WTF Wisconsin?

by Jason Fischer

The Wisconsin Supreme Court ruled this week that committing a sex crime is not necessarily a prerequisite for ordering a convict to register as a sex offender (source). I tried reading the opinion to figure this nonsense out, but my head nearly exploded when I read the excerpted sentence below, and I had to stop.

In the present case, the parties agree that a fundamental right is not implicated . . . . (source)

Improve your blogging in 2011

By J. DeVoy

Here’s the guide I’ve been using, created by Roosh a few years ago.  It’s time-tested and ABA Journal approved.

But Roosh is a man of many fratboy humor-related talents.  Here he is displaying his basement-level D.C. apartment in a mashup of Tim & Eric Awesome Shoe Great Job and MTV’s Cribs.

And Roosh is a traveler.  Here is his sardonic (and shocking) insider’s guide to Medellin, Colombia.  If the joke isn’t obvious at the beginning, it will be by the end.  Given the apparent earnestness with which the video begins, it’s some of the finer non-4chan trolling I’ve seen that deeply offends the uninitiated.

Practice Pointer: If you don’t have a law license….

If you don’t have a law license, then you probably should not practice law.

If you decide to practice law anyway, and the court orders you to stop, you should probably stop.

If both of those things happen, and you don’t stop, you really shouldn’t sue your client for $845,000 in unpaid legal fees.

Strangely enough, that is how far you seem to need to go in order to be prosecuted for the unlicensed practice of law in Massachusetts. (source)

DUI laws and the Constitution

by Charles Platt

Florida has joined the growing list of states that are raising revenue by stopping drivers at random (not with probable cause) and forcing everyone to be breathalyzed–on the understanding that if anyone refuses, a judge on-site will issue a warrant authorizing the cops to take a blood sample by force, if necessary. Naturally Mothers Against Drunk Driving endorses this as a great idea. Here’s the news item.

For years I have had a gut-level aversion to MADD. The name alone is manipulative (who would ever dare to oppose that most sacred group, mothers, against that most reviled subspecies, drunk drivers?). The tactics are abhorrent (such as going to the Feds for help in forcing states to conform, when really this should be a state issue). And of course taking someone’s license away simply for triggering a detection device, before anything has been proven, is totally unacceptable.

But now I find that the situation is far worse than I imagined. If you have the time, this guy will tell you why.

Rest in Slack, Brother

In honor of Cliff Heller, who merged with the infinite on this day in 2006, the Legal Satyricon flag is lowered to half mast and there will be no posts today.

If you happen to find yourself with a bottle of tequila nearby, I would like to invite you to take a shot in his honor.

Blue Skies and Rest in Slack

Germany requires copyright license for children’s songs

By J. DeVoy

Kindergartens across Germany are receiving notice that they must pay for licenses to  reproduce a number of songs, the rights to which are held by GEMA (Germany’s music licensing agency).  Slashdot has the story here.

Leave it to the Germans to find a way to make children useful.

Student speech codes: A year+ in review

By J. DeVoy

Greg Lukianoff and Azhar Majeed of the Foundation for Individual Rights in Education (FIRE) recently compiled two years’ worth of academic publications mad possible through FIRE’s Jackson Legal Fellowship.  If you’re in a position to make end-of-year donations, you may do so here.  FIRE is on the list of Satyriconista charities.

[N.B., the following article descriptions were written by FIRE.]

“The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights,” by Azhar Majeed
Published May 2009, The Journal of College and University Law (Notre Dame Law School)
This article argues that colleges and universities often misapply sexual and racial harassment law to the detriment of campus speech rights, and that in doing so they are misreading their obligations under Title IX and Title VI to prevent true harassment of students.

“Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes,” by Azhar Majeed
Published November 2009, Georgetown Journal of Law & Public Policy
This article argues that campus speech codes violate the free speech rights of university students, and that in spite of having been deemed unconstitutional by an unbroken series of court decisions, colleges and universities continue to maintain doctrinally flawed speech codes.

“Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights,” by Azhar Majeed Published October 2010, Cardozo Public Law, Policy and Ethics Journal
This article argues that courts should not grant qualified immunity to university administrators when they are sued for monetary damages in their personal capacity for violating students’ free speech rights because the law is so clearly established with respect to First Amendment rights on campus.

“The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students’ Free Speech Rights,” by Kelly Sarabyn
Published April 2009, Texas Journal on Civil Liberties & Civil Rights (University of Texas at Austin)
This article examines the history of the 26th Amendment and demonstrates that it was intended to make 18-year-olds full-fledged citizens, and therefore to end the in loco parentis university. It also argues that since most college students are 18 or older, and most high school students are under 18, the 26th Amendment produces a clear line between the two institutions, and dictates that college students cannot be treated like high school students for the purpose of free speech.

“Free Speech at Private Universities,” by Kelly Sarabyn
Published April 2010, Journal of Law and Education (University of South Carolina Law Center and the Louis D. Brandeis School of Law University of Louisville)
Many private universities promise free speech for students and faculty, but then have fine print policies proscribing offensive or harassing speech. This article argues that when such conflicting policies or promises exist, courts should enforce the promises private universities make in light of the reasonable expectations of the student. At liberal arts and research universities, students would reasonably expect to have free speech on campus, and thus the contracts should be interpreted accordingly. This allows private universities to proscribe speech if they wish, and thus respects the right of private association, but it allows universities to do this only if they do so clearly and publicly.

“Prescribing Orthodoxy,” by Kelly Sarabyn
Published June 2010, Cardozo Public Law, Policy and Ethics Journal
This article studies the right to freedom of conscience as it manifests itself in various constitutional doctrines and demonstrates how this right against governmental orthodoxy prohibits colleges from implementing programs that seek to mold students’ ideological beliefs with coercion.

“Measuring a Degree of Deference: Institutional Academic Freedom in a Post-Grutter World,” by Erica Goldberg and Kelly Sarabyn
Published November 2010, Santa Clara Law Review (Santa Clara University School of Law)
By resolving the ambiguities presented by the Supreme Court’s decision in Grutter v. Bollinger, this article establishes a framework for affording institutions deference for their decision-making. Institutions may invoke academic freedom only for decisions that are truly academic and do not trample upon the First Amendment rights of students and faculty, and should receive different amounts of deference depending on what body within the institution is making the academic decision at issue.

“Must Universities ‘Subsidize’ Controversial Ideas?: Allocating Security Fees When Student Groups Host Divisive Speakers,” by Erica Goldberg
Accepted for publication as lead article, George Mason University Civil Rights Law Journal
This article creates viewpoint neutral rules to govern the assessment of security fees so as not to punish student groups who wish to sponsor a controversial speaker’s visit to campus.

All of these articles can be read at FIRE’s online publication The Lantern.

 

Being a douche nozzle is no way to keep clients

by Jason Fischer

Of course the headline here seems like common sense, but what’s surprising is that many attorneys have trouble with this bit of wisdom.  As surprising as it may be, understanding why practicing attorneys have trouble controlling their aggressive tendencies is not difficult when you think about it.  The problem is, when you have to spend 80% of your time dealing with deadbeats and scam artists, you end up in a near-permanent state of cynicism.  Hell — in a lot of instances, it helps to be a bit of a dick.  This, of course, is the motto of any self-respecting alpha.

Good attorneys, however, know how and when to turn off the bloodlust.  The best attorneys manage to avoid it altogether.  The moment you start to get emotional about going after that one defendant, the moment it becomes personal for you, there is a real danger that you’re going to accidentally misdirect that energy.  If you lose the big picture in a haze of red, bad things can start to happen.  Recent events in the heated debate over copyright enforcement serve as proof.

