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August 2017 Archives

August 10, 2017

Center for Art Law Case Law Updates

The following case selection first appeared in the Center for Art Law newsletter:

Pape v. LG Electronics USA Inc., 17-cv-04925 (S.D.N.Y., July 18, 2017) Paula Pape, daughter of late Brazilian artist Lygia Pape, brought suit against LG Electronics, Inc. on the premise that the Seoul-based electronics company is using images of her mother's 2003 sculpture Tteia 1, C in the packaging and promotion of its new product, the K20 V mobile phone. The cultural institution responsible for managing the reproduction rights of Lygia Pape's artwork had denied LG's request to use images of the artist's work multiple times. Paula Pape alleges that, despite these rejections, LG went forth with its original advertising campaign plan and used the images without permission. This case comes at an interesting time: a retrospective spanning five decades of the artist's career at the forefront of Brazilian modernism just closed at the Met Breuer.

Noland v. Michael Janssen Gallery Pte., Ltd et al, 1:17-cv-05452 (S.D.N.Y, July 18, 2017). Artist Cady Noland filed suit for copyright infringement and violation of the Visual Artists' Rights Act against a group of dealers, collectors, and galleries. Noland claims that the defendants were involved in the decision to hire a conservator to refurbish her work Log Cabin (1990), without consulting her. She alleges that the refurbishment carried out by the defendants exceeded that which is considered a normal restoration. Noland argues that because the conservator severely altered Log Cabin--by replacing the original wood that had rotted with new, protected wood--the work now stands as a copy of the original work. In recent years, Noland has received much attention for her sensitivity with regard to restoration, and has gone as far as to disavow artworks. In the current suit, Noland is seeking both the destruction of Log Cabin, as she believes it no longer represents a genuine product of her creation, and that the defendants cease circulating images of the work.

Tierney et al v. Camuto Consulting, Inc. et al., 2:17-cv-04936 (C.D.Cal., July 5, 2017). Street artists Joseph Tierney, Cary Patraglia, Spencer Valdez, and Keith Rowland brought suit against fashion designer Vince Camuto for using their work in his Spring/Summer 2017 ad campaign without seeking the artists' permission (http://www.thefashionlaw.com/home/graffiti-artists-are-increasingly-lawyering-up-to-fight-fashion-copycats?mc_cid=ed6f0f25a5&mc_eid=8a2eda70d8). This copyright infringement suit was fueled by the fact that, beginning in February 2017, Camuto's ad campaign featuring the artwork was displayed on a variety of platforms -- social media, news media, both Vince Camuto and department store websites, and within Vince Camuto stores. Tierney, Patraglia, Valdez, and Rowland seek reputational, future, and punitive damages. This case is one of several others centering around retailers' improper usage of graffiti artists' public murals.

Berkowitz, et al., v. Christie's, 652549/2017 (Sup. NY, May 11, 2017) Co-trustees of the Southern Trust brought action against Christie's, alleging that the auction house, entrusted with the sale of Elizabeth Taylor's jewelry, violated terms of the consignment agreement as well as breached its fiduciary duty when it rescinded the sale of the so-called Taj Mahal diamond. Complaint available at https://www.courthousenews.com/wp-content/uploads/2017/05/5-11-liz-taylor.pdf?mc_cid=ed6f0f25a5&mc_eid=8a2eda70d8.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/events/). The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: www.itsartlaw.com or write to itsartlaw@gmail.com.

New York Paid Family Leave: What Employers Need to Know Now and for January 2018

By Kristine Sova

New York's Paid Family Leave Benefits Law (PFL) will provide New York employees with up to 12 weeks of job-protected paid family leave to bond with a new child, care for a family member with a serious health condition, or address a qualifying exigency relating to the active military duty of a spouse, domestic partner, child, or parent. PFL benefits will be fully funded from employee contributions deducted from payroll. When fully implemented, qualifying employees will be entitled to income replacement of up to two-thirds of the employee's average weekly wage or up to two-thirds of the New York State average weekly salary, whichever is less.

The PFL is effective January 1, 2018, and benefits will increase annually until January 1, 2021. However, employers are permitted to begin making payroll deductions to fund PFL benefits as early as this month (July 2017).

Below are some answers to FAQs about the new law.

Which employees are eligible for PFL benefits?

PFL covers employees whose regular employment schedule is at least 20 hours per week and have worked at least 26 consecutive weeks before the first full day of PFL begins.

Part-time employees whose regular employment schedule is less than 20 hours per week will be eligible for PFL benefits after the employee has worked for 175 days for the employer. The 175 days are actual days worked, not calendar days.

Does an employee need to qualify for leave under the federal Family and Medical Leave Act (FMLA) in order to be eligible for PFL benefits?

No. Employees may be entitled to the benefits associated with PFL even if they do not qualify for leave under the FMLA.

What are the reasons that an employee may take PFL leave?

Eligible employees are entitled to a paid leave of absence from work in three situations:
1. PFL is available for an employee to bond with his/her newborn child during the first year of the child's life, or, in the case of adoption or foster placement, for the first year after the placement of a child with the employee.
2. PFL is available for an employee to care for a family member with a serious health condition. Both "family member" and "serious health condition" are defined in the PFL.
3. PFL is available to address a qualifying exigency relating to the active military duty (or an impending call or order to active military duty) of a spouse, domestic partner, child, or parent.

What paid benefits are provided under the PFL?

Paid benefits will be phased in over a period of 4 years as follows:
Effective January 1, 2018 - 8 weeks of paid leave in a 52-week period at 50% of the employee's average weekly wage, or 50% of the New York State average weekly salary, whichever is less
Effective January 1, 2019 - 10 weeks of paid leave in a 52-week period at 55% of the employee's average weekly wage, or 55% of the New York State average weekly salary, whichever is less
Effective January 1, 2020 - 10 weeks of paid leave in a 52-week period at 60% of the employee's average weekly wage, or 60% of the New York State average weekly salary, whichever is less
Effective January 1, 2021 - 12 weeks of paid leave in a 52-week period at 67% of the employee's average weekly wage, or 67% of the New York State average weekly salary, whichever is less

Are tips included when determining an employee's average weekly wage?


Can an employee supplement PFL paid benefits with accrued vacation, sick, personal, or other paid time off?

Yes. Employers and employees can agree to allow the employee to supplement PFL benefits up to their full wages with accrued vacation, sick, personal, or other paid time off. Employers who do so may request reimbursement from the insurance carrier that provides PFL benefits to their employees.

What other benefits are associated with PFL?

PFL offers employees the following additional benefits:
• Job protection - An employee who has received PFL benefits must be reinstated to his/her prior position of employment, or to a comparable position with comparable pay, benefits, and other terms and conditions of employment, upon the conclusion of PFL leave.
• Benefits protection - An employee who receives health insurance through his/her employer is entitled to continued coverage during PFL on the same terms as if the employee had continued to work during the period of PFL.

Is PFL only available "as blocks of time"?

No. Employees may take PFL leave in minimum full-day increments, either in blocks of time or intermittently. If an employee takes leave in daily increments, he/she may only take a maximum of 60 days of PFL in a 52-week period if he/she works 5 or more days per week.

What impact does PFL have on other types of leave, such as FMLA?

If an employee qualifies for leave under both the PFL and the FMLA, the leave under both laws will run concurrently. Employers are obligated to provide employees with any requisite FMLA notices of same.

Employees receiving PFL benefits may not receive New York State disability benefits during the same time period. Employees who are eligible for disability benefits may only receive a combined amount of 26 weeks of disability and PFL benefits in a 52-consecutive calendar week period.

How are PFL benefits funded?

PFL benefits are intended to be fully funded by employees. The maximum employee contribution will be a small deduction from each employee's paycheck. Beginning January 1, 2018, the contribution will be 0.126% of the employee's weekly wage, up to and not to exceed the statewide average weekly wage. The amount is subject to change on September 1 each year.

All insurance carriers who provide short-term disability benefits must provide PFL benefits.

May an employer self-insure for PFL?

Yes, but only those employers who self-insure for statutory short-term disability benefits may do so and only if they elect to do so before September 30, 2017.

What notices and forms are associated with PFL?

Employers are required to provide employees with written guidance concerning their rights and obligations under the PFL, including how to file a claim for PFL. If an employer maintains an employee handbook or written policies regarding benefits and/or leave, then information concerning PFL must be included within the handbook or policies.

Employers must also display or post, in plain view, a notice concerning PFL in a form prescribed by the New York Workers' Compensation Board.

Employers must provide employees with the option to sign a waiver if their regular work schedule will never achieve the period required to become eligible for PFL benefits (see "Which employees are eligible for PFL benefits?" above.) The New York Workers' Compensation Board will develop a waiver form for employers to use.

What should employers do now to prepare for the PFL?

• Employers should determine how they will obtain PFL coverage. If you self-insure short-term disability benefits and would like to self-insure PFL benefits, you must elect to do so by September 30. Otherwise, contact your disability benefits insurance carrier to find out more about adding PFL coverage.
• Begin taking payroll deductions for PFL, or prepare to start doing so by January 1.
• Draft a PFL policy and determine how it will integrate with your business's current leave practices. Train HR and management professionals accordingly.
• Prepare for extended leave requests from employees. Not only are many more employees eligible for leave under the PFL than under the FMLA, but the paid aspect of PFL will likely result in more employees taking PFL than other forms of leave.

Week in Review (from 7/29)

By Eric Lanter

Justice Department Nominee Claims Previous Representation of Russian Bank

President Donald Trump nominated Brian Benczkowski, a partner at Kirkland and Ellis, for the position of leading the Department of Justice's criminal division. Benczkowski has disclosed that he previously represented Alfa Bank, a Russian bank whose owners have ties to Russia's president Vladimir Putin. This comes as investigators have found communications between the Trump campaign and a server linked to Alfa Bank, which raised a question of whether it was a back channel to communicating directly with the Russian government during the campaign. While those communications were not found to be relevant for the investigation into collusion between the Trump campaign and the Russian government, Benczkowski's appointment has raised questions as to whether there are deeper, more latent connections.


Poland's President Vetoes Two Laws Limiting Courts' Independence

Polish President Andrzej Duda vetoed two bills that were aimed at placing Polish courts under political control, to the chagrin of his patron Jaroslaw Kaczynski. The laws would have forced the resignation of all Supreme Court justices, empowering the Justice Minister to appoint replacements. Duda and Kaczynski's political party, known as Law and Justice, recently moved Polish politics from a more traditional democracy to a nationalistic and authoritarian flavor of democracy. Prime Minister Beata Szydlo vowed to move forward with overturning the veto or producing fresh legislation. President Duda commented that the judiciary needed reform, but "wise reform", rather than the two bills presented to him.


'Bleak Picture' for Women Trying to Rise at Law Firms

Three former female partners at the law firm of Chadbourne and Parke brought suit against the firm for its gender pay gap. It would not be an anomaly if the women were able to show that a gender pay gap did indeed exist. A recent survey showed that nine out of 300 firms had a female staff totaling 50% or more of the total workforce. Some 20% of equity partners are women, despite the fact that women comprise half of law school graduates.


White House Communications Director Vows to Stop Leaks

Anthony Scaramucci, the new White House communications director, when asked how he would stop leaks coming from within the administration vowed to fire everybody. Scaramucci comes into the White House at a time when Reince Priebus, Chief of Staff, and Sean Spicer, outgoing press secretary, fiercely contested his appointment. This is just the latest development in the saga of warring factions and leaks that have plagued the Trump administration in the past six months.


Priebus Takes Turn in the Administration Hot Seat

With the hiring of Anthony Scaramucci in the White House, Reince Priebus, the Chief of Staff, came under fire for potentially being a leaker of information. Priebus also faces the prospect of being relegated to a lowly position or eliminated altogether, given his contentious relationship with Scaramucci. In recent months, Priebus has become increasingly alienated from the administration and has been seen in a humiliating light, even using the rear staircase to board Air Force One.


Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, and Media:


Claims of Theft in Hot Magic Show

Derek DelGaudio curated a one-man show called "In & Of Itself", which is performed at a small theater in Manhattan. Recently, two other magicians have been caught allegedly filming his show, which violates an unofficial code amongst magicians. Magic tricks typically fall outside the realm of intellectual property, absent magicians having copyrighted some portion of their tricks. A few have reported disseminating incorrect information on the internet or elsewhere, to throw other magicians off the scent of how the trick was performed. While the two magicians will not be welcomed back to DelGaudio's show, legal action against those magicians will likely not succeed.



Canada Debates Whether Gift is Tax Dodge

An anonymous person purchased over 2,000 photos by Annie Leibovitz and donated them to the Art Gallery of Nova Scotia in Halifax, which allowed the donor to qualify for a tax deduction and recognition as an arts patron. The Canadian government, however, rejected the deduction, as it has not accepted the $20 million valuation of the collection, given that the donor paid $4.75 million for it. The review board spokesman declined to explain how the collection did not meet the standard of "outstanding significance and national importance." A decision is expected in the fall.



