Your Right of Publicity Violation of the Day

It was inevitable. Tiger Condoms. Pretty clearly a violation of Florida Statute Sect. 540.08.

H/T: E.S.

Alan Grayson, asshat — unfit to serve in Congress

Why did I make a donation to this political action committee? Read to find out.

I really used to like Alan Grayson.

It was nice to see that there was one democrat who had a pair of balls. Grayson seemed to stand up at times that other Democrats would cower and wimper like the typically spineless little bunnies that they are. Grayson seemed to be a man of convictions and courage — something I can’t really say the democratic party has had in a very long time. Say what you want about George W. Bush, Jesse Helms, and Orrin Hatch… at least they stood for something and stood up for it (even if that something was disgusting and objectionable).

It was nice to see a Democrat who stood for something, and who wasn’t a goddamned pussy who wouldn’t dare pick a fight.

Grayson learned, rather quickly, that when you actually have an opinion, and you don’t pull your punches, you make enemies. One of his enemies Angie Langley, a Central Florida resident who disapproves of Alan Grayson’s “policies.” From watching interviews with her, I suspect that she wouldn’t know policy from a peckerwood drunk on gin. Like many uneducated hee-haw watching bozos in America’s Wang, she has a pump at her house, attached to a tube that runs outside, up a telephone pole, and that connects to a junction box, that connects to a pipeline that runs from Sean Hannity’s penis to a hypodermic needle that deposits his urine smack in the center of her Terri Schiavo-esque empty head every morning. From that concoction of an empty void, protoplasm, and Fox News piss, she forms what she thinks are “political opinions.”

As a little tantrum, this moron with a head full of Hannity’s piss launched a website called My Congressman Is Nuts. The website parodies Grayson’s “Congressman With Guts” website, and purports to be on a mission to unseat Grayson.

Central Floridians formed My Congressman Is Nuts PAC as a response to the outrage and embarrassment within Central Florida over Alan Grayson’s liberal positions and childish approach in Washington, D.C. We could no longer sit by and accept his inappropriate behavior and leftist big government agenda. He does not represent the values of Central Florida.

To be successful, we need your help. Please join our effort by making a contribution today! Through paid advertising and grassroots activities, we will hold Alan Grayson accountable for his votes and actions. (source)

So how did the “Congressman with Guts” (as he calls himself) react?

Grayson called for the Attorney General to investigate and prosecute Ms. Langley. His letter calls upon Langley and her political action committee to be prosecuted for fraud under 18 U.S.C. 1001, to be fined “and Ms. Langley imprisoned for five years.“

*cha ching*

That’s the sound of me making a donation to Ms. Langley’s cause. It wasn’t much, but I did donate before writing this piece.

Grayson claims that Langley falsely reported to the Federal Election Commission that her PAC supports or opposes more than one candidate. Grayson’s factual assertion seems to be completely meritorious. It seems clear that Langley’s website is solely devoted to getting rid of Grayson. Grayson also claims that Langley falsely represents that she is one of Grayson’s constituents. She doesn’t live in his district. That seems to be a meritorious claim too. Grayson claims that Langley could not have simply made an innocent mistake about which congressional district she lives in — as she is the head of the Lake County Republican Party. Meh, I think that Grayson presumes way too much here. If you can run for Vice President and you can’t name a single newspaper, you can be the head of the Republican Party in a district where the average IQ is about at the level of an alligator with downs syndrome that got hit by a pickup truck after drinking too much moonshine.

The thing is, I am sure that Grayson’s allegations are true. I am sure that Langley isn’t just some innocent member of the public who is fed up with Grayson. I’m sure that the Republican Party put her up to this stunt.

Nevertheless, are these sins that should be punished by FIVE YEARS in prison? I am sure that even Eric Holder wouldn’t take Grayson’s request seriously. Nevertheless, I can think of few acts that would disqualify someone more from holding public office in the United States of America than trying to get a citizen thrown in jail for expressing her political beliefs — even if she is being a bit dishonest about them. Christ, lets face it, if we were going to live by that standard, we would have to completely revamp our system of government, because the only competent politicians left outside the prison gates would be Ron Paul and Russ Feingold.

