Octopus Overlords

It would be normal if there was any basis at all for them to not release the information. At this point I don't even know why I bother to pay attention. It's obvious that we have decided to toss all rule of law out the window and just do whatever. That's cool. I'm sure that's going to work out well.

I guess the Supreme Court can rule a NY Prosecutor can have it, but not Congress? Seems reasonable.

They are too busy dropping us back to the 1950's to look back at previous rulings. Is there a checklist of all the cool things they will remove this term?

The court is no longer fair or balanced. Might as well have 12 monkeys in there. Its more individuals ruling by their own opinions and not whats blind and fair.

The temporary stay in the Lindsay Graham/Georgia 2020 grand jury issue has been lifted, as a stay or injunction is not necessary in this case since the lower courts were correct. No noted dissents.

The only good thing about that is that it's not tied to the mid terms. Our only hope is Georgia. Lol

pr0ner wrote: Tue Nov 01, 2022 2:49 pm The temporary stay in the Lindsay Graham/Georgia 2020 grand jury issue has been lifted, as a stay or injunction is not necessary in this case since the lower courts were correct. No noted dissents.

Wait . . . I thought the fix was in?!?

Not for Graham. He had the gall to suggest that Biden was actually a decent person.

Kurth wrote: Tue Nov 01, 2022 6:17 pm Wait . . . I thought the fix was in?!?

Let me know when he actually takes the stand and testifies.

Smoove_B wrote: Tue Nov 01, 2022 6:45 pm

Kurth wrote: Tue Nov 01, 2022 6:17 pm Wait . . . I thought the fix was in?!?

Let me know when he actually takes the stand and testifies.

Yep, I hear you. Not taking that bet.

But that’s a different fix.

As the picture comes into focus...

Mystery solved: why did Lindsey G, a senator from South Carolina, urge Raffensperger to toss out lawfully cast ballots in GEORGIA? Because emergency appeals out of Georgia are handled by Clarence Thomas, & Trump’s lawyers saw Thomas as their best shot at overturning the election.

2014 leak of SCOTUS opinion was just revealed - it'll provide support to the idea that Alito leaked the recent opinion to shore up support. Worse the piece delves into the influence campaigns that have been waged to influence the court. It's ugly folks. Americans don't trust our institutions and we have good reason.

As the Supreme Court investigates the extraordinary leak this spring of a draft opinion of the decision overturning Roe v. Wade, a former anti-abortion leader has come forward claiming that another breach occurred in a 2014 landmark case involving contraception and religious rights.

In a letter to Chief Justice John G. Roberts Jr. and in interviews with The New York Times, the Rev. Rob Schenck said he was told the outcome of the 2014 case weeks before it was announced. He used that information to prepare a public relations push, records show, and he said that at the last minute he tipped off the president of Hobby Lobby, the craft store chain owned by Christian evangelicals that was the winning party in the case.

Both court decisions were triumphs for conservatives and the religious right. Both majority opinions were written by Justice Samuel A. Alito Jr. But the leak of the draft opinion overturning the constitutional right to abortion was disclosed in the news media by Politico, setting off a national uproar. With Hobby Lobby, according to Mr. Schenck, the outcome was shared with only a handful of advocates.

...

The evidence for Mr. Schenck’s account of the breach has gaps. But in months of examining Mr. Schenck’s claims, The Times found a trail of contemporaneous emails and conversations that strongly suggested he knew the outcome and the author of the Hobby Lobby decision before it was made public.

Mr. Schenck, who used to lead an evangelical nonprofit in Washington, said he learned about the Hobby Lobby opinion because he had worked for years to exploit the court’s permeability. He gained access through faith, through favors traded with gatekeepers and through wealthy donors to his organization, abortion opponents whom he called “stealth missionaries.”

The minister’s account comes at a time of rising concerns about the court’s legitimacy. A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.

...

Justice Alito, in a statement issued through the court’s spokeswoman, denied disclosing the decision. He said that he and his wife shared a “casual and purely social relationship” with the Wrights, and did not dispute that the two couples ate together on June 3, 2014. But the justice said that the “allegation that the Wrights were told the outcome of the decision in the Hobby Lobby case, or the authorship of the opinion of the Court, by me or my wife, is completely false.”

