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Hollingsworth v. Perry.
- JUSTICE BREYER: Assume that you could distinguish California. Assume that we accept your argument -- or Mr. Scalia's version of your argument. And that distinguishes California. Now, let's look at California: what precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as the procreation of children, that allowing sterile couples of different sexes to marry would not? I mean, there are lots of people who get married that can't have children. So take a state that does allow adoption and say, there -- what's the justification for saying "no gay marriage"? Certainly not the one you said, is it?
- COOPER: Uh, y-y-y-you --
- BREYER (interjecting): Am I not clear? Look: you said that the problem is marriage, as an institution that furthers procreation --
- COOPER: Yes, Your Honor.
- BREYER: And the reason there was adoption. But that doesn't apply to California. So imagine I wall off California, and I'm looking just there, where you say that doesn't apply. Now, what happens to your argument -- about the institution of marriage as a tool towards procreation? Given the fact that in California too, couples that aren't gay but can't have children get married all the time?
- COOPER: Yes, Your Honor. The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic, traditional procreative purposes. And it will re-focus, re-focus the purpose of marriage a-and the definition of marriage away from the, uh, uh, raising of children and to the emotional needs and desires of adults, of adult couples.
- (Crosstalk.)
- KAGAN: Well, suppose a State said, "Because we think that the focus of marriage really should be on procreation, we're not going to give marriage licenses any more to any couple where both people are over the age of 55." Would that be constitutional?
- COOPER: No, Your Honor. It would not be constitutional.
- KAGAN: Because that's the same State interest, I would think. You know? If you're over the age of 55, you don't help us serve the government's interest in protecting procreation through marriage. So why is that different?
- COOPER: You, you, Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple -- are infertile.
- (Laughter from the gallery.)
- KAGAN (interjecting): No really, because the couple -- I can just assure you if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
- (More laughter.)
Another day, another story having to with Prenda Law (the hits just keep on coming). Found via FightCopyrightTrolls, we discover some research done by lawyer Graham Syfert, who has taken on Prenda/John Steele in a number of cases, including the infamous Florida case that was tossed out for fraud on the court following an Abbott & Costello-worthy transcript involving John Steele, Mark Lutz, and a variety of guest appearances from others on Team Prenda (despite Prenda claiming to both have nothing to do with the case… and with hiring the lawyers for the case, who were all trying to get off the case).
Apparently getting curious about the whole shell within a shell within a shell setup of Livewire/AF Holdings/Ingenuity 13, Syfert began wondering about just what copyrighted works were actually at the center of those lawsuits. As you may recall, Prenda, used to represent actual porn studios, but at some point shifted to a variety of shell corporations, which it’s now accused of running itself (a big no no). But then what copyright was it using? Well, Syfert looked at the details of the lawsuits, and then looked around, and basically found that the “movies” in question never appear to be distributed in any way, except via BitTorrent, all seeded by the same user. Hmmmm….
So, four out of the Five Fan Favorites that Ingenuity 13 wishes to protect are shared by sharkmp4. (Other hash values referenced in complaints do not result in any valid torrent). One wonders if the “Five Fan Favorites” copy registered with the copyright office includes all of these sharkmp4 videos. Would that be proof that Prenda Law is seeding its own works and then suing? The honeypot. The venus fly trap. The pitcher plant? Or is sharkmp4 just another pirate?
Syfert digs a bit deeper and digs up a bit more info on this “sharkmp4” character:
Now of course, this all begs the question: Who is sharkmp4? Well, the IP address associated with this user can be determined by a technically skilled individual who could load up all the torrents, join the torrent swarms and then find the common seed. However, there is no reason to do this, because it will come back with a Mullvad VPN on an IP in Germany owned by Leaseweb and get you nowhere.
Well, almost nowhere. Because back at FightCopyrightTrolls, they add a little piece to the puzzle.