Larry Flynt Publications (LFP) just parted ways with Evan Stone, an attorney that was hired to pursue the hundreds of BitTorrent users who are illegally trading copies of one of the company’s recent video titles, This Ain’t Avatar XXX.  When Stone wanted to press harder than his client, not surprisingly he got the boot.  It turns out that when LFP was unwilling to bite the hand of Time Warner Cable, an ISP dragging its heels on turning over customer information tied to IP addresses used to share the movie, Stone became unhappy with LFP’s intestinal fortitude.

According to LFP President Michael Klein . . . the shifting focus from the alleged pirates to putting pressure on the cable companies was not a strategy that appealed to the iconic adult company, which has a television division and continuing global ambitions that require it to be a partner rather than an antagonist with companies like Time Warner.  . . .  Klein said that as much as LFP is determined to maintain a professional relationship with cable operators, it was ultimately their frustration with Stone’s aggressive PR tactics that led them to the decision to end the contract with him.

“He wanted us to put pressure on the cable operators, but it’s not our goal to go after them,” Klein told AVN.  “We want to look at ways to go after pirates, and we thought this strategy might work out, but the reason why we terminated with Stone was because of what we considered to be his unprofessional tactics.”  (source)

Even though the company was happy to quietly let him go, Stone took the more douchey path of announcing his break with LFP to the press.

Plenty of attorneys argue — and they’re not necessarily wrong — that being successful requires adopting the client’s problems as if they were the attorney’s own.  However, very few businesses become successful by playing hardball with everyone the way an attorney would.  (Similarly, any company that is always as cautious as their attorney advises will likely fail to excel.)  The problem comes when your level of tenacity goes beyond the client’s, and fighting the problem becomes for your benefit rather than theirs.  This is almost always a recipe for disaster, especially considering it can require superhuman empathic skills to know where the line is sometimes.  Unfortunately, there’s no law school course that will give you the paracortex of a Betazoid, so you’ll have to rely on your own douchetastic meter to figure out when you’ve gone too far.  There’s no surefire way to navigate this conundrum, but staying away from brash and overly aggressive tactics will help, and that’s a good practice in any endeavor.

Practice Pointer

Siouxsie digs up a great pwning from the 1970s here.

For more of the same, check out Jackass Letters.

The NFL and Socialism

In an article that isn’t really about politics or economics, the sports page brings a little insight to both:

How many people had the moxie a few months ago to predict that not only would the Kansas City Chiefs win the AFC West but that the San Diego Chargers would also not even make the playoffs? Well, at least one group got that Chiefs thing right.

That’s part of what has made the National Football League the dominant sports enterprise in the country: The socialistic economics of the league gives fans in most cities hope at the beginning of each year that their team might have a shot. (source)

Precisely.

And that is why some forms of socialism (think Norway, not Cuba) are superior to true free-market capitalism (think Albania, not the United States). The fact is, if you’re born in a slum in the United States, chances are that you’ll die in a slum too. Meanwhile, for a Swedish baby, the economic or social class of his parents has very little influence upon where he’ll be as an adult.

If your dad is in the lowest economic quintile, there is a 42 percent chance that you’ll stay there. Meanwhile, if the same son is born to a Danish, Finnish, Swedish, or Norwegian dad, he has only a 25-30% chance of remaining at the bottom. Worse yet, a Nordic child has a slightly greater chance of moving from the bottom quintile to the top quintile. See Jäntti, M., B. Bratsberg, K. Røed, O. Raaum, R. Naylor E. Österbacka, A. Björklund, T. Eriksson. 2006. “American Exceptionalism in a New Light: A Comparison of Intergenerational Earnings Mobility in the Nordic Countries, the United Kingdom and the United States.”; Miles Corak, 2006. “Do Poor Children Become Poor Adults? Lessons from a Cross Country Comparison of Generational Earnings Mobility,” IZA Discussion Papers No. 1993, Bonn: Institute for the Study of Labor (IZA) (concluding that Canada, Germany, and France have greater class mobility than the United States).

In other words, on any given Sunday, any NFL team can win. And in any given season, you never really know how the playoff picture will look. And any given child born in a more civilized country just might wind up doing awfully well.

