UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC - First Amendment

What will come of the Viacom v. YouTube suit?

nospam@example.com (Jon Katz) — Tue, 27 May 2008 00:00:00 -0400

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

Even my most well-heeled litigation clients set a ceiling on the money they are willing to spend for litigation fees and expenses. One thing that interests me in the pending Viacom, et al. v. YouTube, et al. (S.D.N.Y. 1:07-cv-02103) copyright infringement litigation is the higher quantums of litigation funds being spent by those litigants than by my litigation clients and the extent to which those funds are being spent wisely or not.

Ordinarily, a huge publicly-traded corporation will hire a heavily-staffed law firm or team of lawyers to pursue its high-stakes civil litigation, in part out of anticipation that the opponent will do the same and in part because the selected law firm may already be doing a big chunk of the corporation's legal work. A critical challenge is for those corporations to justify the resulting huge litigation price tags to shareholders. Litigants hiring my law firm know that on the one hand my price tag will not need to cover huge overhead expenses, but that on the other hand if a big team of lawyers and assistants is needed, they either will need to look elsewhere or have me as part of a team of lawyers from more than one law firm.

YouTube.com makes available not only the opportunity for subscribers to upload home videos to the Internet, but to upload pretty much any video to the Internet. YouTube apparently is diligent in removing video uploads when the owner of the copied material claims copyright infringement. However, YouTube apparently does not remove such videos before receiving a complaint. (On the flip side, it seems that YouTube has a more proactive system to prevent nudity from reaching web viewers, which makes one wonder whether YouTube has software to check for nudity or has someone checking each video before it can be uploaded, and the extent to which YouTube has the capacity to block copyrighted works more proactively, while it is clear that nudity is easier to spot on the screen than a copyright violation.)

Last year, Viacom and co-plaintiffs sued YouTube for its involvement in having copyright-infringed works uploaded to YouTube. After various back-and-forth procedural moves, YouTube filed its Answer to the now-amended Complaint last Friday, which is over fourteen months after the lawsuit was filed. This blog entry is meant briefly to introduce this litigation and to provide some of the following links. So many millions of people and businesses download and upload at YouTube -- and set up their own webpages there -- that the results of this litigation might have a tremendous impact on them. Here are some links relevant to this Viacom v. YouTube lawsuit:

- Here is the Associated Press's May 27, 2008, overview of the case.

- Amended Complaint and 1800-page exhibit thereto, listing over 17,000 allegedly infringed copyrighted works that were uploaded to and available on YouTube.

- Defendants' Answer to the Amended Complaint.

- The case docket.

- Larry Dignan at ZDNet has been covering this litigation since its inception. His views of the lawsuit are fully unvarnished: "Google [which now owns YouTube] stands for all that enables the Internet. Viacom is evil–or at least misguided." A huge gap exists between evil and misguided, of course. Jon Katz

ADDENDUM: In a related development, this website covers the Football Association Premier League, Ltd., et al. v. YouTube, et al. (S.D.N.Y. 07-civ.-3582) class action lawsuit that is listed as a related case to the foregoing Viacom v. YouTube lawsuit, and was filed two months thereafter. The two cases have some material overlap. Here are some of the key filings in the Football Association civil action:

- The case docket; Amended Complaint; Answer to the Amended Complaint; and Order appointing interim class counsel.

When the Recording industry sues for copyright infringement.

nospam@example.com (Jon Katz) — Sun, 23 Mar 2008 00:00:00 -0400

The Bill of Rights. (From the public domain.)

Copyright infringement brings the risk of significant money damages and, sometimes, criminal prosecution. The First Amendment fanatic that I am, I feel very comfortable defending people accused of copyright infringement. As much as great music and great musicians are near and dear to my heart, my First Amendment concerns win out in my deciding which side I would represent for such litigation.

Here are some resources to help sharpen one's teeth in defending against copyright litigation:

- Nimmer on Copyright - With its price tag over $1500, I wonder how many people infringe on Nimmer's own copyright. By the way, the author, Melville Nimmer, successfully argued to the Supreme Court to overturn the conviction of a man who walked into a courthouse with a t-shirt proclaiming "F*ck the Draft". Cohen v. California, 403 U.S. 15 (1971).

- Here is an overview of the fair use doctrine, from the U.S. Copyright Office's website.

- Here is an apparently standard type of copyright complaint for allegedly unlawfuil Kazaa-type downloading.

