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Marc Randazza’s most recent CNN column analyzes the recent conviction of Code Pink Protestor Desiree Fairooz after the media suggested she had been arrested merely for, “laughing at Jeff Sessions” during a Congressional hearing.
There is, of course, more to the story.
When Fairooz laughed loudly during Session’s confirmation hearing, Officer Coronado removed her, which caused Fairooz to protest loud enough to disrupt the session. Fairooz was charged with, “disorderly and disruptive conduct and parading or demonstrating on Capitol grounds.”
However, it didn’t end there: Marc Randazza notes that a jury of her peers actually convicted her of these crimes.
Marc Randazza says, “Several jurors said they sympathized with Fairooz, but because the law is so broad that they felt they had no option but to convict.”
“[F]or Fairooz to be facing prison for her conduct is outrageous,” asserts Marc Randazza.
Marc Randazza reminds us that, “the notion of an American citizen going to jail for a nonviolent political protest is utterly antithetical to what this country is all about.”
As Marc Randazza points out, this has nothing to do with Ms. Fairooz’s message—as he admits he often does not agree with the message of Code Pink—this is about Free Speech and the First Amendment.
For Marc Randazza, it is not the message that deserves protection, it is the speech itself.
“The wall that protects the First Amendment is not manned with pretty happy smiling thoughts and easy-to-love characters. That rampart is manned by the ugly, the impolite, the impolitic, the disturbing image, and the thoughts that you may swallow no easier than if they were made from crushed glass.”
Read the rest here.
There has been a wave of violent outbursts against conservative speakers during the 2016 election season, including violent protestors at Berkeley driving Milo Yiannopolous off campus a few months ago.
Berkley’s reaction? When the Berkeley College Republicans invited Coulter to speak, Berkeley canceled it, citing the recent violent outbursts as the reason. Marc Randazza explains that Ann Coulter suggested disciplining the students that engaged in violence, but Berkeley decided instead to reschedule the speech on a day when no students were on campus.
This is censorship.
Marc Randazza says that some people on the left feel, “emboldened by a view that ‘we’ are right and the Right (is) wrong,” and goes on to scold the left: “Shame on the Left for tacitly condoning this culture of violent suppression of views it disagrees with.”
Marc Randazza reminds us that we don’t need a First Amendment for speech that neither challenges, nor offends, because sometimes that very challenging and offensive speech fosters growth.
Marc Randazza points out that the left used to be beacons for free speech, and credits a few well-known liberals for defending Coulter’s right to speak in the column:
“Are we living in an alternate reality, one in which Bill Maher and Bernie Sanders are sticking up for Ann Coulter?
What could have caused this rip in the space-time continuum?
The so-called birthplace of the free speech movement, the University of California at Berkeley, has once again engaged in liberal censorship, this time of Ann Coulter, using the fear of violence as cover to suppress a voice it did not like.”
Read the rest here.
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.
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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.
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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.
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Where to send the resume is your first test. Figuring things like that out is part of your new job.