Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Blurred Lines Verdict Shows Importance of Discovery

    Jul 02, 2015
    I found this New York Times interview of Robin Thicke kind of interesting.  He talks a little about the verdict in the “Blurred Lines” copyright infringement case. For those of you who don’t know, Thicke lost an infringement suit to the estate of Marvin Gaye. Gaye’s heirs claimed “Blurred Lines” copied Gaye’s hit “Got to Give It Up.”  The jury returned a verdict of $7.4 million.  The case is on appeal.  

    A number of commenters, including me have expressed concern with the ruling.  “Blurred Lines” is in no way a line for line copy of “Got to Give it Up.”    But there are some definite similarities in the songs’ style.  

    And that’s the troubling part about the verdict.  If stylistic similarity is all that’s needed to establish copyright infringement, there may be a lot of litigation headed our way.  I say that for a number of reasons.  First, there are only so many chords.  So, songs are bound to overlap.  Want an example?  Check out the chord progressions in “This Magic Moment”  and “Run Around Sue.”   They’re identical.  But if you’re old enough to remember those songs, do you get them confused?  Think one copied the other?   

    Second, musical artists influence one another.  How many pop bands emulated the Beatles?  How many folks singers drew inspiration from Bob Dylan?  But is that enough to establish a copyright violation?  Should it? How would that scenario limit the creative process?  The “Blurred Lines” decision is potentially terrible precedent.    

    And based on Thicke’s interview in the Times, it’s possible the verdict resulted from Thicke’s deposition testimony in the litigation.  Thicke’s deposition testimony about how he came to write the song differed from accounts he’d given in interviews when he was promoting “Blurred Lines.”  He apparently tried to explain the discrepancy away by saying he was drunk when he gave the interviews.  He may have been, but that type of testimony doesn’t do much for the credibility of the witness.  And as is the case in almost all cases, the credibility of the key witness is, well, key.  This case depended in a large part on the jury believing Thicke when he said he didn’t copy Gaye’s song.  And if the jury didn’t think Thicke was credible, that testimony was bound to be a tough sell.  

    In the Times interview, Thicke admitted he was “careless” in his deposition.  And that is a Cardinal Sin.  There is an old cliché that says you can’t win a case in a deposition, but you can lose one.  So no matter the case, it’s important to be prepared when giving deposition testimony.  Thicke’s carelessness is an illustration. It may not only have cost him the case, it may well impact thousands of artists who come after him.  Carelessness is really unacceptable.      
    Go comment!
  • The Bully Pulpit and The First Amendment

    Jun 30, 2015
    A North Carolina “cyber bullying” statute prohibits the use of a computer or computer network to "[p]ost or encourage others to post on the Internet private, personal or sexual information pertaining to a minor" with "the intent to intimidate or torment a minor."  

    A North Carolina high school student named Robert Bishop was convicted under that statute for posting several online comments about a classmate named Dillion Prince.  It appears that a text message Prince had sent another classmate had found its way to Facebook.  It’s not clear what the text message said, but it triggered over 30 comments.   

    Bishop added several comments, including:  1) "This is excessively homoerotic in nature. Exquisite specimen;" (2) "Anyone who would be so defensive over Dillion can't be too intelligent;" (3) "And you are equally pathetic for taking the internet so seriously;" and, (4) "There isn't a fight. We're slamming someone on the open forum that is the internet."  

    On another occasion, and in response to another text message from Dillion posted on Facebook, more comments appeared.  One commenter said “Can we just kick his ass already?”  Bishop responded:  "I never got to slap him down before Christmas Break," followed by a "sad face" emotion icon. Another student requested for someone to "tag" Dillion, in order for him to be notified of these posts. Defendant replied, "I'll add him."   

    On another occasion, Bishop commented about Dillion as follows:  "I heard that his anus was permanently stressed from having awkwardly shaped penises in it" and stated that Dillion's genitals were "probably a triangle."  

    Okay, so the evidence establishes that Robert Bishop is a punk.  Slam dunk, open and shut.  But to the great relief of an overwhelmingly large percentage of teenage boys, being a punk is not a crime.  But did Bishop really violate the statute? And even if he technically did, what about the First Amendment?  

    Let’s address question 1.  There’s no question that Bishop used a computer and that Prince is a minor.  And let’s put aside Bishop’s motivation for a minute.  There were three occasions of alleged cyber bullying here.  And as to the first two, it’s tough to see where any of Bishop’s comments are particularly “private, personal or sexual.”  The third comment is crude, but it’s so over the top, it seems like it would be considered “hyperbolic”  -- that is, not to be taken seriously.   