For my overwhelmingly liberal readers — look at it this way. If George W. Bush pulled this stunt with Michael Moore, you’d be out in the streets…. well, okay, liberals don’t have the balls to be out in the streets doing anything except watching one of those Peruvian flute bands and cooing about multiculturalism. But, they’d certainly be whining about it at the top of their frequency range over a nice glass of shiraz.

I truly admired Alan Grayson. I think that his policies are good for America. I think that his style is exactly what the liberals need. But, anyone who behaves with such dishonor and such disdain for First Amendment principles needs to be tossed out on his ass – no matter who it is that he’s going after. I can’t say that I will support his Republican challenger in 2010, but you can be damn sure that I’ll be donating money to his democratic primary challenger.

His letter to the Attorney General is here.

UPDATE: A reader posted this to the comments section. It is worthy of inclusion in the main article.

Having both prosecuted and defended 18 USC 1001 cases, I’m extremely skeptical of the merits of the proposed criminal charge.

From Grayson’s letter, you’d think that the FEC filing specifically claimed that Langley was a constituent. I looked at the FEC filing (you can get it by following the link to the FEC from the MyCongressmanIsNuts.com site), and it doesn’t make that specific claim.

Perhaps Grayson means to suggest that a person registering the site “mycongressmanisnuts.com” inherently involves an implied factual claim that the registrant is a constituent. I find that proposition dubious. The title is obviously hyperbole and satire; it doesn’t necessarily involve a literal claim of contituency any more than it involves a literal claim that the congressman is (a) a handfull of nuts, or (b) insane. Weak sauce.

As to the assertion that Langley lied about the entity being for the purpose of addressing more than one candidate, I’d want to see the underlying regulations, or cases construing them. I note that on the web site you can view articles that attack politicians other than Grayson, even if Grayson is clearly the focus. I’m not convinced it’s a material false statement.

At any rate, the spectacle of an elected official demanding criminal prosecution of such a petty criticism site is embarrassing. Grayson ought to be ashamed of himself — assuming that he is the very rare politician with the capacity for shame.

H/T: Zach McCormick

Random Thoughts

Someone stole the Arbeit Macht Frei sign from Auschwitz. What in the hell are they going to DO with it? Put it on the mantle? Observers are calling it an act of anti-semitism, which seems a little bit strange to me. It is anti-semitic to wreck a piece of a concentration camp? Who knew.

I welcome our new Persian overlords. Okay, not really… but it seems that some Iranians hacked into Twitter and shut it down for a little while. My only complaint? That they didn’t just shut the stupid fad down permanently.

Not only is gay marriage now legal in the District of Columbia, but Mayor Fenty signed the bill in a church. Of course, Congress has the authority to override DC municipal ordinances, so you can expect some serious screaming from the MSZJ fundamentalists in Congress come January.

And the health care bill is held up because of kvetching about federal abortion funding. I’m all for the right to choose (although I don’t personally support the choice to abort). But, if I didn’t get to be there for the sex, why should I have to pay for the abortion? The government should give out free norplant, condoms, vasectomies, IUD devices, and tubal ligation surgeries, but abortions? Pay for that crap yourself, deadbeat.

Tennessee Court of Appeals requires specificity in group libel cases

By J. DeVoy

First addressed by Eugene Volokh, the Tennessee Court of Appeals recently affirmed the lower court’s dismissal of the plaintiffs’ claims in a group libel case because they were not specifically identified by the defendant’s statements.  The plaintiffs, a cabaret and three performers, sued Shelby County Commissioner Michael Ritz for comments he made about the nature of adult entertainment.  Among other things, he said that the women involved “almost without exception” have “an addiction to drugs or alcohol” and “were sexually abused by a family member.”  More, Ritz said that strip clubs “feed on that,” creating a “vicious cycle”

The Court of Appeals found the plaintiffs did not allege that Ritz’s statements identified the plaintiffs by “reasonable implication.”  In fact, the court found the plaintiffs didn’t even claim that Ritz’s comments concerned them or any other strippers or cabarets in Shelby county.  It’s hard to claim Ritz was singling out these plaintiffs when he was apparently talking about every stripper and nudie bar in existence.  The opinion, available here, made another point:

Equally absent from the complaint are allegations that the Commissioner intended the statement to refer to the plaintiffs, that a reasonable person hearing the statement would believe it referred to the plaintiffs, or that extrinsic facts existed to show that the statement referred to the plaintiffs.

