Bad facts make bad law: it’s legal cliché that is unfortunately based on reality. We saw as much yesterday, in the case of Ryan Hart v. Electronic Arts. Presented with a situation that just seemed unfair, the Third Circuit Court of Appeals proceeded to make a whole bunch of bad law that puts dollars ahead of speech.
Here are the facts: Electronic Arts sells a videogame called NCAA Football.; Part of the success of the game is based on its realism and detail—including its realistic digital avatars of college players. One of those players was Ryan Hart, who played for Rutgers University from 2002 to 2005. NCAA Football did not use Hart’s name, but the game included an avatar with Hart’s Rutgers team jersey number, biographical information, and statistics. Trouble is, no one asked Hart if he wanted to be part of the game. Nor did anyone pay him for it—they couldn’t, because college players aren’t allowed to accept money for any kind of commercial activity. When Ryan discovered the game, he sued EA based on a lesser-known but pernicious legal doctrine, the right of publicity.
The right of publicity a funny offshoot of privacy law that gives a (human) person the right to limit the public use of her name, likeness and/or identity, particularly for commercial purposes like an advertisement. The original idea was that using someone’s face to sell soap or gum, for example, might be embarrassing for that person and that she should have the right to prevent it. While that might makes some sense in a narrow context, states have expanded the law well beyond its original boundaries. For example, the right was once understood to be limited to name and likeness, but now it can mean just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “Here’s Johnny,”) or even a robot dressed like a celebrity. And in some states, the right can now be invoked by your heirs long after you are dead and, presumably, in no position to be embarrassed by any sordid commercial associations. In other words, it’s become a money-making machine.
But there has traditionally been at least one limit on publicity claims: the First Amendment. In a nutshell, courts are supposed to balance a person’s right to control the use of her identity against others’ right to expressive speech – including videogames. Unfortunately, the Third Circuit just threw that balance way out of whack.
The good: The court recognizes that videogames are protected expression under the First Amendment, and that free speech is important. Whew!
The bad: The court embraced the wrong test for balancing a person’s commercial interests against free speech. Many courts have sensibly borrowed from trademark law and found that, where the invocation of an identity is part of the expressive purpose, the court should not punish it unless it is in essence a disguised advertisement, e.g., the user is just trying to use a person’s name to call attention to an product (like potato chips).
Here, the court went off in an entirely different direction, borrowing instead from copyright law to conclude that only uses that are “transformative” can be protected by the First Amendment. In copyright, whether a work is transformative, i.e., creates something new with a different purpose or character, is an important part of the fair use analysis. However, the court imported a decidely narrow approach to transformativeness: did not consider whether the game as a whole had transformative value, as one would in a copyright case, but focused solely only on how Hart’s identity was used or transformed. The court reasoned that since the “digital Ryan Hart does what the actual Ryan Hart” did, i.e. play college football, there was no transformation and Hart’s economic interests trumped EA’s free speech interests. The court was also selective about what it chose to import from copyright, ignoring several other factors relevant to fair use, such as market harm and whether the underlying work is factual (if so, copyright protection is “thinner”).
As a group of video and filmmakers pointed out, the transformation test is a bad fit for publicity rights. The fair use analysis generally balances competing speech interests—those of the original and secondary authors. But there is no speech interest in cashing in on your fame. In addition, copyright law is designed to encourage creativity through economic incentives. No such additional incentive is needed for celebrities.
It’s entirely understandable that a court might sympathize with Ryan Hart. But if the court’s test was applied broadly, it could have a devastating impact on creative works that relate to real people and life stories. For example, the rationale would apply directly to political biographies or biopics like The Social Network. It could even impact news reporting. The appellate court’s decision sends a message to all creators—if you create a work that happens to evoke someone’s identify, and your use isn’t “transformative” enough, your free speech is less important than that person’s ability to milk his or her fame for everything it’s worth.