Amateur Boxing Federation Votes Against Its President

The amateur boxing federation, known as AIBA, approved a no-confidence motion against its Taiwanese president, accusing him of mismanaging the finances of the organization. One of its largest creditors, an Azerbaijani company, demanded immediate repayment of a $10 million loan that is four years overdue, and several executives that have been fired from AIBA sued the federation and caused more than $1 million in legal fees in just the last year. The organization is expected to hold an "extraordinary congress" in the next three months, where a successor may be chosen for the president.


Spanish Soccer Federation President Suspended

Angel Maria Villar, the head of the Spanish Football Federation for the past three decades, was suspended after his arrest in relation to a corruption investigation. He was accused of corrupting regional federations by offering favors in exchange for votes.


Study Shows That 110 of 111 Former National Football League Football Players Had CTE

A new study, published in The Journal of the American Medical Association, shows that of 111 NFL players, 110 had chronic traumatic encephalopathy (CTE). The disease is known to cause memory loss, confusion, depression, and dementia, and is linked to repeated blows to the head. The brains of the 110 players found with CTE covered all positions in the game: quarterbacks, running backs, linebackers, place-kicker, and punter. Dr. McKee, who oversaw the study, concluded, "It is no longer debatable whether or not there is a problem in football -- there is a problem."


Baylor Ordered to Provide Sex Assault Reports

A U.S. District Judge ordered Baylor University to turn over all sexual assault reports since 2003. This order comes in the context of a lawsuit of several women who attended the university, and are suing the school for its failure to properly investigate their cases.



New York Times Asks Fox News for Apology

The New York Times asked Fox News for an apology after its "Fox & Friends" spokeswoman accused the paper of publishing a story in 2015 that prevented the military from attempting to kill a leader of ISIS, Abu Bakr al-Baghdadi. Fox News did not issue an apology, but updated an article on its website, adding that the Times article was published more than three weeks after the raid to kill al-Baghdadi and that members of the Pentagon reviewed and had no objections to the publishing of the article.


Ex-Fox News Executive Sues for Sexual Assault

Former Fox News executive Tamara Holder filed suit, claiming that Francisco Cortes, former vice president of Fox News Latino, tried to force her to perform oral sex on him in his office during February 2015. The case settled in March 2017, and Cortes has now accused 21st Century Fox of making him a scapegoat in an effort to battle its public image of rampant sexual misconduct in the organization. The case centers on a confidentiality agreement, which prevented him from defending himself, for fear that his employer would sue him for breach of the contract. Fox News had characterized the allegations as "frivolous and without merit."


Female BBC Reporters Demand Closing of Pay Gap

Following a government mandate, the British Broadcasting Corporation published the salaries of its entertainers and journalists, revealing a pay gap between men and women and creating outrage. Forty-two of the most prominent female employees wrote an open letter to the BBC director general, demanding that the BBC immediately act to eliminate the pay gap. The employees also had the letter published in The Sunday Times of London. In addition, Prime Minister Theresa May called on the BBC to pay men and women equally, pointing out that many of the women are performing the exact same job as the men who are paid much more.


Week in Review (from 7/21)

By Tiombe Tallie Carter

Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media. First, of general interest:

House Committee Approves Funding for Arts, Humanities

The House Appropriations Committee approved a bill that would appropriate $145 million for each of the National Endowment for the Arts and the National Endowment for the Humanities. President Trump's proposed budget would have eliminated both agencies.


Kentucky Must Pay Fees for Refusing Same-Sex Marriage License

A federal judge ordered the state of Kentucky to pay more than $224,000 in legal fees and costs occasioned by the refusal of Kim Davis, a county clerk, to issue a marriage license to same-sex couples. Davis's action was in violation of the Supreme Court's ruling in Obergefell v. Hodges, which held that the fundamental right to marry is guaranteed to same-sex couples.


Ignorance is Bliss in Jury Room

The New York Times explores what it says is a trend toward ignorance and banality in the selection of jurors, at least in high-profile cases.


Department of Homeland Security Will Release up to 15,000 H-2B Summer Visas

The Department of Homeland Security announced that it will release up to 15,000 additional seasonal visas to businesses that prove they will suffer irreparable harm without foreign workers. The number of available visas was halved in December when Congress chose not to renew a provision that exempted previously-admitted workers from counting against the quota.


Non-Disparagement Clauses Could Frustrate Harassment Claims

The increasingly common inclusion of non-disparagement clauses in employment contracts, especially at tech companies, may be having a chilling effect on the reporting of sexual harassment--also pervasive in tech companies.



Spotify Slammed over "Fake" Artists on Playlists

Music streaming service Spotify csme under fire for allegedly stacking its playlists with songs by "fake" artists it either controls or with which it has sweetheart deals. Many of these songs are pseudonymous instrumental works ("mood music") that Spotify may have commissioned, and for which it likely pays lower royalties than it does to publicly-known musicians. Spotify denies owning the rights to these songs, and asserts that their placement on playlists is based solely on popularity.


Warner Takes (Better) Half of Songkick

Songkick, a British company that handles concert ticket sales and provides concert listings and recommendations, sold its name and concert-recommendation service to Warner Music Group for an undisclosed amount. Warner did not buy Songkick's ticket sales business, which has been embroiled in antitrust litigation with its biggest competitor, Ticketmaster.


China Comes Down Hard on Soft Cultural Icons of the West

A recurring meme in Chinese social media is the resemblance between Winnie-the-Pooh and Chinese President Xi Jinping. When such comparisons are on the rise, the Chinese government swings the ban-hammer. Days after reports that China was once again censoring posts about the plush bear, the Beijing Municipal Bureau of Culture announced that Justin Bieber was banned from China for "bad behavior". Like the bear after which Pooh was named, Bieber comes from Canada. Coincidence?



Frog v. Mouse

Steve Whitmire, the performer who was the voice of Kermit the Frog between Jim Henson's death in 1990 and last October, when Disney (which bought the Muppets from the Jim Henson Company in 2004) fired him, has spoken out about the termination. Whitmire calls the decision a "betrayal," and claims he was terminated without warning for "minor reasons". Disney says that Whitmire was hostile to co-workers and difficult in contract negotiations. Members of the Henson family supported the dismissal.


BBC So White

The annual report of the British Broadcasting Corporation (BBC) contains information regarding what it paid its top stars (i.e., performers earning over £150,000 per year) last year. According to the New York Times, the data show a lack of gender parity and a dearth of minority stars.


DMX Pleads Not Guilty to Tax Fraud

Earl Simmons, a/k/a DMX, pleaded not guilty to 14 charges of federal tax fraud charges and was released on a $500,000 bond. Prosecutors allege that X din' give it to tha IRS.



Mayor's "Cultural Plan" Ties Funds to Diversity

New York Mayor Bill De Blasio announced a Cultural Plan for the city that would link funding to museums and art groups to the diversity of their employees and board members.


Judge Green-Lights Prince Copyright Suit

Judge Sidney H. Stein of the Southern District denied artist Richard Prince's motion to dismiss a copyright case filed against him by the photographer whose work
Prince used in an installation in which he printed Instagram posts on large canvases with his own comments. Prince, who made headlines recently when he returned in protest a $36,000 payment for a work featuring Ivanka Trump, responded with a very Trumpian tweet: "Phony fraud photographers keep mooching me. Why? I changed the game...."


Antiquities Dealer Sues Wall Street Journal over ISIS Article

Hicham Aboutaam, co-owner of Manhattan gallery Phoenix Ancient Art, sued The Wall Street Journal for defamation. Aboutaam claims that his "personal and professional reputation and business opportunities have been decimated" by an article stating Aboutaam was under investigation for possibly trafficking in artifacts looted by ISIS.


Modigliani Exhibit Closes After Allegations of Fraud

An exhibit in Genoa featuring the work of Amedeo Modigliani closed early after Italian prosecutors alleged that one third of the works were fakes. The investigation began when art collector Carlo Pepi, who saw images of the works online, said the exhibition's catalog was "full of fakes".


Judge Blocks Auction of Madonna Memorabilia

New York Supreme Court Justice Gerald Lebovits granted Madonna's request for a preliminary injunction halting the sale of 22 personal items by a former friend. Madonna contends that she still owns those items and that the auction site, GottaHaveRockandRoll.com, has no right to sell them.


Grave Robbing on the Rise in China

As global demand for Chinese antiquities rises, the Chinese countryside has seen an uptick in tomb-raiding. China's State Administration of Cultural Heritage reported over 100 such cases in 2016, and many more are believed to have gone undetected. Up to eight out of every 10 tombs in China has been robbed, according to that agency.


Syrian Performers (Mostly) Make it to U.S. in Time for Performance

Eight of the nine Syrian cast and crew members of "While I Was Waiting", were permitted entry into the United States in time to open Wednesday at Lincoln Center. It was long feared that the show would have to be canceled due to president Trump's travel ban, and many of the cast and crew, coming from six different countries, faced difficulties.


Dalí Still Keepin' it Surreal

The body of Spanish artist Salvador Dalí was exhumed after a woman claiming to be his daughter obtained a court order authorizing a paternity test. Pilar Abel, a fortune-teller, could claim part of an estate worth hundreds of millions of dollars. This is all well and good, but the real story here is that Dalí's famous moustache remains intact!


Looted Painting held by Goering Returned

A Renaissance-era painting owned by a German banker was looted by the Nazis during World War II and added to Hermann Goering's enormous collection. The piece recently was found and returned to the banker's heirs.


Macmillan Books' Newest Imprint: Celadon

Jamie Raab and Deb Futter, who left Hachette's Grand Central Publishing late last year, founded Celadon Books, a new publishing division of Macmillan. Celadon plans to publish 20 to 25 fiction and non-fiction titles per year.


Harvard's A.R.T. Institute Suspends Admissions for Three Years

Harvard's graduate program in theater, known as the A.R.T. Institute (named after the school's American Repertory Theater), halted admissions to "work on a strategic plan for the Institute." Earlier this year, the institute was named on a list of predatory schools whose students amass more debt than they can afford to repay, and its long-time director, Scott Zigler, left last month to become dean of UNCSA's drama school.



Judge OK's Discovery into "Deceptive Practices" Targeting Former National Football League Players

The federal judge presiding over the National Football League concussion settlement authorized plaintiffs' lawyers to investigate reports that companies have been trying to take advantage of retired football players by offering to help fill out paperwork for a fee, or to obtain helpful diagnoses. The judge indicated that she might void agreements that were based on deceptive or misleading solicitations.


Former Ohio State University Linebacker Leads Suit for Unauthorized Use of Likeness

Chris Spielman, who played football for Ohio State University (OSU) from 1985-1987, filed a class action lawsuit on behalf of current and former OSU players alleging that OSU conspired with IMG College (a sports marketing company that negotiates licenses on behalf of schools) and advertisers, like Honda and Nike, to use the likenesses of Buckeyes without permission or payment.


Brazil Will Not Punish Lochte

The criminal case against American swimmer Ryan Lochte, who was charged with filing a false robbery report in Brazil during the Rio Olympics, was dismissed.


Texas Trying to Get Back up in Your Bathroom Stuff Again

The so-called "bathroom bill" that would require restrooms, showers, and changing facilities in public locations "must be designated for and used only by persons of
the same sex as stated on the person's birth certificate," is back under consideration before the Texas Senate. The bill died last year under pressure from pro-business Republicans concerned about the loss of revenue from relocated sports events and economic boycotts similar to those estimated to have cost North Carolina hundreds of millions of dollars when it passed a similar law.


Boxing Federation in Financial Straits

Boxing's international federation, known as the AIBA, borrowed millions from Azerbaijani investors, and sold a major stake in its marketing subsidiary to a Chinese investor. Now it may be on the hook for tens of millions of dollars. Accounting irregularities and reports of minimal cash flow have raised serious questions about AIBA's ability to repay the Azerbaijani loan, and the Chinese investor wants his money back.



Trans-Pacific Partnership (Minus U.S.) May Still Impact IP, Digital

The 11 other countries involved in the negotiation of the Trans-Pacific Partnership (TPP), a multinational trade agreement intended to shore up economic power against China, met this week in Hakone, Japan to discuss reviving the deal. In its present form, the TPP contemplates the loosening of restrictions over the cross-border transfer of online data, including requirements regarding the locations of servers. It also seeks to level the playing field in service industries like software, legal, and IT.


China Blocks WhatsApp

Turning its attention briefly from its censorship of a childish cartoon character and Winnie-the-Pooh, China has partly blocked use of FaceBook's messaging app, WhatsApp, preventing users from sending videos and photos. Facebook and Instagram are already fully blocked in China.


