Blawg Review #199

Mark Bennett gives us a historically based blawg review over at Defending People featuring many of our favorite blawgs.

Sharia Imposed in Part of Pakistan

Eight years after the Sept. 11 attacks, we have given up a big chunk of what it used to mean to be American. In the meantime, the Taliban has not only thrived, but has now managed to bully a nuclear power into allowing it to install religious courts in a few provinces.

Don’t think for a moment that Mike Ritze and Don Wildmon aren’t looking at this with envy.

Pirate Bay Boarded Today

Frederik Neij, Gottfrid Svartholm Warg, Peter Sunde Kolmsioppi and Carl Lundstorm begin their trial in Sweden today for operating The Pirate Bay. The record companies call The Pirate Bay an online copyright violation clearinghouse. The four Swedes say it just provides links to other sites.

Two years in prison and a $143,000 fine hang on the outcome of that debate. Source

Should Anything Be Held Legally “Obscene”? Two Girls One Cup and the Third Miller Factor: Miller Delendum Est

Ain't Love Grand?

Since last year’s Valentine’s Day post about the film 2 Girls, 1 Cup was such a hit, we’re revisiting the “ain’t love grand” hit of the decade – Two Girls One Cup! (2G1C)

Last Valentine’s Day, I discussed obscenity risks in the specific context of 2G1C. This year, I’m going to show you how 2G1C proves that the Miller test must finally die, and the obscenity laws must be abolished.

The inspiration for this post comes from a fellow Satyriconista who sent me the following email:

As a matter of personal-professional opinion…. is there anything that you think should qualify, legally, as “obscene.”

My answer:

No, nothing.

I am not in bad company. My jurisprudential hero, Justice Brennan, called for an end to obscenity prosecutions in a scathing dissent he wrote for Paris Adult Theatre v. Slaton:

[T]he effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. The existence of these assumptions cannot validate a statute that substantially undermines the guarantees of the First Amendment…Paris Adult Theatre v. Slaton, 413 U.S. 49, 109-110 (U.S. 1973) (Brennan, J. dissenting)

However, Brennan did not come to this mode of thought without some agony. In fact, it was Brennan’s opinion in Roth v. United States, 354 U.S. 476 (1957) that eventually evolved into the “Miller Test.” That test, currently used to determine whether or not material may be deemed “legally obscene” was what Brennan was attempting to repudiate in his dissent in Paris Adult Theatre.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Click to see the full 2G1C review in all its glory

So lets take a look at my subject of choice for discussions about obscenity law — Two Girls, One Cup. (2G1C). If you haven’t seen the film, nor know anything about it, read this: A film review written by a college student – obviously making fun of left wing “victim studies” professors.

I do not recommend that anyone actually watch the film. I have watched the first 11 seconds of 2G1C — and after that I puke. Every time. The last time I tried to watch it, I showed it to my wife, who is an elementary school teacher. One would presume that I could out-last her. But, after five seconds, I gagged and had to turn away. She hung in for the whole thing, and she laughed most of the time. She’s sicker than I am. See why I love her?

Needless to say, it did not appeal to either of our prurient interests. But, does it lack serious literary and/or artistic, political, or scientific value? How are we to define “serious _____ value?” Does “Dancing with the Stars” have serious value? If you think so, you need to be sterilized. Does that mean that we could ban Dancing with the Stars? No freakin’ way. If freedom of expression means anything to us, then we must leave the marketplace of ideas to decide what expression should live or die. Sometimes, even often, we must pay an unfortunate price for holding on to that ethic. It means that both the evil Mein Kampf and the vacuous America’s Next Top Model get to exist, despite the damage they may do to our collective psyche.

Asking six (or 12) people who couldn’t get themselves out of jury duty to determine whether a work has “serious value” — and to not only make that decision for themselves, but for the rest of us, is horribly inconsistent with any intellectually honest theory of free expression. Nevertheless, until we can dispense completely with the Miller test, we still need to find a yardstick with which to measure “serious value,” or we need to accept the fact that that the third prong of the Miller Test actually encompasses everything - thus rendering the Miller Test functionally dead.

