Grady Judd, at it again, in America’s Wang

June 16, 2011

By Marc Randazza

Following a three-month-long investigation of Theresa and Warren Taylor – Theresa being better known as “Kimberly Kupps” – the Polk County sheriff arrested them both on charges of promotion and distribution of obscene material.  The crime?  Creating pornography in their own home, then selling it both on their paysite and the popular distribution site clips4sale.com. (Source.)

Sadly, this is par for the course in Polk County.  The same Polk County where Philip Greaves, then living in Colorado, was indicted on obscenity charges for writing a book concerning pedophilia.  Let’s not forget the 15-year-old who was suspended from using the bus for three days after he passed gas on it.  And then there was the antique store owner who was charged with obscenity production for taking nude photos of willing participants – even if, at first blush, child porn charges may have been more appropriate.  Maybe I have Polk County all wrong and this is all the doing of dedicated gestapo fuckhead Sheriff Grady Judd.  But then again, Polk County is home to all the drooling, meth-addled retards who keep electing him.

It would be comforting to write this off as another Judd-ism, write a blog post about it, and put the incident behind me.  I don’t even live in Florida anymore; to hell with the place.  This case, however, goes too far.  Consenting adults, in the sanctuary of their own home, filmed themselves having sex — and by all accounts, the content they produced was pretty vanilla (e.g. no fisting, no watersports, no extreme bondage or BDSM, etc.).  In addition, the couple wasn’t exactly rolling in dough from this venture: by available reports, their porn activities brought in $700 per month. (Source.)
Enough for a few nice meals, sure, but not enough to finance a credible criminal defense.

Never one to let common sense or the First Amendment to come between him and a camera, Judd went to the press shortly after these arrests. Fox 13 had the initial interview.

“We want a wholesome community here, we don’t want smut peddlers,” Judd said, “and if they try to peddle their smut from Polk County or into Polk County we’ll be on them like a cheap suit.”

[…]

“They should heed the warning: If you engage in creating or selling obscene materials we are going to lock you up, and we enjoy that,” he said.

The profundity and wisdom of Judd is matched only by Yoda himself.  The last time I checked – I’m only a First Amendment attorney – “smut” is not a prohibited form of speech, much less a recognized category of speech.  Child porn is not protected by the First Amendment.  Nor is obscenity.  Smut, whatever the hell it is defined as, is protected by the First Amendment, as is everything not falling within the child porn and obscenity exclusions.  I’ll refrain from picking the low hanging fruit pointing out the hilarious irony of a peckerwood inbred like Judd mocking a cheap suit.

To Judd, this is a big game. He “enjoy[s]” when he can “lock you up.”  He’s not going to let a few founding principles get in the way of getting his jollies.  After a perusal of my prior coverage of Polk County affairs, I realized I’d left something unsaid that I want to say right now.

Grady Judd: fuck you.

And to the people of Polk County who enable this kind of bullshit for decades on end, fuck you, too.

When I’m not blogging, I’m busy running a law firm, Randazza Legal Group.  You may have heard of it; I have the privilege of defending bloggers, decorated war veterans and porn companies from attacks on their free speech rights.  I do not represent Mrs. Taylor or her husband.  I will, however, be making a donation to their legal defense fund.

I encourage everyone else who values free speech to do the same.  Inability to pay should not be a barrier to justice, especially in a case like this where the fundamental right to free expression is at stake.  Making only $700 per month from their adult business operation, Judd probably just expects the Taylors to roll over and plead guilty – quickly.  They shouldn’t, and we shouldn’t let them.  I do not know if this will be the case, but it’s time for someone to end Grady Judd.  Not to beat him, to ruin him.  To bescumber his legacy and make his name forever synonymous with the worst, most oppressive kind of home-grown terrorism that he’s inflicted onto the people of Florida, deserving though they may be, for decades.  I want him to have a forced, miserable retirement, and his children to quickly – in hushed shame – change their last names when he dies, to forever bury the shameful association.  It is long past time for Judd to be forced into the outhouse where he spends most of his time secretly thumbing through a crusty Fredericks of Hollywood catalogue from 1977, panting while doing so, forever. (Proverbially! rhetorical hyberbole ftw.)


The PROTECT IP act – a new name for COICA with the same uselessness for adult entertainment

May 29, 2011

By J. DeVoy

I’ve previously written about the futility of federal proposals to further regulate the internet for copyright infringement.  Fellow blogger and colleague Ron Coleman – who participated in a really awesome brief with Marc and I – took note of my prior musings about this topic, focused on the failed Combating Online Infringement and Counterfeits Act, or COICA.

I’ve been following the PROTECT IP Act since it was first announced, but write about it now because it has made it out of committee in the Senate.  There’s not much new that I can add to the zeitgeist of discussion and analysis available from numerous sources, such as the EFF and Citizen Media Law Project.  For those interested, the bill’s full text is available here.

Like COICA before it, the PROTECT IP act does nothing substantive to assist the adult entertainment industry.  While the bill could technically assist in taking down sites hosting torrent files, hosted files (file lockers) and even tube sites, the means prescribed in the statute are too cumbersome for the level of wide-scale enforcement needed to combat the tsunami of piracy washing away profits in adult.  Because of the DMCA and ease of piracy, it is ubiquitous, giving rise to automated content-removal services that crawl piracy hotspots and send out DMCA takedown notices en masse – as the task would be insurmountable without automation.

To carry the luxury good thread used in my prior post forward, this kind of strategy may make sense where limiting availability of a Tiffany purse, for example, is an inherent part of the good’s value.  In contrast, content producers want their content to be widely available (evinced by the migration to mobile compatibility, whether on smart phones or tablets), but in a format that must be purchased.  Thus, while this bill is aimed at limiting the availability of infringing/counterfeited content, the market has already provided a cheaper solution for adult, and the PROTECT IP Act misses the mark in that regard.  Indeed, piracy is like a hydra, and by the time a producer has cut off one head using the PROTECT IP Act’s procedures, (at least) three more have emerged in its place.

