Dear Leader Randazza Quoted in NYT Article on SLAPP Suits

by Christopher Harbin

Marc was recently quoted in the paper of record regarding Slapp suits.

One tidbit of the article stood out as odd to me:

“The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.”

I don’t condone this practice, but would the doctors want  an assignment of copyright rather than a non-disclosure agreement? Wouldn’t fair use basically eviscerate any control the doctor or practice might have?  Also, what about non-copyrightable statements.  For example,  ”My doctor cut off the wrong leg” and “My doctor is a crook” contain no protectable expression, so I’m pretty sure Medical Justice is giving out crummy advice.   How is their mission of  ”protecting doctors from meritless malpractice suits” advanced by silencing critics anyways?

Despite the hype, 1990s actually sucked

By J. DeVoy

Proof.

Video Game Playthrough Footage Should Be Fair Use

by Christopher Harbin

It’s pretty easy to get duped into buying a crappy video game.  A lot of video game marketing  is pretty shady.  Submitted for your consideration: the Madden “bullshot.”  Bullshots are promotional screen captures released by game companies that bear absolutely no resemblance to the final product. Gameplay footage released by game companies can be even more misleading.  Some games don’t even fairly represent the correct genre.  I’m looking at you, Brutal Legend.

As one of the “have it right this second” generation, I buy my games on release day before the reviews are out.  And because you can’t return video games after they’ve been played, I have been burned more times than I can count.  Hellgate: London was so bad, I half-expected to find it kicking my dog in the middle of the night.  In fact, I stabbed my eyes out with a fork because it was faster than uninstalling the game.   I’ll be here all week.  Try the veal.

So now I’m a big fan of watching video game playthoughs on various gaming sites and Youtube to decide whether a game is worth purchasing.  For me, I find that gameplay footage is much more useful to my purchasing decision than reviews — even video reviews that include snippets of gameplay.   Especially with long role-playing games, I like to be able to see the game at several different points to see if a slow game picks up or whether a game that looks good in the beginning sputters out.  For example, over at Giantbomb.com, two editors recorded and posted their complete playthough of Persona 4, a 100 hour Japanese role-playing game, which included their commentary as they played.   After watching about ten hours (not in one sitting, thanks), I decided to purchase a copy.

I can’t help but wonder if these playthroughs are copyright infringement.  There weren’t any litigated cases that I could find because  most companies probably welcome the additional publicity of their games.  But lately Rockstar Games has been taking down footage of their newly-released game, Red Dead Redemption.  Also, it appears that playthrough footage of Grand Theft Auto’s IV’s expansion “The Lost and Damned” has also been pulled.  I find this a tad odd as usually only publishers of crappy games care about gameplay footage leaked onto the web as they try to encourage new-release sales.   After reviews come out, the cats out of the bag.   Red Dead Redemption and The Lost and Damned both  enjoyed high praise, so I wonder whyRockstar appears to be  issuing  take down notices.   The Pollyanna in me would like to think that these takedown requests stem from some overzealous intern rather than from corporate goons demanding outright control of all possible uses of their work.

Anyways, I think the case for gameplay footage being fair use is relatively straightforward:

Purpose and Character of the Use: Usually gameplay footage is paired with some sort of running commentary that is either entertaining or informative.  This seems pretty transformative to me especially when considering that the medium is also transformed — video games are actively played and gameplay footage is passively watched.

Nature and Amount of the Use: Both these factors probably tip towards copyright owners.  There is obviously a difference between a 5 minute sample of gameplay footage and an entire game, though.  Interestingly, I find longer gameplay videos more relevant for my purchasing decision.

Market Effect:  Gamers like to play video games — not watch them.   Even games that are quite story intensive — like the fantastic Heavy Rain — are still pretty interactive.  The only negative effect on the market for video games is that consumers who would be disappointed after purchasing the game probably wouldn’t buy the game after viewing extensive gameplay footage.

To close, I know some of you are thinking that my analysis is biased because I have a horse in the race.  My response:  You didn’t play Star Trek: Online, man. You didn’t have to endure the steaming hunk of crap that was Daikatana.  I was there, man.  I WAS THERE!

NJ Governor Chris Christie is awesome

By J. DeVoy

Governor Christie tells a public school teacher seeking around $83,000 in compensation, exclusive of benefits, that she doesn’t have to work if she doesn’t like her current pay.  He then tells a woman bemoaning cuts in social spending that, unlike the United States, New Jersey “can’t print money.”

It’s a shame that blunt common sense is so rare.

