"Artist Behind Banana Taped to Wall Can’t Escape Copyright Suit"

 That's the title to this Bloomberg article about Judge Scola's case involving this "art" from Art Basel a few years ago:

Here's the intro to the article:

The artist behind a viral sculpture featuring a banana taped to a wall at the 2019 Art Basel fair in Miami was unable to immediately shake a lawsuit claiming he copied the artwork from another artist.

The idea of a banana duct-taped to a wall is uncopyrightable, but the specific “selection, coordination, and arrangement” of the various elements of the sculpture can receive a degree of protection, Judge Robert N. Scola Jr. said in his Wednesday opinion.

At this early stage of the suit, artist Joe Morford sufficiently argued that the Art Basel exhibit, known as “Comedian,” was substantially similar to his work, called “Banana & Orange,” which he registered with the Copyright Office in 2000.

“Comedian,” created by Italian artist Maurizio Cattelan, garnered significant international press, commentary, and controversy. Cattelan sold three copies of the work and two proofs for more than $390,000. Morford, who represents himself, sued for copyright infringement in 2021.

The judge, writing for the US District Court for the Southern District of Florida, found that Morford has also sufficiently alleged that Cattelan had access to “Banana & Orange,” a piece featuring both a banana and an orange taped to a wall with silver duct tape.

The work has been available on YouTube since 2008, on Facebook since 2015, and on Morford’s personal website since 2016. The artist showed that the work had been accessed in 25 different countries, Scola said.

“Banana & Orange” also met the minimum standard of originality to receive copyright protection, the judge said.

“While using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity,” he said, “its absurd and farcical nature meets the ‘minimal degree of creativity’ needed to qualify as original.”

Of the copyrigthable elements of Morford’s work, there was similarity to “Comedian,” according to Scola. Both pieces use a single piece of silver duct tape that “runs upward from left to right at an angle” that affixes a banana “angled downward left to right” against a wall, he said.

DOJ Antritrust suffers crushing defeat in third chicken antitrust trial

 This one really bothered me -- DOJ indicted 10 defendants in a criminal antitrust case (hoping some would plead and flip).  All 10 stay strong and go to trial in Denver federal court.  All 10 are hung.  DOJ says, we are going to try again.  All 10 go to trial a second time.  And all the jury hangs again as to all 10.

Surely, the government would not try them again, right?

Wrong.

But the judge is rightfully upset.  So he orders the head of the antitrust division to court to explain why the government is going to try all 10 again. 

Shortly before appearing, the government dismisses against 5 of the defendants.  Then the chief showed up to court and explained that he believed his prosecutors would win.  Shortly thereafter, he was quoted as saying he's not part of the "chickenshit club."  

I wrote about how ridiculous that position was here.

The remaining 5 just went to trial and WALKED.  Not guilty across the board.

An unbelievable defeat for DOJ. 

Really happy for the 5 defendants and their lawyers, but they never should have been in that position, of course.  The government should not be able to try a defendant if it can't get a conviction at a trial, let alone two trials.

After trial #2, I did a bonus podcast episode with Barry Pollack, who represented one of the defendants who was dismissed after trial #2.  Check it out here.

What can a defense lawyer say about his client not testifying in closing?

 The issue has come up because a judge is piping mad that a defense lawyer said this in closing:

So . . . the Court instructed you, rightfully so, that you cannot consider the fact that the Congressman didn’t testify. He has an absolute right not to testify and you cannot consider it, but that’s a hard instruction to follow, especially in a case where we’re talking about what’s in his mind, what he knew, what he remembered, and what he understood. And we don’t have to explain the decision not to testify, but I’m going to. And the answer is that he did testify. Remember, most of what we listened to during our, I think, six days of trial were his statements. And the testimony, essentially, that he gave in those recordings was unvarnished,
unprepared, uncounseled. Well, I suppose in D.C. he told the prosecutors what he knew and remembered, and you got to hear that, too. I can’t improve on that. I can’t—his memory is not better today than it was in 2019, so there’s really nothing to add. And so here you are, some of you may be thinking, why didn’t he testify? Why didn’t he explain this? But what do you think would have happened if he got up there on the stand and tried to explain and his memory is worse than it was before and the Government confronts him with the call and asks him to explain it? He would say the same thing as what he said before, this is what I heard, this is what I understood.

