Band Exposé wins ownership of trademark from do-nothing promoters

Rob Beschizza
 

The band Exposé, founded in the 1980s, was conceived of by promoters. The performers--Jeanette Jurado, Anne Curless, Kelly Moneymaker and Gioia Bruno--despite having frequently signed contracts that explicitly agreed they did not own the trademark, nevertheless managed to win rights to it in a recent lawsuit. How?

First, the production company and its successors were never able to register the trademark. You don't have to do this, but it helps in court. Secondly, however, the court chose to apply a test rather than simply rubber-stamp the contracts: who established what qualities and characteristics the trademark represents, and who actually controls them here? From this test, it found that the actual band, rather than a promoter with no creative involvement for 25 years, was represented by the trademark: "the [band members] were the product denoted by the Exposé mark and owned the goodwill associated with the mark."

IP lawyer Pamela Chestak, writer of the excellent Property, Intangible blog, is uneasy about the outcome:

Wow. So apparently in the 11th Circuit a private agreement doesn't matter; rather, the actual ownership has to be manifested publicly. I'm not saying the outcome is wrong - band names are a different world when it comes to trademark ownership, because the members are often so strongly identified with the public image of the band. But I would have liked a little more compelling reason for why the court felt that the contracts, as well as the defendants' belief that they needed a license, could just be ignored.

I vaguely know about the "use it or lose it" element to trademark ownership that seems to be the underlying principle at play here. Perhaps someone can explain it in more depth why this case is unusual. The idea that adhesive contracts backed by the threat of litigation aren't enough--that owning a trademark may be subjected to legal tests of continued use, public manifestation, etc--seems a good one!

Crystal Entertainement & Filmworks, Inc. v. Jurado [11th Circuit Court of Appeals]

How to Steal a Trademark [Property, Intangible]

A Supreme Double Standard: If Violent Video Games Are Free Speech, Why Aren't Sexual Images?

The Supreme Court on Monday struck down a California ban on selling or renting violent video games to minors. The ruling was an important win for free speech, as the court said that violent video games, not matter how objectionable, are works of art in their own right. But the ruling also raised an intriguing question: Why does the court treat violent images and sexual images so differently?

The court's 7-2 decision in Brown v. Entertainment Merchants Association was a firm rejection of the idea that there could be an exception to the First Amendment for extremely violent pictures and graphics. Justice Antonin Scalia, writing for the majority, said it does not matter how "disgusting" video games are because they are still protected speech. (See "Violent Video Games: The Top 8 Big-Money Franchises.")

The images are, in fact, often wildly violent and gory. In the game Postal II, players (you guessed it) "go postal" by, among other things, attacking schoolgirls with shovels and decapitating them.

What's more, experts predict that the violence could soon become even more extreme. We are probably not far off from mass-marketed violent video games in 3-D and games that allow players to get sensory feedback from their simulated violent actions. Justice Samuel Alito noted in a concurring opinion that the day may come when "virtual reality shoot-'em-ups will allow children to actually feel the splatting blood from the blown-off head of a victim."

Critics of violent video games cite scientific research suggesting that children who play them may become more aggressive in real life. But the majority on the court insisted that even if video games are harmful — and the research is far from conclusive — that fact would not justify the law. "Perhaps they do present a problem," Scalia said, but there are "all sorts of 'problems' ... that cannot be addressed by government restrictions on free expression." The industry self-polices with a ratings system, like the movie industry's, but it is voluntary.

It is no great surprise that the court refused to accept a state ban on violent video games — even one limited to minors. Last year, in the case of United States v. Stevens, the court had a chance to rule that videos showing extreme cruelty to animals — including ones showing puppies being crushed to death by women in stiletto heels — are not protected by the First Amendment. Instead, the court struck down a federal law banning animal-cruelty videos. (See "Gaming and Texting: Sources of Joint Pain for Kids.")

This is classic First Amendment doctrine — even the speech we abhor is protected, even speech the government believes could have negative effects on its audience must be allowed.

The question, however, is why the court does not take this same absolutist approach to speech involving sexual images. In regard to sex, the court has carved out an exception to traditional First Amendment protections.

Justice Stephen Breyer, one of the two dissenters in Brown v. Entertainment Merchants Association, pointed out the court's double standard. "What sense does it make," he asked, "to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?"

What sense, indeed. Breyer went further: "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?"

Another fine question. Breyer pointed out the inconsistency in order to defend the California law. He would have ruled that the video-game ban is constitutional — just as some laws against selling obscenity have been upheld.

But Justice Breyer's logic could lead in the opposite direction: instead of saying the court should be more accepting of bans on violent speech, it could mean that to be consistent, the court should be more skeptical about bans on sexual images. (The court's tougher line on sex parallels the movie industry's voluntary ratings system, which is much quicker to give a rare NC-17 rating for sex than for violence — but the industry has not done much to explain its double standard, either.)

Is the court more accepting of limits on sexual images because they are inherently more offensive than violent images? As Breyer asks, do we really believe that a game that allows a child to torture and kill a woman becomes offensive only when she is showing her breasts? (See "Is Technology Making Us Lonelier?")

Is it because sexual images are more harmful to young people than violent images? Supporters of the California law submitted research showing that violent video games may well be making young people more aggressive and that they can cause "long-term harmful outcomes." Is the evidence of harm from exposure to sexual imagery stronger? (Child-pornography laws are another matter entirely; the harm they aim at is much clearer.)

Even if the court's ruling in Brown v. Entertainment Merchants Association does not make it abandon its approach to sexual speech and images, it might cause the court to rethink it.

Also on Monday, the court announced that it would hear arguments in a challenge to the FCC's indecency rules for broadcast television, including its heavy fines for airing "fleeting expletives." The FCC has been fine-happy in the past: it imposed a $550,000 penalty on CBS for the "wardrobe malfunction" during the 2004 Super Bowl halftime show that revealed Janet Jackson's breast. The lower courts have ruled against the FCC, but the Supreme Court reversed them the last time in this case — and may well again. (See the 25 All-TIME Best Animated Films.)

It may be that the First Amendment prevents California from stopping children from buying video games in which they can decapitate schoolgirls and torture women. It may also be that it allows the FCC to impose heavy fines on television stations that air four-letter words and other "indecent" speech.

But if the court is going to continue to act as if the nation were the Wild West when it comes to violence and Puritan New England when it comes to sex, it should do more — as Justice Breyer rightly suggested — to explain why.

Cohen, a former TIME writer and a former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, usually appears every Monday.

Twisted ethics of an expert witness

Stuart Greenberg was at the top of his profession: a renowned forensic psychologist who in court could determine which parent got custody of a child, or whether a jury believed a claim of sexual assault. Trouble is, he built his career on hypocrisy and lies, and as a result, he destroyed lives, including his own.

By Ken Armstrong and Maureen O'Hagan



Stuart Greenberg


The reporting for this storyTo uncover the secrets Stuart Greenberg had buried, The Seattle Times got court files unsealed in the superior courts of King and Thurston counties. Through a motion filed by the state Attorney General's Office, the newspaper also got an order lifted that barred public inspection of Greenberg's disciplinary history. Reporters obtained other documents — for example, Greenberg's emails at the University of Washington — through public-records requests, and interviewed colleagues of Greenberg, as well as parents he had evaluated.

Earlier this year, a four-page document with a bland title, "Stipulation for Dismissal with Prejudice," was filed in a civil matter percolating on the King County Courthouse's ninth floor. Hardly anyone took notice. Most everyone had moved on.

But that document — filed by lawyers tangled up in the estate of Stuart Greenberg, a nationally renowned psychologist whose life ended in scandal — signaled the end of a tortuous undertaking.

Greenberg had proved such a toxic force — a poison coursing through the state's court system — that it took more than three years for lawyers and judges to sift through his victims and account for the damage done.

For a quarter century Greenberg testified as an expert in forensic psychology, an inscrutable field with immense power. Purporting to offer insight into the human condition, he evaluated more than 2,000 children, teenagers and adults. His word could determine which parent received custody of a child, or whether a jury believed a claim of sexual assault, or what damages might be awarded for emotional distress.

At conferences and in classrooms, in Washington and beyond, he taught others to do what he did. He became his profession's gatekeeper, quizzing aspirants, judging others' work, writing the national-certification exam. His peers elected him their national president.

But his formidable career was built upon a foundation of hypocrisy and lies. In the years since Greenberg's death, while court officials wrestled over his estate, The Seattle Times worked to unearth Greenberg's secrets, getting court records unsealed and disciplinary records opened.

Those records are a testament to Greenberg's cunning. They show how he played the courts for a fool. He played state regulators for a fool. He played his fellow psychologists for a fool. And were it not for a hidden camera, he might have gotten away with it. Stripped of all defenses

In summer 1984, Cathy Graden, a 27-year-old surgical nurse from Woodinville, was summoned to King County Superior Court for an emergency hearing in her child-custody case.

Her lawyer said a psychologist's report was behind the hearing. But Graden wasn't allowed to read the report. Nor was she allowed in the courtroom while the psychologist testified.

The psychologist, Stuart Greenberg, had been hired to help resolve a custody dispute involving Graden's only child, a 4-year-old boy whose bright, goopy finger-paintings Graden taped up all over the house.

