Stripper lacks class (status, that is)

She take my money, well I’m in need
Yeah she’s a triflin’ friend indeed
Oh she’s a gold digger way over time
That digs on me

An exotic dancer by the stage name “Ms. Behaved” sought to be a class representative in a class action against Fantasy Topless in Colton, California. Beachemin v. Tom L. Theaters, Inc. No. SACV 11-0394-DOC (C.D. Cal. Oct. 6, 2011). Beachemin brought suit against Fantasy Topless in an increasingly-common class action claim against strip clubs — alleging that the club misclassified the dancers as “independent contractors” as opposed to employees. The claim further alleged that as employees, the club failed to pay the dancers minimum wage and forced them to share tips with the management.

Fantasy Topless succeeded in knocking out Beachemin because she was not a proper member of the class she purported to represent.

It is well-settled that Plaintiff must be a member of the class for which she seeks class certification, in order to satisfy both the typicality and adequacy prongs of Federal Rule 23 class certification requirements. “[A] class
representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” (Order at 5)

Ms. Beachemin defined the purported class as follows:

[a]ll individuals, who at any time from the date four years prior to the date the Complaint was originally filed continuing through the present, worked as an exotic dancer at Fantasy Topless in Colton, California, but was designated as an independent contractor and therefore, not paid any minimum wages. (Order at 5-6).

Unfortunately for Ms. Beachemin, the court found that she wasn’t exactly a member of the class that she purported to represent. The Defense showed that Beachemin was never actually hired at the club, she never signed a “Dancer Contract” with the club (as all dancers were required to do), she never had a dancer license from the City of Colton, as all dancers are required to do. See Order at 6-7. The evidence showed that she only tried out to be a dancer, and only performed one dance for approximately three minutes. On the other hand, Beachemin testified that she worked at the club for two days, for a total of less than eight hours. The court was not persuaded and denied the Plaintiff’s motion for class certification.

Despite the Court’s cold reception to Ms. Beachemin’s claim to represent the class, the Court did not seem hostile to the claims themselves.

Plaintiff has accordingly failed to meet her burden of proving that she is an adequate class representative and that she possesses claims typical of the class. There is no indication that Plaintiff ever signed an independent contractor agreement, Plaintiff was never paid by Defendants, and Plaintiff was not forced to share her few dollars in tips with Defendants or any other Fantasy Topless employee. As such, she could not have been misclassified as an independent contractor, like the remainder of the Purported Class, and she suffered no injury from the Defendants’ tip-sharing policy, unlike the remainder of the Purported Class. This Court does not wish to unduly hamper the potential success of the rest of the Purported Class by approving Plaintiff as class representative when she appears not to fall within the her own definition of the Purported Class. The Court expresses no judgment on the likelihood of obtaining class certification on the basis of the above-described claims with a different member of the Purported Class serving as class representative. (Order at 8)

I ain’t sayin’ she a gold digga. But she does sound like someone looking for an easy payday. The judge saw through it, but once the lawyers find a dancer who was a proper class representative, they may find greater fortune. While most strip clubs traditionally classify their dancers as independent contractors, the employee vs. independent contractor analysis is trending against the clubs. See Clincy v. Galardi South Enterprises, Inc., No. 1:09-CV-2082-RWS (N.D. Ga. Sept. 7, 2011); Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139 (D.D.C. 2011).

Strip club owners need to make sure to cover their asses. Just like the protagonist in Golddigger sings “we want prenup,” dance club owners need to have their relationships papered — and papered right. And, if it costs a little more to classify a dancer as an employee vs. an “independent contractor,” they might just need to bite that bullet. The decisions are heavily trending in that direction, and the consequences can be quite expensive.

Give it a rest already – Myths and Facts about mass copyright litigation

by Vaughn Greenwalt

The latest criticism of mass-copyright litigation follows the same mantra of previously-pissed patrons: “I know I stole your porn but I’ll be embarrassed if anyone finds out so you can’t sue me!” Cut the crap already, “shame” is not a legal defense.

Lets play fact or fiction with the latest misleading article which was, oddly enough, endorsed by the EFF:

1. FACT: “The lawsuits name ‘Doe’ defendants until they can unearth the true identities of those accused of downloading porn through their Internet providers.”

