If you are going to lie in a UDRP case - at least be smart about it! Hydentra, LP. v. Xedoc Holding SA

The recent domain name decision, Hydentra, LP. v. Xedoc Holding SA, WIPO Case No. D2008-0454 is of interest for a few reasons:

The Best Part - Cybersqatter Busted and PWNED

The Complainant alleged that the domain in question, metart.com, was owned and controlled by a man by the name of Slavik Viner. The Complaint further alleged that given Viner’s standing in the adult entertainment community, he must have known about the Complainant’s trademark and website (www.met-art.com) when he registered the domain in question, www.metart.com.

The Respondent claimed that Mr. Viner was not the owner of the domain name.

In support of its position, the Respondent also files a declaration in the name of Paul Raynor Keating that is said to be given “under the penalty of perjury”. Mr. Keating asserts:

(i) That he is an attorney licensed to practice by the State of California.

(ii) That he is a director of the Respondent and familiar with the ownership of the corporation and that “Mr. Viner is not listed in the records of the corporation as a shareholder”. (source at 5.22)

Perhaps Mr. Viner was “not listed in the records of the corporation as a shareholder,” but does that make the statement honest? Lets keep exploring:

The respondent then continued to deny any involvement by Mr. Viner:

“Mr Viner does not control all or any part of Xedoc. Xedoc is a duly registered Luxembourg corporation. None of its shareholders are US citizens or residents. Its directors are publically listed. They include Mr. Keating who is a director of a number of corporations”. (source at 5.26)

The Panel was provided with various emails between the Respondent and the domain broker.

Some of these are redacted but an explanation of this is given in a footnote. In particular, the Respondent states: “Some documents may have been partially redacted so as to preclude the inadvertent disclosure of highly confidential information such as bank account numbers, user names, passwords and the like.”(source at 5.17)

However, it seems that more than this “highly confidential” information was redacted.

Complainant’s Response to the Respondent’s Supplemental Submissions

5.29 The Complainant contends in this particular submission that notwithstanding the Respondent redaction of certain emails appended to its submissions, it was possible for the Complainant to see what was behind those redactions. In particular, some text was not fully obscured and when the pdf text was copied by it to a Microsoft Word file, the redactions disappeared in their entirety.

5.30 Once these redactions are removed, the Complainant contends that it is apparent that Mr. Slavik Viner was the individual who conducted the negotiations with Sedo in relation to the purchase of the domain name. (source at 5.29-5.30)

Oh SNAP! It is bad enough to be PWNED for lying to a tribunal — it is even worse when you get caught by being so utterly stupid as to not know how to properly obscure text in a PDF document!

5.31 As a consequence the Complainant contends that the Respondent has sought to deliberately hide Mr. Viner’s connection with the Respondent. Further, since the material discloses Mr. Viner’s email address, the Complainant has been able to discover further evidence to show that Mr. Viner frequently frequents and posts on various “adult webmaster forums” and it is “not conceivable that he would not be aware of one of the most well-known adult nude photography sites in existence”. (source at 5.31)

This is why even if you are ethically-challenged, honesty is still the best policy. You never know when a dumb maneuver will reveal your lack of honesty for all the world to see.

Although this is the most interesting part of this decision, there are other issues of interest:

Video Leads to Voyeurism Charges & Civil Suit

What is it with Gainesville and surreptitious video? Back when I was at the University of Florida, some guy got arrested for putting a web-cam in the women’s toilet in a restaurant. No, not just in the bathroom, but in the toilet. The thought of installing it makes me want to barf, let alone the thought of firing up the computer and saying “hey man, come see what I can do!” That guy got arrested.

Of course, the classic version of the Gainesville gander is this: Guy hooks up with Girl. Guy has his buddy hide in the room and videotape the encounter. Guy screws girl and then has circle-jerk with his fraternity brothers.

Not so in a recent story from the Gainesville Sun. This time, the girl wins. She not only caught the guys in their little game, but managed to physically wrench the tape from the guys, called the police, and the guys got 10 days in the Alachua County clink on charges of misdemeanor voyeurism.

