I DECLARE CONFIDENTIALITY!

You remember that episode, where Michael Scott declares bankruptcy?

Keep that in mind for this lesson, kids.

This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:

CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED

The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.

Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.

And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.

For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.

When I get one, I usually email the other guy and say “I’m not going to respect your request for confidentiality.” I give them a chance to support their position. When they don’t, I ask them if they want to give me something in exchange for confidentiality. So far, no takers.

Then, they realize “holy flaming peckerballs, this Randazza character can see right through the I DECLARE CONFIDENTIALITY trick! Randazza has spell capability? FUCK, he’s not a fighter, he’s a goddamned level 9 Ranger, and he’s got Druid spells! HE JUST CAST THE ‘SEE THROUGH BULLSHIT’ SPELL!!!!!

I know, it’s my intellectualize proprietary res judicata!

So then they try again…

“Aha, smart ass. That letter is COPYRIGHTED! I hereby throw the spell of Title 17!”

Bush. League. Shit.

If someone pulls that on you, they’re even more full of shit than the guy who just tries the I DECLARE CONFIDENTIALITY spell.

Dumbass rolls a 2.

Here’s why:

It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. It was required viewing in my classes, back when I did the lawprof thing. New hires need to watch it at my firm. You need to watch it.

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 his 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 C.D. of California also pointed out portions of the Copyright Act’s legislative history, upon which a re-poster of a demand letter can rely:

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, when a law firm sends you a cease and desist letter accusing you of illegal activity, you can use that letter to provide your own supporters with copies of it in order to effectively give your own views on the issue — and to gather support for your cause. And… to make fun of that shit (because making fun of buffoons is classic fair use)

The legal landscape for I DECLARE CONFIDENTIALITY gets even more gloomy as we continue to read the Hustler case. The First Amendment rears her sexy pouty slutty face. (Yes, I want to bang Lady Liberty. Its a fetish. Constitutional cosplay anyone?)

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, from any lawyer (including me) can 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 demand letter and used it as my own, then I might be committing copyright infringement. On the other hand, if I use the demand letter to ridicule the author, and the result of that ridicule is that consumers form the opinion that perhaps it would not not be a wise choice to select that lawyer to represent them, that 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. The cease and desist 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.” This is a slight tilt from the more common “fair use is an affirmative defense” logic. 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 a DMCA notice and take down was defective and that the sender was liable for material misrepresentation. § 512(f) FTW.

Conclusion

In short, while this is not legal advice, I’d say that if you want to reproduce a cease and desist letter as an act of self-defense or criticism, you should feel comfortable that the fair use defense will back you up.

And 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.

Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.

Lena, meet Barbra.

So with that, here’s a really stupid demand letter from Lena Dunham’s attorneys. It isn’t just dumb because it tries the aforementioned tricks — but substantively, dood… really? You’re supposed to be a better lawyer than that.

Short version of the story: Lena Dunham wrote a book in which she arguably wrote about doing some sketchy shit with her little sister. Truth Revolt wrote about it. The quotes from the book back up the Truth Revolt article. Dunham got all snippy about it. (source)

Yeah, that was pretty fucking stupid.

Its not stupid that she did it. She was a child. Ok. I can live with that. Its not even stupid that she wrote about it. Respect to her. (Ok, not really, book sounds like a piece of shit) But, what the monkeys-eating-their-own-feces-fuck was she thinking in authorizing a law firm to make a stink about it? Stupid. Well, unless they had a meeting and said “hey, Lena, want us to totally fiddle-fuck you by making you look like an asshole? Well then, have we got a plan for you!” If that happened, then GENIUS!

This article constitutes confidential legal communication and may not be published in any manner.

(just kidding)

Ebola is the New Black

There is a 75% chance that this man has Ebola. He is wearing sunglasses for your protection, because making eye contact with black people is scary as fuck, and will kill you because Ebola.

Ok, not really, but I figured it was a catchier title than “Ebola is the new paranoia for the stupid genetic refuse that proves that Idiocracy was not just a movie, but a prophecy.”

That would just not do as a headline. But, I suppose it is a clumsy, but effective lede.

Remember “give up ANY rights, as long as it keeps us safe from Beardsley McTurbanhead, who is going to kill us all if he can?”

How could you forget? That fad isn’t over yet.

But, just in time for the new fall idiot fashion season, we have Ebola!