    And what about Bishop’s motivation?  Again, he’s a punk, but did any of his comments pose a direct threat to Prince?  Was Bishop trying to induce Prince to do or not do something? That’s usually a feature of “intimidation.”  And “torment” is a strong word, but also vague.  Is the fact that Prince feels tormented sufficient to establish Bishop’s motive?  Is that all it takes?  Does a conviction ride on how thin skinned the target happens to be?   

    In upholding the North Carolina statute,  the appellate court concluded that the statute did not punish Bishop based on the content of his speech, but rather punished his conduct.  It compared the cyber bullying statute to the North Carolina statute prohibiting telephone harassment. It cited to a previous decision upholding that statute, because that statute was directed at "using telephones to annoy, offend, terrify or harass others and not directed at prohibiting the communication of thoughts or ideas."   

    I’m not so sure about that comparison.  A telephone is by its nature intrusive – it rings and forces action, typically answering.  So if a person called 100 times a day just to tell you you’re great, you might still be annoyed.  The content of the message really doesn’t matter.  It’s like graffiti.  No matter how much I support The Cincinnati Reds, I wouldn’t want someone to spray paint “Go Reds” on my car.   

    But cyber bullying is not intrusive in the same manner as telephone harassment.  And the telephone harassment statute did not address the content of the call.  In my example above the person who called me 100 times a day just to tell me I’m great could be charged with telephone harassment.  But if the person posted how great I was 100 times on their Facebook page, there would be no liability under the cyber bullying statute, simply because that message isn’t “personal, private or sexual.”   

    The point is, the content of the message matters.  And if that’s the case, the North Carolina cyber bullying statute violates the First Amendment.  Even though Robert Bishop is still a punk.    
    Go comment!
  • The Right Not To Be Known

    Jun 29, 2015
    While the First Amendment protects the right of a speaker to proclaim a message in public, it also protects the right to speak anonymously.  As well it should.  There are times when a message may only be uttered if the speaker can do so anonymously.   Let’s not forget that the pamphlet Common Sense  -- so influential to the cause of American independence – was originally published anonymously.  

    And while it is not subject to the First Amendment, the International Corporation for Assigned Names and Numbers (“ICANN”) would be wise to consider the thinking behind the First Amendment and reconsider its plans to limit the ability of commercial Web site owners to register domain names anonymously.   

    But first, some background.   ICANN is the nonprofit agency responsible for maintaining the unique identifiers related to namespaces on the Internet.  Anyone wishing to create a domain name is a “registrant.”  ICANN manages this process through multiple registrars and registries, the entities who register the domain names for registrants.  The information collected in the process is maintained in the WHOIS data base.  

    Registrants who preferred not to share contact information have been able to pay a small fee and use proxies to register for them.  And there could be lots of reasons for this. Certainly anyone establishing a Web site geared around controversial or unpopular topics might prefer anonymity.  Others may fear retaliation for the site’s content.  Had the Internet existed in the 18th century, Thomas Paine – the author of Common Sense – likely would have taken advantage of it.   

    But the aforementioned proposal would essentially eliminate this option.  Which is curious.  Because there seems to be no compelling reason for the proposal.  There are, no doubt, occasions where a party needs to know the registrant’s identity.   This could be for a criminal or civil proceeding.  And that’s what a subpoena is for.   

    So it’s not like the information is out of reach. It’s more like it’s inconvenient to retrieve.  And so the proposal seems designed to make it easier to retrieve the information.  It’s significant that the Coalition for Online Accountability ( a group made up of 8 U.S. entertainment companies) is a leading supporter of the proposal.  Those companies are engaged in a constant battle against online piracy.  It’s understandable that they’d like to make the process of rooting out pirates a little easier.  

    But given the free speech stakes involved, it’s reasonable to expect a better reason for this change than convenience.  
    Go comment!
  • Well This is Unsettling

    Jun 25, 2015
    Many folks will be heading off for summer vacation in the coming weeks.  And many will take photos and share their pictures and adventures on social media sites.  And while that’s a lot of fun, it carries some risk with it.  Here’s a post I found today that lists the four ways burglars use social media to target victims.   From geolocation to hidden data, there are tools we may be unwittingly handing the bad guys.  You may want to take a look before you head out.     

    Turns out overly enthusiastic dads may not be the biggest concern on this year’s vacation.
    Go comment!
  • Is "Ballers" Throwing the NFL a Curve?

    Jun 23, 2015
    I have not yet watched the new HBO series “Ballers.”    It stars Dwayne “The Rock” Johnson as a former Miami Dolphin turned financial planner.  It’s getting good buzz.  

