ABA Journal Magazine Tackles Righthaven in May 2012 Issue

April 23, 2012

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

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

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

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

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

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

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

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


Potential DMCA Game Change in 2d Circuit Ruling on Viacom v. YouTube

April 5, 2012

By J. DeVoy

The Second Circuit released its opinion in Viacom v. YouTube today, partially vacating  the Southern District of New York’s order granting summary judgment in favor of the online video service.  Ultimately, the case is to be remanded to the district court for fact-finding on whether YouTube had knowledge of infringement, had the right and ability to control infringing content, and YouTube’s willful blindness.

Almost as soon as the Court starts writing, it delivers the gut punch:

Although the District Court correctly held that the § 512(c) safe harbor requires knowledge or awareness of specific infringing activity, we vacate the order granting summary judgment because a reasonable jury could find that YouTube had actual knowledge or awareness of specific infringing activity on its website. We further hold that the District Court erred by interpreting the “right and ability to control” infringing activity to require “item-specific” knowledge. (Opinion at 2)

While the Second Circuit held that YouTube qualified for DMCA protections under § 512(c), the easy work of the opinion ends there.  What follows are a range of questions that the Second Circuit believed needed to be supported by more facts – potentially changing the landscape for user-generated content.

The Second Circuit is not interested in relegating the operators of user-generated content services to constantly policing their sites for infringement, and believe that § 512(c)(1)(A) does not require this conduct:

Under § 512(c)(1)(A), knowledge or awareness alone does not disqualify the service provider; rather, the provider that gains knowledge or awareness of infringing activity retains safe-harbor protection if it “acts expeditiously to remove, or disable access to, the material.” 17 U.S.C. § 512(c)(1)(A)(iii). Thus, the nature of the removal obligation itself contemplates knowledge or awareness of specific infringing material, because expeditious removal is possible only if the service provider knows with particularity which items to remove. Indeed, to require expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation to “take commercially reasonable steps” in response to a generalized awareness of infringement. Viacom Br. 33. Such a view cannot be reconciled with the language of the statute, which requires “expeditious[ ]” action to remove or disable “the material” at issue. 17 U.S.C. § 512(c)(1)(A)(iii) (emphasis added). (Opinion at 16)

However, this does not absolve YouTube for potential liability for red flag knowledge.  Since the internet has changed much since the DMCA’s enactment, the examples of red-flag knowledge articulated by Congress are largely inapplicable now.  Those availing themselves of these protections hold up the examples of red-flag knowledge described by the Senate (e.g., domain names with words like “illegal,” “stolen” or “pirate” in them), while copyright enforcers have advocated for a broader standard of red flag knowledge, along the lines of “I know it when I see it.”  Seeing this hole in the law, the Second Circuit tried to reconcile a question a question that has befuddled many a copyright lawyer: What the hell, exactly, is red flag knowledge?

The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. The red flag provision, because it incorporates an objective standard, is not swallowed up by the actual knowledge provision under our construction of the § 512(c) safe harbor. Both provisions do independent work, and both apply only to specific instances of infringement. (Opinion at 17-18)

Actually proving red flag knowledge is a factual question.  It is also part of the reason the case is remanded to the S.D.N.Y.  Indeed, the Court of Appeals spends pages reviewing and discussing the record evidence it believes creates a question of fact as to whether YouTube had actual knowledge of infringement on its service. (Opinion at 19-22)  The same is true of willful blindness, the equivalent of knowledge in copyright cases. (Opinion at 19-24)

As to the “right and ability” to control user-uploaded content under § 512(c)(1)(B), the Second Circuit also remanded this issue to the District Court for further fact-finding.  The Court of appeals rejected both interpretations of this standard as advanced by the parties – for Viacom, a codification of common law vicarious liability standards; and for YouTube, a requirement that the provider must know of the particular case before it can control the infringement. (Opinion at 19-25)  The court agreed that the right and ability to control under § 512(c)(1)(B) requires more than the mere ability to remove or block access to materials on the defendant’s website – but how much more, or what that “more” might be, is unclear – other than the fact that it does not require specific knowledge.

Another issue remanded to the District Court is the question of YouTube’s syndication of its videos to others:

In or around March 2007, YouTube transcoded a select number of videos into a format compatible with mobile devices and “syndicated” or licensed the videos to Verizon Wireless and other companies. The plaintiffs argue—with some force—that business transactions do not occur at the “direction of a user” within the meaning of § 512(c)(1) when they involve the manual selection of copyrighted material for licensing to a third party. The parties do not dispute, however, that none of the clips-in-suit were among the approximately 2,000 videos provided to Verizon Wireless. In order to avoid rendering an advisory opinion on the outer boundaries of the storage provision, we remand for fact-finding on the question of whether any of the clips-in-suit were in fact syndicated to any other third party. (Opinion at 31-32)

The court rounds out its opinion by considering YouTube’s repeat infringer policy and other software tools used to avoid the posting of infringing content.  Neither are sufficient to exclude YouTube from the safe harbor provisions of § 512(c).  Because more fact-finding is needed, the Court of Appeals declined to determine whether the trial court erred in denying Viacom’s cross-motion for summary judgment.

While not likely to become an Alameda Books, this litigation is far from over.  Even if Youtube had won, Viacom likely would have petitioned the Supreme Court for certiorari.  Based on the Grokster case, there is some likelihood the Supreme Court would have granted it.  But by sending the case down to the S.D.N.Y. yet again, another appeal to the Second Circuit is all but ensured.