OJ Simpson Granted Parole By The Nevada Board of Parole

By Michael Kusi

OJ Simpson was granted parole by the Nevada Board of Parole, after serving 9 of a 33 year sentence on July 20th. During his hearing, Simpson said that he did not have bad intentions, but was only trying to reclaim his possessions. He is scheduled for release in October 2017.

Simpson was convicted in 2008 by the Nevada District Court of 12 criminal counts, including conspiracy to commit a crime, conspiracy to commit kidnapping, conspiracy to commit robbery, and burglary with a deadly weapon. He filed a motion for retrial which was heard in May 2013. In this motion, Simpson stated that he had ineffective assistance of counsel that resulted in his conviction. This motion was denied. In July 2013, Simpson was granted parole on the charges of armed robbery, kidnapping, and burglary, by the Nevada Board of Parole. However, the Board did not parole him of all charges, and said that there had to be a separate parole hearing in 2017. The same people who reviewed his parole in 2013 also reviewed it in 2017. These board members voted unanimously to grant parole, and Simpson apologized for his part in the 2007 armed robbery.

OJ Simpson is best known as a college and professional football player, and as an actor. Simpson won the Heisman Trophy in 1968, which is awarded to the best college football player. He was also the first running back to run for more than 2,000 yards in a season, which he did in 1973, and the only running back to run for that yardage in 14 games. Simpson also appeared in movies like the Naked Gun comedies, and was an analyst on Monday Night Football. He was acquitted in 1995 of the murders of his ex-wife Nicole Simpson and Ronald Goldman. However, Simpson was found liable in a civil case and had to pay $33.5 million to his children, as well as the Simpson's and Goldman's families.

August 14, 2017

Week in Review

By Anna Stowe DeNicola

Varsity Brands v. Star Athletica Ends in a Settlement... With a Twist

A federal judge let Varsity Brands drop its lawsuit against Star Athletica, who it had accused of violating copyright by illegally copying elements of its designs. The Supreme Court in March ruled that "conceptually separable" design elements were copyrightable. The twist here is that Star Athletica, the defendant in the case, wanted to continue litigating the case. Star Athletica was highly critical of the decision, which was negotiated between Varsity Brands and Star Athletica's insurance company.


More Law Schools Move to Accept the GRE in Attempt to Boost Admissions

In an attempt to boost enrollment, two more law schools joined the ranks of those that have changed admissions requirements to make the application process easier. Along with Harvard law and the University of Arizona, Georgetown and Northwestern now have changed admissions criteria to accept the GRE instead of the LSAT. These schools hope the change will encourage a more diverse student body, making it easier for students in the traditional STEM fields (which only require the GRE for graduate admissions) to apply to law school. These law schools have each done comparative studies that have shown that GRE scores are comparative predictors of success in law school. The LSAT has long been the single admissions exam accepted by law schools. The Law School Admissions Council (LSAC, creator of the LSAT) is highly critical of this shift, warning that the GRE doesn't test for certain critical predictors of success in law school - analytic and logical reasoning. LSAC announced some changes in the administration of the exam, and it is now offering it six times a year, while removing the limit for the number of times someone can sit for the exam. It also is rolling out a free online exam prep course.


Texas Transgender Bathroom Bill on its Last Legs

The controversial "bathroom bill" currently in front of the Texas House appears to be faltering - after a strong effort by Texas House Speaker Joe Strauss, gay rights and business groups oppose the legislation. The bill passed a Senate vote, and would require transgender individuals to use bathrooms corresponding to the gender listed on their birth certificates or other state-issued ID. The driver of the opposition is big business - actively arguing that the bill would chill business opportunities in Texas. Among those in opposition are IBM, Amazon, Apple, Dell, Microsoft, Intel, Capital One, Ben & Jerry's, Facebook, American Airlines, Southwest Airlines, and United Airlines. They are joined by another 650 businesses. North Carolina recently enacted a similar law, and the fallout was wide. The state reported millions of dollars in economic losses, due to boycotts and cancellations of sporting events and concerts. A study in Texas projected billions of dollars in losses, were a similar bill to pass the House vote.


Below, for your browsing convenience, the categories are divided into Entertainment, Art, Sports, and Media.


Lawsuit Against Taylor Swift Dismissed; Countersuit for Assault and Battery Moves Forward

A federal judge in Denver dismissed DJ David Mueller's claim against Taylor Swift, which stated that Swift falsely accused him of groping her, leading to his termination from radio station KYGO. After four days of testimony, the judge ruled that Mueller presented insufficient evidence that Swift "acted improperly when she reported an assault she truly believed happened." Swift accused Mueller of assault and battery, after an incident where. Mueller allegedly grabbed her underneath her skirt during a photo op at the radio station where he worked. The court heard testimony from Mueller, Swift, Swift's mother, and Mueller's then-girlfriend. On the stand, Mueller stated that he thought he was touching her ribs, and strongly denied groping the star. Andrea Swift, Swift's mother and manager, gave an emotional account of the incident. Swift also gave strong testimony and refused to bend to the line of questioning presented by Mueller's counsel. Swift delivered multiple one-liners on the stand that have been widely shared. Eight jurors (6 women, 2 men) will return to listen to testimony on the remaining claims. Swift's legal team said that it will not present any additional witnesses, but rely on testimony already given to support her case.





Academy Announces New President

Cinematographer John Bailey was named the new president of the Academy of Motion Picture Arts and Sciences (the Academy). Bailey follows the tenure of Cheryl Boone Isaacs, who served four consecutive one-year terms. While largely considered a ceremonial role, the incoming president has some large PR challenges ahead. The Academy's movie museum is under construction, but a significant portion of the funds have yet to be raised, Academy Awards ratings are down, and race and gender issues loom in the industry, all of which Bailey will have to address. Bailey's partner will be Dawn Hudson, chief executive of the Academy. Hudson has been with the Academy for several years and has a contract through 2020. Bailey was seen as an underdog for the post - and many "below the line" industry personnel are thrilled by his election.


Disney Announces Upcoming Launch of Dual Streaming Services

Disney this week announced a plan to launch two streaming services over the next two years. One of the services will center on sports programming from ESPN, and the other will center on Disney and Pixar movies and other Disney content (it is undecided whether Lucasfilm and Marvel content will be included). Both platforms will be powered by Bam-Tech, the company that handles streaming services for HBO and various baseball teams. Disney recently exercised a $1.5 billion option to increase its ownership of Bam-Tech to a 42% share, up from the 33% stake it purchased a year ago. The ESPN service will launch in 2018, followed by the Disney/Pixar service in 2019. Disney terminated its contract with Netflix for streaming of its content (although the content will remain available on Netflix for a period of time). Disney is late to the game - but this bold move shows a commitment by the company to keep its programming relevant and accessible to consumers. The announcement has rocked the industry. With Disney now at the table, consumer consumption of television and movie content has the distinct possibility of shifting from a cable network bundle model to streaming services. Industry watchdogs wondered whether consumers will continue to embrace streaming subscriptions, or become frustrated as they are forced to "cobble together" various streaming services in order to access the content they want. While Netflix stocks dipped following the announcement, Disney's new endeavor hardly signals its demise. Netflix has been adding a significant amount of self-produced content, with plans to release as many as 50 movies a year.



Comedy Streaming Service Announces Cancellation

Comedy streaming service Seeso announced that it will shut down later this year. The service is part of the NBC family, and featured shows such as "Saturday Night Live", "The Tonight Show Starring Jimmy Fallon", and also included original programming with several prominent comedians. Leadership changes and layoffs lead to the inability to maintain a steady subscriber base.



Independent Concert Producer Puts Artist Needs at the Forefront

In the concert production world, large conglomerates such as Live Nation and AEG dominated the touring and concert presentation scene for years. The 2010 merger between Live Nation and Ticketmaster further pushed smaller, independent promoters aside. In Washington, however, Seth Hurwitz and his small concert promotion company, I.M.P., is making waves in the industry. Hurwitz's philosophy is to focus on the artist experience - his goal is "to win the hearts and minds of performers." He is opening a new performance venue, complete with a movable stage, angled balconies, and waterfront views from its outdoor terrace. The venue can hold 6,000 people. Other venues in his portfolio include the Merriweather, which was designed by Frank Gehry, boasts two swimming pools and massage cabanas as part of the backstage suite. Artists in turn appreciate the attention to their experience, especially in an industry that so heavily caters towards the audience experience and corporate partnerships. It is difficult to compete with the Live Nations in the field, but Hurwitz has worked hard to carve out a niche for himself in the ever-narrowing world of concert promotion.


Controversy Over Conservative Guest Conductor in Santa Monica

The Santa Monica Symphony jumped when the opportunity to play at Disney Concert Hall presented itself - it was a rare opportunity for it to host a gala fundraising event that the ensemble sorely needed. The ensemble is an all-volunteer orchestra, comprised of professional and semiprofessional musicians. Donations are down this season, and in a recent email to musicians, the orchestra's conductor Guido Lamell shared that the orchestra faced a "serious shortfall". The upcoming fundraiser was vital. In an attempt to raise as much as possible, Lamell invited conservative talk show host Dennis Prager to guest conduct the event. The response was immediate - musicians threatened to boycott the concert. An open letter was circulated among the musicians that denounced the choice to invite Prager to conduct, and asked the musicians to "urge your friends not to attend this concert." Prager is a divisive, conservative personality who often speaks out against same-sex marriage, calls the heterosexual AIDS crisis a "manufactured" conspiracy, and has been critical of non-Christian religions. Santa Monica is as liberal as liberal cities come, so the decision to invite Prager to conduct is causing many to scratch heads. He is not a trained conductor, but a self-described classical music aficionado. He has guest conducted other Southern California orchestras, including the Brentwood Westwood Symphony Orchestra. Despite the outrage and response, Lamell stands by the invitation and the Orchestra's Board has stood firm behind the choice. Prager squarely places blame on the musicians and community for politicizing his appearance in front of the ensemble - stating that in his view, "great music should transcend political differences."


"Chicken Don" Makes Appearance Across from the White House

For a few days last week, a giant 10'x30' inflatable chicken made an appearance in the Ellipse, the park directly south of the White House. It was the brainchild of artist Taran Singh Brar, who planned the installation for four months - from designing the inflatable balloon to working with the National Park Service to acquire the necessary permits and First Amendment waivers to the height limits for the park. There was no question who the chicken resembled - with its golden, perfectly coifed hair to its signature red wattle. Chicken Don, as it has been aptly named, was a "statement about the president being a 'weak and effective leader.'" Brar already has Chicken Don's next appearance in the works - he is planning a mock military parade with dozens of Chicken Dons wielding "Russian armaments." President Trump unfortunately was not in residence at the White House to see his doppelganger.


Kesha Releases New Album, Despite Ongoing Legal Battle with Dr. Luke

Kesha released her latest album, "Rainbow", last week, the first since she commenced an embroiled legal battle with her producer Dr. Luke three years ago. The singer accused Dr. Luke of abusing her sexually, physically, and emotionally, but has been unable to extricate herself from the web of contractual ties she has with him. Many of her contract claims were dismissed or withdrawn, but she still faces defamation and breach of contract lawsuits from Dr. Luke. He has adamantly denied her allegations of abuse. "Rainbow" was released by Kemosable Records, a subsidiary of Sony that is under the control of Dr. Luke. There are conflicting accounts as to whether Kesha was barred from releasing new music over the past few years. She claims that he threatened to railroad her career, while his representatives state that she has been free to release music and that they have tried to help her find other affiliate labels for her. Dr. Luke's claims against Kesha are in the early phases of discovery, and trial prior to 2018 is unlikely. Kesha appealed the dismissal of her claims and requested a preliminary injunction (allowing her to release music with a non-Sony label). Neither her appeal nor motion have been addressed by the court. Under the terms of her contract, she owes Dr. Luke two more album releases after "Rainbow".


Settlement Deal on the Horizon for Monkey Selfie Case

The case involving whether the work of an animal can be copyrightable is close to a settlement deal. Several years ago, a monkey took the camera of a photographer and snapped a few selfies. The photographer later published a book that included those works. A self-appointed lawyer argued on behalf of the monkey that the monkey's selfies enjoyed copyright protection, and therefore the photographer violated the monkey's copyrights when he published the photos without permission. The 9th Circuit ruled against the monkey, stating that animals cannot own U.S. copyrights. The monkey's lawyer this week told the court that a settlement was likely, and asked the court to refrain from issuing an order in the case.



New Sexual Violence Policy Announced by NCAA

The NCAA announced that it will require member universities to provide sexual violence education for all collegiate athletes, coaches, and administrators. Athletic administrators and participant institutions will be required to attest that the required people received sexual violence education each year. The policy also requires that universities must declare that their athletic departments are knowledgeable of campus sexual violence policies and remedies.