    But I am ostensibly a legal blogger, not a television critic.  And so my interest in the show has more to do with HBO’s decision to use actual NFL logos without the NFL’s permission.  I’m not sure if this is literally unprecedented, but it is at least unusual.   Think about some famous football movies like  Any Given Sunday or The Replacements.  What do they have in common?  Fake teams.  No actual NFL logos.   

    That’s not a coincidence.  The NFL traditionally has policed its trademark rights with an aggressiveness that would make Gino Atkins jealous.   And I suspect if Oliver Stone had asked for the NFL’s permission to use its logos in Any Given Sunday, the NFL likely would have required him to tone it down (which probably would have been good advice – is there a more pretentious filmmaker than Stone?).  And I suspect Stone didn’t want the hassle.  Same with The Replacements I suspect.  And so the choice seemed to be, get the NFL’s blessing or create fictional teams.  

    HBO’s decision suggests there’s a third option.  But two questions arise immediately in my view – will HBO get sued and who will win?  This piece from Forbes suggests HBO would come out on top.   Given that Ballers is an expressive work and uses the NFL logos as background, there’s a good chance the use wouldn’t be deemed “in commerce” (a requirement for a trademark infringement suit), and in any event, the First Amendment may preclude the suit.   

    And so the third question may be, will the NFL file suit?  Up till now, the NFL has pretty much gotten its way merely by threatening suit.  If it files and loses, that threat may become pretty empty.  It’s the same reason play action passes don’t work so well on third and long.  No one takes the run seriously in that situation.   

    And a loss in a suit against Ballers might put at risk the NFL’s “Super Bowl” trademark.  Remember how advertisers who aren’t official NFL sponsors tie themselves in knots not to say “Super Bowl” in any advertisements leading up to the game?  That’s because the NFL owns the Super Bowl trademark. And it holds it hostage.  If an advertiser wants to use the term in an ad, it has to pay the NFL for the right.  But not everyone is convinced that the NFL’s position is correct.  And if a loss in a suit against HBO emboldens some advertiser to take that issue on, the consequences for the NFL could be the equivalent of a sack.   

    So it’s possible the league will punt on this one.  Either that or Roger Goodell is just afraid of The Rock.   Which I totally get.  
    Go comment!
  • Outcome Based Jurisprudence

    Jun 19, 2015
    There are two ways for a court to decide a case.  It can hear the facts, research the law and arrive at a conclusion based on that process.  Using this method, the court has no idea how the case will turn out until the process plays itself out.  In my naïve world, I like to think this is how it is supposed to work.  

    The other method is for the court to determine in advance what it wants the result to be and then find a way to get there.  I call this “outcome based” jurisprudence.  And I hate it.  It is a type of “ends justifies the means” cynical approach to the law.  

    Unfortunately, a five member majority of the United States Supreme Court adopted the outcome based approach in the recently decided case of Walker v. Texas Division, Sons of Confederate Veterans.  I have blogged about this case previously.     

    The case involved the State of Texas and its program that allowed motorists to submit designs for vanity license plates.  For a fee, any motorist could get the design printed on state issued license plates.  Well, almost any motorist.  When The Sons of Confederate Veterans submitted a design featuring the Confederate battle flag – the infamous stars and bars.  The Texas Department of Motor Vehicles Board rejected the design.  The SCV challenged the denial, contending the decision violated their First Amendment right of free expression.  

    Now I get that for many people, the Confederate battle flag is offensive.  But there is not a First Amendment exception for offensive speech.  It’s pretty offensive to burn the American flag.  But the Supreme Court in 1989 found such conduct is protected speech.  We don’t have “hate speech” laws in the United States, as do many European countries precisely because the First Amendment prohibits such laws.  The fact that others can utter speech that offends me is a price I willingly pay to live here.  

    But apparently, for the five member majority, the reference to the Confederate flag was just a little too offensive.  And it apparently decided to uphold the Texas action.  But how?  Texas restricted the speech of its citizens based on the content of that speech.  That is viewpoint discrimination in its purest form.  What is a court majority who’s already made up its mind to do?  

    In this case, the majority took an unrelated legal principle and jammed the facts of the case into it.  There is a legal principle that holds that the government is not subject to the First Amendment when it speaks.   And this makes a certain amount of sense.  A federal, state or local government is free to erect a monument to a historical figure and cannot be required, on First Amendment grounds, to erect a monument to the dissenting view.  So, if the city of Selma, Alabama wishes to commemorate Martin Luther King’s march there, it need not erect a KKK statute across the street.   