- Recording Industry v. The People blog presents itself as being "[a]bout the RIAA's attempt to monopolize digital music by redefining copyright law, through the commencement of tens of thousands of extortionate lawsuits against ordinary working people."

- Pike & Fischer publishes Internet Law & Regulation. Most of its articles apparently require a subscription.

- ArsTechnica.com covers copyright infringement lawsuits.

- Here is the website of the Recording Industry Association of America. Jon Katz.

Have love songs made everyone love one another?

nospam@example.com (Jon Katz) — Tue, 11 Mar 2008 00:00:00 -0400

Following are some Frank Zappa quotes relevant to this blog entry:

There are more love songs than anything else. If songs could make you do something we'd all love one another. Frank Zappa responding to Tipper Gore's and friends' notion that explicit music lyrics would poison the nation's children.

I wrote a song about dental floss but did anyone's teeth get cleaner? - Frank Zappa responding to the same notion about the correlation between music lyrics and individuals' behavior. (See Zappa's timeless Montana/Dennil Floss).

The more boring a child is, the more the parents, when showing off the child, receive adulation for being good parents — because they have a tame child-creature in their house.

I never set out to be weird. It was always other people who called me weird.

In 1985, the late Frank Zappa (who passed away from prostate cancer when he was only eight years older than I am now) implored Congress to reject censoring music and pressuring the music industry to impose ratings systems. His live testimony is transcribed here and his submitted written comments start at the bottom of the page here. (I do regret Zappa's emphasis on the gender of Tipper Gore and other Congressional spouses of the Parents Resource Music Center (PCRM) pushing for music ratings; if he wanted to emphasize any impropriety or conflict of interest involved with Congressional spouses pushing for action by the same committee on which Tipper Gore's husband Al Gore sat, for instance, he could have just referred to "spouses" and their names.) Curiously, Zappa's testimony indicates no opposition to a government requirement to reveal music lyrics in printed form, so long as they could be on a separate sheet (e.g., so as not to take away from the album/CD cover art and design) possibly printed at government expense.

Curiously, the "Filthy Fifteen" songs list that was apparently trumpeted by PCRM as a prelude to the group's Congressional testimony, included plenty of titles that sound particularly tame today.

The above 1986 video of Frank Zappa on Crossfire shows his true dedication to the First Amendment and individual liberties. He does a good job of distilling the whole matter as boiling down to words, and the stupidity and oppressiveness of censoring those words. In the process, he responds to John Lofton's inquiry about why Zappa is not smiling with "Why should I smile when I'm sitting here with you?" The music video shown near the beginning of this Crossfire episode looks and sounds so mild as to not be of much or any strength for those seeking music ratings and more onerous censorship than that.

Now, over two decades later, we find warning labels on music and video games. We find Hillary Clinton just two years ago pushing for a ban on selling minors video games rated mature, adults-only, or rating pending, and hiring a company to review the effectiveness of industry efforts to arrive at such ratings. See Hillary Clinton's video plea here, the bill here, and CBS's William Vitka's response here, asking "Where is our Zappa?".

Fortunately, Hillary Clinton's proposed video censorship law died, but Clinton now seeks to return to the White House,and who knows what she would do there with the First Amendment? In the 1990's, Bill Clinton -- who undoubtedly will wield substantial influence in a Hillary Clinton administration -- signed into law the censorious Child Online Protection Act (1996) and Children's Internet Protection Act (1999).

Addressing the remaining presidential candidate front runners, John McCain's hands already are dirtied when it comes to the First Amendment. For instance, he introduced the Children's Internet Protection Act, and he was not too concerned about First Amendment rights in pushing for campaign reform. As to Barack Obama, I am still trying to make sense of the harm and good he has done and will do for the First Amendment.

Considering the foregoing efforts to censor music and video games, what comes next? Censoring books? (What am I saying? Books have been banned for decades and long before that.)

I miss Frank Zappa. Jon Katz.

Of Monty Python, Hormel, and unsolicited bulk email.

nospam@example.com (Jon Katz) — Mon, 03 Mar 2008 12:00:00 -0500

Technical difficulties interfered with my including the following addendum to my blog entry this morning about the 4-3 Virginia Supreme Court decision upholding Jeremy Jaynes's nine-year spam sentence:

In the face of this wrongly-decided Jaynes opinion, I offer the following spam humor. I found the CompuServe court opinion that explains, at footnote 1, how Monty Python's spam skit led to the coinage of the "spam" phrase for unsolicited bulk email. This Wikipedia article discusses the subject further. Monty Python's spam skit is as funny today as ever, and is here and above on YouTube. Jon Katz.