And, while there’s been plenty of stupidity surrounding ebola so far, I think that the stupidity has finally become self-aware, and is now firmly in control of SkyNet.

A nurse at the Howard Yocum School in Maple Shade Township, New Jersey sent a letter to staff members informing them that two new students from Rwanda, Africa would be arriving at the school on Monday.
“This is not an area identified as a country with an Ebola outbreak, however l am taking precautions as per the health guidelines of the Burlington County Health Department,” the nurse wrote.  “I will be taking the students’ temperature three times a day for 21 days.” (source)

I’d like to introduce people to this new thing called A FUCKING MAP. Its like a picture with just a few words, so you don’t even need to read too good to understand it.

Getting from Monrovia to Kigali is pretty easy. You can either drive for about 90 hours, or take two planes and 17 hours to get there. Then, its just a hop, skip, and a jump into The Homeland.

Terrorist

But, you can never be too safe.

We need one of those “Real Men of Genius” ads for the Howard Yocum School Nurse.

Thank you for making us all a little dumber, while protecting us from the same disease that killed less than 3,000 people worldwide until the most recent outbreak. But, lets not discount the danger. This one looks like its gonna be pretty bad — with about 5,000 dead so far. The vast majority of those deaths in places like Liberia and Sierra Leone. You know, unsanitary shit holes where lots of diseases fester, and kill people who would just shrug it off in a cleaner country with a decent medical infrastructure.

But, you know. Africa. Ebola. Same thing. Africa might as well be The United States of Ebola.

Ebola carrier using secret jungle-disease-gun to try and kill an unidentified random innocent caucasian woman, presumed to be Natalee Holloway. He is assisted by an apparent Muslim.

You see, when you have a disease that is transmitted through bodily fluids, and those bodily fluids tend to be dumped in public places, and you have a virtually nonexistent public health system, then you have a good breeding ground for communicable diseases.

But why let facts get in the way of a good ghost story? We have a communicable disease with a 50% fatality rate. That’s good fodder for TV news that gives you all the information you need to make informed decisions in all of a 120 second spot. Right? Ok, but how can we really make this spooky? Hmmm…

The Super Secret Project officially declared that Ice Cube is no longer scary. (source) Despite that scientific finding, Americans are still scared shitless of black people.

And, fear is what brings the eyeballs.

But fear is also why America sucks.

If you haven’t seen this clip yet, watch it. (Direct link here)

I can’t think of any more brilliant writing. I am not even going to try and match it.

But, that video, fictional as it is, tells you that we are not the greatest country in the world anymore, and why. Because when we were, “we aspired to intelligence,” and “we didn’t scare so easy.”

And we don’t do that anymore. And scare easily is exactly what we do. We are a bunch of superstitious idiots, scared to death, of any simple narrative. (And I recognize that I am illustrating that that with a 4 minute video clip).

Beardy McTurbanhead is coming to blow you up, scary negroes who you can only see in the night with bloodshot eyes and white teeth gleaming at you, as they spit ebola in your face. We can’t be too tough on crime. It would be easy to blame this on simple old fashioned racism, but I won’t. More planes and bombers, please!

Racism is not a disease. It is a symptom. It is a symptom of our national commitment to ignorance and stupidity (which replaced our profound national commitment to wide open and robust debate).

And the school nurse at Howard Yocum probably had no idea when she made this asinine pronouncement that she was putting another nail in the coffin of what this country used to be, and likely never will be again. Nevertheless, there she was, hammer in hand, pounding on the lid.

But she can’t do it alone.

Her stupidity flows down a river of it, that emanates from every American household (statistically speaking anyhow). Like an open sewer in West Point (Liberia, look it up), it shits out of every one of us. And if you just decline to shit in the river, you’re still part of the problem. If you’re not actively part of the clean up, then you’re part of the filth.

So, we have to pelt this “well-meaning” person with rotten tomatoes. Why? Because she is why this is no longer the greatest country in the world. Fear is a parasite that can only live in the sweaty fat rolls of ignorance. And that parasite is now in control of the entire host body.

You want to “cure ebola?” Cure your own, and everyone else’s stupidity about it. Or about anything. Today. Now.

An Open Letter to Journalists

Dear Members of the Media,

I sincerely appreciate all of your hard work in bringing us the news of the day. In this day and age, there is a lot of burgeoning information and it is cumbersome to sift through all of it to provide summaries to the masses. However, there is one thing you do not do that is incredibly frustrating–provide citations.

