Bill Maher must read this blog

I hope he does, anyhow.

A few weeks ago, I wrote a piece on The NFL and Socialism. Two days ago, Bill Maher wrote on the same thing, but maybe with a bit more cleverness, here.

I come bearing gifts

You may have noticed a lack of posts by your humble editor this year. Well, a week in Vegas plus two weeks thereafter puking your guts out will do that to your writing ethic.

But, I return bearing gifts.

A friend of mine is in a position to dole out a pretty awesome job for someone with a fresh JD. I am not going to publicly tell you what the job is, or where it is. You have to email me to get that information. Lets just say that in this day and age, any job is awesome. But, this one is a pretty cool clerkship for a court in a nice sunny place, and the pay is above $60K.

Requirements: I’ll pass your information along if you’re a regular reader and you’re not a douche. The job will require you to have decent grades, so don’t bother if you’re a “C’s get degrees” kind of student. I respect students like that, but you won’t get the job.

Did daddy touch you or not?

By J. DeVoy

From the WTF file in Dane County, Wisconsin (i.e. Madison and its metro area):

[A] jury has awarded $1 million to Dr. Charles and Karen Johnson, a former Madison couple who alleged that therapists implanted in their now adult daughter false memories of childhood sexual and physical abuse. The case has been cluttering up the docket for fourteen years, but at the time it was filed, it was just “one in a long line [of cases] across the country related to a controversial treatment called recovered memory therapy.” (more.)

The full story is available at The Spearhead.  In light of Wisconsin’s sweeping tort reform bill that’s working its way through the legislature – and almost sure to be made law by the state’s Republican governor – these kinds of cases are less likely in the future, as Wisconsin will finally join the rest of the world in adopting the Daubert standard for expert testimony.  Currently, Wisconsin looks only to the “relevance” of the expert’s testimony once qualified, which is a boon for trial lawyers but allows for family-ruining disasters such as this one when “soft” sciences are given rule of the testimonial roost. See Wis. Stat. §§ 907.02-07; see also this piece by Stephen Hurley.  Daubert attaches additional conditions to the admissibility expert testimony, requiring that the methodologies used be peer reviewed and scientifically accepted, with results arising from the expert’s use of the scientific method.

The proposed Wisconsin changes even go above this standard and require the testimony to be “true” as well as reliable.  This choice of language likely will spawn interesting litigation, especially in the discovery phases, if the law passes as written.  That may also be the last surge of litigation in Wisconsin for a while, as the rest of the tort reform bill guts the financial meat from some lucrative areas of plaintiff’s work.  The Journal Sentinel summarizes what the tort reform bill does:

• Limit noneconomic damages – payments for loss of companionship, mental distress and pain and suffering – to $750,000 in medical malpractice cases at nursing homes. That limit matches the one already in place for other types of medical malpractice cases.

• Limit punitive damages to $200,000 or double the amount of compensatory damages, whichever is higher.

• Raise the threshold for winning punitive damages in lawsuits so that plaintiffs would have to prove that defendants acted “with intent to cause injury to a particular person” or with a knowledge that their action would lead to that result. Now, plaintiffs have a lower threshold of proving that defendants acted maliciously or with intentional disregard for the rights of victims.

• Prevent reports required by state regulators, or statements from employees of a health care provider, from being used as evidence in civil and criminal actions.

• Raise the standards for qualifying people as experts when they give court testimony.

• Block lawsuits from proceeding in cases where plaintiffs cannot prove who harmed them. The change was a response to a 2005 state Supreme Court decision that allowed a case against seven paint manufacturers to advance to trial even though the plaintiff could not prove who made the lead-based paints that he said poisoned him as a child.

Lesson: Don’t get hurt in Wisconsin.

New Yorker violates cardinal rule of Las Vegas

By J. DeVoy

Las Vegas has but one maxim: What happens in Las Vegas stays in Las Vegas — a boon if you live there.  Hubert Blackman contacted Las Vegas Exclusive Personals when visiting the Las Vegas Strip from New York to have a dancer come to his hotel room.  Blackman claims that in addition to the dance, he paid an additional $120 for a sex act.  Blackman sought a refund for the next day, arguing that the dancer did not stay for the full hour he paid for, and that he was too drunk to form an enforceable contract. (source.)