Wikileaks.org is back.

nospam@example.com (Jon Katz) — Sat, 01 Mar 2008 19:00:00 -0500

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

Following up on my February 24 blog entry, my closer reading shows that the permanend injunction issued for the Wikileaks case plaintiffs was by consent of one of the defendants, but not by Wikileaks. Also, my closer reading shows that the February 15 permanent injunction led to the disconnection of Wikileaks's domain name, rather than a disconnection of the sitehost used by Wikileaks. Thanks to Windypundit for reviewing this issue and for alerting me to the latter matter.

Wisely, on February 29, the trial judge reversed the above-described permanent injunction. Wikileaks.org is back at present. The next court hearing in this case is May 16, 2008. The order reversing the permanent injunction is here. The docket entries through March 2, 2008, are here.

Thanks to Reporters Committee for Freedom of the Press for listing an update on this case. Jon Katz.

Wikileaks continues at .cx domain.

nospam@example.com (Jon Katz) — Sat, 23 Feb 2008 19:00:00 -0500

Computer hard drive. (Image from Pacific Northwest Laboratory's website).

On February 15, 2008, a federal trial judge in San Francisco ordered that wikileaks.org be closed. Although wikileaks.org no longer functions -- after its sitehost apparently carried out the judge's order to close down the site -- wikileaks.cx (.cx is the Christmas Island domain) appears to be a mirror of wikileaks.org, operating with full force. After the injunction was ordered, Wikileaks vowed to defy the judge's injunction order.

This permanent injunction order against Wikileaks (the case docket is here) apparently came about just nineteen days after a lawsuit was filed against Wikileaks. That sounds like too short a time period to give the defendants a fair chance to receive and review the lawsuit (the injunction motion is here), to hire counsel, and to be heard. Hopefully Wikileaks will obtain an attorney to try to overturn this court order that was issued when the defendants were unrepresented.

ADDENDUM: Thanks to Windypundit for correctly pointing out that Wikileaks.org was made inactive not by a sitehost, but by its domain registrar Dynadot. As of March 1, 2008, the site is running again.

Jon Katz.

Who is Maryland's 2007 legal newsmaker?

nospam@example.com (Jon Katz) — Wed, 23 Jan 2008 00:00:00 -0500

Image from Library of Congress's website.

Recently I learned that a legal affairs writer suggested, on the Maryland Daily Record's blog, that I might have been among Maryland's top 2007 legal newsmakers in terms of having "the greatest impact — positive or negative — on Maryland law or the Maryland legal community", for my defense of the First Amendment in Snyder v. Phelps, et al. In this litigation, and as detailed here, I defended the Westboro Baptist Church and its pastor against counts of defamation (count dismissed on summary judgment), intentional infliction of emotional distress and invasion of privacy for church members' very strong messages (quite the understatement) while picketing on a street in Westminster, Maryland, before the funeral proceedings for a soldier killed in Iraq.

I did not know how much of a grain of salt to take with the suggestion that I might be one of Maryland's top 2007 legal newsmakers. On the one hand, the rigor of the list is brought into question by the writer's inclusion of Paul Minnich alongside my name, even though it was two of his co-counsel who were the only lawyers at trial for the plaintiff and at the depositions; perhaps mistaken identity took hold, possibly all the more from the parties having been subjected to a gag order throughout the trial. On the other hand, I am more than happy for the recognition, to the extent that it recognizes my ongoing fight for robust First Amendment rights, so that perhaps others will be influenced to join the same fight. The irony is not lost on me that during my fight for the First Amendment in this case, all lawyers were gagged from speaking with the press about the case, until after the jury returned its verdict. Jon Katz.

ADDENDUM - Pending before the Maryland federal trial court in the Westboro Baptist case are timely-filed post-trial defense motions including a motion to reduce the jury verdict, and a motion to stay the judgment pending appeal.

Controversial (in New Jersey, at least) Super Lawyers adds Jon Katz to its Maryland criminal defense lawyers list.

nospam@example.com (Jon Katz) — Thu, 03 Jan 2008 00:30:00 -0500

This posting follows up on my November 30, 2007, discussion of the highly subjective nature of lawyer rankings on the one hand, but my welcoming recognition in rankings and the media, nevertheless. The Washington, D.C., area, is an incredibly competitive market for providing legal services. Such free publicity helps us avoid spending much on marketing, and to focus our time on serving our clients and our revenue on quality support staff.

