Don Henley wins copyright case against Chuck DeVore

Mr. desmoinesdem alerted me to a recent court ruling in Don Henley’s copyright suit against Chuck DeVore for two web videos DeVore made during his U.S. Senate campaign in California.

Ben Sheffner has been covering the lawsuit at the Copyrights and Campaigns blog.

Henley sued over web videos that set new lyrics to two of his songs. DeVore changed “The Boys of Summer” to “The Hope of November” in a video that mocked Barack Obama, and he changed “All She Wants to Do Is Dance” to “All She Wants to Do Is Tax” in a video that mocked Senator Barbara Boxer.

DeVore claimed fair use on the grounds that the songs he put in his videos were parodies. The problem for DeVore was that legally, “a parody comments on the work itself; a satire uses the work to comment on something else.” DeVore wasn’t rewriting lyrics like Weird Al Yankovic used to do to make fun of musicians. He was scoring points against Obama and Boxer. If you haven’t paid for the rights to use a song, you have to meet a higher legal standard for satire than for parody.

You can download Judge James Selna’s ruling here. Excerpt:

Even assuming that “parody-of-the-author” is a legitimate transformative purpose, the Defendants’ songs do not satisfy the fair use analysis, as discussed below. “Tax” does not target Henley at all, and “November,” which only implicitly targets Henley, appropriates too much from “Summer” in relation to its slight jab at Henley and risks market substitution for “Summer” or its derivatives.

DeVore had claimed he was mocking Henley as part of the liberal Hollywood elite, but Henley argued in one legal brief that he has given money to some Republican candidates, including John McCain. (Who knew?)

Selna agreed with the plaintiffs’ claim that by using the Henley songs in their videos, DeVore’s campaign supplanted the market for derivatives of the Henley songs, because “licensees and advertisers do not like to use songs that are already associated with a particular product or cause. […] This injury is the very essence of market substitution.”

While Selna granted the plaintiffs summary judgment on the issue of copyright infringement, he did not issue a finding on whether the infringement was willful. (If so, Henley would have a stronger claim for monetary damages.) Sheffner comments, “I assume there will be a jury trial on the issue of willfulness and damages, unless the parties are able to reach a resolution.”

Selna rejected the plaintiffs’ claim that DeVore violated the Lanham Act by giving people the wrong impression that Henley had endorsed DeVore’s Senate campaign. Sheffner explained in this post why he thought Henley would (and should) lose that portion of the lawsuit.

Other candidates and campaign staffers should review this case before they decide to use copyrighted songs in web ads.

Fun with the OR Voters’ Pamphlet: Ballot Measure Edition

This is the second part in my two-part series having a little bit of fun with the Oregon Voters’ Pamphlet.  This part discusses the main arguments presented by each side in every contested ballot measure and then dissects them for pure comedic value.

Cross-Posted from Loaded Orygun: http://www.loadedorygun.net/sh…

The Oregon Voters’ Pamphlet is currently posted at: http://www.sos.state.or.us/elections/nov42008/military_vp.html

Please note that this is the “Military/Overseas” edition and as such is a bit rough (it is basically scanned in PDFs).

For a more serious look at these measures, see my diary from a few weeks back: The Final Oregon Ballot: Game On!

For each measure I present each side’s major arguments and list the number of arguments filed for and against.  I then analyze and make fun of these arguments.

Note: These are obviously gross exaggerations of some of these arguments so bear with me.  I focus on the main argument for each side, but multiple arguments do exist for/against most measures.

For the record, this is how I personally will vote on each measure:

54: Yes.

55: Yes.

56: Yes.

57: Yes.

58: No.

59: No.

60: No.

61: No.

62: No.

63: No.

64: No.

65: No.

Oregon’s Ballot Measures:

Measure Summary:

Measure Type:

C-Constitutional.

S-Statutory.

Legislative Referrals:

Measure 54 (C):

Summary: This corrects a bizarre flaw in the state constitution that prohibits citizens under 21 from voting in school board elections (a provision which is, of course, not in effect but should be removed anyways).

No arguments filed for or against.

Measure 55 (C):

Summary: Minor fixes to the state’s redistricting process.

Known Opposition: None.

No arguments filed for or against.