When Las Vegas Exclusive Personals refused to give Blackman a refund, our confused consumer called the Las Vegas Metro Police.  The Police advised Blackman that he could be arrested for his actions, and advised him to file a complaint with the Better Business Bureau.  Apparently avoiding arrest, arraignment or any criminal charges, Blackman refused to accept he got lucky.  Instead, he filed suit in a Federal court in New York City, seeking more than $1.8 million in damages.  Under his theory of the case, Las Vegas Exclusive Personal’s dancer’s alleged prostitution – which Blackman paid for – almost got him arrested and subjected him to great emotional trauma.  Good luck with that one, buddy. (source; H/T: Luke Lirot.)

The article mentions that prostitution is illegal in Las Vegas and Clark County.  While this is a no-brainer in almost every other state, what’s not said within the article says volumes.  When I first got my Nevada law license, one of my first priorities was to learn all about prostitution in the state.  And, in all seriousness, it was purely for pedagogical reasons.

Prostitution in Nevada is confined to brothels, which are made lawful on a county-by-county basis under NRS 244.345.  In counties with a population greater than 400,000 people as of the last census, no brothels can be licensed for operation.  In counties where the population is less than 400,000 people as of the last census, the county may grant licenses through an application process and committee as it sees fit.  Some counties, such as Lincoln County – adjacent to Clark County, where Las Vegas is located – have elected to outlaw brothels entirely.  As a result, Nye County, the only other county to border Clark County, has received a number of other brothels within a 1-hour drive of Las Vegas.

The 400,000-person threshold for brothel legality creates certain economic incentives for brothels and the communities around them.  Other businesses and groups, such as school boards, may want to increase population so as to expand the tax base and preclude brothels from operating in the county.  Brothels, on the other hand, are given strong financial reasons to keep people out or operate in relatively secluded but easily accessible areas.  While some counties allow any brothel that satisfies its licensing requirements to operate, other counties have a fixed limit as to how many brothel licenses it may have outstanding at any time, allowing greater control over brothel operations within the county.

Unlike, say, Houston, there are zoning restrictions locally and at the state level ensuring that brothels don’t spring up in the middle of high-traffic areas.  Brothels cannot operate within 400 yards of a school or schoolroom, or within 400 yards of any “church, edifice, building or structure erected for and used for devotional services or religious worship” in Nevada. NRS 201.380.

There are also considerable restrictions on brothel advertising. NRS 201.430-40 place significant burdens on the advertising of prostitution and houses of prostitution, which may have a broader reach than the legislature may have ever initially intended.  Despite the First Amendment concerns such restrictions raise, the Ninth Circuit upheld these statutory provisions as constitutional within the past year.

These are far from the only limitations on brothel advertising and promotion, though.  Nevada’s regulations prohibit the number and size of signs a brothel may have, how far from the road they (and the brothel itself) must be, and even the number and wattage of red lights a brothel can use.  Individual county provisions go into even greater detail, setting forth what showering and cleanliness items must be present within a brothel, as well as how service providers must acquire and renew their health licenses from that county’s sheriff.

Finally on the topic of regulations and sex workers, Nevada has a testing regime  comparable to the porn industry’s.  To obtain employment as a sex worker, a candidate must submit to blood testing for HIV and syphilis, and a cervical or urethral specimen for gonorrhea and chlamydia testing.  Individual brothel policies governing the availability of anal sex may also affect whether rectal testing is mandatory for sex workers.  Condoms must be used in all intercourse between patrons and sex workers.  In the interest of health maintenance, sex workers must have monthly blood tests for HIV and syphilis, with weekly cervical/urethral samples for gonorrhea and chlamydia testing.

Despite such a pro-brothel regime, Nevada’s laws do not encourage unregulated street prostitution.  NRS 201.295-420 provide strong protections for sex workers.  In general, these laws outlaw pimping and receiving proceeds from prostitution without consideration, outlaw pandering, prohibit forcing a spouse, minor or other unwilling party into a brothel or other form of prostitution, and even penalize the keeping of a “disorderly” house of prostitution.  Additional protections may be available at the county level, depending on what is required to renew and keep one’s brothel license.

This is a very rudimentary overview of brothel operation in Nevada; the laws and regulations affecting the industry obviously are political footballs, and economic ones as well given the present unemployment situation in Nevada.  When people say that prostitution is legal in Nevada, they’re not wrong — but they’re not completely right, either.  After acquiring this baseline knowledge, answering specific questions and keeping abreast of changes about brothel operation is much easier, translating into  more efficient legal analysis of novel questions.

