Category Archives: Society

Up against bars, news stations, local merchants sure, but God? No.

There have been numerous posts around the blogosphere about the NFL’s annual witch hunt for IP infringers (LIKELIHOOD OF CONFUSION’s Ron Coleman has a particularly good ones) who either (a) use the words “Super Bowl” in connection with a good, service or promotion, or (b) attempt to display the Super Bowl game itself on a television larger than 55 inches, or charge for admission to a “Super Bowl” viewing.

The Big Game? (I swear I havent copied this logo, and I disclaim any perceived affiliation with the NFL!)

"The Big Game"? (I swear I haven't copied this logo, and I disclaim any perceived affiliation with the NFL!)

Well, the NFL may be able to sue bars for putting the game on too big of a screen, or threaten injunctions against retailers who want to say something like “your Super Bowl party snack headquarters”, but it gets stopped in its tracks when it goes after God.  From this report from OneNewsNow (a division of the “American Family News Network”):

Churches can show the Super Bowl on big-screen TVs without fear of violating copyright laws.

In 2007, many churches cancelled Super Bowl parties after the National Football League (NFL) warned an Indiana church that it would be illegal to show the game on anything larger than a 55-inch screen. But members of Congress threatened to change copyright laws, and the NFL dropped the restriction beginning with this year’s Super Bowl.

[…]

“These organizations may show the game on any monitor, and we only ask these organizations to not charge admission — the game’s on free TV — and to hold the party at a location they usually use for other large gatherings,” [an NFL spokesperson] explains. According to the guidelines agreed to, churches may take up a donation to defray the cost of the event, if they desire.

That’s right, at least according to this report, members of Congress threatened to change copyright law to allow churches to show the Super Bowl on big screen TVs.  Because nothing says America like football and God, together under one roof.

Now, I’m all for churches showing the Super Bowl.  In fact, I belonged to a church that had a “SOUPER Bowl” party (a soup and sandwich potluck before the game started), and even though the broadcasting of the game was not part of the itinerary, I’m sure some people stayed at the church, and maybe even brought out the projection TV to show the game on a wall in the fellowship hall.  But why can’t the Fraternal order of Eagles do it? If anyone says that our country is secular, just look at the decision the otherwise IP-stodgy NFL has made here.

Further, why can’t my wife’s evite for our party have the words “Super Bowl” on the graphic, or even the Super Bowl logo? It’s certainly a descriptive  fair use (most likely a “traditional” fair use, although the “nominative” fair use exceptions may also apply) to describe the purpose for our events.    Perhaps Ron Coleman put it best:

It’s the overselling that’s offensive, because of course the NFL has a trademark right to SUPER  BOWL.  But like all IP owners, the league has set up a campaign not only to protect its legitimate rights but a buffer of illegimate intimidation-based quasi-rights around the real thing.

This buffer zone not only establishes a zone of litigation-based (not legal-based, litigation-based) early warning triggers around the real rights, such that any would-be infringer on the trademark would have to traverse the hopelessly expensive no-man’s land of illegitimate litigation threats.  It also has an even more insidious effect of actually causing an expansion of the original right itself.  It does this by actually enhancing the perceived “untouchability” of the real trademark, i.e., its isolation in the market, cinching the future results of consumer surveys and other indices (including, of course, the claim that mark holder “vigorously enforces” its rights) that could be used in a future trademark infringement or dilution claim. This is a privilege Congress, but far more so the judiciary, the latter of which almost never enforces the extant, if weak, fee-shifting provisions of the Lanham Act, have reserved exclusively to wealthy trademark owners.

So when you go to watch The Big Game this Sunday, at your church, at your home or at a purveyor of libations, please, take a moment, and enjoy the spectacle of intellectual property rights that abound.

… Oh, and call it the Super Bowl, just once. But maybe think twice before watching it on Frank’s 2000-inch TV.

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Copyright/First Amendment Blog (from the Dark Side)?

