Former New York state prosecutor Alisha Smith, who helped secure a $5 billion settlement from Bank of America, was unceremoniously suspended from her job because she spent her spare time as a dominatrix.
She was suspended from her job because the New York Post questioned whether she was paid for her nocturnal activities. The prosecutor’s office has a policy that prohibits outside employment without prior approval if the prosecutor earns more than $1,000. (source)
The New York Post reports:
Famous in the S&M world for her skillful spandex-clad spankings, Smith, while not denying her freaky ways, says she did not make money trolling the dungeons while working for the state’s top law-enforcement official, a job she’s held since 2002. (source)
Nice of the New York Post to have a positive story about Ms. Smith, since its sloppy reporting on her private life is why she got suspended in the first place.
She appeared at a press conference with Gloria Allred by her side to quit her job. (source) Working for $78,000 a year at a job where your boss doesn’t give you a chance to explain when the New York Post, of all places, writes crap about you — yeah, that’s grounds to say “I don’t get paid enough for this shit.”
Lets keep score:
She kicks the shit out of Bank of America and brings $5 billion into the public coffers.
The New York Post writes a sloppy piece full of muck and innuendo about a her private life.
The prosecutor’s office lacks a spine and suspends her, without so much as giving her a chance to respond to the story.
And now all of us suffer, because a seemingly good prosecutor is now making the Gloria Allred circuit instead of kicking the crap out of criminals.
She take my money, well I’m in need
Yeah she’s a triflin’ friend indeed
Oh she’s a gold digger way over time
That digs on me
An exotic dancer by the stage name “Ms. Behaved” sought to be a class representative in a class action against Fantasy Topless in Colton, California. Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011). Beachemin brought suit against Fantasy Topless in an increasingly-common class action claim against strip clubs — alleging that the club misclassified the dancers as “independent contractors” as opposed to employees. The claim further alleged that as employees, the club failed to pay the dancers minimum wage and forced them to share tips with the management.
Fantasy Topless succeeded in knocking out Beachemin because she was not a proper member of the class she purported to represent.
It is well-settled that Plaintiff must be a member of the class for which she seeks class certification, in order to satisfy both the typicality and adequacy prongs of Federal Rule 23 class certification requirements. “[A] class
representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” (Order at 5)
Ms. Beachemin defined the purported class as follows:
[a]ll individuals, who at any time from the date four years prior to the date the Complaint was originally filed continuing through the present, worked as an exotic dancer at Fantasy Topless in Colton, California, but was designated as an independent contractor and therefore, not paid any minimum wages. (Order at 5-6).
Unfortunately for Ms. Beachemin, the court found that she wasn’t exactly a member of the class that she purported to represent. The Defense showed that Beachemin was never actually hired at the club, she never signed a “Dancer Contract” with the club (as all dancers were required to do), she never had a dancer license from the City of Colton, as all dancers are required to do. See Order at 6-7. The evidence showed that she only tried out to be a dancer, and only performed one dance for approximately three minutes. On the other hand, Beachemin testified that she worked at the club for two days, for a total of less than eight hours. The court was not persuaded and denied the Plaintiff’s motion for class certification.
Despite the Court’s cold reception to Ms. Beachemin’s claim to represent the class, the Court did not seem hostile to the claims themselves.
Plaintiff has accordingly failed to meet her burden of proving that she is an adequate class representative and that she possesses claims typical of the class. There is no indication that Plaintiff ever signed an independent contractor agreement, Plaintiff was never paid by Defendants, and Plaintiff was not forced to share her few dollars in tips with Defendants or any other Fantasy Topless employee. As such, she could not have been misclassified as an independent contractor, like the remainder of the Purported Class, and she suffered no injury from the Defendants’ tip-sharing policy, unlike the remainder of the Purported Class. This Court does not wish to unduly hamper the potential success of the rest of the Purported Class by approving Plaintiff as class representative when she appears not to fall within the her own definition of the Purported Class. The Court expresses no judgment on the likelihood of obtaining class certification on the basis of the above-described claims with a different member of the Purported Class serving as class representative. (Order at 8)
I ain’t sayin’ she a gold digga. But she does sound like someone looking for an easy payday. The judge saw through it, but once the lawyers find a dancer who was a proper class representative, they may find greater fortune. While most strip clubs traditionally classify their dancers as independent contractors, the employee vs. independent contractor analysis is trending against the clubs. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011); Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139 (D.D.C. 2011).
