Jenzabar tries to suppress critical website through bogus trademark claim – fails

Public Citizen reports:

In a ruling this week, a Massachusetts trial judge upheld the free speech rights of a documentary filmmaking company against an effort by a Massachusetts software company to use trademark litigation to punish the filmmakers for the portrayal of one of the student leaders in the Tiananmen square protests. (source)

Sadly, this kind of thing happens all the time – companies (and individuals) frequently try to use trademark infringement to try and suppress what they perceive as negative attention.

Massachusetts Superior Court Judge John Cratsley granted summary judgment to the defendants because there was no support for the claim that a reasonable person might be confused as to whether Jenzabar sponsored the documentary filmmaker’s website. Decision here (courtesy of Public Citizen).

What is truly ironic about this case is that one of the chief perpetrators of the suit was Ling Chai, one of the student leaders at the Tiannanmen Square protests. After seeing this attempt to suppress free speech crushed, Chai shot over to Norway to attend the Nobel Peace prize ceremony, where fellow Tiannanmen Square leader Liu Xiaobo is being honored in absentia. Shame on Chai and Jenzabar.

H/T: The Great Ron

One reasonable justification for DVD piracy

here.

PLOT UNCOVERED: Secret homosexual plan to give America the gay

Wide stance... I mean wide scale gay agenda, look out! Eugene is here to bust your ass. Well, not literally, because that sounds sorta gay. But, he's gonna do something not gay to your ghey ass and umm... just step inside the machine, sir.

Eugene Delgaudio, a Loudon County (Virginia) local politician conducted an extensive investigation into the new TSA patdowns, and his findings are nothing short of shocking and revolting.

We here at the Legal Satyricon been blogging up a storm about our suspicions that the TSA was run by incompetent fools or possibly by clever geniuses trying to make us get used to being servile sheep. It appears that we were WAY off. The new TSA rules are nothing short of a plot by the wide-scale homosexual agenda. (source)

Wide scale, I tell you. Wide scale.

In an email, Delgaudio wrote:

“That means the next TSA official that gives you an enhanced pat-down could be a practicing homosexual secretly getting pleasure from your submission.”

Holy Liberace spooning Elton John while watching Billie Jean King play tennis with Freddie Mercury under track lighting while the Pet Shop Boys blasts out of a volkswagen beetle driven by Ellen DeGeneres with Tinky Winky in the back seat crashing into a tastefully arranged Crate and Barrel window display!!!!!

I got news for you homosexual agenda pushers — YOU’RE SUSPECT!

The incredible evil and sliminess of these gay infiltrators places them beneath any terr’rists that might have attacked us. At least the terr’rists were up front about what they was doin’. The homophiles? They seethed their way into the darkest recessed of the Obama socialist fascist communist stalinist HITLER government. Then, they placed thousands of agents in the field — all of whom pretended to simply be half-retarded rejects from the drive thru at Carl’s Jr. And once they had their minions in place…. the national cock grabbing and secret homosexual practicioning began!

And now, America, we have all been gayed!

If you’ve been to an airport lately, y’all need to run… not walk … run to your doctor and see if you might have been infected with…teh ghey, because God hates you if you have that.

H/T: Boner Bible

This is how you deal with a guy who takes advantage of your daughter

Helmut Seifert, here is your honorary Sicilian flag.

Helmut Seifert, 47, got word that his daughter’s boyfriend was Phillip Genscher, age 57.

Helmut called the police, who said that they couldn’t do anything about it. So Seifert decided that he would do something about it. He got two buddies and a bread knife, went over to Genscher’s house.

“The man was forced to remove his trousers and, fully conscious, he was castrated. The severed testicles were taken away by the perpetrator.”

The man was close to bleeding to death but managed to call police. His life was saved but he remains a eunuch for life. (source)

Yep, he cut the old bastard’s balls off.

I see absolutely nothing wrong with that.