Today, I stumbled across a (fairly) new First Amendment, copyright, and elections blog called Copyrights & Campaigns. Its author, Ben Sheffner, describes himself as “a copyright/First Amendment/media/entertainment attorney with a journalism background and a strong interest in politics” and the blog as providing “news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.”

It’s not too often that you see a blogger in the soft-IP, First Amendment platform specifically blogging from the “pro-copyright owner perspective,” and his prolific postings will certainly be interesting reads for me.  He has a number of recent postings of interest, such as:

  • An update on the Tenenbaum case, finding a request for amicus signatories from Tenenbaum as well as a discussion of amicus filings by the Courtroom View Network (the “network” that was originally charged with narrowcasting the oral argument), a group of news organizations, and the EFF’s amicus brief, which Scheffner himself has signed on;
  • A post comparing the Obama logo to the Pepsi Logo; and
  • A fisk refuting an article in the ABA Journal called “Copyright in the Age of YouTube.”

The blog is updated regularly, has insightful commentary you can’t find other places in the blogosphere, and is a just plain good read.  It’s on my blogroll, in my RSS aggregator, and I hope it finds its way to yours as well.  Even if Sheffner may be, at times, the copyright equivalent of Grand Moff Tarkin.

Nah... hes just a good copyright blogger.

Nah... he's just a good copyright blogger.

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Obama retakes oath; Chief Justice doesn’t learn his lesson?

As reported by the ABA Journal here and by MSNBC here, President Obama retook the oath of office last evening in the map room, due to the bungle of Chief Justice Roberts, which Jim Lindgren at the Volokh Conspiracy attributes to the Chief Judge’s inappropriate adherence to the fifth edition of the Texas Manual of Style‘s bogus requirement that a helping verb and the main verb not be split by an adverb. I just think that Roberts forgot because he was nervous and didn’t bring a cheat sheet, like Justice John Paul Stevens did when he swore in Vice President Biden (video here via Yahoo).

I guess the Chief did not learn from his mistake, and at least according to this photo, once again administered the oath without a cheat sheet:

According to this photo from the White House (via MSNBC) it looks like the Chief Justice once again danced the high wire without a net

According to this photo from the White House (via MSNBC) it looks like the Chief Justice once again danced the high wire without a net

According to the articles, the oath was re-administered because of fears that “conspiracy theorists” would continue to believe that Obama’s presidency was not legitimate, a theory that’s been circling on the Internet since the inauguration:

Craig, the White House lawyer, said in a statement Wednesday evening: “We believe the oath of office was administered effectively and that the president was sworn in appropriately yesterday. Yet the oath appears in the Constitution itself. And out of the abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time.”

The Constitution is clear about the exact wording of the oath and as a result, some constitutional experts have said that a do-over probably wasn’t necessary but also couldn’t hurt. Two other previous presidents have repeated the oath because of similar issues, Calvin Coolidge and Chester A. Arthur.

Article 2, Section 1, Clause 8 of the Constitution states:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

That sounds to me that, even though the President “becomes” President by operation of law at Noon, before he can take any action as president “enter on the Execution of his Office,” Obama had to take the oath provided for by the Constitution. I think that the Constitution probably doesn’t require a word-for-word recitation of the oath, so long as what was recited recognized that the new president affirms that he will execute the office and preserve, protect, and defend the Constitution.  What if the new president were deaf and had to sign the oath? American Sign Language would not necessarily be a word-for-word translation of the oath (unless each letter were spelled out; unlikely).  Yet, certainly someone using ASL to take the oath would be considered to be president.  Or what about a president who may have a lisp who says “I do tholomy thwear…”?  Once again, I’d say that’s no problem. And the Chief Justice’s acceptance of the oath as sufficient likey ends the inquiry. And who would have standing to challenge the inefficacy of the oath?