Although appointed by the court, Greenberg was paid by the parties. He had interviewed the boy and both parents, and run a half-dozen tests with impressive names (the Achenbach Child Behavior Checklist, the Michigan Screening Profile of Parenting ... ).

Graden figured she had nothing to fear. She taught Sunday school; she did volunteer work; she had taken care of her son when the boy's father moved to Alaska after the couple's divorce. "I thought there was no way I could possibly lose this," she says.

Greenberg had arrived in Seattle five years earlier, hired by the University of Washington. A letter written by the department chairman called Greenberg a "last-minute replacement" for a psychology professor who'd resigned. Greenberg's credentials "were on hand," because he'd applied for some other position.

His credentials were acceptable but not extraordinary. He had a Ph.D. from the University of Southern California, where his thesis was a word salad: "Stimulus and Response Generalization of Classes of Imitative and Non-imitative Behavior as a Function of Reinforcement, Task, Cues, and Number of Therapists." On Washington's psychology licensing test, one examiner marked Greenberg's professional judgment as "good," his knowledge and skills, "okay."

Teaching, Greenberg earned just $15,300 his first year. His second year, he was assigned only a single evening class. He left the university and moved into private practice. He picked up court appointments in Western Washington as a custody investigator, expert evaluator, arbiter, mediator, guardian ad litem, special master. He became enmeshed in the court system, buddying up to lawyers, judges, fellow experts.

On the stand, he radiated confidence. "He was just kind of a notch above the rest of us," says Nick Wiltz, a fellow forensic psychologist. "He was able to present reports and information in a very powerful way."

But Greenberg also demonstrated dubious judgment and a cavalier attitude toward his ethical obligations, which forbade even the appearance of a conflict of interest.

In the early 1980s, Greenberg befriended Stanley Stone, who worked in King County as a family-law commissioner — a position akin to judge with the power to appoint experts and approve their fees. On the side, Stone speculated in oil and gas, wooing investors with fantastical claims about the fortunes to be made by digging holes in Kansas.

Although Stone likewise needed to avoid conflicts of interest, his investors included lawyers and expert witnesses who appeared regularly in family court. One of his biggest investors was Greenberg. The psychologist put in $41,250 — expecting, years hence, a whopping return of $891,000 — and encouraged other courthouse regulars to invest, saying he had "the utmost confidence" in Stone, a good friend.

When the investment vehicle went up in smoke, some investors sued, making the enterprise public. Afterward, Stone says, lawyer disciplinary officials admonished him for a breach of ethics. Greenberg could also have been vulnerable to disciplinary action, but his Department of Health licensing file shows no evidence of that ever happening.

Cathy Graden didn't know about any of this. Nor did she know that her ex-husband's lawyer was also an investor, coming on board after Greenberg touted the potential rewards to her. That made them limited business partners — her ex's lawyer and the expert witness who would testify about her parenting.

The report Greenberg filed in court eviscerated Graden. It said she posed a grave danger to her son; that she was "probably" sexually abusing him; that she was psychologically unstable and possibly paranoid. Greenberg's report said he had interviewed the boy's day-care provider — and this provider suspected Graden of abuse and said Graden had encouraged day-care employees to beat her son.

In court, testifying, Greenberg described Graden as "quasi-psychotic," but said the diagnosis was tricky, because Graden might appear "quite normal." She would likely deny doing anything wrong to her son, Greenberg said, or alternatively, she "might genuinely not remember."

By the time Greenberg finished, Graden, out in the hallway, had been stripped of all defenses — and without a clue to what had just happened. If she appeared normal — well, Greenberg said she would. If she denied hurting her son — that was part of her disorder. If she challenged Greenberg's work or motives — she was paranoid.

At the end of the hearing, Judge Donald Haley said: "The doctor has convinced the court." The judge ordered the boy turned immediately over to his father, with Graden allowed to visit only if supervised by a therapist.

Greenberg was accustomed to such influence. Do judges follow your recommendations? he was once asked. "Typically," he said.

But in this case, Graden refused to go away. She obtained a copy of Greenberg's report. She interviewed the people he quoted. She wore a hidden recorder while meeting with him.

And what she learned, she turned over to state disciplinary officials.

The day-care provider, Krista McKee, told The Times that Greenberg "took what I said and just turned it upside down. He made it sound like I said something about Cathy that I just did not say. I never thought Cathy beat or abused (her son) at any level."

Greenberg also mischaracterized what the boy's therapist told him, twisting benign commentary into an urgent call for the boy to be removed from his mother's care.

Greenberg's work violated a host of ethics rules and laws. If he suspected Graden's son was being abused, he was required to report that to police or Child Protective Services. But he'd done no such thing.

Most disturbing of all, Graden's was not an isolated case.

In 1990, after an investigation that dragged on for years, the state Examining Board of Psychology filed a devastating set of disciplinary charges against Greenberg. The charges, 18 pages long, alleged misconduct in four cases between 1983 and 1986, including Graden's.

The board accused Greenberg of being incompetent and unethical. Of being dishonest or corrupt. Of misusing psychological tests and misrepresenting the results. He was accused of demonstrating bias; reaching sweeping conclusions on hearsay; violating confidentiality; and ignoring damning information about one parent while loading up on another.

In one custody case, he conducted a bizarre analysis of the father's new wife, a flight attendant. He reviewed some letters she may have written (although Greenberg wasn't sure), and some photos of the father's son with temporary tattoos — birds and a dragon, on his shoulders and belly button.

Based on those dubious materials, Greenberg concluded that the woman showed signs of a personality disorder: "Highly abstract thinking, schizoid mentation, hysteroid defense mechanisms, and / or exhibitionistic style." He never interviewed her, or the father, or the son.

Greenberg could have fought the board's allegations. Instead, he admitted violating professional guidelines in each of the four cases. He had been seeing a therapist for four years, he told the board, because he was "unable to fully empathize" with parents in child-custody cases and was not sensitive enough to the impact of his opinions.

The board and Greenberg agreed on a severe punishment: a three-year suspension from doing parenting evaluations. Afterward, he could resume only if the board was convinced he was competent.

Graden got her son back in 1989, when the boy's father died in a work accident. Her son was 4 years old when taken away, 9 when he returned. Saying one thing, doing another

In 1992, prosecutors for the U.S. Air Force asked Greenberg to be an expert witness in the court-martial of a sergeant accused of raping his 15-year-old stepdaughter. Because Greenberg's suspension applied only to child-custody cases, he accepted.

In articles published in professional journals, Greenberg distinguished forensic psychology from therapy: the latter assists a patient, the former, a judge or jury.

Forensic psychologists should avoid psychiatric diagnoses, Greenberg wrote. In therapy, patients have reason to be honest. That's because they want help. But in court settings, they have incentive to lie. A criminal defendant might want to seem insane, and a parent fighting for custody, as normal as can be.

People taking psychological tests can surmise which answers will lead to which results, Greenberg wrote. Attaching a diagnostic category to someone's description of unverifiable feelings provides "unjustified credibility."

One particular diagnosis — post-traumatic-stress disorder — is especially prone to abuse, Greenberg wrote. Someone claims to have experienced something horrific, and describes symptoms consistent with distress. A clinician diagnoses PTSD. In court, this diagnosis gets used "in a circular argument" to prove the horrific event occurred.

Greenberg preached caution. He practiced something else.

In the Air Force case, Greenberg had the stepdaughter take the Beck Depression Inventory — 22 questions, multiple choice. The first question: 1. I do not feel sad; 2. I feel sad; 3. I am sad all the time and I can't snap out of it; 4. I am so sad or unhappy that I can't stand it. She chose 3. He had her take the Beck Hopelessness Scale — 20 questions, true or false. Question 7: My future seems dark to me. She marked true.

After eight tests and 10 hours of interviews, Greenberg diagnosed the teenager with post-traumatic-stress disorder. (He charged the Air Force $12,360 for this work.)

To Sverre Staurset, the sergeant's lawyer, Greenberg was key to the prosecution's case. He vouched for the stepdaughter's credibility — believe him, you believe her.

Unbeknown to Greenberg, Staurset had rounded up the state disciplinary documents in which Greenberg admitted to conduct both incompetent and unethical. With those records, the lawyer destroyed Greenberg on the stand.

"It was worse than a deer in headlights," Staurset says. "He really came apart. There was nothing left of him."

With Greenberg discredited, the sergeant was acquitted.

For an expert witness, credibility is everything. Greenberg knew that if those disciplinary records remained available, his future looked dim. Hiding his past

A missing sentence. That's what made all the difference — that, and the state's lack of mettle.

During the disciplinary proceedings, Greenberg had signed a five-page stipulation admitting that he had misquoted witnesses, misinterpreted test results, reached damning conclusions on flimsy foundations. But the document was also supposed to say: "That by entering into this agreement, Dr. Greenberg does not admit to any violation of statute or administrative rules governing the practice of psychology."

"That is boilerplate," says Terry West, who was the Examining Board of Psychology's program manager at the time. "That's standard language in any stipulation."