Finally, the ugly: The Third Circuit expressly embraced a very silly notion: that your name and fame are your “property.” Nonsense—publicity rights are a limited right to control use of your identify for commercial purposes—nothing more, nothing less. As we’ve seen with copyrights and trademarks, treating limited monopolies in certain expression this way leads people to embrace broad and dangerous new forms of protection. By treating publicity rights as equivalent to a real property right (in your home, for example), the court gave far too much weight to celebrities’ interest in control over their image and far too little weight to free speech.
Now, it also appears that the IRS targeted families who adopted children, requesting additional personal information from over 90% and auditing almost 70% of them.
from National Review:
In 2012, the IRS requested additional information from 90 percent of returns claiming the adoption tax credit and went on to actually audit 69 percent. More details from the Taxpayer Advocate Service:
During the 2012 filing season, 90 percent of returns claiming the refundable adoption credit were subject to additional review to determine if an examination was necessary. The most common reasons were income and a lack of documentation.
■ Sixty-nine percent of all adoption credit claims during the 2012 filing season were selected for audit.
■ Of the completed adoption tax credit audits, over 55 percent ended with no change in the tax owed or refund due in fiscal year 2012. The median refund amount involved in these audits is over $15,000 and the median adjusted gross income (AGI) of the taxpayers involved is about 64,000. The average adoption credit correspondence audit currently takes 126 days, causing a lengthy delay for taxpayers waiting for refunds.
While many returns had missing or incomplete information (more on that in a moment), what was the outcome of this massive audit campaign? Not much:
Despite Congress’ express intent to target the credit to low and middle income families, the IRS created income-based rules that were responsible for over one-third of all additional reviews in FY2012.
■ Of the $668.1 million in adoption credit claims in tax year (TY) 2011 as a result of adoption credit audits, the IRS only disallowed $11 million — or one and one-half percent — in adoption credit claims. However, the IRS has also had to pay out $2.1 million in interest in TY 2011 to taxpayers whose refunds were held past the 45-day period allowed by law.
So Congress implemented a tax credit to facilitate adoption – a process that is so extraordinarily expensive that it is out of reach for many middle-class families — and the IRS responded by implementing an audit campaign that delayed much-needed tax refunds to the very families that needed them the most. Oh, and the return on its investment in this harassment? Slightly more than 1 percent.
So, not only did the IRS harass adopting parents, they got nothing in return for it other than to discourage adoption in the US, which is exactly the opposite of Congress’s intention in passing a adoption tax credit.
But if you want to run a national chain of abortion factories, that’s just fine with the IRS. They’ll even do their level best to make sure nobody pickets outside your facilities.
Today the US Senate voted unanimously in favor of a Lindsey Graham resolution, S.Res.65, which “[s]trongly support(s) the full implementation of United States and international sanctions on Iran and urg[es] the President to continue to strengthen enforcement of sanctions legislation.”
The legislation, as expected from a Lindsey Graham product, is full of misstatements, historical revisionism, and war-drum-beating hyperbole. Particularly revolting is the distortion and lies about Iran’s not being in compliance with IAEA nuclear safeguards requirements and the irony of Graham’s using Iran’s refusal to implement UN resolutions as evidence of its rogue status. Also deceptive is the sleight of hand claiming that Iran pursuing a “nuclear weapons capability” is the real violation, rather than an Iranian failure to uphold its agreed upon obligation to not actually divert fissile material to build a nuclear weapon. It is a unilateral lowering of the bar, which is in fact itself a US violation of the Non-Proliferation Treaty.
Most alarming, however, is that this resolution contains among the clearest legislative language to date promising that should Israel decide to attack Iran, the US would back Israel militarily. It is breathtakingly foolhardy for the US Senate to give such carte blanche permission to any foreign country to attack another nation as it sees fit with the promise of the backing of the United States military. The move will likely embolden Israel to continue recent escalation of military action in the region and will likely propel Israel closer to an attack on Iran.[…]
A meaningless statement is added at the end which likely guaranteed unanimous support:
SEC. 2. RULES OF CONSTRUCTION.