Cooking like an alpha

By J. DeVoy

Crime and Federalism has been providing recipes for a few weeks now.  They’re good.  But where C&F has addressed substance, we feel compelled to provide style pointers.  Of course, leave it to the Scandinavians, who burned churches and killed one another to prove whose black metal band was most badass, to show us the way:

And who can overlook one of the most manly foods of all, bacon?

Cooking should always be this dramatic.  One takeaway from the “sidepork” video that’s related to cooking: There is nothing more gratifying than eating the raw flesh of a rival organism.  Eat sushi, order your steaks blue, and try to sear as little flavor as possible out of your meats.  The bigger the animal, the better the sensation, because you’re not just eating it – you’re conquering its very existence.

Dispatch from Bizarro World: USPTO to open Detroit Office

By J. DeVoy

From the “putting a band-aid over a gaping wound” file, the U.S. Patent and Trademark Office (USPTO) is bringing more than 100 positions to Detroit, Michigan.  The same Detroit seen on the television show Detroit 187, a timely show about the city’s absurdly high murder rate, and the very same Michigan that has been in a one-state recession since at least 2004.

For patent attorneys and would-be patent attorneys affected by the economy, this is welcome news.  Over the last 5-10 years the boutique patent firm model has been folded into larger general-service firms, consolidating many clients and much of the talent within a comparatively small number of hands.  For those willing to brave USAJobs.com, this may be an excellent opportunity.  Moreover, because it is federal employment, mobility is less of an issue — have any bar license, will travel.

There’s just the minor issue that… oh yeah, it’s in Detroit.  On that basis alone, I, someone who was in the 3L job search, would completely understand passing on the opportunity altogether.  Put the bootstraps rhetoric aside for a moment: This is creating 100 professional-level jobs in a city where the employees are more likely to be killed than anywhere else in the country.  Why not just put it in Mogadishu?  There’s the option of living in the suburbs, but not the truly nice ones if you have any student debt.  Your neighbors will be laid-off autoworker types who will resent the fancy-pants education you received like the people who took ‘der jerbs did, though you have a completely different degree and skill set.  I won’t even address the area’s schools.  The USPTO should have dropped all pretense and just said it was offering examiner jobs in Hell.

In fairness to a federal commitment to Southeast Michigan, this is not a bad idea.  It would have been more attractive and better executed, though, if done in an area entering decline in an effort to stave it off, rather than as a means to resuscitate the dead and rotten corpse of what used to be a city.  Google, for example, has capitalized on the University of Michigan’s intellectual capital by opening an office in Ann Arbor.  Given the level of research and innovation produced by the university, as well as the indisputable quality of its law school, Ann Arbor would have been an ideal choice for the USPTO’s branch office.

I have no desire to see Detroit or Michigan further deteriorate, but a USPTO branch office is not going to be a cure for what ails the city.  As a measure to stop any one area’s economic bleeding, Minneapolis, with its good law firms and four law schools, would have been an ideal choice.  More to the point, it is exciting to see the USPTO taking an expansive view of its role.  The opening of branch offices creates opportunities for those who would add value to the Office, but due to family or other commitments, cannot relocate to D.C.  From the USPTO’s own press release:

The office represents the first phase of the USPTO’s Nationwide Workforce Program, an effort to hire more patent examiners and seek out additional resources and technical expertise in locations across the country

Depending on how the branch offices work and where they are located, there will be interesting district-by-district distinctions in patent litigation.  Districts that had not seen many patent cases may end up with de novo challenges to registration disputes.  A new era of administrative gamesmanship may begin, as the stakes for jurisdictional posturing could be higher than ever.

When feminism and art clash

By J. DeVoy

“Pierce Harlan,” contributor to the False Rape Society, posts an interesting historical account about an 89-year-long feud between feminists and sculpture in New York City.

A teaser from the article:

What was so offensive about this statue? MacMonnies had the audacity to give vice a feminine face, and to depict virtue as decidedly male. The reaction of many women to this statue, from 1922 to today, is eye-opening.