What alternatives do we have? Should we base “value” upon the popularity of the work? Well, if that were the case then movies about gay cowboys eating pudding would miss the mark, despite being critically acclaimed by “the experts.” On the other hand, based upon how many google searches have been conducted for “Two Girls One Cup,” I’d say that the much maligned film gives Martha Stewart a run for her money. No. Popularity wouldn’t satisfy anyone. And, as much as I am uncomfortable with six morons deciding what I can and can’t watch, I would rather have six random idiots decide than the collective idiocy that forms the American public.

My suggestion for determining “serious value,” (at least one test) would be to let the Marketplace of Ideas determine whether the third Miller factor has been met. The “value” of a work is difficult, if not impossible, to determine until we watch the cultural paint hit the societal canvas — then, and only then, should we examine what value the Marketplace assigns to the work.

[T]he ultimate good desired is better reached by free trade in ideas…that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. – Oliver Wendell Holmes

2G1C can actually make you physically ill — and it would disgust any sane juror. Nevertheless, it is impossible to say that the Marketplace of Ideas has determined that 2G1C as has no serious value. On the contrary, 2G1C launched a thousand internet memes, crawled up the pant leg of our collective psyche, and infected pop culture to such an extent that its serious value has been unquestionably proven. The Marketplace has spoken: 2G1C has serious artistic value.

Go to YouTube and search for “Two Girls, One Cup.” (or just click here). Trust me, you won’t find anything pornographic nor even likely unsafe to watch at work. Working with the raw material of this disturbing film, amateurs have put it on their screens and created an entire genre of work known as the Two Girls, One Cup Reaction Video. People, usually just-past-adolescence boys, love to put unsuspecting friends in front of webcams while making them watch 2G,1C. One guy had his grandmother watch it. (click here to see it). In fact, there appears to be an entire sub-genre of grandma reactions to 2G1C.

I have yet to see a 2G1C reaction video that is not utterly hilarious. “Serious value?” There is no serious value to oil as it bubbles out of the ground, but mill it about in a refinery for a little while and it becomes gasoline. You may watch 2G1C and react with disgust (like I did) or dismiss it as “stupid,” (like my wife did). However, I challenge you to not get lost in the reaction videos. They will make you laugh, make your day, and without 2G1C as their raw material, this entire class of expression would have never existed in the first place. The same can be said of Tubgirl, Goatse, Meatspin, Lemon Party, and every other disturbing porn image that later became an internet meme.

I really don’t need another 2G1C to be produced. However, after watching the reaction videos, I can honestly say that 2G1C has contributed mightily to the American artistic landscape. It formed the raw material for this hilarious Family Guy clip, this one with Kermit the Frog, or … well I’ve made my point.

Nevertheless, your Department of Justice (well rather, George W. Bush’s Department of Justice) decided that you couldn’t handle 2G1C, and that its distributor should be prosecuted as a criminal. He eventually accepted a plea bargain and was sentenced to three years probation and a $98,000 fine. I’m not shedding any tears for him, but I do resent the fact that some dickwad vetted by Monica Goodling decided for me that the work has no “serious value.” I am even more offended that said dickwad did so despite the clear voice of the Marketplace of Ideas screaming at us that 2G1C has serious value.

And frankly, if 2G1C has serious value, then everything does. Miller delendum est.

Happy Valentine’s Day.

Oklahoma Moves Closer to Sucking on Lemon (v. Kurtzman, that is)

Taste the Lemon (v. Kurtzman)

Remember Mike Ritze, the Oklahoma bozo who filed the “Ten Commandments Monument Display Act,” in the Oklahoma House of Representatives seeking to have a monument of the Ten Commandments placed on the state Capitol grounds?

Ritze convinced eight members of the Oklahoma House General Government Committee to pass the bill (there were three objections), and it now moves on to a vote before the full Oklahoma House.