Naming Doe defendants is the only way to bring suit against thieves who steal Copyright protected works over the Internet. The identities of those thieves is only ascertainable once the personally identifiable information associated with the thieves Internet Protocol address (“IP address”) has been subpoenaed.

The industry isn’t blackmailing thieves with the prospect of naming a Doe defendant, it is the only legal course to obtain requisite discovery.

2. FICTION: “The adult entertainment industry has dubbed [John] Steele the ‘Pirate Slayer.’ Steele calls the lawsuit a simple defense against copyright theft.”

Fact: Steele named himself “Pirate Slayer,” and most of the industry mocks him. When he showed up to a conference wearing a badge that said “Pirate Slayer,” he immediately gained the nickname “Buffy.” That’s what the adult entertainment industry calls him — Buffy. And it isn’t a compliment.

Every studio has separate and distinct legal counsel and thus a separate and distinct legal strategy. While I cannot speak to the strategy employed by Mr. Steele, I can speak to the strategy employed by the Editor of this blog – it is anything but simple.

Without violating my ethical duty of confidentiality and privilege, I have been in many a meeting in which special emphasis was placed on “doing it right.” Efforts to safeguard the privacy of the defendants, fairness to the defendants, an opportunity to defend before being named as a defendant, and forewarning of the suits before suits were filed. In addition, some studios offered amnesty to those who sought to protect their privacy.

3. FICTION: “The intent of these lawsuits is to get peoples’ identifying information and attempt to extort settlements out of them” – Corynne McSherry, EFF’s Intellectual Property Director.

Ms. McSherry’s dogmatic whining borders on mental illness. Perhaps she should look up the definition of “extortion.” Words mean something. This word means to obtain money or property to which one is not entitled by threats or coercion. When a copyright owner seeks redress under the copyright act, the copyright owner is seeking restitution in a manner specifically authorized under the law. McSherry should not use big words without supervision if she doesn’t know what they mean.

Copyright’s purpose is to foster the creation of creative works. The music industry has already been economically gutted thanks to the likes of Napster, Kazaa and Limewire; the porn industry is seeking to avoid that very same fate. If protection is weakened so too is the drive to create and thus all suffer (even those of us who enjoy it late at night while our partner is sleeping). If copyright protected content is freely distributed among torrenters, then studio membership is impacted, which then impacts studio revenue, which then impacts studio quality and quantity, which then in-turn further impacts studio membership, which ultimately impacts the studio’s very existence.

I hope the EFF recognizes the difference between dissent and disloyalty (I really love you guys!). However, I find it odd that the Director of Intellectual Property is tossing grenades at those who would seek to protect their own Intellectual Property.

4. FICTION: “The so-called “mass copyright” cases all follow the same format: an adult film company sues scores of anonymous defendants, alleging a particular movie was pirated using the popular file-sharing technology BitTorrent. The number of defendants can be staggering, dwarfing the scope of the music industry’s lawsuits; there were 2,100 Does named in one recent San Jose case, and 23,000 in the largest thus far in Washington, D.C.”

As referenced above, every porn studio has independent legal counsel complete with independent legal strategy, while some attorneys may look for the quickest and most efficient way to make a buck for their clients, others, like my Editor, do not.

Some attorneys, while legally proper to sue 23,000 defendants in a single suit, put their law clerks through WEEKS OF PURE TORTURE to determine the location of the individual IP addresses and group them based on state and federal judicial district. Once determined, suit is brought against them in their home state and district and regularly reduces the number to less than 100 Doe defendants in any single suit.

Again, some attorneys take great pain to make litigation fair for thieves.

5. FACT: Mark Lemley is… eh…. brilliant?

I have been to many symposiums where Mr. Lemley has proposed theoretically brilliant additions to U.S. Intellectual Property Law. I have witnessed, in sheer awe, his ability to dismiss, answer and be condescending all in a single sentence.

However, Mr. Lemley’s brilliant theoretical ideas are not so brilliant when it comes to actual litigation and practice . Incredibly, Lemley provided a brilliant addition to the subject article regarding the porn industry’s torrent suits: “… it made people at the margins nervous about file sharing… people are going to think twice about doing this.” Lemley is absolutely correct in his assessment. THIS is the ultimate goal of the porn industry’s torrent litigation; not to shame the pron-viewing public (honestly, isn’t that all of us?) for their lunch money, but to deter the theft and infringement of their Intellectual Property.

