First Amendment Lawyers Association – Intellectual Property and Free Speech

The First Amendment Lawyers Association

My brothers and sisters in the First Amendment Lawyers’ Association granted me the honor of giving a presentation on Intellectual Property and Free Speech. My presentation slides are available here.

Additional materials are below:

1. The DMCA
2. John McCain letter re DMCA
3. Lenz v. Universal
4. Smith v. Wal-Mart Decision
5. Smith v. Wal-Mart Case Documents
6. Jones Day Post
7. Jones Day v. Blockshopper Case Documents
8. Virgin America v. Adrants Complaint
9. The initial Fuckingmachines brief
10. TTAB appeal on Fuckingmachines

Quote for the Day

Teddy Roosevelt was such a bad ass.

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly; who errs and comes short again and again; because there is not effort without error and shortcomings; but who does actually strive to do the deed; who knows the great enthusiasm, the great devotion, who spends himself in a worthy cause, who at the best knows in the end the triumph of high achievement and who at the worst, if he fails, at least he fails while daring greatly. So that his place shall never be with those cold and timid souls who know neither victory nor defeat.

-Theodore Roosevelt

To Serve, Protect, and Act Like Fascist Morons

See Carlos Miller‘s post on a man who entered an Amtrak photo contest and then was arrested — for taking photographs of trains by Amtrak security. Here.

Yes, really

Violet Blue no names Jane

By LaTeigra Cahill
Guest Author

There’s no way to overstate the strong aversion toward mainstream everything in San Francisco. It’s also not a stretch to say that in the age of file sharing disputes, enforcing intellectual property rights can create the impression that an artist has crossed over from being independent to being a “sellout.”

When I heard that Violet Blue, the undeniably hip, fetish model/sex columnist for the San Francisco Chronicle, filed a highly publicized law suit against mainstream porn actress Violet Blue (now known as No Name Jane) alleging trademark infringement, trademark dilution, violation of a CA right of publicity statue, and unfair competition, I was intrigued not only by the legal ramifications of a personal name trademark, but also with how Violet Blue’s “indie” reputation would be affected.

Some Facts from the Opinion:

1. Violet Blue (the writer) first used the pen name in an online article in 1999; No Name Jane first used the name as a stage name in 2000.
2. No Name Jane has appeared in hundreds of adult films over the years under the name “Violet Blue”.
3. Violet Blue legally changed her name to Violet Blue, registered her name as a trademark in early 2008, and promptly filed suit.
4. The Northern District court granted Violet Blue’s motion for a preliminary injunction, ruling that she had a valid, defendable trademark. (However, the court was not convinced Blue would succeed on the merits of her trademark dilution claim because the Federal Trademark Dilution Act requires that her trademark be famous prior to the time No Name Jane began using it.) (Opinion)

So why would a progressive, sex positive writer be so enraged that an adult star used the same name? Was it simply the next part of a ridiculous counter culture vs. mainstream war? If so, wouldn’t a trademark dispute put Violet’s “cool” at risk? On Violet Blue’s blog, she asserted her disgust in seeing her name on porn box covers like “Planet of the Gapes” and “White Trash Whore #22” and reading No Name Jane’s interviews (which, Violet characterized as “small minded” and “ignorant”).

What’s most interesting though is that Violet Blue, whom I have a hard time believing has a ton of celebrity status outside of The Bay Area, truly seemed to believe that No Name Jane was using her name on purpose to capitalize off of her fame as a blogger/writer:

“I mean, look at all the trouble and confusion poor Tyra BanXXX goes through, having her name diluted by some model with a TV show. And Marey Carey — she’s just trying to run for governor and get some new teeth and better tits, and some singer has to come along and ride her coattails to fame.” (Blog Post)

The drama got worse when Boing Boing, a popular tech site with publicly radical views on IP reform, risked a serious censorship issue with their fans when they unpublished all of Blue’s material from their site for undisclosed reasons, stating only that, “Violet behaved in a way that made us reconsider whether we wanted to lend her any credibility or associate with her.” Many commentators on the post felt the unpublishing had to do with the No Name Jane law suit.

I find it unfortunate that many artists have to make tough decisions between protecting their hard work versus maintaining their ”scene cred” in the face of the public’s negative perception of IP laws – largely caused by overreaching mega corporations. In the end, Violet Blue won her trademark dispute but she gained more critics than fans, and she took far more of a hit to her cred than she bargained for.

LaTeigra (real name, not yet a trademark) is a law student at University of California, Hastings College of the Law in San Francisco. LaTeigra’s main legal interests are free speech rights, anti-censorship issues, IP, art and politics. LaTeigra is the Co-Chair/Co-Founder of Hastings Advocates for the Arts, a student organization that promotes freedom of self expression through integrating art into law school culture.

Jack Thompson, Disbarred, Disgraced, Disgruntled, and in… Utah?

It seems that Jack Thompson had to go all the way to Utah to find someone to take him seriously. He’s at it again, pushing for more unconstitutional regulations on the marketplace of ideas. See his article in the Deseret News.

UPDATE: Popehat has a great editorial on this.

Sex and the Zoo….

Okay, not quite that exciting. The Sanford Zoo is having and animal sex themed party for Valentine’s Day. It sounds like a lot of fun.

Sex and the Zoo, the first Valentine’s Day event at the Sanford zoological park. The party has had quite the allure: 220 tickets sold out in about five days, far in advance of the holiday.

And no, there will be no live animal demonstrations, but senior reptile keeper Nick Clark — alias “Dr. Love” — promises the next best thing: He will dress up as a bird and perform a mating dance. (source)

Of course, if this event were not about animal sex, and had anything to do with human sex, there would be a batshit tizzy. Just goes to show you, Floriduh is more comfortable with pigs fucking than humans talking about it.

