ABA Journal Magazine Tackles Righthaven in May 2012 Issue

April 23, 2012

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

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

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

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

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

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

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

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

Unsolicited praise post

April 8, 2012

By J. DeVoy

I am capable of liking things.  For now, here’s two:

Philly Law Blog, http://www.phillylawblog.com

Disclaimer: I have come to use the blog’s writers, Jordan and Leo, as a sounding board for various ideas and talk with them one or two times a week.

Jordan and Leo are two young attorneys in Philadelphia who write about, well, the practice of law.  However, they don’t discuss iPads and SEO, but the actual practice of law – not the smoke and mirrors that allegedly generate “leads” from twitter and general web traffic.  Take this piece from Leo about the requirement that lawyers must be competent in handling plea deals:

“The decisions laid out by Kennedy means that criminal defense lawyers are now required to inform their clients of plea bargain offers, regardless of whether they think the client should accept them, and must give their clients good advice on whether to accept a plea bargain at all stages of prosecution. If they don’t, Kennedy said, they will run afoul of the Sixth Amendment right to assistance of counsel during criminal proceedings. ‘The right to counsel is the right to effective assistance of counsel,’ Kennedy said.”

No shit. It’s my duty to inform my client of any offer that a DA presents to me. And after I tell my client of any offer, I advise my client whether I think we should tell the DA to shove it.

Or Jordan’s makeshift manifesto about going into practice on his own, to fight the battles he wanted:

Oddly enough, I didn’t leave the firm because I had to. I left because I wanted to. I was bored, personally and professionally. There had to be more to life than billing a .1 for every email I received, right? It sounded stupid when I told them I was leaving. It sounded silly. It sounded like the idealistic musings of a young baby lawyer who didn’t know any better, probably throwing away the best thing that ever happened to him. This was the type of job many lawyers, young or old, would kill for. The partners thought I was crazy. They partners even took me and my wife out to dinner, and put us up in a nice hotel to try and get me to change my mind and to remind me what I was throwing away. The point was well taken.

However, I had always pictured myself as a small town lawyer, like the ones you read about in John Grisham novels. I wasn’t in this for the money or prestige. After a few years in practice, I was determined to build a practice one client at a time. To do a good job for everyone who came into my office, and if I couldn’t do that, refer them to someone who could. I wanted to build a practice based on integrity, honesty, and a commitment to justice. Not overnight, but over time.

I like the blog and I like its authors.  If it’s not already on your reading list, consider adding it.

City Athletic Club, Las Vegas, Nevada

Disclaimer: I am a customer

When this gym opened up, it seemed to good to be true – modern equipment, a clean locker room, a pool, friendly and knowledgeable staff who weren’t trying to constantly upsell me on personal training.  (Gym locker rooms can be the stuff of horror stories you never forget.)  Three months later I’m still enamored, and if anything it has improved.

City Athletic Club is located in The Lakes neighborhood of Las Vegas, on West Sahara between Cimarron and Buffalo (incidentally, across from a pretty good sushi place).  It is a little more expensive than Las Vegas Athletic Club, but justifiably so: City Athletic Club’s advantage is exclusivity, and it limits its membership to a fixed number of possible members just like a country club would.  The result is that I don’t have to wander around the lifting area looking like I don’t know what I’m doing because every bench and cage is occupied at 7, 8, 9 or 10 at night.

The equipment is always clean, it is modern, and it works well.  While there are plenty of machines and nontraditional training tools like bosu balls that are highly correlated with fuckarounditis (see also), there are more than enough barbells and power racks for serious lifting.  There are also a wide variety of classes available with a standard membership.  They aren’t for me, but the schedule is impressive, and many may find the sessions valuable.

One thing that I think makes City Athletic Club so great is that the owner, Jae, is constantly on-site.  He’s always talking to his staff and his customers, setting up and adjusting new equipment, and continuously trying to enhance the experience his business offers.  I’m very impressed at his involvement with the club’s day-to-day operations and think it bodes well for the gym’s success.

Marc Randazza on Savage Nation

March 14, 2012

By J. DeVoy

Marc Randazza recently did this appearance with Dr. Michael Savage on his nationally syndicated radio show, Savage Nation.  Among the topics discussed were Rush Limbaugh’s latest kerfluffle with Sandra Fluke, and Savage’s banning from the Great Britain due to his critical statements concerning Islam, Muslims and others.  Listen at the link above or download audio from the appearance here.