The simple answer to EVERY concern opponents of mass-copyright litigation has is incredibly simple: Theft is theft – no matter the medium. STOP STEALING SHIT AND YOU WON’T HAVE TO WORRY ABOUT IT!!!!

Cheers to patriotism and logic!

By Tatiana von Tauber

Georgia Republican, Jack Kingston, deserves applause.   Why?  Because Kingston is exercising logic: he supports lowering the drinking age for military service members. 

“If you’re 18 years old, you can get married, you can sign a contract, buy a piece of property, you can do just about anything, except buy a beer,” said Kingston. “We’re telling young people, you can fly a BlackHawk helicopter, you can drive an Abram tank, you can squeeze the trigger on an M4 rifle and kill a fellow human being, but when you go back home to the officer’s club or MCO clubs, we’re not going to let you make a decision to a beer with your chicken dinner. I think that’s ridiculous and it’s an insult to the men and women who give us freedom.” (source)

Beautiful.  Now if we could get this kind of thinking to transition into other areas we can again become greater than the status quo. I say lower the drinking age all around is the ultimate goal being all 18 year olds have equal rights but one has to begin somewhere and if anyone deserves it, it’s our loyal soldiers.

“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

by Jason Fischer

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon.  No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie.  (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.)  It seems that she was arrested because theater employees saw her operating a video recording device (source).  Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

UPDATE:  Cook County prosecutors have dropped the charges against Ms. Tumpach (source).  Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.

Mattel finally learns how to “chill”

by Jason Fischer

One of the chores inherent in the practice of law is that one has to read a lot of really REALLY dry court opinions. It’s always nice when you find judges out there who recognize this, and make some effort to keep it interesting. One of my favorites from law school has always been Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002). Well, this week saw an interesting footnote added to that opinion.

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90’s, called “Barbie Girl.” The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed. True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit. While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment. The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company. That’s fair use.

Everyone appeals, hilarity ensues

Hon. Alex Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line: “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.” From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on. Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat. For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here). However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up. (source)

New commercial with altered lyrics

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This story was originally published on GaneshaFish.com

In Lakeland, Florida, saying “Im’ma kill me a cop one day” will get you two years in prison

by Jason Fischer

A Lakeland, FL man has been sentenced to two years in prison for recording a rap song entitled “Kill Me a Cop” (source). It seems that the local sheriff’s office considers the lyrics to be a credible threat of imminent violence — never mind the fact that the source of that “imminent” threat was in county jail on parole violation when “apprehended.”

The Asshat in the Rye

Fuck You, Old Man Salinger

J.D. Salinger wrote one of the most influential novels in modern history. If you don’t know which book that is, then you’re a moron. That might piss you off, if you are one of those who don’t know which book Salinger wrote, being called a moron and all. All morons hate it when you call them a moron.

Since writing his book, Salinger pretty much didn’t do anything worthwhile. Sure, he wrote a few more books, but nobody read them and nobody much cared. The Catcher in the Rye (fine, morons, there it is) was his magnum opus, and if I ever wrote something that damn good, I probably wouldn’t bother to write anything anymore either. I’d just go off and sit on a beach and drink mojitos with my royalty check money. Of course, then I might get drunk and call the guy a moron, because the guy usually is a moron.

But back to the book. What really knocks me out is a book, when you’re all done reading it, you wished the author that wrote it was a terrific friend of yours and you could call him up on the phone whenever you felt like it. The Catcher in the Rye knocked me out that way. I think it knocked out this Swedish guy, goes by the name J.D. California, because he wrote a sequel to The Catcher in the Rye where the main character is in his 70s and runs around New York City as a crazy old coot. I’m pretty sure that the book, 60 Years Later: Coming Through the Rye, sucks. I haven’t even read it, but if it was written by a Swedish guy obsessed with America and he can’t come up with a better pen name than “J.D. California?” I’m sure the book is a bunch of lousy recycled crap about what he sees on T.V. and thinks that is anything to do with the crumby America we live in.

Crumby and stupid or not, it was probably about time someone writes a sequel to The Catcher in the Rye. You might figure that Salinger would do it, but until today, I thought the old coot was dead. I guess he is still alive, 90 years old, he probably smells like that old guy smell, writing crap wishing he could write The Catcher in the Rye again.