A lawyer for the state dropped the sentence while merging some documents. Boilerplate or not, that missing language represented an opening — and Greenberg seized it. He let the state know he was thinking of suing. The examining board caved.

Nick Wiltz, the board's chairman when Greenberg was suspended, says: "The thing dragged on and on and on. Then, suddenly, because of this error by this inept assistant attorney general, the case blew up completely."

In spring 1993, the board's departing chairman, David Gossett, wrote an open apology to Greenberg, published in the board's newsletter. Greenberg had been "exonerated" of "all allegations," Gossett wrote. The apology asked "all persons" who had kept an earlier board publication describing Greenberg's suspension to return their copies or destroy them.

For Greenberg, this wasn't enough. The agency's paper trail was still publicly available, meaning he might still be confronted on the witness stand with his past admissions.

So Greenberg went to court, asking for the state to be barred from releasing any records about his past suspension. In a remarkable twist, the Examining Board of Psychology joined in this request. Here was a public body — represented by another public body, the state Attorney General's Office — asking the courts to forbid the state from complying with its public-records requirements.

In King County, Judge R. Joseph Wesley refused to go along. So Greenberg went south, to Thurston County. In 1995, Judge Daniel Berschauer agreed to place the state's records off-limits to the public; also sealed was the entire court file describing Greenberg's secrecy request.

Within a year of getting his disciplinary history sealed, Greenberg was giving seminars to other psychologists on the ethics of parenting evaluations.

Greenberg also fended off another kind of challenge. Cathy Graden, the mother who temporarily lost her son, sued Greenberg, accusing him of falsifying evidence against her. But Greenberg cited a decades-old principle — that, as a court-appointed expert, he was entitled to the same "absolute immunity" accorded judges — and Graden dropped her suit, figuring it was doomed.

Greenberg used the same argument to squelch other lawsuits. He became such an expert on this shield that the American Psychological Association would ask him to deliver an address on: "The Liability and Immunity of the Expert Witness." 'Laundering priests'

Although Greenberg attracted a lot of work, his judgment raised doubts.

The Roman Catholic Church sent priests accused of sexual abuse to Greenberg, to get his take on whether they could be returned to ministry without endangering congregants.

"He was really the go-to guy for the Archdiocese of Seattle, and for the Jesuits, when it came to evaluating and laundering priests," says Ken Roosa, an Anchorage attorney who has represented hundreds of people suing the church.

The enterprise was shrouded in secrecy, making it hard to say how many priests Greenberg evaluated. Asked during one lawsuit, Greenberg estimated "10 to 15."

What's clear is how easily one priest deceived Greenberg.

In 1993, the Jesuits sent Father Jim Poole to see the psychologist. Greenberg interviewed Poole for 10 hours and administered nine tests. Poole admitted violating his vow of chastity, but only to the extent of kissing and sexual touching with women.

Greenberg wrote reports saying he believed Poole was being honest and that therapy arranged by the Jesuits had "substantially remedied" his problems. "I must say that I do not think that he is conning me or himself," Greenberg wrote.

But in recommending that Poole be returned to ministry, Greenberg missed the most horrendous aspects of Poole's history. The Jesuits would later settle more than a dozen lawsuits that accused Poole, decades earlier, of raping or molesting girls as young as 6.

Poole denied raping anyone but admitted French-kissing one child dozens of times, saying: "I found it a way of trying to get across how much she was loved."

Confronted, in a lawsuit, about his misreading of Poole, Greenberg said: "The data is that psychologists are no better than anyone else at determining when someone's lying based on interview."

Greenberg also lacked judgment around the office, some employees say. Jacquie Pickrell, a psychologist who worked for Greenberg in the mid-1990s, says he violated boundaries with women employees and seemed a "narcissist."

One morning he came into the office, looking horrible. He told Pickrell he'd had a dreadful night. He described vomiting — "in horrid detail," Pickrell says — while a foot from her face.

When Pickrell advised him to go home, or at least not infect others, Greenberg went into his office, shut the door, and pouted. The next day he told Pickrell she had hurt his feelings, that he was sick and had needed a hug.

Two other women employees described being "weirded" or "creeped out" by Greenberg. One said he rubbed her shoulders; tried to make her go with him, alone, on a business trip to Alaska; and wondered aloud, while shopping for supplies, if other people in the store thought they were lovers. An orchestrated performance

As the 1990s rolled into the next decade, Greenberg's past problems faded away.

He published in peer-reviewed journals and spoke all over the country. He chaired the committee that wrote a national certification exam for his field. His peers elected him president of the American Board of Forensic Psychology.

His hourly rate rose to $450. His fees in individual cases were known to climb from $8,000 to $12,000 to $20,000 or more. He got a 39-foot boat — "More Like It," so named because he'd had a smaller boat, saw a bigger one, thought, that's more like it, and bought one to match. He owned two houses on Capitol Hill — one for home, the other for work. His wine collection was worth $25,000.

On the side he worked at the UW as a clinical associate professor. The UW heard whispers of a troubled past, asked the state, and was told there was nothing to worry about. (The judge's sealing order prohibited disciplinary officials from saying more.)

To testify as an expert, a witness must be found qualified. Greenberg turned this into an orchestrated performance. He would hand a script to the lawyer who hired him.

Question: "Doctor, isn't it true that one of your articles has become one of the landmarks in the field?"

Response: "Well, my article with Dan Shuman on the differences between assessment by therapists and assessment by forensic examiners has been reprinted often, yes."

Greenberg's script had 32 questions in all. His answers had the effect of whispering: I am objective. I am humble. I am a giant in my field. The hidden camera

This is the story Greenberg later told police:

He needed an air purifier. He searched the Internet. A gadget popped up that only appeared to be a purifier. The white plastic box, about 8 inches high, whirred like a purifier, but inside was a hidden camera.

Greenberg placed an order. The item was shipped to him on June 6, 2007.

Greenberg said he planned to spy on contractors remodeling a $1.8 million house he had recently bought for a new home-office. Instead, he installed the camera in his office's bathroom, used by employees and people getting psychological evaluations.

His staff became suspicious. On July 3, a psychologist who worked for Greenberg devised a test. She placed an aerosol can in front of the purifier. If this device was a camera, this would block the view. Within half an hour, Greenberg entered the bathroom, shut the door, and moved the can.

In a scene caught on videotape, he then fiddled with the lens, stared into his camera, smiled and masturbated.

Police arrested Greenberg that afternoon. A detective interviewed him in a small room. Greenberg gazed at the room's video-camera, pointed down at him. In court Greenberg had intimidated. Now his voice was barely audible. He sighed, over and over.

Greenberg told the detective he couldn't resist seeing his employees in partial undress. "I enjoyed it. ... It was fun; it was exciting. ... I didn't do this a lot. I'm not minimizing it. I know it's bad. But I didn't do it a lot."

News of Greenberg's arrest went public. At the UW, a colleague informed the psychology-department chairman that Greenberg gave an annual lecture to students titled "Ethical Issues in Forensic Psychology." "Ironic, I know," she wrote in her email.

Three weeks after his arrest, while awaiting charges, Greenberg committed suicide in a Renton hotel room. He was 59.

He left three notes on his hotel bed. In one — addressed, "To everyone I hurt" — Greenberg wrote: "I am inadequate. I just don't know. I am sorry."

He didn't say who "everyone" was. That would be for the courts to decide. The damage done

When Greenberg died, his personal worth was estimated at $1.7 million. But the claims filed against his estate eclipsed that.

There were claims filed by employees who had been secretly videotaped in Greenberg's bathroom. There were claims filed over cases in which Greenberg failed to finish child-custody evaluations, or did work now deemed tainted or worthless.

Before Greenberg died, some parents in child-custody matters hesitated to criticize his evaluations, fearing any complaint might cost them their children. But since his death, parents have come forward, with women describing bullying tactics, saying he demanded intimate details about their sex lives, and dared them not to answer.

Once the circumstances of Greenberg's downfall became public, courts agreed to take a second look at some of his more recent cases.

In one of them, Greenberg had recommended joint custody in a case where the father had been convicted of beating the mother. Drenched in blood, she had gone to the emergency room and received 15 stitches in her head.

Greenberg branded the mother, a Microsoft employee, as emotionally unstable, saying she complained too much of the abuse she had suffered.

"I was beaten by my husband, and I was beaten up by the system," the woman told The Times. "I was accused of being crazy for not liking being beaten."

After Greenberg's arrest for voyeurism, the woman's lawyer asked to have Greenberg's report tossed out. A King County judge agreed. A new evaluator was appointed — and came to a very different conclusion.

Under the new parenting agreement, the mother is in charge.

Ken Armstrong: 206-464-3730 or karmstrong@seattletimes.com; Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Puritans and Lady Godiva: why two justices voted to uphold California's video game law

By Nate Anderson

Justice Samuel Alito doesn't have a whole lot of love for the video game industry.

In some of these games, the violence is astounding. Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based not only on the number of victims killed, but on the killing technique employed. It also appears that there is no antisocial theme too base for some in the video-game industry to exploit.

But despite his statement in today's landmark Supreme Court opinion (PDF), Alito still voted to overturn California's restrictions on violent video game sales to minors. Six other justices voted with him, but two did not—and their dissents illustrate just how differently top legal minds can examine the same topic and reach opposing conclusions.

