Two Issues with the FBI & Apple

February 18, 2016

by Jay Marshall Wolman, CIPP/US

By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting.  The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651.  In short, it is a catch-all that lets courts issue whatever orders they feel like.  In response, Apple CEO Tim Cook sent a letter saying he opposed the order.  Notably, he wrote:

But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

There’s been a lot of discussion, but little focused on two issues that deserve some attention.  First, this isn’t simply asking Apple to turn over a piece of software or asking to borrow a gadget.  They are, if Mr. Cook is to be believed, asking Apple to write new software.  Software is a creative process, a means of expression; this is why it is protected by copyright. Apple itself was instrumental in this determination.  See  Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983).  In a nutshell, the Order is tantamount to ordering Frank Gehry to design a building featuring straight lines and right angles or ordering Stephen King to write a Harry Potter/Game of Thrones cross-over (assuming, in theory, a criminal investigation that would make such desirable).  EFF briefly touched on this last year in similar circumstances.  The All Writs Act may date to 1789, but it predates the ratification of the First Amendment in 1791 and is subject to it.  The Government may not simply compel speech.  See, e.g., Knox v. SEIU , 567 U.S. 310 (2012)(“The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”).  

Second, there’s a certain subtext in Mr. Cook’s message.  What he says is that it is too dangerous to create, not that it is unfeasible to create.  The issue faced by the FBI is that the iPhone at issue may erase all data after too many failed attempts at a brute-force passcode hack.  So, they want Apple to design a work-around that would enable them to guess all possible passcodes without bricking the phone.  The auto-erase function is a security feature; the iPhone is encrypted by default.  We rely on this as part of our daily security–heck, I’m sure the government relies on it.  We’ve all seen street magicians use incredible slight of hand–how hard would it be for one of our diplomats, officers, or defense contractors to have had a foreign spy (let’s say–North Korean) swipe their iPhone (and SIM cards) and replace it with a counterfeit.  In that scenario, the person would try their passcode 10 times, fail, wonder why, but feel secure that the iPhone wiped itself.  Yet, the real phone would be in the hands of the foreign government.  Maybe the FBI and Apple haven’t yet developed the tool that bypasses the 10-tries-and-erase feature, but a foreign intelligence agency might have.  Our own NSA might have it also, but just isn’t sharing with the FBI.  This tells me that no iPhone is actually secure.  Though there is pretty much no such thing as an unbreakable lock, such a tool might enable a brute force attack on your phone to crack it in as little as 12 hours.  That’s more than enough time before the subject realizes his phone was swapped rather than just suffering a glitch.  As much as we may want Apple to be able to recover our phones if we forget our own passcodes, we really should want them to make a phone they themselves cannot crack.

These are the issues we should be discussing, in addition to whether we generally think it right for the government to ask Apple to hand over the keys to the kingdom.


Justice Scalia Pardoned

February 15, 2016

by Jay Marshall Wolman

From time to time, I read the blog “A Public Defender” by the pseudonymous Gideon.  Today, in the wake of Justice Scalia’s death, he decided to post a dyslogy highlighting the concurrence in Herrera v. Collins.  Gideon summarizes it as follows:

In other words, in Scalia’s opinion, our Constitution would let stand the execution of an innocent man who has received all the due process our society deems adequate and there is nothing that Federal courts can or should do to stop such an execution.

An anonymous commenter also highlighted Justice Scalia’s dissent in In re: Davis:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

Gideon and the anonymous commenter appear to paint Justice Scalia as having been indifferent to the lives of the actually innocent.  He was not:  as the majority in Herrera wrote, with which Justice Scalia concurred:

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. …This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution–not to correct errors of fact….This is not to say that our habeas jurisprudence casts a blind eye towards innocence. …[T]his body of our habeas jurisprudence makes clear that a claim of “actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits….Executive clemency has provided the “fail safe” in our criminal justice system. … It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after discovered evidence establishing their innocence….Our federal habeas cases have treated claims of “actual innocence,” not as an independent constitutional claim, but as a basis upon which a habeas petitioner may have an independent constitutional claim considered on the merits, even though his habeas petition would otherwise be regarded as successive or abusive. History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.

