Daily Archives: January 16, 2009

“Stripper Idol” Update — The Docs

Here are the filings with the United States District Court, Western District of Texas, in Fremantle v. Benelux Corp. and Athanases Stamatopoulous, Civil Action A08-CA-908LY. (Blogged here and here).

The Complaint (pdf)

The Exhibits (pdf).

Note that Fremantle’s proof of infringement comes from an ad placed in the Austin Chronicle.  It’s blurry, it’s in black and white, but it does look like the same font that American Idol uses.

Also interesting, as Gene at IPWatchdog noted, that the Complaint contains Counts I (Federal trademark infringement and unfair competition), II (trademark infringement and unfair competition under Texas law) and IV (trademark dilution under Texas law).  Conspicuously absent is Count III, which Gene hypothsized may have been a claim for federal trademark dilution.  The questions arise:  Was the omission of the federal dilution claim intentional, or an oversight? If it was intentional (perhaps a decision made at the last minute) was it because Fremantle was concerned about a finding that AMERICAN IDOL is not famous, or that something like STRIPPER IDOL does not dilute it?  Or did they believe that relief under the Texas law (which appears to require a lower threshold of fame than the Lanham Act) would provide all the remedies they needed (after all, the strip club is not going to offer these services outside of Texas, so if you shut them down in Texas, that wins the case)?

This would be a fun one to follow, although my guess is that the case will be settled quickly and confidentially.

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Filed under Law, Trademarks

“I don’t know how God can offend anybody,” New Jersey town wins Establishment Clause “No Doi” award

From the Poccino Record:

A nearly six-decade tradition of reciting the Lord’s Prayer at the start of Town Council meetings has ended.

The tradition, begun in 1952, stopped Monday night after a single resident’s objection. It’s the end of a popular tradition that pleased more than it dismayed, according to the five council members, all of whom described themselves as saddened by the change but resigned to the realities of court precedent.

“According to our counsel, (the prayer) is a violation of the First Amendment,” said Councilwoman Helen LeFrois.

No doi. But the article gets better:

It’s not the first time the Lord’s Prayer has been publicly questioned in Newton. In March 1995, the council began debating the values of switching the tradition to a secular prayer because a Jewish councilman, Robert Shapiro, had been elected to the council.

Shapiro adamantly supported the Lord’s Prayer tradition [?!??-ed.] and the recitation continued. Shapiro, who now lives in Florida, said he was disappointed to hear the controversy being brought up again.

“These are the traditions our country is founded upon,” he said, citing the mottos that dot U.S. government buildings — and even its currency.

“It says, ‘In God We Trust.’ That’s a lot older than the Newton Town Council,” Shapiro said.

[Actually, “In God We Trust” as the “U.S. Motto” is not older than the Newton Town Counsel, unless TV is older than the Newton Town Counsel, and it is not older than the city, which has a “rich historic heritage dating back to 1751“. – ed.]

Ray Storm, a three-time Newton mayor and four-term councilman, said he was discouraged by the abandonment of tradition, even if it was due to court precedent.

“In my mind, I don’t know how God can offend anybody,” Storm said. [No comment. –ed.]

I am not intending to demean anyone’s religion, or their particular view of God.  But the recital of the prayer Jesus taught while hanging on the cross, slowly dying at the hands of the Romans and Jews, is sectarian.  The leaders of the town are calling upon a particular God to give them particular guidance on governmental powers is nearly as close to “establishment of religion” as you can get.  While there may be a zone of religious activity permissible by the Constitution–in fact, the counsel members may even have a First Amendment Free Exercise right to provide personal declarations of faith, a Christian prayer before a counsel meeting doesn’t fit.  It’s actions like this that bring counter-actions, like Michael Newdow’s latest suit to stop President-Elect Obama from saying “so help me God” during the inauguration.  More on that action later.

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Filed under First Amendment, Law, Society

Real CourtTV– Judge Nancy Gerner allows live streaming of oral argument

As reported by ComputerWorld here, United States District Judge Nancy Gertner has agreed to allow a streaming webcast of an oral argument occurring on January 22 in Capitol Records v. Alaujan and Sony BMG Music Entertainment v. Tenenbaum.  The oral argument is on Mr. Tenenbaum’s Motions to Amend Counterclaims, opposition to the record companies’ Motion to Dismiss the Counterclaims, and a Motion for Joinder of the RIAA.  Mr. Tenenbaum, a Boston University Ph.D. candidate, has been accused of using peer-to-peer file sharing to download music.  He got an attorney– Charles Nesson, professor of law at Harvard and of the Berkman Center for Internet and Society.

Because the proceedings on January 22 are only oral argument, the Court reasoned, “narrowcasting” the proceedings will not influence the performance of any witnesses or testimony. And, because the record companies hope to discourage illegal file sharing through general deterrence built up from the publicity of lawsuits across the country, the Court was “curios” as to why the record companies objected to the motion.  Therefore, the Court reasoned:

The public benefit of offering a more complete view of these proceedings is plain, especially via a medium so carefully attuned to the Internet Generation captivated by these filesharing lawsuits.