It’s hard out there for a fungible, faceless defamation plaintiff!  The underlying significance of the opinion is its holding that group libel is exactly that: the defamation of a group.  Where there is no reasonable identification of a person, business or other entity, the claim fails; broad statements about classes of people are not “of and concerning” the lumpenplaintiffteriat.

The Fort

Gloucester will always be home.

Ruins of ancient internet civilization discovered

Online archaeologists have discovered the ruins of a lost online civilization. Fascinating.

Avast! The Pirate Bay’s Intellectual Property’s Been Boarded!

Hijacked!

If you haven’t heard of The Pirate Bay by now, you may want to emerge from that cave, wipe the sleepies from your eyes, and start getting caught up on your backed up WIRED magazines in the bathroom. The Pirate Bay (TPB) is a website run by a few Swedish intellectual property anarchists. TPB provides a comprehensive indexing service for BitTorrent files. In plain English, TPB is the backbone of one of the most comprehensive copyright infringement schemes to ever exist. And, TPB isn’t just about “free information,” as it makes a significant income from sponsored ads on its webpage, to the tune of about $65,000 per month. TPB denies that it makes very much money, claiming that most of the income goes to supporting the infrastructure of the site. In April of 2009, its principals, Peter Sunde, Fredrik Neij, Gottfrid Svartholm and Carl Lundström were sentenced by a Swedish court to one year in prison and a $3.6 million fine. (source) The verdict is under appeal.

In a strange case of turnabout, a commercial entity in Sweden has hijacked TPB’s iconic logo. TPB has always allowed others to use the logo, without restriction, as a demonstration of their anti-intellectual property ethos. However, Sandryds Handel, AB took the sharing a step too far.

Today news broke that a private Swedish company, noticing that the logo had no commercial protection, took the opportunity to hijack it. The outfit, Sandryds Handel AB, have officially registered the emblem as their own with the authorities, with the intention of commercially exploiting it.

While admitting they have absolutely nothing to do with The Pirate Bay, in a radio interview Sandryds Handel spokesman Bengt Wessborg defended his company’s action.

“The idea is to sell USB drives using this brand,” he told SR. “We saw that it was not already allocated to someone else. It was not registered,” he added. (source)

Although I previously worked for a Swedish intellectual property law firm, I can’t claim to know Swedish IP law all that well. But, it might be a fun exercise to think about how this might be dealt with under U.S. law.
One would imagine that TPB would try to cancel the usurper’s trademark registration, or even sue them for trademark infringement. However, under the “illegal use doctrine,” TPB would likely face more than a karmic defeat.

Under U.S. law, in order for The Pirate Bay to establish trademark rights, they would need to establish “use in commerce.” This, in itself, is not a difficult fact to establish. However, if this use was unlawful, then it would not be “use in commerce” as defined by the Lanham Act. See 15 U.S.C. § 1127; Gray v. Daffy Dan’s Bargaintown, 823 F.2d 522, 526 (Fed. Cir. 1987); The Clorox Co. v. Armour-Dial, Inc., 214 U.S.P.Q. 850, 851 (TTAB 1982) (”‘use in commerce’ means a ‘lawful use in commerce’”).

[T]he inquiry does not stop with use in commerce. It has long been the policy of the PTO’s Trademark Trial and Appeal Board that use in commerce only creates trademark rights when the use is lawful. See, e.g., In re Midwest Tennis & Track Co., 1993 TTAB LEXIS 27, 29 U.S.P.Q.2d 1386, 1386 n.2 (T.T.A.B. 1993); Clorox Co. v. Armour-Dial, Inc., 214 U.S.P.Q. 850, 851 (T.T.A.B. 1982); In re Pepcom Indus., Inc., 192 U.S.P.Q. 400, 401 (T.T.A.B. 1976); In re Stellar International, Inc., 159 U.S.P.Q. 48, 51 (T.T.A.B. 1968). At least one circuit has adopted and applied this rule. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th Cir. 2000). A question of first impression in this circuit, we also agree with the PTO’s policy and hold that only lawful use in commerce can give rise to trademark priority.

