News & Media
MLK’s First Amendment Legacy
If I were to write about Martin Luther King, Jr.’s contribution to civil rights, I think I would be wasting my time. Far more qualified views are out there, especially today. However, I feel like it is worth mentioning that he had a part in a profound change in favor of Civil Liberties as well. I speak of nothing less important than N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). That case is the foundation upon which stands most of our modern First Amendment jurisprudence, without which we would not have modern investigative journalism, the right to express our opinions, nor very likely much content on this blog. That case concerned an advertisement that ran in the New York
What’s got “The Slants” case, CUMFIESTA, Fuckingmachines, Nutsacks, and Japanese porn?
My latest law review article does! Randazza, Marc J., Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights (January 16, 2016). Nevada Law Journal, Vol. 16, No. 1, 2016. When I did my LLM in International Intellectual Property in Italy, I had to write a thesis. What else would I write but a study of how morality can get in the way of enforcing intellectual property rights? Download early and download often. This post originally appeared on Popehat. View it here.
MLK’s First Amendment Legacy
By Marc Randazza. If I were to write about Martin Luther King, Jr.’s contribution to civil rights, I think I would be wasting my time. Far more qualified views are out there, especially today. However, I feel like it is worth mentioning that he had a part in a profound change in favor of Civil Liberties as well. I speak of nothing less important than N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). That case is the foundation upon which stands most of our modern First Amendment jurisprudence, without which we would not have modern investigative journalism, the right to express our opinions, nor very likely much content on this blog. That case concerned an advertisement that ran in
What’s got “The Slants” case, CUMFIESTA, Fuckingmachines, Nutsacks, and Japanese porn?
My latest law review article does! Randazza, Marc J., Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights (January 16, 2016). Nevada Law Journal, Vol. 16, No. 1, 2016. When I did my LLM in International Intellectual Property in Italy, I had to write a thesis. What else would I write but a study of how morality can get in the way of enforcing intellectual property rights? Download early and download often.
Randazza on Morality and Intellectual Property Rights
If the title doesn’t grip you, it discusses “The Slants” case, CUMFIESTA, Fuckingmachines, SCREW YOU, Nutsacks, and Japanese porn. Marc J. Randazza, Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights, 16 NEV. L.J. 107. Use the link here to go to the paper on SSRN and please download it!
Netflix, Voi Siete Stronzi
Netflix announced that it is going to take action to prevent people from logging in through proxy servers. “In coming weeks, those using proxies and unblockers will only be able to access the service in the country where they currently are,” David Fullagar, Netflix’s VP of content delivery architecture, wrote in a blog post. “We are confident this change won’t impact members not using proxies. Source I understand that Netflix has a problem here. Intellectual property rights are territorial in nature, and thus a movie company can sell the U.S. distribution rights to a film separately from the French distribution rights. I agree that content producers have a right to be paid for their efforts. But, situations like this make
Netflix, Voi Siete Stronzi
Netflix announced that it is going to take action to prevent people from logging in through proxy servers. “In coming weeks, those using proxies and unblockers will only be able to access the service in the country where they currently are,” David Fullagar, Netflix’s VP of content delivery architecture, wrote in a blog post. “We are confident this change won’t impact members not using proxies. Source I understand that Netflix has a problem here. Intellectual property rights are territorial in nature, and thus a movie company can sell the U.S. distribution rights to a film separately from the French distribution rights. I agree that content producers have a right to be paid for their efforts. But, situations like this make
Charlie Hebdo, One Year On
It’s been just over a year since the Charlie Hebdo murders, and I thought it was time to do a little more than simply defy, although I do love that that was Ken’s way of commemorating the date. On January 7, 2015, a group of lowlives attacked the offices of a satirical magazine for no other reason than they disliked its sense of humor. They believed that their religion trumped anyone’s right to mock it. They believed that their umbrage meant that they had the right to take the lives of those who worked there. And therein proved that their interpretation of their religion was entirely, utterly, without merit, and worthy of being mocked. And today, they still don’t get
Twitter Takes a Side in the Culture Wars – Lies About It
Twitter announced that in order to combat abuse and harassment on its increasingly unpopular online platform, that it would enact new rules and regulations that would hopefully get control of things. The stated mission was to cut down on loosely-defined “harassment.” But, what it seems to really be is yet another example of someone with a little bit of power behaving arbitrarily in favor of their “team.” Twitter didn’t call it “censorship.” They called it “fighting abuse to protect freedom of expression.” Ok, fair enough. Since it gives away accounts for free, and every lunatic has access to a computer, the barrier for entry on Twitter is very low. That means that the guy who used to stand on the
Charlie Hebdo, One Year On
It’s been just over a year since the Charlie Hebdo murders, and I thought it was time to do a little more than simply defy, although I do love that that was Ken’s way of commemorating the date. On January 7, 2015, a group of lowlives attacked the offices of a satirical magazine for no other reason than they disliked its sense of humor. They believed that their religion trumped anyone’s right to mock it. They believed that their umbrage meant that they had the right to take the lives of those who worked there. And therein proved that their interpretation of their religion was entirely, utterly, without merit, and worthy of being mocked. And today, they still don’t get
Twitter Takes a Side in the Culture Wars – Lies About It
Twitter announced that in order to combat abuse and harassment on its increasingly unpopular online platform, that it would enact new rules and regulations that would hopefully get control of things. The stated mission was to cut down on loosely-defined “harassment.” But, what it seems to really be is yet another example of someone with a little bit of power behaving arbitrarily in favor of their “team.” Twitter didn’t call it “censorship.” They called it “fighting abuse to protect freedom of expression.” Ok, fair enough. Since it gives away accounts for free, and every lunatic has access to a computer, the barrier for entry on Twitter is very low. That means that the guy who used to stand on the
The Establishment Claus
by Jay Marshall Wolman Five years ago, Josh Blackman asked whether the NORAD tracking of St. Nick violated the Establishment Clause. After all, he is sort of a religious icon. I would suggest it doesn’t. This year, the Consumerist delved a bit more into the history. It seems that a kid was concerned about that right jolly old elf, and he asked CONAD (predecessor to NORAD) about Santa. This proved to be a great public relations move, to show how our might could protect Mr. Claus from those godless commie bastards. This was in the 1950s (1955 specifically). The Pledge of Allegiance had “under God” added in 1954. Paper currency was emblazened with “In God we Trust” in 1956. God was like Adele.
