Watch Me Take The Bar
Watch Me Take The Bar
This blog, originally started as a chronicle of my taking the bar, is now a look into the mind of an attorney in solo practice in Port Clinton, Ohio.
Wednesday, November 02, 2005

If we must have a conservative on the Supreme Court...

..why couldn't it have been Judge Alex Kozinski?

I mean, any guy bury two hundred movie titles in an opinion; claim in an opinion to perform a Vulcan mind meld; tell major companies to "chill;" and put some humor into the domain wars over Sex.com (which were already pretty funny to begin with) can't be all bad, even if he would take away a woman's reproductive right.

Because you know that anyone Dubya picks is going to want to do that, anyway. We may as well have it with a smile and some brilliant scholarship on the side.

Let's start with US v. Syufy 903 F.2d 659 (9th Cir. 1990). Now, on first reading, Syufy appears to be a pretty dry antitrust case involving a chain of movie theaters. But, get a movie buff to read the opinion, and they may start laughing.

You see, Judge Kozinski buried the titles of 200 movies within.

It starts before the opinion does, as the counsel are listed as

"Robert B. Nicholson, Department of Justice, Washington, District of Columbia, for the Plaintiff-Appellant

Maxwell M Blecher, Blecher & Collins, Los Angeles, California, for the Defendants-Appellees"

Note how Mr. Blecher is missing a period after his name?

Some more samples, with the bolding mine...

"It is the nature of free enterprise that fierce, no holds barred competition will drive out the least effective participants in the market, providing the most efficient allocation of productive resources. And so it was in the Las Vegas movie market in 1982. After a hard fought battle among several competitors, Syufy gained the upper hand. Two of his rivals, Mann Theaters and Pitt Theaters, saw their future as rocky and decided to sell out to Syufy." Syufy at 662

"Unlike centrally planned economies, where decisions about production and allocation are made by government beureaucrats who ostensibly see the big picture and know to do the right thing, capitalism relies on centralized planning..." Id at 662

The first link I gave you is just the dry case. This is a link to the Syufy Rosetta Stone, which has all the movie titles underlined.

Then, we turn to the case of Dreamwerks. No, that's not a typo; and that's exactly it.

In 1984, someone in Florida started Dreamwerks, which was in charge of organizing StarTrek conventions. (Reader: Insert your own punchline.) All was going all right, although not in any bonanza-type way, when along came three fellows named Spielberg, Katzenberg and Geffen, who decided to form a company called DreamWorks SKG. You may have heard of it.

Well, Dreamwerks might have been delighted, if only its customers didn't think they were doing business with the same geniuses who brought us ET, Pixar and a bunch of great records. Unfortunately, they soon ran into folks who thought Dreamwerks were just poaching off of someone else's name.

You can see how the Trekkies would be upset. They had the name first, and then here came these Hollywood hotshots, and now people think they're at a Star Trek convention organized by some Dreamjerks.

And it's not like the Hollywood folks were trying to poach off of Dreamwerks' business -- it wasn't exactly a household name at the time. Others were believing that the Trekkies were poaching off SKG's. (See what Kozinski says about absence of malice at footnote 12 of the opinion. Another reason to love the guy.)

Thus was born the case of Dreamwerks Production Group, Inc. v. SKG Studio, dba Dreamworks, SKG, 142 F.3d 1127 (9th Cir. 1998). Now, if you follow that link, make sure to skip past the summary right down to the opinion. The people who right the opinions for the Ninth Circuit apparently do not have the finely honed sense of humor of Judge Kozinski.

Why read the opinion? Well, here's how it starts: "Dreamwerks, a company harldy anyone has heard of, sues entertainment colossus DreamWorks SKG, claiming trademark infringement." In the facts, Kozinski goes on to explain that "Everyone -- or most everyone -- has heard of DreamWorks SKG, established in 1994 by what many consider the three hottest names in Hollywood: Steven Spielberg, Jeffrey Katzenberg and David Geffen (each of whom graciously contributed an initial to form the SKG part of the trademark)."

Meanwhile, Dreamwerks, Kozinski said, "clearly caters to the pocket-protector niche." Gotta love this guy.

While admitting that, on first looking at the case, one might be tempted to say "Pshaw," (and that is exactly how Kozinski phrases it), he goes on to address that Dreamwerks "somewhat wistfully" had hopes of growing its own business, and didn't want any goodwill it had built to be destroyed by missteps on the part of DreamWorks SKG.

The standard in cases like this is to look at what the -- and here, he sighed heavily, because this was a phrase he had not used since July -- reasonably prudent consumer would do. So, Kozinski said, he would have to do a "Vulcan mind meld" with same. (How did he find him, I want to know? I want to do bodily harm to a reasonably prudent ANYTHING.)

Kozinski goes on, but you need to actually read this case, so I won't spoil it for you. Basically, he remanded the case for trial. It appears it was settled.

Now, before I go to the next Kozinski-inspired case, I should warn you, you're going to have a very irritating song stuck in your head very shortly. So, you might want to find something to drown it out when I tell you the lyrics:

I'm a Barbie girl,
In a Barbie world,
Life in plastic, it's fantasic!
You can brush my hair, undress me everywhere
Imagination, life is your creation
Come on Barbie, let's go party.

You might be irritated, but not nearly as irritated as Mattel, which has made Barbie for years, was. They sued MCA, the record company that had Aqua's 1997 hit Barbie Girl on its label. Thus was born MCA, Inc. vs. MCA Records, Inc., et. al.

Or, as Judge Kozinski opened the opinion: "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong."

"With fame often comes unwanted attention," and Mattel certainly did not want this attention for Barbie. So, they sued basically anyone who had produced, marketed or sold the song, stopping short only of the guy who drove the truck that took the CDs (which were things we used to have before iTunes and such) to the mall.

Press releases were fired off from both parties, and spokespeople got snarky. Next thing you knew, MCA had countersued Mattel for defamation. Apparently, the folks at MCA did not find it amusing to read that their putting a disclaimer on the back of their CD that the song was only social commentary was "akin to a bank robber handing a note of apology to a teller during a heist."

I'll let Kozinski finish this one off:

"MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words 'bank robber,' 'heist,' 'crime' and 'theft.' But all of these are variants of the invective most often hurled at accused infringers, namely 'piracy.' No one hearing this accusation understands intellectual property owners to be saying that infringers are cutthroats with eyepatches and peg-legs who board galleons to plunder cargo. In context, all these terms are nonactionable 'rhetorical hyperbole,' Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999)."

And with that, Judge Kozinski concluded, "The parties are advised to chill."

But, my favorite Kozinski case -- and the one that got me writing this entry -- has to be the case of the missing domain name. Sounds fairly dull, until you add Kozinski.

And the fact, the name of the domain was Sex.com.

I could retell the whole sordid story here, but it's best left to Judge Kozinski, who starts out his background on the case with the following line: ""Sex on the Internet?," they all said. "That'll never make any money." The case ranges from the guy (of, as Kozinski states, "boundless resource and bounded integrity") who convinced the domain services people to give him the domain name which belonged to someone else; to the poor owner who lost the domain name; to the wanted poster on Sex.com; to Mexican bounty-hunters.

Like I said, this stuff is not to be missed.

Once you read that, you can find out that the domain-name hijacker has recently been returned to the US.

Ah, well. We may not get Judge Kozinski on the Supreme Court. But his opinions are worth a look.




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