Doesn’t seem so bad to me.  He said he had an absolute right not to testify and that he already gave his statements.  But the judge issued an order to show cause.  Here’s the whole order, which is being covered by Meghann Cuniff on Twitter.

I always have to sigh when I see judges getting so angry at defense lawyers.  Imagine a prosecutor had actually commented on a defendant’s silence, which happens in courtrooms all the time… the prosecutor would get yelled at for a minute and then nothing.  No reversal (harmless), no sanctions (it’s a prosecutor!), etc.  Judges typically give prosecutors the benefit of the doubt — it was just a mistake — while defense lawyers get orders to show cause.  

In any event, do you think the defense lawyer crossed a line here?  His client was convicted, by the way.  This order came out after the client was sentenced.

   

BOP incaercating people longer than the law allows

 There should be outrage.  Instead, very little is being done.  This entire article about the problem, entitled "Thousands of federal inmates still await early release under Trump-era First Step Act," is worth a read:

Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals. No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM. “Here we are, four years later, and it’s maddening.”

Your Fourth of July moment of Zen

 I started this blog back on July 2, 2005 (happy 17th birthday to the blog!) with a post about putting a Floridian on the Supreme Court.  

That's now a reality!  Yay for KBJ, a Miamian!

Justice Ketanji Brown Jackson in a TikTok minute. pic.twitter.com/jJOh3ZyN0d

— Katie Barlow (@katieleebarlow) June 30, 2022

Free Brittney

By Michael Caruso

In 1972—50 years ago—President Nixon made his historic visit to China in February, The Grateful Dead conquered Europe in April and May, Hunter S. Thompson published his novel Fear and Loathing in Las Vegas in July, and, of course, your Miami Dolphins went undefeated later in the year among other cultural milestones. And, despite our country withdrawing from Vietnam, 759 Americans died there in 1972.

1972 also saw the passage of monumental bipartisan legislation. On June 23, 1972, President Nixon signed Title IX, the law best known for promoting gender equity in athletics and preventing sexual harassment on campuses. These are Title IX's 37 words: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The law's impact—opening doors and removing barriers for girls and women—cannot be overstated.

For context, in 1970, just 59% of women in our country graduated from high school, and just 8% had college degrees. And there were just over 300,000 women and girls playing college and high school sports in the United States. Today that number exceeds 3.6 million.

The impact of Title IX stretches into professional sports as well. More opportunities have emerged for young women to turn their sport into their careers, particularly in the WNBA.

One such woman is Brittney Griner. Ms. Griner plays for the Phoenix Mercury in the WNBA. Like many WNBA players, she also plays overseas during the offseason. For the last few seasons, Ms. Griner has played for a team in the Russian league. On the eve of Russia's invasion of Ukraine, Ms. Griner was arrested at a Moscow airport. Russian authorities claimed she had hashish vaporizer cartridges in her luggage and accused her of smuggling significant amounts of a narcotic substance, an offense punishable by up to 10 years in prison. Curiously, Russian authorities only announced her arrest after the invasion occurred.

Russia has detained Ms. Griner since her arrest. The U.S. State Department has classified Ms. Griner as “wrongfully detained,” which sparked a growing movement for the player’s release led by her wife, Cherelle Griner. Her "trial" is scheduled to start this Friday.

But we'll see. Brian Whitmore, a nonresident senior fellow at the Atlantic Council’s Eurasia Center and an assistant professor at the University of Texas Arlington, characterized Griner’s detainment as “a hostage situation” and her trial as an exercise in “political theater” designed to pressure the U.S. government into a prisoner swap. “They want to trade her,” Whitmore said, “and they’re going to drag this out until they get something they want.”