Now the girl is suing the guys and the fraternity for invasion of privacy.

And in an unrelated story, another Gator installed software on a girl’s computer so that he could secretly watch her via web-cam.

Word to the wise… this kind of stunt can get you in lots of trouble. If you’re considering videotaping someone, ask for permission. If they say “no,” then just buy your porn commercially, for god’s sake.

Kevin Martin, at it Again with his “Porn Free Broadband Proposal”

One wonders what awful experiences in Kevin Martin’s life must have twisted him into the modern day Comstock. His latest proposal is to provide free broadband nationwide, but the company that gets the bid (under little Kevvie’s proposal) must promise to block all porn from the network. See Artstechnica.

The Alameda Books Case Comes to a Rolling Stop - Adverse Secondary Effects Doctrine Clarified

In 2002, the Supreme Court issued its opinion in Los Angeles v. Alameda Books, 535 U.S. 425 (2002) as the most recent hight court pronouncement on the adverse secondary effects doctrine. This week, a California federal court granted an adult bookstore summary judgment in the remanded case, and in the process gave a clear articulation of the often befuddling standard revealed by the 2002 Supreme Court ruling.

Perhaps foreshadowing Justice Kennedy’s rise to his position as the important Supreme Court swing vote, Kennedy issued a concurrence in Los Angeles v. Alameda Books, which has come to rest as the controlling opinion since he concurred in the judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 (1976).

The Central District of California decision, while not binding on any other court, is the best place to begin any research on the adverse secondary effects doctrine. This case contains the clearest and most recent synopsis of Kennedy’s Alameda Books concurrence, and serves as an excellent cliffs notes version of Los Angeles v. Alameda Books. The trial court summarizes that, unlike the plurality led by Justice O’Connor, “Justice Kennedy emphasized that courts must also consider whether the municipality has advanced a legitimate proposition justifying the ordinance.” Kennedy’s opinion expanded the Renton v. Playtime Theaters standard and placed a greater burden upon municipalities seeking to regulate adult entertainment establishments:

[A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quality and accessibility of speech substantially intact.” Los Angeles v. Alameda Books, 535 U.S. at 449.

The C.D. Calif. recognized that while municipalities may combat adverse secondary effects, it may not do so simply by wiping out speech in order to do so.

[t]he rationale of the ordinance must be that it will suppress secondary effects - and not by suppressing speech.” Id. at 449-50. Justice Kennedy added this requirement to the Renton structure because the plurality’s approach failed to address “how speech will fare under the city’s ordinance.” Id. at 450. Whereas the plurality considered only the narrow question of whether the evidence relied upon by the City reasonably justified the design of the ordinance, Justice Kennedy perceived that [t]his question is actually two questions. First, what proposition does a city need to advance in order to sustain a secondary-effects ordinance? Second, how much evidence is required to support the proposition? (source at 12)

The C.D. Calif notes that the Los Angeles v. Alameda Books plurality merely skipped to the second question, but did not give adequate attention to the controlling first factor.

Justice Kennedy reasoned that the rationale of a secondary-effects ordinance must be that it will reduce the externality costs associated with the speech activity “without substantially reducing speech” because “[i]t is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech.” Id. at 450.

Most municipalities that try to regulate these businesses start with the proposition that they just don’t want them in their communities, and then work backwards trying to apply the adverse secondary effects doctrine. As a result, they are willing to use all kinds of junk science to back up their ordinances — something that even the plurality in Alameda Books would not permit. However, the Central District of California gives us a good outline of Kennedy’s concurrence that shows us that a primarily censorial purpose or effect will not be a permissible tool in the fight against secondary effects.

Any litigant or court (or student taking my final next week) seeking to apply Los Angeles v. Alameda Books should first take a look at this opinion, as it appears that the Central District of California used its vantage point as the court most familiar with the Alameda Books case to give the clearest and most accurate articulation of the often-befuddling 2002 Supreme Court opinion.