In reporting on a new science publication, you do not always provide a citation so that the interested reader can learn more. Worse, you rarely identify bill numbers, session laws, or case name/citations when reporting legal news. As a privacy attorney, I found the recent Massachusetts “upskirting” issue might warrant attention. It would have been helpful if you cited the case as Comm. v. Robertson, SJC-11353 (Mar. 5, 2014), even better if you provided a link: http://www.socialaw.com/slip.htm?cid=22645&sid=120 . Or, when the legislature promptly acted to outlaw the actions taken by Mr. Robertson, it would have been nice if you cited Acts of 2014, Chapter 23 (or H. 3934): https://malegislature.gov/Laws/SessionLaws/Acts/2014/Chapter43

As a journalist, I am assuming you read the primary source, so that way I can trust your reporting, correct? So, since you have the primary source, please make it easier for us and let us know how we can find it, too. Because, if you don’t share, it might turn out that you missed the real story. Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Bad reporting of bad reactionary legislative lawyering. At least the reporting can be easily fixed.

Thank you.

Sincerely,
Jay M. Wolman

Why would a Muslim write a book about Christianity?

It isn’t as if Fox News has a high bar for journalistic talent or integrity. Lauren Green, however, seems crappy even for Fox News.

Reza Aslan is one of the world’s foremost scholars on the subject of world religions. He recently wrote a book, Zealot: The Life and Times of Jesus of Nazareth (Amazon). Fox News decided to have Lauren Green “interview” him. The result was simply embarrassing.

Greene demanded to know why a Muslim would write a book about “the founder of Christianity.” To that, Aslan replied, “Well, to be clear, I am a scholar of religions with four degrees, including one in the New Testament, and fluency in biblical Greek, who has been studying the origins of Christianity for two decades, who also just happens to be a Muslim.”

That wasn’t good enough for this hack. She seemed truly incapable of understanding why anyone with a Muslim background would write about Christianity. Aslan explained to her, with clear irritation but measured patience, “Because it’s my job as an academic. I am a professor of religion, including the New Testament. That’s what I do for a living, actually.”

Finally, toward the end, desperate that she hadn’t gotten a single punch in, Greene runs to try and paint Aslan as dishonest. “You never disclosed you were a Muslim,” she said. Aslan immediately gave her a very polite slap with: “Ma’am the 2nd page of my book says I’m a Muslim.”

All that was missing from the Fox News playbook was her asking him whether he hated America or was working for terrorists. I guess the teleprompter broke.

Anyone who watches Fox News for any other reason than to point and laugh really needs to have their head examined.

Alleged Copyright Troll Sues Critics

By Jay Wolman

In a page out of Rakofsky vs. The Internet, it appears that one of the law firms and attorney groups frequently criticized as representing copyright trolls, Paul Duffy, John Steele, and Prenda Law, has gone on the offense against its critics.

More details here:

Prenda Law, John Steele, and Paul Duffy file suit against Alan Cooper, his lawyer Paul Godfread, and anonymous John Does

Here:

Copyright trolls Prenda Law, Paul Duffy, and John Steele commence three lawsuits v. Paul Godfread, Alan Cooper and our community

and here:
http://www.techdirt.com/articles/20130303/23353022182/prenda-law-sues-critics-defamation.shtml

copies of the complaints are linked by Jordan Rushie (1st Link). I have not read the entirety of the complaints, but I believe I saw quite a few protected statements that cannot form the basis of liability. Unclear what motivated the suits, but I have a feeling the Plaintiffs will come to regret them.

Editor’s note, the views in this post are those of Mr. Wolman. No other Satyriconistas have taken a public position on this dispute.

You Have Got to be Kidding

Hunter Moore:  Amateur

Craig Brittain:  Lightweight

Looks like posting compromising photos of unsuspecting victims is not enough.  Someone, who obviously once sat on a copy of the nutshell on copyright and online speech to sit at the grown-ups table, decided that merely posting photos was insufficient.  This vile person decided it was all hunky-dory to simply solicit photographs of so-called prostitutes without any credible evidence (not to be confused with Smoking Gun, which publishes mugshots and such of people actually arrested).

 

For your disgust, I present: PotentialProstitutes.com

Solicits submissions and offers removal for $99.  Thinks Sec. 230 is a safe harbor, when he is choosing to publish.  Libel per se, anyone?

