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3d Circuit: “No child porn charges in sexting case”

jfischer1975 — Fri, 19 Mar 2010 17:41:23 +0000

The Court of Appeals for the Third Circuit handed down its decision this week in the Pennsylvania “sexting” case, in which a prosecutor threatened to press child porn charges against a group of teenage girls for sending cell phone pictures of themselves in bras and underwear. You can read the infamous J. DeVoy’s anti-gender-bias coverage of the oral arguments here. In upholding the preliminary injunction requested by the girls’ parents, the Third has declared that District Attorney George P. Skumanick, Jr., cannot use the threat of prosecution to bully them into a court-ordered “re-education” program. (source)

While education may be the right medicine (if you believe that there’s some disease), that decision is for the teens and their parents to make — not some jackass, let’s-think-outside-the-box DA who thinks he somehow knows what’s best. As much as I hate the ACLU for politically motivated meddling in the other direction, for once I’m glad they’re helping these families file a civil rights claim against Mr. Skumanick. (Read that complaint here.)

This article was originally posted on The Legal Satyricon

IOC Uses DMCA to Suppress Luge Accident Video

jfischer1975 — Wed, 17 Feb 2010 14:56:28 +0000

The opening day of the 2010 Winter Olympics was marked with tragedy when 21-year-old Georgian luger, Nodar Kumaritashvili, was involved in a fatal crash during a training run. The horrific event dampened the spirit of the international competition and colored the mood at the opening ceremonies later that night. As anyone would expect, the International Olympic Committee (IOC) sprung into action, responding to the accident with a multi-point plan:

Shut down the luge track to prevent any more deaths… check.
Conduct an internal investigation… check.
Let an “independent” authority do its own investigation… check.
Make immediate modifications to the luge track to stop future accidents… check.
Make a press release, expressing regret, but denying all responsibility… check.

All perfectly ~~acceptable~~ anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

Even where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.

The article was originally published on The Tactical IP Blog

“Twenty-Something Arrested at Twilight Movie” or “State Law Copyright Enforcement?”

jfischer1975 — Wed, 16 Dec 2009 00:08:44 +0000

Earlier this month, 22-year-old Samantha Tumpach was arrested exiting a showing of the new douchey-little-vampire-kid movie, The Twilight Saga: New Moon. No, she wasn’t detained for a psych eval, as anyone over the age of 16 should be for watching that movie. (The only problem with implementing that policy is that state mental health facilities would be choked with nearly every female American between the ages of 17 and 45 — my sisters, my wife, and all of their friends included.) It seems that she was arrested because theater employees saw her operating a video recording device (source). Did the FBI come swooping in to put an end to this flagrant violation of Federal Copyright Law?

No. It was those champions of copyright policy, the Rosemont Police. As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission. See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is. Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron. Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement. Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor. With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well. And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either. She didn’t make her video for personal commercial gain, and she hasn’t distributed anything. So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial. Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal? She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement: I don’t think that the state of Illinois has the power to enforce its bootlegging statute. Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time. You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners. Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional. What say you Blevins? Would you throw the book at this chick?

UPDATE: Cook County prosecutors have dropped the charges against Ms. Tumpach (source). Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.

This article was originally posted on The Legal Satyricon

Mattel finally learns how to “chill”

jfischer1975 — Fri, 30 Oct 2009 11:05:37 +0000

One of the chores inherent in the practice of law is that one has to read a lot of really REALLY dry court opinions. It’s always nice when you find judges out there who recognize this, and make some effort to keep it interesting. One of my favorites from law school has always been Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002). Well, this week saw an interesting footnote added to that opinion.

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)

New commercial with altered lyrics

In Lakeland, Florida, saying “Im’ma kill me a cop one day” will get you two years in prison

jfischer1975 — Sat, 01 Aug 2009 08:44:37 +0000

A Lakeland, FL man has been sentenced to two years in prison for recording a rap song entitled "Kill Me a Cop" (source). It seems that the local sheriff’s office considers the lyrics to be a credible threat of imminent violence — never mind the fact that the source of that "imminent" threat was in county jail on parole violation when "apprehended."

This story was originally published on The Legal Satyricon.