I do wish I could have gotten a ticket to the event though.

UPDATE: It looks like a Minnesota Zoo is doing this too.

Michigan Considers Adult Entertainment “Sin Tax” Bill

If you look really closely, you can see the hand giving the middle finger to the First Amendment

Democratic State Senator, Ray Basham, is promoting a bill in the Michigan legislature that would require special work permits and a $3 per visitor “excise fee” for all strip club patrons. (source)

I would have to look at the particular legislation to make a full prediction, but a similar law was struck down in Texas last year.

Antique Store Owner Arrested for Production of Obscenity in Polk County

The Lakeland Ledger reports that an antique store owner who used his business premises to take nude photographs has been busted on obscenity charges in Polk County, Florida. However, the story seems a bit fishy.

Sheriff’s officials said a confidential source told detectives that within the last 30 days a teenager had been paid $40 to pose nude for photographs taken at the business.

“Detectives were told the confidential source asked the girl her age and she replied 14,’’ a sheriff’s report said. “Detectives learned that Denitto uses the same side room to manufacture films that include males and females engaged in sexual acts.’’

Undercover detectives visited the business Friday and saw a hand-written sign on the counter advertising “Models Wanted Paid Hourly.”

“When the undercover detectives asked what types of models were being sought, Denitto said he was looking for nude, female models and would pay $20 an hour,’’ the sheriff’s report said.

On Tuesday, detectives served a search warrant at the business.

“During the search several photo albums of nude women were discovered in various locations throughout the store. In a room adjacent to the southeast side of the business, detectives discovered a video camera, several photography books, a 35 MM camera, a Polaroid camera, and several nude photos of women. In addition six VHS tapes were seized,’’ the report said. (source)

Note how the story starts by setting up the story as a child porn investigation. However, John F. Denitto, the store owner was only charged with producing “obscenity.”

Polk County Judge Kevin Abdoney determined the tapes to be obscene, according to the Sheriff’s Office.

In his post on the story, Mark Kernes asks “What; they don’t have child porn laws in Florida?” This very astute observation reveals a possible flaw in the original reporting, or perhaps misinformation put out by the Polk County authorities (and it wouldn’t be the first time). If they searched the premises and found child porn, I imagine that Denitto would have been appropriately charged. Instead, they got a Polk County judge to determine that the materials are “obscene”?

There may be more to this story than appears on the surface. If it were anywhere else, I wouldn’t be so suspicious. However, Polk County is absolutely batshit crazy when it comes to bringing citizens up on obscenity charges. Innocent until proven guilty is particularly applicable when we’re talking about this kind of charge in this particular place. There is a reason why this blog has a “Polk County” category.

Hat Tip to Mark Kernes.

“Swatting”: Evil Shenanigans

Come on, say it, Thorny!

I absolutely love pranks. I’ve been known to “waste” (depending on how you define the word) incredible amounts of time setting them up. High tech pranks usually move to the top of the line.

But this is even less funny than Rod Farva’s “soap in the coffee” prank.

Doug Bates and his wife, Stacey, were in bed around 10 p.m., their 2-year-old daughters asleep in a nearby room. Suddenly they were shaken awake by the wail of police sirens and the rumble of a helicopter above their suburban Southern California home. A criminal must be on the loose, they thought.

Doug Bates got up to lock the doors and grabbed a knife. A beam from a flashlight hit him. He peeked into the backyard. A swarm of police, assault rifles drawn, ordered him out of the house. Bates emerged, frightened and with the knife in his hand, as his wife frantically dialed 911. They were handcuffed and ordered to the ground while officers stormed the house.

The scene of mayhem and carnage the officers expected was nowhere to be found. Neither the Bateses nor the officers knew that they were pawns in a dangerous game being played 1,200 miles away by a teenager bent on terrifying a random family of strangers. (source)

The whole thing was caused by 18 year old Randal Ellis, who used an internet-based phone service for the hearing impaired to spoof the local 911 center. On the 911 call, “[h]e said he was high on drugs and had just shot his sister.” Apparently, he picked the Ellis family at random, as he did with all 185 of his victims.

Ellis is serving a three year sentence for his shenanigans.

So let this be a lesson to you, kids. Shenanigans are supposed to be cheeky and fun. Ellis’ shenanigans were cruel and tragic…. Which wouldn’t make them shenanigans, at all, really. Evil shenanigans, if you will.

Got Yer I.D. Card? Yaah!

The little guy was funny lookin.... more than most people

The North Dakota State Senate rejected a plan to register strippers, strip clubs, and “lap dancers.” See Fargo-Moorhead Forum. The measure would have required adult entertainers to keep detailed income records and to have their “registration certificates” on them “at any time the individual is providing live nude entertainment.”

Where are you supposed to keep it if you’re nude? Up your ass?

The North Dakota senate defeated the bill 45-1 with its only yea vote coming from the senator who proposed it, Judly Lee, R-West Fargo.

Sen. Stan Lyson, R-Williston voted against the measure on the grounds that he believed any regulation of strippers is a local issue, not a state-wide issue. In addition to his philosophical disagreement with the bill, he also had some practical insight:

“These performers change their name each time they go to a different place to perform,” he said. “We’d have a whole bunch of names there, without any identification, if we did this in the state.” (source)

Who knew? A legislator with common sense.

The Terrible Towel’s Tremendous Trademark Trouble

Nakedly Licensed?

Intellectual property professor Mike Madison gives us an excellent lesson in trademark law by discussing the Terrible Towel.