Multiple state-owned Russian news outlets reported that Russia would be open to swapping arms dealer Viktor Bout for Ms. Griner. Russia’s seemingly lopsided asking price complicates negotiations. In 2001, a jury convicted Bout of conspiring to kill U.S. nationals and officers, and the U.S. asserts that the convicted arms dealer smuggled military-grade weapons to rogue leaders and insurgent groups, elevating conflicts from machetes and one-shot rifles to grenade launchers and AK-47s. While as noted above, Ms. Griner allegedly had a few vape cartridges in her luggage.

As we all celebrate and enjoy this holiday weekend, let's keep all our loved ones who are suffering in our thoughts and prayers, and let's all hope for Ms. Griner's speedy release. And watch a WNBA game.

SCOTUS reverses CA11 on two criminal cases

1. The 11th Circuit was an outlier on the First Step Act, holding that courts could not consider intervening changes of law or fact in exercising their discretion to reduce a sentence.  The Supreme Court reversed, 5-4, per Justice Sotomayor (joined by Kagan, Breyer, Thomas, and Gorsuch).  The opinion starts this way:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U. S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U. S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U. S. 476, 492 (2011). Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.
Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes tothe Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.
The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.
The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

2.  The 11th was also an outlier on whether doctors could in good faith prescribe medications. It held in United States v. Ruan, 966 F.3d 1101, 1120 that a subjective believe that a doctor is meeting a patient's medical needs is not a complete defense and that the doctor must also meet an objective standard.  The Supreme Court reversed 9-0 per Justice Breyer:

Finally, the Government argues that requiring it to prove that a doctor knowingly or intentionally acted not as authorized will allow bad-apple doctors to escape liability by claiming idiosyncratic views about their prescribing authority. See, e.g., Brief for United States 33. This kind of argument, however, can be made in many cases imposing scienter requirements, and we have often rejected it on bases similar to those we have set forth in Part II of this opinion. See, e.g., Rehaif, 588 U. S., at ___ (slip op., at 8); Liparota, 471 U. S., at 433–434.
We do the same here. The Government, of course, can prove knowledge of a lack of authorization through circumstantial evidence. See ibid. And the regulation defining the scope of a doctor’s prescribing authority does so by reference to objective criteria such as “legitimate medical purpose” and “usual course” of “professional practice.” 21 CFR §1306.04(a); see Gonzales, 546 U. S., at 285 (Scalia, J., dissenting) (“The use of the word ‘legitimate’ connotes an objective standard of ‘medicine’”); Moore, 423 U. S., at 141– 142 (describing Congress’ intent “to confine authorizedmedical practice within accepted limits” (emphasis added)).As we have said before, “the more unreasonable” a defendant’s “asserted beliefs or misunderstandings are,” especially as measured against objective criteria, “the morelikely the jury . . . will find that the Government has carried its burden of proving knowledge.” Cheek v. United States, 498 U. S. 192, 203–204 (1991). But the Government must still carry this burden. And for purposes of a criminal conviction under §841, this requires proving that a defendant knew or intended that his or her conduct was unauthorized. 

See, judges on the 11th Circuit, it's OK to rule for criminal defendants.  You don't ALWAYS have to rule for the government.

Will Dobbs lead to the undoing of other rights?

 We've all read Justice Thomas' concurrence in Dobbs by now and it's pretty frightening.  Not only is it way out of touch with our country, our society, and the world -- it threatens to put people in jail for basic things like obtaining contraception.  Hard to imagine...

David Lat wrote this piece at Esquire about whether this will actually happen.  Here's a snippet on why he thinks it won't:

Why isn’t there the same hunger on the right to ban, say, interracial or same-sex marriage that there is for banning abortion? As Justice Alito wrote in Dobbs, the critical difference between abortion and most other rights is that abortion destroys “potential life” or “the life of an ‘unborn human being.’” Or as pro-life advocate Karen Swallow Prior wrote in the New York Times on Friday, she and her fellow pro-lifers believe “that abortion unjustly ends the life of a being that is fully human”—which can’t be said of almost any other right.