Free Speech and Discrimination Redux
by Jay Marshall Wolman Last week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge about a business calling itself “Spics Not Welcome”. There is a significant tension in the law between freedom of speech, which includes the right to offend, and anti-discrimination laws. The fine folks at the New York City Commission on Human Rights have decided to push the envelope, issuing guidelines for employers and landlords regarding transgendered individuals. Among the well-intentioned guidelines are those that prohibit an employer or landlord from using a person’s biological gender instead of the person’s preferred gender. Within the confines of the law and the powers of the Commission, it seems to be a
Lawyer Mind Tricks
by Jay Marshall Wolman, CIPP/US Like many of you, I saw Star Wars Episode VII: The Force Awakens. I’m a lawyer and had law-oriented thoughts. This post contains spoilers, so scroll past this image: and this one: OK, that should be far enough. Cyber Security. Star Wars exists in a galaxy where they have some form of holographic Skype/Facetime/etc. The Jedi Council used in the prequels, and Lord Vader communicated with the Emperor this way. Yet, in both A New Hope and in The Force Awakens, we have sensitive information transmitted through a physical medium given to a mobile AI. In The Force Awakens, it makes sense that there are limited copies of the route to Luke. Presumably they are
Randazza: In These Parts, Claiming that a Republican Supports Harry Reid is Defamation
As readers may know, I have a bit of a soft spot (or a hard on, depending on how you look at it) for the Nevada Anti-SLAPP statute. See The Silver State Sets the Gold Standard. We don’t get many cases interpreting it out here in Nevada, so we generally interpret it the way that the California courts would look at theirs. So when we depart from California, even in an unpublished opinion, it is worth looking at. Recently, we had a pretty spooky case come down, Schmidt v. Kieckhefer. In that case, in an unpublished (and thank god, un-citeable) opinion, the Nevada Supreme Court upheld the denial of an Anti-SLAPP motion. It isn’t that they upheld it that freaks
Gag Clause Act Passes Senate
The U.S. Senate recently passed their version of the “Consumer Review Freedom Act” (CRFA), which would bar companies from trying to enforce “gag clauses” in contracts with consumers. It’s a good law that is long overdue, since clauses like these have been showing up much more often lately and serving as the basis of breach of contract claims bundled with frivolous defamation lawsuits. The impetus for this law is a Utah federal case, Palmer v. Kleargear.com, Case No. 1:13-cv-00175 (D. Utah July 1, 2014). The plaintiff there bought one of Kleargear’s products and then complained about it on the Internet. Kleargear then added a “non-disparagement” clause to its terms of sale that included a $3,500 for making negative comments about
Spics Not Welcome
by Jay Marshall Wolman By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”. (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiae in that case and was recently co-counsel with Mr. Tam’s lawyers, Ron Coleman and Joel MacMull, on another matter.) In short, the Federal Circuit Court of Appeals found that the denial of registration under the Lanham Act’s prohibition of the registration of “disparaging” marks did not survive strict or intermediate scrutiny under First Amendment analysis. I leave it to others to provide an analysis of the holding. I’m more interested in something that appears on page
Gag Clause Act Passes Senate
The U.S. Senate recently passed their version of the “Consumer Review Freedom Act” (CRFA), which would bar companies from trying to enforce “gag clauses” in contracts with consumers. It’s a good law that is long overdue, since clauses like these have been showing up much more often lately and serving as the basis of breach of contract claims bundled with frivolous defamation lawsuits. The impetus for this law is a Utah federal case, Palmer v. Kleargear.com, Case No. 1:13-cv-00175 (D. Utah July 1, 2014). The plaintiff there bought one of Kleargear’s products and then complained about it on the Internet. Kleargear then added a “non-disparagement” clause to its terms of sale that included a $3,500 for making negative comments about
Bernie Sanders v. DNC
Bernie Sanders sues the Democratic National Committee and the complaint is here. The legal issues are less exciting than Bernie’s hair style. What is more exciting is that Bernie Sanders isn’t taking this shit from the DNC. The DNC is playing the part of Roger Goodell in the 2016 election cycle. See Former NFL VP Of Officiating: “Looks Like The League Office Is Making Decisions On Who Wins/Loses Games” With New Playoff Officiating Rule, Masshole Sports. My take on this is that the DNC was pissed off enough last time around when its anointed candidate didn’t beat the upstart. They weren’t going to let it happen again, and they’ll do whatever it takes to put her highness on that ballot.
Circuit Split Over Cybersquatting Act – 11th Circuit Rejects GoPets in Jysk v. Roy
The Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), provides: “A person shall be liable . . . by the owner of a mark . . . if . . . that person . . . has a bad faith intent to profit from that mark . . .; and . . . registers, traffics in, or uses a domain name that . . . is identical or confusingly similar to that mark.” Back in 2011, the 9th Circuit came up with a pretty bizarre decision, GoPets Ltd.v. Hise, 657 F.3d 1024 (9th Cir. 2011). In that case, the 9th Circuit held that a “re-registration” is not a “registration” under the ACPA. Therefore, if you register a domain name