Strip club owners need to make sure to cover their asses. Just like the protagonist in Golddigger sings “we want prenup,” dance club owners need to have their relationships papered — and papered right. And, if it costs a little more to classify a dancer as an employee vs. an “independent contractor,” they might just need to bite that bullet. The decisions are heavily trending in that direction, and the consequences can be quite expensive.
Many concerns come to mind when someone thinks about spending time in prison. First and foremost, there is always the risk of being shanked with a very, very sharp toothbrush. For the financial criminals, there is the distinct shame of being bested by Bernie Madoff in a game of badminton. This is to say nothing for the fable of being made someone’s bitch. But what about a lack of porn?
Connecticut’s prisons were very tolerant of pornography in its prisons until recently. (source.) Now that the Connecticut prisons are pulling the plug on this entertainment, the inmates are threatening to sue. This is not isolated to the Northeast, either, as a Michigan man filed suit over a guard’s refusal to provide him with pornography, claiming the guard’s action violated his constitutional rights. (source.)
Not to put too dull of an edge on it, but prisons can basically do what they please to inmates. Correctional facilities have staked out the lowest standard of review available under law. Prisons can enact policies that run counter to prisoners’ First Amendment rights as long as the regulations are rationally related to a legitimate penological interest, a standard that has consistently led to judicial affirmation of anti-pornography policies in the big house. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Smith v. Dept. of Corrections, 219 Or. App. 192, 198, 182 P.3d 250 (2008). In contrast, the next-lowest standard of review – and generally the lowest for non-prisoners – is rational basis review, where a government action must be rationally related to a legitimate governmental interest to be constitutional (and intended as such – no post hoc analysis is allowed).
Courts review a prison’s limitation on the inmates’ First Amendment rights by using the three-prong reasonableness test enunciated in Thornburgh:
- whether the governmental objective underlying the regulations at issue is legitimate and neutral, and whether the regulations are rationally related to that objective;
- whether there are alternative means of exercising the right that remain open to prison inmates at de minimis cost to penological interests; and
- the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison
490 U.S. at 414-18 (citing Turner v. Safley, 482 U.S. 78, 85 (1987)); Owen v. Wille, 117 F.3d 1235, 1237 (11th Cir. 1997).
As seem in prong 3, rehabilitation interests of prisoners are not all that may be, or is, considered when evaluating these policies. Courts have found that preventing the harassment of employees who work in the prison is a valid justification for a limitation on sexually explicit materials among inmates. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999).
The reach of these policies has been broad. In Washington v. Werholtz, 2008 WL 4998689 (Kan. App. 2008), the Kansas appellate court upheld a policy that banned all sexually explicit material, which included any display, actual or simulated, or description of a variety of acts, including intercourse and masturbation. While such a policy will cover Larry Flynt’s oeuvre, it will also ban trashy romance novels and some important works of fiction, such as L’ Histoire d’ O.
As long ago as 1989, Iowa grappled with this issue, which made its way into the New York Times. Under Iowa’s policy, only inmates who had been psychologically screened and approved to view the material – with prisoners whom prison psychologists believed would be obsessed with the material being denied access to it. (source.) The policy drew a bizarre distinction between how various forms of pornography were treated; inmates who could view porn were allowed to keep “soft-core” content in their cells, while hardcore content was only viewable in a well-supervised reading room. One then-inmate complained that the reading room was impossible to enjoy under this policy, as the guards filed through the area as if it were a freeway – denying him any privacy in which to evaluate the materials.