I want to point out to one coincidence that Graham did not mention (probably he did not know): a person who we strongly believe was John Steele had been commenting on this blog via Mullvad VPN (links at the bottom). Although it does not prove anything per se — a single exit IP address is shared by many VPN users — the fact that Mullvad VPN was allegedly used to seed certain pornographic movies is interesting.
Obviously, not conclusive proof of anything, but enough to leave you scratching your head and wondering. It’s not like Mullvad is one of the more popular VPNs either. And, of course if John Steele, or a representative of the copyright holder themselves is uploading and distributing the file in the first place (and that’s the only place where it’s released), there’s a reasonable argument to be made that any downloads are not infringing, since it’s clearly an authorized copy. At this point, Steele and Team Prenda are likely in enough hot water, but it seems like a court that wants to dig even deeper into the whole thing might uncover some more… interesting things during discovery.
I had kind of thought that after we posted our response to Teri Buhl, who got upset about our original article about her whacko claims that her publicly posted tweets could not be quoted, that the story would hopefully fade away. However, this morning, Jim Romenesko, who allowed Buhl to “respond” to us via his blog, has published another story noting that the thanks he received from Buhl is that she is threatening to sue him. Lovely. Oh yeah, and in her communication with Romenesko, she apparently told him she’s planning to sue us at Techdirt, too (which, by the way, is the first we’ve heard of this):
Today, Buhl is threatening to sue me for using the photo from her Twitter page. She says she owns the image and never gave me or others permission to publish it. She adds that she’s going to file a small claims suit against Mark Bennett and Techdirt for keeping the photo on their sites after being told to take it down.
“I don’t want add you the same list [sic],” she writes. “I’m asking Poynter and Knight to do the same thing today before I file.”
My response to her: “Really, Teri?”
She replied:
yes really Jim – I am going to push it. It’s a matter a principle I am sick of other publications lifting other jurnos ideas, photos, words etc… and printing them on their publications with out permission or proper credit with links etcc. I think it’s an issue that should have been challenged a long time ago. I took the photo I own it etc…
Of course, in our last post on the subject, we suggested that Buhl acquaint herself with fair use rules. It would appear that she has chosen not to do that. We did not “lift” her “ideas, photos, words.” We reported on her actions and statements.
It also appears that she has not familiarized herself with the nature of copyright law, and the fact that small claims courts have no jurisdiction over copyright issues. Not that I should be doing the legal work the lawyer she claims to have contacted failed to do, but 28 USC 1338notes:
The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks. No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, orcopyrights.
This is kind of basic stuff…
Women suing an employer for sexual harassment will have to provide a court official with their social media and e-mail passwords. The novel procedure was announced by a Colorado federal magistrate judge earlier this month. Wendy Cabrera is the lead plaintiff in a lawsuit against the Honeybaked Ham Company. She and about 20 other women charge that company manager James Jackman “frequently” groped women under his supervision and made sexual requests of them. The woman say the corporate office failed to take action to stop his behavior after it was reported.
Honeybaked Ham argues it needs copies of certain Facebook postings, e-mails, text messages, and other private communications of the plaintiffs in order to defend itself. For example, the company says Cabrera discussed “her financial expectations in this lawsuit” on her Facebook page, which the company says could be useful to establish the plaintiff’s motive. The firm also said she posted a picture of Cabrera wearing “a shirt with the word ‘CUNT’ in large letters written across the front.” The defense argues this picture is relevant to the case because Cabrera has charged the word was “used pejoratively against her,” and caused her offense.
That’s not even all of it. Honeybaked Ham says it will need “other writings addressing her positive outlook on how her life was post-termination, her self-described sexual aggressiveness, statements about actions she engaged in as a supervisor with Defendant, sexually amorous communications with other class members, her post-termination employment and income opportunities and financial condition.” And it wants similar information from the other women participating as plaintiffs in the lawsuit.
In a November 7 order recently spotted by Venkat Balasubramani, Magistrate Judge Michael E. Hegarty acknowledged much of the information sought by Honeybaked Ham is potentially relevant to the lawsuit. He noted “the whole area of social media presents thorny and novel issues with which courts are only now coming to grips.” However, he said “the fact that [information] exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.”