In that regard, Super Lawyers recently added me to its Maryland criminal defense attorneys list. Fewer than fifty other Maryland criminal defense lawyers also are on the list, plus seventeen more for drunk driving and white collar criminal defense (which I also handle). Super Lawyers seeks advertising revenue from its ranked lawyers for display ads; our firm has never paid Super Lawyers a dime, so we have no display ad.

Concerning the Maryland listing, Super Lawyers explains: "Maryland Super Lawyers is published in January in a special advertising section in Baltimore magazine, which reaches 194,000 readers, and in Maryland Super Lawyers magazine, which is delivered to more than 25,000 readers, including Maryland lawyers, the lead corporate counsel of Russell 3000 companies and the ABA-approved law school libraries. Super Lawyers names the top 5 percent of Maryland lawyers, as chosen by their peers and through the independent research of Law & Politics. 2007 Maryland Super Lawyers based on the survey of more than 21,000 attorneys across the state."

Super Lawyers' selection process does not sound very rigorous. Scott at Simple Justice heavily pans the Super Lawyers list and the AVVO list.

Flying in the face of the First Amendment, in mid-2006, the Committee on Attorney Advertising appointed by the New Jersey Supreme Court, concluded in its Advertising Opinion 39 that: "[A]dvertisements describing attorneys as 'Super Lawyers,' 'Best Lawyers in America,' or similar comparative titles, violate the prohibition against advertisements that are inherently comparative in nature, RPC [Rule of Professional Conduct] 7.1(a)(3), or that are likely to create an unjustified expectation about results, RPC 7.1(a)(2)."

The latest developments that I could find on this New Jersey matter are from mid-2007, as follows in reverse chronological order. If you have more recent information, please send it my way:

- Law.com provided an update on the then-pending court controversy on June 19, 2007.

- The Federal Trade Commission filed an amicus/friend-of-the-court brief opposing Opinion 39, and providing a useful chart on how the different states treat comparative lawyer advertising. This is particularly noteworthy when considering that the FTC is not always a friend of the First Amendment, including its active role to regulate cigarette advertisements (with Congress banning cigarette television commercials in 1970).

- Curiously, an official May 2007 announcement from the New Jersey State Bar Association mentioned that its new treasurer had been included in the Super Lawyers list.

- In January 2007, the Maryland Daily Record reported that the large Venable law firm decided not to be included in that year's Maryland Super Lawyers list: "The [New Jersey] ethics panel decision is, of course, not binding on lawyers in other states, but Venable decided it 'should be given some consideration,' firm counsel G. Stewart Webb Jr. said. New Jersey's lawyer advertising rules are based on the model rules followed by other states, he pointed out. 'We basically decided prudence dictated we should not participate in the survey while the issues were still out there,' Webb said." Even though a final court decision on New Jersey Advertising Opinion 39 still seems pending, ten months later, on November 29, 2007, Venable issued a press release entitled "14 Venable Lawyers Named to Washingtonian Magazine’s 2007 List of D.C.-Area’s Top Attorneys," which is a list that has included me twice in a row since 2004. It does not appear that touting a Washingtonian top lawyer listing would be any more permissible under Opinion 39 than touting a Super Lawyer or Best Lawyer listing. Is this a matter of changed policy at Venable, or a case of one hand not following or controlling what the other hand is doing?

- Super Lawyers' online position on the matter is here.

Commentary and information from 2006 on New Jersey Advertising Opinion 39 follows, in chronological order:

- Law.com provided extensive coverage of the story on July 25, 2006.

- The Associated Press reported in August 2006 that the New Jersey Supreme Court stayed Advertising Opinion 39 pending litigation over the matter.

- On August 1, 2006, Law.com provided information about the lawyers hired by Super Lawyers and the Best Lawyers directories against Advertising Opinion 39.

- On September 15, 2006, the New York Times covered the story.

- On November 17, 2006, Law.com reported on the New Jersey Attorney General's backing Opinion 39, but also supporting flexibility on lawyer advertising.

So it goes. Jon Katz.

