I don't always agree with Judge Alex Kozinski, though I'm quite frequently entertained by him (and, on balance, I probably do agree with him pretty often). Eric Goldman points us to a recent concurring opinion (pdf) by Judge Kozinski in a case involving a guy who was kicked out of a city council meeting for giving a Nazi salute, and then claimed his free speech rights were impeded upon. The case itself is not very interesting. But what is interesting is that, in his concurring opinion, Kozinski points out that even though the guy in question, Robert Norse, was unable to present evidence due to "procedural irregularities," since a video of the events in question were on YouTube, you could just watch it there, and then linked to the video in question:
I join Judge Thomas's opinion because it's clearly right. I
write only to observe that, even after the procedural irregularities
that deprived Norse an opportunity to present evidence,
it's clear that the council members aren't entitled to qualified
immunity. In the Age of YouTube, there's no need to take my
word for it: There is a video of the incident that I'm "happy
to allow . . . to speak for itself." Scott v. Harris, 550 U.S. 372,
378 n.5 (2007); see http://www.youtube.com/watch?v=ZOssHWB6WBI (last visited Nov. 16, 2010).
He then goes on to discuss the case. However, this may be the first time that I can recall a judge noting that even without official evidence being entered, you could just go watch the events in question on YouTube. We've had a few (sometimes heated) discussions around here concerning the rules of evidence and whether or not juries or judges should be allowed to seek out additional evidence like this -- and I'm glad to see Kozinski not just do so, but then point out to everyone in his concurrence how braindead obvious it is that those judging the case should see the video.
If you're looking for one of the most entertaining judges on the bench today, Alex Kozinski may be your judge. He's famous for being both clear and entertaining in his rulings, and for pulling such stunts as nominating himself for a contest on "Judicial Hotties" with an email to the organizers stating: "While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me." So I'm always partial to reading opinions by Kozinski, even if I find I disagree with him more often than I would like. Yet, here we have two recent decisions by Kozinski that seem to effectively disagree with each other on an issue dealing with trademark and domain names.
The first, noted by Eric Goldman, involves Kozinski's determination that that the domain eVisa.com represents trademark infringement over Visa's trademark even though eVisa is not in competition with Visa at all, and is focused on language tutoring. Kozinski says that there is infringement, citing trademark dilution. The whole theory of "dilution" in trademark law is problematic enough already, in that it goes way beyond the purpose of trademark law to act as a method of consumer protection against confusion. When you add in "dilution" then suddenly trademark becomes something very different and allows companies to stifle totally unrelated uses of a domain name. As Goldman notes this ruling seems to suggest that Visa (the company) can block out any use of "visa" in a domain name, even if it is accurately used as the dictionary definition of visa (i.e., to travel to another country):
the word "Visa" already has several dictionary definitions. This poses a problem for the blurring analysis. Visa the trademark can't co-opt the existing dictionary meanings. So does dilution-by-blurring mean that Visa the trademark can preempt every non-dictionary commercial use of the word? That seems to be a logical implication of this opinion.
And while (as per usual) Kozinski's ruling is entertaining in its opening:
She sells sea shells by the sea shore. That's swell, but how
about Shell espresso, Tide motor oil, Apple bicycles and Playboy
computers? We consider the application of anti-dilution
law to trademarks that are also common English words.
it runs into trouble pretty quickly. Historically trademark is only supposed to apply to the areas where you use the mark in commerce. This expansion of dilution changes it into something totally different, and something that seems to run into some serious First Amendment issues.
Yet, just a week later, Kozinski penned another ruling having to do with trademarks and domain names, brought to our attention by Thomas O'Toole's analysis, where Kozinski seems to smack down Toyota for trying to claim infringement by the holders of the domain buy-a-lexus.com. In this ruling, Kozinski makes plenty of sense, and amusingly mocks those who think that there's some sort of confusion in just a domain name alone:
In the age
of FIOS, cable modems, DSL and T1 lines, reasonable, prudent
and experienced internet consumers are accustomed to
such exploration by trial and error. ... They skip from site to site, ready to hit the
back button whenever they're not satisfied with a site's contents.
They fully expect to find some sites that aren't what
they imagine based on a glance at the domain name or search
engine summary.... [Consumers] don't form any firm expectations about the
sponsorship of a website until they've seen the landing page
--if then. This is sensible agnosticism, not consumer confusion. So long as the site as a
whole does not suggest sponsorship or endorsement by the
trademark holder, such momentary uncertainty does not preclude
a finding of nominative fair use.