Ritze reportedly said that the display would “inspire those who see it.” (source)

It’s a goal of mine to always remind ourselves of our moral compass,” Representative Ritze said. “The moral compass is basically as stated in the Ten Commandments for over 3,500 years.” (source)

I look forward to the ACLU reminding Ritze that when he was elected, he put his hand on the Bible and swore to uphold and defend the Constitution — not the other way around.

Nordstrom (Sorta) Redeems Itself (?) Updated

It seems that Nordstrom has decided that perhaps it was being a bit dickish in its attempt to bully over a small business in a trademark dispute. It even went so far as to say that it is sorry.

“A customer of ours e-mailed us a copy of your story from yesterday expressing their unhappiness with how they feel Nordstrom has handled this issue. I’d like you to know our thoughts. Our intention from the beginning was to co-exist with Beckons in a manner that would enable Beckons to use their trademark on yoga merchandise, while we used the Beckon name for fashion apparel and accessories. We never intended to adversely affect Ms. Prater’s business and we are sorry if this has happened. We are reaching out again to Ms. Prater’s attorneys to reach a settlement that we are hoping she will find acceptable. When we have resolved this issue, which we are hopeful will be soon, we’ll get back to you to share the outcome.”

Respect to Nordstrom for admitting its folly. Mad props to the blogosphere (especially Bob Evans at Informationweek) for swarming on Nordstrom and proving that sunshine is the best antiseptic.

Hat tip to Mike Atkins for the update.

UPDATE: The blog swarm that pushed Nordstrom to apologize has (correctly) called me out for being a bit too forgiving. Gideon hit me in my comments, and Greenfield got me in a post.

Maybe those new-dad hormones are still raging through Randazza’s tired body rendering him unduly kind, but saying sorry after costing two young women who were entirely in the right $70,000 in legal fees to fight over nothing just doesn’t begin to cut it. Now that Nordstrom was outed in this InformationWeek post and across the blawgosphere, they’re “sorry”. And it’s so sincere. And all is forgiven? (source)

Greenfield and Gideon are absolutely right. Greenfield sets the bar for what Nordstrom’s “apology” should consist of.

Perhaps I’m being too cynical, too distrusting. Perhaps the empty, meaningless, utterly vapid rhetoric in Brooke White’s email masks a sincere desire to correct the injustice done to Beckons. Not that I believe that for a second, but I could be wrong. If so, here’s the “settlement” that I propose:

1. Nordstrom drops any attempt to claim ownership of the trademark “Beckons”.
2. Nordstrom pays Beckons $70,000 to cover its attorneys fees.
3. Nordstrom licenses the name from Beckons for whatever clothing it wants to sell in its stores.
4. Nordstrom orders the entire output of the Beckons line of clothing for the time it held them captive to litigation.
5. Nordstrom publicly admits its abusive litigation practice intended to prevail by crushing small business.

Not only does this compensate Beckons for the harm done, but it puts the “Beckons” name inside Nordstrom. After all, isn’t that all they ever really wanted in the first place? Then I’ll believe they’re sorry. Until then, I’m not buying.

I’m glad to see that although my daughter’s smile has temporarily taken the cynic out of me, I can count on my curmudgeonly friends to set things straight.

Amex’s Branding Blunder

The Domains gives us an insightful post about how Amex screwed up one of its greatest brands — and one of the greatest branding coups of all time.

Jones Day v. Blockshopper Settles

The completely bogus lawsuit that Jones Day filed against Blockshopper has settled.

According to Wendy Davis, writing for Slate:

Faced with the prospect of big legal bills and an unfriendly judge, BlockShopper co-founder Brian Timpone decided to settle. On Tuesday, the real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting “Tiedt is an associate,” the site will write “Tiedt (http://www.jonesday.com/jtiedt/) is an associate.” (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm’s Web site.) (source)

Davis’ article has some fantastic analysis of the case… including a link to yours truly.

Who Are You Callin’ An A-Hole?

Oh the irony meter is just off the charts with this one.