88% Registration Rate in National Football League Concussion Settlement Case leading up to Registration Deadline

As of this week, 18,400 of the 21,000 retired National Football League (NFL) players eligible for NFL concussion settlement payouts registered for benefits. Four years ago, the NFL agreed in a settlement deal to pay ex-players who accused it of concealing the dangers of concussions from the players. Over the course of the 65-year deal, the NFL will like play out upwards of $1 billion. Originally limited to $765 million, the NFL later agreed to pay an unlimited amount to former players. In order to qualify for a payment, eligible players must first register. The registration window closes next week. It hasn't been easy to find players to register for the settlement, due to incomplete team records kept decades ago, and the stigma associated with illness among players. Many players fear that registration - even if they currently are healthy - will hurt their business interests or even cause them to develop concussion-related illnesses.


Hyperandrogenism Again in the Forefront at the Court of Arbitration for Sport

In 2015, the Court of Arbitration for Sport temporarily suspended an international track and field rule that prohibited women with naturally-elevated testosterone levels from competing against other women. The rational was that it presented an unfair advantage - and in order to compete with women they had to take hormone-suppressing drugs or have surgery to limit testosterone production. In the wake of the temporary suspension, female athletes, like Indian track and field star Dutee Chand, could compete freely and without having to undergo therapy or surgery. The International Association of Athletics Federations (IIAF), the governing body for track and field, spent two years compiling data about competitive advantage and naturally-elevated testosterone levels in women. Its report, due to the Court of Arbitration for Sport, shows that the competition advantage associated with elevated testosterone varies according to the event. The largest advantage was in the hammer throw, where a 4.53% advantage was shown. Other events where elevated testosterone created an advantage include the pole vault, 400-meter hurdles, and the 400-meter and 800-meter sprints. However, all were well below the 10-12% threshold generally recognized as the natural performance difference between men and women. The Court also said in 2015 that the IAAF should reconsider its ban on women with hyperandrogenism if the advantage was found to be "well below" 12%. Experts in the 1990s suggested that women with hyperandrogenism should compete as women if they were raised as women - and that it should be considered a natural genetic advantage, like Usain Bolt's long stride or Michael Phelp's large feet. This issue, however, will continue to challenge the sports world as gender continues to become a more fluid concept with "nuanced distinctions".


U.S. Treasury Department Accuses Soccer Start Rafael Márquez of Aiding a Drug Trafficking Organization

The U.S. Treasury Department this week froze the assets of Mexican soccer star Rafael Marquez, accusing him of using his multiple business as fronts for the "Flores drug trafficking organization." Marquez's soccer school and charitable foundation were placed on a Specially Designated Nationals list, along with 21 other people and 41 other entities. The assets were frozen under the Kingpin Act, which allows the Treasury Department to freeze assets of foreign nationals suspected of being involved in international narcotics trafficking. Additionally, those designated as Specially Designated Nationals are isolated - they are prohibited from dealing with "U.S. persons". While the Kingpin Act has aided the U.S. in reigning in organized crime and drug trafficking rings, defense attorneys often claim that the system is fraught with errors and that many reputations end up tarnished, without due process and often with scant evidence. One of Mexico's best soccer players, Marquez was captain of the Mexican team at the last four World Cups, won four league titles and two Champions League trophies while playing in Europe, and played on the Red Bulls here in the States. He currently is the Captain of the Mexican club Atlas, based in Guadalajara.


Greek Club Match Against Israeli Team Leads to Lifetime Ban for Two Iranian Soccer Players

Iran's deputy sports ministry announced a lifetime ban for Masoud Shojaei and Ehsan Haji Safi, two of the country's top soccer stars, after they participated in a match against an Israeli team. Shojaei and Safi are members of a Greek club team, Panionios, which played in Athens recently against Maccabi Tel Aviv. Iran does not recognize Israel, and there is a "longstanding rule" that prohibits Iranian athletes from competing against Israeli athletes, including in the Olympics. The rule has caused several prominent Iranian athletes to pull out of competitions at the last minute for "personal reasons", which many believe are ground in a fear of retribution by the Iranian government if they compete against Israelis. Critics of this decision are vocal - and hope that FIFA intervenes. FIFA rules prohibit political interference in countries' national teams. FIFA has not yet reacted to the ban.


Tiger Woods Plea Deal in D.U.I. Case

Tiger Woods, who was arrested in May for driving under the influence, agreed to enter a guilty plea at a hearing that will take place on October 25th. Woods will plead guilty to reckless driving and enter a diversion program. Prosecutors agreed to drop the D.U.I. charges against him, and if he completes the diversion program, he may petition a judge to expunge the reckless driving conviction. As part of the deal, Woods will be on probation for one year, attend "D.U.I. school" and do 50 hours of community service. He also will have to pay a $250 fine and court costs.


Police Skirmish and Riot Leads to Arrest of Zach Randolph

An encounter with police that turned into a mini-riot in Southern California last week led to the arrest of Sacramento Kings forward Zach Randolph. He was arrested on a marijuana charge. Police attention was drawn to a crowd that had gathered outside to drink, smoke marijuana, and listen to music. Among those gathered was Randolph, who police observed reaching for his waistband before they ran away. After a few people were arrested, the crowd threw bottles and rocks, and smashed the windows and slashed the tires of five police cruisers.


Medal Reallocation Ceremonies - Attempting to Right a Wrong in Track and Field

Track and Field is riddled with doping scandals, to the point that fans and athletes are no longer shocked by doping revelations. Retroactive testing of samples, now with better technology to detect banned substances, has caused many athletes to be stripped of their medals. In an effort to make things right, IIAF, track and field's governing body, has been conducting medal reallocation ceremonies to finally recognize the achievements of those athletes that have engaged in clean competition. Many athletes who are just now receiving medals have described the ceremonies as "awkward and bittersweet". Athletes are grateful for the recognition, but note that the ceremonies serve as a reminder of doping's pervasiveness throughout the sport. In addition to these ceremonies serving to bring the doping conversation back to the forefront, sprinter Justin Gatlin's surprise win over Usain Bolt last weekend also sparked debate. Gatlin served two suspensions for doping violations and was seen (perhaps unfairly) as an athlete representative of the problem. As for addressing the systemic problem, the IAAF has been firm in its resolve to address the problem and enforce suspensions. It continues to re-write the record books and retroactivly acknowledge clean athletes for their achievements.


Tony Granato Named Coach of U.S. Olympic Hockey Team

Newly-named coach Tony Granato has a tough road ahead of him. He must build a stellar Olympic team without players from the National Hockey League (NHL), which announced several months ago that it will not participate in the 2018 Olympics. Players from the American Hockey League will participate, and Granato is hoping to recruit several veteran NHL players who are set to retire. Thirty players will represent the U.S. on the team roster in early training sessions and tryouts, which will include the Deutschland Cup tournament in November. Tough competition for former NHL players is coming from the north, where Canada has been actively recruiting for its Olympic team, looking to former NHL players as well. Former Olympians Chris Chelios and Scott Young, Yale Coach Keith Allain, and Ron Rolston, a longtime coach with USA Hockey, will assist Granato as members of the coaching staff. Jim Johannson will serve as the general manager.


An Accident with Soup and Tortellini Blamed for Sara Errani's Doping Suspension

Sara Errani was suspended for two months and retroactively disqualified from earlier tournaments after she tested positive for the banned substance Letrozole back in February. Errani blames her mother's cancer treatment for the contamination. Her mother is taking Letrozole as part of her cancer treatment, and she believes that she accidently dropped some of the medication into some soup and tortellini while cooking. Errani's ban commenced on August 3rd and ends on October 2nd, and will preclude her from participating in the United States Open.


Usain Bolt Defeated in His Career Farewell

Usain Bolt, in his career farewell, concluded his final 100-meter sprint with a bittersweet final bow. Bolt won the bronze, conceding his signature event to Justin Gatlin and Christian Coleman. The crowd was shocked and booed Gatlin's win. Bolt has been a seminal figure in the track and field world, astonishing crowds not only with his incredible record and slate of wins, but also his magical personality on the field. He swept the 100 and 200 at the past three Olympic Games, and won four world titles in the 200. And for a sport riddled with doping scandal after doping scandal, Bolt has had a clean record his entire career. Last week's world track & field championships also served as a moment in the sun for Gatlin, who has served two doping suspensions. The first was a one-year ban starting in 2001, the second a four-year ban starting in 2006. Gatlin and Bolt have had a healthy rivalry, and the two greeted each other on the track last week with a warm embrace. Bolt's departure from the sport will leave a large void that will be difficult to fill.



Right- and Left-Wing News Media Finds Common Ground in Fight Against Sinclair Acquisition

Sinclair Broadcast group is attempting to acquire Tribune Media. The merger/acquisition would give Sinclair ownership of 233 local television stations, and would reach more than 70% of households across the country. The combined company would also generate a major "toehold" in the Los Angeles, Chicago, and New York markets. Sinclair is a conservative company that requires its local affiliates to broadcast "must-runs". These segments often include conservative commentary. Intuitively, liberal media outlets harshly criticized the proposed merger, but also joining in the opposition are conservative media outlets who are crying afoul - arguing that any merger would "limit competition and wipe out independent voices." Newsmax founder Christopher Ruddy, a close associate of Trump, filed a petition with the FCC opposing the merger. One American News Network, The Blaze, and Dish Network also joined in opposition, as has the consumer advocacy group Free Press. The fear on both sides is that the merger would leave "unbalanced power in the marketplace," and potentially "homogenize" available content in the U.S., leading to a reduction in press diversity and unique viewpoints.


Fox News Turned Down $60 Million Joint Settlement Offer

Fox News spent millions of dollars in the wake of the sexual harassment scandal that rocked the network from the top down. It was revealed this week that the network turned down an offer to settle multiple lawsuits that had been filed by a single lawyer against the network, on behalf of more than 20 individuals. Attorney Douglas H. Wigdor publicly disclosed the suits after mediation efforts broke down. In addition to the sexual harassment and gender discrimination claims, Wigdor also filed a defamation and racial discrimination suit on behalf of Rod Wheeler, a private detective, against Fox News and 21st Century Fox, centered on an article about the death of Seth Rich. Wheeler claims that Fox fabricated quotes from him that were included in the initial version of the article (which were later retracted). Wigdor claims that it is not uncommon for lawyers handling multiple cases against a single party to try to resolve them collectively. Fox is in the middle of an attempt to acquire Sky, a European satellite company. The sexual assault scandal has played a big role in the investigation into the acquisition, and a British authority charged with examining the deal has looked closely at the scandal and the company's response. Wigdor apparently also sent a letter to the British oversight authority, accusing Fox of lack of transparency in its efforts to acquire Sky and for failing to adequately clean its ranks in the aftermath of the scandal.


Eric Bolling Controversy: a Suspension Followed by a Lawsuit

Accusations that Fox News host Eric Bolling sent sexually graphic text messages to his female colleagues several years ago lead to his suspension this week. HuffPost broke the story, citing a "dozen" anonymous sources that supported the accusation. The law firm Paul, Weiss is conducting an investigation into the accusations. Bolling, who recently signed another long-term contract with the network, in a statement said that he does not recall sending the messages. In a quick response, within a few days Bolling initiated a $50 million defamation lawsuit against HuffPost author Yashar Ali, who penned the article. Bolling is represented by Michael J. Bowe of Kasowitz Benson Torres (the firm also represented Bill O'Reilly during his ouster). Ali vowed to protect his sources in a statement made via Twitter, and HuffPost has publicly supported him and the story.



CNN Fired Jeffrey Lord Over Twitter Tirade That Invoked Nazi Propaganda

CNN fired one of its prominent reporters, Jeffrey Lord, after Lord unleashed a Twitter tirade that evoked a Nazi salute. Lord is a staunch advocate of President Trump, and has been heavily criticized by his colleagues. His demise, however, came from a Twitter exchange with Angelo Carusone, president of Media Matters, a liberal watchdog group. Lord criticized Carusone for calling for sponsors to boycott Sean Hannity's show on Fox News, accusing Carusone of emulating fascists. CNN demonstrated no tolerance for the Nazi reference that followed the exchange. Even as a Trump advocate and defender, he was criticized by the White House for being too gentle and analytical in his approach - they wanted someone to more combatively represent the president's views. In an interview following his ouster, he indicated that he already has received calls about potential employment and is close to finalizing a book deal.


New York Times Editorial Board Member Must Testify in Palin Defamation Lawsuit

Southern District Court Judge Jed Rakoff ruled this week that the author of a June 2017 New York Times editorial column that linked Sarah Palin to a mass shooting in 2011 must testify in a hearing to determine whether to dismiss the newspaper's motion to dismiss the case. The New York Times corrected the story and issued an apology to Palin. The New York Times previously reported on Palin, and denounced any links between her political rhetoric and rampage violence. She claims that the June 2017 editorial was in conflict with the previous reporting. Judge Jed Rakoff ordered the testimony, as it will be essential in determining whether the author acted with actual malice and whether the author was aware that prior reporting conflicted with the column.