Jeez.

I should hope so...but also it feels at this point that it doesn't matter. I guess it's good for the future historians.

Smoove_B wrote: Tue Nov 01, 2022 6:45 pm

Kurth wrote: Tue Nov 01, 2022 6:17 pm Wait . . . I thought the fix was in?!?

Let me know when he actually takes the stand and testifies.

Yeah, that happened today.

pr0ner wrote: Tue Nov 22, 2022 4:36 pm Yeah, that happened today.

Oh yeah? Can't wait to see what comes of it.

FWIW it still is a lot of folks pick as the best chance at someone making a case against Trump for election related shenanigans.

The case of the Bad Spaniels.

Parody at stake.

The court agreed on Monday to hear a dispute between the maker of Jack Daniel’s whiskey and a company that manufacturers dog toys resembling the Tennessee distillery’s iconic bottle.

Alefroth wrote: Sun Nov 27, 2022 1:47 pm The case of the Bad Spaniels.

Parody at stake.

The court agreed on Monday to hear a dispute between the maker of Jack Daniel’s whiskey and a company that manufacturers dog toys resembling the Tennessee distillery’s iconic bottle.

Parody is not at stake. What’s really at stake here is whether the Supreme Court is going to allow the 9th Circuit to create a loophole in trademark law you can drive a truck through.

The 9th Circuit’s decision is deeply flawed and needs to be reversed. It’s a good sign the SC granted cert.

Do you not think parody is protected? Do you think the dog toy isn't parody? Do you think reasonable people would be confused?

I don't see how you can claim it isn't parody.

I'm in the middle on this one. I don't really care either way. The manufacturer is pushing on a boundary and this is exactly the type of case where a line needs to be drawn by SCOTUS.

Alefroth wrote: Sun Nov 27, 2022 3:33 pm Do you not think parody is protected? Do you think the dog toy isn't parody? Do you think reasonable people would be confused?

I don't see how you can claim it isn't parody.

They're not really parodying Jack Daniels, in that this isn't really a commentary on Jack Daniels. They're more just making a funny adaptation to sell a dog toy that's unrelated to Jack Daniels. So seems borderline.

Are Garbage Pail Kids or Wacky Packages considered parody? If so, what commentary were they making?

Alefroth wrote: Sun Nov 27, 2022 6:46 pm Are Garbage Pail Kids or Wacky Packages considered parody? If so, what commentary were they making?

I'm not familiar with Wacky Packages, but Garbage Pail Kids are clearly a parody of Cabbage Patch dolls substituting ugly/bad traits for attractive/good ones.

Often parody serves to highlight hypocrisy. In this case, vices are used to ridicule unearned or unfounded (because cartoonish and commerical) virtues.

El Guapo wrote:

Alefroth wrote: Sun Nov 27, 2022 3:33 pm Do you not think parody is protected? Do you think the dog toy isn't parody? Do you think reasonable people would be confused?

I don't see how you can claim it isn't parody.

They're not really parodying Jack Daniels, in that this isn't really a commentary on Jack Daniels. They're more just making a funny adaptation to sell a dog toy that's unrelated to Jack Daniels. So seems borderline.

Exactly...parody is allowed under 'fair use' because it takes advantage of similarity to a trademarked work to make some sort of comment about the original work. Using a trademarked work's likeness solely to market your own product is typically not allowed because the trademark owner argues that it devalues their brand and leads only to financial gain for the infringer.

A Jack-Daniels-adjacent dog toy is designed to have dogs get sloppily all over the product in the same way that Jack Daniels encourages alcohol consumption.

It's clearly parody.

Holman wrote: Sun Nov 27, 2022 6:52 pm

Alefroth wrote: Sun Nov 27, 2022 6:46 pm Are Garbage Pail Kids or Wacky Packages considered parody? If so, what commentary were they making?

I'm not familiar with Wacky Packages, but Garbage Pail Kids are clearly a parody of Cabbage Patch dolls substituting ugly/bad traits for attractive/good ones.