Measure 56 (S):

Summary: Partially repeals the Double Majority law requiring that 50% of registered voters cast ballots in an election for a bond measure to pass for May and November votes.

Arguments Filed For/Against: 23/7.

Yes Argument: The Double Majority Law basically means that measures that would otherwise pass fail because people don’t vote.

The Real Argument: We’re losing because people don’t vote.

No Argument: The Double Majority Law protects taxpayers from being abused by local governments who may repeatedly sneak ballot measures past them until they pass.

The Real Argument: We hate taxes and we know that the only people likely to vote in non-general elections are those that support taxes.

Measure 57 (S):

Summary: Proposes an alternative to Kevin Mannix’s (R-Of Course) property crime sentence minimum initiative.  Focuses state policy on treatment rather than prison for low level drug and property crimes.

Arguments Filed For/Against: 23/6.

Yes Argument: Kevin Mannix’s crime bill costs too much because it requires building of too many prisons and focuses on punishment and not treatment.

The Real Argument: Mannix’s measure will pass if we don’t propose this measure so that’s exactly what we’re doing.  We can’t really afford this one either but we are in less deep sh-t if we pass this one than Mannix’s.

No Argument: This measure is just a kiss-off designed by politicians to appear that they are doing something when they are in fact not to prevent crime.

The Real Argument: We want everyone who has ever committed any real crime at all locked away forever.  Rehabilitation, forget it.  If Jean Villejean of Les Miserables fame stole bread under this measure, he’d get hard time and we don’t want any excuses about why he did it.

Citizen Constitutional and Statutory Measures:

Measure 58 (S):

Chief Sponsor: Bill Sizemore.

Summary: This measure would require English immersion rather than ESL for children for whom English is not their primary language.

Arguments Filed For/Against: 8/29.

Yes Argument: Children of immigrants learn English best and integrate best into our society if they have English immersion, not ESL.

The Real Argument: Learn English you Mex-I-Cans!  This is A-Mer-ika and you dang well better speak it rather than that there Espan-Yol….

No Argument: It costs too much and is not effective to force English immersion on new immigrants and their children.

The Real Argument: The other side is a bunch of racist f-ers and we shouldn’t listen to them.

Measure 59 (S):

Chief Sponsor: Bill Sizemore

Summary: This is at least the third time that Sizemore and his gang have proposed this measure, which makes federal income taxes fully deductible on state returns.  This measure largely benefits high wage earners and would blow a huge hole in the state’s budget.

Arguments Filed For/Against: 6/28.

Yes Argument: Allowing a full federal deduction saves taxpayers money and thus stimulates the economy.

The Real Argument: Allowing a full federal deduction saves rich people money (the current deduction covers most middle class folks).

No Argument: This deduction is unnecessary and would blow a huge hole in the state budget.

The Real Argument: This deduction would cost a whole lot of state jobs, including teachers. cops and firefighters.  You like teachers, cops and firefighters don’t you?

Measure 60 (S):

Chief Sponsor: Bill Sizemore

Summary: This would require “merit-pay” for teachers in public schools.

Arguments Filed For/Against: 6/26.

Yes Argument: We should focus on retaining the best teachers, not simply those that have been there the longest.

The Real Argument: We want another excuse to cut teachers we don’t like.

No Argument: Merit pay doesn’t work because it is difficult to measure student performance.

The Real Argument: We’re used to the seniority system and we want to keep it.

Measure 61 (S):

Chief Sponsor: Kevin Mannix

Summary: This is Kevin Mannix’s draconian sentencing measure for property and low-level drug crimes.

Arguments Filed For/Against: 7/19.

Yes Argument: Those committing low level drug and property crimes get off too easy nowadays.

The Real Argument: Measure 11 (Mannix’s Mandatory Minimum Measure) worked so well at increasing the need for prisons, why not go for broke?

No Argument: This law is overly punitive, most of these folks need treatment, not jail.

The Real Argument: We can’t afford this measure, it’s as simple as that.

Measure 62 (C):

Chief Sponsor: Kevin Mannix.

Summary: Dedicates 15% of Oregon Lottery proceeds to crime fighting/prevention efforts.

Arguments Filed For/Against: 6/10.