The question for Justice Scalia (and the Court) was not whether we should execute those who may be actually innocent, but only whether the judiciary, through the Great Writ, could stop an execution in its tracks to adjudicate whether a person proven guilty beyond a reasonable doubt is actually innocent.  His opinion was one of law–that the writ of habeas corpus was not the proper vehicle.

What Gideon overlooks is the sentence that immediately followed the one he highlighted in bold print:

With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

It must not be forgotten that the judiciary is not judge, jury, and executioner–the latter is reserved to the executive branch, the branch that possesses the powers of clemency and pardon, a branch that is accountable to the people and the political process.  If an innocent person is put to death, it is not the fault of the judiciary, but rather the executive who turned a blind eye to evidence of actual innocence and the polity who elected that executive.  And, it has been 23 years since Herrera–if Congress felt the Supreme Court unfairly foreclosed a judicial remedy in the case of actual innocence, why hasn’t there been a law creating a judicial pathway, such as an amendment to Fed.R.Crim.P. 33(b)(1) eliminating the deadline to seek a new trial?  When Lily Ledbetter was found to have brought her claim for unequal pay too late, Congress immediately responded.

Justice Scalia wrote what the law is, and those condemning him should show how he was wrong about the extent of the writ of habeas corpus, which by and large they do not. And, those condemning him should be condemning executives and legislatures that do not make it easy for someone to prove actual innocence.  If you care about innocents being executed, focus your energies on those pulling the trigger–the executives.  Convince them not to carry out the execution.  Campaign against those who would execute those you believe are actually innocent.  Blaming a judge for interpreting the bounds of existing law doesn’t make the convict any less dead.

 


That’s It! You’re Fired! And no, this isn’t retaliation. Is it?

February 11, 2016

by Jay Marshall Wolman

The law and business are never as neat and clean as you might hope.  One of the toughest problems is when two things are happening around the same time and they start to implicate each other.

In law, we have the maxim “post hoc ergo propter hoc” (after this, therefore because of this) as a known logical fallacy; correlation does not imply causation.  The Fifth Circuit wrote:  “courts must not allow evidence of temporal correlation to serve as a substitute for science-based causation evidence.”  Huss v. Gayden, 571 F.3d 442, 459 (5th Cir.  2009)(relating to a claim that a medication caused cardiomyopathy).

In law, we also have a thing called a “temporal nexus”.  In Star Trek: Generations, a plot device was the “Nexus”, a temporal anomaly that permitted Captains Kirk and Picard to meet.  It is used, for example, to prove unlawful retaliation after engaging in protected activity.  See, e.g., Mickey v. Zeidler Tool and Die Co., 516 F.3d 516 (6th Cir. 2008).  A good summary of that case is here.    How can law have both?  Not easily.

Let’s say your employee, Pat, suffers an injury at work while trying to avoid a supervisor’s sexual advances and then files a workers’ compensation claim, files an OSHA complaint, files an EEOC complaint over the harassment, and seeks a reasonable accommodation.  And, let’s say Pat’s attorney also gets the idea Pat was misclassified, so FLSA claims are brought as well.  Disciplining, including firing, an employee for doing any of those things will typically constitute unlawful retaliation.  However, during the course of your investigation, you determine that Pat’s supervisor, Jan, admitted to the conduct, but that it was because Jan saw an opportunity to take advantage of Pat because Pat was going to be fired for poor performance/breaking rules/a real legitimate cause and hoped to trade sex for keeping the job.

Pat deserves to be fired.  [So does Jan.]  How do you fire Pat now without facing a host of additional charges?

Document. Document. Document.  And cross your fingers.

