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by Jay Marshall Wolman
I’ve been following the efforts of Carl Malamud and Public.Resource.Org to free the law. In short, and inadequately summarized, sometimes lawmakers incorporate by reference or otherwise make part of the law works that are subject to copyright. Thus, for example, a state may require electricians to comply with the NFPA National Electrical Code. And, for the low low price of $98, the NFPA will sell it to you.
“But, wait!” you may say, “why should I have to pay for a copy of the code when the code is the law?” And that’s the kind of thing Public.Resource.Org has been questioning. It originally bought copies of these codes and published them. And, earlier this year, they lost a law suit brought by the publishers of these codes, and they have been enjoined from publishing them. They also suffered a second defeat, in another case, last month, involving the State of George’s official, but privately published, annotated code (the code is in the public domain, but the annotations are not, despite legal reliance on the annotations).
From a due process standpoint, it is unreasonable to be held accountable for a violation of a law or code, locked up behind a copyright, especially where there is no defense for ignorance. On the flip side, the fact that code authors should have to give their works away for free just because (even though at their encouragement) some government entity adopts it as law, gives me pause.
Codes sound very law-ish by their nature that it’s easy to mentally treat them as something that shouldn’t even be copyrightable, like a phone book. But, since there is some creativity involved, with choices made as to what is safe and what is not, it probably is copyrightable. Thus, there’s no legal reason why one class of copyrightable works should be treated differently than any other. And republication would, generally speaking, be infringement.
Let’s use a different type of copyrightable work to illustrate. Assume the State of New Columbia requires all teenagers to graduate from high school. And let’s say the curriculum, as implemented by the schools and teachers, required every student to read and do a book report. One teacher chooses “Twilight” for some horrible reason, presumably related to the sorry state of our educational system. Thus, essentially by law, every student in that teacher’s class must obtain a full copy of Stoker’s ugly stepchild. Should I, then, be allowed to post a PDF of that book for any of the students to download for free, without permission of the author? Of course not. Even if she lobbied the schools. So long as the schools fairly make the book available to borrow, so students can actually do their assignment, due process should be satisfied. So, too, with the codes. So long as an electrician can fairly access and learn what he/she needs to do, that should be sufficient.
The Google Books saga is informative, and there was a fascinating article in The Atlantic yesterday that got me thinking about this again. About two and a half years ago, Google prevailed in an appeal before the Second Circuit in its case against the Author’s Guild. Google had embarked on an ambitious project to scan millions of books in order to make snippets of text available in search results. The Second Circuit found that Google’s reproduction of the works, but limited to the snippets, was fair use. This is where Google’s outcome differs from the losses of Public.Resource.Org. The latter published and made available the full texts of the codes online, unlike Google, which restricted the amount of the works displayed. This was a key distinction made by the courts.
Of course, sometimes you can republish a work wholesale for comment as fair use. And Public.Resource.Org could well prevail in these arguments on appeal. It will be interesting to watch, both for freeing the law and, if successful, for whatever else might be freed just because the government made it required reading.
by Jay Marshall Wolman
In the wake of Super Bowl XLIV, Katy Pery’s backup dancer “Left Shark”, disputes among intellectual property lawyers arose as to what kind, if any, protection was available to the owners/designers of the costume. Recently, our friend, the Boozy Barrister, over at Lawyers and Liquor, became embroiled with the world of furries, which got me thinking again about the copyrightability of costumes or fursuits, as the case may be.
Much of the precedent involving the copyrightability of fursuits came out of the Second Circuit. See Chosun Int’l v. Chrisha Creations, Ltd., 413 F.3d 324 (2d Cir. 2005). In Chosun, competing animal-themed Halloween costume makers fought over whether Chosun Int’l had a valid copyright to enforce. The district court dismissed, finding the costumes to be non-copyrightable useful articles. The Second Circuit reversed, remanding for a determination of whether there were elements that could be physically or conceptually separated from the costume itself. By way of example, the Second Circuit suggested the head or hands could be removed physically or conceptually from the useful, clothing aspect of the costume.
Last month, the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) rejected the physical-conceptual distinction utilized in Chosun. In Star Athletica, a copyright dispute arose regarding cheerleading uniforms. Varsity Brands claimed its costumes were infringed upon and Star Athletica argued that the costumes were useful articles and could not be copyrightable. Star Athletica won at the District Court, but suffered a reversal in the Sixth Circuit. The Supreme Court affirmed the Sixth Circuit decision–the graphic designs were separately identifiable and could be protected. It found that the designs could, essentially, be drawn as art and, therefore, were protected (the shape, cut, and dimensions of the uniform were not protectable). The specific test announced was:
We hold that an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.