JibJab media filed for a trademark registration for A-HOLE PATROL. Apparently JibJab uses the term to describe its “Online social club that screens jokes submitted by users to control offensive and inappropriate content.” From the JibJab website:

The A-Hole Patrol is JibJab’s volunteer community police force that is entrusted with helping keep the JibJab community safe from pornographers, hate mongers and extremists. The A-Hole Patrol (1) reviews new submissions to JibJab (2) investigates reports of abuse in the community and (3) re-reviews jokes that have been reported as offensive by JibJabbers. (source)

The examining attorney determined that A-HOLE is short for “asshole,” (rather than being its own word — which it is) and then rejected the trademark application as “immoral and scandalous.”

The examining attorney, relying upon several dictionary definitions and printouts of articles retrieved from the Internet, contends that because A-HOLE in applicant’s mark is a term for the word “asshole,” the mark is accordingly scandalous. Specifically, in support of her position, the examining attorney submitted the following definitions:

(1) asshole: Vulgar Slang.

1. The anus.
2. A thoroughly contemptible, detestable person.
3. The most miserable or undesirable place in a particular area.

(2) asshole:

1 usually vulgar: ANUS;
2a usually vulgar: a stupid, incompetent, or detestable person; b usually vulgar: the worst place — used in phrases like asshole of the world.

(3) asshole: Definition 1. (vulgar) the anus.
Definition 2. (slang) a contemptible or stupid person.
Definition 3. (slang) the worst part of a thing or place.

(4) asshole: Noun Vulgar 1. anus. 2. Slang. A. a stupid, mean or contemptible person. B. the worst part of a place or thing. Adjective 3. Slang. Stupid, mean, or contemptible.

Do you hear that sound? It is the IRONY ALARM going off its rocker! Because frankly, anyone who thinks that A-HOLE PATROL is too “immoral and scandalous” for the American public to handle is clearly a thoroughly contemptible and detestable person. And, the USPTO, for supporting such a victorian view of reality and such a dim view of the First Amendment is truly the most miserable part of a thing or place.

Under Section 2(a), to be considered “scandalous,” a mark must be “shocking to the sense of truth, decency or propriety; disgraceful; offensive; disreputable; … giving offense to the conscience or moral feelings; … [or] calling out for condemnation.” See In re Mavety Media Group Ltd., 33 F.3d 1367, 1371 (Fed. Cir. 1994). Whether a term is scandalous is determined from the standpoint of “not necessarily a majority, but a substantial composite of the general public, and in the context of contemporary attitudes.” Id.

I ask you, if you walked into your pastor and said “those ACLU people, they are just A-HOLES,” do you think even a Bible-belt pastor would blush? I think not. Nevertheless, the TTAB decided to side with the examiner.

Well, the contemptible and stupid win again. The morality police sided with the examiner and her supervisor — no doubt appointed by the same process that squeezed out Monica Goodling. We’re not even allowed to suggest or think “asshole” — of course, it is difficult to think of any other term when reading this opinion.

HT: TTABlog

David Sorkin Rules Against Ari Goldberger!

If you practice domain law, you know why this is big news.

I guess Diane Cabell will be getting the nod next time.

The NEW Bluebook

For those of you who are not, or who have never been, law students — the BlueBook is a 1″ thick guide to citing legal sources in law review articles. Judges don’t give a shit if you use correct BlueBook citation format – they go with the system in the cartoon above. Clients don’t give a shit. Nobody who matters for 99% of the careers of 99% of the lawyers out there gives a shit.

Nevertheless, these law-student-invented rules are written down, every year, in a “new” edition. Worse than that, thousands of law students then take “Legal Research and Writing,” where they spend most of their effort making sure that the period is in the right place when they cite a case, thus learning nothing about actual writing.

We don’t need the BlueBook. It is a distraction from the true craft of legal writing. In my courses, I tell the students that I never check their BlueBook citations and I never will. If I can find the source from their footnote, then it is good enough for me.

It is the only book in existence that actually makes the world a shittier place. The BlueBook is the only book in the world that I believe should be banned, all existing copies burned, and it should never published again.

