lawsuit Archives - Ramblin' with Roger

Sedition and other high crimes

“loser of the year”

The fact that the Supreme Court, as expected, rejected that absurd Texas lawsuit doesn’t fill me with the joy that it should.

Of course, the attempt to overthrow Joe Biden’s election victory was bogus. It is, presumably, again and yet again, the “end of the road” for the crusade to overturn the election. But America lost anyway.

His angry mob supporters spark terrorism fears. When he levels threats at the Republican Attorney General in Georgia, his rabid fans take him literally. “Brad Raffensperger… and his wife have received death threats, including by text message, and caravans have circled their house.”

People just trying to do their jobs

And, per a list from the New York Times:

* Dozens of his supporters, some armed, went to the home of Jocelyn Benson, Michigan’s Democratic secretary of state, and began shouting obscenities.

* On Twitter, his supporters have posted photographs of the home of Ann Jacobs, a Wisconsin official, and mentioned her children.

* In Phoenix, about 100 of his supporters, some armed, protested at the building where officials were counting votes.

* In Vermont, officials received a voice message threatening them with “execution by firing squad.”

* Seth Bluestein, a Philadelphia official, received anti-Semitic and violent threats after Pam Bondi, the former Florida Attorney General and ally of IMPOTUS, publicly mentioned him.

* A Georgia poll worker went into hiding after a viral video falsely claimed he had discarded ballots.

Reality?

* Gabriel Sterling, another Georgia official, received a message wishing him a happy birthday and saying it would be his last. In a later interview with Time magazine, Sterling argued that elected politicians could defuse the threats by acknowledging that the election was fair. “Leadership is supposed to look like grown-ups in the room saying, ‘I know you’re upset, but this is the reality.'”

The reality, of course, is not the intent of the “reality” star. It appears to be to foment the violence, and he has succeeded. I agree with the official who worries, “I don’t know how this ends without violence and death.”

And I lay it at the feet of the guy who said, both in 2016 and 2020, long before the votes were counted, that if he didn’t win, the elections must have been rigged. So only one-quarter of Republicans believe Biden actually won.

High crimes

These 40 days of denial and disinformation got me to look at 18 USC Ch. 115: TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES. It’s odd because it is the presumed, albeit outgoing, HEAD of the government that, one could argue is, per §2385, Advocating the overthrow of Government.

“Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

“Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Conspiracy

“Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

“Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.”

One could – and I do – make the argument that in the words of Garry B. Trudeau, He’s “guilty, guilty, guilty.” I’m generally not a fan of sedition acts, as they almost always dampen free speech. But when actions by a soon-to-be-retired high-ranking government employee threaten the very fabric of democracy, I accept it.

Wusses

So why did 126 Republican members of Congress and about a dozen and a half state attorneys general sign on to this Supreme Court travesty? Fear of what he can do with that over $200 million that he has raised, ostensibly to fight the”rigged” election.

But he’ll have plenty of leftover cash. Those Republicans not toeing the orange line might get a well-funded primary challenge in 2022. He’s taking names, he said, like a demented Saint Nicholas, seeing who’s naughty or nice, to him.

Sometimes he tells the truth. Maybe he WILL start his own media company to take on the suddenly non-compliant FOX. This will give him the visibility for those other Republicans who want to make a 2024 White House run, that it’ll be an uphill climb.

Can’t win for losing

This week, the prominent German news magazine Der Spiegel named him its “loser of the year”. This happened the same day Time magazine named President-elect Joe Biden and Vice President-elect Kamala Harris its “Person of the Year.”

“In an article titled ‘Der Verlierer des Jahres…’ the publication’s Washington bureau chief Roland Nelles and Berlin-based correspondent Ralf Neukirch described him as a ‘man who … was never concerned with the common good, but always with one thing — himself.’

“Nothing is normal under him. He refuses to admit defeat. Instead, he speaks of massive electoral fraud, although there is no evidence for it. The whole thing is not surprising. His presidency ends as it began. Without decency and without dignity.”