So, turning back to Left Shark and furries, either could be perceived as a separate work of art that is protectable. Separability might be harder to determine, as the dimensions of the shark shape or a Boozy Barrister Badger fursuit are integral to the costume itself, but this is probably not fatal. This is especially where fursonas (an actual term, though I prefer “fursonae”) may include the avatar, which can be a depiction of the fursuit in two dimensional form–a separate work of art.
Thus, a fursuit is likely eligible for copyright protection. (The Left Shark trademark dispute is really not about the costume and the trademark is really unnecessary if it is copyrightable anyhow.)
Once again Marc Randazza of Randazza Legal Group battled censorship in favor of wide open debate in his latest First Amendment victory.The 11th Circuit Court of appeals affirmed the anti-SLAPP win and the lower court’s decision regarding the “false advertising” claim.
The case is focused on the conflict of two doctors, Dr. Steven Novella and Dr. Edward Tobinick.
Marc Randazza represented Dr. Steven Novella, a Professor of Neurology at Yale School of Medicine and the editor of Science Based Medicine. On his website Dr. Novella writes about scientific debate in the medical community. Dr. Novella published negative opinions about Dr. Tobinick’s methods of off-label drug usage to treat Alzheimer’s disease.
Dr. Tobinick didn’t start the debate but filed a lawsuit against Dr. Novella for defamation. Also, he claimed that because the website hosted ads, the case was transformed into commercial speech. This case had a huge impact on publishers, but Marc Randazza successfully SLAPPed all legal claims and protected Dr. Novella’s right to free speech and debate.
Find more details on the Pissed Consumer blog.
Randazza Legal Group needs another paralegal / legal secretary in its Las Vegas office.
You must be enthusiastic about working for a firm that does First Amendment Law and international intellectual property law. We do a lot of interesting and fun work.
Experience as a paralegal is helpful, but not required. College helps, but is not necessary. If you did go to college and you majored in English or Journalism, you’re going to the VIP lounge of candidates. We like English/Journalism majors because usually they can compose a coherent sentence.
Attention to detail really matters. If you can’t spell or notice typos, you’re not going to last. If you don’t know the difference between “their, they’re, and there,” or “your” and “you’re,” then this is not the job for you.
You must be extremely organized. “I forgot” isn’t an excuse.
If we ask you to call someone, that doesn’t mean to send them an email. It means pick up the phone and dial. Is that ok with you?
If you’re not scared yet, then send your resume to us with a short cover email. If you are wondering if it is too long, then it is. One page resume only. Pay is competitive, good benefits package including full health insurance, profit sharing, 401K, etc.
Where to send the resume is your first test. Figuring things like that out is part of your new job.
This position has been filled as of November 23, 2016.
Randazza Legal Group is looking for an associate attorney with 1-5 years of experience, but others will be considered.
Should you apply? Will you do no harm to the First Amendment, nor through inaction allow harm to come to the First Amendment? Then maybe you’ll fit in.
We mostly make our living doing First Amendment litigation, but we have a lot of international intellectual property work, work on §230 immunity cases, and we’re doing a lot more privacy based work too. Sound like fun? It is.
I greatly prefer that the candidate be admitted to the bar, somewhere already, but the successful applicant must be ready, willing, and able to take the Nevada bar. Candidates must be in Las Vegas or willing to relocate to Vegas. A Florida bar license is a plus, but not necessary.
You must be organized. In fact, really organized, because the boss lacks that quality. If you have not yet seen The People vs. Larry Flynt, then don’t apply until you see it. If you don’t already know New York Times v. Sullivan before the interview, you’re not going to get the job. You will be asked why I cite Kinney v. Barnes a lot. If you don’t know why before the initial phone interview, you’re not getting an in person interview.
I can teach you all the rest once you get here.
Did you go to a third, or even fourth tier law school? That’s ok. You’ve got the same shot as some prick who went to Georgetown. (Pricks from Georgetown are welcome, but will get no preference). If you think I’m impressed by your alma mater or your GPA, you’re applying to the wrong firm. I don’t care what your politics are. I don’t care what your background is. We are all misfits anyway.
