Donald Trump Asserts Fair Use, 'Absolute Immunity' In Lame Attempt To Evade Copyright Suit By Eddy Grant

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Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a "Trump/Pence" train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people's hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn't like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative... but that isn't how it works. Simply using the song in a way the author didn't intend doesn't make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump's Motion to Dismiss.And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint... but with a twist! More on the twist in a moment, but first the fair use argument.

Former President Trump denied Eddy Grant's copyright infringement claims in a formal response submitted to the court late Monday night."Defendants deny that they have willfully and wrongfully infringed Plaintiffs' copyrights," the response said. "Plaintiffs' claims against Defendants are barred, either in whole or in part, by the doctrines of fair use and/or nominative use."

The former president also asserted Grant cannot sue him because of what Trump's attorneys called "Presidential absolute immunity."

"Given the court's recent favorable determination, there are very few issues that remain to be resolved. We are confident that our clients' rights will ultimately be fully upheld and look forward to Mr. Trump fully explaining his actions," Grant's attorney, Brian Caplan, said in a statement provided to ABC News.

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A Drug Dog's Nose Poking Through The Open Window Of A Car Is Unconstitutional, Says Idaho's Top Court

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How much of a violation needs to take place before it's a Constitutional violation? It's a trick question, at least in the hands of the right judge. With the wrong judge, a minimal violation is considered excusable, or at least salvageable by any number of Fourth Amendment exceptions.But with the right judge, any Fourth Amendment violation is a Fourth Amendment violation, no matter how small or how fleeting it is. That's how we get to this decision [PDF], handed down by the Supreme Court of Idaho, which not only calls on cops to do better with their drug dog handling, but also tips the hat to recent decisions involving parking enforcement measures. (via FourthAmendment.com)Here are the facts of the case:

In March 2019, police officers stopped Howard for a traffic violation and took him into custody after discovering an outstanding warrant for his arrest. Officers then brought in a drug-sniffing dog (“Pico”) to sniff the exterior of the car. Pico alerted to the presence of illegal drugs, and a subsequent search of the car uncovered methamphetamine, heroin, and drug paraphernalia. Neither Howard nor his passenger was the registered owner of the vehicle, and police contacted the owner who took possession of the vehicle at the scene.After prosecutors charged Howard with drug trafficking offenses related to the heroin and methamphetamine, Howard moved to suppress all evidence arising from the search of the car. During the hearing on the motion, Howard argued Pico momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones, 565 U.S. 400 (2012). The only witness testifying at the hearing was Officer Amy Knisley, Pico’s handler. A portion of Knisley’s body camera footage showing the dog sniff was also admitted into evidence.

The district court denied Howard’s motion to suppress because it found the Court of Appeals opinion in State v. Naranjo, 159 Idaho 258, 359 P.3d 1055 (Ct. App. 2015), was controlling. In Naranjo, the Court of Appeals held that a drug dog’s sniff through the open window of a vehicle had been “instinctual”—as opposed to facilitated or encouraged by the police—and therefore was not a “search” for the purposes of the Fourth Amendment.

We agree with Howard that Naranjo is inconsistent with Jones and that Pico’s entry was a search. Jones is clear that for purposes of the Fourth Amendment, a search occurs when the government trespasses in order to obtain information.

Though not squarely on point, and certainly not binding on this Court, we find that the Sixth Circuit Court of Appeals decision in Taylor v. City of Saginaw is instructive. In Taylor, the city enforced time limits for parking by tire chalking, i.e., placing chalk marks on the tread of car tires—marks that rub off as soon the cars are moved—to determine whether the cars have remained in place longer than allowed. The plaintiff, apparently a frequent recipient of parking tickets, alleged that the practice violated her Fourth Amendment rights. The city responded, in part, by arguing that chalking was not a search for purposes of the Fourth Amendment. The Sixth Circuit disagreed. It held that chalking, though a slight interference with private property, was nevertheless an interference for the purpose of obtaining information and therefore a “search” under Jones.

Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.

When the statements of Officer Kinsley’s belief are excluded from our consideration of her testimony, these are the facts that remain: (1) Pico is a certified drug dog trained to sit or lie down to indicate the presence of drugs; (2) Pico did not sit or lie down before entering the car; (3) at least sometimes Pico “freezes” or tries to “cheat the system” by looking at the officer for his reward before indicating as he has been trained to do; (4) Pico froze and looked back at the officer before entering the car. From these facts, we cannot know whether Pico’s freezing and looking back was a reliable indication that narcotics were present, and we cannot determine whether Officer Kinsley’s subjective belief was objectively reasonable. For instance, how often does Pico freeze or look back at the officer before giving a final, trained alert? Does Pico only freeze when in odor? Does Pico only try to “cheat the system” when narcotics are present?