The PROTECT IP Act, like COICA, also misses the point in terms of remuneration.  Companies aren’t viewing anti-piracy as a source of revenue, but a means to recoup lost sales that would have – and should have – been made absent rampant piracy. (Obviously not at a one-to-one ratio, as some people will never pay for porn, but the proliferation of “free” porn has led some people to land on the theft side of the fence when they otherwise would have purchased content.)  While the Act allows for plaintiffs and the Attorney General to shut down sites, re-opening them is not particularly hard, as both Encyclopedia Dramatica and the trio of online poker sites recently sued all recommenced operations on foreign domains outside of the US’s jurisdiction within hours – even if it took a few days, or even just hours, for the word to spread and traffic to follow it.

If the Act had allowed for producers and copyright/trademark holders to pursue registrars and payment processors for the resulting damages, which would create significant new risks in those fields of law, I would be more optimistic about the pending bill’s ability to make even a dent in the war on content piracy.  Seeing as this did not happen – and probably never will – I have serious doubts about the efficacy of this proposed law in the adult realm, as opposed to mainstream entities like the RIAA and MPAA, for which fighting piracy is the cost of doing business and no monetary ROI is necessarily expected.

It is hardly surprising that Congress, and all of elected government, is an apparatus for handouts to the elite.  The persistence with which Congress is willing to trammel on free speech and expression in such a limited way that benefits only the chosen few with huge content libraries and even bigger war chests, though, verges on shocking.  While PROTECT IP will give powerful trade organizations a new tool to play whack-a-mole with, producers who don’t eat if their content doesn’t sell won’t be able to do much with this act, and certainly won’t be able to recover anything financially with it.  A twenty-something serial pirate in Eastern Europe won’t mind the hassle of losing a few domain names in the scheme of his ongoing piracy enterprise.  If Visa or GoDaddy were potentially on the hook for facilitating their business, though, the practice would end almost instantaneously and, if it didn’t, content producers would be repaid, likely handsomely, in short order.


The Magic Underwear State vs. Sexytime

May 23, 2011

Utah, apparently a hotbed of prostitution, appears to have had some trouble enforcing its anti-solictitation laws. Under Utah law, “solicitation” is defined as follows:

76-10-1313. Sexual solicitation
(1) A person is guilty of sexual solicitation when:
(a) he offers or agrees to commit any sexual activity with another person for a fee; or
(b) he pays or offers or agrees to pay another person to commit any sexual activity for a fee. (source)

That wasn’t good enough for the Utah legislature.

A new law that went into effect this month broadened the definition to include any person who indicates through lewd acts, such as exposing or touching themselves, that they intend to exchange sex for money. (source)

Think about that. If someone “indicates” that they “intend” to exchange sex for money… so much for any productive strippers. For that matter, so much for any first dates.

Of course, lets look at the rationale for the law…

Utah House Minority Whip Jennifer Seelig, D-Salt Lake City, who sponsored the bill during the 2011 legislative session, said she worked with many different groups, including defense attorneys, to iron out legal issues with the law.

The intent is to target prostitutes, especially underage ones who are forced into the sex trade and trained to evade arrest, Seelig said. The arrest would be the first step in helping them get off the streets, she said. (source)

Ah yes, the underage sex slave myth. Every time you see a restriction on civil liberties pushed by someone with a religious or feminist agenda, you’ll find this bullshit at the bottom of the glass of Kool Aid they just asked you to drink.

Fortunately, my First Amendment Lawyer’s Association brother, Andrew McCullough, is fighting the law.

Andrew McCullough, an attorney representing the escort services in the lawsuit filed May 9, said the law is so broad that it could allow police to arrest licensed employees of sexually oriented businesses, such as escort services or strip club dancers, for doing their job.

The expanded law includes language that makes a person exposing their genitals or touching themselves sexually an indication that they are offering sex. Those acts are legal in Utah for private strippers.

“Most girls who touch their breasts are not telling you they’re open for sex,” the attorney said. (source)


Fourth Circuit: You don’t have to choose between girls and booze

March 9, 2011

By Randazza & DeVoy

In this recently released opinion from the Fourth Circuit, Gentlemen’s Clubs have won an important victory in their ability to serve alcohol as well as T’n’A on premises.  The decision in Miller (Defendant-Appellant) v. Legend Night Club (Plaintiff-Appellee), Case No. 09-1540, released today, holds that a Maryland Statute that restricts the activities allowed at an alcohol-serving establishment is unconstitutionally overbroad.

Among the conduct prohibited by Maryland Code Article 2B, §§ 10-405(c) and (d) is allowing patrons to caress or fondle employees’ breasts and buttocks, permitting “any employee or person to wear or use any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion of it,” the “display of the pubic hair, anus, vulva or genitals,” and so forth.  Violation of any of these provisions results in an establishment having its alcohol license revoked. Md. Code Article 2B, § 10-405(b).  Prince George’s County was added to the list of counties to which these provisions would apply, effectively ending the adult club industry in that area, which is fortuitously close to Washington, D.C.

Plaintiffs originally sought a declaration that the statute was unconstitutional.  In April of 2009, the District of Maryland held that the statute was unconstitutionally overbroad, and could not readily be limited.  The court also found that the statute’s grandfathering provision, which allowed strip clubs to continue operating and serving alcohol so long as they had been doing so since 1981, violated the Equal Protection Clause.  As much as “cougarism” is the in thing these days, hopefully these longstanding establishments would have hired new talent throughout their existences.

At the appellate level, the Appellants argued that the statute was appropriate under the secondary effects doctrine.  Rather than seeking to curtail nudity and erotic entertainment, the Appellants claimed that they were concerned about the deleterious social effects associated with alcohol-fueled adult entertainment.  For those who aren’t First Amendment attorneys, this is the equivalent of facilely shrieking “think of the children” in the face of everything you dislike.

The Fourth Circuit subjected the relevant statute to intermediate scrutiny, requiring that the  Appellants show that the law materially advances a substantial or important interest by redressing past harms or avoiding future ones.  The Circuit panel’s analysis of this standard was driven by the fact that the Appellants could not provide any evidence of harmful secondary effects arising from alcohol served at gentlemen’s clubs in Prince George’s County.

While such restrictions are surprisingly common around the country, they generally apply specifically to strip clubs and similar institutions.  The statute at issue in Miller did not, and its prohibitions, broadly written, applied to every institution in the state that sold alcohol.  Consequently, a wide breadth of protected behavior would have been trapped within the statute’s ambit.  Simulated sex during dinner theater would result in the venue’s alcohol license being suspended.  Virtually any bar that allowed a bachelorette party in its doors would be put out of business by the statute, and the same would go double for bachelor’s parties.  While nobody seriously questions that these events are protected by the First Amendment, Maryland’s law would have stripped any venue permitting them to occur on their premises of their alcohol license.