What’s it pay? You will make more money elsewhere. We do a lot of pro bono work. When the First Amendment needs protection, and the client can’t pay, we still likely take the work. We believe in this shit.
That said, we do have good paying clients. And, if you’re financially productive, you’ll get more than a “thank you” and a pat on the head. The bennies are pretty good. You’ll get to work on cool stuff. We actually make a living doing First Amendment law and international intellectual property work. The firm does a six week retreat in Hawaii every year, all expenses paid, including surfing lessons. (That is a bald-faced lie. We do no such thing.)
Don’t like swear words? Good. I’m trying to work on that. Maybe you will be a positive influence on me. Speaking of which, everyone else at the place is a positive influence on me, so you’ll probably like them a lot — unless your attention to detail sucks. If that’s the case, then they will eat you alive before I get a chance to fire you. When someone gets canned here, it is usually because the paralegals or other associates don’t like them. How do you make them like you? Be a team player and don’t be the weak link in the chain.
If you don’t take ownership of your tasks and your mistakes, you’re screwed. If you fuck up, and you say “mistakes were made” instead of “I made mistakes” you’ll get fired. If you don’t understand why the first one is wrong and the second is right, don’t apply.
I want 1600 billable hours a year, which really ain’t bad. I do not want you to bill 2000, because anyplace with a requirement that high is probably encouraging you to pad your bills. You’ll get fired for that too.
If this doesn’t scare you off, then send your resume to me with a short cover email. (Subject line RLGASSOC) If you are wondering if it is too long, then it is. One page resume only. I don’t have time for an entry-level attorney who thinks that his/her life is interesting enough that they can’t tell me all of the relevant facts on a single page. If it is two pages, the second page better tell me that you wrote The Big Lebowski or you won a Nobel Prize. (And if that’s the case, it belongs on the first page).
Don’t know where to send your application? Figuring shit like that out is going to be part of your job. Figure it out. Yeah, it’s test number 1.
by Jay Marshall Wolman
Georgetown University has decided to violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. In a grand gesture that has alternately received praise or been derided as empty, the descendants of some 272 slaves sold by the Jesuits in 1838 to keep the ship afloat will now receive an admission preference.
Missing from the discussion is a conversation about racial discrimination. More commonly seen in employment law, there are two major categories of discrimination: disparate treatment and disparate impact. Disparate treatment claims are pretty straightforward, where you generally try to show overt or masked bias (e.g. “No Irish Need Apply”). Disparate impact is harder. First established in Griggs v. Duke Power, 401 U.S. 424 (1971), the essential theory is that a facially neutral policy (e.g., the requirement of a highschool diploma to get a job) that really isn’t necessary and favors or disfavors a particular protected group is unlawful.
Racial discrimination in higher education is prohibited under Title VI for the recipients of federal funds. Pretty much any major university is going to fall into the ambit of this statute. The regulations implementing Title VI essentially prohibit universities from implementing policies that have a racially disparate impact, save for affirmative action programs to correct prior discrimination.
Georgetown’s new policy is, at a minimum, one that would have a disparate impact on admissions. Although some of the descendants of these slaves may identify as White, Latino, Asian, or Native American, it is a pretty safe bet that the overwhelming majority would identify as African American. [Arguably, it is disparate treatment, as it discriminates in favor of those with an African American ancestor, but the law does not specifically categorize mixed race persons, and the “one drop rule” isn’t good law.]
That said, Title VI is a right without a remedy, or at least a useful remedy. In Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court ruled that there was no private right of action under Title VI. Basically, it means that students who would have been admitted but for this new admissions criterion cannot sue Georgetown. [This is not to be confused with public universities that could be sued for discrimination under the 14th Amendment.] Only the U.S. Department of Justice could sue Georgetown for violating Title VI.
I have no problem with Georgetown wanting to do something for the descendants of the people it harmed–clearly, the Jesuits never had to purchase the slaves, utilize their labor, or sell them. And the history of slavery has likely had an adverse impact on these descendants in some manner. There is a strong moral case for Georgetown taking such action. [Full disclosure: I am an alumnus of the Georgetown University Law Center.] But, I just don’t see how it passes muster under a disparate impact theory. It is not affirmative action in the sense it is correcting for a history of discrimination in the admissions process. Should Georgetown retract its policy or should the law change to accommodate Georgetown? And, if the latter, how would you draft an exception to the law that nefarious persons might not drive a truck through?