Critics complain that this gives unwanted access to evil corporations, who will use gathered information to exploit their consumers.  This week four U.S. Senators, including asshat Al Franken, have put their displeasure with the social networking giant onto paper and mailed it to Facebook founder Mark Zuckerberg.

No doubt these idiots are only responding to angry phone calls from their constituents, but how many votes would they really lose by explaining that this really isn’t the kind of thing the federal government should be getting involved in?  Not everything that someone can gripe about should be the subject of a congressional investigation.  If you don’t like the way Facebook treats its users, you don’t have to be a member.

This article was originally published on The Legal Satyricon.

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90′s, called “Barbie Girl.”  The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed.  True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit.  While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment.  The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company.  That’s fair use.

Everyone appeals, hilarity ensues

Hon. Judge Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line:  “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”  From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on.  Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.”  But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.”  No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo.  In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999).  The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat.  For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here).  However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up.  (source)

One astute legal scholar had this to say about the matter:

It’s a First Amendment issue. You can advertise goods or services that are illegal where they’re advertised but legal where they’re performed. What’s she’s advertising is as legal as toast with the crust cut off where she is. (source)

* * *

WARNING, RANT ALERT

(what follows is the individual opinion of the author)

Here again, we have the latest example of some whackjob in the Bible belt confusing legality with morality. In case you, the reader is confused, they are not always the same thing, and arguably never should be – at least at the federal level.

The idea here is that “morality” is another word for the standards of a particular community. Those standards are subjective, i.e., everyone has their own idea of what is moral and what isn’t, and no one is wrong for having a different idea than their next-door neighbor – with a couple of rare exceptions, like pedophiles. Generally, you can get a group of people together who agree on a particular moral standard, regarding a particular issue. However, the larger you make the group, the less likely it is that the group will agree, and there’s no really good reason why 51% of the people should be able to dictate their subjective idea of what is moral to the other 49%.

In the United States, our system of government was designed to reflect this reality. Local governments (e.g., state, county, city, homeowners association, etc.) are the ones in the best position to, if it is absolutely necessary, pass a law/regulation that is based on the morality of the community that those governments represent. Our federal government should not ever be taking action based on some perceived moral standard. The above-described news item illustrates this point quite well.

The community of people that live in the state of Nevada have decided for themselves that prostitution is okay. They have chosen to elect officials who recognize this particular moral standard, and those officials have enacted legislation that reflects that standard. The people of Nevada are free to change their minds and elect new officials who might change the law. This scenario accurately depicts the dream of our Founders.

Outrage over some “spillage” of immorality into other communities is a weak excuse for demanding some sweeping federal standard that is contrary to the laws of Nevada. The First Amendment was written specifically to prevent this type of thing. If you don’t like it, don’t look at it – you are free to make the decision for yourself. Have the courtesy to let the rest of us do the same – for ourselves.

This story was originally published on The Legal Satyricon.