Making the first purchase doctrine work for porn

By J. DeVoy

Wouldn’t it be a pleasant surprise if you got $100 in the mail any time someone bought that bookshelf you made in 1995 and sold at a furniture show?  If the porn business plays its cards right, content producers may be able to reap the financial rewards of a similar situation.  But, it likely will come at the cost of an intra-industry lovers’ spat as content producers who focus on traditional media have goals that conflict with streaming-only content and leaner production companies.  Nevertheless, there is an opportunity for everyone to profit if they adapt their models to incorporate new processes.

The first purchase doctrine, previously discussed on this blog here and found in 17 U.S.C. § 109, cuts off a copyright owner’s financial interest in a particular copy once it’s been purchased, allowing it to be resold by subsequent owners.  The relevant statutory language is thus:

[T]he owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

See also Bobbs-Merrill Company v. Straus, 210 U.S. 339 (1908).  This has been the foundation for the secondary market of VHS tapes, video games, DVD’s, cassettes and CD’s for as long as anyone living can recall.  Historically, this has been good for consumers and allowed them to absorb more material than they necessarily would be able or financially inclined to sample.

But then came computers and, more recently, video games that required software installations to be run.  The clear copyright status of a NES cartridge or CD was obfuscated by copies that had to be made when software was loaded from a hard drive into RAM and accessed by the user.   The nature of this changed use led many producers to switch from making purchasers copyright owners and instead giving them only a license in the software, limiting their ability to dispose of it and effectively killing the lawful secondary market.

In the past, whether a user is a licensee or owner of copyrighted material hinged on a two-step inquiry: 1) whether the agreement was labeled a license, and 2) whether the copyright owner retained title to the copy, required its return or destruction, forbade its duplication, or required the transferee to maintain possession of the copy for the agreement’s duration. United States v. Wise, 550 F.2d 1180, 1190-92 (9th Cir. 1977).  The Ninth Circuit refined this position in its recent Vernor v. Autodesk, Inc. decision, finding that a software user is a licensee rather than the owner of a copy where the copyright owner 1) specifies that the user is granted a license, 2) significantly restricts the user’s ability to transfer the software, and 3) imposes notable use restrictions. No. 09-35969, 2010 U.S. App. LEXIS 18957 at *1 (9th Cir. 2010).

This won’t work for studios releasing material on DVD and read-only blu-ray format.  The doctrine is also of minor consequence for video-on-demand and streaming video websites.  But, with some tweaks to meet the standard set forth in Vernor, the adult film business can reap profits off its content’s sales into eternity.

Step one: Start structuring content releases as licenses, rather than sales.  Don’t give the content away, sell the right to use it.  Because there may be back-end income from future sales, the initial sale price could be lowered.  Even if the back-end sales are illusory, it will be easier for the public to swallow this pill if the potential of lower costs is held out to them.  After all, 1) it is a recession, still, and 2) the perceived high price of porn releases is a motivator for pirates’ actions.

Step two: Use technology to restrict the user’s ability to transfer the software.  This has two components within one requirement, the first being to turn porn into “software,” and the second being to restrict transferability through the way the content is accessed, and not merely through harsh words in the licensing agreement.

Turning porn into software can be easily done with computers and gaming systems.  Unless DVD and Blu-ray players are equipped with even nominal processors and hard drive space, more vital technology will be needed to implement this plan.  Some computers now have Blu-ray drives, while almost all have DVD drives; similarly, almost all gaming systems can play DVD’s while Sony’s PlayStation 3 can run Blu-ray films.  The easiest way to reach “software” status is on a computer, where some kind of program must be installed and run in order to access the content on the DVD, even if it is being written to a hard drive cache and processed by the included software for only a second.  For downloaded content, bundling a program by which the video data must be accessed is an easier task.  For gaming systems, this is similarly feasible.  Video game producers have taken the lead in changing their products from items where copyright rights are cut off at the first sale to licensed goods.  Prior discussion of this development is available here.  A similar process of requiring the content to be accessed as part of a program – rather than being reproduced from a storage device like a DVD or Blu-ray disc – will be needed to be software.  As porn has moved into the point-of-view and “experience” film realms,  an extension into gaming systems seems like a natural progression.