Dispatches from the front in the primate intellectual property war

July 11, 2011

By J. DeVoy

Monkeys and copyrights have become a topic of fierce debate, and are at the leading edge of the great ongoing war between apes and humanity.

Crime and Federalism shows us why we should respect primate claims to intellectual property.  Please, someone amend the Copyright Act so that we may know peace in our time.

Open letter to Mr. Bardamu: Why won’t you pay for porn?

June 20, 2011

By J. DeVoy

On Ephemeral Notebook, Ferdinand Bardamu – skilled writer and friend of the blog – writes that Kayden Kross’ takedown of pirates won’t make him stop stealing porn.  While “stealing” is an emotionally charged word, and copyright infringement laws only affect uploaders on bittorrent, tubes and file locker sites (assuming, very generously, the latter two are DMCA compliant), that is ultimately what piracy of porn and anything else is about: Getting something for nothing.

I’m fond of Ferdinand, and his primary blog, In Mala Fide, is on our blogroll.  He links to my posts when they’re interesting and not too legal, and I link to his if I think readers here might appreciate them.  I’ve both written for his blog and written him in for the U.S. Senate.  To the extent I call him on the carpet like this, as if our blogs were some rap battle mixtapes, it’s nothing personal – I end up having this discussion with everyone I consider a friend.

So, Ferd:

Why won’t you pay for porn?  Or will you pay, but just for certain subsets of it?

I find that this attitude is common in men of our age.  It is hard to justify paying for something when so much is available for free.  But the shortcomings of these methods are readily apparent as people rave about discovering long-retired actresses whose content has just finally trickled onto some seedy overseas-based site.

What would it take to make you pay?  Is there a technological breakthrough you can think of that would make porn a worthwhile investment?  Or, if you were sued for copyright infringement, how much money would you have to pay before you’d never pirate again – $5,000? $15,000?  Or would it be some other amount on the continuum between a harsh lesson and complete and utter financial ruin?

As a nihilist, it is not your duty to care about whether other people earn a living.  You recognize the broad costs imposed by a coarsening of society.  But, from a self-interested perspective, you can appreciate what the deluge of sex and pornography means for your personal life.  By buying porn, you’re supporting the arts; under an extreme view, it could be like patronage for creators you particularly support, like the Medicis of Renaissance Italy.  Just as Renaissance art was inextricably linked with culture, so too is pornography wrapped into the modern zeitgeist.  Thanks to the lifetime oeuvre of, for example, John “Buttman” Stagliano – someone who risked a lengthy prison term to follow his principles – anal sex is not merely a reality for many men, but expected.  Sure, Stagliano got wealthy in the process, but his work and that of those he influenced have ensured that north of 80% of girls in our age range are up for some greek – and I’m not talking about gyros.  This is just one example of how what happens in porn affects real life, and, from my perspective, is worth preserving.

Again, FB, this isn’t an ax I have to grind with you; I’m not going to stop reading IMF or pull my links because we disagree.  To the extent you deign to acknowledge this letter, I trust you’ll articulate a thoughtful explanation for your positions on the issue.  As someone in the once-target demographic for porn, though, your thought process on this issue is important to understand – mostly because you’ll be able to state it so damn well.

Why the Westboro case should be porn’s victory as well

March 12, 2011

By J. DeVoy

Mark Kernes has an insightful piece at AVN about what the Westboro case (Snyder v. Phelps – read Randazza’s commentary here) means to porn – or should have meant, if the Roberts court wasn’t consciously out to limit the Court’s holding to the facts in Snyder.  Going beyond the political dimension of public concern, why aren’t matters of obvious social interest – measured by ratings, advertising dollars, headlines and column inches – accorded the same level of protection?  By any of those metrics, sex is certainly a matter of factual public interest, yet apparently not accorded the same legal significance.

It’s an interesting read, and Marks’ writing is better than a number of Opinions I’ve read, even from federal judges.  (I won’t name names.)  When I first started writing for this blog, Randazza recommended that I go back and read Kernes’ writings in AVN to get a sense of the industry’s legal history.  I still find Kernes’ pieces to be insightful and well-researched, even if he would politically disagree with me on, well, substantially everything.