ABA mulls dropping LSAT requirement

By J. DeVoy

Once upon a time, professions had meaningful barriers to entry.  The inability to participate was not a mark of personal failure for the unsuccessful applicant, but an indicia of the profession’s selectivity, a characteristic retained largely for the public’s benefit.  One such guild was the ABA — until the mid 1990s.  Around that time, Janet Reno put a vise grip on its balls with the DOJ, making it enter into a consent judgment that required the ABA reduce the hurdles needed to enter law school.

The aftershocks to this consent decree have been clear for the last decade.  New schools constantly open at a rate of approximately 10 for every one that should actually exist (U.C. Irvine gets a pass).  Rudimentary legal work that, while low value, provided experience to new attorneys, is shipped off to India without requiring India to make a single concession back.  The ABA won’t carte blanche refuse to accredit overseas law schools.  And now, all but knocking down the last piece of battered fence keeping the teeming hordes out of law school, the ABA is considering making the LSAT optional.

On one hand, the LSAT is an arbitrary measure of potential with tangential relation to skills needed to compete in law school.  Like everyone, I too know smart people who bombed it and idiot strivers who did well after studying for three years.  I also know smart people with good scores and dumb people with appropriately bad ones.  As bad as the system may be, there is a need to group people roughly by cognitive ability and order them – something easily done by the LSAT’s 120-180 point scale.  When coupled with GPA, people of similar ability are, on paper, put together and then sorted into the academic institutions that best suit their ability.

To the extent the LSAT has value outside of an applicant’s score, it demonstrates the commitment to study for and take a test that could run an applicant several hundred dollars in expenses.  Law school applications, compared to PhD and even MBA processes, are a joke.  LSAC allows you to upload essays to its site and batch-process them with applications to several schools.  Virtually no school requires more than three essays, including optional ones that address diversity and interest in the school.  Considering that most colleges are bad and a high GPA can be manufactured with a series of intro-level courses, the LSAT is the only difficult thing about applying to law school.

The beneficiaries of this process will be law schools, like the colleges that dropped the ACT/SAT requirement before it.  Thousands more people will pay application fees directly to schools with the unfounded hope that they can gain admission.  If the system works as the starry-eyed applicants hope, either bar exam passage rates will plummet or school dropout rates will greatly increase.  It does not take much of a logical leap to see that the people to whom this prospect would be most appealing are also the most likely to bomb the LSAT, and want to preempt a bad score (despite a policy change a few years ago that allows for multiple retakes without penalty).

Ultimately, the LSAT will still be the best predictor of law school aptitude, even if an objectively bad one, but allow schools to admit more subjectively interesting candidates without this admissions priority being reflected in its LSAT or GPA reporting.  The same kind of Worldcom-style accounting that controls employment reporting for law schools will come to its admissions statistics as well.  Beyond defeating the utility of sites like lawschoolnumbers.com, this decision would make admissions a black box process at schools that choose to go along with it.

By obfuscating student quality, the employment prospects all but 5-10 elite schools would suffer, as employers would not be sure just what quality of students they were getting.  While a law school has time to pay its recent graduates $8/hour to sift through applicants who couldn’t be bothered to take the LSAT and find the touchiest, feeliest application of them all, a law firm does not have that luxury.  Nor does it want to.  The best thing a lawyer can have is information, and for law schools to deprive employers of that vital resource is a disservice to its students.  Nobody, rationally, would buy something of unknown contents or quality.

Breaking: Sony to file TRO against notable hacker

By J. DeVoy

Known in hacker circles as “geohot,” George Hotz, along with Hector Martin Cantero, Sven Peter and the heretofore unnamed John Does 1-100, is facing an ex parte motion for a temporary restraining order by Sony Computer Entertainment America LLC (“Sony”) tomorrow, January 12.  Here’s the filing (A Legal Satyricon Exclusive(?)).

Working together, the defendants allegedly devised a way to circumvent Sony’s technological protection measures.  The defendants have been distributing this information across the internet, instructing others how to circumvent Sony’s protective measures and use counterfeit games on their Playstation 3 devices, according to the motion.