Restricting the user’s ability to transfer the software is also what will make this proposition profitable.  The general proposition of licensing is thus: Only a set number of people (in this case, one) can use the license at a time.  The cost of the initial license is built into the initial purchase, and the software – because under this idea, the content is more than a mere DVD or Blu-ray – is automatically registered online as a prerequisite for consumer access.  Once that registration is complete, any future registration on a different machine, by a different owner, or so forth, will require a separate license fee of $2 – $8 for the content to be displayed.  These numbers were not reached as the result of any particular study; they just reflected a reasonable percentage of a DVD’s resale value.  In today’s blasé environment regarding piracy, any money is better than no money.  The licensing agreement is then drafted to reflect this crucial limitation – only the initial purchaser has a license to watch the video on the machine he or she first registers it with, and any subsequent machine, user or owner must receive an individual license.

The third requirement, that the license impose notable use restrictions, is related to the discussion immediately preceding this paragraph.  What constitutes “notable” use restrictions requires further legal research and an opinion tailored to a specific inquiry.  In general, though, restricting the scope of the license to a specific use and machine is a significant limitation on how the consumer can use the product.  Requiring others to pay for future use can also be construed as a limitation.  Any range of circumstances in which the content may be used can be curtailed by the license’s language.  In short, the sky practically is the limit for “notable restrictions,” but a full legal opinion would be needed to determine how restrictive a particular studio’s restrictions would have to be to fulfill this “notable” requirement.

There are technical and administrative issues with this approach, and they are better addressed by database administrators, e-commerce experts, programmers and people better versed in this area than someone so utterly talentless that he had to go to law school.  If, however, enough people do this and the price points for subsequent licenses are carefully chosen, it can be done profitably.  While hackers will no doubt find a way around this with time, such an advance by studios can get ahead of the piracy wave and recover lost sales, and profit from secondary market sales that previously could not be converted into revenues.  At first, it will be only the most dedicated pirates who will find a way around this technology, while everyone else waits for it to be dumbed down to the point-and-click level of torrent ease that they enjoy today.  As a result, more people – even casual viewers – will be paying for porn, possibly for the first times in their lives.

To the extent this may be unpopular with consumers, I doubt people who validly purchase porn now will see any difference.  Legitimate buyers will do what they’ve always done: Buy a copy for personal use and not be burdened by buying supplemental licenses.  The price of future licenses will be priced into the secondary market and may reduce the upfront cost of content, allowing people to focus on the immediate cost of their purchase, driving increased secondary sales – and the inevitable purchase of studio licenses (otherwise, they’ve bought a brick).

This is a bold idea, and not one that can be adopted overnight.  I hope it is a controversial one.  Where some see studios holding viewers hostage for fees, I see a realistic approach to combating piracy, even if it cannot be entirely effective.  The question is, as always, making it work.

The Legal Satyricon is “interesting”

By J. DeVoy, henchman to the Legal Satyricon

If this happened on facebook, the post title would be “Jenna Haze ‘likes’ The Legal Satyricon,” but I’ll take what I can get.

The first link resolves to Ynot.com, and the second to the Legal Satyricon post Anonymous, we respectfully dissent (a defense of Porn’s Antipiracy push).  Like most things in life, there’s no particularly juicy story here – just a bit of luck spurred by timing and insomnia.

For the twitter-inclined, you can return the promotional favor and follow Jenna Haze.  And yes, jmdiv is me.

There are websites for that, dude

Ewww.

Music For One Apartment And Six Drummers

H/T: Rogier van Bakel

Buddhist Thais Love Christmas

It seems that Christmas is an increasingly popular holiday in Thailand, despite the fact that Thailand has managed to (for the most part) resist the infection of mass Christianity.