Of course, the difference here is that he's using the "consumer confusion" view of trademark law, which makes sense, rather than the dilution by blurring standard, which opens up all sorts of problems. But it really does seem difficult to see how a judge could rule against eVisa one week, and then write the paragraph above the very next week. In fact, while we note that the dilution claims raise serious First Amendment issues, those aren't mentioned in that ruling. Yet, here in the Toyota ruling, Kozinski quickly points out how ruling in favor of Toyota would raise First Amendment issues:
It is the wholesale prohibition of nominative use in domain
names that would be unfair. It would be unfair to merchants
seeking to communicate the nature of the service or product
offered at their sites. And it would be unfair to consumers,
who would be deprived of an increasingly important means of
receiving such information. As noted, this would have serious
First Amendment implications. The only winners would be
companies like Toyota....
It's really too bad that the Alex Kozinski, who wrote this later ruling, couldn't go talk to the Alex Kozinski who wrote the first ruling.
Back in 1997, the band Aqua released a song called "Barbie Girl," that was actually somewhat critical of "Barbie doll" culture. Mattel, famous for its rather aggressive intellectual property stance, wasted little time in suing the band, claiming the song infringed on the company's rights. In 2002, everyone's favorite appeals court judge (seriously, the guy never fails to entertain) Alex Kozinski told Mattel too bad, parody songs are a part of what you get for being a cultural icon -- and included the classic line: "The parties are advised to chill."
It took seven years since that decision, but apparently Mattel had decided to heed Judge Kozinski's suggestion. Reader Sallo alerts us to the news that Mattel has actually licensed the song for a commercial -- though, they "adjusted" some of the lyrics to make it a little more pro-Barbie, rather than mocking-Barbie. Still, that's quite a jump: from suing the band for infringement to actually licensing and using the song in just a few years.
You may remember last year that there was a bunch of attention paid to Judge Alex Kozinski of the 9th Circuit appeals court supposedly having "pornographic" or "obscene" images and videos posted to his own web server just as he was deciding a big obscenity trial. While it made for great headlines, as the details became clear, the whole thing became an obvious witch hunt that was falsely portrayed in the press. First, the content in question was often described as pornographic or obscene (with some including claims of "defecation" or "bestiality") but that wasn't quite accurate. One of the videos was apparently a video of a guy trying to go to the bathroom in the wilderness when a horse or some other animal discovered him (I haven't seen it, but read the description) -- which seems like the sort of funny "home videos" you see all the time. Hardly "obscene" in the classical sense. Furthermore, the judge had not really shared this content (most of which was widely available all over the internet) but had merely stored it on his home server, which happened to have been configured incorrectly such that someone found a way in. The person who found it was someone who had a great dislike of Kozinski and had been shopping this "story" for quite some time, and the LA Times sat on it until this obscenity case came along.
So given all that, it's good to hear that the "investigation" into the matter has now ended with Kozinski basically getting a slap on the wrist saying Kozinski made mistake, apologized for it, and won't let it happen again, but it certainly has no bearing on his ability to judge various cases, even ones involving obscenity. The whole thing was basically a show trial brought on by someone who clearly had it out for Kozinski, so it's good to hear that it's over.
Last week we wrote about the hoopla surrounding some racy images and videos Judge Kozinski had accidentally made public on his personal web server. This week, it was announced that a panel of federal judges will be investigating Kozinski's conduct. I don't understand why an investigation is needed because it's pretty clear what happened, and that Kozinski did nothing wrong. My colleague Jim Harper links to a defense of Kozinski by Larry Lessig. I share Lessig's conclusion that the treatment of Kozinski has been disgraceful, but I don't think the analogy Lessig uses is especially apt. Lessig analogizes the situation to a man who climbs into Kozinski's den through a poorly-secured window and makes copies of the materials he finds within Kozinski's house. He also uses the term "hack" to describe the process of accessing Kozinski's files. I don't think this is quite right. It was a public web server; the files were readily available without a password to anyone who went looking for them. What was done to Kozinski was unsavory, but it wasn't illegal, and it's not analogous to breaking and entering.