Well, old man Salinger got right sore at “J.D. California,” for writing his sequel, and he’s suing him for it. I can see him now, old man Salinger and some stick up his ass crumby Ivy League lawyer, maybe even an academic with stupid patches on the elbows of his jacket, in court to stop J.D. California from writing the words “Holden Caufield,” because Old Man Salinger thinks that he owns that. Crazy old bastard. But, phony J.D. California doesn’t even call the guy “Holden Caufield.” He just uses the name “Mr. C.” Here’s Salinger’s lousy complaint full of self-important goddamned junk. God I hate that stuff.

If you really want to hear about the suit, the first thing you’ll probably want to know is what “fair use” is, and what Section 107 of the Copyright Act says and all that Mel Nimmer kind of crap but I don’t feel like going into it, if you want to know the truth. I don’t really write this blog for people who don’t know that kind of stuff already.

And like I said, I haven’t read anything by “Mr. California,” so maybe it is a “rip off,” like Old Man Salinger says, but I doubt it. Among other things, you’ll find that Old Man Salinger is not the first person who was ever confused and frightened and even sickened by human behavior and wrote a book about it. If his book is about a guy right out of high school, and “California Man” writes his about an old bugger, with maybe the same name and all, I can’t see any way that could be “copyright infringement,” at least not the section 106 or 107 version of it they taught us in my crumby law school. And if it pisses you off that there are guys out there who contribute one thing to the collective culture, and then think they have a monopoly on anything related to it, well you’ll be excited and stimulated to know. Many, many men have been just as troubled morally and spiritually as you are right now.

The thing is, anything that pisses you off and sickens you or stimulates you is probably something that another alienated wack job felt. Happily, some of them kept records of their troubles. You’ll learn from them – if you want to. Just as someday, if you have something to offer, someone will learn something from you. It’s a beautiful reciprocal arrangement. And it isn’t education. It’s history. It’s poetry. But, don’t you know, Old Man Salinger’s mind must be so addled by brain rot and the whisperings of his crumby Ivy League lawyer that he doesn’t give a shit and now “Mr. California” will stand trial for more than picking a really queer pen name.

The crappy part of it is that we’re seeing this happen again and again. First crappy Seinfeld and his suit in Castle Rock.

Crumby judge

Then bitchy J.K. Rowling proved that you can take the white trash out of the U.K. ghetto, but it doesn’t change that she’s trash. And we’re supposed to be all nice about it, and say that they are just living off the fruits of their creative labors. But really, they are just putting big “Fuck You” signs on every stupid corner of the culture and they don’t care – because they made their money, and their stupid stick-in-the-ass Ivy League lawyers don’t care either, because they feel entitled. And if you ever wondered reasons why Sonia Sotomayor is a crumby judge, all you need to do is read her Castle Rock opinion – Castle Rock Entertainment v. Carol Publ. Group, 955 F. Supp. 260 (S.D.N.Y. 1997) where, like morons usually do, she stacked the deck for the big guy and crapped on the First Amendment.

In that case, Beth Golub watched too much Seinfeld, so she wrote The Seinfeld Aptitude Test, a bunch of trivia questions testing the reader’s knowledge of the Seinfeld TV Show. It doesn’t get much more “fair” use than that, but Sotomayor decided to apply a quasi-trademark law view mixed with a bizarre and narrow view of the fair use doctrine – and that since Castle Rock might have one day expanded their works into the trivia book realm, that Golub was infringing on Castle Rock’s derivative use rights. Then the crumby Second Circuit upheld her opinion. See Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998).

So with the crazy opinion in Castle Rock, you know that this is why Old Man Salinger filed in the Southern District of New York. After he saw Rowling win her case – even though Ol’ Bill Patry even thought she shouldn’t have – then you know that Old Man Salinger was just drooling on his remote control when Matlock came on and then his Ivy asshole lawyers told him he could win. And you know he will even though there’s no way he can say that he was gonna write the sequel, because he just hides in some cabin in New Hampshire, writing nothing or writing something but not publishing it.

Knowing that is half the way to knowing that copyright law has gotten seriously fucked up. The Copyright Clause says that it is there to promote the progress of science and the useful arts – and they thought that writing books was a useful art, don’t you know, so how is it “progress” to stop this “California Dreamer Guy” from writing his sequel, when all that Salinger should be writing is his stinking tombstone. If you think about it, and read Sotomayor’s anti-speech dribble and drabble and drivel you’ll start to see that she, and Old Man Salinger are the reasons that the whole damn culture is covered with “Fuck You” signs written by Ivy League assholes. And all it proves is that if you had a million years to do it in, you couldn’t rub out even half the ‘Fuck you’ signs in the world. It’s impossible. So I’ll just make one of my own.