Furthermore, the Appellants’ argument that the statute would only be applied to adult entertainment venues found no traction in the Fourth Circuit.  Not only was the statute silent on this issue, but Appellants presented no way to read the statute so it would apply only to those establishments.  The state’s brief history of only enforcing the statute against adult entertainment businesses was not sufficient to show the statute had a limited construction.

Because the financial remedy for the harm caused by enforcing this provision would not be adequate to compensate adult club owners, the Fourth Circuit held that the District Court properly entered a permanent injunction against the statute’s enforcement.  The Circuit wrote that: “Regarding the third requirement for injunctive relief, the threatened injury to Plaintiffs easily outweighs whatever burden the injunction may impose. At a minimum, each Plain- tiff faces a loss of its license coupled with a loss of valuable business opportunities.”  The imposition of this injunction imposed no burden on the state of Maryland and furthered the public interest of protecting constitutional rights, even at the expense of crybabies.

Maryland could amend its statutes to circumvent this decision.  Because it already declined to do so in 2007 when the case was originally pending, though, it seems unlikely to do so again.  As a result, the alcohol distribution rights of adult entertainment venues in Maryland are safe for now.  One cannot doubt, however, that some Palinite will agitate against this constitutional protection in the near future.


Unfair competition claim against Redtube et al. dismissed under California Anti-SLAPP statute

February 2, 2011

By J. DeVoy

A California Appeals Court decision reversed a trial court’s decision dismissing an unfair competition claim against Bright Imperial Limited (Redtube) and a host of other adult entertainment companies including Bang Bros, Brazzers and Fling.com.  The decision, Cammarata v. Bright Imperial Limited, No. B218226 (Cal. App. Ct. Jan. 26, 2011), invoked California’s Anti-SLAPP statute in reaching its conclusion.  To wit, Randazza predicted this outcome in July, 2009.

At the core of Cammarata’s grievance against RedTube was that it offered licensed content at a lower price than its competitors.  Apparently, notions of efficiency and price competition are best left to Ivory Tower blockheads at Wharton and Harvard Business School; alternative revenue models for pornography offend fair competition (yet making everyone charge for it strangely doesn’t).  I can see the logic in this — post-Twombly, conscious parallelism won’t even get past the motion to dismiss stage in Antitrust cases, so forcing your competitors to charge for a product so that you can do the same with a larger profit margin makes a lot of sense.  The court summarized Cammarata’s argument thusly:

Cammarata argues that because the price Bright charges to watch a video—zero—is less than what it costs Bright to maintain the video on its server Bright is selling or giving away the viewing of the video “at less than the cost thereof” in violation of Business and Professions Code section 17043 notwithstanding the undisputed evidence that Bright makes a net profit by selling advertising that appears on and accompanies the videos. (source.)

Isn’t that what most businesses do, though?  Newspapers and magazines are sold below cost, and network television is still free, though you certainly get what pay for.  If a model based on advertising revenues seems familiar to you, fear not, because that very thought occurred to the California Appeals Court:

If Bright’s business model sounds familiar it’s because it’s the business model typical of broadcast radio and television stations in the United States not to mention thousands of local newspapers and, more recently, tens of thousands of Internet websites including Youtube, CNN and Video.Yahoo. (source.)

Finally, there was no evidence that Redtube was responsible for Cammarata’s losses.  In the course of the dispute, Redtube’s attorneys viewed more than 100 tube-based adult entertainment sites.  Not only had Redtube failed to push Cammarata out of business, despite down sales, it has failed to push other tube sites out of the market.  The evidence belied Cammarata’s argument, as unfair business practices ultimately are used to gain a market advantage, and none was evidenced by the facts before the Appellate Court.  This lack of evidence proved fatal for Cammarata’s unfair competition claim:

The trial court erred. Business and Professions Code section 17204 provides that a person may pursue a cause of action for unfair competition only if the person has “suffered injury in fact and has lost money or property as a result of the unfair competition.” As Cammarata could not make a minimal showing that he suffered losses which would entitle him to restitution he lacked standing to pursue injunctive relief. (Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 22.) Therefore, the court should have stricken the unfair competition cause of action. (source.)

California’s Anti-SLAPP law did not dismiss the entire Complaint, but eliminated a charge that could have required significant restitution from the defendants.  Respondents were also awarded their costs on the appeal, and may receive further fees under California’s Anti-SLAPP statute — making it an even more powerful force for, shall we say, “creative” litigants to contemplate.


Being a douche nozzle is no way to keep clients

December 29, 2010

by Jason Fischer

Of course the headline here seems like common sense, but what’s surprising is that many attorneys have trouble with this bit of wisdom.  As surprising as it may be, understanding why practicing attorneys have trouble controlling their aggressive tendencies is not difficult when you think about it.  The problem is, when you have to spend 80% of your time dealing with deadbeats and scam artists, you end up in a near-permanent state of cynicism.  Hell — in a lot of instances, it helps to be a bit of a dick.  This, of course, is the motto of any self-respecting alpha.

Good attorneys, however, know how and when to turn off the bloodlust.  The best attorneys manage to avoid it altogether.  The moment you start to get emotional about going after that one defendant, the moment it becomes personal for you, there is a real danger that you’re going to accidentally misdirect that energy.  If you lose the big picture in a haze of red, bad things can start to happen.  Recent events in the heated debate over copyright enforcement serve as proof.

Larry Flynt Publications (LFP) just parted ways with Evan Stone, an attorney that was hired to pursue the hundreds of BitTorrent users who are illegally trading copies of one of the company’s recent video titles, This Ain’t Avatar XXX.  When Stone wanted to press harder than his client, not surprisingly he got the boot.  It turns out that when LFP was unwilling to bite the hand of Time Warner Cable, an ISP dragging its heels on turning over customer information tied to IP addresses used to share the movie, Stone became unhappy with LFP’s intestinal fortitude.