Nothing in this resolution shall be construed as an authorization for the use of force or a declaration of war.
This last part is Congressional weasel language, as the point was not to declare war but rather to define the circumstances under which war would be authorized. Point (8) lays down those circumstances, which is a trap for any Senator who voted for this bill. Imagine if the criteria in point (8) are satisfied by an Israeli attack on Iran claiming self-defense. Any Senator hesitating to authorize the US military to join Israel’s war would be shown his vote on this resolution and told that he is already on record supporting war in these circumstances. That is how it works on the Hill.
I saw this story yesterday, and I could hardly believe it, so I waited for more details to come out. Sadly, the ordeal appears to be true, so here we go.
First up, some background from the Washington Times:
The families of Navy SEALs killed in an August 2011 downing of a helicopter in Afghanistan came forward Thursday to blast the U.S. command and the Obama administration for the mission and to call for an official investigation into what they deem a whitewash.
They also rebuked the White House for its extensive leaking of details of the Osama bin Laden raid in May 2011. Identifying the raiders as the secretive SEAL Team 6 put a target on the heads of the members of the doomed mission in Afghanistan, the parents said.
They also said the CH-47 Chinook helicopter used in the mission had no gunship escort and no cover when it was attempting to land at 2 a.m. that Aug. 6. Taliban on a rooftop shot down the helicopter with a rocket-propelled grenade.
All 38 onboard died in the fiery crash. The casualties included 17 SEALs, making it one of the elite unit’s worst losses in combat. The hastily planned mission was intended to aid 47 Army Rangers in the Tangi Valley, even though the Rangers controlled the battle zone.
The groups that organized the news conference Thursday at the National Press Club said a Muslim cleric chosen by the U.S. command to speak at a memorial service insulted the fallen. According to an English translation of a video of the service, the cleric condemned the dead to hell and mocked “the God of Moses.”
Here’s video from the press conference introduction:
Now, video from the funeral. The Muslim Imam’s recitation and prayer begins about 3:45:
Experts have been pouring over translations of the words over the last 24 hours and no matter how you slice it, this isn’t good.
“Amen I shelter in Allah from the devil who has been cast with stones. In the name of Allah the merciful giver. The companions of the fire are not equal with the companions of heaven. The companions of heaven are the winners. Had we sent this Koran to a mountain, you would have seen the mountain prostrated in fear of Allah. Such examples are what we present to the people; to the people, so that they would think. Blessings are to your God, the God of glory of what they describe. And peace be upon the messengers and thanks be to Allah the lord of both universes.”
That’s right, Republican congressman Steve Stockman is entering every new mailing list signee for a chance to win a brand new AR-15 to help his campaign efforts.
From a very very disappointed UK Daily Mail:
While congressional gun control advocates and gun-rights supporters duke it out with words and parliamentary tactics, Texas Republican Rep. Steve Stockman is showing off his Second Amendment fervor by doing what some consider unthinkable: giving away a Bushmaster AR-15rifle, the same weapon crazed murderer Adam Lanza used in his December massacre at a Connecticut elementary school.
Stockman, a congressional freshman whose campaign boasts on Twitter that he is ‘the most conservative Congressman in Texas,’ is angling for a second term.
His campaign - not his government office, spokesman Donny Ferguson told MailOnline - is offering the unusual prize to entrants who join his online mailing list.
I must say, I’m a little disappointed with the way the Daily Mail chose to portray this brilliant and innovative raffle, choosing to describe the prize as the “same weapon crazed murderer Adam Lanza used in his December massacre at a Connecticut elementary school.” Seriously? How in the world is that anywhere close to relevant? Why wasn’t it the “same weapon used to prevent a gas station owner from being robbed?” Or the “same weapon used to help a 15 year old defend his home during a home invasion?” The answer is obvious and two fold: First of all, the Daily Mail is attempting to instill in the mind of the reader that guns caused the terrible events at Sandy Hook and had they been illegal, there would have no shooting at all. Put simply, guns are bad. Secondly, it is a thinly veiled attempt to impune Steve Stockman (and Republicans and NRA members and Constitutionalists etc.) by associating him with the shooting. It’s really poor journalism.