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PayPal Enables Scam Artists

Word to the wise, make sure to diligently check out the reputation of whomever you're ordering from whenever you decide to use Paypal as the payment method. I didn't, and what I received wasn't even close to what I ordered. And I've since learned that this is a growing scam category... entice orders of things that appear to be bargains, but still cost between $50-$100, deliver a toothpick in an envelope, then because there's a delivery notification that can be cited by Paypal, they deny a request for a refund, and there's nothing the scammed customer can do about it, because you're shielded from any contact information beyond the Paypal email address of the scammer.

I suggest never using the scam artist enabling Paypal shysters again.

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Court Says City Of Baltimore's 'Heckler's Veto' Of An Anti-Catholic Rally Violates The First Amendment

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One of the more common violations of the First Amendment is viewpoint discrimination. When entities run into speech they don't like, they often steamroll Constitutional rights in their hurry to shut this speech down.The government is allowed some time and place restrictions on speech, but it is very limited in its options. To expand these options, government entities will often say things about "public safety" to justify their incursion on people's rights. These justifications rarely justify the overreach.Maybe these things happen because governments (incorrectly, in some cases) assume those whose rights have been abridged won't sue. Maybe they happen because governments assume nebulous "public safety" concerns won't be examined thoroughly if they are sued. Or maybe they just assume that, because they're using the public's money to both violate rights and defend against accusations of rights violations, none of this really matters because it isn't any particular government employee's money at stake.That brings us to this case [PDF], where a Maryland federal court has ruled the government had no justifiable reason to shut down a "prayer rally." What it did have were some unjustifiable reasons, which were mainly related to the speakers and the kind of speech the government expected to be uttered… I mean, if it hadn't unconstitutionally shuttered the event. (via Courthouse News Service)Here's some brief background by the court, which doesn't highlight the most likely trigger: alt-right figurehead Milo Yiannopoulos, who has been banned from [name a social media platform].

St. Michael’s, a non-profit organization, “is a vocal critic of the mainstream Catholic Church,” including the United States Conference of Catholic Bishops (“USCCB”). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB’s Fall General Assembly. The USCCB plans to meet from November 15 – 18, 2021 at the Waterfront Marriott Hotel (“Hotel”), a private facility located near Pier VI.On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael’s that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.

Michael Huber, Mayor Scott’s Chief of Staff, avers that the discussions between SMG and St. Michael’s “came to the attention” of the City in July 2021. In particular, the City learned that St. Michael’s planned a rally featuring speakers “known for encouraging violent actions that have resulted in injuries, death, and property damage.” In the City’s view, some of the speakers would “provoke a strong reaction and raise the potential for clashes and disturbances,” given the “very real potential [that the speakers] would use [the rally] to incite violence and public disruption.”

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications.As to the matter of discretion, the City apparently has unbridled discretion to determine whether, when, and how to intervene in bookings of the Pavilion. The record before the Court indicates that the process used here was entirely ad hoc. After plaintiff’s plans came to the attention of the City, the City decided to intervene with SMG, requiring SMG to terminate negotiations with St. Michael’s. No policies, guidelines, or procedures have been brought to the attention of the Court providing any factors or systematized approach governing the City’s actions here. As far as the Court is aware, none exist.

The City’s invocation of a heckler’s veto also raises serious concerns that its decision was motivated by viewpoint discrimination. Huber cited the prospect of counter protestors when explaining the City’s decision. And, at the hearing, counsel for the City placed considerable weight on the City’s concerns as to counter protestors and the disruption and potential violence that might ensue. In other words, the City seems to have based its decision on the anticipated reaction of counter protestors, which is precisely the “persistent and insidious threat[s] to first amendment rights” discussed in Berger, 779 F.2d at 1001…This is not an acceptable justification for regulating speech.

As the Ninth Circuit put it in Seattle Mideast Awareness Campaign, although this concern might receive less weight outside of a traditional or designated public forum context, it is still relevant when “used as a mere pretext for suppression expression” based on viewpoint. This includes, for example, “where the asserted fears of a hostile audience reaction are speculative and lack substance.”Such is the case here. The City cannot conjure up hypothetical hecklers and then grant them veto power.

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