Lowering the Bar

Does Size Matter? (Or, In Memory of Miss Wiggles)

That's one way the court described the question before it in this case (click for the full opinion):

More specifically, the plaintiffs sought an injunction against the enforcement of a San Antonio ordinance that required their dancers to wear more than before, but the court denied the request, finding that the plaintiffs' First Amendment challenge was not likely to succeed.

The opinion (by the chief judge of the court) is highly amusing, even if you aren't a particular fan of the double entendre, of which the opinion is chock full. I especially enjoyed the entirely irrelevant mention and picture of "Miss Wiggles," an exotic dancer who apparently performed (fully clothed) at the Eastwood Country Club in San Antonio in the 1960s, and who according to the court has recently passed away.

A close second to the memory of Miss Wiggles was the historical note, which I have confirmed, that from 2005 until December of last year the relevant San Antonio ordinances referred to the sort of businesses in question here as "human display establishments."

They are now perhaps more accurately, but much more boringly, called "sexually oriented businesses."

Hairy-Visor Infringement Update!

A reader (Prof. Steve Kass) who was intrigued by yesterday's intellectual-property tale did a little research and uncovered some potentially relevant evidence.

First, as you may recall, the plaintiff is seeking a declaratory judgment that it did not infringe on a patent for the "ornamental design of a visor with simulated hair." The complaint mentioned (rather carefully, I thought) that Plaintiff had compared the patent to "products it previously sold but no longer sells," and had decided that those previously sold products did not infringe. Those products do not now appear on Plaintiff's website, but through the wonder (or horror, depending who you ask) of Google's cache, we can still see what they looked like:

According to Google, that snapshot was taken on April 14, 2013, 13 days before the complaint was filed. Doesn't necessarily mean they were still actually being sold, but there they were.

Here again is the design sketch from the patent, and a closeup of the finished product in use as depicted on the defendant's website:

Did the plaintiff's "Hair Hats" infringe on the defendant's "Flair-Hair Visors"? You be the judge. (If you are in fact the judge, that's just a figure of speech, I'm not trying to tell you what to do.) My first thought was that while they are similar products, Plaintiff's hats seem to have been made only with non-natural (neonish) hair colors, so maybe that made them distinctive. But according to Prof. Burstein, who actually knows something about design-patent law, "Nope. Color isn't claimed in the patent, so any color can infringe." (Now that I think about it, it's not like the hair pictured above is all that "natural" anyway.)

Finally, we learn that it is possible to buy a product that looks very much like the Hair Hat from a supplier in China, and the supplier refers to that product as the "flair hair sun visor":

This of course doesn't prove that this is actually where the Hair Hats came from, or that there is any connection whatsoever between this supplier and the plaintiff. The supplier could very well be licensed to produce these things, or (for all I know) could be a hostile infringer ready to flood the United States with up to 200,000 hairy visors per month, which according to its website is the number it could supply.

At that rate, it would still take over 131 years to supply every man, woman, and child in the U.S. with such a thing, so we have some time to consider what our policy should be here. I just didn't want people to freak out.

Comes Now the Plaintiff, Seeking a Declaratory Judgment of Hairy-Visor Non-Infringement

1. A recently filed complaint contains the following statement: "U.S. Pat. D557,478 is a design patent for the ornamental design of a visor with simulated hair."

2. Said patent includes sketches of the proposed visor, to wit:

3. In the complaint, Plaintiff states that Defendant, a seller of hats, has said that it intends to file suit against Plaintiff seeking to enforce said patent.

4. A URL contained within U.S. Pat. D557,478 leads to a website indicating that Defendant does in fact sell ornamental visors made with simulated hair, to wit:

Exhibit A

5. On information and belief, the hair depicted atop the head of the man pictured in Exhibit A is simulated hair attached to a visor, not hair belonging to and/or grown by the man so pictured. 