Saliently, Sony alleges that this use of technology – described as “hacking” on page 2 – is in violation of the Digital Millennium Copyright Act (“DMCA”).  The last notable time this issue was addressed came when people were frequently jailbreaking their iPhones in order to add third-party applications not supported by Apple.  During that controversy, the U.S. Librarian of Congress found that jailbreaking the iPhone was a fair use of the technology and exempt from 17 U.S.C. § 1201.  The Librarian of Congress additionally found that the following use was not prohibited by § 1201:

Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:

(i)  The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

But a little about the law, first.  17 U.S.C. § 1201(a)(1)(A) sets forth a comparatively straightforward prohibition:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Fair enough, but most people lack the capacity to do that.  Given the sophistication of Sony’s digital rights management software, this problem would be too small to warrant mention without the internet.  Thus, § 1201(a)(2)(A)-(C) broadens the scope of prohibited behaviors (with similar measures found under § 1201(b)):

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.

And if any ambiguity remained, § 1201(a)(3) is there to sop it up:

As used in this subsection—

(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and

(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

There are factors that determine the exemption of certain technologies and processes from § 1201, found in § 1201(g)(3).

Factors in determining exemption.— In determining whether a person qualifies for the exemption under paragraph (2), the factors to be considered shall include–

(A) whether the information derived from the encryption research was disseminated, and if so, whether it was disseminated in a manner reasonably calculated to advance the state of knowledge or development of encryption technology, versus whether it was disseminated in a manner that facilitates infringement under this title or a violation of applicable law other than this section, including a violation of privacy or breach of security;

(B) whether the person is engaged in a legitimate course of study, is employed, or is appropriately trained or experienced, in the field of encryption technology; and

(C) whether the person provides the copyright owner of the work to which the technological measure is applied with notice of the findings and documentation of the research, and the time when such notice is provided.

Problematically for Hotz, and others may disagree, but this case is distinguishable from the iPhone situation at first glance.  While the jailbreaking of the iPhone allowed for the phone to operate on different networks and use applications available from third parties who did not wish to play the Apple Store’s games.  Allowing the phone to operate on other networks furthered the Congressional goal of interoperability, while allowing users to install third party applications on the phone was not a copyright violation.  Pirating the applications would have been, but properly purchasing or licensing the rights to the software, even if used on a jailbroken phone, is not the same as full blown copyright infringement.

In contrast, this situation finds Playstation 3 users with a device to let them play games for which they possess neither copyright rights or licenses.  This dispute may appear to be about accessibility like the iPhone situation was, but there are no networks to be accessed here, or new applications to be run on the Playstation 3.  From the looks of Sony’s pleading and the surrounding media attention, the primary use of this development is for piracy and use of counterfeit games.  While producers of video games (or “vidjea games,” as my grandmother would say) may be an unscrupulous lot for trying to kill the first purchase doctrine, piracy is still unlawful.  As this situation appears to be wildly different from the iPhone disputes of yesteryear, geohot et al‘s workaround is not likely to be exempt from 17 U.S.C. § 1201.

Twitter looks out for leakers

By J. DeVoy

A common feature of criminal and civil actions against unknown defendants is the need for subpoenas, warrants, or other court orders to ascertain John (or Jane) Doe’s true identity.  For a long time, these have gone unchallenged by companies seeking to mind their own business, avoid the cost and consequences of litigation – or taking a position in general – and the burden of self-defense has fallen onto individual speakers.  Twitter, however, is one of few firms to stand up for its users.

In civil cases, subpoenas to entities with identifying information such as Google, Yahoo, Microsoft (hotmail) and other sites with users’ real names and contact data can result in the notification of a targeted user.  When Google receives a subpoena for information about a gmail or blogger user, Google can inform him or her that it has received a subpoena for his or her information.  This allows the targeted individual to file a motion to quash the subpoena in the district from which it originates, preserving his or her anonymity.

In criminal matters, though, court orders for this data is often accompanied by a gag order.  Because of the more pressing concerns entailed in criminal matters, the concern is that any notification to the target may compromise the investigation.  As a result, the gag order keeps the court order’s recipient from telling the target that it has received a legal request for his or her information.

Recently, Twitter was contacted by federal authorities seeking information about a variety of users connected to Wikileaks, including founder Julian Assange, accused leaker Pfc. Bradley Manning, ex-WikiLeaks spokeswoman Birgitta Jonsdottir and WikiLeaks activist Jacob Appelbaum.  This order for information was accompanied by an above-described gag order, which Twitter challenged.  Twitter won.  This victory enabled twitter to inform individual speakers about the government’s orders for information and move to quash them on their own.