According to LFP President Michael Klein . . . the shifting focus from the alleged pirates to putting pressure on the cable companies was not a strategy that appealed to the iconic adult company, which has a television division and continuing global ambitions that require it to be a partner rather than an antagonist with companies like Time Warner.  . . .  Klein said that as much as LFP is determined to maintain a professional relationship with cable operators, it was ultimately their frustration with Stone’s aggressive PR tactics that led them to the decision to end the contract with him.

“He wanted us to put pressure on the cable operators, but it’s not our goal to go after them,” Klein told AVN.  “We want to look at ways to go after pirates, and we thought this strategy might work out, but the reason why we terminated with Stone was because of what we considered to be his unprofessional tactics.”  (source)

Even though the company was happy to quietly let him go, Stone took the more douchey path of announcing his break with LFP to the press.

Plenty of attorneys argue — and they’re not necessarily wrong — that being successful requires adopting the client’s problems as if they were the attorney’s own.  However, very few businesses become successful by playing hardball with everyone the way an attorney would.  (Similarly, any company that is always as cautious as their attorney advises will likely fail to excel.)  The problem comes when your level of tenacity goes beyond the client’s, and fighting the problem becomes for your benefit rather than theirs.  This is almost always a recipe for disaster, especially considering it can require superhuman empathic skills to know where the line is sometimes.  Unfortunately, there’s no law school course that will give you the paracortex of a Betazoid, so you’ll have to rely on your own douchetastic meter to figure out when you’ve gone too far.  There’s no surefire way to navigate this conundrum, but staying away from brash and overly aggressive tactics will help, and that’s a good practice in any endeavor.


Perfect 10 thinks that DMCA takedown demands should be protected by copyright

December 26, 2010

Perfect 10 is at it again – this time still pressing the argument that its DMCA notices may not be reproduced. (source). Most copyright attorneys know that if they send a DMCA notice, it very well may wind up on chillingeffects.org. If you send a DMCA notice to Google, it absolutely, positively, will. There are many of my own DMCA notices up there, and I am neither uncomfortable with that fact, nor do I mind my efforts being held up to scrutiny. If I am going to issue a DMCA notice, having content taken off the Internet without any judicial review at all, my maneuvers should be at least subject to the prying eyes in the marketplace of ideas.

Perfect 10 shamefully disagrees. They are wrong. Here is why:

It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majority countersuit.

In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.

One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).

However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve the fair use defense.

[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.

In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.

The Central District of California also pointed out portions of the Copyright Act’s legislative history, which seem to take aim at Perfect 10’s position.

The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.

Accordingly, if you send a DMCA notice to someone else, claiming that there is illegal content on their site, they should be able to use that letter for many purposes – including comment on the DMCA notice itself.

While strictly-speaking, DMCA notices may be covered by copyright law, this type of fair use seems to be required under the First Amendment.

First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).

Similarly, anyone who receives a cease and desist letter, could certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.

The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)

Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a Perfect 10 DMCA notice and used it as my own, then I might be committing copyright infringement. On the other hand, if I use Perfect 10’s DMCA notice as part of a critique of Perfect 10, or of the DMCA in general, or as part of a study on the DMCA, then that that is a valuable addition to the marketplace of ideas — and it is protected speech.

Let us return to Hustler v. Falwell:

The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.

Exactly. A cease and desist or a DMCA notice is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.

Okay counselor, but do you have a case that is exactly on point?

As a matter of fact, I do.

In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that the DMCA notice and take down was defective and that the sender was liable for material misrepresentation.

Conclusion

In short, if you issue a DMCA notice, you should not expect that it will remain confidential, nor should you expect that it will not wind up on chillingeffects.org. If you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.


Brit plan to “protect the children” by blocking porn

December 20, 2010

THE UK Government is to combat the early sexualization of children by blocking internet pornography unless parents request it, it was revealed today.

The move is intended to ensure that children are not exposed to sex as a routine by-product of the internet. It follows warnings about the hidden damage being done to children by sex sites.

The biggest broadband providers, including BT, Virgin Media and TalkTalk, are being called to a meeting next month by Ed Vaizey, the communications minister, and will be asked to change how pornography gets into homes.

Instead of using parental controls to stop access to pornography – so-called “opting out” – the tap will be turned off at source. Adults will then have to “opt in.” (source)

Rogier van Bakel explains the measure and tears it apart. (here)


Making the first purchase doctrine work for porn

December 13, 2010

By J. DeVoy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Anonymous, we respectfully dissent (A defense of Porn’s Antipiracy push)

November 26, 2010

But not when it comes to attacking porn companies.

By Randazza & DeVoy

Over the years, we’ve been keenly aware of the *Chan websites’ user base and their exploits.  From 4Chan, 7Chan, 7-11Chan, 420Chan and especially /b/ and /i/, we’ve laughed and cheered as a teeming mass of faceless internet users upended society.  They’ve collectively brought animal torturers to justice; rigged the voting on Dancing with the Stars; exploited the voting mechanism for Time’s Person of the Year so they could elect 4Chan’s creator, Chris Poole, as the winner; attempted to send Justin Bieber to perform a concert in North Korea; confronted and embarrassed the Church of Scientology; created the entire lolcats genre; gave us memegenerator; bombed Youtube with porn; and generally been the cyber police’s most wanted.

Like many friends, though, we do have a disagreement with Anonymous with one issue in particular.  It’s no secret that Anonymous is upset with the slash-and-burn litigation wrought by the RIAA and MPAA, and has launched DDoS attacks against the MPAA for its anti-piracy tactics.  While not condoning these actions, we certainly understand them – everyone is pissed about the ham-handed way in which these suits have been handled.  But to launch a DDoS attack on Hustler, as Anonymous recently did, because it’s pursuing lawsuits against infringers is overreaching — the adult entertainment industry is materially different from the recording and movie industries, and warrants different treatment.

First, Anonymous is a large and amorphous group.  Its members subscribe to the credo of NYPA – Not Your Personal Army – and we have reason to believe that the full force of Anonymous was not behind the Hustler Denial of Service attack.  The best indication of broader disengagement was that the attack was not successful.  But, as content piracy continues to grind at pornography’s profitability like a millstone, further anti-piracy litigation is inevitable.