Yes Argument: If we want real crime prevention, we need a stable funding source like the lottery.

The Real Argument: This also takes away money from those pesky public schools to boot, we don’t like public schools that much.

No Argument: This would decrease funding for other programs, parks and schools mainly, funded by the lottery.

The Real Argument: Gambling has been funding us for a long time and we can’t afford to lose any money from people who are foolish enough to play the lottery.

Measure 63 (S):

Chief Sponsor; Bill Sizemore

Summary: This measure would allow minor building changes without a permit.

Arguments Filed For/Against: 6/24.

Yes Argument: Right now, in order to make minor building changes to your home or business, you need to get a pesky permit.  This should not be so.

The Real Argument: This is a backhanded way of starving local governments that depend on permit revenue and thus decreasing the size of government.  Oh and we hate pesky permitting requirements for the most part too.

No Argument: Permit requirements are there for our own good and safety.

The Real Argument: Local governments rely so heavily on permit revenues that we can’t afford to lose them.

Measure 64 (S):

Chief Sponsor: Bill Sizemore

Summary: Sizemore brings back an old and twice-failed idea to ban public-employee unions from using dues for political purposes.

Arguments Filed For/Against: 7/30.

Yes Argument: Since public employee unions work for the public, they should not be involved in any way in politics.

The Real Argument: Public employee unions are the single biggest source of funding for the Oregon D’s and this way we can kill the Democrats $ source.

No Argument: People can already opt out of their dues being spent on political campaigns.  This is just a backhanded way to destroy our influence.

The Real Argument: We lose a lot of our power if this measure passes.

Measure 65 (S):

Chief Sponsor: Former SOS Phil Keisling (D)

Summary: Creates a Top-Two Open Primary in which all parties run their candidates on the same ballot and the top two, regardless of party affiliation, advance to the general election.

Arguments Filed For/Against: 20/15

Yes Argument: The top two primary makes sense because it allows the top two candidates regardless of party affiliation to advance to the general election, allowing for choice and encouraging turnout in the primary.

The Real Argument: We don’t like the control parties have our the primaries.

No Argument: The top two primary doesn’t increase turnout and actually decreases the chance a third-party candidate will make it to the general election.  If you want to vote in a primary, register as a member of a political party.

The Real Argument: The Republican and Democratic parties don’t want to lose control of their nominating processes.

Let me know what you think.

Fun with the OR Voters’ Pamphlet: Candidate Edition

The following is the first of two parts reviewing the fun, the interesting and the just plain odd in Oregon’s Voters’ Pamphlet this year.  Think of this as a bit of humor to brighten your days.

Cross-Posted from Loaded Orygun: http://www.loadedorygun.net/sh…

The Oregon Voters’ Pamphlet is currently posted at: http://www.sos.state.or.us/elections/nov42008/military_vp.html.

Please note that this is the “Military/Overseas” edition and as such is a bit rough (it is basically scanned in PDFs).

For each candidate I will present their main message (for Rs and any fun third party folks), and my thoughts on what they are really saying.  Candidates are Rs unless otherwise indicated.

President:

McCain

What he says: Washington in broken.

What he means: I broke Washington and you fools expect me to fix it.

Nader (Peace Party)

What he says: Only I can fight for these issues that you care about.

What he means: I can do this because I apparently don’t read any newspapers and have a huge ego.

US Senate:

Smith

What he says: I am a centrist who supports both the Republican and Democrat (he spells it that way) parties.

What he means: HA HA, you fools, I love playing moderate for two years so I can be a typical Repub for four.

US Congress

2nd District

Walden

What he says: Being environmentally responsible is good for all of us.

What he means: Drilling and clear-cutting are good for all of us.

3rd District

Lopez

What she says: Local government is best.

What she means: But I want to be part of the federal government because they have all the $.

5th District

Erickson

What he says: I ran a business so I can run a government.

What he means: I hope to God people don’t remember how much of a hypocrite I am, I mean that trip to Cuba was a bit shady…

Secretary of State

Dancer

What he says: I want a nonpartisan Secretary of State.

What he means: Because that’s the only way a Republican will ever win this office.

State Treasurer:

Alley

What he says: I have run a business so I can run the state.