Law Professor gets pwned by pornographer

Prof. Barry McDonald is a “First Amendment Professor” who doesn’t seem to know a freakin’ thing about the First Amendment. Not that Pepperdine is a bastion of intellectual prowess, but the fact that this ass clown has a teaching gig anywhere should shock us all.

Kudos to the L.A. Times for giving Mr. John Stagliano this platform upon which he can punk McDonald.

I remember when one of the qualifications to teach something was that you had to have actually done that thing. You want to teach at the motorcycle mechanics institute, you had better have fixed a motorcycle once or twice. McDonald seems to have learned First Amendment law by shoving his head up his ass and shitting in his own eyes. Having shit in your eyes does not qualify you as a “First Amendment expert.”

McDonald, U R PWNED.

And for formality’s sake:

Barry McDonald = AssHat of the week.
Stagliano = First Amendment Bad Ass

Stagliano Video

A representative of the group Bureaucrash wrote me and sent me a link to this video.

I feel like uploading it to my iPod touch, strapping that to a brick, and throwing it through some douchebag’s window.

Unfortunately, I only have one iPod, but there are just so many douchebags with windows to smash.

Indiana Explicit Materials Law Struck Down

An Indiana state law that required vendors of “explicit material” to register with the state and pay a $250 fee has been crushed in a resounding victory for free speech rights in the Hoosier State.

U.S. District Judge Sarah Evans Barker axed the law as overbroad, holding that it applied to lawful, nonobscene, nonpornographic materials being sold to adults.

A romance novel sold at a drugstore, a magazine offering sex advice in a grocery store checkout line, an R-rated DVD sold by a video rental shop, a collection of old Playboy magazines sold by a widow at a garage sale … would appear to necessitate registration under the statute.

Not only were sellers required to register before they could sell books, based entirely upon their content (which evokes shades of nazi Germany), but they were required to pay a $250 tax in order to do so.

It is ‘well established that the First Amendment protects against the imposition of charges, such as a [licensing fee or] tax[], for the enjoyment of free speech rights…&

The court noted that the government can collect fees to defray the cost of legitimate regulations, but “the government may not impose a financial burden on the exercise of speech by virtue of its content.”

The court held that the $250 fee was “clearly content-based” and did not buy any of the State’s arguments that the fee was necessary. “In our judgment, the imposition of such an exorbitant fee is itself a punitive measure collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment.”

What I find incredible is that a licensed attorney, let alone the attorney general of a state, would make an argument that in order to sell books, an American should have to register with the government and pay a “sin tax” on those books. Bravo to Judge Barker.

See Big Hat Books v. Adams.

Hustler Store Challenges Ohio Sex Offender Registration Law

Last year, the Ohio legislature jumped into the fiesta of states trying to outdo each other passing stronger and stronger sex offender registration laws. Ohio’s Adam Walsh compliance act, Senate Bill 10 seems to have stepped over a Constitutional line.

A few of Ohio’s “community values” legislators slipped a little treat into the Adam Walsh bill that they hoped would help drive porn out of Ohio. The law states that anyone convicted of “pandering obscenity” is automatically labeled a “Tier I sex offender,” and must register as one. A Hustler Store employee has challenged the constitutionality of the law on inter alia First Amendment grounds.

The employee, identified as “G.B.,” and her lawyers Louis Sirkin, Jennifer Kinsley, and Scott Nazzarine filed a complaint in U.S. District Court seeking to overturn the law.

From the complaint:

Unlike the remainder of the Adam Walsh Act, Ohio’s automatic Tier I classification for individuals convicted of pandering obscenity is neither intended to protect children or the community at large, nor is it narrowly tailored to serve those objectives. Under the new classification system unveiled in Senate Bill 10, an individual convicted of pandering obscenity involving a minor, a separate offense, falls into the Tier II category for the purposes of registration and verification. Therefore, the requirement that individuals convicted of pandering obscenity be mechanically classified as Tier I sex offenders and subject to all registration, residency, and verification requirements therein, expressly targets obscenity that does not involve minors in any capacity.