In 2006, Indiana instituted a similar policy. The Indiana Commissioner of the Department of Corrections previously explained that state’s pornography prohibition as something in the interest of both inmates and facility employees. The Commissioner’s explanation appeals to stay at home moms everywhere, exempting medical and anthropological instances of nudity, but adopts an “I know it when I see it” definition of pornography. (source.) Ultimately, Indiana’s restrictions amount to subjective, content-based limitations determined by what individuals find stimulating, as opposed to some objective standard by which the content can be evaluated, such as penetration. (Id.)
I strongly disagree with these policies. While I have not been incarcerated in prison, I question the harmful effects pornography can have on its inmates, and am deeply troubled by the broad sweep that these policies can have – swallowing up non-explicit materials that have considerable value. While prison exists to deny agency to its inmates, one cannot help but wonder if these policies beg the question about pornography’s supposed harmfulness. In fact, research shows that more porn = less rape. While there are other covariants at play, as everyone who has read Freakonomics knows, the results of isolating pornography and analyzing the porn-rape relationship have been in porn’s favor. Beyond rape, the gratification of pornography may replace or inhibit other criminal or undesired activities as well. In short, the premises that prison guards’ penological interests rest upon – that porn is bad and makes people do bad things – are beginning to be proven as bullshit.
When I debated the Indiana commissioner on Fox News, his rationale was to “promote public safety in Indiana.” Give me a break. Is Mary Homemaker “safer” because a convict doesn’t have a porn mag? He also stated that he wanted to see his prisoners devote their time to more constructive pursuits. This being Fox, I didn’t get a chance to cross examine him, but I presume he didn’t mean ass-raping one another. The biggest load of bullshit he slung was the meme that prisons need to ban porn because they want to promote a non-harassing environment for prison guards.
Seriously? You want to be a prison guard, but you can’t handle the sight of a guy reading Hustler? I got news for you if you’re “offended” by the sight of a guy jacking it to porn — you can’t handle being a security guard at a candy store, let alone being a prison guard.
The rationale for these bans clearly has nothing to do with “safety,” and it has nothing to do with the feminist-imposed “hostile work environment” bullshit. It has to do with an erotophobic attitude, fostered by superstition, and then fertilized with the crap of cheap political points.
Nonetheless, prisons have erected a high wall around themselves, their guards, and their asinine policies. In a way, it is logically consistent for an enterprise that exists largely as a consequence of unjust and counterproductive policies such as the war on drugs to have special legal protection allowing it to further screw the people entrusted to its care. See Thornburgh, 490 U.S. at 407 (describing moden prison administration as an “inordinately difficult undertaking”). As such, challenged to these policies, however well deserved and meritorious they are, seldom succeed.
by Vaughn Greenwalt
The latest criticism of mass-copyright litigation follows the same mantra of previously-pissed patrons: “I know I stole your porn but I’ll be embarrassed if anyone finds out so you can’t sue me!” Cut the crap already, “shame” is not a legal defense.
Lets play fact or fiction with the latest misleading article which was, oddly enough, endorsed by the EFF:
1. FACT: “The lawsuits name ‘Doe’ defendants until they can unearth the true identities of those accused of downloading porn through their Internet providers.”
Naming Doe defendants is the only way to bring suit against thieves who steal Copyright protected works over the Internet. The identities of those thieves is only ascertainable once the personally identifiable information associated with the thieves Internet Protocol address (“IP address”) has been subpoenaed.
The industry isn’t blackmailing thieves with the prospect of naming a Doe defendant, it is the only legal course to obtain requisite discovery.
2. FICTION: “The adult entertainment industry has dubbed [John] Steele the ‘Pirate Slayer.’ Steele calls the lawsuit a simple defense against copyright theft.”
Fact: Steele named himself “Pirate Slayer,” and most of the industry mocks him. When he showed up to a conference wearing a badge that said “Pirate Slayer,” he immediately gained the nickname “Buffy.” That’s what the adult entertainment industry calls him — Buffy. And it isn’t a compliment.