6. Defendant's website states that one wearing said visor may be looked upon as "the life of the party," a statement allegedly supported by Exhibit A, in which the wearer appears to be the recipient of substantial attention from the opposite sex as shown by evidence including but not limited to facial expressions as well as the fact that two of the women have placed their hands upon the leg of the visored gentleman and the third would apparently like to as well but is getting blocked by that harlot in the necklace.

7. Plaintiff states that it has compared U.S. Pat. D557,478 to products it previously sold but no longer sells, and has concluded that it did not and does not now infringe upon U.S. Pat. D557,478. 

8. Plaintiff therefore seeks a judgment declaring that it is not liable for infringement, and an injunction preventing the threatened lawsuit.

9. The undersigned states that he became aware of the above via @design_law, the Twitter account of Prof. Sarah Burstein at the University of Oklahoma.

                                            Respectfully submitted,

                                            M. Kevin Underhill, Esq.

WARNING: Peanut Shells May Contain Peanuts

Here's how utterly ridiculous this story is.

In the UK, unshelled peanuts are called "monkey nuts," as depicted here, but although this story therefore involves people being "warned not to eat roasted monkey nuts," THAT IS NOT GOOD ENOUGH BY COMPARISON TO MAKE IT INTO THE HEADLINE.

As noted at Overlawyered, this is by no means the first time this sort of thing has happened. But it never gets much easier to believe.

Last week, the E H Booths company announced (right) that it was withdrawing a number of packages of the aforementioned Roasted Monkey Nuts—which are peanuts—because it had learned to its dismay that "peanuts are not mentioned as an allergen on the back of [the] pack." That was true, but on the plus side the package did say "Roasted Monkey Nuts" on the front of the pack and was made partly of transparent plastic so that the monkey nuts could be seen inside the pack. (This is not an actual E H Booths package, but reports are that those are similarly transparent.) The actual peanuts could not be seen inside the peanut shells, of course, and this seems to have been the source of the public danger.

"If you have an allergy to peanuts," the alert continued, please do not consume this product [because it is peanuts]. No other products are affected by this issue [because those products would not be peanuts] and we sincerely apologise for the inconvenience caused." The alert has been posted in stores and also on the website of the UK's Food Standards Agency. The company was also said to be contacting the relevant allergy support organizations so they could tell their members about the problem. I would say, though, that if these organizations haven't already successfully educated their members on what the thing they are allergic to looks like, we should not rely on them as the first line of defense against the threat of unlabeled monkey nuts.

A commenter at Overlawyered pointed out, correctly, that despite the name and appearance, the peanut is not actually a nut. It's a goddamn legume, like beans and peas. (The regional term for peanuts in some parts of the American South is "goober peas," the "goober" part allegedly coming from nguba, the Bantu word for "peanut.") Fine, but that has nothing to do with this story. According to the BBC, "monkey nuts" just means unshelled peanuts, and so anyone with a peanut allergy is not going to be confused by this alleged nut/legume dichotomy. The real point of this paragraph, though, is to note that the Wikipedia entry on "Goober Peas," a traditional Southern folk song about peanuts, claims that the song is "frequently covered by pop singer Elton John during live shows," which has got to be complete bullshit.

I'm not buyin' it

If you have ever actually witnessed Elton John covering "Goober Peas" in concert, please let me know at once. I may still need a bootleg of this before I'll be willing to believe it.

 

Assorted Stupidity #51

• "Disciplinary records, ... special-needs records, testing records, addresses, phone numbers, email addresses and birth dates are among some of the data [about school children] that can be shared with the third-party vendors contracting with state and city districts" without parental knowledge or consent, according to a Village Voice report on a new state initiative. According to these reports, the electronic data also include race, economic status, foster-care history, and the child's name and picture. What could go wrong?

• "I'm not sure there's consent involved," said a spokesman for the New York State Education Department about the program. Translation: they didn't ask for it.