But whether or not Obama had to re-take the oath, I’m not sure this will have the desired effect.  Why? Because conspiracy theorists will continue to question the illegitimacy of the president. Not that they need any help, but here are a few more ideas:

  • The President took a variety of executive actions on Tuesday and Wednesday, including nominating cabinet positions.  If the Oath was improperly administered, (which the President implicitly admits by re-taking the Oath) aren’t all of those actions legally invalid?  And if the invalid actions include the nomination and appointment of, for example, Hillary Clinton as Secretary of State, aren’t all of her subsequent actions as SoS invalid?
  • None of this matters anyway because, according to many conspiracy theorists, Obama was not born in the United States, thus he could never be president to begin with.
  • How can a guy be president when his chief white house counsel is a guy named “Greg Craig“?

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Pirates of the World – Copy & Unite!

From this article at TorrentFreak:

Ung Pirat,* or ‘Young Pirate’, is the youth organization associated with the Swedish pirate party. Yesterday it was a big day for the group, getting 1,325,744 Swedish Krona (Approx €121,900, or $161,700 US) from the national board for youth affairs. The amount is based on a membership count of around 1280 members, but with current membership of around 4,872, next years amount should be even greater.

The national board for youth affairs (Ungdomstyrelsen) awards money to organizations, in order to ensure that they have access in influence, to promote the next generation of politicians; indeed possibly the current generation. At least two of the board members of Ung Pirat are listed on the Pirate Party’s list of candidates for June’s EU elections.

[…]

UP, at just over two years old, has seen a fantastic growth rate. It is now the third biggest political youth organization in Sweden, behind those of the Moderate and Social Democrat parties, and ahead of the Christian Democrats – all parties with representatives in the Swedish Parliament.

Arrg Maitey! Vote fer me an download all the Flo-Rida ya can muster!

Arrg Maitey! Vote fer me an' download all the Flo-Rida ya can muster!

Per Nilsson recognized this as well, saying, “It is positive that the organization in a short time has managed to build a large nation-wide activities on issues involving many young people.” With this money and constantly growing support, it’s quite likely that come the next election, the Pirate Party will be voted into parliament.

“The growth of the Young Pirates in Sweden heralds the coming of a new dimension in European politics,” Ung Pirat’s Mattias Bjärnemalm told TorrentFreak, “The communication revolution has made the life of the younger generations into something altogether different from how their parents grew up, and now that cultural change will alter the very core today’s political landscape.”

What an interesting idea.  People who are upset with a country’s copyright rules actually organizing to take political action to change them.  Regardless of what you think about the RIAA’s enorcement efforts, whether copyright law (or the penalties for infringement) should be strengthened or relaxed, or whether you have “new media” ideas about how copyright should be modified for the “Mixing” generation, what’s actually fairly easy to see is that you can affect political change if you have the will.

Also an intersting idea: The government helps support minority political parties to grow if they show a serious and large enough base. I think both Democrats and Republicans would be quaking in fear of that prospect in the U.S.

* Too bad their website is only in Swedish.

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No Doi award– no qualified immunity when principal demanded removal of “Team Avery” T-shirts

From the Student Press Law Center:

A U.S. District Court judge ruled Thursday that a student had not clearly established her First Amendment right to criticize her principal in an off-campus blog that used coarse language, denying the student a trial on her claim.
[…]
Doninger also filed a First Amendment claim against Niehoff [the principal] for making students who opposed Doninger’s removal from office take off T-shirts that said “Team Avery” while in an assembly where student candidates gave speeches. In that count, Kravitz said the Tinker standard applied, and that the administrators were not protected by qualified immunity in that instance. The administrators argued that because the speech involved T-shirts, not armbands as in Tinker, that it was not clearly a Tinker case, and therefore, qualified immunity should apply.
“None of these distinctions convinces the Court that the right of students to engage in non-offensive, non-disruptive speech on school property was not clearly established,” Kravitz’s opinion said.

No doi. This case is fairly interesting, and got a trip up to the Second Circuit Court of Appeals on the student’s preliminary in junction motion.  It also got a lot of attention in the blogosphere.

Why?  Because the kid called her superintendent [edited; the previous edition of this post incorrectly reported that the comment was targeted at a principal] a “douchebag” on a livejournal post.