 

h/t Ethics Alarms

Federal Circuit’s COCKSUCKER Decision Sucks

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!

Sunshine is the best disinfectant – the Steubenville Rape Case

The mainstream media has noticed that something is amiss in Steubenville, Ohio. (Rape Case Unfolds on Web and Splits City).

And Jezebel gives credit where it is due — to a blogger who refused to let the story die. (We Wouldn’t Know About the Steubenville Rape Case If It Wasn’t for the Blogger Who ‘Complicated’ Things).

I won’t comment beyond my earlier post on the case, because I have been brought in to help defend the blogger.

We are doomed

If the Mayans were wrong, maybe we should make them right. Here’s why:

A civilization that produces this does not deserve to make it to December 13.

Oh Penn State…

First that hilarious boy-fucking thing, and now this!

The Chi Omega sorority at Penn State’s “Mexican Party.” Arriba!

Anonymous Comes for Hunter Moore – Moore’s Man Card Revoked

Anonymous has now targeted Hunter Moore.

In a release published today, Anon writes:

Greetings citizens of the world, We are Anonymous.

This is a call to all Anonymous worldwide, you have a chance to make a real difference in the lives of hundreds of bullied teenagers and protect them from real harm such as rape or stalking.

Hunter Moore, Founder of previous revenge pornography site http://www.isanyoneup.com is coming back stronger than ever from the shutdown of his previous website. This capitalist makes money off of the misery of others.

People submit pictures of others naked to his website and he posted their social networking profiles along with the pictures.

This time he is taking it a step further and plans to list physical addresses next to the victims pictures along with a map to their house, self proclaiming that he has singlehandedly enabled the stalking of hundreds.

His servers are up. he already has domains he is secretly testing and will go public soon. He hides behind a loophole of section 230 of the United States online decency act which states he cannot be held legally accountable for third party submitted content.

This is a call to all of anonymous. We Will hold hunter moore accountable for his actions, we will protect anyone who is victimized by abuse of our internet, we will prevent the stalking, rape, and possible murders as byproduct of his sites.

Operation Anti-Bully. Operation Hunt Hunter engaged. We are Anonymous, we are Legion, we do not Forgive, we do not Forget, Hunter Moore, EXPECT US. (source)

I applaud them for it. I do have one issue with the missive — I don’t think that Moore is as protected by Section 230 as he likes to believe.

But, lets set the legal issues aside for this post: Moore is a douchebag, and deserves everything that Anonymous may throw at him. Here’s why:

Once upon a time, girls weren’t all paranoid about being raped, having shit slipped in their drink, or being stalked. Then, douchebags discovered rohypnol, stalking, etc., which ushered in a new era of “Why has this asshole just showed up at my table with a drink in his hand? Does he think I’m an idiot?”

Now, thanks to these clowns, you need to convince the girl that she should have sex with you AND that you’re not going to rape her or cut her into little pieces. Girls who were once approachable are scared to death to even have a conversation with you in a bar. All because of douchebags who need to circumvent rejection with drugs. And stalking. Lots and lots of stalking.

The douchebag’s MO is to shit out a cloud of fear. That cloud of fear supports an ecosystem that only benefits two kinds of people — other douchebags and second-wave feminists who absolutely love women in fear, because it makes their bullshit message resonate with just enough terrified women to keep a few of them signing up for their classes. Never forget the best way to control behavior is through FEAR. Just like the TSA, fear creates a justification for existence. There is the implied message of “If you challenge me, I’ll fucking spank you, so you better choose wisely.” But, if you take away fear, the assholes evaporate.

Involuntary Porn sites (like those run by Hunter Moore, Eric Chanson, Craig Brittain, and Chance Trahan) are the online equivalent of the asshole who goes to a bar with roofies in his pocket, or who stalks a girl who won’t give him the time of day. They punish all women through fear because they got rejected by their high school prom date or some chick in a bar or…whatever. They get off on the smell of fear and the resultant power over a woman and this is the drug that gives them the warm tinglys.

Imagine if no women had to live in fear of a shithead ex-boyfriend or these dickless fucks. Forget the morality of what they do, if you want, and think about from a purely utilitarian / economic perspective. Without these nimrods, a woman would always feel comfortable letting you take naked pictures of her. Women would feel comfortable sending you those pics as a “hey good morning” present. More naked pictures of girls means a better world for everyone, in my humble opinion.