The adult entertainment industry is a collection of many smaller companies without a monolithic trade group to represent its economic interests in court and before congress.  While the Free Speech Coalition and ASACP are trade organizations representing the industry’s principles and a subset of their legal interests, there is no equivalent of the MPAA, RIAA or even a BMI/ASCAP-type entity to bankroll sector-wide anti-piracy endeavors.  This eliminates the cost-spreading structure that allowed the RIAA and now MPAA to ruthlessly pursue thousands of litigants for years, and the adult entertainment industry is left with individual studios acting alone to enforce their copyrights against the most egregious pirates.

In 2000, right when online piracy became a huge issue, Courtney Love gave an eloquent defense of file sharing, essentially backing up the argument that a lot of online copyright thieves employ — that when you steal music online, you’re not really stealing from the little guy musician, you’re stealing from the fat pig record companies. With that, we agree. While that doesn’t make it any less illegal or any less of a theft, it does add a certain dose of a moral authority to the argument that sharing music online doesn’t actually hurt any worthy parties. (We are not entirely persuaded of that, but we respect the argument).

When it comes to porn companies, while the entire industry brings in a couple billion dollars a year, it is by no means as large as many people like to think. Forbes breaks it down here. But, when you cut up that porn pie, you will see that many of the slices are diet sized. Given the niche nature of porn, most porn DVD titles sell only a thousand or so units. When you rip off a Metallica song, you may contribute to a large aggregate loss for the record company, but your individual theft doesn’t really change the record label’s bottom line. When you steal a single porn movie, you may have stolen a significant portion of that movie’s sales. And that’s when you steal from the companies that crank out DVDs, which tend to be the larger producers.

When you talk about internet-based porn, aside from a handful of market leaders, most internet porn companies are smaller businesses than your local Chipotle franchise, and they are often run by the very people on screen. When you steal Mission Impossible, it doesn’t really take much money from Tom Cruise. When you steal porn, very likely it will have an immediate and measurable negative impact on the actor, director, and publisher. With the current degree of online piracy, most adult studios’ profits are down 60%. Though hardly poor, they lack the resources to pursue every instance of infringement solely to make a point.

Even if hunting every nominal copyright infringer to the ends of the earth was feasible, it seems unlikely that this industry would do so.  Unlike movies and music, porn lends itself to a smaller, self-sustaining and closely knit community.  While it studies what sells and what doesn’t – films without condoms sell better than those that use them, for instance – it doesn’t have an army of Harvard- and Wharton-educated MBAs reducing consumers to numbers in an excel spreadsheet, trying to part them with their money at every opportunity.  This informal system of checks and balances will keep studios from going after grandmothers and 12-year-olds who shared files on accident, unlike the RIAA.  Don’t be deceived by Larry Flynt’s badass gold wheelchair — the people who create adult content often do it to serve principles more important than profitability.

Without being too Randian, though, producers and studios are in the business to make a profit.  While they may not have a laser-like focus on the bottom line like other businesses do, it is still the reason they stay in business; indeed, revenues and profits are needed to keep their employees employed and owners content with their investment.  While there will always be an adult entertainment industry, the risk of losing substantial chunks of it is great; in addition to losing diverse and high-quality content, the rest of society will miss out on the technological advancements that have been driven by pornography for the last several decades.

Weighing social and technological advances together, the adult industry’s impact on American culture has been second only to NASA.  In the 1980s, porn’s choice of VHS over Sony’s Betamax ended the format war.  In the 1990s, pornography was at the spearhead of internet development both in terms of technology and business models, designing affiliate programs and billing services at the same time it pushed for video, audio, and more efficient photo services. If you watch any video online, thank the porn industry. In fact, if you use the world wide web, thank the porn industry. While porn didn’t invent the internet, it certainly acted as the amniotic sac for the fetal Web.

This trend has not slowed.  The adult film industry swiftly adopted the now-dominant BluRay media format, ensuring its viability and winning the war against HD-DVD.  Ironically, this helped Sony’s format win, after doing the opposite decades earlier.  Porn has also been instrumental in transcending format wars with video on demand (VOD) technology.  Vudu, an early VOD service that offered a channel catering to adult entertainment, was recently acquired by Walmart and forced to end its adult offerings. And don’t even get us started about sexbots.

Culturally, the trends found in porn are generally mirrored in real life, albeit with a slightly delayed reaction time.  A good proxy for these changes can be found in the pages of Playboy, roughly represented at this inappropriate-for-most-workplaces link.  Or, just compare what you’re used to seeing with the images at Retrotic (yet another site most employers would not appreciate you visiting).  As of 2006, more than half of all women in a study conducted on behalf of Vagisil reported engaging in some form of pubic hair maintenance, whether trimming (25%), partially shaving (23%) or fully shaving (9%) what they have.  In keeping with the sexually active, porn-consuming audience, this trend was more common among women aged 18-44 than women 45+ years old.

Another trend where life imitates art: Anal sex.  The number of heterosexual people who try – and regularly perform – anal sex is way up.  The numbers compiled from the national sex survey speak for themselves:

In 1992, 16 percent of women aged 18-24 said they’d tried anal sex. Now 20 percent of women aged 18-19 say they’ve done it, and by ages 20-24, the number is 40 percent. In 1992, the highest percentage of women in any age group who admitted to anal sex was 33. In 2002, it was 35. Now it’s 46. (source.)

[The number of women in their 20s and 30s who have had anal sex in the past year has doubled since 1992] to more than 20 percent, and one-third of these women say they’ve done it in the last month. Among all women surveyed, the number who reported anal sex in their most recent sexual encounter was 3 percent to 4 percent. (source.)

The result of all this is increased pleasure — for her!  Among women who had anal sex in their last encounter, 94% reached orgasm, compared to only 81% for women who received oral sex.  All of this data is self-reported, and may be unreliable on that basis, but that unreliability – a desire to look better, more chaste and moral, less kinky and so on – seems like it would resolve in higher-than-reported numbers for women who have engaged in and enjoyed this activity, which was largely planted in the public psyche by pornography.

The net result of adult entertainment’s viability as an industry has been an undercurrent towards faster, higher quality and more widely accessible technology.  Every other sector has benefited from the accessibility and ubiquity that adult entertainment has sought to achieve, given its patrons’ frequent need for discretion.  Culturally, people are experimenting more and, as the data above suggest, enjoying themselves more as well.  Not to say that people are uncreative on their own, but the adult entertainment industry gives them ideas, whether for technology, business or physical activities, that they may not have thought of on their own, and that entrenched interests like film and music companies have no interest to develop.