So Judge Hegarty announced he will appoint a “special master” to oversee the process of producing this evidence. He then ordered all the women who signed onto the lawsuit to give the special master access to their cell phones, “necessary information to access any social media websites used,” and “necessary information to access any e-mail account or Web blog or similar/related electronically accessed Internet or remote location used for communication with others or posting communications or pictures” since 2009.
Once the information has been produced, the judge will decide which information is relevant to the lawsuit, give the plaintiffs a chance to object to the disclosures, and then turn over appropriate information to the defendants. The costs of this process will be split between the plaintiffs and defendant.
Balasubramani, an attorney who contributes to Eric Goldman’s Technology and Marketing Law Blog, is not a fan of this arrangement. “Requiring disclosure of passwords should be completely off the list” of techniques courts use during the discovery process, he argued. “Apart from the fact that this results in disclosure of or access to the entire contents of the account (including information that is not relevant or information that is covered by the Stored Communications Act) it may result in unwitting changes to the account.” Instead, Balasubramani recommends that parties be compelled to export data from sites like Facebook and provide the exported data to the court.
A judge from the Western District of Washington Seattle Court approved a class action suit against Papa John’s on Friday. The plaintiffs, three people from Washington State, are standing in for thousands of customers claiming that Papa John’s and a marketing firm called OnTime4U worked together to send spam texts to customers who hadn’t given their consent to be texted with marketing information, violating the US Telephone Consumer Protection Act of 1991.
The Seattle law firm Heyrich Kalish McGuigan is representing the plaintiffs. It claims Papa John’s customers received 500,000 unwanted text messages nationally, and the firm also claims this could cost Papa John’s $500 per text message (a bill that would tally up to $250 million). While such a large payout is highly unlikely, a class-action payout may be in the future for the pizza chain.
The order granting a motion for class action says Papa John’s LLC worked with OnTime4U and encouraged their individual franchisees to cooperate with the company. OnTime4U then solicited the franchisees for lists of their customers’ phone numbers (which most pizza-delivery stores keep for speedy phone-orders). OnTime4U then removed the land-line numbers, and texted promotional messages to the rest.
“OnTime4U apparently told Papa John‘s franchisees that it was legal to send texts without express customer consent because there was an existing business relationship between the customers and the Papa John‘s restaurants,” the order read. The plaintiffs say that a single Seattle franchisee provided OnTime4U with 68,000 phone numbers, and sent numerous texts to some numbers.
The plaintiffs are arguing that that Papa John’s, OnTime4U, and the individual Papa John’s franchisees (specifically one in Rain City, Washington) are all liable for violating the Telephone Consumer Protection Act. Papa John’s says it had no part in sending texts to its customers, but the judge overseeing the case says that is at least partially contradicted by documents.
“Whether Papa John‘s had any involvement in franchisee-level decisions to contract with OnTime4U, and if so, the extent of that involvement is a central and disputed issue in the case,” the judge’s order reads. “Contrary to Papa John‘s position that it played no role in those decisions, Papa John‘s has produced documents that indicate that it did play some role in the franchisee-level decisions to hire OnTime4U.”
We had already noted what appeared to be serious problems with the way the jury decided the verdict in the Apple/Samsung case — including ignoring prior art, awarding damages on patents not infringed, and an admission of choosing punitive damages, despite instructions that clearly bar such an action. And it seems to only be getting worse. Groklaw points out that Velvin Hogan, the controversial jury foreman, went onto Bloomberg TV to defend himself, but only served tomake things worse, by more or less admitting to not understanding how prior art works.
As was discussed in the previous post, the jury initially got hung up on the question of prior art on the first patent (7,469,381 — better known as the “bounceback patent” — covering how when you scroll and hit the edge of a “page” the screen “bounces back.”) However, in this interview, Hogan explains the “aha!” moment he had that led him to suggest to the jury that the prior art doesn’t apply:
The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.