I contend, though, that IMPOTUS has won. From that NYT:

His “attempts to overturn the election result are very unlikely to succeed. For that reason, the effort can sometimes seem like a publicity stunt — an effort… to raise money and burnish his image with his supporters.

“And it may well be all of those things. But it is also a remarkable campaign against American democracy. It has grown to include most Republican-run states, most Republican members of Congress, and numerous threats of violence. The new centerpiece in the effort is [that] lawsuit.” And the cowardly Republicans who signed on are “‘inflaming the public’, causing many voters to believe — wrongly — that a presidential election was unfair.”

If you Google 1918 Germany, you’ll find several references to one of the most disastrous political lies of the 20th century. “Powerful conservatives who led the country into war refused to accept that they had lost. Their denial gave birth to…the Dolchstosslegende, or stab-in-the-back myth.

“Its core claim was that Imperial Germany never lost World War I. Defeat, its proponents said, was declared but not warranted. It was a conspiracy, a con, a capitulation — a grave betrayal that forever stained the nation.” The “lies” were perpetrated by the liberals and the Jews. “That the claim was palpably false didn’t matter.” This is not a path the US should follow.

As my friend Alan notes, “He spends every day successfully sabotaging the institutions of our government, which means he is sabotaging the health and safety of every human being in the country. He is the greatest threat to the United States in its history.”

This is what overt racism looks like

Ironic then that Trump refers to Judge Curiel as a “hater.”

Racism is one of those words so ugly that people will contort all logic to deny its existence, especially when it comes to themselves. So I was THRILLED when Leon Wolf, in the ultraconservative website Red State, wrote on 3 June: “This is What Overt Racism Looks Like.”

I am sorry, but there is nothing else to call this. The Wall Street Journal has… released an interview with Donald Trump in which Trump explains his repeated and continued attacks on Gonzalo Curiel, the judge assigned to the Trump University case. Curiel’s decision to release records related to the case in response to a public interest request filed by the Washington Post has clearly infuriated Trump…

In a rambling tirade against the judge…, Trump said, among other things, that Curiel was “a Mexican, we think.” (Curiel, as it happens, is from the Chicago area, but his parents are of Mexican heritage.) The WSJ finally got around to asking Trump the question that should have been asked from the first moment he mentioned the judge’s ethnicity, which was actually a couple months ago when Curiel refused to dismiss the case on summary judgment. That question, of course, is “Why would you bring up the judge’s ethnicity at all?”

An excellent question. Note that NOW Trump says his words were misconstrued. I call BS.

Trump’s answer was, shall we say, revealing:

…Mr. Trump said U.S. District Judge Gonzalo Curiel had “an absolute conflict” in presiding over the litigation given that he was “of Mexican heritage” and a member of a Latino lawyers’ association. Mr. Trump said the background of the judge, who was born in Indiana to Mexican immigrants, was relevant because of his campaign stance against illegal immigration and his pledge to seal the southern U.S. border. “I’m building a wall. It’s an inherent conflict of interest,” Mr. Trump said.

So, because the judge is of the same ethnicity as the people who would be presumably kept out of the United States by a wall, he clearly cannot be fair and impartial. Donald Trump is suggesting an ethnic litmus test for federal judges.

Think about what Trump is saying for a minute. Forget that Trump himself repeatedly bragged on the primary campaign trail that he would win the Hispanic vote and focus on what he is now saying: he is saying that no Hispanic person on earth can be trusted to give him a fair hearing. He is saying that no one – even a Mexican born in America – can be trusted rule impartially in accordance with the law simply because of Trump’s stance on whether there ought to be a wall on the Southern border.

This was not a slip of the tongue that he walked back. In fact, on CBS’s Face the Nation this past Sunday, he confirmed his intent.

Keep in mind, Curiel himself is not an illegal immigrant, or even an immigrant. I have no idea whether his parents were even immigrants or illegal immigrants. They are of Mexican heritage, therefore he cannot be trusted to pass judgment on Trump, who supports a wall on the Mexican border.