If Pat truly was to be fired, there should be records of whatever Pat did or didn’t do.  If there aren’t, get witness statements.  If you can’t get those, perhaps rethink firing Pat until you have new cause:  it might not be desirable to keep Pat, knowing what you know, but it may be worth the risk.  Pat also knows the jig is up, so perhaps it won’t happen again (on the flip side, Pat may feel overconfident, extra-protected in light of the retaliation claim prospects).

If you don’t have proof, change your procedures to ensure you can prove such a thing going forward.  However, you should ensure you are complying with state law privacy requirements.

If you do have proof, there are two options:  fire Pat now, and invite a temporal nexus retaliation claim, or wait to fire Pat and argue that your delay is not evidence that Pat’s misconduct wasn’t really worthy of termination (while you invoke the maxim “post hoc ergo propter hoc”).  And make sure the reason for termination is given and make it known you can prove it.

What if the misconduct happens after the employee engages in protected activity?  As Zeidler Tool demonstrates, the best thing is to hope that the misconduct isn’t immediately after the protected activity occurs.  The more time passes, the less that the temporal nexus alone will be sufficient proof of retaliation.

And, of course, review your employment policies, insurance policies, and severance agreements, as those will certainly come to bear.

 


The Moroz Family – From the Soviet Union to the Liberal Gulag

February 9, 2016
A case of overreaction

A case of overreaction

It is said that if you are a young conservative you have no heart, and if you are an old liberal, you have no brain.

As a 46 year old Liberal, I take offense at half of that, but I would not wish to stop anyone from saying it.

Unfortunately, I feel like an endangered species – the Liberal who embraces dissent and debate. As a Liberal, I have always valued education – as I look at places of education as places where we manufacture Liberals — by educating people. To me, wide open and robust debate and the revelation of knowledge will inevitably drive one to the Liberal view – but to get there, we must tolerate views with which we disagree.

I realize that this may not always be the case. But, I have sufficient confidence in my views that I enjoy seeing them challenged, confronted, and either torn down, reconstructed, or galvanized in the fire of intellectually rigorous discussion. If they can not survive this crucible, then they merit their place on the trash heap.

Unfortunately, my view of places of learning as the font from which free speech flows is showing its rust and stretch marks. Now that people (I guess) who are of my like views are largely in charge of education, the prevailing view is to end the debate. Declare victory. The discussion is closed.

A burning example comes to us from Philadelphia, within a stone’s throw of Independence Hall and the Liberty Bell. There, Michael Moroz is the son of Soviet immigrants. I interviewed Michael’s mother, who told me that they left there because they wanted their son to be able to grow up with freedom. Freedom to speak his mind without concern that saying the wrong thing would mean that the state would come down on him. She believed our marketing materials for “The American Way.”

She now believes that America did not come as advertised.

Michael is a high school student at Central High School in Philadelphia, and is also the managing editor of his high school newspaper, “The Centralizer.” He recently wrote an article called “A Case of Overreaction,” which criticized the Black Lives Matter movement.

I didn’t particularly agree with the article, but I found it to be well written and well presented. It was originally printed alongside an article that supported the BLM movement. Two opposing points of view, presented to the reader – who is left to decide which is more persuasive. This was the marketplace of ideas in action.

But, the Regressive Left does not want debate. The Regressive Left does not want, nor tolerate, a marketplace of ideas. The Regressive Left leaves no room for dissent. The Regressive Left does not want a free press, just public relations for them. You’re either with them, or you’re “a racist.”

Michael’s fellow students took to social media to try and convict him, all in one movement, of his treasonous thoughtcrimes. They posted that someone ought to shoot him. There were calls that he must be “dealt with.” One wrote that “[he thinks] his white privilege will keep him from getting ‘popped.’” Even an alumnus proudly wrote, “Black students at Central will handle their business.”

Michael’s fellow editors then censored his article, “If an article comes across as insensitive, and the Central community would rather have it taken down because of this, then the article will be taken down.” Remember, only Moroz’s article was censored for being “insensitive.” Meanwhile, the counterpoint – the “politically correct” perspective was not. Enter the state — administrators backed the decision. (source)

One would expect that the principal would clamp down on threats of violence against a student in his care. After all, if we condone censorship in the name of “sensitivity”, then certainly we would do the same when calling for the boy’s safety to be compromised. One would perhaps expect the Principal to even call for a “safe space” for a minority view like Michael’s to be able to flourish – even if only to be rejected.

