Alleged Copyright Troll’s Day in Court

No matter your opinion on U.S. copyright law, it is the law of the land. Copying a work without consent may be unlawful and subject the copier to damages. On this blog, and others, we’ve seen instances of legitimate and illegitimate copyright claims.

An entirely separate issue is the manner by which copyright claims are enforced. In the U.S. District Court for the Central District of California, there have been concerns raised regarding certain attorneys, their firms, and (as the judge termed it) their “shell” companies. Yesterday, a hearing was held at which certain non-appearing attorneys affiliated with Prenda Law were invited to attend, as well as an attorney formerly associated with that firm. Ken White at Popehat attended and his writeup is here: http://www.popehat.com/2013/03/11/brett-gibbs-gets-his-day-in-court-but-prenda-law-is-the-star/

This is a case in which the Plaintiff even dismissed the case against the Defendant, but the Court is exploring whether there was fraud committed by the Plaintiff or its counsel in consolidated and related matters. Hearings like this generally do not occur, and apparently the non-appearing attorneys affiliated with Prenda appeared by counsel, rather than in person, which may have violated the court’s order (although they made a last-minute filing arguing they could not properly be compelled to attend). What is particularly interesting is that the subject lawyers and Plaintiffs have been intimately involved with the development of how Bittorrent claims are prosecuted, including early discovery orders, mass joinder, etc. Of note, it has become practice for a content provider to sue John Does, because all that is available is the IP address used to access a covered work. A subpoena is issued to the ISP, who may provide the identity of an account holder. Common practice is then to make a demand on the account holder or amend the complaint to identify them by name. Of concern by this court and others is that the account holder may not be the infringer. A content provider may need to engage in further discovery and investigation to find out who may have had access to the internet connection prior to naming the person as defendant. Recent rulings have suggested that just as you cannot simply sue the person who owns a telephone for a call that may have given rise to liability, you must sue the caller, you cannot simply sue the internet account holder. This court has questioned the Plaintiff’s and its attorneys’ efforts in identifying the infringer. Additional procedural concerns are raised in this case over who financially benefits in the litigation and how content has been transferred.

The docket in Ingenuity 13 v Doe, 2:12-cv-08333 is here:

http://ia601508.us.archive.org/28/items/gov.uscourts.cacd.543744/gov.uscourts.cacd.543744.docket.html

Required Reading – Jordan Rushie on Wisdom

Jordan Rushie writes about what a moron he was as a young associate in, Hubris.

I must confess some bias here. I represent Rushie in one little matter. I am co-counsel with him on multiple matters. But, this piece is why I am proud to call him a colleague. Achievements are great. I have had enough of them to know that they sometimes come from perfectly executed plans. But, I also know that achievements are sometimes the result of bad plans, bad decisions, and dumb luck.

A lawyer earns my respect more when he tells me about his fuck-ups and what he learned from them. Rushie has my respect.

Rushie’s post is a lesson that you can’t learn in law school — not because law school can’t teach it, but because law schools REFUSE to teach it.

David McKee, Are you a Tool?

I don’t know, but I think you might be learning a thing or two about the Streisand Effect.

Apparently, Dennis Laurion did not like Dr. McKee’s bedside manner, reviewing him thusly:

When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!

Case was dismissed as being pure opinion, but reinstated on appeal.   It is now before the Minnesota Supreme Court.  Regardless of the outcome, gajillions more have seen the negative review.  Lawyers should counsel their clients on the potential of the Streisand Effect when handling cases such as this.

Source:  http://www.startribune.com/lifestyle/health/168552176.html?refer=y

What What, Fair Use on a 12(b)(6)?

By J. DeVoy.

“What what, in the butt?” was the question recently before justices Easterbrook, Cudahy and Hamilton in the appeal of Brownmark Films LLC v. Comedy Partners from the Eastern District of Wisconsin. (Opinion)  At issue was whether South Park’s interpretation of Samwell’s “What What In The Butt,” as performed by Butters in the episode “Canada on Strike,” was non-infringing fair use under 17 U.S.C. § 107.  More interestingly, though, was that Comedy Partners raised the defense on a 12(b)(6) motion to dismiss – without any discovery or opportunity therefor (see FRCP 56(d), formerly Rule 56(f)).  The Eastern District of Wisconsin agreed that South Parks’ rendition of What What In the Butt was fair use, and dismissed the Complaint at the pleading stage.

Brownmark did not include the original What What In the Butt video, nor South Park’s adaptation, in its Complaint.  South Park Digital Studios did, however, attach both videos to its motion to dismiss, relying on the incorporation by reference doctrine.  On appeal, the Seventh Circuit resolved this issue in South Park’s favor:

Because the claim was limited to the production and distribution of a single episode, the district court was correct to rely solely on the two expressive works referenced in Brownmark’s amended complaint and attached to SPDS’s motion, as well as the allegations in the complaint, to decide on the fair use defense.