• An argument about whether a $28 billion case could proceed in federal court came down to a comma, Reuters reported this week. This was a statutory-interpretation case, not a typo-might-cost-somebody-$100-million-dollars case, but it does make the point (again) that details matter in the legal business.

• I had written a longer post about the comma case, but after my head hit the keyboard several times while re-reading it I decided it was too dull to use all of it. You're welcome.

• "Other [real-estate] agents have been told that their staff should check properties first before taking prospective buyers or tenants inside," according to this report. There are probably several reasons for this, but one good one is "make sure there are no dead bodies in there."

• No two headlines about this story are the same, and there are a number of ways to go here, but I will give the nod to TIME magazine for "Samurai-Sword-Wielding Mormon Bishop Saves Neighbor." What does a mugger say when confronted with a samurai-sword-wielding Mormon bishop? "I'm leaving." A wise mugger says that, anyway.

• See also "Mugging Outside Ninja School Goes Poorly," Lowering the Bar (July 24, 2010).

Judge Holds Himself in Contempt for Cellphone Violation

"I thought it would never happen to me," said Judge Raymond Voet, who is the chief judge in Ionia County, Michigan. He was referring to the fact that his cellphone made noise in court on April 13 during a trial. Like many judges, Voet hates it when cellphones ring in his courtroom, and he hates it enough that he has had signs posted outside saying that violators will be fined $25 if it happens.

Unlike some judges, perhaps, Voet was willing to impose the fine on himself when he violated his own rule.

The judge said he had recently switched from the Blackberry model he has had for years to a Windows phone with a touchscreen, and believes the phone wasn't locked when he came to the bench with the phone in his shirt pocket. Worse, this particular phone apparently comes with voice activation, which was news to the judge. He said something to trigger it, and the phone spoke up.

"I can't understand you," it said. "Say something like 'mom.'"

Say what you want about Siri, but at least she shows a little more respect.

The judge admitted it was embarrassing to be in violation of his own rule, but to his credit he did not hold himself above the law. He held himself in contempt, fined himself $25, and walked downstairs to pay the fine. "Judges are humans," he said. "They're not above the rules. I broke the rule and I have to live by it."

That is an honorable position that some would say not every judge in history has taken, not that I'm singling out anyone in particular.

Classifying a Killer Whale for Tax Purposes

That's the title of this short video (1:13) in which Professor Jeff Karlin of Golden Gate University explains that the IRS distinguishes between killer whales and great white sharks, although both are big giant swimming things that could potentially eat you:

Sadly, the video doesn't go into much detail, which is unusual because it appears to be designed to encourage people to go to law school, which as some of you know involves relatively fun and interesting topics like this one absolutely every single day.

My guess is that he was discussing classification of gains and losses from the sale of business property under section 1231 of the tax code. There is a special rule for "livestock" (1231(b)(3)), which says cattle and horses are business property if you have had them for particular purposes for more than 24 months, but "other livestock" only have to be held for 12 months. It also says poultry aren't "livestock," but leaves the question of how to define "other livestock" a perplexing and frustrating mystery.

Luckily, Treasury Regulation §1.1231-2(a)(3) comes to the rescue:

For the purposes of section 1231, the term "livestock" is given a broad, rather than a narrow, interpretation and includes cattle, hogs, horses, mules, donkeys, sheep, goats, fur-bearing animals, and other mammals. However, it does not include poultry, chickens, turkeys, pigeons, geese, other birds, fish, frogs, reptiles, etc. 

I would assume that poultry et al. are thus subject to the general rule, not this special one for "livestock." The question of why the lines are drawn this way is surely a totally fascinating one but involves way more research than I care to do on a Sunday afternoon. (To be honest, so did this.)

In any event, as Prof. Karlin explains, an orca is a mammal and so is classified as "livestock," while the dead-eyed remorseless killing machine roaming the seas in search of human prey that is the great white shark (source: "Jaws 3-D") is a fish, and so is outside the livestock category along with frogs and chickens and so forth.