Instead, the principal seems to have sided with the censors, although three of the students issuing specific threats were, ultimately, disciplined. (source) The student paper’s faculty advisor promoted someone else to serve alongside Michael as managing editor and then stripped him of the right to access the paper’s accounts. Moroz claims his faculty advisor admitted to diminishing his authority because the paper was “receiving email requests from media.”

Moroz’ parents left the Soviet Union because they did not want to have their son grow up in a country that suppressed and intimidated disfavored political views. They moved to America – Philadelphia no less – so that they could live in a country where dissent and diversity of thought would be welcomed.

Moroz got a little trip into the mentality that his parents sought to escape. He had the wrong politics, and thus he was subject to harassment, intimidation, and a different set of rules than if he would just be a good boy and get in line with the favored viewpoint.

Of course, in Soviet Russia, hyperbole rhetoricals you. And here, the KGB did not kick down his door and whisk Michael off to the Lubyanka building. Nobody froze to death in a gulag. So, I’m not in a state of panic for him. But, this is how it begins. We don’t wake up one day, and overnight, you’re not allowed to have a dissenting viewpoint.

No, first they come for the conservative students, and maybe you don’t speak up because you’re not a conservative student… Michael was subjected to a hail of abuse and genuine threats, with those who should have protected him complicit, even if they were not active participants. (Although, I would say that every adult should have stood up to protect him).

I wouldn’t be half as outraged if Michael simply suffered social ostracism for not conforming to his peers’ prevailing views. Sometimes, thinking a little different than everyone else means you have to take a little shit. But, that’s when the adults are supposed to step in and act like referees – keeping the game fair (at least as long as Roger Goodell isn’t involved).

But, when the administration condones it, even tacitly, something is damned wrong. When the rules for one side of the debate permit censorship in the name of “sensitivity,” but the other side of the debate is licensed to speak, something is terribly wrong. When a student gets death threats for an article in a student newspaper, and every single teacher in that motherfucking school was not standing next to him, supporting him, then the place should be razed to the fucking ground, and every teacher in the place marched out into the fields to grow rice until they drop from exhaustion. Fuck them.

That school “license[d] one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules.” See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992) That’s not how we do it. At least, that’s not how we are suppose to do it.

Imagine if Michael had written a piece supporting gay marriage, transgender rights, racial equality, or some other happy liberal view, and he found himself attacked and threatened by bigots of the opposite view. Would the result have been the same? I think not.

The school should have protected him the same as if he were supporting gay marriage and he received threats for that view. Give him the same shield as if he were promoting racial equality, and racists threatened him. There is no hope for any of us if we teach that 1817 year old that if he does not get in line with the politically approved doctrine, that we adults condone death threats and violent harassment.

Michael’s entire faculty should have stood up, unequivocally, for his freedom of expression – even if they despised his views. There should have been no question that the trash that threatened him lost all moral authority when they opposed him through intimidation. The entire faculty should have stood up for him.

But that didn’t happen.

Because that’s not the way things are handled anymore. We have “safe spaces.” But not for conservatives. We have a culture where victimhood is currency, and the crybaby is king. We have an intellectual environment where if you dissent from Liberal orthodoxy, you are a sexist, a racist, you’re mansplaining, whitesplaining, or simply worthy of being killed… or at least threatened. After all, you’re wrong, and “they” know it. What use is there for debate or dissent? Let the letter writing campaign begin, because the victims will now be the victors, and to the victors go the spoils.

And funny enough, those who would threaten Michael or tacitly condone the threats are also the first who would screech for remedial racism in the name of “diversity.” Meanwhile, they want anything but “diversity.” There will be one way of thinking. There will be purity of philosophy. You must follow the approved orthodoxy or things can go very badly for you.