Indian Politician Wants “Slumdog” Song to be Public Property… (so he can use it in his campaign)

jfischer1975 — Wed, 11 Mar 2009 18:21:27 +0000

“Anyone should be able to use the song. ‘Jai Ho’ should not belong to any one; it belongs to the country,” claims Atul Shah, an Indian politician who is seeking election (source). The song, from the film “Slumdog Millionaire,” won this year’s Academy Award for Best Song. Even if it had not, its title, which translates to “Be Victorious,” would work quite well in campaign ads or at rallies. Unfortunately for Mr. Shah, his political opponents have already secured the exclusive rights for those uses from the owner of the intellectual property. His solution: End Intellectual Property Rights Now!

On another note, it is hard to ignore the irony in this situation. Many credit the incumbent party – the ones that Mr. Shah hopes to defeat – with the poverty portrayed in the film. One opposition party member, Nanendra Modi, is quoted as saying that, “[i]f it were not for Congress misrule for the last 60 years, there would be no slums and then no slumdog (film) and no Oscar.” If “Slumdog” was intended to be some kind of protest or criticism, why would its producers agree to license the song to those responsible for their outrage? I guess they must not be too worried about street cred.

This story was originally published on The Legal Satyricon.

Has the Sixth Circuit Declared Jihad on the First Amendment?

jfischer1975 — Fri, 27 Feb 2009 13:15:01 +0000

Twice in two weeks, the Sixth Circuit has handed down decisions that are targeted at burdening the adult entertainment industry. As we pointed out in an earlier post and as Professor Salkin explains, the Sixth upheld a questionable Tennessee regulation that creates special licensing requirements for “sexually-oriented businesses.” They also did a number on their previous ruling concerning Section 2257.

If you are an avid reader of the Legal Satyricon, then you are familiar with the infamous little piece of federal legislation which can be found at Title 18, Section 2257 of the United States Code. If not, you can find a little light reading on the subject here and here.

Section 2257 lays out the record-keeping requirements that any producer of sexually explicit images or video must follow, in order to verify that none of the participants is underage. Sounds reasonable, right? Gotta make sure that no one is making child pornography, right? Fair enough, but that isn’t what this particular piece of legislation is doing. It’s suppressing other forms of expression that have nothing to do with underage performers.

As written, Section 2257 requires anyone, who takes dirty pictures or films a naughty movie, must keep special records that show the identity and age of all participants. “Anyone” includes you and your spouse – no matter how old you both are, even if you never plan on showing your kink materials to anyone else. Section 2257 also requires that you and your spouse attach a notice to all of your dirty pictures and naughty movies, which indicates where those records can be found. If a member of the law enforcement community comes to that place, where those records are to be kept, the records must be provided upon request – no warrant required. Failure to do any of the foregoing will result in criminal liability.

It doesn’t take a hard-core civil libertarian to see the issues with a statute that makes punishable, by up to five years in federal prison, constitutionally protected conduct which was perfectly legal before the statute was enacted.

Recognizing these problems with the law, Connection Distributing Co., a publisher of a swingers’ magazines, filed an action in federal court, seeking to invalidate the statute. Late in 2007, after fighting the legal battle for more than ten years, Connection received a victory when the Sixth Circuit Court of Appeals ruled that Section 2257 was unconstitutional. For an in-depth discussion of that ruling, along with plenty of analysis of the First Amendment problems with the law, you can read up on it here.

This would have been the end of the matter, except that the powers that be determined that the issue was too important to be decided by a three-judge panel. As a result, the case was reviewed by seventeen judges, sitting en banc, and that panel decided to reverse the original holding. The court’s full opinion can be found here, but below are the high points:

Our government cannot enact laws that regulate speech based on its content – that would be censorship. Connection argued that Section 2257 was content-based regulation, which violates the First Amendment, because it only applies to certain kinds of images. In simple terms, Section 2257 burdens pictures that would be found in a photo-illustrated Karma Sutra, but not those found in a coffee table book about kittens. However, according to the court, it’s okay to ban speech, as long as the motives for doing so are not based on the content. The court reasons that “[s]o long . . . as the law addresses the collateral or ‘secondary effects’ of the expression, not the effect the expression itself will have on others, it will be treated as content neutral.”