All around Bangkok, giant neon snowflakes, chubby snowmen, and full-size reindeer sleighs are everywhere. “We Wish You a Merry Christmas” and “Jingle Bells” pipe nonstop from loudspeakers. Weeks before the holiday, a Christmasy atmosphere is in full swing in this predominantly Buddhist country.

The Hollywood version of Christmas caters to Thais’ love of sanuk (fun), pretty decorations, and self-portraits – rolled into one.(source)

So now they want to ban another plant

Eeek! Run! Its a SCARY PLANT! We need more laws, laws, laws! Protect the children! Think of the children!

In the wake of the Miley Cyrus “controversy,” California State Assemblyman Anthony Adams is whining like a temperance movement whore to revive his failed attempt to ban salvia divinorum, commonly known as “salvia.”

Adams needs to un-twist his gray and stained granny panties. First off, we don’t need another law banning another plant. Second, anyone who wants to ban salvia ought to try the shit. The best way to make sure that salvia use goes down is to have everyone take a toke of it.

Salvia is sold in headshops as a “legal alternative” to marijuana. I’ve tried it. It fucking sucks. Quite honestly, aside from huffing keyboard duster, I can’t think of a less enjoyable drug related experience. When you inhale this crap, it gives you about 5 seconds of a tingly sparkly tinsel-like high. It sort of feels like the sound of a big box of silverware being dropped on a stone floor. Then, the extremities in your face start to feel a bit of a pinch. Then, you feel like tinfoil took a shit in your mouth, in your eyes, and up your nose. That lasts for about 5 minutes. After that, you just feel like shit.

Seriously kids, go ahead and try salvia. I’m confident that you’ll think it sucks so badly that you won’t want to do it again. Anyone who winds up with a “salvia addiction,” if such a thing exists, probably deserves to have one. With no natural predators, we need something to thin the herd. If you enjoy salvia, and it keeps you from reproducing, the gene pool will become that much more clarified.

Now I agree that salvia is probably harmful to your health. I don’t think anyone should smoke it, and my endorsement of it above will (I presume) dissuade anyone who is curious from wasting their time or their money. But, when you consider that this is the garbage that people are smoking because of the ill-considered prohibition of marijuana, maybe it is time for the god of unintended consequences to begin mocking state legislatures. If marijuana did not come along with the baggage of potential arrest, denial of student benefits for a lifetime, and a criminal record, then nobody would bother to even think about salvia.

Jag älskar Sverige!

Two bomb blasts rocked Stockholm yesterday. Just before the blasts, an email was sent to a Swedish news agency protesting the presence of Swedish troops in Afghanistan. (source)

I used to walk down that street every day when I lived in Stockholm. I’m delighted to hear that the only person killed was the swine who set off the bombs. (source)

Here is what is truly remarkable — the reaction of the Swedish government:

Sweden’s prime minister, Fredrik Reinfeldt, has described two explosions that shook Stockholm’s central shopping district on Saturday as “unacceptable” because, in his words “Sweden is an open society.” (source)

It is nice to hear a leader reassure his country that it is an “open society” in a time like this. Although Sweden is a bit of a nanny state when it comes to alcohol consumption, the Swedes are far more committed to keeping their liberty safe from power grabbing politicians than we are.

In another statement, Reinfeldt urged Swedes to have patience with the investigation.

Mr. Reinfeldt, responding to a question about potential racial tensions Sunday, encouraged Swedes to “have patience.” He said that Sweden’s “openness is worth giving ourselves the time to get to the bottom of this,” and warned of jumping to the “wrong conclusions.” (source)

While worthy of praise on some levels, I’m not entirely sure that I would maintain a commitment to complete pluralism if I lived in Sweden. About 5 percent of Sweden’s residents are muslim immigrants. As an American, I support letting people of any ethnic group or creed, no matter how silly, into my country — that is what America is about. If I were a Swede, I’d fight to keep cult members, hell-bent against the values my country stands for, from moving into my freedom-loving nation.