Google Town Hall Diversity Meeting Cancelled in Response to Harassment Fears

In response to the Google memo situation, in which an employee wrote and published a memo that suggested innate biological differences between men and women were to blame for gender disparity in the top echelons of tech, a company-wide town hall meeting was called to discuss the response and address questions and concerns. Google uses a system called "Dory" to facilitate internal communication. Employees use Dory to submit feedback to management, and for this particular meeting, employees were asked to submit their questions and concerns via Dory in advance of the meeting. However, someone published several of the employee comments and concerns publicly, along with the employees' names. The employees whose comments and questions were made public were subjected to online harassment. In response, Google Chief Sundar Pichai cancelled the meeting 30 minutes before its scheduled start time. The debate over the memo itself and Google's response (to fire its author) have caused divisions within the company. Pichai returned early from his vacation to address the crisis. While he chose to cancel the first meeting, he stated that the company will reschedule when sure that everyone can feel safe and included in the meeting process.


Op-Ed - Class Action as a Means to Address Gender Discrimination in Big Tech

Anita Hill, in an Op-Ed piece published this week in the New York Times, starkly laid out the gender disparities in compensation and leadership roles in the tech industry. Women under 25 earn up to 29% less than their male counterparts, 63% of the time women receive lower salary offers for the same job at the same company, only hold 11% of executive positions in the industry. Eighty-two percent of men working in the industry believe their companies devote enough time addressing diversity concerns, 40% of women say the effort is inadequate. Hill suggests that the best approach would be a class action discrimination case against employers. This was done on Wall Street in the 1990s, and while the results were not perfect, women enjoy much better advantages due to their collective stance for equality. Hill views the leaked Google Memo as a wake-up call for all who have come to believe progress has been made. The memo only served to highlight the deep-rooted nature of anti-equality attitutes.


FX and Comcast Announce Ad-Free Service Deal

The latest offering of an ad-free viewing experience comes from FX, in a deal with Comcast announced last week. The service will be called FX+, and will include currently-airing shows, as well as tap into the networks older shows. Content that already offered through other providers will not be available on FX+. Networks like FX are navigating a new world of content consumption, and this new venture signals a shift in the network's thoughts about long-term rights vs. the short (albeit often large) gain of negotiating deals with outside streaming services. Comcast also has a similar deal with AMC, which was announced in June.


August 21, 2017

Week in Review

By Tiombe Tallie Carter

New on This Fall's Law School Syllabus: Trump

Constitutional law professors and scholars across the nation are revising their courses in response to the presidency of Donald Trump. Attorneys remember the typical issues studied in constitutional law classes, such as due process, equal protection, and the separation of powers. With the Trump presidency, students will now face the following questions: "When is firing a subordinate to thwart an investigation obstruction of justice? Can a sitting president be indicted? Can the president pardon himself? May he accept financial benefits from foreign governments? Are his campaign statements evidence of religious bias? Must Congress authorize a nuclear strike against North Korea?" These questions have been raised in response to President Trump's first six months in office. One law professor suggested that the framers of the U.S. Constitution "should have made it easier to remove the president before his term was over." If nothing else, hopefully the constitutionalists appreciate the importance of their work.


China's Intellectual Property Theft Must Stop

Dennis C. Blair, former director of national intelligence and a former commander in chief of the United States Pacific Command, and Keith Alexander, former commander of the United States Cyber Command and a former director of the National Security Agency, call on a "broad sustained campaign bringing together the government, the private sector and our allies" to drive down intellectual property (IP) theft, particularly by China. They state that it is imperative to national security and the American economy. It is reported that intellectual property theft, which ranges from "patent infringement, pirating movies and video games to counterfeiting American fashion designs and stealing proprietary technology," costs Americans "up to $600 billion a year." Chinese companies, which "account for most of that loss," have been stealing trade secrets from "virtually every sector of the American economy" for decades. What's now alarming is that "China has targeted the American defense industrial base," going after the "United States' most significant weapons." Last Monday, President Trump called for an investigation by the United States Trade Representative into China's assault on United States IP. Such an investigation is believed to be a critical step needed to hold China accountable.


Seeking Greater Global Power, China Looks to Robots and Microchips

China's approach to patents, trademarks, and copyrights is complicated. In some instances, it upholds IP rights, but ignores them in others. Its long-held position is that IP is to be used as a "tool to meet the country's goals." China's strategy has been to use its marketing position of being the second largest economy on the planet with hundreds of millions of consumers to lure foreign companies into sharing their technology. It is gaining knowledge in cutting-edge technologies, such as microchips and electric cars. Once China becomes a leader in these technologies, it will use the enforcement of IP to "defend its position against rival economies." China's President Xi Jinping has been strengthening the country's IP laws. China has an ambitious plan, called Made in China 2025, to become a global leader in advanced industries, such as robotics and medical technology. It began about 40 years ago, when leader Deng Xiaoping opened the Chinese economy to foreigners, and "obtaining ideas and inspiration from overseas" became its priority. Sometimes, China will use its increasing financial position to buy into new technologies. Other times, it reverse-engineers what it wants, which has brought the ire of the Trump administration. The United States Trade Representative accused China of infringement, and President Trump authorized an investigation into the "widespread infringing activity." The Chinese Ministry of Commerce said that "China will absolutely not sit by and watch, will inevitably adopt all appropriate measures, and will resolutely safeguard China's lawful rights." Specialized courts have been created to handle IP disputes in the country. Subsidies have been awarded to entrepreneurs who file patent applications. There have been concerns by trade groups and other governments that its strategy is protectionist, calling for the United States to implement the same.


Below, for your browsing convenience, the categories are divided into Entertainment, Arts, Sports, and Media:


Hackers Briefly Seize HBO's Twitter Account in the Latest in a Series of Breaches

A group called OurMine hacked several HBO Twitter accounts in yet another security breach at the cable channel. It specifically hacked accounts from Game of Thrones and Girls. Although account hacking is to be expected in today's climate, HBO has been hit several times in recent weeks. Earlier this summer, a hacker who goes by the name "Mr. Smith" released proprietary information of several HBO shows, like Ballers and Curb Your Enthusiasm, plus the emails of an HBO executive. HBO quickly regained control of the accounts hacked by OurMine, within an hour. The hackings by Mr. Smith and OurMine do not appear to be related, according to an HBO spokesperson.


Streaming Services Struggle to Root Out Music That Incites Hatred

The Stockholm-based streaming service Spotify removed an undisclosed number of songs that it said incited hatred and violence in response to the killing at the white supremacist rally in Charlottesville. Hatecore, or white-power rock bands, have been around for years, gaining wide public attention after the 2012 killing of six people at a Sikh temple near Milwaukee by a hatecore band guitarist. The Southern Poverty Law Center identified over 50 hatecore bands in its 2014 report. Apple responded quickly by removing the songs from iTunes. However, Spotify and Amazon have been slow to respond. The difficulty is distinguishing the types of categories in the massive volume of online content, particularly on YouTube. A senior research analyst with the Anti-Defamation League, Mark Pitcavage, stated: "Identifying National Socialist black metal from regular black metal is not always easy." On YouTube, where users upload content themselves and the company's policy "relies on users to flag offensive content for removal," hate groups have been able to thrive.


Comedian Sues Neo-Nazi Daily Stormer as Site Resurfaces From Dark Web

Dean Obeidallah, a comedian and writer, filed a defamation lawsuit against The Daily Stormer, a neo-Nazi website. The website was recently removed from Google and GoDaddy for its offensive article about the activist who was killed during the white supremacists' rally in Charlottesville. It resurfaced with a Russian domain name, dailystormer.ru. Obeidallah, an American Muslim, is a SiriusXM radio host and political commentator. He was noticed by The Daily Stormer for a 2015 article he wrote "that called for the GOP to denounce white nationalists who were openly supporting Donald J. Trump's presidential candidacy, including The Daily Stormer." The website responded by calling Obeidallah a terrorist. His recent encounter with the website didn't mention The Daily Stormer by name, but asked "why Donald Trump wouldn't use the phrase 'white supremacist terrorism'." This time, The Daily Stormer fabricated tweets appearing to be written by Obeidallah "and posting an article titled 'Dean Obeidallah, Mastermind Behind Manchester Bombing, Calls on Trump to Declare Whites the Real Terrorists'." Obeidallah's attorney, Johnathan J. Smith, stated that The Daily Stormer's Russian website being hosted outside of United States territory makes it a challenge to hold it accountable. Cloudflare makes it possible to hide a web server's location, as it is a performance and security service provider. However, Cloudflare has now terminated The Daily Stormer, an action approved by its CEO, Matthew Prince, who states that his decision is "dangerous in its implications for freedom of speech and due process." However, when The Daily Stormer claimed that Cloudflare was "secretly supporters of their ideology," the company could not remain neutral. Obeidallah's complaint alleges libel as well as intentional infliction of emotional distress, and names the publishers of The Daily Stormer as defendants. He is seeking compensatory damages and a jury trial in the United States District Court in the Southern District of Ohio.


Taylor Swift Spoke Up. Many Sexual Assault Survivors Were Listening

Taylor Swift, the pop superstar, won her assault and battery case against David Mueller, a former radio host. Mueller originally sued Swift for falsely accusing him of groping her in 2013 and causing him to lose his job. Swift countersued for assault and battery, testifying that "Mr. Mueller had reached under her skirt and grabbed her backside while posing for a photo at a pre-concert meet-and-greet." Professionals who work with sexual assault survivors who have been following the case acknowledge that Swift's high profile and compelling testimony has shifted the national dialogue. Fatima Goss Graves, the president and CEO of the National Women's Law Center, found it exciting to see someone dismantle harassment, blaming, and shaming commonly experienced by sexual assault survivors. She stated that Swift "effectively and persistently" reminded everyone of Mueller's conduct. Mee, staff attorney at SurvJustice, a nonprofit that works with sexual violence survivors, said that Swift challenged the notion that there is a "perfect victim" of assault by not appearing quiet, prim, and conservative during the trial. Terri Poore of the National Alliance to End Sexual Violence sees the potential in the needle being moved on "what kind of behavior is not being tolerated"--now that Swift's case is added to the discussion along with the Fox News firings, plus the spotlight on harassment in the military and tech industry--but admits that more needs to be done.



A Month Before The Deuce Debuts, Its Creator Faces a Real Crime Drama

Marc Henry Johnson, creator of the HBO series The Deuce, will be sentenced in the Federal District Court in Manhattan for his role in the death of Dr. Kiersten Rickenbach Cerveny. Johnson, a revered television producer, plead guilty "to acting as an accessory to drug distribution by moving Dr. Cerveny's body" in October 2015, when the Long Island dermatologist died of a cocaine overdose. Johnson had brought Dr. Cerveny to the apartment of James Holder, his drug dealer, where the overdose occurred. The court filings read like an episode from one of Johnson's TV series, detailing how Johnson brought an already intoxicated Dr. Cerveny to the drug dealer's apartment, where they continued to drink and use cocaine. Johnson and Holder removed the obviously distressed doctor from the apartment, who then proceeded to collapse in the stairwell. Holder attempted CPR, and the two carried her to the lobby, where they called 911, and left her to the paramedics without explaining her drug use. Dr. Cerveny then died in the vestibule. Last December, Holder plead guilty and was already sentenced to five years in prison. Johnson's lawyers filed arguments for leniency and submitted over 70 letters of support. His fate will soon be determined.


Netflix Signs Shonda Rhimes in Counterpunch to ABC and Disney

Shonda Rhimes, creator of Grey's Anatomy and Scandal on ABC, signed a deal with Netflix. In a surprising blow to Disney, ABC's corporate parent, Rhimes will bring her ShondaLand production company to the streaming service. Disney recently announced plans for its own streaming service, which will force the removal of Disney and Pixar from the Netflix platform. Rhimes, who has been with ABC for over 10 years, built an "entire Thursday-night lineup...dubbed #TGIT."



Arts Committee Resigns in Protest of President Trump

The President's Committee on the Arts and the Humanities no longer has any members--all 16 resigned. In a letter to the President, the committee members called Mr. Trump's recent response to the Charlottesville incident as "hateful rhetoric." The 16 members of the committee, which was originally created under President Reagan to advise the White House on cultural issues, were appointed by President Obama. They stayed on with President Trump with the hopes of being able to do good from within his administration. In the aftermath of President Trump's support of hate groups and terrorists who killed a fellow American at the white supremacist rally, the committee asked President Trump to resign along with them. The White House stated that President Trump was going to disband the committee anyway.