The rationale for this rule is twofold. First, as a logical matter, to hold otherwise would be to put the government in the “anomalous position” of extending the benefits of trademark protection to a seller based upon actions the seller took in violation of that government’s own laws. See In re Stellar, 159 U.S.P.Q. at 51. It is doubtful that the trademark statute–passed pursuant to Congress’s power under the Commerce Clause–”was . . . intended to recognize . . . shipments in commerce in contravention of other regulatory acts promulgated [by Congress] under [that same constitutional provision]. ” Id. Second, as a policy matter, to give trademark priority to a seller who rushes to market without taking care to carefully comply with the relevant regulations would be to reward the hasty at the expense of the diligent.

Accordingly, it seems that since TPB has not used its mark in lawful commerce, it would not be well positioned to enforce its trademark rights.

Nevertheless, TPB would not be without some form of redress. The Copyright Act contains no similar “lawful use” requirement. Provided that TPB went through the formalities of registration first, they would be able to enjoin further use of their logo by Sandryds Handels if they sued under Title 17, and they might even be able to collect “actual damages,” which would be hard to prove.

Unfortunately, I doubt that they would be able to collect statutory damages or attorneys’ fees, as I am certain that they did not register the copyright within the statutorily required time frame for such prizes to be awarded.

That said, if you want to see the irony meter in the roflcopter go over 9,000, file a copyright infringement suit on behalf of TPB.

H/T: Tactical IP

Route 60 Hyundai in Vero Beach, Flori-duh, I would like to introduce you to the Streisand Effect

Same old story. Consumer goes to a car dealership. Consumer is unhappy with how he is treated at car dealership. Consumer bitches about car dealership on the internet. Car dealership deals with consumer and makes the situation right calls up attorney. Attorney sends really ill-advised letter to consumer, and then consumer’s complaint about car dealership goes from being heard by 40 people to being heard by 4,000,000 people. (source)

Morons.

UPDATE: If anyone out there can find a copy of the demand letter, I would love to a) read it, and b) give it a fair critique. The letter is here. Not much to critique.

One man’s masturbatory war against idiocracy

The opening sequence from Idiocracy is, imho, one of the greatest pieces of cinema ever created.

And it has always seemed to be an ominous and accurate prediction of where our species is headed. With no natural predators to thin the human herd, the process of natural selection seems to have ground to a halt. In fact, given that homo walmartus (example) seems to reproduce earlier, more often, and with greater genetic diversity than homo sapiens, it seems certain that homo sapiens will, one day, be extinct, and homo walmartus will inherit the earth.

But then, I read about this guy who jacked himself 400 offspring.

I never considered that artificial insemination might save us from a devolutionary slide.

Springsteen on Marriage Equality

Like many of you who live in New Jersey, I’ve been following the progress of the marriage-equality legislation currently being considered in Trenton. I’ve long believed in and have always spoken out for the rights of same sex couples and fully agree with Governor Corzine when he writes that, “The marriage-equality issue should be recognized for what it truly is — a civil rights issue that must be approved to assure that every citizen is treated equally under the law.” I couldn’t agree more with that statement and urge those who support equal treatment for our gay and lesbian brothers and sisters to let their voices be heard now. (source)

Criminal Law exam question: What if someone smashed in the ABA’s head with a chapati pan?

Most criminal law courses require the students to read DPP v. Camplin . In that case, an older guy by the name of Khan raped a 15 year old boy and then taunted him. So, the boy bashed in Khan’s head with a chapati pan. The court held that in deciding whether the charge should be reduced from murder to manslaughter, how a reasonable person in the defendant’s position would react to such provocation.

Well, a number of months ago, the ABA did a real Khan on the legal profession by giving the thumbs up to sending legal jobs to India. Thanks ABA, now we lawyers can feel the same degree of indignity suffered by the call center operators.

India thanked us today by ruling that foreign law firms were not welcome in that country. (source).

