Judge expels Yoko's suit against "Expelled"
JUDGE GIVES TWO THUMBS UP FOR FAIR USE
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In a 23-page opinion, a federal judge has denied Yoko Ono et al.'s motion for a preliminary injunction against the producers of "Expelled" for alleged infringement of the copyright of the song "Imagine." We have not yet heard from the state court judge but I expect him to follow suit.
The ruling is hardly surprising -- Yoko et al. had a very weak case. The only thing that I was worried about was the claim that the movie producers discriminated against "Imagine" because they paid licensing fees for other music in the film, but the judge dismissed that claim.
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Though this ruling is only on a motion for a preliminary injunction, for all practical purposes it is a final ruling -- all significant issues have been thoroughly addressed and there are no additional facts to discover. Yoko et al. can appeal, but IMO they would be wasting their time -- they lost on all of their claims in the district court. They could still lose an appeal even if they win some of their claims.
The Darwinists' invective against the "Expelled" producers for using the song without permission was incredible -- for example, Josh Rosenau, who is on the staff of the National Center for Science Education, titled a post on his Thoughts from Kansas blog, "Expelled steals from the dead".
My prediction that the judge's opinion would be a 100-page dissertation was not far off the mark -- it was 23 pages (actually only about 22 pages if the heading and signature section are subtracted). That is a lot more than I got in my lawsuit against the "smog impact fee" -- I got no oral hearing and no written opinion, even though my argument against defendant California -- that the state lost its federal-court tax-suit immunity by "leaving the sphere that is exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept.) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations -- was so airtight that the state's attorney did not even attempt to answer it.
Comments about the ruling may be left at the following websites: Panda's Thumb, Wall Street Journal Law Blog. I will add other sites that allow commenting when I find them --
Lessig Blog
Pharyngula
Uncommon Descent
.
Labels: Yoko Ono lawsuit (new #1)
posted by Larry Fafarman | 6/02/2008 02:00:00 PM
19 Comments:
Larry, don't you find it somewhat appropriate that the Judge Stein mentioned 2 Live Crew in his ruling opinion? :)
Who needs TV when the world is this entertaining, eh?
The judge could hardly avoid mentioning 2 Live Crew -- their music was the target in a landmark copyright infringement lawsuit, Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)
If this is the end of the suit, it's a victory for freedom of speech, and a defeat for the freedom-hating Darwin-fans. "Peter the Lawyer" Irons must be weeping over this one.
>>>>> If this is the end of the suit <<<<<<
The suit has already received more of the judge's time than it deserves. Because of the new FRAP Rule 32.1 prohibiting federal courts from prohibiting citations of unpublished opinions, judges now have a greater tendency to either (1) write detailed unpublished opinions or (2) write no opinions at all, because this new court rule raises the risk that an unpublished opinion will be misinterpreted. A 9th Circuit judge (Kozinski?) said that before this new rule was adopted, unpublished opinions were mostly just informal letters to the litigants explaining the reasons for the decision.
All litigants pay the same court fees. In the federal court where the Yoko suit was filed, the fee for filling a new case is $355 (back when I filed my suit against the smog impact fee in 1995, the fee was $120 in a different federal district court). The courts are probably subsidized by tax dollars -- I presume that the fees don't cover the costs of operating the courts. However, it is obvious that the cases of the rich and famous get the lion's share of the financial support that courts receive. Courts are like pension systems. It used to be that one had to stay at least 10 years with the same company to become vested in the company's pension system. I have heard pension systems described as systems where the losses of the many create the funds for the payoffs to the lucky few, just like at any honest racetrack. The same is true of the time that judges allocate to different cases. People need to learn how our corrupt court systems really operate.
Speaking of songs, Larry has already written one great song for the Darwin-fans to sing. So let's see if I can try my hand at it, too.
Darwin-lovers, sing, and get in the spirit of your old 19th-century beliefs! Here's a song for you:
My Darwin-faith's in
What slaughter can do!
By mindless blunder,
It made me from goo!
Through gore and plunder,
It created you!
I have such faith in
What slaughter can do!
Whenever I point out, as I just pointed out, that Darwinism is an antiquated 19th-century doctrine, as well as being very implausible and contrary to most of the evidence, what happens?
Why, some Darwin-fan usually pokes his or her head up, like a gopher from a hole in the ground, and yells: "Nyah! Nyah! And you're a creationist and a fundie! You believe in the Bible! Nyah!"
These Darwin-fans seem to be too ignorant, or else too stupid, or simply too mistrustful, to understand when I tell them that I'm not a creationist: that I believe in descent of new species from old; but not in the specifically Darwinist version of such descent, i.e.,descent due to perfectly mindless and mechanical causes; and especially to chance, competitive struggle, death, and slaughter.
And so far from being a creationist or a "fundie," Darwin-fans, I'm not a Christian or even really a theist or deist; I respect Christians; but I personally am not among their number. My own spiritual views are rather amorphous; I'm certainly not a materialist; and Zen Buddhism and meditation have influenced me quite a lot.
And so, no, I don't read the Bible. I presume that Christians, religious Jews, and others who read the Biblical texts may find something in them; but I personally have never found it.