In contrast, the San Diego Padres could win the World Series every year. But, if you laid your pre-season bet on anyone but the Red Sox or the Yankees, you’re probably throwing your money away. Meanwhile, despite the Patriots’ dominance of the past decade, you never really know if they’ll be playing in a game with roman numerals on it. Of course, their dominance is fairly attributable to the socialism within the team. The Patriots system pays Tom Brady pretty damn well, but he could probably make 30% more if he went to another team, meanwhile other players take less in order to bring in other talent under the salary cap — and thus producing three Superbowl wins since that became the system. Players who are willing to sacrifice for the collective good, like Teddy Bruschi, stick around. Those who simply chase the dollar (like Lawyer Milloy and Adam Vinatieri) wind up elsewhere.

Of course, the other side of the coin is that sometimes in a socialist system, losers can win. In the final week of the regular NFL season, the Seattle Seahawks will be 6-9, playing for the division title, might be the #4 seed in the NFC with a losing 7-9 record, and if things go their way in three games in a row, they’ll take home the Lombardi trophy.

I’m a social libertarian, but when it comes to economics, I favor a little bit of socialism… I stopped giving a shit about MLB when the Sox turned into Yankees North, but I don’t mind shelling out a couple of grand for NFL tickets.

ABA 100 Recommendations

By Randazza & DeVoy

Every year, the ABA Journal has a run-off of its top 100 Blawgs, which are selected by reader votes.  Others have made their recommendations so far, and now the time has come for us to offer ours.  Indeed, it is our hope to use this blog’s status as last year’s winner in the IMHO category to be the Kingmaker deep into this competition.  If you haven’t voted yet, you can register here, and then vote in each category (links to the categories are in bold).

Here’s the category-by-category breakdown:

Law Biz: What About Clients? Dan Hull is no pussy. If lawyers laid eggs and hatched their young, Randazza would have been in Hull’s nest.  Highly educated and a spirited advocate for his clients, he sees, and has long seen, that the legal marketplace for attorneys old and new is driven by value and versatility, rather than pieces of paper from exclusive schools that don’t teach you anything about legal practice.

News: Above The Law Enough said, and an obvious answer to anyone who reads legal trade news.

Law Prof Plus: This category is the bone that the ABA throws to the academic circle jerk. Most of the blogs in this category, if you waste a little time reading them, make you understand that term. However, Religion Clause, unlike competitors Feminist Law Professors and Brian LeiTTTer’s Law School Reports, is actually useful and insightful. Well, it is useful if you want to learn about the Religion Clause — which we do (and we would assume many of our readers do). It’s much more than useful, it’s great, but when dealing with academics, “utility” is the relevant threshold, and this is one of the rare law professor authored blogs to cross it. Honorable mention, TaxProf Blog, which is useful too. Of course, if the categories were organized properly, Volokh would be in this category, and he would pwn the shit out of it.

Torts: New York Personal Injury Law Blog Well written, prolific, and primarily dealing with one of the major legal markets in the country. However, Turkewitz strays from his yard a lot, bringing insightful commentary to many areas of law that have little to do with personal injury or New York. Don’t let the title scare you away.

IP: TTAB Blog You can actually teach yourself trademark law by reading this blog for 90 days.  Insightful, timely, smartly written, and covering a wide range of topics with appropriate context. John Welch, the author, is a hell of a great guy and blushes when told that certain lawyers got their start in IP law by reading his work.

Criminal Justice: Not Guilty Normally the endorsement might have gone to Simple Justice, but Greenfield would be too busy chasing kids off his lawn and eating disgusting, chalk-flavored Necco wafers to make it to the victory party if he won (assuming it was before his bed time). Besides, Greenfield despises the award and does not wish to win it. Nevertheless, Not Guilty is brilliantly written and a welcome addition to the blogosphere.

For Fun: Corporette A First Amendment attorney who tells women lawyers that they don’t have to dress in pantsuits and potato sacks to be successful.  Sounds fun to me. She’s a First Amendment attorney. We’ve got her back because she’s got the Constitution’s back.