That is not what education is about. That is not what America is about.

Mr. Moroz, I promise you, not all of us adhere to this view. We didn’t sell your parents a bill of goods. Its just that somewhere along the way, after they got here, we changed and fucked it all up. Some of us want to change it back, and I think there is still time.

This post originally appeared on Popehat. View it here.


Why we need “White History Month” Too

February 9, 2016
You're missing the point

You’re missing the point

Easy answer:

We do not need “White History Month.”

“White Pride” is not the same as “Black Pride.”

I’m really sick of hearing this garbage, as we hear every February. And remember, I’m the guy who keeps screaming that political correctness and identity politics are out of control. So hopefully that keeps at least one person’s attention here.

Let me explain this to you, if you’re genuinely confused. If you’re just a dick or a white supremacist, you can just jump down to the comments and call me names now. I’m neither getting through to you, nor trying.

Race is a political construct. You know who invented “blackness?” Slave traders. There was no concept of “Black” as an identity before slavery. But, in a world that wanted slaves, but the concept of slavery being completely fucked up, there had to be a way to justify it. It didn’t take genius to say, “lets just enslave people who look really different from us.”

“African American” is an “ethnicity” created by the institution of slavery, and then perpetrated by Jim Crow.

Let me explain this to you in Italian terms:

Before there was an Italian nation, Prince Metternich of Austria made remarked that Italy was just “a geographical expression”. When he said that in 1847, there was no “Italian” identity.  “We” identified with our town or province.  “We” were not a unified people, “we” did not speak the same language.  “Italians” had not all been under the same flag since ancient Rome.

A more aspirational quote came from Massimo d’Azeglio.  After unification in 1861, he said “we have made Italy; now we must make Italians.”  At that time, only 2-3% of the population spoke “Italian,” and even the King and Cavour barely spoke it – speaking regional languages instead.

Although Metternich intended his comment to be dismissive of Italian unity, he was in large part correct.  Someone from Palermo had little in common with someone from Torino. There was no common language, and “Italian” was no more an ethnicity than “Balkan.”  To make “Italians,” it was necessary to forge a unified identity.

Strangely enough, this happened in Italian America even before it really happened in Italy.  Immigrants, arriving here from “the old country” were all looked at as “Italians” by the existing Americans.  In my home town, the “Italian” immigrants (mostly from Sicily) referred to anyone who was not like us as ‘medegani – Americans.  This artificial divide helped forge an “Italian” identity in America – in some ways making d’Azeglio’s dream a reality in Little Italy before it was a reality in Italy itself.

Similarly, but at the same time, really differently, Africans wound up in America from a mishmash of different places, traditions, languages, and ethnic groups. But, unlike the Italians, who didn’t have their languages beaten out of them, didn’t have their families forcibly broken up, and didn’t have the choice to go back where they came from taken from them, the “Blacks” wound up mixing together — forming a “Black” ethnicity.

Now I really chuckle when I hear other Italian Americans say “yeah, well the Italians got treated like shit too.” Fine, yes, they lynched some Italians in New Orleans, and Sacco and Vanzetti were innocent, and went to the chair because they were Italians. If you think that puts Italians at the same level of getting-fucked-over and being the subject of generations of disrespect as the Blacks, you’re out of your lasagna-slinging mind. At least “we” can go back to our ancestral town, if we’re one of the Italians who bother to give a shit where our grandparents came from (and fucking shame on you if you’re Italian and you don’t know).

Meanwhile, the furthest back most African American families are going to trace there heritage is to some bill of sale in Savannah.

Point being, this is a “new” ethnicity, and even once Black America gained its freedom, at about the same time that Italy became a thing, it then found itself under the thumb of 100 years of Jim Crow and capitalism-cum-racism. So, while (for example) the Jews suffered under multiple attempts at genocide, they could reach back to 3,000 years of history and tradition to keep their shit together. Meanwhile, “Black History,” almost didn’t exist.