“[T]he law [does not] implicate the central risk of a content-based regulation of speech: that the government has impermissibly interfered with the free exchange of ideas by imposing trade barriers on certain viewpoints but not on others. . . . No doubt, § 2257 favors a particular viewpoint on this issue: Congress is against child pornography and is using this law to prevent it. Although that kind of viewpoint discrimination normally would be fatal to a law, that is not true here because the Constitution allows the government to embrace this viewpoint and to act on it by imposing a complete trade barrier on the production and trafficking of this kind of speech. . . . What we have, then, is a valid speech-related end—eliminating child pornography—followed by a means of achieving that end, a proof-of-age requirement that refers to the content of the speech (specifically defined images) not because of its effect on the audience but because it is the kind of speech that implicates the government’s ban on child pornography. That kind of sensible reference to the content of speech—how else would the government impose a proof-of-age requirement designed to address child pornography?—does not rise to the level of a presumptively impermissible content-based regulation of speech.”

Judge Sutton, who authored the majority opinion, seems to ignore the fact that Congress has already imposed a “complete trade barrier” around child pornography. It has enacted laws that make the production of child pornography illegal. See 18 U.S.C. § 2251 (2006). There are also laws that make transportation, shipping, receiving, and distribution of child pornography illegal. See id. § 2252. In contrast to 2257, these provisions are narrowly tailored to target the specific, permissible goal of Congress that Sutton describes. Shouldn’t they be enough?

Six of the seventeen judges seemed to think so. In four separate dissenting opinions, those judges expressed concern about the application of Section 2257 to private couples, engaged in First Amendment protected conduct while in the privacy of their own homes. Judge Kennedy was not comforted by the assertions, made by the Attorney General, that those couples would not be prosecuted.

“Because federal criminal statutes outlast Attorneys General, the reach of the statute’s text, not a promise from law enforcement nor a recently enacted regulation, is the proper focus of our inquiry.”

Central to the dispute between the majority and the dissenters was the question of how many people, who are engaged in normally lawful activities, would be caught up in the “sweep” of Section 2257. How many is too many? How many is enough to call the statute “overbroad”?

“The majority states that the question of substantiality is: When ‘is it appropriate to invalidate a law in all of its applications when its invalidity can be shown (or assumed) in just some of its applications?’ . . . That could very well be framed as: ‘When is it appropriate to adjudicate unconstitutional applications of a statute on a case-by-case basis versus invalidating a law in its entirety because of some unconstitutional applications?’ The second formulation not only brings to life a central concern that runs throughout overbreadth–namely that unconstitutional applications otherwise may never make it before the court because speakers refrain from speaking, injuring speech and leaving few left to challenge the unconstitutional law–it also presents for consideration the burden–as it pertains to the substantiality of overbreadth–on a private couple in challenging the law as-applied.”

Another constitutional issue, which was raised by some of Connection’s subscribers, was based in the Fifth Amendment’s protection from self-incrimination. Everyone has the right to “remain silent” when they are the subject of a criminal investigation. The problem here is that the regulations surrounding Section 2257 allow law enforcement to use the records, provided in compliance with that statute, as evidence in other matters that are unrelated to the content for which the records were created. The majority refrained from ruling on this particular challenge, claiming that the issue was not ripe for review.

In his dissenting opinion, Judge Clay describes the danger of leaving the law intact:

“[T]he statute itself no longer begins and ends with the record-keeping requirement; because of the 2003 amendment, it now includes the threat of criminal prosecution for child pornography, sexual exploitation of children, and obscenity, based on information in the records required by the statute. . . . Because the statute now explicitly authorizes the government to use the identifying information for the purpose of prosecuting other crimes, the fear of Connection’s law-abiding advertisers that they may one day be subject to criminal investigation or prosecution is not unreasonable. To minimize this concern by stating that adult swingers who follow the law have nothing to fear ignores the reality that law-abiding people unfortunately can mistakenly become the targets of criminal prosecutions, with all of the accompanying burdens.”