Legal Tech: Tossup – Technology & Marketing Law Blog / Robert Ambrogi’s LawSites Both are strong blogs and we couldn’t pick a favorite.  If you’ve never heard of either of them, be sure to give both a read.

IMHO: Although we are nominated in, and currently leading, in the IMHO category, The Volokh Conspiracy gushes content published daily from leading writers and thinkers, and it is edited by probably the most brilliant legal mind in America and someone who would be a shoo-in for the Supreme Court if we were in charge.  Seriously, what the hell are you doing here?  Although the reading is sometimes a bit eye-glazing, since it consists of so much academic navel gazing, it is still amazing — think of a law journal without all the worthless parts. Volokh’s blog should be in the Law Prof Plus category, but he’s here with us, and there’s no shame in admitting that he’s better.  He has this blog’s collective vote – even over voting for ourselves.

But if our current lead in the competition holds up – and the Legal Satyricon wins again – we will assign the ABA’s award to goatsegirl.  Do not look at that website at work unless we are your employer. Really.  

Giving the credential to a site so vile and bizarre is the only way to properly thank the ABA for the stewardship it has offered this profession.  Between allowing the massive outsourcing of legal work to India, accrediting every toilet law school with a roof, and not even having the stones to categorically refuse accreditation to overseas law schools, goatsegirl seems like a great fit for the ABA, a dysfunctional and self-interested shitbucket of an organization if one ever existed. (more)

That said, we actually love the ABA Blawg directory and the ABA journal, and all the news we can find there. Martha & Debra serve up the only useful functions that the ABA manages to provide.

Blogs that belonged in the list: Popehat, Public Citizen’s CL&P, Citizen Media Law Project, Crime & Federalism, Siouxsie Law, and Spam Notes.

So, if you’ve got the time, register here. And then go vote in each category.

Perfect 10 thinks that DMCA takedown demands should be protected by copyright

Perfect 10 is at it again – this time still pressing the argument that its DMCA notices may not be reproduced. (source). Most copyright attorneys know that if they send a DMCA notice, it very well may wind up on chillingeffects.org. If you send a DMCA notice to Google, it absolutely, positively, will. There are many of my own DMCA notices up there, and I am neither uncomfortable with that fact, nor do I mind my efforts being held up to scrutiny. If I am going to issue a DMCA notice, having content taken off the Internet without any judicial review at all, my maneuvers should be at least subject to the prying eyes in the marketplace of ideas.

Perfect 10 shamefully disagrees. They are wrong. Here is why:

It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majority countersuit.

In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.

One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).

However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve the fair use defense.

[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.

…

In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.

The Central District of California also pointed out portions of the Copyright Act’s legislative history, which seem to take aim at Perfect 10′s position.

The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.

Accordingly, if you send a DMCA notice to someone else, claiming that there is illegal content on their site, they should be able to use that letter for many purposes – including comment on the DMCA notice itself.

While strictly-speaking, DMCA notices may be covered by copyright law, this type of fair use seems to be required under the First Amendment.

First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).

Similarly, anyone who receives a cease and desist letter, could certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)

Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a Perfect 10 DMCA notice and used it as my own, then I might be committing copyright infringement. On the other hand, if I use Perfect 10′s DMCA notice as part of a critique of Perfect 10, or of the DMCA in general, or as part of a study on the DMCA, then that that is a valuable addition to the marketplace of ideas — and it is protected speech.

Let us return to Hustler v. Falwell:

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Exactly. A cease and desist or a DMCA notice is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.

Okay counselor, but do you have a case that is exactly on point?

As a matter of fact, I do.

In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that the DMCA notice and take down was defective and that the sender was liable for material misrepresentation.

Conclusion

In short, if you issue a DMCA notice, you should not expect that it will remain confidential, nor should you expect that it will not wind up on chillingeffects.org. If you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.

My favorite Christmas Carol

A Zombie Christmas

A Gwar Christmas Carol

H/T: Bob