Real men don’t get off on scaring women. Real men get off on trying to take that fear away.

Not because we are nice, or chivalrous. OK, some of us are, but more importantly, it’s because we want more naked pics and Hunter More and Craig Brittain are fucking with that.

So fuck you, Hunter Moore. Fuck you, Eric Chanson. Fuck you, Chance Trahan. And Fuck you, Craig Brittain.

Any man who gets off on putting women in fear loses his man card.

Good hunting, Anonymous.

Grow House Busted: Children Saved(?)

Yesterday’s headline: “Police Bust Grow House in Henderson.” (source)

Well, at least now the good people of the Las Vegas Valley are safer…

The house is five houses down from a school.
“We act upon every tip that we get. It makes us feel good that we are getting a steady amount of tips every night,” Lt. Laz Chavez of Metro Police said. “We have a lot of children that walk by this house to go to and from the school, and that just goes to show the disregard that these criminals that put together these grow houses.”
Police said the house posed a danger to the residents living near by and to a school just a half block away. (source)

Because, umm, you know… plants growing in a house… that, ummm, yeah, that shit is dangerous.

Lt. Chavez, shut the fuck up. Fine, marijuana is illegal. Fine, you have a job to do, and that includes busting people for growing marijuana. Fine, maybe you don’t have the luxury of saying “this is a complete waste of taxpayer money and my time to send me out to arrest people for growing plants that some stupid bastards in the legislature are afraid of.” For all that, I’ll cut Lt. Chavez a break. Perhaps he was just doing his job.

Of course, “I’m just doing my job” was what the East German Stasi and Ceaucescu’s secret police said too, but … you know, lets just let that go for a moment.

Go ahead, take Mr. Prue (the guy who was inside the grow house) and lock him up. Toss him in jail, prosecute him, destroy his life because he was cultivating plants that the government doesn’t like.

But, Lt. Chavez, shut your fucking mouth if you can’t keep the bullshit from oozing out of it.

The mere suggestion that marijuana inside a house poses a threat to children walking by is just asinine. It shows the moral and intellectual bankruptcy of the war on drugs. If you really need to stoop to that level of lying, that level of bullshit, then you should turn in your badge and go be a Wal-Mart greeter, because it displays that you suffer from either a complete lack of intelligence or a complete lack of integrity. Nobody should be walking around on the street with a gun and a badge who lacks in either of those categories.

Do your job, if you must, and you lack the courage to actually stand up for what is right.

But stop fucking lying.

More Legal Stupidity – Brought to you by “The Innocence of Muslims”

The Innocence of Muslims seems to be the place wehre really stupid free speech positions intersect with the Arab-Israeli conflict.

In the latest installment, we have the dumbest copyright infringement suit filed by anyone whose name does not end in “haven.”

Actress Cindy Lee Garcia appeared in the now-infamous online film “The Innocence of Muslims.” She first filed a lawsuit in California state court, trying to get a state judge to order YouTube to remove the film from publication. (Complaint) She claimed that the director told her that she would star in a “desert adventure film,” but the actual movie was one in which the Prophet Mohammed appeared to perform cunnilingus on Garcia’s character. The state court judge refused to pull the film, and opined that Garcia was not likely to prevail on the merits of her lawsuit. (Order). Garcia then dropped her case and re-filed in federal court. Her complaint is attached. [PDF]

For the purposes of this piece, let us presume that Ms. Garcia was indeed duped and that she had no idea that she was going to appear in such a movie. If that is the case, she might have claims for fraud; she might have claims for unfair business practices; she might even have a valid claim under some other theory.

However, this article is about the truly moronic claim that her lawyers decided to bring – copyright infringement.

Before we even get into that claim, let’s take a look at the press release that came out along with the complaint. I guess her lawyers live by the credo of making sure to yell “look y’all, watch this!” before doing something completely stupid.

“We are seeking the legally appropriate mechanism and the least politically controversial one to allow Google and YouTube to do the right thing,” according to M. Cris Armenta, counsel to Ms. Garcia. “Again, this is not a First Amendment case. But, the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression.” In Ms. Garcia’s case, the words that were dubbed over her performance were not hers and she finds them personally and profoundly offensive. Ms. Garcia has publicly stated worldwide, including in live broadcasts to Middle Eastern television stations that she does not condone the message in the film and would never willingly participate in such a hateful venture.