Every studio has separate and distinct legal counsel and thus a separate and distinct legal strategy. While I cannot speak to the strategy employed by Mr. Steele, I can speak to the strategy employed by the Editor of this blog – it is anything but simple.
Without violating my ethical duty of confidentiality and privilege, I have been in many a meeting in which special emphasis was placed on “doing it right.” Efforts to safeguard the privacy of the defendants, fairness to the defendants, an opportunity to defend before being named as a defendant, and forewarning of the suits before suits were filed. In addition, some studios offered amnesty to those who sought to protect their privacy.
3. FICTION: “The intent of these lawsuits is to get peoples’ identifying information and attempt to extort settlements out of them” – Corynne McSherry, EFF’s Intellectual Property Director.
Ms. McSherry’s dogmatic whining borders on mental illness. Perhaps she should look up the definition of “extortion.” Words mean something. This word means to obtain money or property to which one is not entitled by threats or coercion. When a copyright owner seeks redress under the copyright act, the copyright owner is seeking restitution in a manner specifically authorized under the law. McSherry should not use big words without supervision if she doesn’t know what they mean.
Copyright’s purpose is to foster the creation of creative works. The music industry has already been economically gutted thanks to the likes of Napster, Kazaa and Limewire; the porn industry is seeking to avoid that very same fate. If protection is weakened so too is the drive to create and thus all suffer (even those of us who enjoy it late at night while our partner is sleeping). If copyright protected content is freely distributed among torrenters, then studio membership is impacted, which then impacts studio revenue, which then impacts studio quality and quantity, which then in-turn further impacts studio membership, which ultimately impacts the studio’s very existence.
I hope the EFF recognizes the difference between dissent and disloyalty (I really love you guys!). However, I find it odd that the Director of Intellectual Property is tossing grenades at those who would seek to protect their own Intellectual Property.
4. FICTION: “The so-called “mass copyright” cases all follow the same format: an adult film company sues scores of anonymous defendants, alleging a particular movie was pirated using the popular file-sharing technology BitTorrent. The number of defendants can be staggering, dwarfing the scope of the music industry’s lawsuits; there were 2,100 Does named in one recent San Jose case, and 23,000 in the largest thus far in Washington, D.C.”
As referenced above, every porn studio has independent legal counsel complete with independent legal strategy, while some attorneys may look for the quickest and most efficient way to make a buck for their clients, others, like my Editor, do not.
Some attorneys, while legally proper to sue 23,000 defendants in a single suit, put their law clerks through WEEKS OF PURE TORTURE to determine the location of the individual IP addresses and group them based on state and federal judicial district. Once determined, suit is brought against them in their home state and district and regularly reduces the number to less than 100 Doe defendants in any single suit.
Again, some attorneys take great pain to make litigation fair for thieves.
5. FACT: Mark Lemley is… eh…. brilliant?
I have been to many symposiums where Mr. Lemley has proposed theoretically brilliant additions to U.S. Intellectual Property Law. I have witnessed, in sheer awe, his ability to dismiss, answer and be condescending all in a single sentence.
However, Mr. Lemley’s brilliant theoretical ideas are not so brilliant when it comes to actual litigation and practice . Incredibly, Lemley provided a brilliant addition to the subject article regarding the porn industry’s torrent suits: “… it made people at the margins nervous about file sharing… people are going to think twice about doing this.” Lemley is absolutely correct in his assessment. THIS is the ultimate goal of the porn industry’s torrent litigation; not to shame the pron-viewing public (honestly, isn’t that all of us?) for their lunch money, but to deter the theft and infringement of their Intellectual Property.
The simple answer to EVERY concern opponents of mass-copyright litigation has is incredibly simple: Theft is theft – no matter the medium. STOP STEALING SHIT AND YOU WON’T HAVE TO WORRY ABOUT IT!!!!