To those who say that “the model needs to change,” you’re right.  That’s why the adult entertainment industry has constantly been in a state of flux, and has material available in print, on DVD, and online.  This has also been a major reason why the industry has not been able to establish trade cabals like the RIAA and MPAA.  The common thread of the industry, and reason for its existence, is original content — content that is copyrighted and entitled to a range of legal protections.  All of the structural change in the world will not alter the fact that a right to produce and protect original content is at the core of adult entertainment; it is the industry’s sole commodity, like coal, oil or copper, that derives value by virtue of its relative scarcity.  Content producers want you to have access to it on your phone, computer and television, but legally, and can only advance the technology required for this goal if they have the money to research and perfect it.

People are free to dislike pornography and choose not to buy it.  They can keep strip clubs and video stores out of their cushy suburbs if they can convincingly show that it will increase crime and harm property values.  But in light of the progress it has stimulated, does anyone really want to imagine a world without it?  If all of the major studios were to shut down tomorrow, there would still be more porn around than any one person could need in his or her lifetime, but that’s not the point.  As an inexorable force for technological and social change, porn is intrinsically valuable, and its producers have to defend their ability to stay viable – and even profitable – for the rest of us to benefit from its existence.  Nobody likes to be sued, or to pay a settlement of several thousand dollars, but widespread piracy has destabilized an entire industry, and one that has worked to be rather versatile, as opposed to the recording and movie industries’ desperate grip on decades-old models of distribution.

Retaliation against adult content producers amounts to fighting the wrong enemy.  They aren’t the ones trying to take your house or ruin your lives.  They aren’t pursuing scorched-earth litigation to prove a point.  They’ve just seen that piracy is jeopardizing their continued ability to make the contributions they have to our economy, technological abundance, and own curiosity.  Ultimately, attempts to hurt the industry are counterproductive, and you’re merely pointing the gun at yourself.


Bob Guccione belated RIP

November 1, 2010

by Charles Platt

I’m slightly stunned to learn that Bob Guccione died ten days ago. Why would I care? Because he was an idiot-savant of the sexual revolution who also launched Omni magazine, a bastard mix of science fiction and science. It spawned a slew of imitators, including Discover, which I think is the sole survivor.

I used to write for Omni, and thus was invited to a party at Guccione’s brownstone on the Upper East Side of Manhattan in the early 1980s. Sinister Sicilians in dark blue suits stood guarding million-dollar oil paintings that were hung casually, as if they were mere reproductions. A swimming pool occupied the entire basement. Strange-looking women with big mouths and revealing dresses were tottering around on high heels, and I wondered who they were, until Isaac Asimov remarked to me, “It’s quite an experience to see real glamor models in person.” Belatedly, I realized that the women were Penthouse Pets.

Guccione was not a very civilized character, but he played a role in securing the sexual freedoms which we now take for granted. Hefner, at Playboy, had brought naked pictures to the masses by wrapping them in intellectual pretensions (Norman Mailer used to be published in Playboy). Guccione made Hefner look old-school with a more in-your-face attitude and, of course, photographs showing pubic hair. Larry Flynt, in turn, made Guccione look staid by revealing the inner folds of female genitalia, and then the World-Wide Web superceded Flynt by showing pictures of absolutely everything else, from bestiality to fisting. On this tawdry basis we affirmed serious intellectual liberties to write anything and depict anything with impunity, so long as it doesn’t involve children. Generally, I think this is a good thing.

When porn first appeared on the Web, I felt sure that federal legislators would find a way to shut it down. But the Communications Decency Act was deemed unconstitutional, and crusaders for clean living never figured out a way to get around that. So here we are now, in a world where acts of unspeaking depravity are a mere mouse-click away. Like most print publishers, Guccione never adapted to it, and he had to sell his mansion and his art long before he died.


12 People in Forrest City, Arkansas are True Patriots and True Americans – Thank You

September 4, 2010

By Marc J. Randazza

In St. Francis County, Arkansas, local prosecutors are apparently the kind who think that the whole “First Amendment thing” is a bit over-blown. Despite taking oaths to uphold and defend the Constitution, they brought the owners of “Adult World” up on two felony counts of “promoting obscene material” for selling a couple of movies starring consenting adults to consenting adults. (source)

These prosecutors alleged that Jim Philpot and Wayne Philpot, as owners of the store, violated state law by selling “obscene materials” in their stores. Prosecutor Fletcher Long told the media that he devoted a lot of time and resources to shutting down this “threat.”

“We have made cases in the past against the clerks and the manager out there, and for the last year we’ve been investigating the gentlemen who own those businesses,” prosecutor Fletcher Long told the Times Herald. (source)

Long compared the stores to methamphetamine dealers. I guess that is why he devoted so much of his office’s resources to trying to put an end to the sale of dirty movies.

“I’ve heard the argument that these people are operating a business, and with the tough economic times we’re facing we should just leave them be, but my issue is with the law,” he said. “If someone was operating a business which sold marijuana or methamphetamine and the times were tough, would they have a problem with it? What is being sold out there is just as illegal as marijuana and methamphetamine, and is no less against the law to promote, sell or possess.” (source)

I’ll give him a pass on the “sell or promote” part, but apparently this dumbass doesn’t know about Stanley v. Georgia, 394 U.S. 557 (1969). “If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.”

Sometimes, when a public official places his hand on the Bible and swears to uphold the Constitution, sometimes he bungles that equation up and seems to think he is supposed to do the opposite. This happens most often in the former Confederacy, but this disease is not unique to the South, nor is the South without its patriotic citizens who understand what the Constitution is all about. That is particularly apparent today, as twelve Arkansans chipped away with that stereotype.

Fellow First Amendment Lawyers’ Association member, JD Obenberger was there to observe the trial, and he provided an account of the proceedings: Obenberger reported that the prosecution put on a case against the Philpots for selling two DVDs. One called “Reality” featured double penetration, some multiple ejaculations, some ass-to-mouth content. Another, called “Grudgefuck” included choking, throwing of a female onto a bed, stuffing a female’s mouth with underwear, ass to mouth, facial ejaculation, choking, and other material going to a fantasy of hostility.

