Monthly Archives: November 2007

Disorderly Conduct for Bronco Celebration

Oh brother! The Adams County government and law enforcement has too much time on their hands. So, rather than do something productive with it, they decided to prosecute an elderly couple for honking a set of horns in celebration of a Bronco touchdown. The Broncos haven’t been doing that well, I can’t image how disturbing that could possibly be. More importantly, I see some prior restraint all over this case.

Here’s the video!

Loud Broncos fan faces charges
Loud Broncos fan faces charges


New Line Cinema, et al. vs. Koch Entertainment, LP, et al.

Ok, everyone else go so creative with the headlines for this lawsuit, I figured I’d be dull and just designate it for what it is:





I have to admit, I do like the way E! online has put the headline: Golden Compass Points to Lawsuit.

But I’m not in a creative enough mood to come up with something clever like that. Bottom line is this:

New Line Cinema, the studio behind the $180 million, big-screen adaptation of the best-selling fantasy novel, has sued a video company over its documentary on the book’s author.

According to the Federal District Court Complaint filed November 15, 2007, this action seeks

injunctive relief and damages based upon copyright infringement, unfair competition, false advertising and other violations of Plaintiffs’ rights engaged in by Defendants in marketing and selling, to the trade and to the general public, a home video entitled Beyond The Golden Compass (the “Infringing Video”), which is being misleadingly marketed so as to unlawfully capitalize on the goodwill relating to Plaintiffs’ soon-to-bc-released major motion picture entitled The Golden Compass (“Plaintiffs Film”), and which infringes Plaintiffs’ exclusive rights under copyright to create film and/or television works based on materials, characters and other elements from the famous Philip Pullman novel Northern Lights, on which Plaintiffs’ Film is based.

(Read the Complaint here)

The E! article does a good job boiling the details down. According to the artice

At issue is Beyond the Golden Compass: The Magic of Philip Pullman, a 70-minute documentary that Koch was due to be released on DVD on Tuesday.

In its $10 million-plus lawsuit, New Line accuses Koch of trying to “capitalize on the massive publicity and promotional effort attendant to the upcoming release of the plaintiff’s film.” (Source)

The Complaint has sought eight separate claims of Copyright violation, violations under the Lanham Act, and Unfair Competition. The Complaint seeks damages and injunctive relief as follows:

(a) On Plaintiffs’ First, Third, Fifth and Seventh Claims for Relief, awarding preliminary and permanent injunctive relief enjoining Defendants from manufacturing, publishing, marketing, distributing or selling the Infringing Video;

(b) On Plaintiffs’ Second, Fourth, Sixth and Eighth Claims for Relief, awarding compensatory damages in an amount to be determined at trial, but believed to be in excess of $10,000,000;

(c) Awarding Plaintiffs all other damages suffered by Defendants1 wrongful acts, including reasonable attorneys’ fees pursuant to 17 ILS.C § 505 and/or 15 U.S.C. §1117 and the costs of this action;

(d) Awarding Plaintiff’ statutory damages for Defendants’ knowing and willful infringement; and

(e) Awarding Plaintiffs such other and further relief as the Court deems just and proper.

Free-speech Struggle

I found this article in Sunday’s Denver Post (11/25/07), reported by the Associated Press. Perhaps advisory labels are the way to go.

Free-speech struggle

Graphic depictions of violence, suicide and sexual assault in two Pat Conroy books are at the heart of a First Amendment debate in West Virginia, pitting offended parents against high school students who object to being told what they can’t read.

Even Conroy has interjected himself into the debate. In an e-mail to a student, Conroy slams those who would ban his works as “idiots.” A student group is vowing to sue the Kanawha County Board of Education if the removal of “Beach Music” and “Prince of Tides” from two Nitro High School classes is made permanent.

In a move that appeased neither side, the board decided to explore using advisory labels on books that show content for violence, language, sexual content or adult situations. The Associated Press


Comcast Sued for Interfering with P2P Traffic

This story stems from an AP story that broke about three weeks ago about how Comcast was blocking some internet traffic and actively interfering with attempts by some of its high-speed Internet subscribers to share files online. You can read the Associated Press story here.

But, stemming from that article comes a class action lawsuit filed by a Comcast customer, John Hart of San Francisco, who claims Comcast “intentionally slows and blocks file-sharing applications — actions that the plaintiff asserted violate California law, as well as the company’s contract with its customers.” (Source) The class action asserts claims for “breach of contract, breach of the covenant of good faith and fair dealing and violations of both California’s business and professions code and the state’s Consumer Legal Remedies Act.” (Source).

The article continues,

In his lawsuit, Hart alleged that whatever Comcast is doing with respect to P2P traffic, the interference runs counter to the company’s marketing claims — and the terms of its service agreement.

“Defendants advertise, market and sell their high speed Internet service … based on claims of ‘lightning fast’ and ‘mind-blowing’ speeds,” Hart said in the lawsuit. “Defendants further promise their customers and prospective customers that they will have ‘unfettered access to all the internet has to offer.’ Nevertheless, defendants intentionally and severely impede the use of certain internet applications by their customers, slowing such applications to a mere crawl or stopping them altogether.”