Latest Righthaven Developments

March 28, 2012

The Gametime IP blog discusses them here.


Lawyer billing rates

March 5, 2012

Law.com conducted a survey of lawyers’ billing rates.

Nationwide, partners averaged $661 per hour, returning to their 2009 average after a dip to $639 per hour in 2010.

Average for associates last year was $445 per hour, up six bucks from the year before. (source)

I gotta raise my rates….


Blasting people on twitter – not cyberstalking!

December 16, 2011

By J. DeVoy

Pundits were concerned earlier this year when the U.S. Attorney for the District of Maryland brought a criminal action against William Lawrence Cassidy.  His alleged crime?  Posting 8,000 harassing twitter messages about Alyce Zeoli, a buddhist leader in Maryland.  The Court dismissed the Government’s case, as Cassidy’s anonymous speech addressed a topic accorded the highest constitutional protections: Religion.

Admittedly, some of the messages were witty.  Take this poetry, for instance:

Ya like haiku? Here’s one for ya. Long limb, sharp saw, hard drop

Some were more esoteric, such as “A thousand voices call out to (Victim 1) and she cannot shut off the silent scream,” while others got to the point: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

The Court’s Order  is a solid win for the Defendant – and free speech.  Within it, the Court found that 18 U.S.C. § 2261A(2) is unconstitutional as applied to the defendant.  Not only does the First Amendment kick ass, it’s now a tool, albeit a slow-working one, against the federal government’s overcriminalization of daily life.

I strongly encourage reading the whole Order, but most importantly, there’s this:

However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls “are targeted towards a particular victim and are received outside a public forum.” United States v. Bowker, 372 F.3d 365, 379 (6th Cir. 2004). Twitter and Blogs are today’s equivalent of a bulletin board that one is free to disregard, in contrast, for example, to e-mails or phone calls directed to a victim. See id. at 378 (contrasting why a federal telephone harassment statute serves a compelling governmental interest and a statute that made it a criminal offense for three or more persons to assemble on a sidewalk and to be “annoying” to a passerby did not serve a compelling governmental interest). (emphasis added)

H/T: EFF


More on Nevada’s anti-SLAPP law

October 6, 2011

By J. DeVoy

Can Nevada’s anti-SLAPP statutes, for their many flaws, thwart a privately brought federal claim?  Why yes, they can.

Anti-SLAPP laws come in two flavors: procedural and substantive.  Substantive anti-SLAPP laws, such as the previously proposed federal anti-SLAPP law, provide qualified immunity for protected statements and create or crystallize the speaker’s rights.  In contrast, procedural anti-SLAPP laws provide a mechanism to dispose of abusive litigation – normally with a Motion to Dismiss.  The extent of these procedural protections vary from state to state; Massachusetts’ procedural anti-SLAPP law, for instance, cannot be applied in Federal Court. Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003).  Nevada’s anti-SLAPP statute, however, does not preclude its application in Federal court.

Like Massachusetts, Nevada’s anti-SLAPP laws are procedural, and is not restricted to use against state law claims. John v. Douglas County Sch. Dist., 125 Nev. Adv. Op. 55 (Nev. 2009), cert. denied, 130 S. Ct. 3355 (2010).  The facts of that case, which warrant reading because of how strange they are, hinge upon a school district employee being suspended for harassing other employees and video taping special ed students, recording sexually explicit narrations to the videos that were then shown to others.  Subsequent misconduct with confidential student records led the district to terminate John.

After exhausting EEOC remedies, John sued the school district in Nevada’s state courts, alleging violation of federal employment discrimination statutes.  The school district moved to dismiss John’s Complaint under the anti-SLAPP statute.  As John’s action was based on the school district exercising its right to communicate with the EEOC about a matter pending before it that concerned the district, the remedies in Nevada’s SLAPP statute were available. NRS 41.637.

The Nevada Supreme Court upheld the District Court’s dismissal. (N.B. – Nevada has no intermediate appellate courts.)  The state supreme court expressly found that the anti-SLAPP statute can apply to substantive federal claims, as it “does not undermine any important, substantive federal interests.”  Moreover, the court stated that Nevada’s anti-SLAPP statute is “procedural and neutral” in nature.

Nevada’s anti-SLAPP statutes still are limited to an unfortunate degree.  However, the range of claims they can defend against – in the rare event the statutes can be applied – is quite broad.  How this would play out in Federal court remains to be seen, as it creates a tension between Rule 56, state law and the Erie doctrine.


Righthaven loses in Colorado

September 28, 2011

By J. DeVoy

Yesterday, the District of Colorado dismissed Righthaven LLC’s copyright infringement lawsuit against Leland Wolf and the It Makes Sense Blog in Righthaven LLC v. Wolf et al., Case Number 1:11-cv-00830.  The Wolf case was the only active matter in Righthaven’s 57 cases filed in the District of Colorado, as the more than 35 cases that were ongoing when Wolf moved to dismiss Righthaven’s lawsuit were stayed pending the outcome in Wolf. (The approximately 25 other suits presumably settled.)  Leland Wolf and the It Makes Sense Blog were represented by Randazza Legal Group and Contiguglia / Fazzone P.C.