Obenberger said (in an email), “The judge gave the defense almost no breaks and gave the prosecutor just about everything he wanted. The instructions included some way-over-the-line language including morality and decency. The judge denied the defense the opportunity to put on evidence of comparable material being sold elsewhere in the state because, apparently, he felt the sales were not so open and obvious as to make them relevant as to what the community knows about and accepts.” In other words, the judge didn’t seem too disposed toward the defendants.

One of the corporations got tossed out of the case because there was no evidence that it was involved in the sale of either video, but the rest of the charges and defendants were placed at the mercy of the jury. After four hours of deliberation, the jury acquitted all defendants on all counts.

Obenberger reported that this trial, aside from being an affront to liberty, was part of an ongoing vendetta:

This drama has been going on for years and it reflected a crusade by local politicians to close the remaining store down. There had been raids on the store with multiple arrests of clerks and the manager. At trial, the manager was given immunity and compelled to testify, fairly dramatic stuff, especially because she apparently is facing allegations of probation violation for continuing to work at the store, the probation being the result of a nolo plea and an arranged disposition.

One of the most important issues in an obscenity prosecution is the rule laid down in Miller v. California, 413 U.S. 15 (1973) that the work must be “taken as a whole.” Government zealots usually like to cut out the most disturbing scenes and show those to the jury. Some shitty judges allow that. This judge may not have been friendly toward the defendants, but he allowed the movies to be shown in their entirety. This turned out to be key, because the films included documentary-style trailers. The prosecution only put in its “shorter summary” which conveniently omitted those parts. After the movies were shown, one juror applauded.

Obenberger reports:

In the closing argument by D.A. Fletcher Long, after he announced that these out of state defendants took all their money out of the state, leaving the residents of St. Francis County with only the filth, Fletcher went on to say that [the defense’s] arguments arguments would lead to the destruction of civilization – and the availability of videos showing dogs killing dogs. [Defense Attorney Louis Sirkin] objected at a sidebar and the jury went back to deliberate. [Sirkin] was then able to get access to the Internet in the courtroom and obtain a summary of [United States v. Stevens] which he read to the court, and he told the judge that though he could not print it out, the court could read the text of the opinion acknowledging First Amendment protection with respect to such materials. Judge Neal said that he’d heard about the case, and the Prosecutor was wrong to so argue, but he didn’t think it important enough to pull the jury out and tell them so.

In the end, the jury of six blacks, six whites, six men, and six women, acquitted on all counts. These twelve people, whoever they are, are hereby awarded the First Amendment Bad Ass award.

I am certain that aside from the guy who clapped, most of these jurors did not like the material they saw. Hell, even I don’t like the material they saw, and I’m about the most disgusting libertine that most of my acquaintances have ever met. But, that is not what freedom means. Freedom does not mean that a zealot prosecutor gets to look at material he does not like and decide that since his imaginary friend would disapprove, that his fellow citizens belong in prison for selling it. Freedom means being able to make the choice to watch “Grudgefuck” or to boycott it. To buy it and throw it in the trash, or to protest outside the store that sells it. These 12 Arkansans apparently understood that.

While we’re handing out First Amendment Bad Ass awards, I would like to hand a couple out to Louis Sirkin and Jamie Benjamin, both brothers of mine in the First Amendment lawyers’ association. They were defense counsel in the case, and because of them, and these 12 Arkansans, you are more free today than you were yesterday.


Broken Penises and the Law

September 3, 2010

Her reverse cowgirl is, apparently, both incredible and dangerous

By Marc J. Randazza

As office workers, few attorneys have the opportunity to contemplate what workplace injuries can mean to their clients. Honestly, what’s the worst injury you can get on the job in a law office? A paper cut? Your panties in a wad?

In the porn industry, like any other, workplace injuries are an issue. Normally, it is the female talent that winds up a little sore. I mean, those high platform heels will make a girl’s feet hurt like you wouldn’t believe. But, even for the men on a straight porn set, even one that involves no strap-ons, danger lurks… waiting to pounce upon an unsuspecting victim.

Prince Yahshua, CEO of Silverback Entertainment, recently met this unfortunate fate. (Source.) While working with Bethany Benz, a/k/a Caviar, a reality television star and porn novice, they were filming a scene where she was riding him “reverse cowgirl” For those of you who don’t know that position, she was on top of Prince, straddling him while facing toward the camera. The couple lost their natural rhythm and, on an upward thrust, Prince had an epic miss, followed by an audible “pop.” Prince’s penis began gushing blood, and he was rushed to a hospital. There, he underwent surgery for a torn urethra and ripped penile muscle wall, staying in the hospital for three days.

Luckily, Prince Yashua is doing well, and we wish him a continued speedy recovery.

Of course, this being a law blog – we need to look at the legal angle – even just in the hypothetical. Could the Prince get compensation for his broken scepter? If he is classified as an employee of the studio, the poor guy is left with nothing but a workers’ compensation claim. Meaning — he gets partial wage replacement and some medical bills paid. That would really make for a boring blog post though, wouldn’t it?

Sweet mother of god... NO!!!!!


On the other hand, if he is classified as an independent contractor, then one might think that this is a case that turns on whether Bethany was negligent or not in her reverse cowgirl ride. Did she have a duty of care, and if so, did she breach that duty, thus causing injuries to our unfortunate royalty? Is this a case of, “you break, you buy?”

Incredibly, this precise issue has been litigated before. See Doe v. Moe, 63 Mass. App. Ct. 516, 827 N.E.2d 240 (2005).

The plaintiff and the defendant were in a long-term committed relationship. Early in the morning of September 24, 1994, they were engaged in consensual sexual intercourse. The plaintiff was lying on his back while the defendant was on top of him. The defendant’s body was secured in this position by the interlocking of her legs and the plaintiff’s legs. At some point, the defendant unilaterally decided to unlock her legs and place her feet on either side of the plaintiff’s abdomen for the purpose of increasing her stimulation. When the defendant changed her position, she did not think about the possibility of injury to the plaintiff. Shortly after taking this new position, the defendant landed awkwardly on the plaintiff, thereby causing him to suffer a penile fracture.