SPDS relies on the incorporation-by-reference doctrine to maintain that reliance on the attached works does not violate Rule 12(d), which requires that Rule 12(b)(6) or 12(c) motions containing materials outside of the pleadings be converted into motions for summary judgment. It is well settled that in deciding a Rule 12(b)(6) motion, a court may consider “documents attached to a motion to dismiss . . . if they are referred to in the plain- tiff’s complaint and are central to his claim.” Wright v. Assoc. Ins. Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). In effect, the incorporation-by-reference doctrine provides that if a plaintiff mentions a document in his complaint, the defendant may then submit the document to the court without converting defendant’s 12(b)(6) motion to a motion for summary judgment. The doctrine prevents a plaintiff from “evad[ing] dismissal under Rule 12(b)(6) simply by failing to attach to his complaint a document that prove[s] his claim has no merit.” Tierney v. Vahle, 304 F.3d 734, 738 (7th Cir. 2002). (Op. at 5)

But the Seventh Circuit noted a curious wrinkle to this analysis:

While the application of this doctrine to the present case would seem to allow SPDS’s action, no court of appeals has ruled that the content of television programs and similar works may be incorporated by reference. Several district courts have concluded that the doctrine does apply to such works. See, e.g., Burnett v. Twentieth Century Fox, 491 F. Supp. 2d 962, 966 (C.D. Cal. 2007); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1131-32 (C.D. Cal. 2007); Daly v. Viacom, 238 F. Supp. 2d 1118, 1121-22 (N.D. Cal. 2002). And we think it makes eminently good sense to extend the doctrine to cover such works, especially in light of technological changes that have occasioned widespread production of audio-visual works. The parties, however, did not brief this issue, and so we reserve the resolution of the question for a later date. (Op. at 5-6)

Ultimately finding that the Eastern District of Wisconsin was within its jurisdiction to grant dismissal, the appellate court engages in a relatively truncated fair use analysis under the four factors of 17 U.S.C. § 107.  The reason for the brevity?

Since Brownmark never opposed SPDS’s fair use argument in the district court, we consider the argument waived. (Op. at 9)

Ouch.  And, since it’s the Seventh Circuit, that means automatically shifting attorney’s fees and costs under 17 U.S.C. § 505.  What What In the Butt, Indeed.

Perhaps the overlooked gem of this opinion is that the Seventh Circuit has forever enshrined my favorite South Park meme: Internet Money.

The South Park Elementary school boys—Cartman, Stan, Kyle and But- ters—decide to create a viral video in order to accrue enough “Internet money” to buy off the striking Canadians. The boys create a video, “What What (In The Butt),” (WWITB) in which Butters sings a paean to anal sex. Within the show, the video is a huge hit, but the boys are only able to earn “theoretical dollars.”

…

As the South Park episode aptly points out, there is no “Internet money” for the video itself on YouTube, only advertising dollars that correlate with the number of views the video has had. It seems to this court that SPDS’s likely effect, ironically, would only increase ad revenue. Any effect on the derivative market for criticism is not protectable. Id. at 592. And the plaintiff has failed to give the district court or this court any concrete suggestion about potential evidence indicat- ing that the South Park parody has cut into any real market (with real, non-Internet dollars) for derivative uses of the original WWITB video. (Op.)

Of course, when I use “Internet Money,” it refers to settlements from BitTorrent infringers and others who pay for their wrongdoing.  But, it is evocative of the constant challenge of monetizing the digital ether of the World Wide Web.

U.S. v. Heicklen Explained – a Win for the Wizened and Worried

By Larry Sutter, Special to the Legal Satyricon

The Southern District of New York recently issued its order dismissing the United State’s case against Julian Heicklen.  The order is available here.  While this is an interesting case about the protection of speech advocating jury nullification, what is even more interesting is the story behind it – from both the people involved to the affect it has had on New York’s legal community.

The Defendant: An 80-year-old retired chemistry professor who believes in freedom and liberty. Like, a lot. He stands in front of the federal courthouse in lower Manhattan handing out pamphlets advocating jury nullification. Calling him “cantankerous” is an understatement that does violence to the language: With his counsel’s motion to dismiss still pending, he addresses a letter to the federal judge who has his case firing his court-appointed standby federal defense counsel–a letter in which the salutation is “Dishonorable Judge Wood,” and the closing is “yours in disgust and hatred.” Among other requests, the letter sought the indictment of the District’s US Attorney.