The Court’s Order, authored by Judge Kane, is available here.  Judge Kane summarizes his Opinion and Order in this opening paragraph:

The issue presented in this case, whether a party with a bare right to sue has standing to institute an action for infringement under federal copyright law, is one of first impression in the Tenth Circuit. After considering the parties’ written and oral arguments and analyzing the constitutional underpinnings of federal copyright law, the legislative history of the 1909 and 1976 Copyright Acts, and the meager precedent available from analogous situations in other Circuits, I hold that the answer to that question is a forceful, yet qualified, “no” and GRANT summary judgment to Defendant Leland Wolf. Furthermore, pursuant to 17 U.S.C. § 505, Righthaven shall reimburse Mr. Wolf’s full costs in defending this action, including reasonable attorney fees.

Apparently Judge Kane has ordered Righthaven to show cause by October 7 why its other cases should not be dismissed in the wake of this ruling. (Source.)

More coverage available at:

Vegas Inc.

Ars Technica

the EFF’s DeepLinks Blog

Techdirt

Technology & Marketing Law Blog

 

 


Email to an asshat about a free speech issue

September 24, 2011

I’m on a few list servs. I won’t say which one this originated on. But, lets just jump to what I said:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

I agree with all the nice things that have been said about Chemerinsky here, but his balls shriveled up into raisins over this event. (It took place at UC Irvine).

The response: It is “bullshit,” and “anti-semitic.”

Lets unpack that…

Bullshit? Maybe. He, you, everyone is entitled to their own opinion. I might even change mine, and one day repudiate my own opinion as bullshit.

Anti Semitic?

Don’t you love that one?

Since I’ve been a bit off my game blogging lately, I thought I’d mail one in here and just straight up share what I wrote in response to that.

Dear ______________,

Today, 11 men were convicted of a “crime.” The “crime” was “disrupting a speech.” The speech they disrupted was that of the Israeli ambassador. (source)

The “disruption” lasted about 8 seconds per “criminal.” In total, it was about a minute.

Interrupting him might not have been the most constructive way of making their point, but we cant lose sight of what they did. Why they did it. This was political speech. This was the most sacred kind of speech. And, this target was the least deserving of the law’s protection when speech is concerned — a public figure.

The Israeli ambassador was inconvenienced for less time than it takes to boil an egg.

And yet, for that inconvenience. That indignity. That quasi lese majeste. Eleven men were convicted of a crime.
The men were Muslims… The place is the most shocking part – Orange County, California, USA.

Although I despise the “what next?” rhetorical device… I just so need it here.

What next?

Hecklers at comedy clubs could be dragged out and thrown in the back of a cruiser where a drunk just puked? At least one lawyer would have to go to jail after every hearing. Fox news would essentially be illegal in California. My poor wife and I would probably each be witnesses in criminal trials against each other (privilege be damned!!!)

Criminally prosecuted for interrupting a speech.

We could all be arrested, every day, for this “crime.”

No we couldn’t.

Don’t insult my, or your own, intellect by thinking that this could have happened to anyone. Imagine if this had been a member of the Cuban government up there and some exilos from Miami showed up to yell. Do you think for a minute they would be charged, let alone convicted of a crime? Koreans showing up to voice their displeasure at a dignitary from the Hermit Kingdom? Jews in Skokie shouting down a nazi? Hell, nazis coming to Bensonhurst shouting down a Jew.

No, not even nazis get charged with a crime for merely interrupting a speaker.

And yet, for taking the position that these men were selectively prosecuted. For taking the position that this was all about their ethnicity and the content of their speech, some asshole thinks that I’m being “anti semitic.”

It is unfortunate. Because it is that kind of mentality that is at the root of the very reason these men were at odds with the man on the stage. Both of them have thrown in with their tribe rather than with their species. Like crabs in a pot, needing no lid, they would rather gouge out their own eyes than see through those of the other.

And it is that mentality that makes Palestinians unable to listen to Israelis. It is why Israelis can’t possibly back down to any criticism. It is why there are those who are so blind to their tribe, rather than to their entire human family, who decide that anyone who speaks against their interests in any way must be branded. He must be marked with the label of “anti-semite.”

I don’t really think it is my place to judge, but I’m gonna do it anyway. You reverse the polarity on that position, you don’t get a pretty philosophy. So, perhaps these guys did try and win the debate by shouting down the other speaker. That kind of conduct deserves a flag on the play. But what do you think trying to brand someone as something so abhorrent is? What do you call that, when you know it is a lie, you don’t care that it is a lie, but you say it because you know that it will score nice, cheap, points, and more than half the people who see it as bullshit will be afraid to call your ass out.

What do you call that?

I call that a pussy asshat move. So fuck you sir. Fuck you very much.

And really it is — for two reasons. One, to call oneself a First Amendment attorney and to think it is just that these 11 men were convicted of a crime — not merely removed from the room — and they were convicted not for resisting. Not for doing anything that hurt anyone else.

They.
Interrupted.
A.
Speech.
For.
A.
Minute.

In order to express their opinion on a matter of public concern.

And they were convicted of a crime.

It is sad enough that one would argue against the notion that this is wrong. But, like I said up top, everyone is entitled to their opinion on that. You know where I stand.

But, what a pussy asshat move to try and throw the “big bad bigot” card.

I have tried to think that I was wrong for taking that position. I’ve tried to see it through someone else’s eyes, and the only person I can see with eyes like that is a small minded and fearful person. Someone so insecure, so tepid, so small, that their only defense is to try and lob a bomb. Wanna play rhetoric like that? Here: It is rhetorical terrorism! It strikes at a target that should not be hit, for a reason that doesn’t deserve the energy, and he who employs it has already lost the high ground when they resort to it.

Of course, this is an equal opportunity beta trait. There’s the black guy that screams “racist” to do the same thing. The feminist who whines “sexist” if you disagree with her. You know what, jerkoff?