    So in order to get to its preordained decision, the Supreme Court concluded that the private messages displayed on the license plates were in fact the state of Texas speaking.  And given that fairly enormous logical leap, it concluded that Texas could reject the SCV design.   

    There are of course, some flaws with this reasoning.  First, the messages are not supplied by the state of Texas.  They are supplied by private parties, who pay a fee for their ability to display the message.  It is not like any government entity selects or designs the message.  They are designed and supplied by private parties.  

    And the notion that every privately supplied message is “government speech” the minute it gets printed on the license plate is ludicrous.  As the dissenting opinion points out, under this theory , a plate bearing the slogan “I’d rather be golfing” would apparently convey official Texas policy.  Worse yet, a plate displaying a Notre Dame logo would indicate the State of Texas had finally come to its senses decided to support the Fighting Irish as a matter of policy.   

    The specialty plates are not government speech.  They are small billboards upon which the state allows drivers to place messages for a fee.  And viewed in this fashion, the majority opinion makes even less sense.  As the dissent points out, imagine Texas erected full size digital billboards up and down the Texas highway system.  And imagine Texas used the billboards to display government messages, but also allowed private entities to pay to display its messages.  Would anyone think it okay for the government to reject messages because it didn’t agree with the message?  Or because it deemed the message “offensive?”  And isn’t that exactly what’s happening with the license plate program?  

    I’m not calling for a total free for all here.  Texas may certainly reject unprotected speech – e.g. obscene speech or speech that incites readers to imminent lawlessness.  But merely offensive speech should be off limits.  And that is the result the majority should have come to.  No matter how much that offended them.   
    Go comment!
  • The Cardinal Way

    Jun 16, 2015
    Readers of my blog know that for years I have spoken the truth about the evil that is the St. Louis Cardinals.  I have suggested on more than one occasion that Tony LaRussa is the spawn of Satan and the current manager Mike Metheny is a self-important hypocrite. While all of this is true, some readers have chalked my feelings up to sour grapes, given the Cardinals dominance of the Reds. Fair enough.

    But now, we learn that the Cardinals don’t just hack at strikes. They apparently hack into at least one other team’s computers. The FBI is investigating allegations that some members of the Cardinal organization accessed the computers of former Cardinal executive Jeff Luhnow, after he took a job with the Astros. So who’s the delusional paranoid one now? Apology accepted.

    As you can imagine, I hope the FBI nails everyone involved in this crime. And I hope MLB comes down on the Cardinals like a ton of bricks. Like, take draft picks away.  Make Metheny donate all of the proceeds from his stupid book – The Metheny Manifesto – to the Electronic Frontier Foundation. Make Yadier Molina remove that ugly neck tattoo. I’m just getting started.

    But besides reveling in the Cardinal misfortune, there is a lesson to be learned here.  According to the New York Times article, the Cardinals had a list of passwords maintained by Luhnow, and used that list to access the Astro system. Stealing signs is generally considered a bush league move. Stealing passwords is more likely a felony.

    But the lesson here is this. Be careful with your passwords. It’s probably best not to write them down. And if you take a new job, think about using completely new passwords. Especially if your former employer is an evil empire.
    Go comment!
  • A Really, Really Terible Idea

    Jun 11, 2015
    There are bad ideas – The New England Patriots deflating game balls in the AFC Championship Game.  There are catastrophically bad ideas – the reality TV series “Hits and Mrs.” featuring Pete Rose and his young enough to be his granddaughter wife. And then there is the current idea floated by Ohio State Senator Joe Uecker  to eliminate all public access to concealed carry permits in Ohio.  This is a truly terrible idea.  Let me explain.  

    First, Senator Uecker has introduced the proposal as part of the senate’s budget plan.  So, instead of introducing the proposal as its own stand-alone bill, Senator Uecker has it buried in a mound of paper that makes it tough to find.  Not exactly transparent to start with.  But that’s a favorite trick of legislators on both sides of the aisle, so no need to single out that transgression.   

    Let’s talk instead about the mound of misinformation supporting the proposal.  Senator Uecker purports to be looking out for the interests of gun owners who he thinks will become burglary victims if the public learns who is packing and who’s not.  This is false at worst and misleading at best.  Ohio citizens who wish to keep a gun in their home do not need a concealed carry permit. That’s provided for in Ohio Revised Code 2913.12(C)(1)(d).  So homeowners who merely want a gun at their bedside don’t have to apply for a concealed carry permit, and nefarious bad guys who take the time to read newspaper accounts of the names won’t know who has a gun at their home and who doesn’t.  