California Bar President pwns law schools in lengthy screed

By J. DeVoy

Howard B. Miller, President of the State Bar of California, had harsh words for California’s law schools in May 2010′s California Bar Journal.  Acknowledging the bleak outcomes for graduates in the classes of 2008, 2009 and 2010, Miller calls the economic cocktail of few jobs, high competition and massive debt “devastating.”

The exact numbers at the margins are not as clear as we would like, because so much involves small firms and personal circumstance, and many of the changes are too recent for complete accuracy. The average debt of law graduates now approaches or exceeds $100,000, and because of recent increases in tuition, especially at public institutions which historically have been more affordable, debt burdens will be even greater in a couple of years.

Based on outcomes alone, Miller’s commentary doesn’t seem addressed to Stanford, UC-Berkeley, USC or UCLA.  At least he acknowledges what has been common knowledge for many years, though: The picture is not as rosy at California’s 16 other ABA-accredited law schools.  The ABA-accredited distinction is important because there are 18 California-accredited and six unaccredited law schools within the state, the graduates of which may sit for the state bar exam.  There’s not much by way of economy, either:  The California-accredited San Francisco Law School charges $16,700/year, a number the school leaves potential students to discover on their own.  Bay Area neighbors UC-Hastings and Stanford are also pricey at $43,693 (non-resident) and $42,420 annually, respectively.  None of these numbers reflect living expenses, which can easily be 50% of tuition — especially in San Francisco, Palo Alto and surrounding areas.

There is notoriously unreliable self-reporting by law schools and their graduates of employment statistics. They are unreliable in only one direction, since the self-reporting by law schools of “employment” of graduates at graduation and then nine months after graduation are, together, a significant factor in the U.S. News rankings — which are obsessed over, despite denials, by law schools and their constituencies.

This is a valid sentiment, considering that events as low-rent and mundane as each number drawing of the New York Lotto are audited and monitored by Big 4 accounting firm KPMG.  Miller acutely notes the considerable value U.S. News rankings have for prospective law students and law schools, yet the the data reported to the magazine is unmonitored.  Nearly every year some school, however good, makes the untenable claim of 100% employment 9 months after graduation; past offenders include the University of Pennsylvania, UC-Berkeley and, most recently, Duke University.  Such a claim is almost laughable in this economy, especially considering how many students cling to their job offers with only the most tenuous of grips.  If anyone stood to lose from objectivism in this context, it would not be prospective students.

 A recent survey by the Kaplan organization showed that though 52 percent of pre-law students are “very confident” of finding a legal job after graduating from law school, only 16 percent of those students are “very confident” their classmates will have similar success.

A shocking revelation to lawyers and law students, but not surprising as a feature of human psychology.  As Richard Posner pointed out in A Failure of Capitalism, nobody listens to Cassandras.  In this age of participation trophies and good grades for merely showing up, prospective law students fancy themselves the scions of the legal field and shimmering guardians to the Eastern European refugees whose human rights they’ll never protect. LOL “international law”; moreover, LOL “human rights.”

Part of this distortion may be the source.  Within the law admissions community, Kaplan is regarded as inferior to TestMasters/Blueprint, and therefore attracts a less sophisticated student base.  This only considers people who pay for formal LSAT prep, too.  It’s unclear whether Kaplan students are more deluded than everyone else or actually representative of prospective law students, but there are problems with the sample Miller cites.

Miller then veers off onto a discussion of practical lawyering and its importance in bar admissions.  This idea has taken root some places, as the entire third year of law school at Washington & Lee is now an extensive clinical program.  The measure of practical ability is also measured by the National Conference of Bar Examiners’  Multistate Performance Test, which is included in the California bar exam.  There are merits to a practical apprenticeship-based approach versus traditional legal education, much like the differences between a D.O. and M.D. degree — either one confers the ability to practice medicine, but the D.O. develops an emphasis on holistic and preventative medicine while a M.D. places greater emphasis on diagnosis by symptoms and prescription of medication.

Eventually, Miller brings the piece back home:

Finally, we need to be transparent with potential lawyers about the cost and benefits of studying law. All law schools need to gather, verify and report, in consistent and specified ways, the employment record of their graduates, as well report on those who may have started, paid tuition, but never graduated. A good place to start is with our own California-accredited and registered law schools, over which the State Bar and the Committee of Bar Examiners have jurisdiction.

For a state with 44 law schools, that would be an excellent start.