Paging Lady Godiva

Stephen Breyer

Justices Breyer and Thomas both agreed that the First Amendment right to free speech was crucially important for video games as for other forms of expression, but both men argued that the state still has a right to restrict the sale of certain forms of speech to children. Indeed, Breyer's dissenting opinion wondered whether America now had an inconsistent approach to dealing with sex and to dealing with violence, in which even a bit of the "old ultraviolence" is no problem while nudity is subject to many restrictions.

I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most vio­lent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?

Breyer noted that both violence and sex have always been hallmarks of literature. "For every Dante, there is an Ovid," he wrote. "And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva."

He also noted that California's law doesn't ban the sales of any video game to adults, and it doesn't prevent any child from actually playing a game. All it prevents "is a child or adolescent from buying, without a parent’s assistance, a gruesomely vio­lent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17."

Quoting numbers showing that the video game industry's voluntary controls on games remain leaky and studies that at least raise questions about the effects of interactive violence on children's development, Breyer believes that California is well within its right to prevent minors from purchasing certain games. To those who don't believe that games can have any effects on players, Breyer asks:

Learning a practical task often means developing habits, becoming accustomed to performing the task, and receiving positive reinforcement when perform­ing that task well. Video games can help develop habits, accustom the player to performance of the task, and reward the player for performing that task well. Why else would the Armed Forces incorporate video games into its training?

Parenting, early American style

Clarence Thomas

Justice Thomas, who hasn't spoken during a court argument in five years, supported the California bill for a different reason—because early American Puritan society placed the father in total control of a family and anyone wishing to speak to a child had to go through him.
Thomas' entire dissent is a long list of early American source material.

Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and... make them apply their knowledge in right action.” [cit. omitted] Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” [cit. omitted]. Accordingly, parents were not to let their children read “vain Books, profane Ballads, and filthy Songs” or “fond and amorous Romances, ... fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.”

It goes on like this for some time. "In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority," Thomas notes. "In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent."

This matters because "the Constitution is a written instrument" and "'its meaning does not alter.'" Thomas' well-known originalism thus leads him to say that attitudes toward parenting in the 1600s and 1700s are crucial to understanding the limits of "free speech."

"It would be absurd to suggest that such a society understood 'the freedom of speech' to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents," he wrote. "The founding generation would not have considered it an abridgment of 'the freedom of speech' to support parental authority by restricting speech that bypasses minors’ parents."

Therefore, such restrictions of sales directly to minors don't violate the First Amendment.

We like to kill

Samuel Alito

In a separate concurring opinion, Justice Samuel Alito sided with the majority and addressed Breyer's point about a double standard. Alito points out that US obscenity law, to be constitutional, must contain a "threshold requirement" that provides narrow guidance about what's covered (so to speak). But "the threshold requirement of the California law does not perform the narrowing function" found in obscenity law.

When the key, three-step "Miller test" for obscenity was decided by the Supreme Court, it only applied to "hard core" porn, which was not a "common feature of mainstream entertainment" at the time. But violence? Americans love it, so any law limiting it has to be exceedingly narrow.

The California law "provides that a video game cannot qualify as 'violent' unless 'the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,'" wrote Alito. "For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions."

In other words: the basic concept of limiting sales to minors is fine with him, but the law has to be much tighter. When written too broadly, Alito and most other members of the court will strike it down—even if that means defending an industry that sometimes wallows in "antisocial themes."

In violent video games, teens face (and fight) their demons

By Beth Winegarner

Sixteen-year-old Evan Jones played his first violent videogames when he was 3. He slew demons in Diablo II, blasted Lovecraftian horrors in Quake and shot terrorists in Counter-Strike.

If you buy conventional wisdom, by now Jones should be a tightly wound coil of aggression, ready to attack someone at the slightest provocation. Instead, he’s a pretty laid-back kid.

“[I get] an adrenaline rush during the game, and the need to win, but afterwards it’s just fine,” the San Francisco Bay Area teen says of playing his current favorites, including the gory Killing Floor. “I see violent videogames as an outlet to aggression and stress,” Jones said in an e-mail to Wired.com, adding that he is not interested in violent movies or TV and doesn’t like real-life violence.

What’s going on here? Ever since the first black-and-white video games like Death Race—and particularly since the Columbine High School shootings—many concerned parents and politicians have argued that violent games are minefields for impressionable minors. Some scholars argue that there is a correlation between videogame gore and aggression in kids, while others say there is no such thing.

In 2005, California state Sen. Leland Yee authored a bill that would make it illegal for retailers to sell what the bill deemed “ultraviolent” videogames to anyone under 18. Such games already have the game industry’s voluntary “Mature” rating clearly printed on them, meaning that the games were meant for players 17 and up, but younger teens could legally purchase them.

Yee’s bill passed the California legislature, and then-Gov. Arnold Schwarzenegger signed it into law. Foes sought an injunction, and the law was overturned in 2007. On Monday, the Supreme Court of the United States struck down the law, holding that it violated the First Amendment rights of game publishers and minors.

Videogames are more sophisticated, more realistic, and sometimes more gruesome than ever. And yet, crimes among teens, including homicide, are on a 16-year slide, according to FBI data.

Parents are quietly deciding to let their kids play violent videogames, and nothing bad seems to be happening.

Ontario, Canada, resident Taylor Chisholm, 13, loves to play Call of Duty, the first-person shooter that has raked in more than $3 billion in revenue. “When I play games with shooting, I have fun. I doesn’t make me feel like I want to go out and start shooting other people, but it releases stress,” he said in an e-mail.

His parents slowly let M-rated games into the house, starting with Halo. “My husband played it first. ‘The blood looks like jelly,’ he reported... The game wasn’t that bad,” said Taylor’s mom, Astra Groskaufmanis, in an e-mail.
This is not a cheerful time to be coming of age in America.

Tim Berglund, a Denver parent, took a slightly more scientific approach. He read numerous magazine articles describing how violent videogames might affect teens, and decided his son, Zach, couldn’t play first-person shooters until he was 14.

“I made a judgment about approximately how old he had to be before the formative influence of spending your recreational hours aiming and shooting at human figures was small enough to be outweighed by the highly positive utility of how dang fun shooters are,” Berglund said in an e-mail.

Still, when Zach spends too many hours at the screen—no matter what game he’s playing—he’s a little surly afterward. His dad chalks it up to the fact that videogames have guaranteed rewards, while real life is much more tedious. Usually, separating Zach from his games for a week is enough to sweeten his mood, Berglund said.

Many, possibly most, teens play violent videogames, and some think that’s a good thing. In 2003, writer Gerard Jones authored Killing Monsters, a book in which he argues that kids in stressful, turbulent times need outlets—ones that match the intensity of what they’re facing in reality. That has only intensified in the ensuing eight years, Jones said in an e-mail.

“For the world of adolescents, [reality has] mostly gotten more stressful and bleaker,” he said, citing the dire economy, stressed-out parents, the increasing demands of public education and two lengthy wars in the Middle East. “This is not a cheerful time to be coming of age in America. The need for escape, the need for fantasies of potency, and the need for a community of peers is greater than it’s been in a long time.”

Violent videogames provide exactly that kind of escape, giving kids “an arena where they can play with fantasies of danger, aggression and conflict, developing a feeling of mastery that can serve as an antidote, or at least a necessary break, from daily anxieties,” Jones said. The increasingly social nature of gaming also helps kids forge important friendships, he said.
Are violent games good for you?

The video game industry has made every effort to restrict sales of Mature-rated games to minors. In the Federal Trade Commission’s most recent secret-shopper survey, conducted between November 2010 and January 2011, 87 percent of teens 13 to 16 who attempted to buy an M-rated game were turned away at the cash register. This is better than every other industry: In the same study, 64 percent of the teens could buy CDs with “parental advisory” stickers, 33 percent were admitted to R-rated movies and 38 percent could buy R-rated DVDs without a hassle.

George Rose, chief public policy officer for Activision and Blizzard, told a Commonwealth Club crowd in San Francisco last March that game companies have gotten store clerks fired for selling M-rated games to buyers under 18.

“The videogame industry has absolutely gotten better at enforcing their rating system,” Yee said in an e-mail. “With that said, the recent FTC study equates to millions of kids purchasing M-rated games every year, which is unacceptable.” Yee says his goal is to make sure “parents are involved in the process.”

Overall, that’s already true. A recent Pew Internet & American Life Project study found that 97 percent of teens play videogames. However, the average game buyer is 41 years old, and parents are present 93 percent of the time a videogame is purchased, says Dan Hewitt, spokesman for the Entertainment Software Association.

In 2010, 17 percent of all videogames sold were rated Mature, according to the NPD Group. There’s no way to know how many of those are played by teens, Hewitt said.

Another thing that has changed since Yee’s bill passed is that academics are finding more and more evidence that violent games have a neutral, or even positive, influence on players.

University of Rochester researchers found that gamers who played 50 hours of the first-person shooters Call of Duty or Unreal Tournament were significantly better at making quick, accurate decisions than those who played 50 hours of the nonviolent, slow-paced Sims 2.