    And misleading information part two is the notion that the public has access to the permit information in the first place.  Not true.  As part of a compromise with the gun lobby when the concealed carry permit law was passed, the Ohio legislature limited access to the permits to “journalists.”  That term is defined in the Revised Code.  So unless the bad guy moonlights as a reporter, he is likely not going to be able to see the permits.  To suggest otherwise is a distortion.  

    And it is equally misleading to suggest that the media is able to publish a wholesale copy of the entire list of concealed carry permit holders.  Inevitably, Senator Uecker and his supporters point to the dumb decision by a New York newspaper to publish a map of concealed carry permit holders and their addresses after the Sandy Hook massacre in 2012.  But at the time, New York did not have the limitations that are in effect in Ohio.   

    In Ohio, the  law that permits a journalist to examine the permits also provides that the journalist may not “copy” the  information on the permit.  The Ohio Attorney General has issued an opinion saying that this provision not only means the journalist can’t make a photocopy, the journalist can’t even make a note.  This provision effectively makes wholesale copying and publication impossible.  Senator Uecker’s bill is a solution in search of a problem.     

    One of Senator Uecker’s cheerleaders is Jim Irvine, president of the Buckeye Firearm Association.  He is quoted as saying “There’s no public good that comes out of the media accessing that list.  So it should be closed.”  With all due respect, Mr. Irvine should stop shooting off his mouth.  Does he seriously think there is no public good that comes from media access to this information?  County sheriffs issue the permits.  I hate to burst Mr. Irvine’s bubble, but it’s at least remotely possible that a sheriff could be negligent or corrupt in discharging his duties here.  That, um, happens sometimes. Media access allows the public a window, albeit a small one, to check on the process and see if everything is on the up and up.  It’s the reason we have laws requiring public access to government records in the first place.  

    I’m sure in response, Mr. Irvine will train his sights (I am using gun puns on purpose) on the Second Amendment, but given that the Second Amendment talks about a “well regulated militia” it’s hard to see how the Constitution exempts this particular public record from the coverage of the Public Records Act.   

    Senator Uecker’s is a truly terrible idea.  It has “ready fire aim” written all over it.
    Go comment!
  • Video Killed the Records Defense

    Jun 03, 2015
    Mark Lagerkvist brought a case in New Jersey seeking an order compelling the office of Governor Chris Christie to produce records related to Christie’s charges of nearly $800,000 for the travel costs of his state police security detail.  According to the suit, those expenses are 18 times higher than when Governor Christie took office.   

    The charges were apparently charged to American Express cards.  Accordingly, Lagerkvist sought the receipts as well as a directory of 2500 reporters to whom the Governor had sent videos and media alerts.  The Governor objected to releasing the records, arguing that their release could potentially reveal the names of security unit members, the number of those members guarding the Governor and where they might be stationed.   

    The problem for the Governor, however was this video.  On it, and in response to a question from a cub scout, Christie gives detail about the guards with him and about how the detail works in general.  Darn those cute kids.   
    Go comment!
  • But What if They Don't?

    Jun 01, 2015
    A Pennsylvania plaintiff recently obtained a permanent injunction in a libel suit that may be well intentioned, but difficult to enforce.  The plaintiff is Richard Gorman.  Gorman purchased the “” domain name and received a fair amount of publicity. Not all of it was good.  

    He became the subject of several false Internet postings accusing him of sexual misconduct.  He was also subject to an extortion attempt.  

    Apparently, one of the perpetrators of the attack was Karly Steinborn.  Gorman sued Steinborn in a Pennsylvania federal court, and obtained a default judgment against Steinborn.  The court awarded Gorman damages totaling $3,047,608.  It also issued an injunction requiring Steinborn to “cease and desist” defaming Gorman.  [editor’s note – is it possible to “cease” without “desisting”? I think not, but I digress]  

    Given Steinborn’s failure to appear, it’s not too surprising the court lowered the boom.  But the other part of the court’s order is more interesting.    It says:

    Plaintiff may submit this Order to internet search engines, including but not limited to Google, to have this link [the referenced link contained the offending statement] removed from internet search results because of Defendant’s defamatory comments that can be seen at the link above, which defame Plaintiff both personally, and professionally.

    Here’s the thing.  None of those search engines were parties to the case.  So if Gorman submits the order to any particular search engine, only to have that search engine say no, it’s not clear to me that there’s much he could do about it.  And I don’t see how the search engine would be in contempt of court if it refused to remove the link.  This does not even get into the First Amendment issues the order raises.  Seems like the court’s heart is in the right place, but it legal reasoning may leave a bit to be desired.
    Go comment!
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