Often parody serves to highlight hypocrisy. In this case, vices are used to ridicule unearned or unfounded (because cartoonish and commerical) virtues.

Check them out if you haven't already. I loved them as a kid, probably for the same reason I loved Mad Magazine.

Side note: I just noticed this afternoon that the DC Universe subscription now includes an archive of Mad Magazine.

Alefroth wrote: Sun Nov 27, 2022 3:33 pm Do you not think parody is protected? Do you think the dog toy isn't parody? Do you think reasonable people would be confused?

I don't see how you can claim it isn't parody.

This case isn't really about parody. The question before the SC is whether commercial products -- like dog toys -- are entitled to First Amendment protection or whether the speech they may or may not embody is commercial speech regulated by trademark law.

If you have a few minutes, this is a great write-up by IPWatchdog about the Bad Spaniels case that came out shortly after the 9th Circuit fucked things up and reversed the district court.

Here are the products at issue:


Jack Daniels sued not only for trademark infringement (which requires a likelihood of confusion) but also for trademark dilution (which doesn't). At a high level, dilution is a claim that's only available to famous brands (think household names) and only requires a plaintiff to show that the defendant's use is one that would weaken the source identifying nature of the mark at issue. You know why I can't open up a business selling Coca Cola chainsaws? It's not because that use would cause anyone to be confused into thinking the Coca Cola company had entered the chainsaw business, but, rather, it's because the Coca Cola brand would be diluted/weakened if that name were to start to be associated with my new chainsaw business.

But whether or not there's infringement or dilution with respect to the above products is beside the point. The question is the appropriate test.

For basically the history of the law, commercial products were regulated by trademark law, not the First Amendment. That meant, if you wanted to claim that your use was a parody, you could do that, but that would be just one factor that was taken into account when assessing if there was a likelihood of confusion or dilution.

But the folks at Bad Spaniels argued that that wasn't the right test. Their dog toy wasn't really a dog toy: It was a work of artistic expression. And under a line of cases dealing with works of art - or, more specifically - titles of works of art, a trademark owner doesn't even get to try to prove infringement or dilution unless: (1) the use of the mark has no relevance to the work; and (2) the use of the mark is explicitly misleading.

When applied, that test, set forth in Rogers v. Grimaldi makes most claims for trademark infringement dead on arrival. It's almost impossible to meet. Which is by design, since it was intended to create a limited carve-out in trademark law for artists, authors, film-makers, etc. to work.

But it wasn't intended to shield mass produced, commercial products from traditional trademark analysis.

The district court knew that Bad Spaniels was full of shit when they argued on summary judgment that their dog toy is an "expressive work" entitled to First Amendment protection and application of the Rogers v. Grimaldi test. Their motions were denied, the case was tried to the bench, and the court found for Jack Daniels. Reasonable people can argue whether that was the right result under traditional trademark law -- maybe because you think the Bad Spaniels toy was such a good and obvious parody that no one would be confused and the Jack Daniels mark couldn't possibly be diluted -- but, again, that's beside the point and not before the Supreme Court.

On appeal, the 9th Circuit reversed, finding that the Bad Spaniels dog toy was an expressive work and therefore fully protected by the First Amendment so long as the use of the Jack Daniels mark had any relevance to the product (it obviously does) and doesn't explicitly mislead (i.e., it doesn't say, "Official Jack Daniels dog toy" or something along those lines).

Now, the Supreme Court will decide whether commercial products like the Bad Spaniels dog toy should be analyzed under the First Amendment or under traditional trademark law. They better get it right, or it's going to be a shit show in IP law for some time to come.

At least it feels like SCOTUS gets things right more with trademark law than patent law, but we'll see.

pr0ner wrote: Mon Nov 28, 2022 8:58 am At least it feels like SCOTUS gets things right more with trademark law than patent law, but we'll see.

Just wait until they tackle patent eligibility under Section 101. They keep asking the Solicitor General to weigh in on whether they should grant cert in a 101 case, and the SG keeps telling them they need to because the law is currently a mess. So far, they've declined, but it's only a matter of time before they wade into that thicket. I'm not optimistic about the outcome.