Fuck You, Old Man Salinger. Fuck You.

MOTHERFUCKER! Fox v. FCC Overturned; Clarence Thomas Captured by Space Aliens!

Clarence Thomas appears to have been captured by aliens and replaced with a reasonable facsimile who respects the First Amendment!

by Marc J. Randazza and Jason Fischer

The 5-4 decision came down yesterday. In an opinion written by Scalia, the Second Circuit’s speech-protective ruling in Fox v. FCC was overturned. (Prior decision discussed here) At least the Court left open the question of whether the FCC’s policy might violate the First Amendment in certain circumstances.

Scalia says vaffanculo to the First Amendment (what else is new, lately)

Scalia flatly rejects any notion that he might have a responsibility to examine the First Amendment issues in the case.

The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. (Op. at 25-26)

In other words, Scalia gives a big “fuck you” to the principles laid out in two key First Amendment cases. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

On what grounds did the Court overturn the Second Circuit’s ruling?

The Second Circuit said that the FCC acted arbitrarily and capriciously in suddenly changing its three decades old position that “fleeting expletives” are not actionably indecent. The Second Circuit said that some of the FCC’s justifications for its new policy, in contrast to the earlier policy, were “divorced from reality“.

Scalia’s view is that as long as the FCC can come up with any articulable rationale for its rule, and it could have enacted the rule in the first place, it doesn’t need to have a more detailed reason to change the rule. The Constitution be damned:

In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. (Op. at 12)

Nevertheless, the analysis of the administrative procedures act and an agency’s rule-making authority is, quite honestly, too dull for me to get into in depth. (A future update may change this). Suffice to say that the FCC can change the rules if it has some reason to do so.

But here is where it gets exciting.

Are you sitting down? Good. Read this from a concurrence in the case.

I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. (Concurrence at 1)

Guess who wrote that… wait for it… waaait for it.

Clarence Thomas!

Yeah, THAT Clarence Thomas.

Holy shit, it gets better.

First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. (Concurrence at 3)

A reminder, that is Clarence Thomas writing there. Clarence. Motherfucking. Thomas.

I am open to reconsideration of Red Lion and Pacifica in the proper case. (Concurrence at 6)

Clarence Thomas. First Amendment Bad Ass of the Week.

UPDATE: According to Fischer, Thomas has always been awesome.

Indian Politician Wants “Slumdog” Song to be Public Property… (so he can use it in his campaign)

by Jason Fischer

“Anyone should be able to use the song. ‘Jai Ho’ should not belong to any one; it belongs to the country,” claims Atul Shah, an Indian politician who is seeking election (source). The song, from the film “Slumdog Millionaire,” won this year’s Academy Award for Best Song. Even if it had not, its title, which translates to “Be Victorious,” would work quite well in campaign ads or at rallies. Unfortunately for Mr. Shah, his political opponents have already secured the exclusive rights for those uses from the owner of the intellectual property. His solution: End Intellectual Property Rights Now!

On another note, it is hard to ignore the irony in this situation. Many credit the incumbent party – the ones that Mr. Shah hopes to defeat – with the poverty portrayed in the film. One opposition party member, Nanendra Modi, is quoted as saying that, “[i]f it were not for Congress misrule for the last 60 years, there would be no slums and then no slumdog (film) and no Oscar.” If “Slumdog” was intended to be some kind of protest or criticism, why would its producers agree to license the song to those responsible for their outrage? I guess they must not be too worried about street cred.

Producers of Copyrighted Content – They Just Don’t Get It

by Jason Fischer

I don’t understand why producers of copyrighted content have such a hard time comprehending their customer base. We’re not that difficult to fathom. We only really have a few, simple needs:

• We want to be able to get to desired content, whenever and however we want.
• We don’t want to pay through the nose for it.
• If you make it difficult for us, there are other ways for us to get what we want. Ways you don’t like, because it means you won’t get your cut.

It’s precisely because content producers don’t understand us that we have scenarios like this.