As part of the investigation, the US Attorney sends an undercover agent posing as a juror to talk to the professor – who advises him he has the right to decide both the law and the facts in the interest of justice. The professor is then indicted for violating the federal jury tampering statute, 18 U.S.C. § 1504. Ironically, such a charge does not merit trial by jury.

The federal defenders, who moved to dismiss the case on every possible ground before they were fired, including § 1504’s vagueness and overbreadth in violation of the First Amendment. But even in their briefs, the defenders refer to their client as a “shabby old man distributing his silly leaflets.”

New York’s legal community has drawn its battle lines over the case, spawning numerous articles on our precious heritage of freedom.  Prominent attorneys forecast that mere anarchy would be loosed upon the world—as two eminent lawyers argued last December in The New York Law Journal:

“Pause for a moment to imagine how this would work in practice with cases involving politically heated and classically divisive social issues….Runaway jury verdicts would amount to little more than a random 12-person vote….Talk about an engraved invitation for chaos—indeed, anarchy.”

Indeed? Indeed! Which the prosecutors were glad to echo. Last month, an Assistant U.S. Attorney characterized Heicklen’s advocacy as “an absolute threat to the system,” during a hearing on the defendant’s motion to dismiss.

But then comes a noble-visaged Portia of a judge to render justice between these parties.  Filleting the statute as skillfully as the countermen at Zabar’s wield their razor-sharp knives upon the $28-a-pound Nova Scotia salmon, Judge Kimba Wood rules that because the statute—giving effect to all its language, not allowing any of its provisions to be condensed or duplicated—only forbids attempting

“to influence the action or decision of a juror upon an issue or matter pending before that juror or pertaining to that juror’s duties by means of a written communication made in relation to a a specific case pending before that juror or in relation to a point in dispute between the parties before that juror.” (Emphasis the Court’s.)

Therefore, generalized exhortations—as opposed to urging the juror to throw a specific case—are OK. (source)  And you don’t even have to get to all those tricky First Amendment issues, do you?

Nevertheless almost half the decision is spent not getting to the First Amendment issues. In particular, the judge found that the danger, whatever it might be, in free-floating jury nullification advocacy wasn’t clear or present enough to pose “a danger to the administration of justice.” Why shouldn’t the jurors respond as sympathetically to the judge’s instructions to follow the law as she gives it as they might to Heicklen’s exhortation to disregard it?  Indeed, Judge’s Wood statutory interpretation reached the same result Heicklen’s counsel urged in their overbreadth argument, namely, that to convict Heicklen for what he was doing would be to punish protected First Amendment activity, viz.,  speech not directed to a specific case or matter before a particular juror.

Heicklen is said to be pleased and is reported to be planning to resume his post Monday in Federal Plaza and, afterwards, go to lunch with his supporters. Dutch treat, of course. It’s reported (on Scott Greenfield’s Simple Justice blog) that his email to this effect was signed, “one small step for a shabby old man, but a giant leap for justice and our country.”

ABA Journal Magazine Tackles Righthaven in May 2012 Issue

By J. DeVoy

Remember Righthaven?  While it has been stripped of its intellectual property and claims against it keep piling up, the fat lady has not yet sung – and the ABA has noticed.

The May 2012 ABA Journal’s cover story is the aftermath of Righthaven.  Eriq Gardner, who Righthaven once sued for posting an image of an exhibit from one of its court pleadings, examined both sides of the copyright enforcement equation.  Marc Randazza and Ron Coleman are quoted in the lengthy piece, which centers on Righthaven but touches on the RIAA’s litigation campaign, the mass-joinder suits brought by porn studios, and the realities of plaintiff-side copyright enforcement.

Righthaven’s CEO, Steven Gibson, is quoted with the following observation:

“One of the questions for the article is why is it so difficult for copyright owners to hire competent copyright litigation counsel?” he said. “There’s not a lot across the country. Definitely not like personal injury lawyers. You can’t go into the phone book and find a listing. Why is it this difficult? Why isn’t there more copyright litigation?”

Yet, even with Righthaven.com no longer belonging to Nevada’s Righthaven LLC, he is optimistic about the venture’s future.

“Righthaven remains the vehicle for dealing with infringements on the Internet,” Gibson told me recently.

A motion by the EFF seeking personal sanctions against Gibson at a rate of $500 per day is still pending as of this writing.

The problems of online copyright infringement and enforcement are real, and few would argue that there is not some useful role of copyright in society.  These controls, however, cannot and should not completely gobble up protected speech – especially since the 1976 Copyright Act codified fair use in 17 U.S.C. § 107.  Even allowing breathing space for hilarious derivative works, much work needs to be done with respect to fighting infringement, even as the law for doing so remains in flux.