Weighty civil rights issues in Michigan

By J. DeVoy

A Michigan woman is suing Hooters for allegedly putting her on a 30-day “weight probation” period, leading to her constructive discharge.  Accordingly, the first cause of action in her complaint against this chain of family restaurants was for weight discrimination.

Those in BarBri may already know that weight is not a suspect class, despite the fat acceptance movement’s desperate pleas to the contrary.  But hold the phone, because in Michigan, weight is a recognized basis for discrimination — and has been since 1976!

From the Elliott-Larsen Civil Rights Act’s preamble:

AN ACT to define civil rights; to prohibit discriminatory practices, policies, and customs in the exercise of those rights based upon religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.

Height, too?  I’m shocked, just shocked that Michigan is such an abject failure with touchy-feely crap like this spewing forth from its legislative orifice.

37.2102 Recognition and declaration of civil right; action arising out of discrimination based on sex or familial status. 

Sec. 102. (1) The opportunity to obtain employment, housing and other real estate, and the full and equal utilization of public accommodations, public service, and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status as prohibited by this act, is recognized and declared to be a civil right. 

The legislature said it; it must be true!  While the “slippery slope” argument normally is a fallacious claptrap left for 1Ls, it does have some basis in reality and is evident in this statute’s rights “creep,” where things that have never constituted protected classes suddenly are.  Once a right is given, it is not easily taken away.

Overweight people deserve the same fair treatment, dignity and respect as everyone else.  But to create a protected class for their benefit opens the door to a panoply of new rights that have not been recognized elsewhere.  Just as people with weight problems are not protected under Federal jurisprudence, neither are the short, stupid, lazy or ugly.  If one such group is protected, then the others might as well be too, as such protections apparently can be handed out like cheap razor-stuffed candy on Halloween, where the sweetness of victory is betrayed by hidden costs only once it is too late to do anything about it.

The young woman’s claim against Hooters may have merit, but that’s a question for employment attorneys.  It is absurd that one of her weight discrimination claim is based on a civil rights statute rather than a traditional discrimination cause of action, which would serve the same purpose.  Hopefully additional litigation in this vein will show other states the error of Michigan’s ways.

Cool video / Our predictions come to pass

By J. DeVoy

In March, I speculated that a third Creative Commons-licensed album was forthcoming from recording business pioneers Nine Inch Nails.  This recently came to pass… kind of.

First, music was released, but from How To Destroy Angels, Trent Reznor’s side project with his new wife.  Second, no word yet as to whether the forthcoming album will be released under a Creative Commons license or traditional copyright license.  The group’s first single shows a copyright registered to the Null Corporation at Amazon.com,  but so too does Nine Inch Nails’s 2008 Ghosts I-IV release, which made a big splash upon being released under a Creative Commons license.  Therefore, the best information available on this subject is inconclusive for now, and the first How To Destroy Angels album may still be released on a Creative Commons license.

The music evokes Kidneythieves‘ early promise, hinting at what may have been for that band with a halfway competent producer.  Others liken Reznor’s wife to Yoko Ono.  For good or ill, the endeavor has produced this really great music video:

Court Allows Copyright Infringement Free For All On File Hosting Sites

by Christopher Harbin

Right now, it appears that courts are willing to let file-hosting sites like Rapidshare, Hotfile, and Megaupload live in the void in the law between Grokster, Limewire, and Napster.  Recently, Judge Huff of the Southern District of California denied Perfect 10′s request for a preliminary injunction against Rapidshare holding that P10 could not prove a likelihood of success on the merits.   A couple of notes from the decision:

1.  Judge Huff finds that Rapidshare is not violating the 106(3) distribution right because their activity is distinguishable from Hotaling and Napster. Judge Huff reasons that because Rapidshare does not index its files, it is not making the files available in the same way that Hotaling and Napster were.

2.  Judge Huff affirms the general principle that Plaintiffs bears the burden of identifying the location of the infringing files on Defendant’s server to prove the requisite knowledge  for contributory infringement.   Merely providing filenames or copies of the infringing material and expecting Defendants to ferret out infringement  on their site.

3.  Rapidshare’s affiliate program:  The Court seemed more willing to accept that Rapidshare’s  affiliate program may be materially contributing to infringement.  However, it appears P10 did not offer enough evidence to get a TRO at this stage.

4.  The WTF Moment:  Court notes in the balance of equities analysis that P10 refused to take use Rapidshare’s take down tool to automatically delete infringing material.