I really thought that everyone was coming closer together, though, producers and consumers, when I discovered a service called Hulu this summer. It just so happened that I found myself, for about six weeks, in a place with Internet access, but limited cable service. I began to fret when I realized that I would not be able to get my weekly Battlestar Galactica fix – right when the last season was beginning to air. Also, with the writers’ strike delaying everything, many of my other favorite programs were still running new episodes into June. I was going to miss the season finales for a handful of shows, which I had been watching religiously at home. I began to panic a little bit.

Tim Tebow should visit whocanisue.com

by Jason Fischer

The University of Florida starting quarterback likely has a valid claim for infringement of his right of publicity, provided he has not authorized this bit of creative expression that is currently available for purchase.

Gator Nation response:

Too Old To Strip? Canadian Dancers File Age Discrimination Suits

By Jessica Christensen, Employment Law Correspondent

Kimberlee Ouwroulis

Kimberlee Ouwroulis, age 44, and Barbara Sanders, age 45, are both Canadian exotic dancers who have filed complaints with the Ontario Human Rights Tribunal against their former employer, New Locomotion, for age discrimination.

According to Ouwroulis, she began working for the New Locomotion club in Mississauga, Ontario as an exotic dancer when she was 40 years-old. In June, her manager called her into his office and told her “your time is up” and that the club was going in a new direction, with younger dancers. (source) Sanders, who had only worked for the club for seven months, was told by the same manager that she was too “old and ugly” to continue as an exotic dancer. (source) Both women have since found jobs as dancers at other Toronto area clubs.

Barbara Sanders

While the actual complaints filed with the Tribunal (Canada’s equivalent of the U.S. EEOC) have not yet been made public, news reports seem to suggest that both Ouwroulis and Sanders performed well as dancers, and were capable of performing their job duties. Reports also suggest that the reasons both women were fired – their ages – are not disputed. Assuming this is so, the only real question to be decided by the Tribunal is whether or not under Canadian anti-discrimination laws, it is permissible for a strip club to use age as a Bona Fide Occupational Qualiication (BFOQ).

Canadian law regarding age discrimination in employment is nearly identical to U.S. law (e.g., the Age Discrimination in Employment Act, or ADEA). In both countries, an employer may only use age as a factor in hiring, firing, promotions, etc. if age is a “BFOQ” – in other words, is reasonably necessary for the normal operation of the business. An easy example is the U.S. Constition’s requirement that a person is not eligible to be elected president or vice-president unless he or she is at least 35 years old. This is an easy example because the age related qualification is an objective one.

The ananysis is much more difficult where the qualification is a subjective one, such as “attractiveness.” For example, in Lindsay v. Prive Corp., 987 F.2d 324 (1993), the employer club terminated the plaintiff, who sought promotion from waitress to topless dancer, stating that she was “too old” and that she did not meet the club’s standard that all dancers must be “beautiful, grogeous and sophisticated.” In overturning the lower court’s grant of summary judgment in favor of the employer, the Fifth Circuit noted that while a court cannot second-guess the employer’s determination of what it means to be “beautiful, gorgeous and sophisticated,” it was for a jury to decide if the club’s assertion of this reason for the plaintiff’s termination was credible, or instead was pretext for age discrimination.

The Lindsay case highlights a particularly thorny issue for employers – especially those in the adult entertainment industry – because commercial concepts of “beauty” or “attractiveness” are intimately related to age. Case law has yet to develop any clear standards delineating where attractiveness standards veer into the territory of discrimination, but it’s not hard to imagine the arguments that can be made on either side. If the Canadian women were financially successful as dancers and can establish that they performed well financially in relation to other dancers, the club will have a difficult time establishing that they did not satisfy the club’s attractiveness standards. On the other hand, if a club markets itself as providing “young” dancers, the women may have difficulty overcoming the club’s internal decision about what “young” means.

One thing is clear – with an aging majority workforce, enterntainment employers can expect to face an increase in age discrimination challenges to practices that have until now been accepted as just how the business works.

The DMCA? She Bite Sometimes – Lenz v. Universal

Bubble Pearl Drink!
Let Me Crazy!

In Lenz v. Universal, the N.D. Calif. allowed a little push-back against overreaching copyright owners who wield Digital Millennium Copyright Act (“DMCA”) takedown notices like a blunt club.