While Twitter could have moved to quash the orders in tis own, this is still a victory for the WikiLeaks crowd.  In an environment where Bank of America, Visa, Mastercard and PayPal have turned against them, Twitter did something to protect their interests.  Even if this legal intervention is saved for special occasions, Twitter’s willingness to step into the legal arena is heartening — especially for an unprofitable service.

Arizona

We are deeply saddened at yesterday’s horrific events in Tucson, Arizona.

The victims were John M. Roll, 63, the chief judge for the United States District Court for Arizona; Gabriel Zimmerman, 30, the director of community outreach for Congresswoman Giffords; Christina Green, 9; Dorothy Morris, 76; Dorwin Stoddard, 76; and Phyllis Schneck, 79.

Judge Roll was the judge who swore me in to the bar for the District of Arizona. We lower the Legal Satyricon flag to half mast for all of the victims.

May Congresswoman Giffords recover quickly, and may the gunman, Jared Lee Laughner, suffer deeply for what he has done.

Beautiful writing

The Mount Soledad Cross case was decided this week. I am currently reading it right now, and will post on it soon.

But I just wanted to share this sentence. It was completely unnecessary to the opinion, which makes it all the more beautiful.

The cross was a marker of an individual grave, not a universal monument to the war dead. And tellingly, the universal symbol emanating from those foreign wars is the poppy, not the cross.

Don’t worry about the context. Or the law. Or the facts. Or the meaning. Pretend it didn’t come from a legal opinion. Just look at it for the beauty of the words, and how they are put together. Its fucking beautiful.

As Goes Iowa…

By Chad Belville, Guest Satyriconista

Iowa, a square state in the Heartland, is one of the few states in the US that allows any two adults of legal age to marry, regardless of gender. Unlike every other state where Supreme Courts found that government should legally recognize the unions of two same-sex adults, the Iowa decision was unanimous and shot down all arguments against limiting legal recognition, including those of tradition, religious bias, and the red herring argument that removing the gender restriction of two adults to enter into a bi-lateral contract will lead to allowing persons to enter into contracts with plants, animals, or upend the entire bi-lateral nature of the marriage license and allow polygamous marriages. The decision was well-written and should be a foundation for all other states to follow.

Immediately following the decision, the usual right-wing activists vowed to reverse it and take those rights away with an amendment to the Iowa Constitution. This requires approval by both House and Senate in two consecutive sessions of the Legislature followed by a popular vote. Democrats in control of both chambers refused to bring the issue to the floor, thus maintaining the equal rights of all adult citizens.
This past November, Republicans took control of the Iowa House of Representatives, who vowed to pass a bill that could eventually send the issue to the voters. The Iowa Senate remained in control of the Democrats and the Leader of the Senate, Mike Gronstal, has vowed not to bring this discriminatory amendment for a vote. Senator Gronstal can effectively keep such an insidious vote at bay for this legislative term but what happens beyond 2012 remains a mystery. His position is that civil rights of minorities should never be subject to approval by a popular vote, and he is absolutely correct.

As more time passes, more people realize gay people are not imported from far-away lands to indoctrinate kindergarteners but instead are their friends, neighbors, and relatives. Attitudes change and the urgency to take away the legal right to not testify against a same-sex spouse fades. These right-wing wackos know that time is not on their side; they know that if they do not pass constitutional amendments right now their battles will be lost as public opinion turns against them. Massachusetts has a similar system of amendment; after passing once and failing the second time through both Houses the issue died off. The fanatics moved on to take away or prevent establishment of rights for gay couples in other states where their shrieking could be effective.

In the State of Iowa, one man really stands in their way. Senator Gronstal’s position on equality and civil rights has painted a target on his back for the social conservatives who wish to turn back time. The National Organization for Marriage will expend millions of dollars to unseat him as punishment for opposing their bigoted beliefs, regardless of whether or not they can ever succeed in passing an amendment through both Houses in consecutive sessions. They led a successful campaign to remove 3 of the 7 Justices from the bench of the Iowa Supreme Court so their threats must be taken seriously.