Although this was generally a position the couple had used before without incident, the defendant did vary slightly the position previously used, without prior specific discussion and without the explicit prior consent of the plaintiff. It is this variation that the plaintiff claims caused his injury. While the couple had practiced what the defendant described as “light bondage” during their intimate relations, there was no evidence of “light bondage” on this occasion. The plaintiff’s injuries were serious and required emergency surgery. He has endured a painful and lengthy recovery. He has suffered from sexual dysfunction that neither medication nor counseling have been able to treat effectively. (Op. at 518)

In that case, the plaintiff wanted the court to use simple negligence theory. Was there a duty? Was it breached? Was the breach the cause of the plaintiff’s damages? But, the Supreme Judicial Court Court of Appeals of my beloved Commonwealth of Massachusetts just couldn’t stomach the thought of negligent fucking cases spewing all over the courts. The court determined that… well, deciding what was “reasonable care” in bed is just not something they wanted any Massachusetts court to get into.

We must determine whether the application of a standard of reasonable care to private consensual sexual conduct is appropriate or even workable. Questions of fact that would arise from these circumstances must be susceptible to consideration by a fact finder without prejudice and in a spirit of impartiality. Addressing a like issue in a different context, the Supreme Judicial Court recognized that “in light of our own awareness that community values on the subject of permissible sexual conduct no longer are as monolithic” as prior precedent had suggested, it could no longer apply the statutory prohibition of G. L. c. 272, § 35, against “unnatural and lascivious” acts to private, consensual adult sexual conduct. Commonwealth v. Balthazar, 366 Mass. 298 , 302 (1974). [Note 4] There are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior. [Note 5] In the absence of a consensus of community values or customs defining normal consensual sexual conduct, a jury or judge cannot be expected to resolve a claim that certain consensual sexual conduct is undertaken without reasonable care. (Op. at 520-521)

Accordingly, at least in the Commonwealth of Massachusetts, a broken dick case (or any other sex injury case) is going to turn on whether the defendant’s conduct was wanton or reckless, not just negligent.

In the case at hand, I think the injury happened in New York, so who knows what the law is there. I didn’t find any broken dick cases in New York case law. Since Massachusetts is way more fucking awesome than New York, they would probably just follow Mass law on this one.

With respect to Bethany Benz, hopefully this incident will not have an impact on her reverse cowgirl, which I have heard from several people is incredible.

Yahshua, on behalf of all men, everywhere, who have ever lived or who ever will live — get well soon.

We’re all pulling for you.


The First Amendment is a Beautiful Thing

August 9, 2010

Somewhere… sometime… somebody got it in their mind that christianity and sex were incompatible. Then, someone else got it in their head that christians couldn’t just shut their traps and believe in their Magic Space Zombie Jew and their other assorted fairy tales — they had to actively work to interfere in other people’s lives.

Case in point, Magic Space Zombie Jew believers seem to relish protesting outside of strip clubs and sex shops. Usually it is just a comical spectacle — a bunch of kooks standing outside a dildo store waving signs that quote some crappy book written by a bunch of nitwits 2000 years ago who wiped their asses with their hands and obviously tripped on some kind of hallucinogens.

New Beginnings Ministries church in Warsaw, Ohio is one of those churches that helped turn me away from my youthful stupid willingness to believe in the MSZJ fairy tales. Its pastor, Bill Dunfree, and some of its congregants have a habit of showing up at The Foxhole — a strip club in Newcastle, Ohio. They whine into bullhorns and take photos of the clientele and their car license plates — so they can post them online.  By habit, we really mean fixation, as this conduct has continued unabated for four whole years.

While I think that the pastor’s activities are absurd and tell us a lot about his inner demons, I also believe that they are most likely First Amendment protected activity.

Which is what makes the rest of this so delicious…

The Foxhole’s owner gathered up a bunch of his dancers and protested outside the church. (source)  Clad in bikinis, the performers mock close-minded churchgoers with their god-given – and possibly surgically enhanced – gifts.  Not merely poetic justice, but reminiscent of PCU’s infamous “we’re not gonna protest” protest scene.

Personally, I think that the local government ought to shut the church down — I mean, between the church and the strip club, which one is more likely to harbor child molesters?  The church can’t even withstand a mild dose of its own rancid medicine, either.  Protest, and thou shalt be protested.


Dipshit Dines and her MacKinnonite Crusade

July 27, 2010

Sound the alarm! The pornographers are coming to get us. Or so says the ever-hysterical Gail Dines in a recent Boston Globe article about her latest book.

To Dines, it is not coincidental that pornography has grown increasingly brutal in its treatment of women as the likes of House Speaker Nancy Pelosi, Secretary of State Hillary Clinton, and Supreme Court nominee Elena Kagan have underscored the real-world gains of women in the fields of politics, law, business, and medicine. Among other things, she says, “Pornography is a backlash against women’s advancement.’’ (source)

Yeah, that’s it. The moment that I heard about Elena Kagan’s nomination, I just had this incredible desire to jack off watching Belladonna suck dick. I mean, how else is a real man to react to this uppity behavior?

Dines tries to make her quest seem like mere criticism and education, but she has a control-freak’s sinister side.

Having viewed countless images as part of her research, Dines says there should be legislation that would define pornography as a violation of women’s civil rights and would entitle women to sue the industry for harm done to them. (source)

And it would all of a sudden make her research actually relevant and useful to a tribe of worthless lawyers who went from graduating from a womens’ studies program to law school to stewing in their own bitterness that nobody wants to pay them $200,000 per year to whine about how much they hate men.

Arguments like this have earned her — along with threats, hate mail, and vitriolic broadsides from the pornography industry — the inevitable accusation that she favors censorship (Dines says she does not) and that she is an anti-sex prude. At that, she just rolls her eyes.

“If I was criticizing McDonald’s, you wouldn’t accuse me of being against eating,’’ she says. “I’m against the commodification and industrialization of a human desire. I’m not against sex. Pornography does not equal sex, and sex does not equal pornography.’’ (source)

If she wants to criticize pornography, I’m all for it. She doesn’t just want to criticize it though. She wants to smear her grubby nasty hands all over our laws so that they fit her Victorian / Comstockian social agenda. If she was criticizing McDonalds, nobody would care. If she came up with her own diet program and wanted the government to help her take away your choice of what you got to eat for lunch — then THAT would be an accurate analogy.