Image courtesy of Courtoons with a big honkin hat tip to Quizlaw.

“Cyberbullying” – The First Amendment Means we Don’t Have to be Nice

There sure is nothing wrong with choosing to be nice and civil. There is nothing wrong with choosing to make your words soft — as you may need to eat them one day.

But, the First Amendment means that it must remain just that — a choice. This Arizona Daily Wildcat editorial discusses the ludicrousness of the “cyberbullying” hysteria and exposes it for what it is — censorship in “protect the children” clothing.

The First Amendment doesn’t have any fine print. There aren’t any puling little equivocations, any “buts” or “excepts.” The amendment protects freedom of speech, period.

This is why the First Amendment presents an ever-present threat to those who would seek to stifle us in the name of hurt feelings. And that is why we must be ever on alert to spot attempts to keep us from expressing “hurtful” thoughts. They don’t trumpet their intention of censorship; they mask their intentions in the guise of promoting “safety” and preventing “harassment,” even if those elements are in no way relevant.

Juicy Campus Dies – Holmes’ Posse Rejoices

Oliver Wendell Holmes HAS A POSSE!

Juicy Campus — often the target of anti-free-speech types in higher education has died. And I am glad.

Juicy Campus was a cesspool with virtually no redeeming qualities. (But that isn’t why I am glad it is dead) Compare to AutoAdmit, which actually had (and still has) some worthwhile discussions. The online defamation that took place on AutoAdmit was the exception, not the rule. AutoAdmit had tens of thousands of discussion threads and a few dozen were nasty and brutish — well, until it became famous for those few dozen — and then it attracted the cesspool crowd en masse.

Juicy Campus was just the opposite. Juicy Campus was launched as a petri dish experiment that proved John Gabriel’s Greater Internet Fuckwad Theory (hereinafter “G.I.F. Theory”). JC was launched as a cesspool, and it died because it never evolved into anything else.

Many attempted to exercise their censorial desires to tinker with the marketplace of ideas and shut down Juicy Campus. Tennessee State University banned the site (while their peers at Vanderbilt had a clearer view of the First Amendment). Attention-seeking government officials in Connecticut and New Jersey launched bogus “investigations” into the site. The investigations went nowhere. The Student Body President at the University of Florida cried to the teacher by calling on Florida Attorney General Bill McCollum to investigate the site. McCollum declined.

I personally disliked Juicy Campus. One would think that a forum with so many users could eventually spawn a single worthwhile conversation. It didn’t. Perhaps this is because the class of 2012 is more likely to communicate in text-messages than read a book. Or, perhaps, it was simply a function of the site’s branding. I believe that it was simply conclusive proof of the G.I.F. Theory.

As much as I hated the site, I declined to join the chorus calling for its government-imposed demise. I still believed that Juicy Campus had a right to exist — or rather that it might have a right to exist, but that neither the government nor the universities had a right to make that decision. The marketplace of ideas should have been left to make that determination — and it was.

The marketplace spoke. Juicy Campus couldn’t find advertisers because it was the online equivalent of a sorority gossip session over a few lines of cheaply-cut cocaine in a frat house bathroom. Despite the fact that Section 230 protected its operator and the First Amendment protected most of the speech on the board, it still collapsed under the weight of the marketplace. Quite simply, it was such a pit of idiocy that nobody, nobody at all, wanted to buy advertising on the site. That is quite a statement.

While censorship-minded academics will dance around their maypole and crank out worthless law review articles about cyber-bullying for victim studies classes, I’ll imagine Socrates, John Stuart Mill, and Thomas Jefferson grabbing Oliver Wendell Holmes from his celestial poker game to tell him to take a look, that they were right.

[T]he ultimate good desired is better reached by free trade in ideas…that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. – Oliver Wendell Holmes

As much as I disliked the site, I am grateful to Juicy Campus for proving that our commitment to government neutrality in the marketplace of ideas is not only a sound vehicle for the protection of diversity of opinion, but it is also a sound theory for the squashing of those ideas that deserve to die. Good riddance, Juicy Campus.