You get that? This is not a First Amendment case. Why not? Because M. Cris Armenta says it isn’t. That might make her feel better as she is sitting around her conference room table, but it doesn’t make it so. Of course, someone with their head so far up their ass that they believe that the First Amendment protects “the right to be free from expression,” probably looks really funny sitting at a conference room table – what with the head in the ass and all.

Ms. Garcia “filed an application for a federal copyright registration for the rights in her dramatic performance ‘Desert Warrior.'” (Complaint at ¶ 11) Further, she “has issued five DMCA ‘takedown notices’ to Defendants YouTube and Google.” (Complaint at ¶ 13) But let us all remember, “this lawsuit is not an attack on the First Amendment, nor on the right of Americans to say what they think, but does request that the offending content be removed from the Internet because not only is it not speech protected by the First Amendment, it violates Plaintiff Garcia’s copyright in her performance.” (para 29) How convenient. It is not an “attack on the First Amendment” because Ms. Garcia’s lawyers cleverly simply declare that the content is “not speech.” Meanwhile, I guess that she owns the copyright in the film because she filed an application for a registration.

The press release sent out by Garcia’s lawyers claims that the attorneys responsible for this monstrosity were “previously affiliated” with Skadden Arps Slate Meagher & Flom LLP and both are former federal law clerks. What does that tell you? Being at the top of your class doesn’t mean that you don’t have shit for brains. Those of you attending TTT law schools take note. While chances are that your counterparts at the T14 did better on the LSAT, it doesn’t mean that you can’t wipe the floor with them when it comes to really practicing law.

Ms. Armenta and Ms. Sol’s complaint really is a piece of crap that no worthwhile attorney would have signed. Not only do the claims expose them as abject idiots, but the complaint exposes their client to a serious potential downside. First and foremost, Ms. Garcia most certainly does not own the copyright that she claims to. Thus, she does not have standing to bring this claim under the Copyright Act. This is not some obscure issue that it takes an IP law expert to figure out, but is clear from the plain language of 17 U.S.C. § 501(b), limiting actions for infringement to legal or beneficial owners of a registered work. When you don’t own anything, you don’t get to sue. Incredibly, Garcia filed suit in a court residing within the Ninth Circuit – which means there’s a small mountain of precedent examining this exact issue with a fine point. Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1146 (9th Cir. 2008); Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 889-90 (9th Cir. 2005); Righthaven LLC v. Hoehn, 792 F. Supp. 2d 1138 (D. Nev. 2011).

Welcome to the Pwn-Dome.

An actor’s performance in a film is not an independently copyrightable work. I am surprised that these two attorneys are unfamiliar with this rule of law. They might be well-served to review Aalmuhammed v. Lee, 202 F.3d 1227 (2000). You know, the case that is in pretty much every single copyright textbook published since before the Clinton administration ended. Jesus fucking christ, is it so much to ask that someone take a copyright course before filing a copyright infringement lawsuit?

Anyhow, back to Aalmuhammed v. Lee: In that case, Mr. Aalmuhammed contributed a significant amount of work to the Spike Lee movie, The Autobiography of Malcolm X. Mr. Aalmuhammed sought to be deemed to be a co-author of the film. However, the Ninth Circuit held:

Aalmuhammed did not at any time have superintendence of the work. Warner Brothers and Spike Lee controlled it. Aalmuhammed was not the person “who has actually formed the picture by putting the persons in position, and arranging the place ….” Spike Lee was, so far as we can tell from the record. Aalmuhammed, like Larson’s dramaturg, could make extremely helpful recommendations, but Spike Lee was not bound to accept any of them, and the work would not benefit in the slightest unless Spike Lee chose to accept them. Aalmuhammed lacked control over the work, and absence of control is strong evidence of the absence of co-authorship.

Under the law, the director of the film (and not any other contributor) is the author of the work. Not the consultants, not the actors, and not the guy who brought everyone coffee. If it were otherwise, then every actor or anyone else who had any part in the creation of the film would then engage in a feeding frenzy over who actually owned the rights to the film. For a creative work, the author, and not “helpers” owns the copyright.

The Aalmuhammed court stated:

The Constitution establishes the social policy that our construction of the statutory term “authors” carries out. The Founding Fathers gave Congress the power to give authors copyrights in order “[t]o promote the progress of Science and useful arts.” Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make. Spike Lee could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.