ABA 100 Recommendations

December 27, 2010

By Randazza & DeVoy

Every year, the ABA Journal has a run-off of its top 100 Blawgs, which are selected by reader votes.  Others have made their recommendations so far, and now the time has come for us to offer ours.  Indeed, it is our hope to use this blog’s status as last year’s winner in the IMHO category to be the Kingmaker deep into this competition.  If you haven’t voted yet, you can register here, and then vote in each category (links to the categories are in bold).

Here’s the category-by-category breakdown:

Law Biz: What About Clients? Dan Hull is no pussy. If lawyers laid eggs and hatched their young, Randazza would have been in Hull’s nest.  Highly educated and a spirited advocate for his clients, he sees, and has long seen, that the legal marketplace for attorneys old and new is driven by value and versatility, rather than pieces of paper from exclusive schools that don’t teach you anything about legal practice.

News: Above The Law Enough said, and an obvious answer to anyone who reads legal trade news.

Law Prof Plus: This category is the bone that the ABA throws to the academic circle jerk. Most of the blogs in this category, if you waste a little time reading them, make you understand that term. However, Religion Clause, unlike competitors Feminist Law Professors and Brian LeiTTTer’s Law School Reports, is actually useful and insightful. Well, it is useful if you want to learn about the Religion Clause — which we do (and we would assume many of our readers do). It’s much more than useful, it’s great, but when dealing with academics, “utility” is the relevant threshold, and this is one of the rare law professor authored blogs to cross it. Honorable mention, TaxProf Blog, which is useful too. Of course, if the categories were organized properly, Volokh would be in this category, and he would pwn the shit out of it.

Torts: New York Personal Injury Law Blog Well written, prolific, and primarily dealing with one of the major legal markets in the country. However, Turkewitz strays from his yard a lot, bringing insightful commentary to many areas of law that have little to do with personal injury or New York. Don’t let the title scare you away.

IP: TTAB Blog You can actually teach yourself trademark law by reading this blog for 90 days.  Insightful, timely, smartly written, and covering a wide range of topics with appropriate context. John Welch, the author, is a hell of a great guy and blushes when told that certain lawyers got their start in IP law by reading his work.

Criminal Justice: Not Guilty Normally the endorsement might have gone to Simple Justice, but Greenfield would be too busy chasing kids off his lawn and eating disgusting, chalk-flavored Necco wafers to make it to the victory party if he won (assuming it was before his bed time). Besides, Greenfield despises the award and does not wish to win it. Nevertheless, Not Guilty is brilliantly written and a welcome addition to the blogosphere.

For Fun: Corporette A First Amendment attorney who tells women lawyers that they don’t have to dress in pantsuits and potato sacks to be successful.  Sounds fun to me. She’s a First Amendment attorney. We’ve got her back because she’s got the Constitution’s back.

Legal Tech: Tossup – Technology & Marketing Law Blog / Robert Ambrogi’s LawSites Both are strong blogs and we couldn’t pick a favorite.  If you’ve never heard of either of them, be sure to give both a read.

IMHO: Although we are nominated in, and currently leading, in the IMHO category, The Volokh Conspiracy gushes content published daily from leading writers and thinkers, and it is edited by probably the most brilliant legal mind in America and someone who would be a shoo-in for the Supreme Court if we were in charge.  Seriously, what the hell are you doing here?  Although the reading is sometimes a bit eye-glazing, since it consists of so much academic navel gazing, it is still amazing — think of a law journal without all the worthless parts. Volokh’s blog should be in the Law Prof Plus category, but he’s here with us, and there’s no shame in admitting that he’s better.  He has this blog’s collective vote – even over voting for ourselves.

But if our current lead in the competition holds up – and the Legal Satyricon wins again – we will assign the ABA’s award to goatsegirl.  Do not look at that website at work unless we are your employer. Really.  

Giving the credential to a site so vile and bizarre is the only way to properly thank the ABA for the stewardship it has offered this profession.  Between allowing the massive outsourcing of legal work to India, accrediting every toilet law school with a roof, and not even having the stones to categorically refuse accreditation to overseas law schools, goatsegirl seems like a great fit for the ABA, a dysfunctional and self-interested shitbucket of an organization if one ever existed. (more)

That said, we actually love the ABA Blawg directory and the ABA journal, and all the news we can find there. Martha & Debra serve up the only useful functions that the ABA manages to provide.

Blogs that belonged in the list: Popehat, Public Citizen’s CL&P, Citizen Media Law Project, Crime & Federalism, Siouxsie Law, and Spam Notes.

So, if you’ve got the time, register here. And then go vote in each category.


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