In other words, while social conservatives might not view my marriage to another man as a real marriage, they don’t view me and my husband as murderers. In the eyes of social conservatives, abortion is uniquely evil—and Roe, by enshrining that perceived evil in constitutional law, is a uniquely bad decision. According to UC Berkeley law professor Orin Kerr in a thoughtful Twitter thread, “Within the conservative legal movement, Roe is thought to stand pretty much alone.”

For decades, Republican political candidates, including presidential candidates, ran on getting Roe overturned. For just as long, a slew of pro-life organizations devoted themselves to getting Roe overruled. I’m unaware of presidential candidates campaigning on reversing Obergefell v. Hodges, the 2015 decision that recognized the right to same-sex marriage, or of organizations trying to revisit Griswold v. Connecticut, the 1965 decision that recognized the right of married persons to buy and use contraception.

 More:

I think it’s unlikely. First, because Justice Thomas wrote this in a separate concurrence, not in the controlling opinion of the Court, it represents only the views—the academic ramblings, really—of Justice Thomas. He’s fond of floating esoteric or controversial legal theories in solo concurrences, joined by none of his colleagues. And most of the time, they go nowhere. If he actually wants to get these cases “reconsidered,” he’ll need four other votes, which he almost certainly doesn’t have.

Second, contrary to the claims of many commentators, Justice Thomas wasn’t actually arguing for getting rid of all legal protection for contraception, same-sex marriage, and similar rights. Rather, he was calling for reconsidering the legal doctrine called “substantive due process,” which claims that the Constitution’s protection of “due process” doesn’t just guarantee proper “process” (like a fair trial), but also certain “substantive” rights not mentioned in the Constitution (like abortion). Many legal conservatives loathe substantive due process because they believe it gives unelected judges too much power to make up new rights.

But as Justice Thomas explained in his concurrence, if the Court were to heed his call to ditch substantive due process, the question would then become “whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” So various rights currently protected under substantive due process might still be protected by the “privileges or immunities” doctrine, mentioned by Justice Thomas, or other doctrines or provisions not mentioned by him, such as the Equal Protection Clause.

Third, even if a Supreme Court precedent protecting a certain right gets overruled, the right doesn’t go away overnight; it just gets decided by other institutions, usually state legislatures or the U.S. Congress. As Justice Brett Kavanaugh wrote in his own Dobbs concurrence, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.”

This is why I’m not as worried as many about the future implications of Dobbs, in terms of either Justice Alito’s opinion for the Court or Justice Thomas’s concurrence. Then again, I might be wrong—and it wouldn’t be the first time. In 2018 and again in 2021, I predicted that Roe would not be overruled. So much for that.

I just expressed skepticism toward Justice Thomas’s solo concurrences, which are often like the mutterings of your crazy uncle at Thanksgiving. You can safely ignore your crazy uncle—but you can’t ignore Justice Thomas, since every now and then, he turns out to be crazy prophetic.

In 1997, in a case called Printz v. United States, Justice Thomas wrote a solo concurrence suggesting that the Second Amendment protected an individual right to keep and bear arms. At the time, this was contrary to Supreme Court precedent, and his view was dismissed by many as kooky. But eleven years later, in D.C. v. Heller, Justice Thomas’s once-fringe view became the law of the land.

Then this past Thursday, in New York State Rifle & Pistol Association, Inc. v. Bruen, Justice Thomas wrote for the Court in extending the reasoning of Heller, which focused on keeping guns for self-defense at home, to the carrying of firearms in public. So sometimes Justice Thomas’s improbable theories wind up getting enshrined in law, even if it takes a few years. And the current Court is far more conservative than it was when it decided Printz, perhaps making Thomas a better barometer today of where the Court might go in the future.

To those worried about post-Dobbs America: don’t panic, but don’t let down your guard. Go out there and win some elections—which is the only way to bring change to the Court, and to the country.