Sunday’s event was different, however. As police milled ever-closer to the roughly 60 to 75 demonstrators present at the national park, a man with access to the public announcement system began counting down to 4:20, urging the crowd to “light that shit” in direct disobedience to signs police placed around the area insisting that nobody would be allowed to smoke marijuana. “Fuck the law, smoke it anyway!” Kokesh shouted into the microphone. “Bring it in! Hey, everybody show some love. Make it difficult for the police here.”
A total of five people were arrested during the event. Two of them — Kokesh and “Panic Hour” comedy writer N.A. Poe — remain in the Philadelphia jail pending a hearing set for later this week, according to supporters. It’s not clear what the official charges are, but the incident happened on federal land, meaning Kokesh and Poe could face charges of assaulting a federal officer, a crime that carries a sentence of up to 20 years in prison.
In a poor-quality video shot from the scene, Kokesh appears to resist by refusing to drop his microphone, keeping his arms locked in place as police attempt to subdue the former Marine. He then turns his palms outward for the crowd to see he was being nonviolent, even as he continued to pull against police. “I am being assaulted by an officer of the law!” he says. “This is a criminal act!” Then Kokesh finally relents and officers take him away. “No victim, no crime!” activists chant as he vanishes beyond a police barricade.
The White House and the Justice Department are running out of closets to hide their skeletons!
New details about the Justice Department’s bully tactics against reporters and whistleblowers are emerging. Not only did the Obama administration snoop through the private emails of reporters covering the story, the Inspector General for the DOJ said in his latest report that department officials leaked private information of Operation Fast and Furious whistleblowers in order to smear them.
The Department of Justice (DOJ) Inspector General published a new report Monday that confirms former U.S. Attorney for Arizona Dennis Burke leaked a document intended to smear Operation Fast and Furious scandal whistleblower John Dodson.
The DOJ IG said it found “Burke’s conduct in disclosing the Dodson memorandum to be inappropriate for a Department employee and wholly unbefitting a U.S. Attorney.”
“We are referring to OPR our finding that Burke violated Department policy in disclosing the Dodson memorandum to a member of the media for a determination of whether Burke’s conduct violated the Rules of Professional Conduct for the state bars in which Burke is a member,” the IG wrote.
Burke resigned from his post as U.S. Attorney over the incident in August 2011, the first major Department of Justice official to leave his or her post in the Fast and Furious scandal. He said after the fact, in interviews with congressional investigators, that he now views leaking the document as a “mistake.”
In addition to Burke’s involvement in leaking the document, emails the IG uncovered show senior officials at the Department of Justice discussed smearing Dodson.
It just keeps getting worse for Attorney General Eric Holder and President Obama (yes, liberals, the Justice Department is part of the Executive Branch). Pretty soon, they’re going to have to rename the White House the House of 1,000 Scandals.
As we recently reported, the DOJ didn’t just target the AP, it targeted Fox News reported James Rosen. But wait! There’s more! According to a recent Fox News Alert, two more Fox News employees were also targeted…after reporting on the details of the DOJ’s gun-running operation known as “Fast and Furious.”
Here’s the video:
According to the latest report, the private emails of Fox News reporter William La Jeunesse and producer Mike Levine showed up in an IG report regarding the leaks surrounding Fast and Furious. There are only two plausible explanations for how private emails showed up in the IG report:
The emails were shared with the Inspector General by the DOJ. This would mean that the DOJ’s highly controversial method of gathering information via (probably unconstitutional) subpoena would not have stopped with the AP or even James Rosen.
The emails were obtained directly by the Inspector General. I’m still unclear as to the legality here. Presumably, even an federal inspector must get a warrant to subpoena records from a private source although there have been plenty of examples of this being abused.