To successfully prosecute a defendant for distribution of obscenity, the state must prove that material violates “contemporary community standards.” Even though standards may evolve during the 15 years of registration for a Tier I offender, the law does not provide for any review of the offender’s status.

Attorney Jennifer Kinsley had this to say in a LS exclusive interview:

It is unfortunate that a single mother who is just doing her job could inadvertently wind up being labeled as a sex offender. She should not be grouped with actual child predators, with her name, picture, and residential address on websites all across the country, all for making an incorrect assumption as to the community standards of the county in which she works.

When legislators scramble over themselves to pass laws named after little kids, you wind up with laws being pushed by hysteria — not by logic. Unfortunately, in passing this version of the Adam Walsh Act, the Ohio legislature appears to have mixed in a bit of censorship for good measure.

Fortunately, G.B. and the First Amendment are in great hands. Louis Sirkin is widely recognized as one of the living greats of the First Amendment bar, and Kinsley and Nazzarine are two of its rising stars.

Using Google Trends to Prove a Point about Porn

In an obscenity trial, in order for a prosecutor to lock up an American citizen for making “dirty movies” or “dirty writings” or “dirty pictures,” he (or she) must convince the jury that the material violates “community standards.” Unfortunately, that tends to be easier than you may think, for jurors will often substitute their personal approval or disapproval of content for their judgment about what the community might think. And, what the community thinks in private is very different from what the community will admit in public.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

The Miller test was written in 1973 — long before the advent of the Internet. Accordingly, it doesn’t seem to really fit in with the Internet. When you apply “community standards” to your local bookstore — well, it seems relatively simple to apply the Miller test. However, when looking at a global medium, the test starts to lose some of its logical wheels. For a good discussion of this issue, see Lawrence G. Walters and Clyde F. DeWitt, Obscenity in the Digital Age, the Re-Evaluation of Community Standards.

A while back, I started playing with Google Trends while fighting an examining attorney’s determination that one of our clients’ trademarks was “immoral and scandalous,” and that a “substantial composite of the internet-using public” would think so. That research wound up in this brief to the examiner, and this brief to the TTAB.

Essentially, Google Trends lets you find out how often users are searching for certain terms. I compared our client’s trademark to common search terms. Read the briefs for details.

This tool proved itself useful once again in a recent obscenity trial, as reported on in the New York Times.

Judges and jurors who must decide whether sexually explicit material is obscene are asked to use a local yardstick: does the material violate community standards?

That is often a tricky question because there is no simple, concrete way to gauge a community’s tastes and values.

The Internet may be changing that. In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.(source)

By using Google Trends, Attorney Walters hopes to show the jurors that their local area might not be as conservative as they think.

“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” said Mr. Walters, the defense lawyer. Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” he added.

See What’s Obscene? Google Could Have an Answer for the whole story. Google… the duct tape of the internet.

Elder Porn in Japan

CNN reports on a booming niche in Japan — elder porn.

Besides his glowing complexion, Shigeo Tokuda looks like any other 74-year-old man in Japan. Despite suffering a heart attack three years ago, the lifelong salaryman now feels healthier, and lives happily with his wife and a daughter in downtown Tokyo. He is, of course, more physically active than most retirees, but that’s because he’s kept his part-time job — as a porn star.

While this might seem curious or even offensive when we consider traditional notions of what is “sexy,” the fact is that there is a huge market for adult entertainment featuring “real people.” Audiences like talent that they can identify with. With Japan’s aging population, it is no wonder that elder porn is gaining popularity there.

As an interesting side-note, if any American porn producer wants to use Mr. Tokuda in an adult film, under 18 U.S.C. Sect. 2257, they will need to keep detailed records — to prove that he is actually over 18 years of age. (See this post for a discussion of Section 2257) Without those records, the producer can go to prison for up to five years.

Land of the free…

Note: This post originally linked to a Time Magazine article, but I am boycotting Time until they fire Kathleen Kingsbury. (See here)