Jayne Gackenbach of Grant McEwan University in Edmonton said that post-war soldiers slept better at night and suffered fewer nightmares if they played combat games such as Call of Duty. This suggests that violent games might provide relief for other players who have experienced similar levels of stress.

Doug Gentile, a researcher with the University of Iowa whose work has predominantly linked violent videogames with poor outcomes for kids, has noted that any negative effects of violent games could be wiped out when gamers play cooperatively with friends or family.

Mike Ward, who studies violent videogames and communities for the University of Texas at Arlington, recently co-authored a study with Scott Cunningham and Benjamin Engelstätter that found that US counties with more videogame stores had lower juvenile violent-crime rates. In another study with similar findings, Ward went on to theorize that teens predisposed to unruly behavior may play violent videogames instead of getting aggressive in real life.

Most teens are surly sometimes. They talk back to their parents or pick on younger siblings. Among the teens I’ve surveyed, 71 percent said they use videogames to blow off steam. Another 14 percent said they’ve tried, but they don’t play well when they’re frustrated or angry.

This suggests that teen players have a strong sense of whether they need violent videogames, and which ones they want. In the same survey, 55 percent said they had encountered one or more games that were too intense or scary for them to keep playing. The other 45 percent had either stayed away from such games, or found that no games were too much for them. In all cases, they knew their limits.

Raven Laddish, a 15-year-old from San Francisco, decided she didn’t want to play the Grand Theft Auto games after watching friends play them. “Those types of games don’t really appeal to me,” she said. “I just don’t feel that it’s a good message to send to teens.”

Evan Jones had a similar experience when he was younger. “I did stop playing Doom 3 when I was 9,” he said, “because it was scary... and I was 9.”

The Curfew

More than the entire budget of NASA...

The amount the U.S. military spends annually on air conditioning in Iraq and Afghanistan: $20.2 billion.

That's more than NASA's budget. It's more than BP has paid so far for damage during the Gulf oil spill. It's what the G-8 has pledged to help foster new democracies in Egypt and Tunisia.

"When you consider the cost to deliver the fuel to some of the most isolated places in the world — escorting, command and control, medevac support — when you throw all that infrastructure in, we're talking over $20 billion," Steven Anderson tells weekends on All Things Considered guest host Rachel Martin. Anderson is a retired brigadier general who served as Gen. David Patreaus' chief logistician in Iraq.

Why does it cost so much?

To power an air conditioner at a remote outpost in land-locked Afghanistan, a gallon of fuel has to be shipped into Karachi, Pakistan, then driven 800 miles over 18 days to Afghanistan on roads that are sometimes little more than "improved goat trails," Anderson says. "And you've got risks that are associated with moving the fuel almost every mile of the way."

Anderson calculates more than 1,000 troops have died in fuel convoys, which remain prime targets for attack. Free-standing tents equipped with air conditioners in 125 degree heat require a lot of fuel. Anderson says by making those structures more efficient, the military could save lives and dollars.

Still, his $20.2 billion figure raises stark questions about the ongoing war in Afghanistan. In the wake of President Obama's announcement this week that about 30,000 American troops will soon return home, how much money does the U.S. stand to save?

When you have this many people in a country that doesn't want you there — that has no economy, no infrastructure and a corrupt government — and you're trying to stabilize it and build them into a viable nation? I'm not sure we have enough time, and I definitely know we don't have enough money.

- Sen. Joe Manchin (D-WV)

Dollars And Cents

The 30,000 troops who will return home by the end of next year were sent to Afghanistan in 2009, at a cost of about $30 billion. That comes out to about $1 million a soldier.

But the savings of withdrawing those troops won't equal out, experts say.

"What history has told us is that you don't see a proportional decrease in spending based on the number of troops when you draw them down," Chris Hellman, a senior research analyst at the National Priorities Project, tells Martin.

"In Afghanistan that's going to be particularly true because it's a very difficult and austere environment in which to operate," he says.

That means most war expenditures lie not in the troops themselves but in the infrastructure that supports them — infrastructure that in some cases will remain in place long after troops are gone.

"We're building big bases," American University professor Gordon Adams tells Martin. The costs of those bases are, in economic terms, "sunk" costs, he says.

"We're seeing this in Iraq. We're turning over to the Iraqis — mostly either for a small penny or for free — the infrastructure that we built in Iraq. But we won't see back any money from that infrastructure."

Then there's the costly task of training Afghan security forces. The Obama administration has requested almost $13 billion to train and equip Afghan security forces in the next fiscal year.

And more importantly, Hellman says, "[Afghan President Hamid] Karzai indicated a couple years back that [Afghanistan] wasn't going to be a position to support their own military forces 15, 20 years out. I suspect we're going to be called on to pay a substantial part of that bill going forward."

Criticism From The President's Own Party

The realm of war and peace exists separately apart — and justifiably so — from the economic realm.

- Lawrence Kaplan, a visiting professor at the U.S. Army War College

For critics of the president, the idea that the troop drawdown won't save much money is reason enough to suggest it should be bigger.

One outspoken critic is Sen. Joe Manchin (D-WV). He notes the wars in Afghanistan and Iraq have cost hundreds of billions of dollars so far, and he argues a larger troop drawdown isn't a national security risk.

"We have the greatest special ops in the world. We have more technology than any other country on earth," Manchin tells Martin. "Do we actually need to have 70,000 troops on the ground?"

"When you have this many people in a country that doesn't want you there — that has no economy, no infrastructure and a corrupt government — and you're trying to stabilize it and build them into a viable nation? I'm not sure we have enough time, and I definitely know we don't have enough money," Manchin says.

But others argue war should be waged independent of cost.

"The realm of war and peace exists separately apart — and justifiably so — from the economic realm," says Lawrence Kaplan, a visiting professor at the U.S. Army War College, who says critics like Manchin are looking for "economic answers to a non-economic question.

"And anyway, it's not the war that's broken Washington's piggy bank," he adds, noting that Medicare, Medicaid and Social Security account for far more spending than the $107 billion the Pentagon says it will spend in Afghanistan next year.


A U.S. military tent after treatment with polyurethane foam. A 2006 test of the foam cut energy use by 92 percent, says retired Brig. Gen. Steven Anderson.

"Remember, we're talking about 30,000 troops," he says "I don't think that hundred-billion-dollar price tag should be the determining one."

Can Greener Mean Safer?

But for Anderson, the retired brigadier general, economics does have a role to play in modern warfare.

Anderson advocates for increased energy efficiency for military structures in order to cut down on the need for long, dangerous fuel-transport missions. A few months ago, Anderson heard from a company commander in Afghanistan.

"He literally has to stop his combat operations for two days every two weeks so he can go back and get his fuel. And when he's gone, the enemy knows he's gone, and they go right back to where they were before. He has to start his counter-insurgency operations right back at square one."

Anderson says experiments with polyurethane foam insulation for tents in Iraq cut energy use by 92 percent and took 11,000 fuel trucks off the road. But he adds there's a lack of enthusiasm for a greener military among top commanders.

"People look at it and say 'It's not my lane. We don't need to tie the operational commanders' hands' — things like this," he says.

"A simple policy signed by the secretary of defense — a one- or two-page memo, saying we will no longer build anything other than energy-efficient structures in Iraq and Afghanistan — would have a profound impact."

It shouldn't be emotionally easy, earning a living by violating people's rights.

On March 31st, when I came through the metal detector and realized that everyone in the TSA line to my United flight was getting searched, I got teary. I was teary at the prospect of being touched by a government worker -- entirely without probable cause. I was very upset, both because of the physical violation and because I love our now too-often-crumpled-up Constitution and Bill of Rights.

I can hold back the tears...hang tough...but as I was made to "assume the position" on a rubber mat like a common criminal, I thought fast. I decided that these TSA lackeys who serve the government in in violating our rights just don't deserve my quiet compliance. And no, I won't go through the scanner (do you trust the government that they're safe?) and allow a government employee to see me naked in the course of normal and totally ordinary business travel: flying from Los Angeles to Binghamton, New York, to attend an evolutionary psychology conference for my work.

Basically, I felt it important to make a spectacle of what they are doing to us, to make it uncomfortable for them to violate us and our rights, so I let the tears come. In fact, I sobbed my guts out. Loudly. Very loudly. The entire time the woman was searching me. 

Nearing the end of this violation, I sobbed even louder as the woman, FOUR TIMES, stuck the side of her gloved hand INTO my vagina, through my pants. Between my labia. She really got up there. Four times. Back right and left, and front right and left. In my vagina. Between my labia. I was shocked -- utterly unprepared for how she got the side of her hand up there. It was government-sanctioned sexual assault.

Upon leaving, still sobbing, I yelled to the woman, "YOU RAPED ME." And I took her name to see if I could file sexual assault charges on my return. This woman, and all of those who support this system deserve no less than this sort of unpleasant experience, and from all of us.