Duh

Duh

African Americans are descendants of the most fucked over group of people that history has ever recorded. Because I can’t think of any other group of people who were so thoroughly detached from their ancestry, then kept as chattel, and molded into an ethnicity by people who didn’t treat them as human beings.

And meanwhile, your Czech-descended, or Irish-descended ass is worried about whether you need a little bit of “White Pride?”

There is no “White” — ok? “White” is actually a collection of ethnicities, all of which have their own history, their own languages, and their own trail and identity they can pick up. The most downtrodden Pole is still not wondering if anyone knows that Poland gave anything to civilization. We’ve all heard of Copernicus, we all know about Galileo, Nikolai Tesla is practically a folk hero. Anyone “White” who thinks they need “White Pride” or “White History Month” is forgetting that they’re something other than “White.”

And, if you only identify as “White” and not the underlying whatever-you-came-from, then shame on you, or your parents, or grandparents, or whoever decided to let go of the thread of your identity. Nobody cut that on you. Nobody forcibly severed you from that connection. Nobody created your identity. You either still have it, or you gave it up.

You’re not oppressed this month. You may have had a shitty life. Your parents may have too. You may even come from five generations of imbeciles and losers, but that is hardly the same as the black experience. Yes, at some point, Black people have to take responsibility for themselves and stop complaining that white people caused all their problems.

That’s not what Black History Month is about. Black History Month is about recognizing that there is this unique group of people here, who happen to be 13% of the population. They happen to have done at least 13% of the work in bringing America to where it is today. They also happen to have brought much more to the table than great basketball players and collard greens. The fact that some of us don’t know that is something worth dealing with and fixing. Further, its not such a bad thing if the black community has a month to be a little bit more proud, since on average, most months in black history have been really really shitty months.

So please shut up about Black history month (well, at least if it bothers you). Black history month is not “unfair.” Black history month is not racist.

Go enjoy it, show a little respect, and if you’re not careful, you might learn something.

This post originally appeared on Popehat. View it here.


Super Bowling for Dollars

February 5, 2016

by Jay Marshall Wolman

Yesterday, on Twitter (yes, I’m on Twitter @wolmanj), I shared an article by Mike Masnick from 2012 regarding the myth of the Big Game/Super Bowl nomenclature.  It seems the issue is still a popular one on Techdirt.

Here’s the thing–the 9th Circuit laid out a nice test for nominative fair use:

First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir. 1992).  “The Big Game” can mean any other championship.  Thus, the first test is met.  The second test is also met–it only uses two words.  Finally, so long as you are not suggesting sponsorship, it is okay to say “Come to Gary’s Olde Towne Tavern to watch the Super Bowl.”

Everybody pretty much knows using “Super Bowl” is nominative fair use in the above context.  Yet, the NFL seems to knowingly flout this right and send improper cease-and-desist letters.  A suit by the NFL would not likely be successful and probably frivolous.  Thus, it could be fair to say that by claiming Gary’s is infringing, despite nominative fair use, the NFL would be making a blatant misrepresentation.   Gary’s could then potentially sue the NFL for violation of state mini-FTC acts which prohibit unfair and deceptive trade practices.  These acts typically provide for attorney fees upon success, sending a message beyond just a declaratory judgment.  Further, if the FTC wanted, it could probably pursue the NFL for these overreaching practices.

Just as copyright holders must consider fair use before sending a DMCA takedown notice, so too should trademark owners.  [I haven’t researched whether anyone has ever brought a state mini-FTC act claim over an improper cease-and-desist letter, so feel free to share.]


Fair Use and Cleaned Up Batman Porn

February 4, 2016

Holy rusty trombone Batman! They took out all the sex scenes! Holy rusty trombone Batman! They took out all the sex scenes!

For those who have ever had dirty thoughts about their favorite movie character, chances are there’s a porn parody to make all their naughty Hollywood dreams come true. Come on, you don’t have some version of “Anna” from Frozen in your spank bank? Whatever… Princess Leia… Teletubbies? Mr. Rogers? Don’t make me keep going. ADMIT IT!