A better analogy is dumpster diving. What happened was the digital equilvalent of somebody combing through Kozinski's trash and discovering an issue of Playboy. No respectable respectable newspaper would publish a front-page story about finding porn in a federal judge's trash. It's no more newsworthy that Kozinski inadvertently made some racy images available on his personal website. Kozinski's wife, Marcy Tiffany, wrote a letter about the affair that's well worth reading in full. She claims (and others agree) that the files were unearthed by an attorney with a grudge against Kozinski, who obtained the files months ago and has been shopping them around to different newspapers ever since. The LA Times apparently had this story months ago, but waited until Kozinski had finished the grueling work of impaneling a jury for a big obscenity case (it's hard to find a dozen people willing to watch hours of defecation and bestiality videos) before putting the story on its front page.
Even worse, the LA Times coverage appears designed to cast the material on Kozinski's computer in the worst possible light. For example, it describes one video as depicting "a half-dressed man cavorting with a sexually aroused farm animal." This description prompted a number of follow-up reports, including one in the San Francisco Chronicle, to describe the contents of the video as "bestiality," despite the fact that the video in question obviously doesn't depict bestiality. (The Chronicle story was here, but the word "bestiality" has since been deleted) The LA Times really ought to apologize to Judge Kozinski for needlessly dragging his reputation through the mud.
While judge Alex Kozinski is getting a ton of press for accidentally sharing pornographic images from his webserver, Justin Levine notes that the report concerning what was on the server also found music MP3s from musicians like Johnny Cash, Bob Dylan and Weird Al Yankovic. Levine wonders if the RIAA will now sue this federal judge as well. In fact, things could get tricky in that some research suggests not only was Kozinski storing MP3s, he may have actively been sharing some of those MP3s as well. That same link mentions that in one of many copyright infringement lawsuits concerning the company Perfect 10, Kozinski wrote a dissenting opinion suggesting that facilitating copyright infringement should be seen as infringement as well:
"When it comes to traffic in material that violates the Copyright Act, the policy of the United States is embedded in the
FBI warning we see at the start of every lawfully purchased
or rented video: Infringers are to be stopped and prosecuted."
There's a lot more involved in his opinion, which really focuses on credit card companies profiting from infringement -- but considering how he much he writes against those who help others infringe, it's probably not a wise idea that he was out there sharing music files himself.
However, to be fair, as the details come out, this whole thing is quite clearly a witch hunt by someone who seriously dislikes the judge. As we noted when the story broke, it's perfectly ridiculous to try to suggest this makes him any less qualified to judge cases. And, indeed, as the details come out about the content on his server, it's becoming clear that it is, as he noted "funny" stuff. It's all basically the sort of silly viral content that gets passed around all the time, much more for the amusement factor than any sort of titillation.
This post certainly isn't to slam Kozinski, who seems like a genuinely thoughtful judge -- with a sense of humor to boot (he famously nominated himself for a mocking "Judicial Hottie" contest run by a blog, noting: "While I think the list of female candidates is excellent, the list of male candidates is, frankly, lacking. And what it's lacking is me.... I have it on very good authority that discerning females and gay men find graying, pudgy, middle-aged men with an accent close to Gov. Schwarzenegger's almost totally irresistible." The fact that he was also sharing MP3s, again, is just yet another reminder that, contrary to the entertainment's claim that "education" will solve music sharing, many people just think it's perfectly natural and reasonable to share a song with some friends.
A lot of attention is suddenly getting turned on judge Alex Kozinski, the 9th Circuit chief judge, who (while in the middle of a trial about obscenity) was discovered to have posted pornographic images to his web server in a way in which they were accessible to the public. He didn't post them to a specific page or anything. It's just that he put them in an unprotected directory, and if you knew where to look, you could find them. Basically, it looks like he was just using the directory for personal storage, not realizing that it was publicly accessible, though, at one point he appears to claim he uploaded the images by accident. Some of the images were... extreme. Judge Kozinski described them as "funny" and "I think it's odd and interesting. It's part of life."
Some are saying that he should recuse himself from the obscenity trial, noting that he's no longer objective. However, considering that obscenity is supposed to be based on local standards, that doesn't seem right. If even the judge finds those types of images "funny" or "interesting" and "a part of life," then perhaps that's making it pretty clear that they're not obscene. Saying he needs to recuse himself seems to be presupposing that the images are obscene, which doesn't seem quite right. Rather than being used as a way to tar the judge, doesn't this just raise questions about obscenity laws in the first place?