Look, there’s no other way to say this: that’s just overt racism. Saying that this guy has a “conflict of interest” against Trump solely based on his Mexican heritage is also an accidental admission on Trump’s part that he is opposed to Mexicans.

And THAT is what racism looks like in this modern world. It’s not separate water fountains or derogatory names. It’s suggesting that a judge of an ethnic minority, at least when he’s in conflict with Trump, cannot be trusted to give a fair hearing on an issue that affects his tribe.

Might not a white male be biased IN FAVOR of the wall? And how would you measure this? Or is that one should automatically disqualify women judges in cases of contraception, black judges in any case about racial discrimination, LGBT judges in gay equality cases, any judge that isn’t a Christian in the separation of church and state doctrine, et al.? The implication is that the non-minority (or man) would be MORE fair, somehow, makes no sense to me.

Or should we ban white judges from trials involving white defendants?

It is ironic then that Trump refers to Judge Curiel as a “hater.” Because it is the Republican nominee for President who’s showing the disdain. In the short term, painting the attributes of oneself onto another may work in the short term, but is generally rooted out.

“I love Hispanics!” is a weird thing to say about a group of people who you say are inherently untrustworthy when it comes to anything they say about you, Mr. Trump.

He’s not dog whistling it any more. He’s not doing the wink-and-nod thing. He’s flat out saying: you cannot trust anything this guy says about me because he’s a Mexican. If that isn’t racism, I don’t know what is.

In the comments, in the various news columns about this story, several people have said, “But Trump has a point.” Yes, the “point” is that Trump is making racist observations, and one rationalizing their legitimacy means those commenters ought to check their own biases.

No, he’s not really going to build a wall, and let Mexico pay for it. He will not be able to get every Muslim to be blocked at the border. But he has made it the norm to be racist and to vent these kinds of un-American things.

Yet the Republican leaders reacted to Trump’s most recent racist rantings as though they came “totally out of left field,” when it’s been consistent with his message literally since he announced for president. The question is whether the party will continue to disavow their candidate’s bigotry.

And Trump may be interfering with the due process of the legal proceeding. The judge cannot comment on the case, per the code of conduct. HuffPo says: “Legal scholars said Trump could face consequences for slamming the judge, although many have speculated that Curiel was unlikely to sanction him formally.” The judge can, but probably WON’T slap down Trump because it’ll be seen by others through both a political and racial lens.

A New York Newspapers State of Mind

With any recording, there are two copyrights: one for the song, the composition, and another for the performance of that song, the recording.

There’s a line in a classic Billy Joel song New York State of Mind:
“But now I need a little give and take
The New York Times, the Daily News.”

Back in the late 1970s and 1980s, I used to read those two New York City papers, even though I lived 150 miles away. The New York Times, “All The News That’s Fit To Print,” I’d read nearly every day. Even into the 1990s, I was at least devour the massive Sunday Times, which might take all week. In the earlier period, I also read the Daily News, a tabloid publication, on Sunday, mostly for the funnies and the sports.

I almost never read the other tabloid in New York City, the New York Post, which was terrible even before Rupert Murdock bought it in 1993. (Certainly, one of its low points was in 1980, when they showed a slain John Lennon in the morgue.)

It’s nice to see my old friends of the news IN the news:

Former President George W. Bush and his wife Laura participated in the reenactment of the march 50 years ago in Selma, Alabama on March 7. They were on the front line, but do not appear in the photo above. The narrative from some is that they were cropped out.

But in viewing several pictures of the event, it was clear that the picture was not wide enough to include the Bushes without making the shot far too small to see from the newsstand.

Moreover, Times photographer Doug Mills notes: “As you can see, Bush was in the bright sunlight. I did not even send this frame because it’s very wide and super busy and Bush is super-overexposed because he was in the sun and Obama and the others are in the shade.”

Nevertheless, there will be people who will find political motivation in this.

There are some who thought Bush should have stayed home, since his Supreme Court justices have weakened the Voting Rights Act of 1965, the very law signed by President Lyndon Johnson as a direct result of the original march. I’m glad Bush was there.

