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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.


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This page contains a single entry from the blog posted on August 21, 2017 5:34 PM.

The previous post in this blog was Week in Review.

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