The broader construction that Aalmuhammed proposes would extend joint authorship to many “overreaching contributors,” like the dramaturg in Thomson, and deny sole authors “exclusive authorship status simply because another person render[ed] some form of assistance.” Claimjumping by research assistants, editors, and former spouses, lovers and friends would endanger authors who talked with people about what they were doing, if creative copyrightable contribution were all that authorship required.

The arts would certainly be more impoverished if every director had to contend with every actor, especially any actor who is disgruntled, claiming copyright in the film and thus, the right to suppress the film’s publication. ‘Cause that is what this is really about: suppressing the publication of the work. It has nothing to do with an “author” claiming her rights under Art. I, Sect. 8, of the Constitution or Title 17.

Remember that? The Constitution? It grants “authors” the right to profit from their works. The Copyright Clause was not put there so that Ms. Garcia could use it as a tool to try and deal with actress regret.

If she’s going to regret anything, it very well may be filing this case. Remember those consequences I mentioned above? Yeah, they can bite her in the ass pretty hard. If Mr. Nakoula has counsel that is even remotely competent, the first thing he will do is file a special motion to strike under California Civ. R. Pro. 425.16, the California Anti-SLAPP Statute. While this statute does not stop discovery in its tracks in federal court, the way it does in state court, it still places the fear of a quick dismissal and attorney’s fees on Garcia’s head. Furthermore, the Copyright Act, under 17 U.S.C. § 505 provides for prevailing party attorney’s fees. There is no way that Garcia can non-fraudulently claim a copyright interest in the motion picture. How her lawyers missed that is beyond me. If I were judging this case, she still might win (on some of her claims) but in the end, the Plaintiff would be the one writing a check.

Ms. Armenta and Ms. Sol have walked their client into a buzzsaw. They clearly either have no idea what they are doing when it comes to copyright law, don’t care what they copyright law is, or have some other ulterior motive for bringing this claim. Whatever their motivation, this is one of the dumbest copyright infringement suits I have ever seen. For the love of god, if this happens to wind up in front of their eyes, I have a message for them: STOP. FIND SOMEONE WHO KNOWS WHAT THE FUCK THEY ARE DOING TO HELP YOU.

While Mr. Nakoula does not seem to be the most savory guy in the world, sometimes the bad guy wins. In this case, I certainly hope that he gets competent counsel, because this complaint deserves to be met with an anti-SLAPP motion and an award of attorneys fees heaped upon Ms. Garcia’s head. Otherwise, other idiots will see it and be emboldened to bring even more idiotic litigation into our already crowded federal courts.

A Pox on Both Your Houses – Suppressing Speech is Not the Same as Expressing Speech

The New York City Metropolitan Transit Authority recently came under fire for allowing advertisements on the New York subways that say, “In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad.”

Goebbels would be proud

The MTA initially refused to run the ad, claiming that it was “demeaning.” However, in July a Federal Judge schooled the MTA on the meaning of the First Amendment. (Order) The MTA, a government authority, does not get to pick and chose which messages it wants to accept.

With the MTA having no choice in the matter, Pamela Geller was free to purchase $6,000 worth of subway ads for a month. Naturally, I have some problems with the ad. First off, I dispute any notion that the Israelis are any more “civilized” than the Muslims. If I had my choice, I would give both groups 30 days to vacate Israel/Palestine and then saturate the land with “dirty bombs” so that nobody could live there for 10,000 years. Maybe after the two groups of assholes have that much time to cool off, they’ll figure out how to share.

The ad is certainly racist, and that’s the point. Geller is no better than Fred Phelps. Nevertheless, the cure for bad speech is more speech. Geller and Phelps will, hopefully, one day inhabit the same dungeon in hell. But, until then, we must pay the cost of living in a free society by tolerating both of their speech.

And that’s where we run into some problems.

Mona Eltahawy, an Arab-American journalist, has reasonable disagreements with an ad which calls her people “savages.” The ad is bigoted. The ad is despicable. Pamela Geller deserves to bo have a cactus shoved up her ass followed by a hive of African bees followed by another cactus. Her message is disgusting and, at the risk of invoking Godwin’s law, it smacks to me of 1940s era Nazi propaganda against the Jews.