Here’s a poignant Selma story.

A couple of days later, I was astonished to see THIS headline in the Daily News go viral, with the paper blasting the 47 US Senators for sending a letter to Iran.

As Vox.com puts it, “The mere act of senators contacting the leaders of a foreign nation to undermine and contradict their own president is an enormous breach of protocol. But this went much further: Republicans are telling Iran, and, by extension the world, that the American president no longer has the power to conduct foreign policy, and that foreign leaders should assume Congress could revoke American pledges at any moment.”

Now, Arthur explains this situation more than I’m inclined to. Read also links to several other newspaper editorials.

Whether the letter, signed by four men (Ted Cruz, Lindsay Graham, Rand Paul, Marco Rubio) who have suggested a desire to be the Republican nominee for President, is actually traitorous is open to debate. That it was a brazen, gratuitous, and plainly stupid action is pretty clear. And some Republicans agree.

Humorous responses: Iran has offered to mediate talks between congressional Republicans and President Obama and An Open Letter to 47 Republican Senators of the United States of America from Iran’s Hard-Liners.: “You have opened our eyes. We are brothers.”
***
In other news, Jurors hit Robin Thicke and Pharrell Williams with $7.4-million verdict over the song Blurred Lines.

I was surprised by the results. A couple of weeks ago, intellectual property lawyer/drummer Paul Rapp, a/k/a F. Lee Harvey Blotto, wrote this:

The…case, in which Marvin Gaye’s kids are trying to shake down Robin Thicke, Pharrell and TI, is…not going very well for Team Gaye. The judge knocked the stuffing out of the Gayes’ case last month by ruling that the jury would not be allowed to hear the Marvin Gaye recording of Got To Give It Up [LISTEN] the song allegedly infringed by Thicke & Co. in writing Blurred Lines.

Why, you ask? Well it’s like this. With any recording, there are two copyrights: one for the song, the composition, and another for the performance of that song, the recording. What constitutes the song is typically limited to the melody and lyrics, and sometimes a unique chord or song structure. Everything else is embodied in the performance.

Here’s a side-by-side snippet. Oh, and here’s the UNRATED, NSFW Blurred Lines video (don’t say I didn’t warn you.) Incidentally, I’m one of those people who found Blurred Lines’ suggestion of possibly non-consensual sex very creepy.

There is concern that the verdict could be bad for music, “possibly lowering the bar for what’s considered creative theft.” While I hear the similarities, I’ve found other songs, not litigated against, with far greater parallels. I think the decision was wrong, per this New Yorker article.

But after the “Blurred Lines” victory, the Gaye family takes another listen to “Happy”. They should take Stevie Wonder’s advice.

Since these things will get further litigated, it’s too early to know the final outcome. But my first thought was, “What will happen to the Weird Al Yankovic song, Word Crimes [LISTEN]? It’s credited to Williams, Thick, rapper TI and Yankovic.

Hack attack!

Given the fact that I had, and still have, no interest in seeing the SONY picture The Interview, I am nevertheless saddened to see its theatrical release scuttled. As you probably heard, the film is about a couple of “tabloid TV show” journalists…

When they discover that North Korean dictator Kim Jong-un is a fan of the show, they land an interview with him in an attempt to legitimize themselves as journalists. As Dave and Aaron prepare to travel to Pyongyang, their plans change when the CIA recruits them, perhaps the two least-qualified men imaginable, to assassinate Kim.

SONY pictures’ computers have been hacked by cyberbullies believed to be tied to North Korea. Or maybe not. A load of internal data was released – more anon – but the most serious action was a threat that suggested people stay away from the theaters showing the film, lest some Sept. 11, 2001-type attack befall them.

The riffraff on the Internet who think that SONY created the threat as a way to boost buzz for the Interview I find odd The conspiracy theorists are tiresome; it spent $30 million on the film, and tens of millions on the promotion. In any case, the alert got several of the largest movie theater chains to decide not to show the film, scheduled to open on Christmas Day. SONY then decided to pull the film from release.