By J. DeVoy
At Likelihood of Confusion, guest blogger Matthew David Brozik provides an overview of the .xxx roll-out, which is happening in phases beginning now. For those unfamiliar with the domain name, there are two types of initial availability: Sunrise A, where existing adult companies can get .xxx domains to correspond with their .com domains, and Sunrise B, where non-adult companies can permanently de-reigster their hypothetical .xxx domain names (e.g., ToysRUs.xxx), and ensure they will never exist. After that, there will be a “landrush” period for adult companies to get new .xxx domains to develop new brands and services, and then a perpetual period of general availability so that adult companies can get new domain names on a first-come, first-serve basis; trademarks outside of adult can also be de-registered during this time. To understand the importance of this open registration period, bear in mind that 10 years ago the acronym CFNM was meaningless, whereas now it’s a popular porn genre, and “twitter” was similarly a nearly meaningless (and antiquated) intransitive verb. Or noun. Anyway…
Some groups, such as the Free Speech Coalition, are against the .xxx sTLD. Others are agnostic, or open-minded regarding the extension. Informal research reveals that many companies are indeed buying the domains, optimistic that they will generate more traffic and search engine recognition, and at a minimum protect the brands they have created. Still, others eschew it.
Some non-adult entities are embracing .xxx to make a splash for themselves. PETA, for example, is getting a .xxx domain name. But, this likely is more of a publicity stunt than a lasting foray into adult. After all, this is the same PETA that had some sycophant legally change his name to KentuckyFriedCruelty.com.
Brozik’s post is informative, but I do have one bone to pick with it. Brozik contends:
So we’re almost certainly not going to see lawsuits over the likes of pepsi.xxx, kleenex.xxx, or xerox.xxx.
Don’t be so sure. Perhaps there won’t be disputes over those domains and peer brands, but there is an interesting question brewing as to whether paying for de-registration of a .xxx domain name is essential to keeping it from being registered. Within the adult space, Manwin Licensing International – owner of many prominent brands and valuable domain names, including Brazzers.com and YouPorn.com – has demanded that the .xxx registry’s operators prevent “exploitation” of those domains (or those that are confusingly similar) even without paid de-registration, or turn them over to Manwin, free of charge. Making matters more interesting, the .xxx registry has preemptively de-registered domain names that constitute famous names, for both celebrities and politicians. This step was apparently taken free of charge. There may not be lawsuits brought by Pepsi and Xerox against cyber-squatters, but there may be more attempts by owners of established brands to get something for nothing.
If the .xxx registry’s operators commit trademark infringement for failure to provide de-registration where no registration has yet occurred, it would be a novel theory of liability. Can one be liable for potential infringements that have not yet occurred? If nobody registers the domain names, there seems to be a problem of standing, (and a lack of imminent harm, if the registry’s procedures prevent the domain names from being registered). Other countries, however, may have different standing requirements. Also, some infringement of the trademarks has to occur (or be sufficiently imminent for standing to exist) for there to be a cause of action for infringement. Ron Coleman’s interest in secondary trademark infringement notwithstanding, infringement has to occur for primary or secondary liability to attach – just as with copyright infringement.
Given the novelty of the .xxx space and the brands at stake, it is unlikely that this issue is dead, or that it will be for some time to come.
By J. DeVoy
The Second Circuit dealt a body blow to the first purchase doctrine (aka first sale doctrine) in Wiley v. Kirtsaeng, a case about resold textbooks manufactured and obtained overseas – though subject to U.S. copyright registrations – and resold stateside. The Second Circuit held that such transactions are not covered by the first purchase doctrine – codified in 17 U.S.C. § 109(a), and allowing the resale of copyrighted works by their first purchaser without royalty payments to the owner
– in part because because it would render 17 U.S.C. § 602(a)(1) (barring importation of copyrighted works obtained outside the U.S. without owner’s permission) a dead letter. (Op. at 15-16.)
The majority’s opinion can be summarized with this money quote from page 17:
In sum, we hold that the phrase “lawfully made under this Title” in § 109(a) refers specifically and exclusively to works that are made in territories in which the Copyright Act is law, and not to foreign-manufactured works.