Anyway, Loco Bozo Oh-No-No seems to have filed this silly lawsuit mainly because the wild-eyed Darwin-fanatics, on their blogs, were coming down on her. They wanted her to do something to try to interfere with freedom of speech, by disrupting the movie:
When Yoko went loco, she yelled,
"I'll scream at that Ben, and EXPELLED!
I hear that some blogs
Are croaking like frogs,
So a MOVIE oughta be quelled!"
lol, Jim
It's heartbreak hotel in denial for some atheists who wanted Yoko lawsuit to go further than a mile. But in display, they smile and say, now you all creationists, go away! lol
Jim Sherwood said,
>>>>>> Loco Bozo Oh-No-No seems to have filed this silly lawsuit mainly because the wild-eyed Darwin-fanatics, on their blogs, were coming down on her. They wanted her to do something to try to interfere with freedom of speech, by disrupting the movie <<<<<<
I wonder if those BVD-clad Darwinist bloggers are satisfied by now that she has adequately shown that she is unhappy about the use of the song in the movie. Maybe they won't be satisfied until she appeals all the way to the Supreme Court.
The filing fee for a new action is $350 (not $355, as I previously stated) in the federal district court where Yoko et al. sued (there are no additional fees for motions, like in the L.A. County Superior court), and they have gotten their money's worth already and then some. They got an oral hearing and a 23-page opinion, which is a hell of a lot more than I got in my federal-court lawsuit against California's unconstitutional "smog impact fee." I got NO oral hearing and NO written opinion, even though I made an argument that the state's attorney did not even attempt to answer -- that the state lost its federal-court tax-suit immunity by "leaving the sphere that is exclusively its own" (Parden v. Terminal Railway) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations. An expert later testified in state court that the fee required the approval of the US Environmental Protection Agency. Trolls like Kevin Vicklund have finally given up trying to argue that my point was not valid.
Some Darwinists actually think that Yoko's suit is still alive. For example, Wesley "Ding" Elsberry said,
I’m all for “fair use” being more expansive. I’m also all for whoever can legitimately argue that “Expelled” infringes their rights to nail those folks to the wall in court. I guess we’ll see when the full case goes before the judge how this particular dustup plays out.
The full case has already gone before the judge, idiot. As for "whoever can legitimately argue that 'Expelled' infringes their rights," permission was obtained for all other music in the movie and XVIVO has not shown that it is a copyright holder of the XVIVO video that is imitated in the movie (in fact, the "Expelled" producers are suing XVIVO for defamation).
-- and he also says,
If the case had no merit, then I’m sure the judge would have entertained a motion to dismiss it. That doesn’t seem to have happened.
"Ding" Elsberry is just too dense to see the clear handwriting on the wall.
Michael said...
>>>>>> It's heartbreak hotel in denial for some atheists who wanted Yoko lawsuit to go further than a mile. But in display, they smile and say, now you all creationists, go away! <<<<<<
Poetry is supposed to be arranged in lines.
lol, Larry, but it is mines, no such law exists in a blog...
This comment has been removed by the author.
I can't believe how many visitors you've had from PZ's blog today, Larry. So you're up to 166 total visits already today.
I've been trying to determine what damage Loco Bozo Oh-No-No's attack may have done to the movie. There has been no activity on the blogs at the EXPELLED website since April 30, and no news has been published on the website since May 5. Could that have been due to the injunction? The box office seems to have topped out at about $7.6 million or a little more, which isn't bad for a documentary about ideas: obviously the hardest thing to sell. I'm not sure whether or not the movie is still in any US theatres.
Anyway, the movie dealt a significant blow to the Darwinist propaganda machine, which operates through the mainstream media and PBS.
Once the movie goes to DVD, it will resume it's profits...I agree, the profit margin for the movie isn't that bad for a documentary but in reality, I view it as not that important but rather it's content.
Good points, Michael! With the lawsuit out of the way, as seems to be the case, EXPELLED can go to DVD. It's a good movie; I saw it twice, and everyone who is interested in this controversy and who isn't a dogmatic Darwin-fan, will probably be interested in seeing it, and will have the opportunity. It will do a lot to help to inform the public.
Jim wrote: "Speaking of songs, Larry has already written one great song for the Darwin-fans to sing. So let's see if I can try my hand at it, too.
Darwin-lovers, sing, and get in the spirit of your old 19th-century beliefs! Here's a song for you:
My Darwin-faith's in
What slaughter can do!
By mindless blunder,
It made me from goo!
Through gore and plunder,
It created you!
I have such faith in
What slaughter can do"
Jim - keep your day job.
What "song" have you or Larry written? Seems to me all you wrote was some words.
They are "songs," you anonymous one. A "song" sometimes means a stanza or stanzas which might be set to music; for instance, we speak of the "songs" in Shakespeare's plays.
So, Darwin-fans ought to be happy to have some "Darwin carols" to sing, next Darwin Day, courtesy of Larry and myself.
But the Darwin-fans want the music too: so here it is.
Larry's song is obviously patterned on "Imagine," and thus meant to be sung to that well-known tune.
My own song is patterned after another well-known song, which contains the lines:
"It is no secret
What God can do,"
So sing both songs to the tunes in question, all ye Darwin-apostles, when Darwin Day next rolls around.
To be explicit, you Darwin-zealots should sing "My Darwin-faith's in/What slaughter can do!" to the tune of the well-known: "It is no secret/What God can do." Got the idea now?
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