Naturally, the politicians have weighed in. Mitt Romney, the once and perhaps future Presidential nominee suggests that SONY stream it for free. The incumbent, Barack Obama, suggested that we continue to go to the movies, and told SONY that it made a mistake shelving the flick.

A small part of me is actually thinking that the hoary cliche, We’re letting the terrorists win, seems appropriate here. As the George Clooney petition, which NO one in Hollywood signed, there’s a lot of cowardice in Tinsel Town. On the other hand, as Mark Evanier noted: “We cancel airline flights if there’s even a vague threat. We evacuate buildings if there are suspicious packages. In a sense, the terrorists/hackers have already won this one.”

Some of the data breaches of SONY have turned out to be everything from merely embarrassing to so problematic that lawsuits are threatened; it has been very costly for the company, both fiscally and on a trust level. Some of the issues revealed:
Salaries
The script for an upcoming James Bond film
Tom Hanks used to check-in hotels under the name Johnny Madrid.
Alex Trebek considered quitting JEOPARDY! over a recent Kids’ Week kerfuffle
*Denzel Washington blacklist?

The journalism website Poynter has addressed the ethics of hacked email and otherwise ill-gotten information. It suggests:
Do additional reporting to verify the details. You must be sure it is accurate before you pass it along
Avoid distortion and instead ensure appropriate tone. This means watching your headlines, adjectives, and all the other details that give a particular piece of information a certain tone. When you add flavor to information, it needs to be appropriate.
*Add context, by seeking additional input or rebuttal from the relevant stakeholders. Context makes information more accurate.

Please don’t sue me, Mr. Faulkner!

The court interpreted the inclusion of the paraphrased quote in Midnight in Paris as actually helping Faulkner and the market value of Requiem if it had any effect at all.

William_Faulkner_1949 — From 1949; per Wikipedia description, image is in the public domain

I missed this initially, but a few months ago, a federal judge in Mississippi nixed a lawsuit brought by the heirs of William Faulkner. In dispute was the claim that “Woody Allen’s 2011 film ‘Midnight in Paris’ [had] improperly used one of William Faulkner’s most famous lines.” The librarian in me was pleased with the outcome but ticked that the suit was filed in the first place.

“The past is never dead. It’s not even past,” Faulkner wrote in the book, ‘Requiem for a Nun.’ “In the movie, actor Owen Wilson, says: ‘The past is not dead. Actually, it’s not even past. You know who said that? Faulkner. And he was right. I met him too. I ran into him at a dinner party.'”

Read the judge’s ruling. The Faulkner heirs claimed violation of copyright law but SONY Pictures, the defendant, claimed the Fair Use provision in the law, and, “alternatively, argued that the use of a quote was non-infringing under the de minimis doctrine (essentially a taking too small to rise to the level of infringement).”

Factor 1: Purpose and Character. These were considered quite different media and intent (comic film v. serious book).

Factor 2: Nature of the Copyrighted Work. While the book is subject to copyright protection, the movie was “transformative,” i.e., significantly altered from the original.

Factor 3: Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole. “At issue, in this case, is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot.”

Factor 4: Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work. “[The court] interpreted the inclusion of the paraphrased quote in Midnight as actually helping Faulkner and ‘the market value of Requiem if it had any effect at all.’ The court also stated ‘how Hollywood’s flattering and artful use of literary allusion is a point of litigation, not celebration, is beyond this court’s comprehension.'”

The lawyer for the Faulkner literary estate, Lee Caplin, had also argued something called The Lanham Act, suggesting that the dialogue could confuse viewers “as to a perceived affiliation, connection or association” between Faulkner and Sony; the judge rejected this as well.

Caplin groused that the ruling “‘is problematic for authors throughout the United States” and “it’s going to be damaging to creative people everywhere.” If anything, had the ruling gone the other way, THAT would have created a chilling effect on everyone who might use a soupçon of copyrighted material.