Kurth wrote: Mon Nov 28, 2022 1:11 pm

pr0ner wrote: Mon Nov 28, 2022 8:58 am At least it feels like SCOTUS gets things right more with trademark law than patent law, but we'll see.

Just wait until they tackle patent eligibility under Section 101. They keep asking the Solicitor General to weigh in on whether they should grant cert in a 101 case, and the SG keeps telling them they need to because the law is currently a mess. So far, they've declined, but it's only a matter of time before they wade into that thicket. I'm not optimistic about the outcome.

When digital camera patents get overturned as being directed to an abstract idea at the Federal Circuit, something absolutely needs to be done. But I'm not holding my breath.

Alefroth wrote: Sun Nov 27, 2022 6:46 pm Are Garbage Pail Kids or Wacky Packages considered parody? If so, what commentary were they making?

By the way, Topps, the maker of Garbage Pail Kids was sued for trademark infringement:

Topps was sued by the rightsholders of Cabbage Patch Kids, Original Appalachian Artworks, for trademark infringement. As part of the out-of-court settlement, Topps agreed to modify the appearance of the Garbage Pail Kids to remove the resemblance between the characters and to change the logo design. Production of the cards themselves continued, but by 1988 sales had dwindled and a planned Series 16 was never produced.

More on the settlement here.

My read on this is that the case settled because Topps had good parody defenses within the confines of traditional trademark infringement analysis but walked a little too close to the line on some of their cards and marketing. They also faced significant financial exposure, so a modest redesign was the best path forward.

Interestingly, things went full circle: In 2017, Topps turned around and sued an artist for trademark infringement for making "parody" Garbage Pail Kids cards. They were literally called, "Parody Garbage Pail Kids" and here's a side-by-side comparison:



The parties settled in 2019.

Kurth wrote: Mon Nov 28, 2022 4:24 am

Alefroth wrote: Sun Nov 27, 2022 3:33 pm Do you not think parody is protected? Do you think the dog toy isn't parody? Do you think reasonable people would be confused?

I don't see how you can claim it isn't parody.

Lots of very knowledgeable stuff.

I appreciate the great explanation.

Vox

The TLDR; is that a Trump judge wrote a lawless opinion that has taken decision making power about immigration policy out of the Biden administration's control and given it to himself. The piece explains this. In the end, it'll probably be overturned but the judge will have injudiciously stolen power for 6 months minimum but perhaps even as long as a year. All while satisfying the partisan preference of this court.

What was most interesting to me is that again like in the Mar-a-Lago search we see that the way the district is carved up ensures that the plaintiffs (Texas and Louisiana) hand picked the judge (bolded below). Not great. This is unfixable barring impeachment and removal because you have to suspect the Republicans aren't going to give up this dubious source of power.

The piece also importantly talks about the emerging pattern that exposes the naked power plays being enabled by the court. This SCOTUS as we have seen before will delay overturning or conversely rapidly affirm rulings that serve "Conservative" partisan purposes and do the opposite when they serve/oppose "Liberal" interests. This is just another taste of what we should come to expect as rule of law degrades in this nation.

In July, a Trump appointee to a federal court in Texas effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within US borders. Although Judge Drew Tipton’s opinion in United States v. Texas contains a simply astonishing array of legal and factual errors, the Supreme Court has thus far tolerated Tipton’s overreach and permitted his order to remain in effect.

Nearly five months later, the Supreme Court will give the Texas case a full hearing on Tuesday. And there’s a good chance that even this Court, where Republican appointees control two-thirds of the seats, will reverse Tipton’s decision — his opinion is that bad.

...

According to an amicus brief filed by University of Texas law professor Stephen Vladeck, the state of Texas has filed 20 lawsuits in Texas federal courts against the Biden administration. All but one of those cases are overseen by judges appointed by a Republican president.

As Vladeck explains, this did not happen by coincidence. Rather, “Texas has intentionally filed its cases in a manner designed to all-but foreclose having to appear before judges appointed during Democratic presidencies.”