What he means: I hope to God people don’t know I ran my business (Pixelworks) into the ground (The price of the stock has dropped from $9/share two years ago to $1.60 now and was worth $60/share in 2004).

State Legislature:

I only profile selected races here due to space (e.g. those that are most humorous.

State Senate:

2nd District

Atkinson

What he says: I am a smart, independent and principled leader.

What he means: Yet I managed to shoot myself in the knee while fixing a friend’s bike.

14th District (My District)

Michaels

What she says; Vote by mail is rife with voter fraud (it’s not actually).

What she means: I don’t like vote by mail because it means Republicans lose.

State House:

9th District

Pearn

What he says: Government regulation has cost Oregon jobs.

What he means: I hate government, I want to drown it in a bath tub.

22nd District

Chereck (link to his bat-shit crazy post: http://www.sos.state.or.us/elections/nov42008/military_vp/chere_t.pdf)

What he says: Following God is the way to govern.

What he means: I want a theocracy.

Note: This guy is f-ing crazy. Among other things, he lists that he has a social security card and is married.  He also lists “The Bible” as part of his education, as well as “Pesticide application recertification training”.

36th District

Oppenheimer

What he says: My ideas should become law.

What he means: I know I have no chance to win, so why don’t I just propose the craziest things possible?

52nd District

Lindland

What he says: I’m not a normal politician.

What he means: If people f-k with me, I’ll use all my UFC skills against them, like in this video (except I won’t lose this time):

Let me know what you think…

Why Obama fans should be Ducks fans

Both for my own amusement and because I believe it, I am presenting the following list of why all Obama supporters should be Oregon Ducks fans  This list is meant in satire and I apologize in advance to those I may offend/attack (read: Michigan, Washington, USC, Notre Dame and perhaps Oregon State fans).  Cross-posted from Loaded Orygun: http://www.loadedorygun.net/showDiary.do?diaryId=1222

10: Just like Obama, Oregon is always underrated.  No one ever expects us to be good.  In fact, over the last ten years, Oregon is the third most underrated football team in the country, ranking, on average 32.5 spots higher in the final poll of the season than in the pre-season poll.

9: Oregon, like Obama, takes pride in changing the status quo.  Fifteen years ago, no one had heard of Oregon sports, now we are among the best in the country in both football and basketball.  Unlike say Notre Dame, which seems to rest largely on its own past performances.

8: Oregon, like Obama, is an offensive-minded team.  Lead by Dennis Dixon, for example, Oregon’s spread offense last season was among the best in the country.  Just see this play again Michigan as evidence:

7: Oregon, like Obama, is thought of by its detractors as more than a little corny.  While in Obama’s case it is the slogan “Change you can believe in”, in Oregon’s case it is our uniforms, as seen below:

Ducks Uniforms.

6: Even as our opponents cheat, in Obama’s case McCain, in our case, Washington and USC, both Oregon and Obama refuse to do so.  Both of us win regardless, which should be respected.

5: Both Oregon and Obama get smeared as being part of a subversive plot.  While for Obama it is the fake Muslim smear, in Oregon’s it is the accusation that because Phil Knight gives a lot of money to the athletic department he essentially runs it.  Both are untrue and both Oregon and Obama rise above it.

4: Both Oregon and Obama face opponents who don’t know when to quit.  Oregon’s rival Oregon State refuses to accept that it is never going to fully catch-up to the Ducks, especially in basketball, while Hillary took a good long time before quitting.  Even when they have lost, there are some in both cases, that refuse to admit it.

3: Neither Oregon nor Obama stand by and takes sh-t from anybody.  Just like Obama quickly responds to smears leveled against him, Oregon’s mascot last year beat the crap out of Houston’s mascot when it appeared to show the Duck up.  Just watch and you’ll see what I mean:

2: The Yell-O chant Ducks fans do at games can be used for Obama as well.  In fact, it was used during both of Obama’s Eugene rallies this fall.  See an example of it in the video below the next item.

1: Both Oregon and Obama draw large very enthusiastic crowds.  Oregon’s are considered some of the loudest and best in all of college sports, just as Obama’s are in the political arena.  See below for an example (the students are doing the “Yell-O” I mention in the last point):

Let me know what you think.