Potential DMCA Game Change in 2d Circuit Ruling on Viacom v. YouTube

By J. DeVoy

The Second Circuit released its opinion in Viacom v. YouTube today, partially vacating  the Southern District of New York’s order granting summary judgment in favor of the online video service.  Ultimately, the case is to be remanded to the district court for fact-finding on whether YouTube had knowledge of infringement, had the right and ability to control infringing content, and YouTube’s willful blindness.

Almost as soon as the Court starts writing, it delivers the gut punch:

Although the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. We further hold that the District Court erred by interpreting the “right and ability to control” infringing activity to require “item-specific” knowledge. (Opinion at 2)

While the Second Circuit held that YouTube qualified for DMCA protections under § 512(c), the easy work of the opinion ends there.  What follows are a range of questions that the Second Circuit believed needed to be supported by more facts – potentially changing the landscape for user-generated content.

The Second Circuit is not interested in relegating the operators of user-generated content services to constantly policing their sites for infringement, and believe that § 512(c)(1)(A) does not require this conduct:

Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove. Indeed, to require expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation to “take commercially reasonable steps” in response to a generalized awareness of infringement. Viacom Br. 33. Such a view cannot be reconciled with the language of the statute, which requires “expeditious[ ]” action to remove or disable “the material” at issue. 17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added). (Opinion at 16)

However, this does not absolve YouTube for potential liability for red flag knowledge.  Since the internet has changed much since the DMCA’s enactment, the examples of red-flag knowledge articulated by Congress are largely inapplicable now.  Those availing themselves of these protections hold up the examples of red-flag knowledge described by the Senate (e.g., domain names with words like “illegal,” “stolen” or “pirate” in them), while copyright enforcers have advocated for a broader standard of red flag knowledge, along the lines of “I know it when I see it.”  Seeing this hole in the law, the Second Circuit tried to reconcile a question a question that has befuddled many a copyright lawyer: What the hell, exactly, is red flag knowledge?

The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement. (Opinion at 17-18)

Actually proving red flag knowledge is a factual question.  It is also part of the reason the case is remanded to the S.D.N.Y.  Indeed, the Court of Appeals spends pages reviewing and discussing the record evidence it believes creates a question of fact as to whether YouTube had actual knowledge of infringement on its service. (Opinion at 19-22)  The same is true of willful blindness, the equivalent of knowledge in copyright cases. (Opinion at 19-24)

As to the “right and ability” to control user-uploaded content under § 512(c)(1)(B), the Second Circuit also remanded this issue to the District Court for further fact-finding.  The Court of appeals rejected both interpretations of this standard as advanced by the parties – for Viacom, a codification of common law vicarious liability standards; and for YouTube, a requirement that the provider must know of the particular case before it can control the infringement. (Opinion at 19-25)  The court agreed that the right and ability to control under § 512(c)(1)(B) requires more than the mere ability to remove or block access to materials on the defendant’s website – but how much more, or what that “more” might be, is unclear – other than the fact that it does not require specific knowledge.

Another issue remanded to the District Court is the question of YouTube’s syndication of its videos to others:

In or around March 2007, YouTube transcoded a select number of videos into a format compatible with mobile devices and “syndicated” or licensed the videos to Verizon Wireless and other companies. The plaintiffs argue—with some force—that business transactions do not occur at the “direction of a user” within the meaning of § 512(c)(1) when they involve the manual selection of copyrighted material for licensing to a third party. The parties do not dispute, however, that none of the clips-in-suit were among the approximately 2,000 videos provided to Verizon Wireless. In order to avoid rendering an advisory opinion on the outer boundaries of the storage provision, we remand for fact-finding on the question of whether any of the clips-in-suit were in fact syndicated to any other third party. (Opinion at 31-32)

The court rounds out its opinion by considering YouTube’s repeat infringer policy and other software tools used to avoid the posting of infringing content.  Neither are sufficient to exclude YouTube from the safe harbor provisions of § 512(c).  Because more fact-finding is needed, the Court of Appeals declined to determine whether the trial court erred in denying Viacom’s cross-motion for summary judgment.

While not likely to become an Alameda Books, this litigation is far from over.  Even if Youtube had won, Viacom likely would have petitioned the Supreme Court for certiorari.  Based on the Grokster case, there is some likelihood the Supreme Court would have granted it.  But by sending the case down to the S.D.N.Y. yet again, another appeal to the Second Circuit is all but ensured.

Latest Righthaven Developments

The Gametime IP blog discusses them here.

Lawyer billing rates

Law.com conducted a survey of lawyers’ billing rates.

Nationwide, partners averaged $661 per hour, returning to their 2009 average after a dip to $639 per hour in 2010.