Those words MEAN SOMETHING.

If you just throw them against anything with which you disagree, you wind up pounding them thin to the point that they don’t mean anything anymore. You can even numb the alarm to those who really are those dangerous things. You create muck in which those dangerous things thrive.

So, I should have added to the end, “not only is a pussy asshat move, but it is anti semitic.”

But, I refrained.


Righthaven — with BABIES!

August 11, 2011

By J. DeVoy

No cute pictures of infants here — just a bizarre story from San Diego

Attorney Theresa Erickson pled guilty to conspiracy to commit fraud for her role in what federal prosecutors described as a “baby-selling ring.” (source.)  Technologically, the scheme was pretty simple: Women would travel to the Ukraine to get pregnant with the eggs and sperm of donors.  This was done overseas because, at least in California, nobody would perform such an IVF using both donated eggs and sperm without a pre-existing surrogacy contract.  [I learned just enough family law to pass the bar. Bear with me. – Ed.]  The conspirators apparently misrepresented to the San Diego Superior Court that such surrogacy contracts existed, though – a fact belied by having to go Ukraine to complete the procedure.  Indeed, there was no underlying surrogacy contract, and no surrogates. (source.)

Once the pregnancy was into the second trimester, the conspirators would start shopping the babies to prospective parents.  The conspirators apparently claimed that the original adoptive parents bailed out of the deal, and a new home was needed for the baby.  The targeted parents, believing they were picking up where another couple left off, paid more than $100,000 in fees, with the women carrying the babies receiving $38,000 to $45,000 in compensation. (source.)

So to recap: Defendants, a lawyer among them, make misrepresentations to the court about rights they don’t actually have – and that never existed – in order to make money off of unwitting third parties who believed they had such rights.  Gee, never seen that before! Nope, never ever!

Erickson’s sentencing is scheduled for October 28.

H/T: Brian, Ken and Patrick


Why filming porn in Las Vegas should make sense (or: unsolicited response to Bobbi Starr)

July 18, 2011

In Nevada, prostitution – defined in NRS 201.295 – operates in a manner very similar to the California statute at issue in Freeman.  Overburdened though Nevada’s courts are, the state lacks an intermediate appeals court and could settle the question of porn production’s legality fairly quickly, with a fairly libertarian Nevada Supreme Court to render the final decision.  Then again, why tempt fate a second before it’s necessary?

In many counties, Nevada has legalized – albeit fairly stringently regulated – prostitution.  The status of prostitution within the state is practically a precursor for porn.  If anything, porn production is the next logical step.  And though the regulations concerning prostitution may be wielded like an axe at porn, they are easily distinguishable, as discussed further on.

Escape from L.A. – and AHF, and CalOSHA.

First Amendment concerns are not the only threat facing the porn industry.  The Scylla and Charibdis of porn for the last many years have been CalOSHA and AHF, the latter organization being capable of hectoring producers nationwide.  As Starr notes:

Here’s the thing — the AHF plans to continue its unwanted crusade across the country. They’ve already made noises in Miami and if the industry moves to Vegas, I don’t see why they wouldn’t show up there as well. If you’re going to make a stand, LA is the place to do it.

As Starr observes in her post, stating that “the AIDS Healthcare Foundation is looking to grandstand and make points with their donors,” the inescapable conclusion is that this controversy boils down to money.  Specifically, AHF needs to do something to justify getting more of it from its backers.  In my opinion, it would be a rational proposition to pit AHF against a bigger, badder entity that needs and wants money even more than AHF does: The city of Las Vegas and state of Nevada.  Is it even a “fight” if only one side shows up to do battle?  The city of Las Vegas isn’t going to care what some outsiders think of it – the area’s reputation for no-tell, debauched vacations is well established.  It’s not as if AHF is going to lower the city’s esteem as… what, a place to raise a family? A clean-livin’ town?  If anything, the chance to catch a glimpse of a favorite star is probably one more reason for a guy to visit Vegas.

At base, Las Vegas and Nevada need money, and now more than ever.  AHF will never win the hearts of minds of locals by trying to keep out reasonably lucrative businesses that need use of the services hardest hit in Las Vegas since the downturn.  Speaking of Las Vegas “locals,” the metro area is so transient that it’s not dissimilar from a 500,000 person city in its character, despite its population being around 2 million.  In some ways, Las Vegas might as well be Milwaukee.  And, yet, many locals rarely venture to the strip, or downtown; instead, they predominantly stay within their master-planned communities.  While some may call this a myopic and provincial way of living, this kind of bedroom community mindset is exactly what will lower any resistance people may have, even in the abstract, to porn companies coming to town.  If it’s not happening in their actual backyard, and they don’t see it, why would they care – assuming, in the first place, that they ever found out the porn industry was in town.

Because Nevada is Nevada and California is California, CalOSHA’s risks are mitigated.  If CalOSHA tries to regulate porn shoots occurring within Nevada because the companies they’re done for are based in California, the ensuing legal battle between Nevada and California will resemble a religious crusade.  Despite Californians having a huge presence in Las Vegas as transplants, tourists or otherwise, Nevada’s state character is steeped in making sure everyone knows that it is not California. (This was an overarching theme in BarBri when I studied for the Nevada bar exam.)  Nevada will not respond well to California encroaching its jurisdiction, especially if CalOSHA agents show up within Nevada’s physical territory.