Write a poem, go to jail

by Charles Platt

The text of the poem is circulating freely online, so, here it is:

–

THE SNIPER

As the tyrant enters his cross hairs the breath he takes is deep
His focus is square on the target as he begins to release
A patriot for his people he knows this shot will cost his life
But for his race and their existence it is a small sacrifice

The bullet that he has chambered is one of the purest pride
And the inscription on the casing reads DIE negro DIE
He breathes out as he pulls the trigger releasing all his hate
And a smile appears upon his face as he seals that monkeys fate

The bullet screams toward its mark bringing with it death
And where there was once a face there is nothing left
Two blood covered agents stare in horror and dismay
Looking down toward the ground where their president now lay

Now the screams of one old negro broad pierces thru the air
Setting off panic from every eyewitness that was there
And among all the confusion the hero calmly slips away
Laughing for he knows there will be another negro holiday

By Johnny Spencer

–

Mr. Spencer is now serving 33 months and will have 3 years of supervision after completing his sentence. (source)

The question in such cases, as I understand it, is whether this was a “credible threat.” Since the poem had been posted two years previously, and nothing happened on that occasion, that alone suggests that it should not have been taken unduly seriously.

The term credible threat means a threat that is “real and immediate, not conjectural or hypothetical.” Kegler v. United States DOJ, 436 F. Supp. 2d 1204, 1212 (D. Wyo. 2006). The poem sounds quite hypothetical to me, containing no details whatsoever of how the threat was supposed to be carried out, when, or where.

Under California law, I find “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety…” and I believe other states have similarly worded statutes. Does a gun fantasy on a web site by an obscure white supremacist cause the President of the United States to fear for his safety?

Of course the guy in this case pleaded guilty. Presumably his attorney advised him to do so. The news reports don’t mention a plea bargain, but I’m betting there was one.

Government official apologizes for TSA overzealousness — but that apology is not for you, nor will it ever be

Samir Nagheenanajar at a TSA checkpoint.

Last week, Indian Envoy Meera Shankar got a dose of the “Post 9/11 America,” when she was felt up in a most undignified manner at the Jackson, Mississippi airport. Ms. Shankar was, to put it lightly, appalled.

Poor Ms. Shankar thought that the whole thing was because she was in Mississippi. I could see why she might think that, but unfortunately she doesn’t realize that even the most civilized and advanced places in the United States have the same hall monitors running things.

When Shankar got back to India, she apparently raised a high holy fit about how she was treated. (source) And after the diplomatic row, the governor of Mississippi issued an apology to Ms. Shankar. (source) Of course, since the TSA is a federal agency, she may as well have gotten an apology from David Letterman or Barney the Dinosaur. Nevertheless, the apology was nice:

“I have spoken to Ambassador Meera Shankar and expressed my concern on behalf of Mississippi for the way she was treated by the federal Transportation Security Administration personnel while she was in our state. I assured the ambassador that I have taken up the issue with the TSA and with Secretary of Homeland Security Janet Napolitano. I hope to see whatever necessary procedural changes made within TSA that make our visitors feel welcome and safe in the Hospitality State.” (source)

Rogier van Bakel had an appropriately snarky comment:

It’s nice that Ms. Foreign Dignitary got an apology. So far, no apologies have been issued to the masses of unworthy American plebeians. Those damn commoners may be groped with impunity.

Sherman Frederick, douchebag who backed Righthaven posts infringing material on his own blog

If you don’t already know what Righthaven is, go google it. I’ll wait.

So Sherman Frederick is a certified douchebag who compared bloggers posting Las Vegas Review Journal Stories to someone stealing his corvette. I would link to the story, but I have pledged to not link to the Las Vegas Review Journal. Instead, here is an article by Wendy Davis at Media Post, in which I am quoted mocking Sherm.

Well guess what?

Mr. Asshat Frederick seems to have done the same thing that his little fucktard operation sues people for. (source) The only difference is that nobody is going to try and bankrupt him over it.

Hey Sherm, this is posted to mock your sorry ass.
It's called Fair Use. I dare you to sue me.