Average for associates last year was $445 per hour, up six bucks from the year before. (source)

I gotta raise my rates….

Blasting people on twitter – not cyberstalking!

By J. DeVoy

Pundits were concerned earlier this year when the U.S. Attorney for the District of Maryland brought a criminal action against William Lawrence Cassidy.  His alleged crime?  Posting 8,000 harassing twitter messages about Alyce Zeoli, a buddhist leader in Maryland.  The Court dismissed the Government’s case, as Cassidy’s anonymous speech addressed a topic accorded the highest constitutional protections: Religion.

Admittedly, some of the messages were witty.  Take this poetry, for instance:

Ya like haiku? Here’s one for ya. Long limb, sharp saw, hard drop

Some were more esoteric, such as “A thousand voices call out to (Victim 1) and she cannot shut off the silent scream,” while others got to the point: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

The Court’s Order  is a solid win for the Defendant – and free speech.  Within it, the Court found that 18 U.S.C. § 2261A(2) is unconstitutional as applied to the defendant.  Not only does the First Amendment kick ass, it’s now a tool, albeit a slow-working one, against the federal government’s overcriminalization of daily life.

I strongly encourage reading the whole Order, but most importantly, there’s this:

However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls “are targeted towards a particular victim and are received outside a public forum.” United States v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004). Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim. See id. at 378 (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be “annoying” to a passerby did not serve a compelling governmental interest). (emphasis added)

H/T: EFF

More on Nevada’s anti-SLAPP law

By J. DeVoy

Can Nevada’s anti-SLAPP statutes, for their many flaws, thwart a privately brought federal claim?  Why yes, they can.

Anti-SLAPP laws come in two flavors: procedural and substantive.  Substantive anti-SLAPP laws, such as the previously proposed federal anti-SLAPP law, provide qualified immunity for protected statements and create or crystallize the speaker’s rights.  In contrast, procedural anti-SLAPP laws provide a mechanism to dispose of abusive litigation – normally with a Motion to Dismiss.  The extent of these procedural protections vary from state to state; Massachusetts’ procedural anti-SLAPP law, for instance, cannot be applied in Federal Court. Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003).  Nevada’s anti-SLAPP statute, however, does not preclude its application in Federal court.

Like Massachusetts, Nevada’s anti-SLAPP laws are procedural, and is not restricted to use against state law claims. John v. Douglas County Sch. Dist., 125 Nev. Adv. Op. 55 (Nev. 2009), cert. denied, 130 S. Ct. 3355 (2010).  The facts of that case, which warrant reading because of how strange they are, hinge upon a school district employee being suspended for harassing other employees and video taping special ed students, recording sexually explicit narrations to the videos that were then shown to others.  Subsequent misconduct with confidential student records led the district to terminate John.

After exhausting EEOC remedies, John sued the school district in Nevada’s state courts, alleging violation of federal employment discrimination statutes.  The school district moved to dismiss John’s Complaint under the anti-SLAPP statute.  As John’s action was based on the school district exercising its right to communicate with the EEOC about a matter pending before it that concerned the district, the remedies in Nevada’s SLAPP statute were available. NRS 41.637.

The Nevada Supreme Court upheld the District Court’s dismissal. (N.B. – Nevada has no intermediate appellate courts.)  The state supreme court expressly found that the anti-SLAPP statute can apply to substantive federal claims, as it “does not undermine any important, substantive federal interests.”  Moreover, the court stated that Nevada’s anti-SLAPP statute is “procedural and neutral” in nature.

Nevada’s anti-SLAPP statutes still are limited to an unfortunate degree.  However, the range of claims they can defend against – in the rare event the statutes can be applied – is quite broad.  How this would play out in Federal court remains to be seen, as it creates a tension between Rule 56, state law and the Erie doctrine.

Nevada’s Anti-SLAPP Statute Kind of Sucks

By J. DeVoy

Nevada is something of a curiosity in terms of litigation and its laws.  It has nearly comprehensive regulations for brothel operation, yet very little binding precedent.  I recently did some broad research on receivership of a Nevada company for a public filing, and netted fewer than a half-dozen cases – in both federal and state courts – in the state’s entire history.  This has been common among most legal issues in Nevada.  Compared to other states, Nevada does not have much precedent going for it.  Consequently, legislative history in Nevada is heavily emphasized in the courts and especially on matters of first impression – which arise far more often than one would believe.

Another twist on law practice in Nevada is that the state desperately tries to differentiate itself from California – despite adopting many California tests with respect to spousal asset division.  So it is not surprising that Nevada’s anti-SLAPP statute is a pathetic shadow of California’s.