Assuming CalOSHA won’t overstep its jurisdictional mandate, that leaves the porn industry to contend with Nevada OSHA (“NVOSHA”).  To get a sense of the disparity of resources at play here, compare the CalOSHA website with NVOSHA’s.  NVOSHA couldn’t keep six people from dying, most of them brutally, during the completion of America’s largest privately financed construction project.  Between that kind of feeble oversight, Nevada’s far more dangerous industries – such as mining – and the general lack of resources Nevada has relative to California, it’s reasonable to believe that NVOSHA has bigger concerns than whether two consenting, regularly tested adults are wrapping it up when making commercial motion pictures.

A potential slippery slope exists with respect to Nevada’s prostitution regulations, which have numerous onerous requirements, from monthly and weekly testing (depending on the disease) to mandatory condom use.  Prostitution, though, is a service open to the general public, while porn is a closed circle where those on camera are regularly tested and (theoretically) limiting their contact with unknown, untested interlopers.  Because of the inherent differences between porn companies and brothels, and the reduced public health concerns at play, the condom restrictions should not transfer over – but that will be left to the legislature.  If they’re getting all of this new growth because the porn industry wanted to escape the tyranny of condoms, will legislators foist them upon their newest constituents?  It’s possible, but seems unlikely.  Even if those provisions are put into effect, NVOSHA has to actually enforce them – something it may be ill-equipped to do.

Las Vegas Loves Porn… and Anything With Money, Really.

Another point raised by Starr is the suspicion that people don’t really love porn, despite the money it could bring to their local economy.  To some extent, I agree with this.  Some ultra-lib location like Manhattan would look down its collective nose at middle America for feeling uncomfortable about porn — but if production ever showed up below 125th Street with any substantial volume, it would quickly be zoned out as “harmful to property values,” and opposed under the color of PC rhetoric, such as how it’s “degrading” to women and normalizes male violence.  On the other hand, Las Vegas has a robust industry of escorts (despite prostitution being illegal within Clark County) and strip clubs that everyone accepts as part of the landscape.  Without making it sound like Detroit, as I am pretty fond of Las Vegas, I think people will embrace whatever revives the area.  Downtown Las Vegas, despite having a few cool bars and art studios I’m fond of, is underdeveloped for an urban core and fairly low-density.  Thus, it’s practically giving land away for development through tax credits.  They city doesn’t condition the credits on how the land will be used – as long as something’s being done, and people are being employed, Las Vegas is happy.

To those who claim that the tide will turn against porn when the economy improves, I have some good/bad news: Economically, things are never going to get better.  We’re at the dying, spasming end of American-style capitalism.  I hope you own a gun.  Consequently, capital holders can put a collar around places like Las Vegas, making governments and citizens alike do whatever the investors want.  Capitalists have the money, and capacity to bring more, that everyone else needs.  Those who can muster up $1M in liquid assets, and probably down to about $250,000, can basically write their deal’s terms.  The global economy’s collapse isn’t really any one person’s fault, anyway, so it shouldn’t impede making smart business moves in the here and now.  After all, if everyone lived in fear of the world ending tomorrow, nothing would get done, now would it?

A Sidebar About Miami.

Starr also notes the recent arrest of Kimberly Kupps on numerous obscenity counts as a reason to avoid Florida. (You can donate to Kupps’ defense fund here.)  This is a reasonable concern, but one that insiders within Florida’s adult community can dismiss with fairly strong assurances.  In addition to geographic distance, Miami and Polk County Florida are culturally very distant and distinct.  Polk County Sheriff, Grady Judd, has made it his life’s work to punish any kind of sexual expression occurring in his jurisdiction, and is a retrograde bully unmatched by any in Florida.  Miami doesn’t have the absolute safe harbor protection that Los Angeles does due to Freeman, but its resident businesses have done very well for themselves, mostly free from significant legal interference.  With that said, a Judd-like epidemic of arrests is unlikely to sweep Miami-Dade county.

Is “Going Underground” Still a Thing?

In this internet age, where everyone competes for Google rankings and traffic, and search engine optimization is a lucrative industry, rather than some annoying B-school buzzword, is it even possible to go underground?  Setting aside competition for internet traffic, since that’s where most of the money is now, going underground carries many possible tax consequences that can consume more than a company’s worth, or makes.  Back-owed interest and penalties are not your friends.

I’m ambivalent in the desirability of porn being mainstream v. underground debate.  There are pros and cons to each side, and I think the best approach depends on the company and its content.  Culturally, though, “porn” qua concept is mainstream, even if certain subsets and niches of it are less known.

One of the concerns raised by Starr is that “legitimate businessmen” would co-opt the industry if it were to go underground, and make it even more volatile than it currently is with CalOSHA and AHF breathing down its neck.  This, too, is a valid concern.  Any city with appreciable population, say over 200,000 people, has competing networks of organized crime.  Though the appearance has changed, from “families” with members wearing pointy-toed shoes and double breasted suits to gentlemen with baggy jeans and neck tattoos, these organizations still exist.  For the most part, their influence seems to have been confined to drug and prostitution trades.

I’m sure that there are intersections between organized crime and legitimate businesses throughout the country — assuming otherwise would be naive.  But, given Las Vegas’ modern origins as a gangster playground, the city and state are concerned about making sure that scenario never happens again.  Because of the efforts of people ranging from Howard Hughes to Steve Wynn, Las Vegas has come totally above ground and is very much a corporate town – all of the casinos on the strip and off are owned by a small handful of companies.  This isn’t to say there aren’t seedy elements of Las Vegas.  Seedy sells, after all.  But Las Vegas now is law-abiding in a way that it wasn’t at its 20th-century inception.