Biometrics, Big Brother, and the Bill of Rights.

nospam@example.com (Jon Katz) — Sun, 23 Dec 2007 00:00:00 -0500

"There are no nations; there are no peoples. There are no Russians. There are no Arabs. There is no third world. There is no west. There is only one holistic system of systems; one vast interwoven, interacting, multivariate multinational dominion of dollars. Petrodollars, electrodollars, reichmarks, rubles, rin, pounds and shekels. It is the international system of currency that determines the totality of life on this planet. That is the natural order of things today." (Ned Beatty's Arthur Jensen to Peter Finch's Norman Beale, in Network.)

No matter how much I like Ned Beatty as an actor, I despise his Arthur Jensen character, depicted above, who claims the world to be nothing but "the international system of currency." In reality, governments exist, and must be fully answerable to people. Governments will only be answerable to people if people insist on it.

For instance, when the United States proceeds with an ambitious biometrics program to identify and track people worldwide through images of their faces, fingerprints and palm patterns, people need to recognize the harm such a program can cause to civil liberties, and they need to speak up, starting with me and with everyone reading this blog entry. Jon Katz.

Adult video store wins grandfathering right (Georgia).

nospam@example.com (Jon Katz) — Mon, 10 Dec 2007 00:00:00 -0500

Bill of Rights. (From the public domain.)

My law practice includes criminal and civil representation of those in the adult entertainment industry. In that context, I learned from a fellow listserv member that a Georgia adult video store in September 2007 won a partial federal court victory by winning the right to be grandfathered under an otherwise much more stringent legal scheme for regulating adult entertainment businesses. Augusta Video v. Augusta-Richmond County, No. 06-16053 (11th Cir. Sept. 6, 2007) (unpublished).

In some respects, this case's appellate holding relies on the grandfathering zoning provisions of Georgia law that do not apply to every state. At the same time, the opinion addresses some issues that repeatedly arise in adult zoning cases nationwide, including the Constitutional requirement for limiting discretion to government officials who issue operating and zoning permits for adult entertainment businesses.

Adult entertainment litigation typically involves First Amendment issues that go to the heart of everyone's First Amendment rights, and not merely to the rights of those in the adult entertainment industry. Jon Katz

Seventh Circuit limits government's authority to ban alcohol in strip clubs.

nospam@example.com (Jon Katz) — Fri, 23 Nov 2007 00:00:00 -0500

Bill of Rights. (From the public domain.)

On November 19, 2007, the United States Court of Appeals for the Seventh Circuit limited the government's authority to ban alcohol in strip clubs. The case is , Eric Joelner Fish, Inc. v. Village of Washington Park, __ F.3d _ (7th Cir. Nov. 19, 2007).

Thanks to my friend Marc Randazza for linking to fellow First Amendment Lawyers Association member Cari Wiggins' discussion of this Eric Joelner Fish case. Jon Katz.

Some statutes are unconstitutional on their face.

nospam@example.com (Jon Katz) — Wed, 07 Nov 2007 00:30:00 -0500

First Amendment and the rest of the Bill of Rights. (From the public domain.)

Some statutes are unconstitutional on their face. When a facial challenge against a statute is made on First Amendment grounds, one good case to cite is Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 536 U.S. 150 (2002).

Watchtower Bible invalidates ordinances that require people and organizations to register with the government before they may solicit door-to-door. In Watchtower , the Supreme Court said that:

"The breadth and unprecedented nature of this regulation does not alone render the ordinance invalid. Also central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime.

"With respect to the former, it seems clear that §107 of the ordinance, which provides for the posting of 'No Solicitation' signs and which is not challenged in this case, coupled with the resident's unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. Schaumburg, 444 U.S. at 639 ('[T]he provision permitting homeowners to bar solicitors from their property by posting [no solicitation] signs ... suggest[s] the availability of less intrusive and more effective measures to protect privacy'). The annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit.

"With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyors or census takers. See n. 1, supra. Or they might register under a false name with impunity because the ordinance contains no provision for verifying an applicant's identity or organizational credentials. Moreover, the Village did not assert an interest in crime prevention below, and there is an absence of any evidence of a special crime problem related to door-to-door solicitation in the record before us."

The Watchtower Bible majority opinion garnered six of nine votes, with Justices Scalia filing a concurring opinion with which Justice Thomas joined, and with the late Chief Justice Rehnquist as the only dissenter. Both due to the language and voting lineup of Watchtower Bible , the Supreme Court should not be expected to deviate from the opinion for a long time. Jon Katz.