Through his class action, Hart hopes to end Comcast’s practice of interfering with P2P traffic and seeks recovery of fees paid by Comcast customers, whom Hart asserted have “paid for services they did not receive.”

While Comcast said that the interference with P2P traffic is done to manage its network and ensure a positive online experience for all its subscribers, Hart asserted in his lawsuit that the company provides no indication in contracts or service agreements that it interferes with P2P or any other manner of online file.

“Defendants have numerous different terms of service and/or use posted on their website,” Hart stated in the lawsuit. “Significantly, none of the terms of service state that Comcast can or will impede, limit, discontinue, block or otherwise impair or treat differently the blocked [P2P] applications.”

(Read the full story)

Don’t Burn Down the House Just to Roast the Pig

I have to start this piece out by saying that I do not support kiddie porn, and I do not believe it is protected under the First Amendment to the US Constitution, nor should it ever be. I do believe there needs to be a way to constitutionally enforce the laws prohibiting such disgusting ventures, but not at the expense of those of us who abide by the law and seek the protections of its constitutional liberties. This is the focus of a Sunday Denver Post Article and how public libraries are becoming havens for traffickers in child pornography because their usage cannot be tracked. The article is here.

In Felisa Cardona’s article “Library secure for kid porn; Traffickers use public place for privacy, and cops can’t track them” she states:

Library computers have been used in Colorado and elsewhere as a distribution point for child pornography. Law enforcement officials believe that’s partly because the users know the machines will be flushed clean by library officials as part of their security and privacy measures, making it impossible to track who is sending child pornography.

The article continues:

[once] investigators have tracked child pornography to an Internet protocol address, a numeric code that tells detectives the material was sent from the public library. But once authorities get to the library, they can’t tell which computer was used and they don’t know who used it.

This clearly presents a problem to enforcing the laws, as the authorities have identified. However, Colorado Springs police Detective Clayton Blackwell of Colorado’s Internet Crimes Against Children Task Force suggests that “The only solution is legislative intervention requiring the (libraries) to keep logs.” (Source). Personally, I think that solution begins to chip away at we law abiding citizens’ constitutional rights. Apparently the librarians agree with me. The article states:

Librarians say they are also sickened by child pornography but are concerned about maintaining privacy and freedom.

“It’s not that we want to get in the way of what law enforcement is doing,” said Martin Garnar, president of the state library association and associate professor of library science at Regis University. “The question is what is the balance – giving law enforcement every tool they can think of to solve crimes and still be a place where people can exercise their rights in a free society without fear that it is going to be tracked.”

Deborah Caldwell-Stone, deputy director of the Office for Intellectual Freedom at the American Library Association, says law enforcement has a history of violating the privacy of citizens when it comes to library records.

“It’s not practical for a library to keep this information without taking a huge risk that the information could be used inappropriately,” she said.

This position has been well thought out and decided by many courts in one form over fashion over the years. The Colorado Supreme Court considered a similar question in Tattered Cover v. City of Thornton, 44 P.3d 1044 (Colo. 2002). In that case the Court recognized that that “both the First Amendment to the United States Constitution and Article II, Section 10 of the Colorado Constitution protect an individual’s fundamental right to purchase books anonymously, free from governmental interference. Law enforcement officials implicate this right when they seek judicial approval of a search warrant authorizing seizure of customer purchase records from an innocent, third‑party bookseller.” Id. at 1047. The Court commented that it “must consider not only the effect that [its] decision has on the expressive rights of the actual party to this case, the Tattered Cover, but to members of the general public as well.” Id. at 1051 (emphasis added). While I haven’t researched extensively on this interpretation of the law directly, there is too direct a correlation to say that it wouldn’t.

But the reach of this goes beyond Colorado. As the decision made by our local Supreme Court stems from a long history of United States Supreme Court decisions, which are binding everywhere in the United States. It commented that it received guidance from many Federal cases on similar issues with the use of Subpoenas, See, Id. at 1056 (stating that the Kramerbooks case, although dealing with subpoenas, was instructive as to the test that should be applied), and movies. See, Id. at 1052 (citing, Stanley v. Georgia, 394 U.S. 557 (1969)(stating that the First Amendment means that the State has no business telling a man what films he may watch)). Using the Tattered Cover analysis, the result in challenging the government’s attempts to require such record keeping or the disclosure of same would yield an identical outcome.

The rationale behind the Court’s conclusion is premised on fundamental constitutional law principles of the First Amendment and Article II, Section 10 of the Colorado Constitution which safeguards the rights of the public to buy and read books anonymously, free from governmental intrusion. Tattered Cover 44 P.3d at 1051. Without the right to receive information and ideas, the protection of speech under the United States and Colorado Constitutions would be meaningless. It makes no difference that one can voice whatever view one wishes to express if others are not free to listen to these thoughts. Tattered Cover, 44 P.3d at 1052. The converse also holds true. Everyone must be permitted to discover and consider the full range of expression and ideas available in our “marketplace of ideas.” Id. (citing Stanley, 394 U.S. at 565, 89 S.Ct. 1243).