Because of this somewhat nefarious history, Las Vegas and Nevada are particularly sensitive to the presence of organized crime and its intersection with what appear to be legitimate businesses.  MS-13 will always be smuggling in drugs from Central America, no matter what local, state and federal authorities do.  To the extent organized racketeers can be prevented from co-opting businesses and disenfranchising their customers, though, Nevada and Clark County appear to take that threat much more seriously.  Theoretically, a mob takeover of business can happen anywhere.  In my observations, however, it’s less likely to occur in Las Vegas than other places.

Conclusion (a/k/a tl;dr, Summary)

Though Las Vegas is not a perfect location for relocation of the porn industry, it’s a good one – better than many alternatives.  While Miami is an option, it is a more expensive place to be than Las Vegas by most every metric.  Unlike Nevada, Florida still has a pesky capital gains tax.  Las Vegas is much closer to the San Fernando Valley, too, making it easier to get a critical mass of people to make the necessary jump across state lines.

Relocation may be easier and more profitable than digging one’s heels in the dirt and fighting a war nobody particularly wants to have, especially against deep-pocketed adversaries such as CalOSHA and AHF.  Las Vegas is as tolerant as it is willfully blind to the sex industry already here, and it is likely to welcome economic activity in any manner it can obtain it.

As in any business, there are risks involved in relocating – especially to Las Vegas.  But are they any costlier than the slow death of remaining so heavily in Los Angeles, where the thousand cuts of taxation, CalOSHA, AHF and other challenges bleed dry the remaining brick-and-mortar porn companies?  At this point, it hardly seems like it.


Data Encryption and the Fifth Amendment

July 17, 2011

By J. DeVoy

If you have encrypted data that is seized during an investigation, and law enforcement officers are incapable of decrypting it, can you refuse to provide the codes to remove encryption?  The Electronic Frontier Foundation (“EFF”) believes so, and recently submitted an amicus brief to that effect in U.S. v. Fricosu, Case No. 2:10-cr-00509-01-REB (D. Colo.) (hey, cool, I’m admitted there! – Ed.).

Here’s a summary of the case from EFF’s press release:

Ramona Fricosu[] is accused of fraudulent real estate transactions. During the investigation, the government seized an encrypted laptop from the home she shares with her family, and then asked the court to compel Fricosu to type the password into the computer or turn over a decrypted version of her data. But EFF told the court today that the demand is contrary to the Constitution, forcing Fricosu to become a witness against herself.

The theory is that decrypting a computer is itself a testimonial act: It represents that the defendant had control or access to the computer, and possibly the files within.  Even on a shared computer, providing a decryption code can be damning evidence.  The EFF contends that forcing someone to decrypt their computer forces them to choose between lying, contempt of court, and self-implication – the exact situation the Fifth Amendment is supposed to prevent.

This is a very interesting case, and I can support it to some extent.  I would disagree with the EFF if it claimed that forced decryption was problematic in civil cases, where the Fifth Amendment is little more than an abstraction, since the opposing party is not the state’s prosecutorial arm.  So, torrenters, take note: This is not for you – unless you get charged with criminal copyright infringement.  That’s pretty uncommon in and of itself, too, so you’re really screwed if that happens.

Read the EFF’s full amicus brief here.

H/T: Will


USS Righthaven hits another iceberg

July 14, 2011

By J. DeVoy

Today, U.S. District Court Judge Roger Hunt held a hearing regarding the Order to Show Cause he previously issued in Righthaven LLC v. Democratic Underground LLC et al, Case No. 2:10-cv-01356 (D. Nev.).  Righthaven, represented by Las Vegas attorney Shawn Mangano and national law firm Kirkland & Ellis in this matter (though only Mangano was at the hearing on behalf of Righthaven LLC), received the following sanctions:

• $5,000.00 in sanctions, payable within 2 weeks.  This is in addition to Righthaven’s $3,815.00 due in Righthaven LLC v. Leon et al, Due July 25th. (Order available here.)  To date, thats $8,815.00 worth of water taken on, with approximately $34,000 and $119,000 sought in other cases. (source.)

• Righthaven must provide copies of Judge Hunt’s order dismissing Righthaven’s complaint for lack of standing in Democratic Underground in all pending cases. (discussed here.)

• Righthaven must provide its Strategic Alliance Agreement with Stephens Media LLC to all defendants sued for infringement of Stephens Media LLC copyrights. (Strategic Alliance Agreement available here.)

• Righthaven must provide copies of the transcript of today’s hearing to every Court in which there is a pending Righthaven case.  During the hearing, Hunt said Righthaven made misleading statements to the court – for which Hunt said a stronger word would be appropriate – and that its conduct was “not negligence,” but part of a “concerted effort to hide Stephens Media’s role in this litigation.”  Moreover, Hunt described Righthaven as a law firm masquerading as a company. (source.)

As Randazza Legal Group is involved in numerous open Righthaven matters, no further comments shall be made.  Additional information can be found via Steve Green at the Las Vegas Sun, who has comprehensively covered this saga from its inception, and at MAL Contends,  the blog of Michael Leon, former defendant in Righthaven LLC v. Leon et al.


Nice article about Judge Roll

March 7, 2011

I did not know Judge Roll, (the judge who died in the attack on Gabrielle Giffords) but he was the judge who swore me in to the D. Ariz. The few minutes I spent in front of him were memorable, and actually hilarious.