Tiffany Rings at Costco? Not Now, or Ever, Says Jeweler

Costco, the big-box retailer, was ordered to pay Tiffany, the high-end jeweler, $11.1 million for trademark infringement (plus interest) and $8.25 million in punitive damages. A jury awarded the damages in October 2016 in response to Tiffany's 2013 lawsuit against Costco for selling generic diamond engagement rings as "Tiffany" instead of "Tiffany setting" or "Tiffany style." When customers became upset upon learning that Tiffany did not make the rings, Costco's upper management was unperturbed. Federal District Court Judge Laura Taylor Swain issued her decision last Monday, ruling that "Costco is permanently prohibited from using Tiffany as a stand-alone term when selling its products." Costco plans to appeal the decision.


Stolen de Kooning Resurfaces More Than 30 Years Later

It was the day after Thanksgiving in 1985 when "Woman-Ochre," one of many Abstract Expressionist paintings by Willem de Kooning, was stolen from the University of Arizona Museum of Art. An investigation "pieced together" that a couple took the painting by having the woman distract a museum staff member, while the male cut the painting from its frame, but the theft was never solved. The painting was recently discovered by two antique dealers who purchased it at an estate sale. Buck Burns and David Van Auker returned the masterpiece to the museum when shop customers recognized it to be a de Kooning. Through a little online investigation of their own, they figured out that it was the stolen work, and called the FBI. Meg Hagyard, the museum's interim director, said that it was easy to confirm the painting, because they were able to match it with the original frame and remnants it had, and there was "evidence of previous conservation work that had been done." The museum did not disclose the value of "Woman-Ochre," nor would the unsuspecting antique dealers divulge how much they paid for the estate. The most recent de Kooning sale of "Interchanged" was in 2016, which reportedly sold for $300 million.


Polanski Accused of More Abuse

The film director Roman Polanski has been accused by another woman of sexual abuse from 1973, when she was 16 years old. "Robin," who is now 59 years old, is represented by attorney Gloria Allred. Polanski is currently under an international arrest warrant from 1978 for fleeing the country before receiving his sentence for unlawful sex with a 13-year-old girl, Samantha Geimer. In reaction to Geimer's recent request to Los Angeles Superior Court Judge Scott M. Gordon to drop the case, as Polanski is now 84 years old, "Robin" stated at her press conference that she wanted the world to know, as well as Geimer, that Polanski victimized another minor. "Robin" is not able to pursue her allegations legally, as the statute of limitations has expired.


Even for Philanthropists, Museums Can Make Art a Tough Give

William Jordan, an art historian and collector, had a relatively easy time donating a work by 17th-century master painter Diego Velazquez to the Prado Museum. He purchased the painting from a London auction house and enjoyed exhibiting it in his Dallas home for over 30 years. Recently, he donated the painting, valued at $6 million, to the Prado, which owns a substantial amount of the artist's works. The museum has already put the painting on exhibit. Jordan also received a special catalog of essays and photographs of the painting, and may receive a tax deduction. He is eligible for the deduction, because "the donation was made to the American Friends of the Prado Museum, a United States-based charity." Jordan's donation was smooth sailing, but not all donations go so smoothly. Professionals in the art world explain that it depends on the demand for the particular piece of art. If it is one that a museum needs, then the process will be "fairly painless." However, if the museum is ambivalent over the donation, there could be hoops to jump through, and the donation could be turned down. Furthermore, there is a real challenge of authenticity and fear of provenance that donors must overcome. Most institutions are leery of acquiring works that are not real. Some museums, in addition to the donated work, may ask for a financial contribution in the form of an endowment to assist with the work's upkeep. Another avenue is to donate to a charity "where the art may be displayed or sold to finance projects," like AIDS and HIV research. A collector who donates to a museum receives the full deduction. However, in donations to charities where "art is not central to the mission, the donor is eligible only for the value of the piece when it was purchased."



Child Custody Fight May Sideline Azarenka

Professional tennis player Victoria Azarenka may not be able to participate in the upcoming US Open because of a custody battle with Billy McKeague, the father of her 8-month old son. After playing Wimbledon, Azarenka withdrew from this week's Western & Southern Open, due to a California law that restrains taking a child across state lines once a custody matter has commenced. Amir Aharonov, a partner at Tinero, Aharonov, and Associates, states that "if one of them files an action, it automatically introduces a restraining order that restrains removal of the child outside of the state. At that point, as soon as someone files something, if the other party wants to remove the child, they need to get a specific court order or the other person's consent. That's routine." For Azarenka to participate in the US Open, she would have to leave her son behind, which she has stated that she is unwilling to do.


Former Vanderbilt Player Sentenced

Brandon Banks, a former Vanderbilt University football player, was sentenced for his June conviction of aggravated rape and aggravated sexual battery for the 2013 rape of an unconscious female student. He received the minimum sentence of 15 years in prison. Two other former players were convicted and received prison sentences of 16 and 17 years.


National Football League and Union Dig In Over Elliott Case

A National Football League (NFL)-appointed arbitrator, Harold Henderson, will hear Ezekiel Elliott's, the Dallas Cowboys running back, appeal of his six-game suspension. Tensions are mounting between the player's union and the NFL, with the league accusing the union of "spreading derogatory information" about Elliott's accuser--his girlfriend, Tiffany Thompson, who alleges that Elliott assaulted her--and the union charging the NFL with hypocrisy in the way it deals with domestic violence.


Cowboy's Ezekiel Elliott Appeals NFL Suspension

Ezekiel Elliott, recently suspended for six games for violating the NFL's personal conduct policy, has appealed that decision. The Dallas Cowboys' running back has been under investigation by the NFL for July 2016 allegations of assaulting his girlfriend Tiffany Thompson when he played for Ohio State. At the time, prosecutors did not arrest or charge Elliott, due to conflicting statements. Now with the appeal, the NFL has to schedule a hearing within 10 business days. Should the NFL maintain the suspension, "Elliott and the NFL Players Association could file a claim in federal court accusing the league of overstepping its authority." Other players who took the court route have not been successful. Tom Brady, quarterback for the New England Patriots, and Adrian Peterson, running back for the New Orleans Saints, both had their multi-game suspensions upheld.



Roger Goodell Tries to Balance Different Viewpoints in Anthem Protests

NFL Commissioner Roger Goodell took questions on Monday from Arizona Cardinals club seat holders. He was asked about the continuation of protest during the national anthem by several players, including Marshawn Lynch, Oakland Raiders running back; Michael Bennett, Seattle Seahawks defensive end; Robert Quinn, Los Angeles Rams linebacker; and Colin Kaepernick, a quarterback who is currently without a team. Goodell stated that: "The national anthem is a special moment to me. It's a point of pride. But we also have to understand the other side, that people do have rights, and we want to respect those." One season-ticket holder, Bruce Olson, did not share Goodell's position, stating: "The thing is all he has to do is stand up for two minutes and he can still have whatever beliefs he wants." Other issues addressed by Goodell included Ezekiel Elliott's recent six-game suspension due to domestic violence allegations, a rule change allowing more public displays of celebrating big plays, and concussions.


Review Finds That University Followed Policy

The Dorsey and Whitney law firm provided its review of the University of Minnesota's suspension of 10 football players. Although it found "weak leadership" in the coaching staff, plus administration and regents needing improvement in the handling of the boycott, the legal review stated that the university followed the law and policy properly in response to sexual assault allegations.


Police Release Woods' Toxicology Report

Tiger Woods' toxicology report from his May arrest has been released. It shows that he had two painkillers, two sleep drugs, and the active ingredient in marijuana in his system. He received a DUI for the incident and is "scheduled to plead guilty to reckless driving and will enter a diversion program."



Cambridge University Press Bends on Censorship, Pulling Articles on Site in China

President Xi Jinping's 2016 announcement that all media content in China must come under the Communist Party's "guidance" has hit the academic world. Cambridge University Press succumbed to Beijing's pressure and removed over 300 articles from its China Quarterly, "an academic journal run by the Press." In a statement from the Press, it was confirmed that the deletions related to the "1989 Tiananmen Square massacre, Tibet, Xinjiang, Hong Kong and the Cultural Revolution," plus it removed from its site over 1,000 ebooks. Dr. Tim Pringle, editor of the journal, stated that "it's a real pity that as China goes out to the world, it is accompanied by restrictions on academic freedom." The Press has vowed to combat the censorship with authorities. However, more censorship is expected to reach other media outlets. Online searches on JSTOR, a digital library used globally by academics, was also blocked. David Bandurski, the co-director of the China Media Center, states that "given Xi Jinping's determination to rein in dissenting views in the information space, foreign publishers are misleading themselves if they believe they can escape pressure like that facing China Quarterly."


Fatal Protest Forces Media to Draw Line

Google, Twitter, GoDaddy, and online publications decided to draw the line on what they find to be "content that incites violence." The Daily Stormer, an American neo-Nazi website, was shut down by Google and GoDaddy for mocking the death of Heather Heyer, the peace activist who was mowed down by a neo-Nazi during the white supremacist rally in Charlottesville. Other online publications, such as Fox News Nation, are following suit by taking down what they consider to be "inappropriate videos." Facebook, Reddit, and Discord prohibited neo-Nazis and white supremacists from using their sites to spread hatred and, more alarmingly, to organize. The Associated Press asked other media outlets to "avoid using the term 'alt-right'," which is a branding tactic to "disguise racists aims." Major credit card companies and crowdfunding site GoFundMe are also drawing the line by ending their financial services agreements with "extremist sites" and shuttering campaigns for funds of white supremacists. The success of the democratization of information--by allowing anyone with an internet connection to have a platform--brings about the challenge of regulating extreme content. The sheer volume of content uploaded online every minute makes policing difficult, but more importantly, free speech rights provided by the First Amendment make it troublesome to determine "what some may find offensive and what is objectively dangerous speech."


Editor Says He Did Not Intend to Blame Palin for Shooting

Sarah Palin's defamation suit against The New York Times claims that an editorial linked her to the 2011 mass shooting by a gunman at an Arizona baseball field where Republican politicians were preparing for an annual game. According to Palin, "the editorial contradicted other articles in The Times about her political actions and the Arizona shooting and cited several examples of articles that dismissed the idea that political rhetoric had provoked the rampage." James Bennet, editor of The New York Times editorial page, introduced the Palin statements to Elizabeth Williamson, the initial drafter of the editorial. Judge Jed S. Rakoff of the Federal District Court for the Southern District of New York is hearing the newspaper's motion to dismiss and, in an unusual move, is collecting evidence. According to Judge Rakoff's order, the testimony of the author of the editorial "would help him determine whether Ms. Palin's defamation complaint contained 'sufficient allegations of actual malice'." It was The New York Times v. Sullivan [376 U.S. 254 (1964)] decision that established the "actual malice" standard, holding that "public officials had to show that news organizations had knowingly published false information or had acted with 'reckless disregard' for the truth." Bennet testified that he was not aware that articles in The New York Times had "dismissed the connection between Ms. Palin's political activities and the shooting." Judge Rakoff is expected to rule on the motion to dismiss by the end of the month.


Justice Department Demands Data on Visitors to Anti-Trump Website, Sparking Fight

Through its federal investigation of the protests during President Trump's inauguration, the Justice Department is trying to force DreamHost, an internet hosting company, to "turn over data identifying all the computers that visited its customer's website and what each visitor viewed or uploaded." disruptj20.org, "a clearinghouse for activists seeking to mobilize resistance to Mr. Trump's January 20th inauguration," is hosted on the internet by DreamHost. A "sweeping search warrant in pursuit of information about people who organized or participated in rioting" has been issued by retired District of Columbia's Superior Court Judge Robert P. Wertheim. For the most part, the massive protests at the inauguration were peaceful. However, there was a small group of anarchists who threw rocks at police, broke windows, and even set one limousine on fire. Felony charges have already been lodged against more than 200 people for the damages. DreamHost is fighting the warrant. Its attorneys argued in court filings that the warrant violates the First and Fourth Amendments by being unconstitutionally overbroad and "could make innocent people afraid to view or communicate with websites containing political content."


How a Conservative TV Giant Is Ridding Itself of Regulation

On the day before President Trump took office, chairman of Sinclair Broadcast Group, David D. Smith, invited Ajit V. Pai, then only a commissioner of the Federal Communications Commission (FCC), to the headquarters of the largest owner of television stations in the United States. It wasn't long after the inauguration that Pai was named chairman of the FCC, and quickly started to dismantle "restrictions on television stations' sharing of advertising revenue and other resources." According to records obtained by The New York Times, the relaxing of the rules was the topic of discussion at the fateful meeting. Pai has been on a roll ever since his appointment, easing "the cap on how many stations a broadcaster can own, freezing a program for broadband subsidies for low-income families, rolling back net neutrality rules and acting on regulatory issues that will reshape other multibillion-dollar businesses." A review of Pai's correspondence, obtained under the Freedom of Information Act, shows a strong alignment between his actions and the business objectives of Sinclair. Pai's spokesperson, Tina Pelkey, said that he "has not taken steps to help Sinclair specifically," but that "his concerns relate to the broadcast industry generally." The National Association of Broadcasters has pushed for similar changes. Free-speech advocates voice concerns with Pai's rollbacks, raising the alarm that consumers will suffer without the restrictions. Sinclair, which is "known for its right-leaning commentary with features from its 'Terrorism Alert Desk'," will now be able to proceed with its merger plans to buy Tribune Media, also a large owner of stations, which would give Sinclair reach into 7 out of 10 homes through 200+ stations across the country. This tight relationship between Sinclair and the FCC, plus the likelihood of the Sinclair-Tribune merger, has raised opposition from consumer groups, former regulators, and other media outlets including conservative media.