Nevada’s anti-SLAPP laws are found in NRS 41.635-70.  They aren’t all bad, either: The attorney general may intervene on behalf of a SLAPPee and file a special motion to dismiss under the anti-SLAPP law. NRS 41.660.  The special motion is treated as a motion for summary judgment – operating as an adjudication on the merits – and discovery is stayed while it is pending. Id.  The statutes requires the court to award reasonable attorney’s fees to the prevailing anti-SLAPP movant, and creates a separate cause of action for the prevailing movant, allowing him or her to bring an action for recovery of compensatory and punitive damages, and attorney’s fees in that action, against the SLAPPer. NRS 41.670.

Here’s the rub: The statute can only be used against cases designed to silence “good faith communication in furtherance of the right to petition.” NRS 41.660(1).  Good for Nevada to protect political speech and all, after its been established in everything from Connick v. Myers and Boos v. Barry to the “God Hates Fags” case (Snyder v. Phelps) to be the most important type of speech one can make, but there are a lot of qualifications in that sentence.  What is a  ”good faith communication in furtherance of the right to petition”?  NRS 41.637 has the answer:

“Good faith communication in furtherance of the right to petition” defined.  “Good faith communication in furtherance of the right to petition” means any:

1. Communication that is aimed at procuring any governmental or electoral action, result or outcome;
2. Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity; or
3. Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law

which is truthful or is made without knowledge of its falsehood.

While this is important speech to protect, finding a case where it can be used is like threading a very small needle.  It is also a bit discouraging that Nevada had to make it clear to its citizens – and mostly its political operatives and public officials – that such conduct is disallowed.

Broadening the scope of Nevada’s statute would still encompass these types of speech.  But it would make the anti-SLAPP useful for actually preventing SLAPP suits.  Nevada did introduce its anti-SLAPP statute in 1993 and last amended it in 1997, before the dawn of mass internet access era (where every petty asshole with $500, delicate sensibilities and a desperate or unethical lawyer is a defamation plaintiff), which explains the limited view of “public participation.”

Nevada’s anti-SLAPP statutes have some very good provisions.  The SLAPP defendant can move on his or her own, or the AG can intervene (largely because the cases are explicitly political under the current regime).  Reasonable attorneys’ fees are awarded independent of the Court’s discretion, and the prevailing anti-SLAPP movant has his own cause of action for compensatory damages, punitive damages, and attorney’s fees.  While that’s not quite as iron-clad as California’s bond requirement, that’s pretty impressive.  But the scope of application is just pathetic.  California’s anti-SLAPP statute covers  any “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” which includes:

(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,

(2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,

(3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or

(4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Would it kill Nevada to integrate C.C.P. § 425.16(e)(3) and (4) into NRS 41.637?  Mindful of California’s creeping influence in Nevada, there is not a reason to borrow strictly from that state when plenty of others have good anti-SLAPP statutes.  Oregon and Washington have them as well.  More analogous to Nevada in character is Texas, which recently unleashed its own anti-SLAPP statute protecting:

1. the right of free speech
2. the right to petition; or
3. the right of association

Tex. Civ. Prac. and Remedies Code § 27.005(b).  Expansive and detailed definitions of what these terms embrace can be found in Tex. Civ. Prac. and Remedies Code § 27.001.  An overview of the new Texas law is available at the Citizen Media Law Project.

There are good models for Nevada to draw from in enhancing its anti-SLAPP statute without blindly deferring to California.  I will readily admit that Nevada is not a first-teir state like California, New York or Massachusetts (the latter two of which have mediocre-to-abysmal anti-SLAPP statutes), but it is a global and national tourism destination.  Why should the state compete only to be the best in hotels and gambling, especially when Macau’s rise threatens that position?  Nevada can compete in other areas as well, including the laws it enacts.  Nevada already has a business-favorable legal climate – why not a speech-favorable one as well?

It is not seriously disputed that SLAPP suits arise from all sorts of things other than speech about pending government issues.  Website owners or administrators covered by 47 U.S.C. § 230 get sued for third parties’ statements and must pay the cost of defense.  Whiny, entitled olds constantly sue people for commenting – often accurately – on their own disgusting or unlawful public deeds.  Yet, the victims of those suits must bear the cost of defense because their speech did not relate to some pending agriculture bill.

While copyright infringement is of a different genus than defamation, one must wonder whether the 200+ Righthaven lawsuits filed in Nevada would have been resolved differently if the state had a stronger anti-SLAPP statute.  Many of the defendants used the news articles in question to discuss political events, or public interest items; in fact, the District of Nevada has never denied a properly raised argument that the defendant’s use of the content was non-infringing fair use.  Combined with Righthaven’s problems with standing, as Courts have repeatedly held that it did not have sufficient rights to sue, what other purpose could its lawsuits serve?  If the statute were more broadly constructed, it could have challenged these sham copyright lawsuits – requiring Righthaven to pay the victorious defendant’s attorneys’ fees and giving the successful movant a new cause of action against Righthaven, allowing the plaintiffs’ bar to jump in the fray. (Query whether Righthaven would pay any such judgments.)