From the few facts I could glean from this most recent opinion (from the Student Press Law Center in PDF form), Ms. Doninger apparently had a disagreement with the superintendent [editd from: one of the principals] from her school regarding a popular school battle of the bands called “Jamfest.”  In disgust, Doninger posted a blog entry on livejournal:

jamfest.

jamfest is cancelled due to douchebags in central office. here is an email that we sent out to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. anddd..here is the letter we sent out to parents.

According to facts recited in the opinion [edit from Apparently], Jamfest was not canceled, but the administrators had decided that it would either occur in the lunchroom (acoustic only) or that it would have to be rescheduled for the auditorium.  And I guess they had a heckuva time dealing with angry students and parents once this “misinformation” was disseminated.  Thus, as a sanction to Doninger, they (a) refused to allow her to run for  reelection to class secretary [edit from run for class office], and (b) at an assembly where students went to listen to speeches for class office and/or vote, they prohibited friends of Doninger’s from wearing “Team Avery” T-shirts “in silent protest” (they did, however, allow Doninger to wear a T-shirt entitled “R.I.P. Democracy.”

Doninger sued for violations of her First Amendment rights (both for being punished by not being allowed to become a class officer and for the administration’s prohibition of the “Team Avery” T-shirts), her Fourteenth Amendment Equal Protection rights (as a “class of one”), for state law rights, and for intentional infliction of emotional distress.  The district court denied Doninger’s preliminary injunction motion, finding her not likely to succeed on the merits of her class officer claim, finding no future irreparable harm vis-a-vis the Team Avery claims, and the Second Circuit affirmed, on slightly different grounds.

The Defendants were back, this time with a summary judgment motion, both on the substance of the claims as well as on qualified immunity grounds.

In what is a very comprehensive opinion, the Court determined that even if Doninger’s punishment for her blog entries amounted to a constitutional violation, such a right was not “clearly established” at the time of the alleged violation.

The Court listed a number of contrary cases addressing appropriateness of regulating in the schoolhouse on-line student speech created off-campus.  It then cited to a number of law review articles (some of which were likely student notes, whose authors were thrilled that an Article III jurist cited their writing) recognizing the morass that this area of law is in:

If courts and legal scholars cannot discern the contours of First Amendment protections for
student internet speech, then it is certainly unreasonable to expect school administrators, such as
Defendants, to predict where the line between on- and off-campus speech will be drawn in this new
digital era. Since, as explained above, the particular right Ms. Doninger seeks to enforce was not
clearly established at the time of the events in question, Defendants are entitled to qualified
immunity on Ms. Doninger’s blog entry First Amendment claim.

However, in regards to the administrators’ confiscation and/or prohibition of the “Team Avery” shirts at the assembly, the school district was not so fortunate.

The district was up against Tinker v. Des Moines Independent Community School District, the watershed Supreme Court case that recognized that students’ use of non-disruptive armbands to silently protest the Vietnam conflict was protected expression.  The district tried to argue that even though the school had no written ban on “electioneering” materials beforehand, and even though the administrators were not looking to confiscate any “electioneering” materials beyond the T-shirts, that that the T-shirts were prohibited “electioneering” speech, a content-neutral restriction. Buzz. Denied.

Then the school district tried to argue that this case was different from Tinker because it dealt with T-shirts and not armbands.  Buzz. Denied. Then the school district tried to argue that Doninger didn’t have standing because hers was not one of the shirts that were confiscated.  Buzz. Denied. No qualified immunity, and the case goes to trial on this issue.  (Because Doninger lost on her “big” claim of not being allowed to be a class officer, I wouldn’t be surprised if the case settles, so long as the district can pay some of Doninger’s attorneys’ fees.)