5.  DMCA:  Rapidshare hasn’t designated an agent under 512 and therefore cannot take advantage of the service provider liability exception.   The court did not reach whether charging for access or the affiliate program would remove 512 immunity, likely because there was no need to reach this question because of Rapidshare’s failure to designate an agent.

I’m not the most pro-copyright guy on the block, but I think it’s pretty clear that Rapidshare and its ilk are clearly liable for  contributory infringement.

First, although Rapidshare does not index its files, it basically punts indexing to third-party websites.  It’s trivial to find infringing material hosted on Rapidshare and other file-hosting sites and I’m not sure why dicing up storage and indexing into separate entities which obviously have a symbiotic relationship should be able to avoid liability.

Second,  I’m not at all convinced that in all cases plaintiffs should be forced to ferret out all infringement on a defendant’s website.  As the law stands right now, copyright holders have to employ an army of people to constantly monitor defendant’s site for infringement.

Third, these affiliate programs — and the fact that these sites charge for download access rather than storage space — clearly indicates to me that they are actively trying to induce infringement.  Before these sites wised up, one of these sites actually encouraged users in its affiliate program to upload popular movies, songs, and images.  Some of these affiliate programs pay out in cold hard cash or in download credits.   Even though there is some measure of plausible deniability here, I don’t need a weatherman to tell me which way the wind blows.

Fourth, Plaintiffs should not have to avail themselves of self-help measures to take down copyrighted material to get a TRO to stop infringement.  It’s like a pawn shop saying that although they are  pretty sure most of the merchandise  in the shop is stolen that if you can come down and identify your stolen goods  they’ll be glad to give them back to you.  Additionally, these take down regimes usually use MD5 hashtags which are pretty frickin’ useless.  Hashtags are useful in identifying whether the particular file on the server IS the exact same as the original file, but they are not useful as a location device.  In other words,  if the hashtag of a copyrighted file is found on another’s server, it is almost certain that the files are the same.  But a failure to match hash tags does not mean that the file is not located on the server because hashtags are easy to circumvent.  For example, the hash tag of a word document containing the collected works of Shakespeare would be different from the same document with an extra punctuation mark.  So uploaders just add in a couple extra seconds of music or video to circumvent the hash tag.   So in the pawn shop analogy, you’d have to be able to identify your merchandise to the nearest micron in order to get your stolen goods back.

So as it stands currently, it appears that file-hosting sites have found a hole in copyright law and are free to actively exploit it.  Until courts or Congress plug the hole, it seems that file-sharing sites are an infringement free for all.

Ninth Circuit Holds Academic Liberty Pwns Workplace Harassment

by Christopher Harbin

My man crush on Judge Kozinksi got kicked up a notch after reading his slammin’ opinion in Rodriguez v. Maricopa County Community College Dist. Here, Kozinksi, joined by Ikuta and Sandra Day (sitting by designation), held that a professor’s racist emails to a college employee listserv on a matter of public importance was protected speech under the First Amendment and thus cannot constitute workplace harassment.

Walter Kehowski is a math professor at Maricopa County Community College.  Kehowski sent three racially charged-emails (presumably to a list-serv) that were received by all employees of the District with email access:  two challenging the District’s support of “Dia De La Raza”, which is celebrated by some Hispanics instead of Columbus Day and another calling for preservation of a White majority through immigration enforcement.   Plaintiffs sued the college and and its chancellor and president individually on Title VII and Equal Protection grounds.  In reversing the district court’s denial of qualified immunity, the Ninth Circuit held that they “doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek.”

The entire opinion is pretty great, but my favorite part is Koz’s coup de grace:

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

Everyone in the Academy should  frame this opinion and hang it on their office walls — the Ninth Circuit has taken a more pro-academic speech position than 99% of them.

Draw Mohammed Day

by Charles Platt aka Ahmed Mom

I do hope the free speech advocates who frequent this forum will be observing Draw Mohammed Day, scheduled to begin tomorrow.

Here’s the inevitable facebook page, and here’s news of the inevitable backlash (even before the day gets started–it can only get better).

Personally I have upgraded my Facebook photo to get in the spirit of the thing, hoping that Northern Arizona won’t be high on the moslem hit list.

Attention Trademark Professors: I Found Next Year’s Trademark Exam Question

You’re welcome in advance.