H/T: Masnick the Great

“The last time I checked, we don’t operate like that here in America”

“The last time I checked, we don’t operate like that here in America.”

That is what General Hugh Sheldon, who was chairman of the Joint Chiefs of Staff during parts of the Clinton and dipshit Bush administrations. In his recent memoir, he wrote about a particularly disturbing request made by a member of the Clinton cabinet:

Early on in my days as Chairman of the Joint Chiefs of Staff, we had small, weekly White House breakfasts in National Security Advisor Sandy Berger’s office that included me, Sandy, Bill Cohen (Secretary of Defense), Madeleine Albright (Secretary of State), George Tenet (head of the CIA), Leon Firth (VP chief of staff for security), Bill Richardson (ambassador to the U.N.), and a few other senior administration officials. These were informal sessions where we would gather around Berger’s table and talk about concerns over coffee and breakfast served by the White House dining facility. It was a comfortable setting that encouraged brainstorming of potential options on a variety of issues of the day.

During that time we had U-2 aircraft on reconnaissance sorties over Iraq. These planes were designed to fly at extremely high speeds and altitudes (over seventy thousand feet) both for pilot safety and to avoid detection.

At one of my very first breakfasts, while Berger and Cohen were engaged in a sidebar discussion down at one end of the table and Tenet and Richardson were preoccupied in another, one of the Cabinet members present leaned over to me and said, “Hugh, I know I shouldn’t even be asking you this, but what we really need in order to go in and take out Saddam is a precipitous event — something that would make us look good in the eyes of the world. Could you have one of our U-2s fly low enough — and slow enough — so as to guarantee that Saddam could shoot it down?”

The hair on the back of my neck bristled, my teeth clenched, and my fists tightened. I was so mad I was about to explode. I looked across the table, thinking about the pilot in the U-2 and responded, “Of course we can …” which prompted a big smile on the official’s face.

“You can?” was the excited reply.

“Why, of course we can,” I countered. “Just as soon as we get your ass qualified to fly it, I will have it flown just as low and slow as you want to go.”

The official reeled back and immediately the smile disappeared. “I knew I should not have asked that….”

“No, you should not have,” I strongly agreed, still shocked at the disrespect and sheer audacity of the question. “Remember, there is one of our great Americans flying that U-2, and you are asking me to intentionally send him or her to their death for an opportunity to kick Saddam. The last time I checked, we don’t operate like that here in America.” (source)

What a refreshing thing to hear from a military leader. “The last time I checked, we don’t operate like that here in America.” Unfortunately, once his boss changed, that sentence became something that you would only say in jest. I mean honestly, is there anything that we could actually say is outside the realm of “how we operate” in America? We torture, we lie, we cheat, and we sell our own liberty down the river.

And General Shelton has more choice words for his former boss, GWB. His book is expexcted to levy the charge that the only reason we invaded Iraq was because of a “series of lies.” (source)

President Bush and his team got us enmeshed in Iraq based on extraordinarily poor intelligence and a series of lies purporting that we had to protect Americans from Saddam’s evil empire because it posed such a threat to our national security,” Shelton writes in his memoir. (source)

Y’know… maybe we’ve always been a little shady. But, at least we were always sorry about it afterward. And, at least we held up a beacon and pointed toward what was right.

When I was a kid, my dad took me to see Midway at the movie theater. I remember at the end of the movie, there’s this line:

“It doesn’t make any sense, Admiral. Yamamoto had everything going for him, power, experience, confidence… Were we better than the Japanese, or just luckier?”

I was seven, so I looked at my dad and asked “were we luckier or better?” He looked down at me and said “bettah.”

I honestly believed that. I mean, my dad said it… but when I got to school, my dad’s story checked out. As it did in all the books we had. Everything pointed to that. Based on that, I really bought into the theory of America being more than just a pile of dirt that we all share. It meant something.

I sure as shit wish that some of our politicians’ dads took them to see Midway when they were kids.