Over the next two years, tremendous pressure will be put on Senator Gronstal to allow a vote on the floor of the Iowa Senate. Groups that are friendly only to Ozzie and Harriet-style families but not any others will pour money into anti-gay campaigns in an attempt to roll back the rights of a very small minority for the sake of their religious purity. Iowa is a small state, and the money from outside organizations will have a serious effect on the outcome. For now, equality in marriage is the law of the land in Iowa, but it is extremely vulnerable. The old saying is that “So goes Iowa, so goes the country” which used to apply to Presidential primaries but applies here and now to the issue of equal rights in the eyes of government. I have donated directly to Senator Gronstal’s campaign and to OneIowa, the umbrella civil rights organization that is countering NOM’s campaign of bigotry. I will continue to donate all of my equal rights contributions to Iowa organizations because the battle there is so acute and my donation dollars can do the most good. While I support things like the Employment Non Discrimination Act, the outcome of national equal rights activism is not on such a tiny fulcrum as in Iowa. I am asking anyone that will listen to join me in donating to the campaign of Senator Gronstal and OneIowa where small donations WILL make a difference.

http://www.oneiowa.org/

http://mikegronstal.com/

First Recorded SLAPP Sighting in Greece

Systemgraph, an Apple-authorized service company in Greece, has sued one of its customers for complaining.  Natch, there’s a twitter tag devoted to mocking the company.

Who knew Susan G. Komen was so litigious?

By J. DeVoy

Cynics skeptical of large “awareness-raising” organizations like Susan G. Komen for the Cure now have more to question.  Breast cancer is a serious condition – one that co-blogger Tatiana Von Tauber has dedicated much effort to fighting through The Art Cure – that affected 207,090 women last year (prostate cancer affected 217,730 men).  Some of these funds are being used to patrol smaller charities and ensure they don’t infringe on any of Susan G. Komen for the Cure’s 200 registered trademarks. (source.)

Komen’s strategy runs from demand letters to filing oppositions – “hundreds” of them – with the U.S. Patent and Trademark Office when smaller charities try to register their trademarks.  For owners of intellectual property, this is fairly routine.  The long-term consequences of not patrolling and protecting a brand can lead to its devaluation into a generic or descriptive term incapable of protection.  But Komen ostensibly is a charity, rather than a commercial enterprise like Coca-Cola, so people, and especially other fundraisers, expect a more sensitive approach to IP protection.  Those people are wrong:

Mary Ann Tighe[] said the Komen foundation sent her a letter asking her to stop using the phrase “for a cure” in their title and to never use the color pink in conjunction with their fundraising. What bothered her most about the whole ordeal, she said, was that Komen forced her to spend money and time on legal fees and proceedings instead of raising funds for cancer. (source.) (emphasis added)

“For a cure” or “for the Cure,” doing anything “for” any “Cure” is begging for Komen’s attention.  For non-lawyers who just want to help their communities, that can be a harrowing experience.

Sue Prom, who started a small dog sledding fundraiser for breast cancer called “Mush for the Cure” in Grand Marais, Minn., said she was shocked to hear from Komen’s lawyers this summer asking that she change the name of her event or face legal proceedings.

“I had to call the trademark helpline, because I had no idea what I was doing,” said Prom, who runs the annual sled race with her husband and friend. “We pay for the expenses out of our pockets, and we’ve never personally made a dime from it. We have t-shirts, sweatshirts, domain names, posters, stationery, all with ‘Mush for the Cure’ on it. What do we do with all the materials now? How are we gonna defend ourselves? We’re not like Komen.” (source.)

Look at this from the cynic’s perspective: Money going to these small charities is not money that’s going to Komen.  That means less money for salaries, raises, marketing, and other administrative skimming before passing the rest on to breast cancer research.  If Komen is using large urban law firms like the article suggests, it’s also paying approximately $300 per hour for a first-year associate to hunt down and stop this putative infringement.

But the goal of Susan G. Komen for the Cure isn’t to shut down other charities.  In fact, they can be downright reasonable in granting limited releases of their precious intellectual property.

With the help of a team of pro bono lawyers, Kites for a Cure was able to reach a settlement with Komen: They agreed to only use the phrase “for a Cure” in conjunction with the words “lung cancer” to make the distinction clear. But Tighe said they reached a settlement only after many, many months of a free legal team working long hours each day. (source.)

Unfortunately, this conduct leaves people feeling jaded and bitter about an important issue.  Not only does the expenditure of legal counsel reduce the amount of money being used for research, but the resulting negative public relations adversely affects charitable donations to these organizations and possibly in the aggregate.

Protecting brands and not being a jackass aren’t mutually exclusive goals.  Maybe a financial hit will chasten Susan G. Komen for the Cure and teach them that lesson without other charities having to suffer.

H/T: Chuck Ross