There is a nice article about him in this month’s Arizona Attorney.


Supreme Court makes corporations slightly less impervious to FOIA disclosures

March 1, 2011

By J. DeVoy

In FCC v. AT&T Inc., No. 09-1279 – released today – the Supreme Court seems to have taken a position that will unite the politically liberal, who believe the right of privacy should be upheld for individuals, and the conservatives who doubt the propriety of any rights not enumerated in the Constitution or its amendments.

This case arises from a dispute between the Federal Communications Commission (FCC) and telecom giant AT&T, which was resolved with a consent decree in 2004.  CompTel, a trade organization representing some of AT&T’s competitors, submitted a Freedom of Information Act (FOIA) request to the FCC, seeking pleadings and other documents produced in its investigation of AT&T and subsequent settlement.  AT&T opposed CompTel’s request, and the FCC decided to withhold some of AT&T’s information from disclosure based on FOIA exemption 4, 5 U.S.C. § 552(b)(4), which protects trade secrets and commercial or financial information.

AT&T, however, wanted more information protected from disclosure under FOIA exemption 7(C), 5. U.S.C. § 552(b)(7)(C), which exempts “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy” from disclosure.  While the FCC did not apply exemption 7(C) to AT&T itself, it concluded that exemption 7(C) could be properly invoked protect the privacy interests of individuals identified in AT&T’s submissions.  Nonetheless, the FCC did not invoke this exemption, as it was not designed to withhold information that was merely embarrassing information about a corporation, even if individuals were named in the submissions.

AT&T appealed the FCC’s decision to the Third Circuit.  The Circuit court concluded that the root of this personal privacy – the “person,” as defined in 5 U.S.C. § 551(2) -embodies corporations and, thus, so too should the notion of personal privacy within FOIA exemption 7(C). See 582 F.3d at 497.  After all, if a corporation is a “person” under the law, shouldn’t it be accorded the full protection of personal rights?  In some ways this would be congruent with Citizens United — but personhood, apparently, does not convey the full palate of personal rights to corporations.

The Supreme Court, led by Chief Justice Roberts (and with Justice Kagan sitting out, just like people warned Obama she would have to do) disagreed with this view of personal privacy.  The Justices’ first step was to delineate the line between a person and what was personal:

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning.” Johnson v. United States, 559 U. S. ___, ___ (2010) (slip op., at 4). “Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

And, as the corporation is a legal fiction – rather than an actual person – this makes sense.  Just because a corporation is treated as a person for a variety of reasons, including economy and administrability, does not necessarily mean it receives all of the protections of an individual.  And thus the court held that though a “person,” traditional and legal notions of what is “personal” are beyond what a corporation qua person may enjoy:

In drafting Exemption 7(C), Congress did not, on the other hand, use language similar to that in Exemption 4. Exemption 4 pertains to “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U. S. C. §552(b)(4). This clearly applies to corporations—it uses the defined term “person” to describe the source of the information—and we far more readily think of corporations as having “privileged or confidential” documents than personally private ones. So at the time Congress enacted Exemption 7(C), it had in place an exemption that plainly covered a corporation’s commercial and financial information, and another that we have described as relating to “individuals.” The language of Exemption 7(C) tracks the latter.

The Government has long interpreted the phrase “personal privacy” in Exemption 7(C) accordingly.

In a devilish display of wit, the Court concluded its opinion on this note:

We trust that AT&T will not take it personally.

So, to those who feared the collapse of society as a result of Citizens United, fear not — or fear slightly less.  So long as statutory construction persists and we have jurists who do not roll “person” and “personal” into a shared meaning, there will be some curbs on what corporate power, even if limited to FOIA exemption 7(C).


Dan Snyder is butthurt, SLAPP suit ensues, Irony meter pegged

February 6, 2011

By Marc J. Randazza

Washington Redskins owner, Dan Snyder, seems to have awfully thin skin for a guy who owns a sports team named after a racial insult.

Snyder filed a frivolous defamation suit against the Washington City Paper (“WCP”) based upon an article “The Cranky Redskins Fan’s Guide to Dan Snyder.”

Snyder accuses the WCP of spreading “lies, half-truths, innuendo, and anti-Semitic imagery” to defame him, seeking $2 million in damages.  The amount is split between two claims, the first for defamation and the second for false light.  The “anti-semitic imagery” he complains of is a crude addition of horns, a unibrow and Anton LaVey-esque goatee to Snyder’s photograph in the WCP, which can be seen here.

No, your irony meter is not broken. It is actually reading 11. A guy who owns the Washington Redskins is complaining that someone created an allegedly racist drawing of him. And, anyone who thinks that “Washington Redskins” isn’t a bigoted term, I used to think the same thing. In law school, I was in a debate with a guy I’ll identify as “Steve B.” I was armed with my free-speech bona fides, and ready to pwn Steve in front of the whole class for being overly politically correct. With his opening shot, Steve looked at me and said “what would you think if they were called the ‘Washington Jigaboos?’ Because the way black people would feel about that is how Native Americans feel about ‘Redskins.'”

I immediately conceded. Steve was right. The debate was over.

Please re-calibrate your irony meters -- Dan Snyder, owner of the Washington *Redskins*; complains that this drawing is racist.

So, the owner of the Washington Jigaboos Redskins is pissy about someone supposedly using racist imagery.

On behalf of Native Americans, up yours, Dan Snyder. Up yours with a cactus grown in the driest part of the Navajo reservation.