So, after the ABA anally raped us by shipping U.S. lawyers’ jobs to India (during the greatest glut of U.S. lawyers in history), and then India taunts us by then refusing to even allow U.S. firms to operate there, would it be a reasonable defense to the charge of murder if an unemployed law graduate with $250K in student loan debt flew up to Chicago and bashed in the heads of the abject fucking imbeciles who decided that we should ship his job to India?

Will someone tell me how I can run for president of the ABA? I promise that if elected, I will fire everyone who works for the ABA, terminate the lease on its offices, give every dime in its coffers to some ludicrously hilarious charity, and disband the damn thing.

And yes, I DO see the irony in my complete disgust with the ABA being voiced alongside a badge pimping for votes in the ABA 100. That’s the point. It amps up the lulz factor.

Former Rep Ted Klaudt claims “common law copyright” in his name to try and suppress news stories about him being a sick child rapist

Hey Ted Klaudt, I got your licensing fee right here!

We sure do see a lot of intellectual property abuse around here. This has to be the best one yet. Former South Dakota State Representative Ted Klaudt claims that he has a “common law copyright” in his name, and thus any news organization or other publication that uses his name must pay him a licensing fee of $500,000. (source)

It gets better.

Mr. Klaudt apparently started sending notices of his “common law copyright” to news agencies in order to stop them from reporting on the fact that he is serving time for raping his foster daughters. Klaudt was convicted on four counts of rape for fondling his underage foster daughters in “examinations” that he performed on them under the ruse of claiming that he was going to help them sell their eggs to infertile couples. The sick bastard got 44 years in prison for rape and another 10 years for tampering with witnesses in his trial.

Klaudt’s letter to the Associated Press claims that anyone who wants to use his name must “file a written request 20 days in advance,” and that he would pursue claims against anyone who violated the notice.

I can’t be certain what the motivation for this move might be, but I presume that Klaudt doesn’t like the fact that news organizations like to inform the public about sick bastards who molest their own kids — especially when they happen to be lawmakers (or ex-lawmakers as it were). I guess he figured that this would convince a few people to stop using his name.

Guess what Klaudt, you just made yourself even more famous, short eyes.

Once, twice, three times a loser

By J. DeVoy

Straight from the “it could be worse” file, some guy started a facebook group seeking 1,170,000 members so his girlfriend, Caroline, would marry him.

While bizarre enough on its own, this is his third and final attempt to win her hand in marriage.  He first proposed six months before the group’s creation and again two weeks before starting it.  Apparently not taking the hint, Caroline told him she would say yes if he created a facebook group that had 1,170,000 members.

What happened next is unclear from timeline of line breaks formed by equal signs and periods.  Users contacted the founder’s friends named Caroline – all three of them – and chastised the putative heartbreaker.  Caroline then declined the proposal a third and final time, despite the group’s meteoric rise to 1,436,419 members.

Custom dictates that a woman return the man’s ring when breaking off an engagement, and some states require it by law, but I think our persistent lothario doesn’t have any recourse in this case.  Unless he feels bold and sues for detrimental reliance under Restatement § 90, he’s likely out of luck.  The issue of damages alone would make this complaint lulz-worthy, since he’d be demanding cash money for publicizing his own awkward situation.  Restoring individual dignity is a bit outside the scope of a court’s equitable power.

Because going back in time and never creating the group isn’t an option, deleting it is the next best thing.  The faster it’s removed, the less likely it is to be preserved forever by Google’s cache or Archive.org.  At the same time, there’s merit to letting it exist as a cautionary tale to star-crossed lovers; a wrecked ship between the Scylla and Charybdis of love and ambition to warn others who would do the same.

“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

by Jason Fischer

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon.  No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie.  (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.)  It seems that she was arrested because theater employees saw her operating a video recording device (source).  Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

UPDATE:  Cook County prosecutors have dropped the charges against Ms. Tumpach (source).  Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.

Rock and Roll, Rest in Peace.

ABBA has been inducted into the Rock and Roll Hall of Fame. (source)

And the Rock and Roll Hall of Fame is hereby inducted into the Asshat Hall of Fame. Are you yanking my taint? ABBA? A-freakin-Buh-Buh????

Neil Young was wrong when he said that Rock and Roll would never die. Rock and Roll died today. December 15, 2009.