In February of 2007, Stephanie Lenz videotaped her toddlers dancing in her kitchen to the Prince song, “Let’s Go Crazy.” She then uploaded the 29 second video to Youtube. “Let’s Go Crazy” can be heard for 20 muffled seconds. Universal then sent Youtube a DMCA takedown notice, and Youtube complied.

Lenz sent YouTube a DMCA counter-notification pursuant to the little-used portion of the DMCA codified at 17 U.S.C. § 512(g) Lenz took the position that her video “constituted fair use of ‘“Let’s Go Crazy’ and thus did not infringe Universal’s copyrights. Lenz filed a counter-notification and demanded that the video be reposted.

YouTube re-posted the video on its website about six weeks later.” (Source at 2) Lenz then utilized an even more rarely-employed portion of the DMCA, 17 U.S.C. § 512(f), which provides for liability to be imposed on those who file DMCA notices without the requisite good faith belief that the material in question is an infringement of the copyright owner’s rights. Universal moved to dismiss claiming that it did not need to consider fair use when sending a DMCA notice.

Universal contends that copyright owners cannot be required to evaluate the question of fair use prior to sending a takedown notice because fair use is merely an excused infringement of a copyright rather than a use authorized by the copyright owner or by law. (Source at 5)

Lenz countered:

Lenz argues that fair use is an authorized use of copyrighted material, noting that the fair use doctrine itself is an express component of copyright law. Indeed, Section 107 of the Copyright Act of 1976 provides that “[n]otwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Lenz asserts in essence that copyright owners cannot represent in good faith that material infringes a copyright without considering all authorized uses of the material, including fair use. (Source at 5)

The Court found that Lenz had the more persuasive argument:

Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,” the owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. (Source at 6)

Universal then complained that it would be too hard to evaluate whether something was fair use. The Court didn’t buy it.

Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements. The DMCA already requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice; indeed, it would be impossible to meet any of the requirements of Section 512(c) without doing so. A consideration of the applicability of the fair use doctrine simply is part of that initial review. (Source at 7)

Too many copyright owners misuse the DMCA as a mandate to squash all use, fair or not, of their material. In a particularly egregious example, Professor Wendy Seltzer posted a clip of the NFL’s copyright notice, and the NFL issued a DMCA takedown notice. Story here. With any luck, this N.D. Calif. case will make copyright owners think twice before sending out a ham-fisted DMCA notice.

FCC Gets Punked Again

When, oh when, will the FCC learn that it too is governed by the First Amendment?

The Third Circuit held that although the FCC possesses the authority to regulate indecent television content, it “had long practiced restraint in exercising this authority.” (Opinion at 13). This restraint had previously limited the FCC to find that broadcast material was indecent only in a few occasions “where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience.” (Opinion at 13).

During this entire period, the FCC consistently had a policy that isolated or fleeting material was not actionable indecency.

At the time of the infamous “wardrobe malfunction,” this policy was still in effect. However, in a blatant move to pander to the “values voters” who ushered in the Bush regime, the FCC decided to change this policy without notice or explanation immediately once the Super Bowl XXXVIII “wardrobe malfunction” hit the airwaves.

The Third Circuit found that while the FCC has the privilege of changing its policies, it must do so reasonably and not in an arbitrary or capricious manner. For engaging in this ambush-style policy change, the Third Circuit found the FCC’s actions “arbitrary and capricious under the Administrative Procedure Act as applied to CBS.” (Opinion at 14).

Additionally, the Third Circuit found that the FCC’s decision to hold CBS liable for Janet Jackson and Justin Timberlake’s halftime show performance was improper. Since Janet Jackson and Justin Timberlake were independent contractors, trying to hold CBS accountable was unlawful.

The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability. And, it is unclear whether the FCC correctly applied a “willfulness” standard to find CBS liable for failing to prevent the Halftime Show’s indecency. (Opinion at 50)

This decision is not only very satisfying to me as a First Amendment advocate, but it also has the right tone when considered in light of Deborah Taylor Tate’s recent statement that “the law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Hopefully Ms. Taylor Tate and her asshat colleague, Kevin Martin, will now also learn that the First Amendment is also neither difficult to understand nor burdensome to follow.

Paul Broun hates our freedom and hates our troops

Forgive the headline, but I just love feeding conservatives neo-cons their own feces.