You Betcha! “Gambling” Site Wins in Washington Court of Appeals

Betcha.com is an “honor system” gambling website. It functions as a social networking platform where gamblers make private bets with one another. Betcha collects a small fee from its members in exchange for the privilege of making bets with other users, but the website is 100% agnostic with respect to disputes between the parties — with one exception: Betcha allows users to leave feedback for other users.

Betcha.com is a person-to-person betting platform. We connect people who like to bet. . . . For legal reasons, betting on Betcha is done on the honor system — bettors who pay build their reputations (called “Honor Ratings”), bettors who don’t may find it tough to get action in the future.

After agents from the Washington State Gambling Commission visited Betcha.com’s offices, they told the operators of the site that it was engaged in “illegal professional gambling.” The agents told them to cease all operations, return all fees that Betcha.com had collected from its customers, and to get a lawyer. (Op. at 5).

Betcha filed a declaratory action seeking a ruling on the legality of its service. The trial court sided with the state, but the Washington Court of Appeals sided with Betcha.

The key issue was Betcha’s terms of service.

1. ACCEPTANCE OF TERMS
Welcome to Betcha.com (“Betcha”), the world’s first honor-based betting exchange. Betcha provides its service to you, subject to the following Terms of Service (“TOS”) . . . .

2. DESCRIPTION OF SERVICE

Betcha provides users with a global platform to list and accept bets (the “Service”). Bets made on Betcha are made on the honor system — that is, bettors are not obliged to pay when they lose. We hope they will, of course, not because they have to, but because they should. In any case, bets made on Betcha carry no
term, express or implied, that winning bettors will be paid when they win.

The way it works is as follows:

To place a bet on Betcha.com’s website, a user had tofirst register, create a username, provide a mailing address, and fund an account with a credit card payment over the Internet. Upon registration, he receivedan honor rating of 250, which couldthen go up or down based on his payment record and feedback from other bettors with whom he had bet. He could then bet with other users, individually or in pools, by drafting a bet or using pull down menus provided on the website to assist in formulating the proposition, or he could select from lists of predrafted wagers on a variety of topics. He could also set parameters such as how long the bet wasto remain open, and the minimum “Honor Rating[]”that the accepting bettor must possess. (Op. at 4)

When a bet is made, Bectcha gets a small fee for its trouble and then deducts the amount equal to the bet from both parties’ accounts and holds it in escrow. After the event upon which the two parties had laid a wager concludes, the parties log in and report on the outcome. If the winner reports that they won and the other party doesn’t report anything, the winner’s report is deemed conclusive, and the winner gets the escrowed funds.

However, here is where it gets legally interesting.

Betcha “holds the purse” for active bets by acting as an escrow agent for the bettors wagered amounts, losing bettors are allowed to simply “not pay.” See Op. at 3. The losing party can log in and report “I’m gonna welch.” If the party welches, the the opposing bettor can report negatively upon the experience, thus hurting the other party’s reputation ranking and making it less likely that anyone else will bet with them — however, the bets were, by design, non-binding and thus not “gambling.”

The Washington Court of Appeals agreed that this arrangement made it clear that there “can be no understanding that a bettor will receive something of value where the website stresses that all bets are non-binding.”

The salient point here is that as a prerequisite to registration and use of Betcha.com’s website, users must acknowledge and agree that all bets made on the website are non-binding. Accordingly, bettors cannot have an understanding that they will receive something of value if they win. (Op. at 11)

Washington Law defines “[g]ambling”as “staking or risking something of value upon the outcome of a contest of chance or a future contingent event not under the person’s control or influence, upon an agreement or understanding that the person or someone else will receive something of value in the event of a certain outcome.” RCW 9.46.0237. Given the non-binding nature of Betcha’s wagering system, no actual gambling occurred.

The case is Internet Community & Entertainment v. State Of Wa Gambling Comm’n.

HT: Venkat

Nordstrom’s Acts Like Ass Hats in Trademark Dispute

See Nordstrom Steamrolls Tiny Firm In Trademark Snafu.