School teachers and administrators have it tough.  They have to make difficult, and sometimes snap, judgments about student discipline.  They are often seen as “the enemy,” and schoolchildren are constantly trying to find ways to usurp and undermine their authority. But on the other hand, they have egos and tempers, too.  School teachers and administrators are human, but some times the have to be super-human, especially when they’re feelings are hurt.  And when a kid calls a superintendent [edit from principal] a “douchebag,” I’m sure that hurt.  And I’m sure the school officials [edit from principal] didn’t want to have that “sort of kid” in a leadership role.  And I’m sure that the school officials [edit from principal] may have been [edited from was] sick of this kid overreacting to restrictions the administrators were placing on Jamfest.  And I’m sure the school officials [edit from principal] wanted to send a message that not every kid can go on livejournal, or myspace, and berate school officials.  But how many hundreds of thousands of dollars could the district have saved if the principal simply let the “douchebag” comment roll of their backs [edited from her back]? Or, if the school district’s administrators were well educated on First Amendment law in school, so they could have avoided the potentially devastating confiscation of the “Team Avery” T-Shirts?

If she just gave Doninger a warning that, “if you run for class officer, you’re a representative of the school and your class. With that comes some responsibility, including the words you use to describe school officials.  Should you shirk that responsibility, you will not be able to continue to be a class officer, or hold any position of authority or honor in an extracurricular at this school,” would that have solved the problem?  Would this kid just have found a way to push the limits anyway, just to sue for suing’s sake?  Who knows.  In qualified immunity cases involving police action (particularly illegal search and excessive force cases) police are often given a bit of a “cushion” due to the snap judgments that must be made in the course of apprehending and restraining a suspect.  Perhaps that “cushion” should be afforded to school administrators, if they reasonably perceive a substantial risk to the safety or security of the school or its children.  Based upon the facts I discerned from the opinions, I don’t think that would have made much of a difference in this particular situation, however, it provides some additional protection when school leaders need to make snap judgments.

I think the case was rightly decided, and it will be interesting to see what happens if the case goes to trial.

Update — because of the comments below, I was alerted that I made a few errors recounting the facts of the case.  The edits are above, in bold, and I welcome further (non-biased) clarifications.

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Afghanistan newspaperman charged with blasphemy & lessons learned by Bush?

Professor Friedman’s Religion Clause blog has this report from the AFP:

[I]n Afghanistan, the editor of a small Kabul newspaper, Payman Daily, was arrested Tuesday on blasphemy charges. A a council of Islamic clerics and a government media disciplinary commission found that an article the newspaper published was “an insult to Islam.” The article, not written by the newspaper staff but was taken from an Afghan website, argued that no religion– including Islam– was divinely revealed. The paper, even before the editor’s arrest, had apologized for publishing the article. Punishment for blasphemy can range from a reprimand to the death penalty.

One day later, in his farewell address, President Bush had this to say about his perceived success in Afghanistan:

Afghanistan has gone from a nation where the Taliban harbored Al-Qaeda and stoned women in the streets, to a young democracy that is fighting terror and encouraging girls to go to school.”

I guess I have a few thoughts:

  • No matter how bad it gets in the U.S.  No matter how much civil rights groups complain about the “police state” that America has become.  No matter how much religious separatist groups complain that the First Amendment Establishment Clause has been trampled upon, we’re not Afghanistan.  In America, you can seriously, honestly debate fundamental truths of existence (such as whether democracy is the best form of government, whether God exists, whether war is justified) whether or not your ideas are serious or based in reality (like whether global warming is real, whether aliens are running the government, or Elvis is alive) and you won’t be charged with “sedition” or “blasphemy” or any other crime created by governments frightened of their own people and new ideas.  Of course, if you act on some of those ideas (by, say trying to overthrow the government by military force) you may not be so lucky.  But, except for direct threats to public officials’ lives, in America, you pretty much cannot be imprisoned for what you say, or what you repeat. And even if we are descending into a “police state,” we are a long way from having clerics charge our newspaper writers with blasphemy.
  • It’s a shame that President Bush doesn’t realize the difference between what American democracy is and what the Afghan state is like.  Bush specifically noted that women were being “encouraged” to get an education in Afghanistan, when, just a few days earlier, came reports of girls who had acid thrown in their face because they attempted to attend school. And this newspaper editor is not being harassed by terrorists; he’s being charged, formally, pursuant to the law that is currently in effect.  State-sponsored persecution based upon a challenge to a religious belief.  Is that a successful campaign in nationbuilding in Afghanistan?

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“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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