To broaden the scope of the anti-SLAPP statute, some compromises may have to be made.  The separate cause of action might have to be scrapped in favor of the SLAPP filer simply having to post a bond for the anti-SLAPP movant’s fees, which would be awarded upon a successful motion.  Perhaps a Texas-style “loser pays” model would be approached.  The provision allowing the Nevada Attorney General likely would have to be scaled back to apply only in political cases (rather than general matters of public interest) so as to avoid issues with the government picking sides.  Perhaps none of these things would have to change.  The scope of protection, however, absolutely must.  As it stands now, Nevada’s courts are begging to be used as an abusive litigation hell-house against those who dared to speak freely.

Righthaven loses in Colorado

By J. DeVoy

Yesterday, the District of Colorado dismissed Righthaven LLC’s copyright infringement lawsuit against Leland Wolf and the It Makes Sense Blog in Righthaven LLC v. Wolf et al., Case Number 1:11-cv-00830.  The Wolf case was the only active matter in Righthaven’s 57 cases filed in the District of Colorado, as the more than 35 cases that were ongoing when Wolf moved to dismiss Righthaven’s lawsuit were stayed pending the outcome in Wolf. (The approximately 25 other suits presumably settled.)  Leland Wolf and the It Makes Sense Blog were represented by Randazza Legal Group and Contiguglia / Fazzone P.C.

The Court’s Order, authored by Judge Kane, is available here.  Judge Kane summarizes his Opinion and Order in this opening paragraph:

The issue presented in this case, whether a party with a bare right to sue has standing to institute an action for infringement under federal copyright law, is one of first impression in the Tenth Circuit. After considering the parties’ written and oral arguments and analyzing the constitutional underpinnings of federal copyright law, the legislative history of the 1909 and 1976 Copyright Acts, and the meager precedent available from analogous situations in other Circuits, I hold that the answer to that question is a forceful, yet qualified, “no” and GRANT summary judgment to Defendant Leland Wolf. Furthermore, pursuant to 17 U.S.C. § 505, Righthaven shall reimburse Mr. Wolf’s full costs in defending this action, including reasonable attorney fees.

Apparently Judge Kane has ordered Righthaven to show cause by October 7 why its other cases should not be dismissed in the wake of this ruling. (Source.)

More coverage available at:

Vegas Inc.

Ars Technica

the EFF’s DeepLinks Blog

Techdirt

Technology & Marketing Law Blog

 

 

Email to an asshat about a free speech issue

I’m on a few list servs. I won’t say which one this originated on. But, lets just jump to what I said:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

I agree with all the nice things that have been said about Chemerinsky here, but his balls shriveled up into raisins over this event. (It took place at UC Irvine).

The response: It is “bullshit,” and “anti-semitic.”

Lets unpack that…

Bullshit? Maybe. He, you, everyone is entitled to their own opinion. I might even change mine, and one day repudiate my own opinion as bullshit.

Anti Semitic?

Don’t you love that one?

Since I’ve been a bit off my game blogging lately, I thought I’d mail one in here and just straight up share what I wrote in response to that.

Dear ______________,

Today, 11 men were convicted of a “crime.” The “crime” was “disrupting a speech.” The speech they disrupted was that of the Israeli ambassador. (source)

The “disruption” lasted about 8 seconds per “criminal.” In total, it was about a minute.

Interrupting him might not have been the most constructive way of making their point, but we cant lose sight of what they did. Why they did it. This was political speech. This was the most sacred kind of speech. And, this target was the least deserving of the law’s protection when speech is concerned — a public figure.

The Israeli ambassador was inconvenienced for less time than it takes to boil an egg.

And yet, for that inconvenience. That indignity. That quasi lese majeste. Eleven men were convicted of a crime.
The men were Muslims… The place is the most shocking part – Orange County, California, USA.

Although I despise the “what next?” rhetorical device… I just so need it here.

What next?

Hecklers at comedy clubs could be dragged out and thrown in the back of a cruiser where a drunk just puked? At least one lawyer would have to go to jail after every hearing. Fox news would essentially be illegal in California. My poor wife and I would probably each be witnesses in criminal trials against each other (privilege be damned!!!)

Criminally prosecuted for interrupting a speech.

We could all be arrested, every day, for this “crime.”

No we couldn’t.