In China, Facebook Tests the Waters With a Stealth App

China has been blocking Facebook for some time. First, it was banned in 2009. Then Instagram, its photo-sharing app, was banned in 2014. Last month, its messaging app WhatsApp was partially blocked. Facebook has now decided to try a new tactic. It released a new app called Colorful Balloons through a Chinese company called Youge Internet Technology, without any disclosure that it is affiliated with Facebook. The release of this stealth app doesn't come without risks. It's not clear if the Chinese government is aware of Facebook's involvement in Colorful Balloons. This business strategy could jeopardize the trust Mark Zuckerberg, Facebook's CEO, has been fostering with the Chinese government. The upcoming Chinese Communist Party's key meeting will be held this fall. Given the recent crackdown on internet use in China, the Colorful Balloons app may not yield a breakthrough after all.


August 26, 2017

The Reforming American Immigration for a Strong Economy (RAISE) Act: A new beginning or a waste of time?

By Michael Cataliotti

Since Mr. Trump unveiled the Reforming American Immigration for a Strong Ecomomy (RAISE) Act,[1] as revised and sponsored by Senators Tom Cotton and David Perdue of Arkansas and Georgia, respectively, it has garnered a decent amount of coverage, a significant portion of which seems to indicate that the bill will not pass the Senate due in large part to its draconian provisions. This was expected, remains unsurprising, and presents more of an attempt to cater to certain portions of the American electorate than produce something valuable for the country as a whole.

Fundamentally, it is important to note that the RAISE Act, as amended, concerns green cards only. None of the provisions relate to the non-immigrant visa categories. Therefore, many of our artists, entertainers, entrepreneurs, and athletes who seek to enter the U.S. for limited durations would not be affected by it. However, should any of those individuals want to obtain a green card, then she or he, particularly artists, entertainers, and athletes, would likely feel a burning sensation from the RAISE Act. Accordingly, some of the important aspects of the RAISE Act are that it seeks to:

1) Reduce the number of green cards issued from one million to 500,000;

2) remove the ability for siblings and adult children of U.S. citizens and permanent residents (green-card holders), to seek permanent residency;

3) remove parents from the definition of an "immediate relative" who may seek permanent residency;[2]

4) decrease the age of an immediate relative child from 21 to 18 years;

5) impose a cap on the number of visas issued to refugees per year to 50,000;

6) terminate the diversity-visa lottery; and

7) terminate all employment-based categories and replace them with a "points-based system" (with a special section that replaces the EB-5 Immigrant Investor program).

The "points-based system" favors those individuals who are: (i) between 26 and 30 years of age, (ii) fluent in English, (iii) well-educated at the Master's level or higher from a U.S. institution, (iv) specialize in the STEM industries [3], and (v) compensated by a salary that is three-times the median household income of the state in which she or he is going to be employed. Any potential applicant must be at least 18 years old and able to demonstrate that she or he can achieve at least 30 points (out of a maximum of 100) [4].

While this is obviously not ideal for our athletes, artists or entertainers, it is worth noting that anyone who has earned an "individual Olympic medal or placed first in an international sporting event in which the majority of the best athletes in an Olympic sport were represented" would earn 15 points under the proposed system, so there's always that. [5]


[1] https://www.cotton.senate.gov/files/documents/170802_New_RAISE_Act_Bill_Text.pdf; https://www.americanimmigrationcouncil.org/sites/default/files/research/the_raise_act_what_lies_beneath_the_proposed_points_system.pdf.

[2] While this falls in line with the preceding sentence, it is separated here, because it goes to the heart of one fundamental point raised by many people opposed to immigration: the ability of an American child to sponsor her or his parents for permanent residency (so-called "anchor babies", as vile as the term may be).

[3] "STEM" industries means the Science, Technology, Engineering, and Mathematics industries.

[4] Thanks to the folks at TIME Magazine, we can all see easily where we would fall on the scale.

[5] https://www.cotton.senate.gov/files/documents/170802_New_RAISE_Act_Bill_Text.pdf, page 32, section 220(f)(2). In addition, it is worth noting that "Extraordinary Ability" includes "25 points if the applicant is a Nobel Laureate or has received comparable recognition in a field of scientific or social scientific study, as determined by the Commissioner of U.S. Citizenship and Immigration Services".

Week in Review

By Eric Lanter

New York Judges Wants Bigger Role for Female Lawyers

Judge Jack Weinstein of the Eastern District of New York encourages a rule change that he uses, and hopes that other judges will adopt. He encourages more junior lawyers, which women tend to be, have the opportunity to argue motions or question witnesses, even if it means that multiple counsel will be involved in representing clients in proceedings. The hope is that this rule change will allow women the opportunity to improve their skills in arguing cases and to more often rise to the top of the profession.


Interior Secretary Proposes Shrinking Four National Monuments

Secretary of the Interior Ryan Zinke proposed reducing the size of four national monuments, which were designed under Presidents Obama, Clinton, and Bush. It is a rare step for an administration, but has occurred before. The legal basis for doing so is the Antiquities Act of 1906, and prior reductions in the size of national monuments were not challenged in court. One of the areas proposed to be reduced is the Bears Ears National Monument in Utah, which President Obama designated as a national monument. Some have argued that the designation impedes grazing, mining, and drilling that is crucial for the local economy, but others say that it protects the wildlife and conserves the land for others, like the nearby Navajo nation. One advisor to the Native American tribes told the New York Times that if the reductions took place, the tribes have a complaint ready.


Identity Thieves Hijack Cell Phone Accounts to Steal Virtual Currency

In the past few years, identity thieves have increasingly taken to calling phone service providers like Verizon, Sprint, and T-Mobile, requesting to transfer phone numbers to a devices under their control. Then, the thieves have access to the various accounts, including users' virtual currency like Bitcoin, and have drained hundreds of thousands of dollars at a time. This occurs even as service providers have added protections to accessing accounts, causing concern for those who invest in virtual currencies.


Teaching Kids Coding, By the Book

A nonprofit organization, Girls Who Code, has taken hold through its summer programs and afterschool sessions in teaching young women how to write computer code and develop software. Reshma Soujani, the founder of the nonprofit, has taken to a new medium to spread the knowledge of coding: books. She is set to release 13 books over the next two years that teach children and young adults how to code, joining a growing sector of literature that has attracted an audience of millions.


Former Attorneys General Call for Condemning Hatred

A group of 67 former attorneys general from 36 states as well as the District of Columbia, Guam, and Puerto Rico, signed an open letter to leaders to denounce hatred throughout the country. This open letter comes 40 years after one of its signers, Alabama Attorney General Bill Baxley, sent a letter to a member of the Ku Klux Klan denouncing the group in vulgar language, which influenced others. The open letter does not name any specific public official, but undoubtedly implicates President Donald Trump following the death of a woman in Charlottesville, Virginia at the hands of a white supremacist.


New Balance Wins $1.5 Million in Landmark China Trademark Case

A Chinese court awarded the shoe company New Balance with $1.5 million, finding that three companies had infringed on the company's trademark. Each of the companies sold shoes that had the same angled "N" on the shoe, creating consumer confusion and leading to a dilution of the brand. This case comes after Chinese laws changed in 2014, which increased the potential award amount for intellectual property infringement. One intellectual property attorney who practices in China supposes that this is not an anomaly, and other cases will follow with similar results.


In China, Company Names Cannot Be a Paragraph

The Chinese government announced that it will no longer accept businesses registering with names as long as a paragraph, in an effort to clean up active businesses in the country. This is part of a broader effort to enforce a more organized, efficient business sector in a country that is known for being authoritarian and controlling. Analysts expect that this effort will lead to more clarity for entrepreneurs and business owners.


Chinese Activist Confesses to Subversion in Chinese Show Trial

A Chinese human rights lawyer, Jiang Tianyong, confessed to an attempt to overthrow the Communist government in a show trial broadcast throughout the country. His wife and supporters claimed in response that he was tortured and forced to make the confession, drawing on his defeated body language during the confession. Analysts characterize the confession as neatly fitting President Xi Jinping's view of China, which has soundly rejected Western ideas of liberalism and freedom. While similarly positioned activists confessed to subverting the government, they received prison terms of up to 7.5 years, but it is possible that Tianyong's could be less or suspended altogether.


Below, for your browsing convenience, the categories are divided into: Entertainment, Arts, Sports, and Media:


Cosby Hires a Former Lawyer for Michael Jackson and Faces Retrial in Spring

Bill Cosby's legal team made several changes. Two lawyers who represented him through his sexual assault trial involving Andrea Costand ceased representing him, and he hired three new attorneys, one of which represented Michael Jackson in his 14-week child molestation trial in 2005. Thomas Mesereau, Jr. is based out of Los Angeles, and joins two other attorneys based out of Nevada and Pennsylvania to round out Cosby's legal team. While his retrial for the sexual assault was set for November 6, 2017, the judge in Montgomery County Court of Common Pleas has announced that the trial will not begin until March 2018, with a jury selected from that part of Pennsylvania, rather than a jury selected from elsewhere in Pennsylvania (which was done in the first trial and resulted in a hung jury).



Judge Denies Request to Drop Roman Polanski Sexual Abuse Case

Roman Polanski requested a Los Angeles County Superior Court judge to drop a sexual assault case against him, which would allow him to vacate an international arrest warrant. The charges are related to his alleged sexual assault of a minor in the 1970s. An alleged second victim emerged, however, in the midst of considering Polanski's request, prompting the judge to deny Polanski's motion and allow the case to continue.


Apple, Citing Sanctions, Removes Popular Apps from Iran

Apples removed apps from its App Store that are known to be popular in Iran, citing the American sanctions on Iran, which prohibit American businesses from violating the economic embargo. Many Iranians obtained iPhones and other Apple products from Dubai or Hong Kong, and then download apps like Snapp, a ride-hailing app, to use in Iran. Some of the app developers are located in Iran, and compare the removal of the apps to if Uber was deleted from the American App Store. Apple confirmed the removal of the apps, but declined to further comment.


Crowded TV Marketplace Gets Ready for Three Tech Giants

Facebook, Google, and Apple are preparing to enter into the crowded television market, ensuring a saturation in the market, given that Netflix and Amazon have enjoyed success competing against the major networks. As the number of streaming platforms is ready to expand, some networks, like A&E and WGN, announced that they will no longer be producing scripted television shows. With Apple ready to invest $1 billion and Google ready to pay $3 million per episode in a drama series, the competition in the market is sure to increase soon.


Disney, Ditching Netflix, Grabs a New Key to the Kingdom

Disney acquired a tech company for $1.6 billion that will lead it to have the potential for direct-to-consumer streaming, comparable to Netflix. Disney currently has several shows on Netflix, which has provided a significant revenue source for the company, but it appears to be taking a step toward having its own platform for its content. Analysts expect that the streaming service will be successful, given Disney's history of good investments (like Lucasfilm, Marvel, and Pixar), but investors worry that splitting from Netflix at a time when many of the biggest actors and producers are shifting toward Netflix may pose a problem for Disney's streaming plan.



In New York City, Museum Boards are Strikingly White

As part of the Cultural Plan, Mayor Bill de Blasio announced that the museums and cultural institutions in New York City must begin to reflect the diversity of the population. The boards of most museums in the city consist of one-fourth people of color, while the city's population is two-thirds people of color. The mayor
indicated that the NYC's arts and cultural funds will be directed toward institutions that fulfill the city's goal of increasing diversity of the museum boards going forward.


Move, Not Destroy, Confederate Monuments

Holland Cotter calls for the moving of Confederate monuments to museums or other preservation institutions to educate and inform as to the context of the monuments, rather than destroy the monuments altogether. Following the death of a woman in Charlottesville, Virginia who was protesting against white supremacists, there has been introspection as to what should be done with Confederate monuments, like the statue of Robert E. Lee, at the center of those protests. Some have said that the monuments should remain where they are, with placards giving a fuller context to their meaning, while others have said that they should be moved and space should be made for other stories to be told through art. While some protesters have taken to destroying monuments themselves, as was done in Durham, North Carolina, Cotter does not see that as a solution, as the monuments have an intrinsic value that an institution like a museum can harness and display.


Who is Really Making 'Chihuly Art'?