Well, anyway, the porn industry leaves no market un-served when it comes to Rule 34.

We’re talking about actual plot-driven pornos with feature scripts, long set hours, and highly-paid actors and actresses. These porn parodies are produced by some of the most popular porn production companies and (I think) are protected under the fair use doctrine. There are rational arguments to the contrary, but thus far, I am not aware of any major movie studio that has brought a copyright infringement claim against a porn parody.

But, bizarrely enough, someone is has reversed the polarity on the batteries in this particular gyrating bead-filled sex toy by taking porn parodies, and editing out all the sex scenes, so what you have left is a porn parody without the porn.

Yes, Really.

Which begs the question, “Is a clean version of Batman XXX: A Porn Parody fair use?”

I think not.

In Clean Flicks of Colorado v. Soderbergh, Clean Flicks took commercial films and edited out the “sex, nudity, profanity, and gory violence” in original Hollywood movies, and created new tapes of the edited versions. The newly edited versions were then sold or rented to their customers. The movie studios claimed that these “clean” versions were copyright infringement.

In response to the studios’ counterclaim, Clean Flicks asserted they were “fair use” of the studios’ copyrighted works.

Section 107 of the Copyright Act provides “fair use” of a copyrighted work, such as reproducing the work for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not copyright infringement.

In evaluating whether a particular use is fair, we look to 17 U.S.C. § 107:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

With regard to the first factor, Clean Flicks argued it was merely criticizing the objectionable content commonly found in current movies by providing more socially acceptable alternatives. The Court deemed this argument was “inconsequential to copyright law” and held it was not the Court’s job to “determine the social value of copyrighted works.” The Court then considered whether Clean Flicks’ use could be considered “transformative,” meaning whether the use “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The work was not transformative because Clean Flicks added nothing new to the movies and merely deleted scenes and dialogue from them. The use was also for commercial gain, and the Court consequently concluded the first and second factors weighed in favor of the studios.

Based on the Clean Flicks case, I think that merely deleting scenes from a copyrighted film is not transformative, because there is no new expression, meaning, or message in the Batman XXX sans the XXX. I usually explain it like this — you get copyright by breathing life into something with your creative efforts. If you make new life using other people’s works, then that is probably fair use. But, this doesn’t seem to pass my “God blowing life into dust” test.

Looking at the quantitative and qualitative amount of the copyrighted material used, also favored the studios in the Clean Flicks case because the copies were almost identical to the originals, and used the entire original – except the naughty bits.

With regard to the most important factor in the fair use analysis, the effect on the market for the original, Clean Flicks trotted out the common infringer mantra, “but we’re helping you!” Clean Flicks argued that their infringement actually benefited the studios because Clean Flicks purchased a copy of the original work for each edited copy made, and consumers who otherwise would not have purchased the original films were purchasing the edited versions.

The Court stated, “The argument . . . ignores the intrinsic value of the right to control the content of the copyrighted work in the essence of the law of copyright. Whether these films should be edited in a manner that would make them acceptable to more of the public . . . is a question of what audience the copyright owner wants to reach.” Ultimately, the Court held that public distribution of edited versions of the studios’ films for the purpose of eliminating objectionable content did not constitute fair use.

In our porn parody scenario, the infringement seems even more clear. In Clean Flicks, at least they were buying a film, thus not depriving the copyright owner of a sale. However, in this situation, someone bought the video and now is distributing it for free – with the sex scenes taken out.

Who would want to watch a porn movie with no porn in it, you ask? Well, the original Batman XXX is actually a pretty great movie — playing up the 1960s campiness of the original Batman series. Sort of like how Tina Fey is actually a better Sarah Palin than the original Sarah, the Batman XXX is a refined, superior, interpretation of the original. And then there’s the bang scenes.

But, Youtube doesn’t allow bang scenes… so, here’s the non-fappable version… at least until someone DMCAs it.

This post originally appeared on Popehat. View it here.