The Courtroom View Network (CVN) will create the narrowcast using the cameras (likely to be fairly low-res security cameras and monitors) already installed in the courtroom, and the Berkman Center will rebroadcast on http://cyber.law.harvard.edu.  I’ll be tuning in to hear Professor Nesson’s arguments regarding the constitutionality of the fines potentially imposed by the Copyright Act, as well as the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999.

(A copy of the PDF decision of the Court is here.)

In addition, kudos to Judge Gertner for being brave and allowing this narrowcast. I’m generally not a huge fan of cameras in the courtroom, especially during trials, as I do believe that it intimidates jurors, affects witness testimony, and may cause grandstanding by judges and attorneys (especially those who see a trial as “free attorney advertising” or judges who are subject to reappointment through popular-vote elections).  But oral argument, particularly in circumstances like this, is a different kettle of fish.  I’m excited to see how the record company attorneys respond.

United States Ditrict Judge Nancy Gertner for Supreme Court?

United States Ditrict Judge Nancy Gertner for Supreme Court?

I first heard of Judge Gertner during the early Blakely/Booker era in 2004 and 2005. She was a pioneer in reacting to the decisions, and has become a sentencing expert.  She’s also a blogger.  She’s a Yale grad, appointed to the bench by President Clinton, and has been very outspoken on a number of civil and criminal justice issues. I would think a jurist of her caliber would be a perfect Supreme Court nominee for President-elect Obama, especially if Justices Stevens, Souter, or Ginsburg were to retire soon.  She’s brilliant, thoughtful, progressive-leaning (in a literal, as well as political, sense–how many other judges have blogs and allow webcasting?), and, as a district judge, she brings insight to the court about the day-to-day practicalities of jurisprudence that no other sitting justice currently has. She may suffer, though, from “too much information-itis,” as with some other long-time Supreme Court hopefuls, just because she’s said too much about too many topics that may seriously frighten center-leaning Democrats and Republicans. But both her future–and this oral argument–will be something to watch.


Filed under Copyrights, Law, Uncategorized

Stephen Colbert to Larry Lessig –“I want a divorce!”

From Wired’s Blogs– this story about Stanford law professor Lawrence Lessig’s appearance on The Colbert Report.  Lessig is hocking his new book, Remix: Making Art and Commerce Thrive in the Hybrid Economy. Fun, surprising comments from the interview:

Professor Lessig on The Colbert Report

Professor Lessig on The Colbert Report

  • Cobert: “You say that copyright laws are turning our kids into criminals, because they’re keeping kids from doing all the ‘remixing’ that they want of pre-existing copywritten material… Isn’t that like saying arson laws are turning our kids into pyromaniacs?”
  • Lessig: “Totally failed war. Is that familiar to you…?” Colbert: “No. … You’re saying we need a surge in copyright protection?” Lessig: For 10 years we’ve been waging this war. Artists have gotten no more money, businesses have gotten more profit, and our kids have been turned into criminals.”
  • Colbert: “Never, ever, ever, ever take anything of mine and remix it.  For instance, I would be very angry, and possibly litigious if anyone takes this interview right here, and remix[es] it, with some great dance beat, and then it starts showing up in clubs across America.”
  • Lessig:  “We’re joint copyright owners; I’m OK with that. … Copyright is joint for us; we’re in this together Stephen.” Colbert: I want a divorce.”

And of course, the remixes abound. Like “Artistic Socialism” [YouTube] by EmJayEff, “Operation REMIX” [mp3] by DJ Cable and this one by Ludachrist:

I have to admit, Lessig’s got a point:  Congress has been ratcheting up copyright terms, penalties, and fines, allowing DRM and making it a crime to subvert it, and now increasing criminal actions against peer-to-peer copiers. Has this really prevented piracy? Not much. Has the record industry been saved? Not really.  iTunes is becoming totally DRM free.  The artists that are succeeding have figured out how to thrive in the peer-to-peer, Myspace, Twitter generation.

On the other hand, I’m afraid that some of Lessig’s comments paint with too broad a brush.  He claims that 70% of “our children” are “criminals” because they copy music on peer-to-peer systems. That’s probably true.  But the vast majority of infringers on peer-to-peer are not yearing to breathe free from copyright restrictions so that they can remix content to make something new.  Rather, the file sharers want something for nothing–they want music or movie content that cost hundreds of thousands of dollars, or millions of dollars, to make at no cost.  Could some of those uses be “fair” (like previewing an artist to see if you like their work before buying)? Certainly.  But are there millions of people out there, collecting digital media just because they can? You betcha.

I haven’t read Lessig’s book (although I think I’ll pick it up… legaly… and pay both the physical costs like the paper, printing, distribution and the intellectual royalty to Mr. Lesig) but my guess is that he imagines a sea change in the economic foundations of the media enterprises — make movies with an economic model like Twitter, where the content is free, but money is made through ad revenue, or as part of being in the distribution channel, or the like. Of course, that would be a revolution in intellectual property law that ultimately devalues the property itself in favor of the method of production or distribution. I’m not too sure that most authors would favor it. But I’m glad there are people like Prof. Lessig in the world to make us challenge our IP paradigms.

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Filed under Copyrights, Law, Uncategorized