Don’t insult my, or your own, intellect by thinking that this could have happened to anyone. Imagine if this had been a member of the Cuban government up there and some exilos from Miami showed up to yell. Do you think for a minute they would be charged, let alone convicted of a crime? Koreans showing up to voice their displeasure at a dignitary from the Hermit Kingdom? Jews in Skokie shouting down a nazi? Hell, nazis coming to Bensonhurst shouting down a Jew.

No, not even nazis get charged with a crime for merely interrupting a speaker.

And yet, for taking the position that these men were selectively prosecuted. For taking the position that this was all about their ethnicity and the content of their speech, some asshole thinks that I’m being “anti semitic.”

It is unfortunate. Because it is that kind of mentality that is at the root of the very reason these men were at odds with the man on the stage. Both of them have thrown in with their tribe rather than with their species. Like crabs in a pot, needing no lid, they would rather gouge out their own eyes than see through those of the other.

And it is that mentality that makes Palestinians unable to listen to Israelis. It is why Israelis can’t possibly back down to any criticism. It is why there are those who are so blind to their tribe, rather than to their entire human family, who decide that anyone who speaks against their interests in any way must be branded. He must be marked with the label of “anti-semite.”

I don’t really think it is my place to judge, but I’m gonna do it anyway. You reverse the polarity on that position, you don’t get a pretty philosophy. So, perhaps these guys did try and win the debate by shouting down the other speaker. That kind of conduct deserves a flag on the play. But what do you think trying to brand someone as something so abhorrent is? What do you call that, when you know it is a lie, you don’t care that it is a lie, but you say it because you know that it will score nice, cheap, points, and more than half the people who see it as bullshit will be afraid to call your ass out.

What do you call that?

I call that a pussy asshat move. So fuck you sir. Fuck you very much.

And really it is — for two reasons. One, to call oneself a First Amendment attorney and to think it is just that these 11 men were convicted of a crime — not merely removed from the room — and they were convicted not for resisting. Not for doing anything that hurt anyone else.

They.
Interrupted.
A.
Speech.
For.
A.
Minute.

In order to express their opinion on a matter of public concern.

And they were convicted of a crime.

It is sad enough that one would argue against the notion that this is wrong. But, like I said up top, everyone is entitled to their opinion on that. You know where I stand.

But, what a pussy asshat move to try and throw the “big bad bigot” card.

I have tried to think that I was wrong for taking that position. I’ve tried to see it through someone else’s eyes, and the only person I can see with eyes like that is a small minded and fearful person. Someone so insecure, so tepid, so small, that their only defense is to try and lob a bomb. Wanna play rhetoric like that? Here: It is rhetorical terrorism! It strikes at a target that should not be hit, for a reason that doesn’t deserve the energy, and he who employs it has already lost the high ground when they resort to it.

Of course, this is an equal opportunity beta trait. There’s the black guy that screams “racist” to do the same thing. The feminist who whines “sexist” if you disagree with her. You know what, jerkoff?

Those words MEAN SOMETHING.

If you just throw them against anything with which you disagree, you wind up pounding them thin to the point that they don’t mean anything anymore. You can even numb the alarm to those who really are those dangerous things. You create muck in which those dangerous things thrive.

So, I should have added to the end, “not only is a pussy asshat move, but it is anti semitic.”

But, I refrained.

Righthaven — with BABIES!

By J. DeVoy

No cute pictures of infants here — just a bizarre story from San Diego

Attorney Theresa Erickson pled guilty to conspiracy to commit fraud for her role in what federal prosecutors described as a “baby-selling ring.” (source.)  Technologically, the scheme was pretty simple: Women would travel to the Ukraine to get pregnant with the eggs and sperm of donors.  This was done overseas because, at least in California, nobody would perform such an IVF using both donated eggs and sperm without a pre-existing surrogacy contract.  [I learned just enough family law to pass the bar. Bear with me. - Ed.]  The conspirators apparently misrepresented to the San Diego Superior Court that such surrogacy contracts existed, though – a fact belied by having to go Ukraine to complete the procedure.  Indeed, there was no underlying surrogacy contract, and no surrogates. (source.)

Once the pregnancy was into the second trimester, the conspirators would start shopping the babies to prospective parents.  The conspirators apparently claimed that the original adoptive parents bailed out of the deal, and a new home was needed for the baby.  The targeted parents, believing they were picking up where another couple left off, paid more than $100,000 in fees, with the women carrying the babies receiving $38,000 to $45,000 in compensation. (source.)

So to recap: Defendants, a lawyer among them, make misrepresentations to the court about rights they don’t actually have – and that never existed – in order to make money off of unwitting third parties who believed they had such rights.  Gee, never seen that before! Nope, never ever!

Erickson’s sentencing is scheduled for October 28.

H/T: Brian, Ken and Patrick