The federal court system includes 94 different district courts, trial courts that each preside over a geographic region. Texas, for example, is divided into four districts — the Northern, Eastern, Southern, and Western Districts of Texas. These four district courts, meanwhile, are chopped up into “divisions,” often named after the city or town where a federal courthouse is located. Tipton, for example, sits in the Victoria Division of the Southern District of Texas.

Under a case assignment order handed down by the Southern District of Texas, virtually all civil cases filed in the Victoria Division are automatically assigned to Tipton. Thus, as Vladeck writes, “by filing this case in Victoria, Texas was able to select not just the location for its lawsuit, but the specific federal judge who would decide this case: a judge Texas likely believed would” rule against the Biden administration — “and who in fact did so, even as another court has rejected similar challenges.”

...

The Supreme Court has thus far been very indulgent of this behavior, at least when it benefits Republicans. In 2021, for example, Texas chose Trump-appointed Judge Matthew Kacsmaryk to hear a lawsuit seeking to reinstate a Trump-era border policy known as “Remain in Mexico.” Kacsmaryk predictably did Texas’s bidding, and ordered the Biden administration to reinstate Texas Republicans’ preferred policy.

Although the Supreme Court eventually reversed Kacsmaryk’s decision, which was as inconsistent with existing law as is Tipton’s decision in Texas, the Court sat on the case for nearly an entire year — effectively letting Kacsmaryk set the nation’s border policy for this entire waiting period. Now the Court appears likely to repeat this pattern in Tipton’s case.

In case there is any doubt, this is not how the Supreme Court behaved when Trump was in office. During the Trump administration, the Court’s Republican-appointed majority was so quick to intervene when a lower court judge blocked one of Trump’s policies that Justice Sonia Sotomayor complained that her colleagues were “putting a thumb on the scale in favor of” the Trump administration.

Even when the law offers no support for the GOP’s preferred policies, in other words, the Court permits Republicans to manipulate judicial procedures in order to get the results they want. The Texas attorney general’s office can handpick judges who they know will strike down Biden administration policies, and once those policies are declared invalid, the Supreme Court will play along with these partisan judges’ decisions for at least a year or so.

Cool. SCOTUS appears to have decided they need to speed up efforts to strike down the lib stuff they don't like. It's almost like something changed around the beginning of 2019.

Let's see what's on the docket today:

The U.S. Supreme Court hears arguments Monday in a potential landmark case that pits two cherished constitutional principles against each other. On one side are laws that guarantee same sex-couples equal access to all businesses that offer their services to the public. On the other are business owners who see themselves as artists, and don't want to use their talents to express a message that they don't believe in.

For nearly a decade, the justices have dodged and weaved on this clash of legal values, declining to hear some cases, and punting on one involving a baker who refused to make custom wedding cakes for same-sex couples. But now the issue is back before a far more conservative court, a court that reached out to hear Monday's case even before any same-sex couples complained that they were the victims of illegal discrimination.

...

Smith says that because of Colorado's public accommodations law, she cannot do what she wants to do most — custom web designs for weddings. The reason: She believes that marriage should only be between a man and a woman.

"I want to create and design for weddings that are consistent with my faith," she says, adding that she "can't do that that because" Colorado is "censoring and compelling" her speech by "forcing" her to create custom websites "that would contradict" her view of marriage. So, even though she hasn't actually launched a wedding website business yet, she is pre-emptively challenging the Colorado's public accommodations law as a violation of her First Amendment right to free speech and expression.

Yeah, and with this court makeup, it's going down. It's going to be very sad.

Smoove_B wrote: Mon Dec 05, 2022 12:08 pmSo, even though she hasn't actually launched a wedding website business yet, she is pre-emptively challenging the Colorado's public accommodations law as a violation of her First Amendment right to free speech and expression.

This was their out if they wanted an out.

Also Moore v. Harper is this week. It remains unknown if they'll go whole hog on independent state legislature doctrine, reject it, or devise something in the middle such as a test (perhaps that winks at GOP gerrymanders).