Rep. Paul Broun, R-Ga., has proposed H.R. 5821, the so-called “Military Honor and Decency Act” to close a “loophole” in the law that allows nudie magazines to be sold on military bases. Irony alert! If it passes, the people who are fighting the taliban, allegedly to protect our freedom, will no longer have the freedom to buy the latest issue of Penthouse.

“Our troops should not see their honor sullied so that the moguls behind magazines like Playboy and Penthouse can profit,” said Rep. Paul Broun, R-Ga., unveiling his House bill April 16. (source)

Broun trotted out the typical anti-porn rhetoric, spouted from pulpits and womens’ studies departments nationwide.

“Allowing sale of pornography on military bases has harmed military men and women by escalating the number of violent, sexual crimes, feeding a base addiction, eroding the family as the primary building block of society, and denigrating the moral standing of our troops both here and abroad.” (source)

If our military members are so fragile that they can’t take the sight of a naked woman (or man) in a magazine without falling apart, we’re going to need to hire some mercenaries to handle our foreign expeditions. Anyone soft enough to lose it over Penthouse isn’t really fit to write traffic tickets, let alone tote an M-16.

The measure was specifically targeted at Playboy and Penthouse. Those two publications made it through an earlier, less restrictive, review process. The military censorship board decided that both Penthouse and Playboy had “enough nonsexual content to be acceptable.” (source)

One veteran made a particularly sharp point:

So what basis does this Paul Broun make on pornography being unsuitable for us to view? As a former paramedic was I able to view the human body injured, mishapen, diseased and traumatized for the good of the country, but unable to exercise individual responsibility by going to a strip club on a Friday night? (source)

Another military member had this to say:

Still, the irksome thing about the Christian Taliban trying to deny everyone else anything they don’t approve of is that it creates a more uptight and less “fun” military. Good thing the Recession arrived to ensure retention.

The Cold War USAF, for example, was a “work hard, play hard” environment. Now it’s a “one mistake Air Force” where it’s all work and boring wholesomeness (well, someone ELSES idea of wholesomeness) instead of real martial spirit. Now that we are gradually morphing into a drone deployment corporation this may not matter much…but consider the people who want to micromanage what you read are displaying UTTER contempt for YOU by restricting YOUR choices. (source)

Yet another made this point:

Bottom line, I’ve been to Iraq twice now and sacrificed for the country and its freedom. What the hell are these Republican fundamentalists to push their morality on us? (source)

Amen, brother.

Oh, I almost forgot the best part. Broun’s justification for this measure? He doesn’t want government funds to go toward procurement of pornographic materials. When he was informed that the PX doesn’t give the magazines away, and that the base exchanges are self-funded, a Broun spokesman responded with this zinger.

Broun’s spokesman John Kennedy contended that taxpayer dollars are involved — “used to pay military salaries, so taxpayer money is, in effect, being used to buy these materials,” he said.

A man in uniform replies:

If the senator thinks that taxpayer money is used to buy these items because our salary comes from taxes I feel that all government employees should be subjected to the same standards. This should not include just pornography, but also alcohol, tobacco, violent video games & movies, any clothing that is a color other than white or black(could over stimulate your senses otherwise), spending more than $10 on a haircut, or anything else someone can come up with that would make him have to give up something. We are paid for services rendered and we should be allowed to spend our money in a way we see fit. Last time I checked all mombers of the military are legally adults and therefore can make decisions for themselves. (source)

Paul Broun, you are the ass-hat of the week, and the first to bear the title “Ass hat who hates our freedom and hates our troops.”

Runners up for the ass-hat award are the 16 freedom and troop hating sleazes who co-sponsored the bill. Take a bow, y’all.

Rep. Paul Broun, R-Georgia
Rep. Todd Akin, R-Missouri
Rep. Steve Chabot, R-Ohio
Rep. Randy Forbes, R-Virginia
Rep. Jeff Fortenberry, R-Nebraska
Rep. Virgil Goode, R-Virginia
Rep. Marilyn Musgrave, R-Colorado
Rep. Joe Pitts, R-Pennsylvania
Rep. William Sali, R-Idaho
Rep. Mark Souder, R-Indiana
Rep. Roscoe Bartlett, R-Maryland
Rep. Peter Roskam, R-Illinois
Rep. Steve King, R-Iowa
Rep. Rob Bishop, R-Utah
Rep. Mike Pence, R-Indiana
Rep. Chris Smith, R-New Jersey