The Supreme Court of the United States has recently reiterated the crucial role that the free exchange of ideas places in our societies, “the citizen is entitled to seek out or reject certain ideas or influences without government interference or control.” United States v. Playboy Entertainment, Inc., 529 U.S. 803, 817 (2000). Libraries, as well as bookstores, are places where a citizen can explore ideas, receive information, and discover myriad perspectives on every topic imaginable. When a person buys a book at a bookstore or uses a computer at a public library, he engages in activity protected by the First Amendment because he is exercising his right to read, receive and view ideas and information. Any governmental action that interferes with the willingness of customers to engage in such activites implicates First Amendment concerns. See, Tattered Cover 44 P.3d at 1052. See also e.g. Roden v. Kentucky, 413 U.S. 496 (1973) (stating that a bookstore is presumptively under the protection of the First Amendment).

I have to agree with my former law professor John Soma, professor at the Stern College of Law at the University of Denver and executive director of the Privacy Foundation in his thoughts. I must add that the right to engage in expressive activities anonymously, without government intrusion or observation, is critical to the protection of the First Amendment rights precisely because of the chilling effects that would be created if our habits were disclosed. Search warrants or subpoenas directed to bookstores and libraries, demanding information about the reading or viewing history of customers, intrude upon the First Amendment rights of customers, bookstores and libraries because compelled disclosure of book‑buying, check out or internet viewing threatens to destroy the anonymity upon which many customers depend.

As the Colorado Supreme Court stated, there will inevitably be “conflicts between First Amendment and Fourth Amendment rights … when law enforcement officials attempt to use search warrants to obtain expressive materials.” Tattered Cover at 1055. And that conflict is the subject of another diatribe. But as I mentioned before, we cannot burn down the house, just to roast the pig.

Film Distributuion: New Ways, New Ideas

I always seem to end up in discussions with people about the new age of film distribution. Historically, you had to go to the theater to watch a movie and then it was gone. Then came the era of Beta Max and Video Players which allowed people to watch movies again and again after the run in theaters was completed. If you were lucky you had the opportunity to catch it on TV. The applied to the music world as well, but not as substantially because music was beyond just being played on the radio or at a concert. 8 Track and cassette tapes made it easy to transport around one’s favorite music from place to place. Ok, the vinyl album I was observed loading in to my backpack from time to time to go play over at a friend’s house, but that was on rare occasion.

Today, there are so many options available to a producer of entertainment content for distribution, in this world of Video on Demand and ITunes, that if someone of the old school methodology didn’t keep up, he would be left far behind. This was the focus of a recent AP focus story about the CEO of Blockbuster Video and his move to a greater market share. Read the article here.

As the new CEO James Keyes states for the article,

This is an industry in transition and a company that hasn’t been able to keep up with that change,” said Keyes, named CEO in July. “But Blockbuster is one of the best-known brands in the world. We’ve just got to find ways to use technology to make the company more relevant.”

I think this is a firm and accurate philosophy that should be adhered to by everyone, and not just film distributors. Necessity is the mother of invention. There are new ways of accomplishing what we have become accustomed to. And, the local consumer, being inherently lazy and cost efficient, is going to follow the path of least resistance. We are long way from the days of “Boom Boxes” on our shoulders and Walkman radios on our hips. If any company wants to remain a player in the game, just like Darwin’s evolutionary theory, they will have to learn to adapt to the changing environment.

Goldblum’s movie “Pittsburgh” gets sued

Since I live here in Colorado, I am always keeping my eyes open for entertainment matters that hit close to home. In this instance, a stagehand from Jeff Goldblum’s new movie Pittsburgh is suing to stop the airing and distribution of the program until her scene is cut. Now, what is Colorado connection? Well, the company tapped to distribute the film is no other than Douglas County, Colorado’s Starz Entertainment Network. According to the Associated Press,

Croyle, a 30-year veteran stagehand, was working at the Benedum Center in 2004 when Goldblum was appearing in a Pittsburgh Civic Light Opera production of The Music Man.

The 55-year-old actor isn’t named as a defendant, although the movie centers on his appearance in the musical and suggests in mock documentary style that he did so against the advice of his agent and friends, who were concerned it would hurt his career.

The lawsuit, filed in federal court in Pittsburgh, seeks $4 million damages.

It targets several Southern California production companieso directors Chris Bradley and Kyle La Bracheo and Starz Entertainment LLC, the Douglas County cable channel now airing the movie. (Source)

According to the article,

Croyle said she learned she was in the movie only after other people saw it and told her about it. In the scene, Goldblum uses a sexual innuendo while Croyle rubs alcohol on his skin and blows air on it before attempting to tape a microphone to him. (Source)