...
I've been waiting on posting this, both because I've been utterly swamped with work, and because I was waiting for a reply from a lawyer about the possibility of filing sexual assault charges. It turns out that filing charges is probably a no-go. Harvey Silverglate, lawyer and co-founder of the wonderful campus free speech defenders, FIRE (Foundation for Individual Rights in Education), emailed me this:

I think it is extremely unlikely that these pat-downs would be deemed a sexual assault, or any assault for that matter. In the first place, the person doing the pat-down would be acting according to regulations and instructions, hence on good faith ... because of the purported justification ("National security", airline safety). 

The only issue, it seems to me, is whether there is a decent security reason to justify such pat-downs, or whether it is an unconstitutional search and seizure, or invasion of privacy/intrusion, because not justified for safety reasons. As with most constitutional rights, including this Fourth Amendment search-and-seizure, or Fifth Amendment due process, a court would weigh the state's justification (i.e., security gains) versus the citizen's losses (privacy, dignity).

...To win a battle for liberty like this, people must not get accustomed to these indignities, but must complain about them every single time ... and in every forum possible.

I'll echo Harvey in asking that you all do as I did (and that you spread the word to do as I did): Don't make it easy for the government, through these TSA lackeys, to be violating us -- sexually, and in respect to our right to not be searched without probable cause.

And no -- the fact that some people are terrorists is NOT probable cause. The fact that you are wearing underwire is NOT probable cause. And no -- the fact that you, in 2011, are unwilling to hitchhike thousands of miles instead of taking a plane is NOT probable cause.

The rights of vast number of Americans are being violated daily and it is absolutely essential that we all stand up and defend our rights -- and as loudly and vociferously as possible.

Are you in? Spread the word.

UPDATE: I forgot to post the TSA woman's name when I wrote this last night. I think it might have been Thedala Magee. Or Magee Thedala. I was really upset, and neither name sounds like a typical American first name or last name, so I can't remember if I wrote it down in the right order.

Please, everybody, ask for the name of the person who violated you, and when you post about it, use their name. It's got to become very uncomfortable to be one of those who earns a living by, as said at Nuremberg, by "just following orders."

Oh, and just in case you're one of those who has gotten used to giving up your rights with ease, ANY touching by a government official without probably cause counts as being violated.

Removal of Printed Photo Credit Qualifies as DMCA Violation, Court Says

by David Walker



The radio station that employed these two "shock jocks" scanned this image from a magazine and posted it on their web site without permission, and without the photo credit that appeared in the magazine.

A federal appeals court in Philadelphia has reinstated a photographer's copyright lawsuit against a New Jersey radio station owner, after finding that a lower court came to the wrong decision on every issue in the case.

Most significantly, the appeals court said that a photo credit printed in the gutter of a magazine qualifies as copyright management information (CMI) under the Digital Millenium Copyright Act (DMCA). The DMCA prohibits the unauthorized removal of encryption technology or copyright management information from copyrighted works.

Photographer Peter Murphy was hired in 2006 by New Jersey Monthly magazine to photographer New Jersey radio station WKXW personalities Craig Carton and Ray Rossi. The magazine used the photo to illustrate an article naming the two men the "best shock jocks" in the state for its "Best of New Jersey" issue. The image ran with a gutter credit for Murphy. After the image appeared in the magazine, someone at WKXW scanned it without permission and posted it on the WKXW web site without Murphy's credit. The station invited its web audience to manipulate the image, and it eventually posted 26 manipulated version of the photo on its site.

Through a lawyer, Murphy ordered the station to remove his copyrighted image from the web site. Carton and Rossi responded on air by making fun of Murphy, allegedly telling listeners not to do business with him because he would sue his business partners. Carton and Rossi also allegedly suggested Murphy was gay. Murphy ended up suing Carton, Rossi, and WKXW's owners (Millenium Radio Group) for infringement, removal of copyright management information in violation of the DMCA, and defamation.

The radio station filed a motion for summary dismissal of all the charges. WKXW argued that its unauthorized use of Murphy's photo was fair use. It argued that it had not violated the DMCA because the gutter credit was not part of digital copyright management and protection system covered by the DMCA. Finally, WKXW sought dismissal of the defamation claim on the grounds that Murphy lacked evidence to support the claim.

The lower court agreed with WKXW's arguments, and dismissed all of Murphy's claims in March 2010.

On appeal, however, Murphy's lawyers argued that removal of the gutter credit was a violation of the DMCA, because gutter credits fall under the DMCA definition of copyright management information. The United State Court of Appeals for the Third Circuit agreed, citing the DMCA's definition of CMI: "information conveyed in connection with copies...of a work....including....the name of, and other identifying information about, the author of a work."

The court rejected WKXW's argument that a gutter credit from a magazine is not CMI under the DMCA definition because it is not part of "an automatic copyright protection system." WKXW's argument was based on a much narrower (and somewhat tortured) reading of the law and its definition of CMI. But the appeals court said CMI "is not restricted to the content of automated copyright protection or management systems.

"In this case, the mere fact that Murphy's name appeared in a printed gutter credit near the Image rather than as data in an 'automated copyright protection or management system' does not prevent it from qualifying as CMI," the appeals court said in its ruling for Murphy.

The appeals court then turned to the lower court's fair use ruling, and found that the lower court was simply wrong when it found that WKXW's use of the image was transformative, and that it didn't harm the market for Rossi's image. The appeals court explained that by posting the image without any broader commentary, the station undercut its argument that it gave any new meaning to the image that might have qualified the use as fair.

"Instead, it appears that [WKXW] did not want to go to the trouble of creating their own eye-catching photo of Carton and Rossi to illustrate their announcement of the New Jersey Monthly award, but simply appropriated the image for the same purpose. This is far from transformative," the judges said in their decision.

With regard to the defamation claim, the appeals court re-instated that on the grounds that the lower court didn't give Murphy sufficient opportunity to gather supporting evidence through a discovery process.

Murphy says of the decision, "Im real happy with it. it's exactly what it should have been I'm looking forward to getting this thing to trial."

Peter Murphy v. Millenium Radio Group LLC, Craig Carton, Ray Rossi, United States Court of Appeals for the Third Circuit, No. 10-2163

Dutch parliament passes Europe's first net neutrality law

By Nate Anderson

Last week, the Dutch parliament passed a wide-ranging network neutrality bill that attempts to bring the country's largest wireless operator to heel. If it clears the Senate as expected, the Dutch proposal will become the first such law adopted in Europe.

Incumbent telco KPN, now privatized, announced earlier this year a new plan to rebuild slumping revenues from voice calls and text messaging: charge more to users of Internet VoIP services and instant messaging apps. To make the scheme work, KPN would use deep packet inspection to monitor and classify all subscriber Internet traffic, singling out the protocols or apps it chose and billing more for those bits.

The audacious scheme went too far even for Europe, which has long prided itself on using ISP competition—rather than regulation—as the main way to prevent abuse. Maxime Verhagen, the Minister of Economic Affairs, Agriculture, and Innovation, quickly announced in parliament a plan to ban the practice, and parliament approved the ban last week.

According to a translation of the text from Dutch advocacy group Bits of Freedom, the bill requires ISPs not to:

Hinder or slow down applications and services on the internet, unless and to the extent that the measure in question with which applications or services are being hindered or slowed down is necessary:

a. to minimize the effects of congestion, whereby equal types of traffic should be treated equally;

b. to preserve the integrity and security of the network and service of the provider in question or the terminal of the enduser;

c. to restrict the transmission to an enduser of unsolicited communication as refered to in Article 11.7, first paragraph, provided that the enduser has given its prior consent;
d. to give effect to a legislative provision or court order.

The bill also demands that ISPs not "make the price of the rates for Internet access services dependent on the services and applications which are offered or used via these services."

"This is because of the needed investments in the network and the decline in voice and SMS traffic," said Verhagen's office when the bill was introduced. "Minister Verhagen isn’t against paying for the quantity or the speed of the data traffic. The Cabinet, however, is of the opinion that a surcharge on specific services like Skype or WhatsApp goes too far."

The bill still requires some technical changes—the Dutch Labour party managed to "accidentally" vote on an amendment that allowed users to request blocking of site on their own connections for ideological or religious reasons. Members apparently believe that the amendment could provide some kind of loophole for ISPs and they wish to reverse the vote. The amendment seems to have been drafted so that ISPs can filter pornography and other objectionable content at subscriber request; without the amendment, it would appear that only local, end-user filtering programs would be allowed.

Bits of Freedom hopes that the bill will enter into force by the end of the year.

Supreme Court strikes down video game law on first amendment grounds

By Ben Kuchera

The Supreme Court of the United States has finally released its decision in the case of Brown v. Entertainment Merchants Association, which asked whether "a state law restricting the sale of violent video games to minors violates the First Amendment right to free speech," according to the ruling (PDF). The answer is a resounding "yes," with the court finding there is no compelling evidence to state that video games are more damaging to children than other forms of media.

This is a large step for video games, and should stop the spread of unconstitutional, expensive legislation from spreading on the state level.

Video games are expression

"Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium," the 7-2 decision stated.

The court also cast doubt on the belief that games are more harmful to children than other forms of media, such as film or music. "California’s claim that 'interactive' video games present special problems, in that the player participates in the violent action on screen and determines its out-come, is unpersuasive."

The opinion, written by Justice Scalia, goes out of its way to reject California's arguments that video games threaten our children, and require legal intervention at the retail level.

Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.

The law, as it was written, was bound to fail. Every previous state law that tried to enact some sort of ban has been struck down as unconstitutional. California's law sought to control the sale of games with "deviant violence" to children, but lacked a clear definition of what deviant violence would entail.

While the California law would have added an exception to the first amendment to exclude certain content from protection, in essence saying that video games were not speech, the Supreme Court has decided that video games are in fact expression, and are afforded the same rights and protections as every other art form sold to consumers.

With a decision this clear, we've hopefully seen the last of state laws attempting to regulate the sale of video games to minors.

Elderly woman asked to remove adult diaper during TSA search

Lauren Sage Reinlie

A woman has filed a complaint with federal authorities over how her elderly mother was treated at Northwest Florida Regional Airport last weekend.

Jean Weber of Destin filed a complaint with the Department of Homeland Security after her 95-year-old mother was detained and extensively searched last Saturday while trying to board a plane to fly to Michigan to be with family members during the final stages of her battle with leukemia.

Her mother, who was in a wheelchair, was asked to remove an adult diaper in order to complete a pat-down search.

“It’s something I couldn’t imagine happening on American soil,” Weber said Friday. “Here is my mother, 95 years old, 105 pounds, barely able to stand, and then this.”

Sari Koshetz, a spokeswoman for the Transportation Security Administration in Miami, said she could not comment on specific cases to protect the privacy of those involved.

“The TSA works with passengers to resolve any security alarms in a respectful and sensitive manner,” she said.

Weber’s mother entered the airport’s security checkpoint in a wheelchair because she was not stable enough to walk through, Weber said.

Wheelchairs trigger certain protocols, including pat-downs and possible swabbing for explosives, Koshetz said.

“During any part of the process, if there is an alarm, then we have to resolve that alarm,” she said.

Weber said she did not know whether her mother had triggered an alarm during the 45 minutes they were detained.

She said her mother was first pulled aside into a glass-partitioned area and patted down. Then she was taken to another room to protect her privacy during a more extensive search, Weber said.

Weber said she sat outside the room during the search.

She said security personnel then came out and told her they would need for her mother to remove her Depends diaper because it was soiled and was impeding their search.

Weber wheeled her mother into a bathroom, removed her diaper and returned. Her mother did not have another clean diaper with her, Weber said.

Weber said she wished there were less invasive search methods for an elderly person who is unable to walk through security gates.

“I don’t understand why they have to put them through that kind of procedure,” she said.

Koshetz said the procedures are the same for everyone to ensure national security.

“TSA cannot exempt any group from screening because we know from intelligence that there are terrorists out there that would then exploit that vulnerability,” she said.

Weber filed a complaint through Northwest Florida Regional’s website. She said she received a response from a Homeland Security representative at the airport on Tuesday and spoke to that person on the phone Wednesday.

The representative told her that personnel had followed procedures during the search, Weber said.

“Then I thought, if you’re just following rules and regulations, then the rules and regulations need to be changed,” she said.

Weber said she plans to file additional complaints next week.

“I’m not one to make waves, but dadgummit, this is wrong. People need to know. Next time it could be you.”

Power-grid experiment could confuse electric clocks

Traffic lights, security systems and computers may be affected by frequency change as well
Charles Krupa / AP

WASHINGTON — A yearlong experiment with America's electric grid could mess up traffic lights, security systems and some computers — and make plug-in clocks and appliances like programmable coffeemakers run up to 20 minutes fast.

"A lot of people are going to have things break and they're not going to know why," said Demetrios Matsakis, head of the time service department at the U.S. Naval Observatory, one of two official timekeeping agencies in the federal government.

Since 1930, electric clocks have kept time based on the rate of the electrical current that powers them. If the current slips off its usual rate, clocks run a little fast or slow. Power companies now take steps to correct it and keep the frequency of the current — and the time — as precise as possible.

The group that oversees the U.S. power grid is proposing an experiment that would allow more frequency variation than it does now without corrections, according to a company presentation obtained by The Associated Press.

Officials say they want to try this to make the power supply more reliable, save money and reduce what may be needless efforts. The test is tentatively set to start in mid-July, but that could change.

Tweaking the power grid's frequency is expensive and takes a lot of effort, said Joe McClelland, head of electric reliability for the Federal Energy Regulatory Commission.

"Is anyone using the grid to keep track of time?" McClelland said. "Let's see if anyone complains if we eliminate it."

Won't affect GPS or Internet
No one is quite sure what will be affected. This won't change the clocks in cellphones, GPS or even on computers, and it won't have anything to do with official U.S. time or Internet time.

But wall clocks and those on ovens and coffeemakers — anything that flashes "12:00" when it loses power — may be just a bit off every second, and that error can grow with time.

It's not easy figuring what will run fast and what won't. For example, VCRs or DVRs that get their time from cable systems or the Internet probably won't be affected, but those with clocks tied to the electric current will be off a bit, Matsakis said.

This will be an interesting experiment to see how dependent our timekeeping is on the power grid, Matsakis said.

The North American Electric Reliability Corp. runs the nation's interlocking web of transmission lines and power plants. A June 14 company presentation spelled out the potential effects of the change: East Coast clocks may run as much as 20 minutes fast over a year, but West Coast clocks are only likely to be off by 8 minutes. In Texas, it's only an expected speedup of 2 minutes.

Some parts of the grid, like in the East, tend to run faster than others. Errors add up. If the grid averages just over 60 cycles a second, clocks that rely on the grid will gain 14 seconds per day, according to the company's presentation.

Spokeswoman Kimberly Mielcarek said the company is still discussing the test and gauging reactions to its proposal, and may delay the experiment a bit.

Aimed at making grid more reliable
Mielcarek said in an email that the change is about making the grid more reliable and that correcting the frequency for time deviations can cause other unnecessary problems for the grid. She wrote that any problems from the test are only possibilities.

In the future, more use of renewable energy from the sun and wind will mean more variations in frequency on the grid, McClelland said. Solar and wind power can drop off the grid with momentary changes in weather. Correcting those deviations is expensive and requires instant backup power to be always at the ready, he said.

The test makes sense and should not cause too much of a hassle for people, said Jay Apt, a business professor and director of the Electricity Industry Center at Carnegie Mellon University.

But Tom O'Brian, who heads the time and frequency division at the National Institute of Standards and Technology, expects widespread effects.

He said there are alternatives if people have problems from the test: The federal government provides the official time by telephone and on the Internet.

CBLDF Forms Coalition to Defend American Comics Reader Facing Criminal Charges In Canada

The Comic Book Legal Defense Fund today announces that it is forming a coalition to support the legal defense of an American citizen who is facing criminal charges in Canada that could result in a mandatory minimum sentence of one year in prison for comics brought into the country on his laptop. This incident is the most serious in a trend the CBLDF has been tracking involving the search and seizure of the print and electronic comic books carried by travelers crossing borders.

CBLDF Executive Director Charles Brownstein says, “Although the CBLDF can’t protect comic fans everywhere in every situation, we want to join this effort to protect an American comic fan being prosecuted literally as he stood on the border of our country for behavior the First Amendment protects here, and its analogues in Canadian law should protect there.”

The CBLDF has agreed to assist in the case by contributing funds towards the defense, which has been estimated to cost $150,000 CDN. The CBLDF will also provide access to experts and assistance on legal strategy. The CBLDF’s efforts are joined by the recently re-formed Comic Legends Legal Defense Fund, a Canadian organization that will contribute to the fundraising effort. Please contribute to this endeavor by making a tax deductible contribution here.

The facts of the case involve an American citizen, computer programmer, and comic book enthusiast in his mid-twenties who was flying from his home in the United States to Canada to visit a friend. Upon arrival at Canadian Customs a customs officer conducted a search of the American and his personal belongings, including his laptop, iPad, and iPhone. The customs officer discovered manga on the laptop and considered it to be child pornography. The client’s name is being withheld on the request of counsel for reasons relating to legal strategy.

The images at issue are all comics in the manga style. No photographic evidence of criminal behavior is at issue. Nevertheless, a warrant was issued and the laptop was turned over to police. Consequently, the American has been charged with both the possession of child pornography as well as its importation into Canada. As a result, if convicted at trial, the American faces a minimum of one year in prison. This case could have far reaching implications for comic books and manga in North America.

The CBLDF’s Board of Directors voted unanimously to aid the case by raising funds to contribute to the defense and to help the defense with strategy and expert resources.

Brownstein says, “This is an important case that impacts the rights of everyone who reads, publishes, and makes comics and manga in North America. It underscores the dangers facing everyone traveling with comics, and it can establish important precedents regarding travelers rights. It also relates to the increasingly urgent issue of authorities prosecuting art as child pornography. While this case won’t set a US precedent, it can inform whatever precedent is eventually set. This case is also important with respect to artistic merit in the Canadian courts, and a good decision could bring Canadian law closer to US law in that respect. With the help of our supporters, we hope to raise the funds to wage a fight that yields good decisions and to create tools to help prevent these sorts of cases from continuing to spread.”

Find out more on the case here. To help support the case, you can make a monetary contribution here.