Dale Chihuly is a Seattle-based artist who has enjoyed success for his paintings and glass works. He and his wife operate a company of artists that have produced a high volume of art. One contractor has filed suit against Chihuly, claiming that Chihuly copied works of art without giving the contractor credit or compensation. However, Chihuly claims that an underling must have created the work. This issue touches on a narrow part of the law: inadequate credit being the basis for a copyright infringement requires the copyright filer, Chihuly in this case, to have filed intending to share authorship with his underling that produced the work. One Los Angeles lawyer hypothesized that most in the industry knew, that given the volume of works coming from Chihuly's company, he had many artists working for him and could deny the intention of sharing authorship for the work.


Venezuela Cancels Gustavo Dudamel Tour After Criticism

Venezuelan conductor Gustavo Dudamel has increasingly denounced the Venezuelan government for the turmoil that has plagued the country in recent months. The government finally responded, canceling his and the National Youth Orchestra of Venezuela's upcoming United States tour. Nicolas Maduro, the president of Venezuela, personally issued a statement directed at Dudamel for his comments denouncing the government and seeming to call for an end to the Maduro regime.


Russia Detains Theater Director, Adding to Fears of a Crackdown

Russian authorities detained Kirill S. Serebrennikov, an acclaimed Moscow theater director. He is alleged to have been part of a conspiracy to misappropriate over $1 million in government funds that went to his production company, Studio Seven. He had been previously detained and searched, but released without charges, when investigators apparently had not found proof of any wrongdoing. Then, an accountant testified in a court proceeding that Serebrennikov had in fact been involved in the conspiracy, prompting investigators to pounce. While many in the theater and arts community have come to his defense, it is not yet known what charges he will face and when he will have the opportunity to defend himself.


Former Artistic Director Says Geffen Playhouse Forced Him Out

Randall Arney, the former artistic director of Los Angeles' Geffen Playhouse, filed suit against the institution. Arney claims that after 18 years of working for the Playhouse, he disclosed a medical condition earlier in 2017, and within months, was fired. He alleges that the firing was discriminatory on the basis of age and medical condition. He also alleges that despite the institution's characterization that it was an amenable end to his employment, it was nothing but a firing.


Refugees Suffering 'Auschwitz on the Beach?' Germans Say No

Italian artist Franco Berardi has had his performance called "Auschwitz on the Beach" canceled, after its comparison between the Nazis' extermination of Jews to the contemporary treatment of refugees to Europe. The comparison drew ire from Germans and those in the arts community, as many found it to be tasteless, given the millions of Jewish people who died in the Holocaust. This decision comes at a time where anti-Semitic and xenophobic rhetoric is increasing in Europe.


Is Edinburgh's Fringe Far Enough Out There?

The Edinburgh Fringe Festival has grown from a small sideshow to Edinburgh's International Festival to being one of the biggest gatherings in the world, alongside the Olympic Games. It attracts thousands who perform theater, comedy, and musical performances throughout hundreds of theaters in the city. It brings a wealth of tourism, fed by companies like AirBnb. Although it is on its 70th annual show, some wonder whether it has become too big for what it is, as it brings hundreds of unlicensed buskers and performers to the streets in addition to the thousands of arranged shows. Some shows sell out, while others do not attract much attention. Some organizers wonder whether it is time to rethink the Festival and reshape it going forward.



Azarenka Pulls Out of U.S. Open Over Custody Dispute

Belarusian tennis star Victoria Azarenka withdrew from the U.S. Open, which is set to begin within a matter of days. She is facing a custody dispute with her son's father in California, and in the midst of that, the judge required her and the father to remain in California until the matter is resolved.


New Lawsuit Alleges Baylor University Failures Under New Rape Policies

A female student at Baylor University filed a federal action against the school following its revised policies for investigating reported sexual assault. This is the eighth action of this kind filed against the school, and comes after the student reported a sexual assault, but had the investigation turn against her, rather than against her alleged assaulter. The suit alleges that despite her undergoing a sexual assault examination, meeting with a Title IX examiner, and reporting the information to Baylor police, the police still did not file charges against the alleged assaulter.


UFC Champion Jones Faces Another Doping Offense

Former UFC champion Jon Jones was charged with a doping offense leading up to his championship bout with Daniel Cormier. Jones is considered to be one of the best fighters, winning 23 of his 24 fights since 2009. However, he previously had a doping offense and was banned for one year following.



Lawyers to See Venus Williams' Cell Phone Data After Crash

Tennis star Venus Williams' attorneys agreed to produce cell phone records for the 2.5 hours surrounding the crash that occurred earlier this summer and resulted in the death of a 78-year old man in Florida. Her attorneys insist that she was not distracted while driving at the time of the accident.


Barcelona Sues Neymar for Breach of Contract

The Spanish soccer club Barcelona sued Brazilian superstar Neymar, after his transfer from Barcelona to Paris Saint Germain for the bonus that the former paid to him just months prior to his transfer, when he agreed to a five-year extension. The complaint has alleges that Neymar is liable for the $10 million bonus, and if he does not pay, then Paris Saint Germain is also liable. Paris Saint Germain denies exposure because it lawfully offered Barcelona 222 million euros, which triggered a release clause and allowed Neymar to be transferred away from Barcelona.



Pursuing Founder of Neo-Nazi Site

The Southern Poverty Law Center filed suit against a prominent neo-Nazi blogger Andrew Anglin for his role in relentlessly targeting a Jewish woman in Montana with anti-Semitic remarks directed toward her and her young son. However, serving him with the summons and complaint in the matter has been difficult: personal service impeded by his various homes and supporters who have made him thus far impossible to track, certified mail from the court clerk has been returned as undeliverable; and regular mail from the clerk has been returned as undeliverable. There is the potential for the plaintiffs to have to effect service by publication, putting notice of the action in a newspaper for a series of weeks. One legal expert called the measure very rare for a civil rights action, as it is more often used for consumer debtor cases.


After Criticism, Publisher Reverses Decision to Bow to China's Censors

Cambridge University Press announced that it will restore access to hundreds of academic papers that China's censors deemed to be offensive. The turnabout comes after academics and other publishers pressured Cambridge to reverse course, claiming that it was feeding into the Chinese government's agenda of censoring material it deemed dangerous to its people and allowing that to happen with academic papers set a bad precedent for the industry. Cambridge restored access and issued an apology, even making access to the papers, which usually have a steep cost to access, free for everyone.


Danish Submarine Inventor Says He Buried Swedish Journalist at Sea

The Swedish journalist Kim Wall is believed to be dead. She joined Danish submarine inventor Peter Madsen for a trip on his submarine in the water close to Copenhagen. Although Madsen initially told investigators that he dropped Wall off in the harbor, investigators found a female torso in the water near Copenhagen, which is believed to be hers. Madsen then changed his story to say that there was an accident on the submarine, and he buried her at sea. The details of her death and Madsen's role in it have yet to be fully uncovered. However, prosecutors intend to pursue the equivalent of a murder charge against Madsen for his role in Wall's death.



Germany Condemns Holding Turkish-German Writer in Spain

Turkish-born German citizen Dogan Akhanli was arrested in Spain at the direction of Turkey's government. Turkey indicated that it is seeking extradition, but the grounds for the extradition are not clear. Akhanli was released within a day of his arrest, but ordered to remain in Spain. Germany's Chancellor Angela Merkel denounced the decision, calling it an abuse of the Interpol system. The European Center for Press and Media Freedom also released a statement in support of Akhanli.


Los Angeles Times Ousts Editor-Publisher and Top Managers

The Los Angeles Times announced that its editor-publisher and several top executives were fired in a broader effort to move the newspaper more toward a model that was successful for the New York Times and Washington Post. The Los Angeles Times has had difficulty transitioning from print to digital, with its ad revenues and subscriber counts, and its owner views the firings as a step toward a smoother transition. The paper also will begin having broader coverage, including more national events and news from Washington.


ESPN Pulls Broadcaster and Encounters a Storm

ESPN announced that it pulled a broadcaster named Robert Lee from commentating the University of Virginia-William and Mary football game, solely because of the broadcaster's name. The Asian-American broadcaster happens to share the name with the Confederate general Robert E. Lee, and the game he was scheduled to broadcast involved the University of Virginia, which is located in Charlottesville, Virginia. ESPN has come under fire from both liberals and conservatives for its decision, but it is clear that the politics of the present moment have stretched beyond Washington and entered into more distant arenas, including the broadcasting booth.


Village Voice Ends Print Publication

After 62 years in print, the New York newspaper Village Voice announced that it will switch to being digital only. The newspaper has become increasingly less influential, but nonetheless was a launching pad for extraordinary journalists. The newspaper's website saw a recent increase in visitors, but still some worry whether the newspaper can survive without its ubiquitous red boxes throughout the city.


YouTube Removes Videos Showing Atrocities in Syria

YouTube came under fire for flagging videos for removal that show the battles and atrocities in the ongoing Syrian civil war. The videos were flagged as a result of an algorithm that YouTube uses to eliminate offensive content, but many of the videos from the Syrian civil war do not contain offensive or exceedingly graphic content. This fact has caused many to criticize YouTube, including the International, Impartial and Independent Mechanism (IIM), which is a legal team that combs through videos posted on the internet and forwards them to prosecutorial organizations for pursuing justice against wrongdoers. IIM, among others, argue that YouTube's actions is eliminating history before their very eyes, and impeding potential war crimes trials in the future.


Wall Street Journal Editor Admonishes Reporters Over Trump Coverage

The editor of the Wall Street Journal, Gerard Baker, was criticized for being too soft on President Donald Trump's administration. He has admonished reporters for suggesting so, but internal emails revealed that he has shaped the direction of stories to exclude opinion. Baker's perspective on the Trump administration may be shaped by the owner of the newspaper, Rupert Murdoch, who is known to be friends with the Trumps, but Baker himself has also been heard commenting about attending the same social events as the Trump family.


Chinese National Arrested on U.S. Hacking Charge

Yu Pingan of Shanghai was arrested at Los Angeles International Airport on the charge that he spread a malware that has been known to have led to the theft of security clearance records of millions of American government employees. An FBI agent submitted information for the complaint that Pingan gave the malware to two individuals who then used the software to steal the records from the government. Pingan's attorney stated that Pingan has no knowledge of the software, and that he is a teacher with no affiliation with the Chinese government.


Tech Companies Fight Online Radicalization

Law enforcement, tech companies, and lawmakers have sought to stop online radicalization in recent years, which has almost entirely targeted those who sympathized with groups like Islamic State. Now, they are targeting white supremacists like Dylann Roof, the man who murdered nine churchgoers in 2015. Groups have targeted radicalizing individuals who recently discovered the propaganda that fuels the groups and have had direct outreach to many of them, in the hope of providing them with a voice of reason. However, as effective as stopping online radicalization may be, experts emphasize that upbringing, as well as mental state, are significant factors to bring someone to act on behalf of any radical ideology.


August 29, 2017

Ninth Circuit Upholds Preliminary Injunction Against VidAngel's DVD "Filtering" Service

By Barry Werbin

In a decision issued in Disney Enterprises, Inc., et al. v. VidAngel, Inc. on August 24, 2017 [Disney v. VidAngel.pdf], the Ninth Circuit affirmed the grant of a preliminary injunction to stop VidAngel's ripping of DVDs, decrypting and copying them to its servers, and then filtering out objectionable content at the request of end users who could then stream the filtered content from VidAngel's cloud servers for $20. After viewing a stream, however, the end user would "return" it to VidAngel for a $19 credit. VidAngel then discards the filtered segments after the customer views them. The discs contained film and TV content owned by Disney and the other studio plaintiffs.

The Court held that the Family Movie Act of 2005 ("FMA"), 17 U.S.C. § 110(11), only exempted from copyright infringement filtered versions of content that is created from authorized versions, and the copies ripped to VidAngel's servers at that point became unauthorized and infringing, even though VidAngel originally purchased legitimate DVDs. VidAngel was also found in likely violation of the DMCA for circumventing the plaintiff's anti-circumvention technology. Finally, a fair use defense was rejected.

This was the first Ninth Circuit case to interpret the FMA. The Court emphasized that FMA authorized "'making imperceptible'--filtering--by or at the direction of a member of a private household of limited portions of audio or video content of a motion picture, during performances or transmissions to private households, 'from an authorized copy of the motion picture.'"

If VidAngel could meet this "authorized copy" requirement by simply starting with a lawfully purchased disc, it would open up a "giant loophole" in the statute and eviscerate its purpose. Indeed, observed the Court, Congress intended that FMA not impact "established doctrines of copyright law."

With respect to fair use, the Court found that: "Although removing objectionable content may permit a viewer to enjoy a film, this does not necessarily 'add[] something new' or change the 'expression, meaning, or message' of the film" so as to make it transformative. The District Court's ruling that market harm was presumed was also affirmed in light of VidAngel's commercial, non-transformative use.

About August 2017

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in August 2017. They are listed from oldest to newest.

July 2017 is the previous archive.

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