Basically, he’s admitting that he doesn’t understand how prior art works. The fact that the software wouldn’t run on the same processor is meaningless. In fact, as Groklaw notes, the jury instructions (which Hogan again insists the jury read) note that to find prior art, you just have to show that the invention has already been done or even explained somewhere else. That’s got nothing to do with whether or not it can run on the same processor.
Once again, we learn why it’s silly to have juries determining patent cases.
[video at link]
argh…
The Federal Trade Commission has accepted a final settlement with Facebook, initially proposed last year, which requires that all future changes to privacy settings on the social network be made opt-in. Further, the company must undergo biennial privacy audits for the next 20 years from an independent third party.
Since 2009, Facebook has been under investigation by federal authorities and American senators in the wake of a series of incidents involving the sudden change of users’ privacy settings, most notablyFacebook Beacon, which shut down that same year.
On Friday, FTC commissioners voted 3-1-1 (including one abstention) and said that they would be keeping a close eye on the company.
“Notably, Facebook will be subject to civil penalties of up to $16,000 for each violation of the order,” the commission wrote in a statement. “We intend to monitor closely Facebook’s compliance with the order and will not hesitate to seek civil penalties for any violations.”
In November 2011, in response to the proposed settlement, Facebook’s founder, Mark Zuckerberg wrote that while his company had made mistakes with respect to privacy, that it was resolved to improve…
opt-in FTW…
(via New study, same authors: patent trolls cost economy $29 billion yearly | Ars Technica)
…The $29 billion number comes from measuring the more straightforward costs associated with fighting off patent troll suits: those include legal fees going to lawyers, and the licensing fees paid in tribute to make the trolls go away (which nearly always get paid). The findings come from a relatively small sample of 83 companies, both small and large.
The study paints one of the clearest pictures yet of the impact patent trolls—more politely called non-practicing entities or “NPEs”—are having on the economy.
Even if the numbers are inflated, there’s little doubt those costs are significant. The total spending of US businesses on research and development is $247 billion per year. So even if one only considers the direct costs of patent trolls, they may be sucking up more than 10 percent of the money that could be spent on R&D.
Bessen and Meurer are the authors of Patent Failure, a 2008 book criticizing the patent system that has become a bête noire in some quarters of the patent bar…
(via Dear Judge Koh: Competition Is No Reason To Ban A Phone | Techdirt)
We already had mentioned that Apple had succeeded in getting a rare pre-trial injunction against Samsung’s tablets, but now it’s also succeeded in blocking the Galaxy Nexus phone as well, though the judge’s reasoning is a bit bizarre:
“Apple has made a clear showing that, in the absence of a preliminary injunction, it is likely to lose substantial market share in the smartphone market and to lose substantial downstream sales of future smartphone purchases and tag-along products,” Judge Koh said in Friday’s ruling.
First of all, this seems to be yet another admission by Apple that it just can’t compete in the marketplace against Samsung. Such a ruling seems to scream out to potential buyers: hey, check out the devices that even Apple admits you’d want over its own. But, more importantly, “losing substantial market share” is what competition is all about. If someone comes out with a better product, then the other company should lose substantial market share. That doesn’t deserve an injunction. That harms the market, who clearly — even by Apple’s own admission, apparently — wants the other product more.
The fact that two phones will compete is no reason to ban a phone. Let them compete. Let the market decide.
Even more bizarre is why an injunction should be issued at all. Following the MercExchange decision, courts are only supposed to issue injunctions in exceptional cases. If it’s an issue that can be dealt with by requiring a royalty, then there’s no reason to issue an injunction.
Samsung, of course, is appealing this and asking that the injunction be put on hold until that appeal is heard. In the meantime, some are pointing out that, for all of Apple’s insistence that Samsung copied the designs of its phone and tablet from Apple, you could easily make the argument that Apple got some inspiration from Samsung as well:
And really, that’s the point. Innovation and advancement involve all sorts of copying, but also improvements. It goes back and forth. Attacking one party for copying another misses the point, limits competition and harms consumers. It’s too bad the US patent system and the courts now want to aid that process.