Either one of these scenarios looks terrible for the administration as it paints them as aggressors looking to punish those who may have exposed its failures.
Furthermore, any objective person already knew that there was more (perhaps devastating) information surrounding Fast and Furious that the administration would have had you believe. If this hadn’t been the case, Obama would never have claimed executive privilege to prevent classified Fast and Furious documents from being subpoenaed by Congress. But to hear the DOJ talk, Fast and Furious was nothing more than a witch hunt by Republicans to expose a program that was started under the Bush administration. According to them, they had been fully compliant by turning over all relevant documents to the oversight committee. If this is the case, however, why target Fox News for reporting on Fast and Furious? Why try to find out its sources? The only rational explanation, of course, is that the administration has simply been lying about Fast and Furious (among other things).
As the story rapidly unfolds it is looking more likely that the DOJ is responsible for subpoenaing and leaking the emails.
The Obama administration reportedly apologized this weekend for leaking crucial Israeli defense secrets to the press earlier this month.
from the Blaze:
Now, the Obama administration has reportedly apologized to Israel for another leak of classified information to the media, one that occurred earlier this month and which Israeli officials are concerned could place Israeli lives at risk.
Israel Radio’s diplomatic correspondent Chico Menashe reported Sunday morning (via the Jerusalem Post):
American officials apologized to their Israeli counterparts for confirming that Israel was behind the airstrikes on the Damascus airport earlier this month, Israel Radio reported on Sunday.
The confirmation reportedly came from the lower ranks at the Pentagon, and the reasons for the leak are being investigated.
Menashe tweeted: “The U.S. has apologized to Israel for leaking details of the attack in Syria. Senior administration officials said to their [Israeli] counterparts that they are examining the issue and that low-level [officials] were responsible for the leak.”
Menashe also wrote, “US officials told that they [will] review the matter. The leak forced Assad to react harshly.”
Gregory Hicks, the former deputy chief of mission in Libya, on Wednesday testified to a House committee about the night of the attacks at the Benghazi facility and how the U.S. reacted. Here is a partial transcript.
And they fucking REWARDED this asshole by giving him his choice in deployment.
In a move that makes clear the direction that our country is increasingly heading towards, the Department of Defense has published an update to a US code that outlines military power during civil unrest.
SUMMARY: This rule implements DoD regulations and legislation concerning restriction on direct participation by DoD personnel. It provides specific policy direction and assigns responsibilities with respect to DoD support provided to Federal, State, and local civilian law enforcement agencies, including responses to civil disturbances.
The legal authority for this rule is 10 U.S.C. 375 (wherein the Secretary of Defense “shall not” permit the military from engaging in domestic affairs unless “otherwise authorized” by law. Effective May 13th, 2013, the State Department of the United States of America announces its policy to prepare for “civil disturbances” in fear of the consequences of these events. What is a civil disturbance?
“Prejudicial to public law and order”
Wow that’s not that vague. So for further clarification the DoD offers this:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in these Executive Orders.
This is law now - this was published on the federal register. I’m still sifting around myself but the changes herein to Title 32 (National Defense) are pretty substantial; the U.S. military has officially been sanction for domestic police work.
[“We] announced that we had concluded that there was probable cause that forgery and fraud had been committed in respect of two documents: 1) the long-form or original birth certificate computer image presented by Mr. Obama, which contained multiple errors and anomalies, many of them serious and: 2) the selective-service document for Mr. Obama, which contained a two-digit year-stamp. This was contrary to specifications issued by federal regulations to the effect that the year of issue should be expressed as four digits on the stamp, and also contrary to any other selective-service registration document that we had been able to examine,” Zullo wrote in his affidavit to the Alabama court.
The result of the evidence, he said, is one conclusion.
“Accordingly, Sheriff Arpaio continues to recommend that the Congress of the United States open an immediate investigation, including the appointment of a select committee, as regards to the authenticity of Mr. Obama’s documentation, whether any crimes have been committed, and to determine Mr. Obama’s eligibility for the office of president of the United States,” he said.