One has to wonder if the judges that voted to uphold 2257 are allowing their own personal morality to motivate their decision. Should that kind of results-oriented jurisprudence really be allowed? This observer thinks not. Morality and legality are not the same thing. Isn’t preventing this kind of situation precisely the reason why the First Amendment is part of our Constitution? What say you?

This story was originally published on The Legal Satyricon.

Producers of Copyrighted Content – They Just Don’t Get It

jfischer1975 — Thu, 19 Feb 2009 15:31:37 +0000

I don’t understand why producers of copyrighted content have such a hard time comprehending their customer base. We’re not that difficult to fathom. We only really have a few, simple needs:

We want to be able to get to desired content, whenever and however we want.
We don’t want to pay through the nose for it.
If you make it difficult for us, there are other ways for us to get what we want. Ways you don’t like, because it means you won’t get your cut.

It’s precisely because content producers don’t understand us that we have scenarios like this.

I really thought that everyone was coming closer together, though, producers and consumers, when I discovered a service called Hulu this summer. It just so happened that I found myself, for about six weeks, in a place with Internet access, but limited cable service. I began to fret when I realized that I would not be able to get my weekly Battlestar Galactica fix – right when the last season was beginning to air. Also, with the writers’ strike delaying everything, many of my other favorite programs were still running new episodes into June. I was going to miss the season finales for a handful of shows, which I had been watching religiously at home. I began to panic a little bit.

When I finally got my wits about me, I did a few Google searches and came across the Hulu website. I couldn’t believe what I had found – ad supported streaming of television content, on demand and all in one place. New shows and old shows were all available for me to watch, at my leisure, as long as I was willing to sit through a few 30-second spots for Lipton iced tea. I discovered old and new shows that I had missed, which I could now become a fan of. I watched the entire first season of NBC’s Life on Hulu, and I continue to watch new episodes to date – even though that show airs the same night and time as ABC’s Lost, which sits as my highest priority Season Pass on TiVo. It wasn’t perfect, but I thought it was a significant step in the right direction, a step towards me being able to watch whatever I wanted, whenever I wanted, without having to pay any monetary access fee, beyond what I already pay for cable and Internet service.

One of the major drawbacks for the Hulu service was the fact that I could only access the content using a computer. At the time, this past summer, that wasn’t a problem. When I returned home, I went back to watching my 52” television and stopped using the Hulu service entirely, even though there were hours and hours of Arrested Development, The Practice, Babylon 5, and Hill Street Blues collecting virtual dust in my Hulu queue. I went back to watching my television content on TiVo, able to skip all advertising, but limited to shows which were currently airing. I began to lose hope for my dream of some day being able to watch whatever I wanted, whenever and however I wanted to watch it. Then came boxee, and I started feeling good again, believing that one day it would be possible.

Boxee is a piece of software that runs on my hacked Apple TV, which made the Hulu service available on my television. Again, it wasn’t perfect, but it was certainly good enough for me. Again, I was able to pick up old TV shows that I had missed. I was able to watch shows that conflicted with my wife’s higher priority Season Pass to Gossip Girl. Life was good. Then, in an inexplicable fit of ignorance, the content providers decided that I shouldn’t be able to watch whatever I wanted, whenever and however I wanted to watch it.

It was announced this week that Hulu will be pulling its boxee support. The creators of boxee have issued a statement describing their position. Here‘s another blogger’s well-put explanation of the situation. As of Friday, I have to go back to watching only what is currently being aired. If I miss an episode of something, if TiVo goofs and fails to record, if my wife’s addiction to GR∑∑K interferes with one of my recordings, what are my options?

Buy another TiVo.
Pay $1.99 on iTunes to buy an episode that I will watch only once.
Wait a year for the DVD to come out.
Violate current copyright laws, pirate the show I want using BitTorrent, upload it to my Apple TV’s hard drive, and enjoy.

Which one do you think most people would pick?

This story was originally published on The Legal Satyricon.

Tim Tebow should visit whocanisue.com

jfischer1975 — Sun, 14 Dec 2008 15:17:48 +0000

The University of Florida starting quarterback likely has a valid claim for infringement of his right of publicity, provided he has not authorized this bit of creative expression that is currently available for purchase.

Gator Nation response:

This story was originally published on The Legal Satyricon.