The EFF contends that this harms free expression and consumer rights. I don’t necessarily disagree, and align with the EFF far more often than not. Pragmatically, though, the law is the law, and while one can observe the desirability in changing legislation to accord greater protections for free speech and open communication, it is not inconsistent to observe what one is allowed to do under existing statutory schemes. Thus, I play the devil’s advocate; first, because that is why I went to law school, and second, because Satan is awesome (source: the entire genre of black metal).
The clear and mechanical way to circumvent the first purchase doctrine under the Second Circuit’s new precedent is simply to manufacture copyrighted works outside of the United States, and in countries known for their cheap labor, rather than robust IP laws. It would also be best to ensure that there are no IP treaties potentially giving a defendant a toe-hold for claiming the manufactured works are “made under” the Copyright Act.
This result would kill the resale market. On one hand, this comes about two decades too late, as VHS and DVD releases are increasingly uncommon. At the same time, though, this allows content producers who do release such physical media to keep a leash on every copy they sell and ensure they receive a royalty on every subsequent sale of the material.
One must then query what constitutes “manufacture” of a file that is merely downloaded from a server onto a consumer’s hard drive, rather than physical media. In Wiley, the term “manufacture” was constructed in a fairly literal sense that encompassed the book’s printing and binding outside of the US. The closest analogue would be a whirr of storage media queueing up and transferring a large media file to an individual downloader. If the servers are located in the USA, then the first purchase doctrine applies. But, if the downloaded files originate from servers located in scofflaw nations like Malaysia, then it’s a different story. If the “manufacture” analysis is pushed farther up the pipeline, a serious factual inquiry exists as to where the final work is “manufactured,” and exactly how much effort is needed from extraterritorial sources to remove a video from the Copyright Act.
The advantage of taking this route digitally is the ease with which producers can find their content being resold by others. Admittedly, these resales are a minute piece of the free content pie plaguing mainstream and adult media, but they exist, and will become a larger share of infringements as legal action against one-click hosting sites, torrenters, torrent sites and even tube sites brings their respective unauthorized distribution of copyrighted content to heel. By manufacturing products overseas – and going through the effort to determine at exactly what point a downloaded file is deemed “manufactured” so that point may be reached outside the Copyright Act’s clutches – opens a new stream of infringement monetization.
A caveat to this: The Ninth Circuit (i.e., California/Nevada/Washington/Arizona) has came to a different conclusion than the Second Circuit in Omega S.A. v. Costco Wholesale Corp, 541 F.3d 982 (9th Cir. 2008). In that case, the Ninth Circuit held that the first purchase doctrine, 17 U.S.C. § 109(a), applied to foreign-manufactured items that were sold in the U.S. with the copyright owner’s permission. Thus, the Ninth Circuit’s view does create some extraterritorial application of the first purchase doctrine. In contrast, the Second Circuit’s view considers all private resales of foreign-manufactured goods to be in derogation of the legitimate copyright owner’s exclusive right of distribution.
This division may play out in several ways. First, the Supreme Court could reconcile the circuit split on the issue. Given the 9th Circuit’s record on Supreme Court appeals, I find it unlikely – though possible – that its view would prevail. In the alternative, the applicability of 17 U.S.C. § 109(a) to foreign-manufactured goods may be a question with slight jurisdictional wrinkles, similar to the award of attorneys’ fees under the Copyright Act. Similarly, the point at which “manufacture” occurs, especially digitally, may be subject to disagreement between the Circuits.
What is clear, though, is that the Second Circuit has torn open wide a new vein for content monetization. How it will be taken advantage of, and when – as the content resale market has always existed, but is superseded by piracy now – remains to be seen. Unless the Supreme Court or Congress (lol) does something, though, copyright law now is more royalty-friendly within the 2d Circuit.
Prior discussion of the first purchase doctrine’s use in porn is available here.