Williams-Sonoma Brownie Pan

Delicious Hershey Bar

New dads also suffer post-partum depression

By J. DeVoy

A new study, involving statistical review of 43 prior studies on post-partum depression that included 28,000 adult males and females, has shed new light on this form of depression.  The condition, normally associated with women such as Andrea Yates, who drowned her five children in a bathtub after a lengthy bout with it, generally isn’t associated with men.  But maybe it should be:

Some 10.4% of fathers experience depression during the postpartum period, the analysis showed. In the general population, 4.8% of men are believed depressed at any given point in time, according to government data.

For women, the rate of postpartum depression was estimated at nearly 24%, according to the new analysis, which was published Tuesday in JAMA, the Journal of the American Medical Association.

While more prevalent in mothers – almost  a quarter of them – the condition affects more than 1 in 10 new fathers as well.  There’s also a difference in how the depression is expressed between the genders.

Men’s postpartum depression may manifest differently than women’s, said Dr. Nolen-Hoeksema. In general, depressed men are more likely to exhibit hostility and even aggression, whereas women who are depressed tend to become sad.

Post-partum depression is treatable.  Through individual-specific remedies including medication, therapy, support groups, improved diet and regular sleep patterns, this depression can be overcome.  Because the condition is so commonly linked to women, though, men may think their mood and behavioral changes after a child’s arrival are part of being a parent, rather than a clinical condition that can be improved.

Indefinite detention OK for sex offenders

by Charles Platt

“The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered ‘sexually dangerous’ after their prison terms are complete.” (Washington Post)

Since it is her duty to do so, nominee Elena Kagan argued the government’s case in favor of indefinite detention. She “compared the government’s power to commit sexual predators to its power to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.”

Clarence Thomas dissented, saying he could find no provision for this in the US Constitution. That’s one cheer for Clarence. Scalia was the other dissenter. The remaining justices couldn’t find anything wrong with the legislation that legitimizes this indefinite detention.

It seems to me, there is a spectrum of risk, here. At one end of the spectrum, we keep society safe by locking up everyone indefinitely who has committed a crime against another person. At the other end of the spectrum, we don’t bother to lock up any of them. Somewhere between these two extremes is a reasonable compromise, where we accept some risk in the interests of returning people to the community so that they have a chance to earn a living and pay taxes (and child support in some cases), while we no longer have to pay for them to be incarcerated.

Unfortunately legislators and DAs have created such a climate of fear, there’s a sense that any risk is unacceptable. This may explain why the US has more prison inmates, both by number and as a percentage of its population, than any other nation in the world.

Don’t lie down drunk near your car

by Charles Platt

In West Virginia, you can lose your license for a year even if there’s no proof that you were driving, or there’s a possibility that you might have done all your drinking after driving. Being near your car while drunk is enough.

“The decision came in the case of Eric R. Cain who was found lying passed out on in front of his car on Route 19 by Marion County Sheriff’s Deputy Todd Cole at around 2:30am on June 2, 2007. The car had been safely parked and there was no key in the ignition. Cole arrested Cain for DUI after a breath test estimated Cain’s blood alcohol level at .15. Six days later, the state filed an order revoking Cain’s driver’s license for a full year.”

I wonder how close to your car you have to be, to be found guilty. Six feet? Ten? Twenty?

http://www.thenewspaper.com/news/31/3135.asp

The decline of Western Civilization, as told by YouTube

By J. DeVoy

Stop one on our tour of the forthcoming dark age: Fundamentalist muslims attack Lars Vilks during a presentation on free speech at a Swedish university.  Vilks was behind the 2007 cartoon depictions of Muhammad, and the film he intended to show continued this theme.  What wasn’t shown in the video is the attempted arson of Vilks’s home on May 15, 2010.

Some would argue that Vilks should have been more sensitive, or chose his forum more intelligently.  Surely he anticipated the reaction his art would provoke.  In a society that values free speech, though, the mere fact that Vilks wanted to make and show such a film should be sufficient reason for him to do so — he shouldn’t have to balance the fact that some people might be (gasp) offended.  Those offended by Vilks work have every right to be, but they’re not doing themselves any favors by resorting to violence and trying to censor his expression.

Next stop: Scantly clad seven-year-olds dancing suggestively to Beyonce’s “Single Ladies”.  It’s legal, but jaw-dropping to say the least.  This kind of stuff contributes to why organizations like ASACP exist and are so important.  There is a market for such performances – when the dancers aren’t minors – but allowing encouraging and rewarding children born less than ten years ago to do this is in poor taste, to say the least.  As seen in the case of child pornography, not all speech is protected by the First Amendment.

Finally there are the people themselves, whatever your political affiliation:

And, if these videos don’t shake your faith in the future enough, there are always the comments left by other viewers.