But lets get back to the issue at hand:

Dave McKenna’s comprehensive compendium on Snyder’s questionable reputation, which gave rise to this lawsuit, is not the first time he offended Snyder’s sensibilities.  Snyder paints a paranoid picture of McKenna as a conspirator, evidenced in his November 24, 2010 letter to the WCP — sent less than a week after McKenna’s article hit the streets.  Because McKenna mentioned Snyder within the WCP and its blog 15 times in as many months, Snyder believed McKenna was attacking him to please his new bosses at Atalaya Capital, which acquired Creative Loafing and the WCP in August 2009. (source.)

Even so, it appears McKenna gave Snyder a fair shake.  Before McKenna’s article was published, Snyder’s wife went to the local media to defend her husband.  In an interview, she said her husband was now surrounded by ‘better people,’ and that he had ‘grown and he’s evolved.’ (source.)  The offending article even begins with the words “[w]e’ve been told a New Dan Snyder walks among us”!

Nevertheless, lets not forget that Dan Snyder is a wealthy man. He is a fabulously wealthy man. And we all know that the fabulously wealthy often believe that they are above being criticized by the rabble — and when the rabble forgets it, they need only spread their ass cheeks, let a few filthy pieces of silver fall from their milk-fed buttholes, and some swine of a lawyer will be lying underneath, mouth agape, happy to catch what might dribble from the sphincter of privilege — their oath, their ethics, and free speech be damned.

In nicer words, this is a classic SLAPP suit — not filed because it has a chance of success — but filed because the cost of defending it will be punitive enough to remind the little people that people who can afford to use helicopters as personal transportation vehicles do not like to be made fun of or criticized.

The first sign that this is a SLAPP suit? You need go no further than paragraph 1. The complaint states “Mr. Snyder is a public figure. As such, he accepts the right of the public and the press to criticize him or to express personal dislike, whether or not such expressions are justified by the facts.”

Precisely.

In other words, Mr. Snyder is going to need to leap over the “actual malice” standard laid down in New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, the Supreme Court held that the First Amendment required that a public official libel plaintiff must establish, through clear and convincing evidence, that the defendant acted out of “actual malice.” That doesn’t mean that the writer must have acted out of malicious intent, but rather that the defendant published his words “with knowledge that it was actually false or with reckless disregard of whether it was false or not.” Later cases expanded this to encompass defamation suits by public figures, as well as public officials. See, e.g, Curtis Publishing Company v. Butts, 388 U.S. 130 (1967); Gertz v. Robert Welch, 418 U.S. 323, 351 (1974).

Public figures can, occasionally, prevail under this standard. However, the bar is so high that unless the case is flawless, it is unlikely to go anywhere except down the “expensive to defend” highway. Snyder knows this. His attorneys know this. But Snyder is a wealthy man, and his lawyers don’t mind the taste of feces in their mouths, as long as they are licking the foul substance off of Snyder’s coins.

Lets take a look at Snyder’s claims under New York law. New York is very protective of free speech — especially where the news media is concerned. What constitutes a statement of opinion is broad, and can even embrace language that in other states may be defamation per se, such as calling another person “unprofessional.”  See Amodei v. New York State Chiropractic Association, 160 A.D.2d 279, 280 (N.Y. Sup. Ct. App. Div. 2d Dept. 1990), aff’d 571 N.E.2d 79 (N.Y. 1991); Halegoua v. Doyle, 171 Misc. 2d 986, 991 (N.Y. Sup. Ct. 1997); Wait v. Beck’s North America, Incorporated, 241 F. Supp 2d 172, 183 (N.D.N.Y. 2003). (“Statements that someone has acted unprofessionally or unethically generally are constitutionally protected statements of opinion.”).

Despite Snyder’s melodramatic whining about McKenna’s negative opinion of him, even incendiary and inflammatory criticism of a subject is protected rhetorical hyperbole. See Greenbelt Coop. Pub. Ass’n v. Bresler, 893 U.S. 6, 14 (1970); Gross v. N.Y. Times Co., 623 N.E.2d 1163, 1167 and 1169 (N.Y. 1993). Even heavily caustic attacks on public figures are afforded the highest level of Constitutional protection. Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).

The second cause of action is a bit trickier.  While the language reads like a false light claim, there’s a wrinkle here: According to the Citizen Media Law Project, New York doesn’t recognize the tort of false light. Costanza v. Seinfeld, 27 Media L. Rep. 2177 (N.Y. Sup. Ct. 1999), aff’d, 719 N.Y.S.2d 29 (N.Y. App. Div. 2001); Howell v. New York Post Co., 21 Media L. Rep. 1273 (N.Y. 1993)  That leaves Snyder with the tort of defamation by implication, which remains a form of defamation and thus subject to the same attacks set forth in the preceding paragraph.

Nonetheless, as the owner of the Redskins, Snyder has access to lawyers and the money to pay for them, and can inflict quite a lot of pain onto the defendants. Furthermore, even if the WCP fends off these claims, Snyder has made it clear that anyone smaller than the WCP had better be worried — criticizing him is not without its significant costs.

Mr. Snyder has more than sufficient means to protect his reputation. We presume that defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the asset value of the Washington City Paper.” (source)

Snyder appears more butthurt than genuinely wronged. Unfortunately for him, or fortunately for us all, there still is no cause of action in the United States for intentionally butthurting a rich dude. Unfortunately for us all, win or lose, Snyder and his legal team just turned blew a cold wind across the free expression fruited plain.

J. Malcom DeVoy contributed to this post. Hat tip to Johnny Utah.