.  Paraphrasing what MHM said last week, ‘if they rape their largest independent, what chance to the rest of us have?’  See that and other reports below.

The time to push back and fight the forces of the axis that seeks to conquer manufactured housing is now. If not now, when? “We Provide, You Decide.” © ## (News, analysis, and commentary.)

 

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To report a news tip, click the image above or send an email to iReportMHNewsTips@mhmsm.com – To help us spot your message in our volume of email, please put the words NEWS TIP in the subject line.

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(Related Reports are further below. Third-party images and content are provided under fair use guidelines.)

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SoheylaKovachDailyBusinessNewsMHProNewsMHLivingNewsSubmitted by Soheyla Kovach to the Daily Business News for MHProNews.com. Soheyla is a managing member of LifeStyle Factory Homes, LLC, the parent company to MHProNews, and MHLivingNews.com.

 

Related Reports:

You can click on the image/text boxes to learn more about that topic.

“Mobile Home Militia,” Retail/Production Sources, Sound Alarm Against Clayton Homes, CMH, New “Anti-Competitive Practices” Allegation

Examining Derek Thompson’s Atlantic Report on ‘Mobile Home’ Retail Market as Fastest Dying Business In America

 

CFPB and 21st, Second Shoe Drops? Flooring w/21st Mortgage Corp? Insider Tips

Independent Clayton Retailers – Insiders, High Cost of Going Along to Get Along?

Former Manufactured Housing Institute President, Manufactured Home Owners, Urban Institute, and You

Bridging Gap$, Affordable Housing Solution Yields Higher Pay, More Wealth, But Corrupt, Rigged Billionaire’s Moat is Barrier