As to how this may affect your plans to start your own great-white-shark ranch, I can't advise you on that. Please consult a tax expert and a psychologist.

Via Martin Gardiner at Improbable Research.

Attorney: "The Training I Received at Hustler Was Extremely Helpful" in Law School

Susannah Breslin, who is a contributor at Forbes.com, has posted her interview with Dan Kapelovitz, who is currently a criminal-law attorney but previously worked at Hustler magazine. See "How A Porn Magazine Editor Became A Criminal Law Attorney," Forbes.com (Apr. 17, 2003).

According to this, that magazine has articles in it, and Kapelovitz worked as an editor/writer of said articles. He says he frequently wrote about criminal-law topics, and ultimately decided to go to law school. "It turned out that I loved law school," he says, "and the writing and editing training I received at Hustler was extremely helpful."

You should read the whole interview, which has many great quotes in it. I will just borrow one more:

What's the difference between being a porn magazine editor and being a criminal law attorney?

Not much.... [I]n both jobs, you spend hours and hours researching and writing something that very few people are going to actually read.

Tax Day

On top of everything else, Monday was tax day, and while we were just reminded that tax gripes are relatively minor in the scheme of things, of course, that doesn't mean we should stop griping entirely.

If you failed to file a return, be aware that you may suffer from a condition known as "Late-Filing Syndrome" or "LFS," a medical problem that can affect a taxpayer's ability to file tax returns on time (or at all). Consult your doctor and tax lawyer to be sure that you and your bank account are healthy enough for tax-filing activity before attempting to engage in it.

The main reason for this post, however, is to ask that if you ran afoul of some odd regulation this time around, or were able to take advantage of one and it's sufficiently weird, or if you just know of one for whatever reason, please bring it to my attention for possible inclusion in the ongoing Odd Law Project, which is rapidly being bookified.

We are all aware, of course, that certain whaling captains can deduct their expenses, that men who paid for sex cannot (at least not without receipts), that witchcraft is a taxable profession in Romania, as is lap dancing in New York, and that "necessary expenses incurred as a [Playboy] Bunny" are deductable, or at least they were in 1968.

If you find a weird one, though, please let me know about it.

Plaintiff Who Keeps Suing Search Engines Still Not Clear on Streisand Effect

Me in 2010, on Stayart v. Yahoo:

"Like many," this opinion begins, "Beverly Stayart was curious about what she would find when she put her name into a search engine." And like many, Beverly Stayart was not happy with what she found. Unlike anybody else, however, Beverly Stayart sued the search-engine company, claiming that the results it associated with her name falsely gave the impression she personally endorsed the products and services listed, including various pharmaceuticals and what the Seventh Circuit called "websites promoting sexual escapades." On September 30, the court affirmed the dismissal of Stayart's claim.

* * *

In April, Stayart sued Google on essentially the same grounds, and sooner or later, will get essentially the same result.

The Seventh Circuit recently, on Stayart v. Google:

Dissatisfied with the results of internet searches for her name, Beverly Stayart has launched a legal campaign against internet search engines. In this, her third lawsuit, she contends that Google is in violation of Wisconsin misappropriation laws because a search for "bev stayart" may lead to a search for "bev stayart levitra," which in turn may lead to websites advertising drugs to treat male erectile dysfunction. The district court dismissed her lawsuit for failure to state a plausible claim for relief and ... we affirm.

Amusingly, one of the reasons Bev lost this time is that she made such a big fuss over it last time. There is a "public interest" exception to misappropriation laws, and the court found that "Stayart made the challenged search phrase 'bev stayart levitra' a matter of public interest by suing Yahoo! over it in 2010. And as a matter of public interest, that phrase cannot serve as the basis for a misappropriation suit."

The court did not actually mention the "Streisand Effect," which Wikipedia defines as "the phenomenon whereby an attempt to hide or remove a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the internet," but this is yet another excellent example of that.