And how does this differ from Geller’s ad?
“All propaganda has to be popular and has to adapt its spiritual level to the perception of the least intelligent of those towards whom it intends to direct itself.”-Adolf Hitler

Ms. Eltahawy decided to protest the ad by spray-painting it. And then, a woman by the name of Pamela Hall, who apparently works for Pamela Geller, decided to stand in between the ad and Ms. Eltahawy’s spray paint. At that point, I would like to say that hilarity ensued, but more to the point, stupidity ensued. Eltahawy expresses her stupidity by claiming that spray painting over the ad was her way of expressing her First Amendment rights. Ms. Hall then seemed to think it was perfectly okay to escalate the situation into a physical altercation. Finally, the police came and arrested Ms. Eltahawy for criminal mischief. They did not arrest Ms. Hall for physically assaulting Ms. Eltahawy. Let’s face it, this is happening in New York City and in a fight between an Arab and an Israel supporter, any judgment calls are going to go against the Arab – with or without instant replay.

It seems that the Arab-Israeli conflict can count among its casualties reason and rationality when it comes to expressing free speech theories. This story reminds me of eleven students arrested in February of 2010. In that incident, the Israeli ambassador to the United States, Michael Oren, was giving a speech at UC Irvine and some Palestinian students decided to express themselves at the same time. Outrage ensued on both sides of the divide, especially when the Palestinian students were dragged away and criminally charged for their conduct. They, like Ms. Eltahawy, claimed that they were simply exercising their First Amendment rights. I did find them being criminally charged to be awfully heavy handed and I’m quite certain, had the tables been reversed and a Palestinian speaker was being shouted down by Israeli students, nobody would have been prosecuted. Nevertheless, while I may empathize with the Palestinian’s view on their home being colonized, and while I believe that Ms. Eltahawy’s point about Ms. Geller’s ad is well-taken, I do not believe that shouting down your adversary or covering up their message is a defensible act. The First Amendment does not protect your efforts to silence a fellow citizen’s speech.

This happens frequently when one party does not like the other party’s message: stacks of newspapers go missing, speakers get shouted down, and posters get spray-painted. However, if anybody thinks that is the First Amendment in action, they need a remedial class in the subject.

I don’t believe that, strictly speaking, that vandalism of the poster should be completely prohibited. In San Francisco, some people were defacing the posters with bumper stickers that countered the message, while leaving the message intact. This still might be considered vandalism, but as a free speech issue, I find it far less objectionable. Similarly, had the Palestinian students simply stood up during the Israeli FM’s presentation, holding signs or wearing t-shirts critical of the Israeli government, I could find little to object to, even if it was slightly disruptive. I find it inexcusable when one side of a debate thinks that shouting the other down is the answer to the speech that they do not like.

The First Amendment it is not only there for the speaker — it is there for the listener too. I want a robust First Amendment not just because I want the ability to say anything I want to say, but also because I want to hear what everybody else has to say. I want to hear it even if it’s stupid. I want to hear it even if I find it objectionable. My beliefs are strong enough that they can stand firmly in opposition to those that I may find abhorrent. I don’t need to shut the other guy up by playing dirty pool. I don’t want to do that. I do want to shut the other guy up, but I want to shut him up by destroying his arguments. I want to shut him by showing everyone how stupid he is. I want to shut up Ms. Geller. But I want to shut her up by visiting the market place of ideas and utterly rejecting anything that she may have to sell. I want to convince other shoppers in the market place to walk away, saying, “Try selling batshit crazy bigotry some place else; we’re all stocked up here.” I would like to see Ms. Geller’s views wiped from the face of the earth. But they must be wiped from the face of the earth with reason and with wide-open and robust debate, not with a can of spray paint in some fool’s hand.

No Facebook account? Seek Help Before You Hurt Someone.

Apparently, an article published on tagesspiegel.de points out that not having a Facebook profile could be problematic because, hey, neither that asshole in Colorado nor Anders Breivik had one, so you know….

Source.

Yes, those who have resisted the urge to use a clever profile pic of a fuzzy kitteh and share the inane details of their daily lives might as well buy a cabin and get cracking on that manifesto.

Could it be that maybe the non-facebook-profile-haver just isn’t a narcissistic douche nozzle who thinks the world gives a shit about his or her political idiocy, religious jackassery, stupid pictures of stupid kids, or what was had for lunch?

Nah. Couldn’t be. Those people are freaks and must be WATCHED.