About CBLDF
The Comic Book Legal Defense Fund was founded in 1986 as a 501 (c) 3 nonprofit organization dedicated to the preservation of First Amendment rights for members of the comics community. They have defended dozens of Free Expression cases in courts across the United States, and led important education initiatives promoting comics literacy and free expression. For additional information, donations, and other inquiries call 800-99-CBLDF or visit them online at www.cbldf.org.

About CLLDF
The Comic Legends Legal Defense Fund was founded in 1987 to raise money for the defense of a Calgary, Alberta comic shop whose owners were charged with selling obscene materials. The CLLDF has since been maintained on an ad hoc basis to provide financial relief for Canadian comics retailers, publishers, professionals, or readers whose right to free speech has been infringed by civil authorities. Largely dormant since the early 1990s, the CLLDF is reforming to provide support for this case, and reorganizing to ensure that help will be readily available for future cases involving Canadian citizens or authorities. To help the CLLDF in this mission, please go to www.clldf.ca.

Nevada Is the First State to Pass Driverless Car Legislation, Paving the Way for Autonomous Autos

By Clay Dillow

About a month ago, we reported that Nevada (with a healthy dose of lobbying by Google) was considering legislation that would effectively legalize self-driving cars in that state. Today, Assembly Bill No. 511 passed, granting the Department of Transportation the authorization to draft a set of regulations and rules governing autonomous cars. Pop goes the champagne in Mountain View.

But don’t christen the age of driverless cars just yet. The legislation charges the Nevada DOT with creating the legal framework that will determine things like performance standards and licensing requirements, as well as designating certain areas within the state where autonomous cars might be tested (will you soon see signs around Nevada warning that you are entering a “driverless car zone?”).

But that regulatory framework could be a long time in the making. Which is fine, because while Google has already logged hundreds of thousands of miles on its autonomous fleet that we know of, the cars are not by any means ready to be released on the larger world commercially. This is a technological revolution that’s going to move forward with baby steps. But as baby steps go, this is a pretty big one.

Read the entire draft of the measure here.

New York legislature says "I do" to same-sex marriage

Xeni Jardin

The state legislature of New York tonight made same-sex marriages legal. New York now becomes the sixth state to allow gay people to get married, and the most populous state to do so. Reuters: "State senators voted 33-29 to approve marriage equality legislation introduced by Governor Andrew Cuomo, a Democrat in his first year of office."

Gov. Cuomo has already signed the bill, so it will become law 30 days from now.

Human rights, dignity, equality, gift registries, tax breaks, divorces, and everlasting love for all.

Being an atheist...

First World Problems

L.A. County's Private Property War

By Mars Melnicoff


"It has a bedroom, bathroom, kitchenette, all that." Joey Gallo, a disabled vet facing homelessness under county orders, with his friend Lucky.

A cheery facade, but on the backside Jacques and Marcelle Dupuis have begun dismantling every board and nail of their home.

In his huge garage, Tom Fidger hosts AVTO, the Antelope Valley Truckers Organization, formed to fight back.

Fred and Linda Kirpsie: "This is not an illegal lifestyle, it's our happiness."

"They made me remove my hairpiece. Nobody's ever seen me without my hairpiece." Kenny Perkins, arrested for illegal storage on his land.

Oscar and Aracelis Castaneda at his church, where Kill Bill was filmed Click here to watch our video exclusive, "L.A. County's War on Desert Rats."

In Llano, in the middle of the Southern California high desert, a bewhiskered Jacques Dupuis stands in front of what was once his home. His laid-back second wife, Marcelle, her long, silver hair blowing in the breeze, takes a drag on her Marlboro Red as they walk inside and, in thick French Canadian accents, recount the day in 2007 when the government came calling. "That's the seat I have to offer you," she tells a visitor, motioning to the exposed, dusty wooden floor planks in what was once a cozy cabin where Jacques spent much of his life, raising his daughter with his first wife.

On Oct. 17, 2007, Marcelle opened the door to a loud knock. Her heart jumped when she found a man backed by two armed county agents in bulletproof vests. She was alone in the cabin, a dot in the vast open space of the Antelope Valley, without a neighbor for more than half a mile. She feared that something had happened to her daughter, who was visiting from Montreal.

The men demanded her driver's license, telling her, "This building is not permitted — everything must go." Normally sassy, Marcelle handed over her ID — even her green card, just in case. Stepping out, she realized that her 1,000-square-foot cabin was surrounded by men with drawn guns. "You have no right to be here," one informed her. Baffled and shaking with fear, she called her daughter — please come right away.

As her ordeal wore on, she heard one agent, looking inside their comfortable cabin, say to another: "This one's a real shame — this is a real nice one."

A "shame" because the authorities eventually would enact some of the most powerful rules imaginable against rural residents: the order to bring the home up to current codes or dismantle the 26-year-old cabin, leaving only bare ground.

"They wouldn't let me grandfather in the water tank," Jacques Dupuis says. "It is so heart-wrenching because there was a way to salvage this, but they wouldn't work with me. It was, 'Tear it down. Period.' "

In order to clear the title on their land, the Dupuises are spending what would have been peaceful retirement days dismantling every board and nail of their home — by hand — because they can't afford to hire a crew.

Tough code enforcement has been ramped up in these unincorporated areas of L.A. County, leaving the iconoclasts who chose to live in distant sectors of the Antelope Valley frightened, confused and livid. They point the finger at the Board of Supervisors' Nuisance Abatement Teams, known as NAT, instituted in 2006 by Los Angeles County Supervisor Michael Antonovich in his sprawling Fifth District. The teams' mission: "to abate the more difficult code violations and public nuisance conditions on private property."

L.A. Weekly found in a six-week investigation that county inspectors and armed DA investigators also are pursuing victimless misdemeanors and code violations, with sometimes tragic results. The government can define land on which residents have lived for years as "vacant" if their cabins, homes and mobile homes are on parcels where the land use hasn't been legally established. Some have been jailed for defying the officials in downtown Los Angeles, while others have lost their savings and belongings trying to meet the county's "final zoning enforcement orders." Los Angeles County has left some residents, who appeared to be doing no harm, homeless.

Some top county officials insist that nothing new is unfolding. Michael Noyes, deputy in charge of code enforcement for Los Angeles County District Attorney Steve Cooley, says, "We've had a unit in the office through the '70s and '80s." But key members of the county NAT team say that "definitely, yes," a major focus on unincorporated areas was launched in 2006. Cooley declined to comment through his media spokesman.

Click here to watch our video exclusive, "L.A. County's War on Desert Rats."

Many residents insist a clearing-out is under way in these 2,200 square miles of arid land an hour north of L.A., a mountain-ringed valley at the western tip of the Mojave Desert named for elegant pronghorn herds that were all but wiped out by an 1884-94 drought. Their anxiety has prompted conspiracy theories about whether the county has its own plans for their land.

The crackdown has the strong backing of Antonovich, whose spokesman, Tony Bell, says of its critics, "I've probably ruined your story because you want to say it's a horrible thing going on. ... We have gotten a very, very positive response from the community."

Not everyone. Oscar Castaneda, pastor of Lancaster's historic adobe Sanctuary Seventh-day Adventist Church, built in 1934 and featured in Kill Bill, recalls the day he says he was ordered to "freeze" in front of his mobile home on isolated land where his only neighbors are rattlesnakes. Decades ago, Castaneda says the county gave him verbal approval to live there in a mobile home. He told the NAT team, which began photographing his spread: "Listen, I've been living over here for 22 years. And nobody has come over here to bother me."

He says a county team member replied, "Well, we're 22 years late."

Tim Grover, who leads NAT as supervisor of the property rehabilitation section of L.A. County's Building and Safety Division within the Public Works Department, says desert dwellers are not being treated overly harshly and the teams have a duty to seek out public safety, health and zoning violations.

"We don't just storm people's property and do things without permission," Grover says, but, he adds, "If it's 'vacant' land or 'vacant' property, then there's no expectation of privacy."

The battle in the desert attracted national attention two weeks ago when Alan Kimbel "Kim" Fahey lost a Los Angeles Superior Court criminal case over his whimsical, soaring Phonehenge compound in the Mojave Desert, built from 108 telephone poles — but without sufficient permits. A hero to many for taking on the county, he now must work out a plan for tearing down his colorful, barn-style home; big rainbow-painted "tree house" on stilts; cabin designed to look like a railroad car; 70-foot tower of stained-glass windows; interconnecting labyrinth of bridges; and pre-existing old buildings.

Fahey, a Santa Claus look-alike with a love for Harley Davidsons and denim overalls, is still upbeat, saying of his government foes: "They are just county blobs, they don't care about people." Save Phonehenge West has more than 28,000 Facebook fans.

For more photos, see "Desert Rats: Scenes from the Antelope Valley."

Powerful county officials seem eager to downplay the unfolding drama in the desert. Antonovich's communications deputy, Bell, told the Weekly: "NAT teams are used when there is toxic waste ... environmental crises ... potentially a parolee who has escaped. Maybe methamphetamine labs, or maybe illegal dog breeding. Very, very serious violations. ... I remember one time, folks were attacked with half a dozen wild boars so big they go up to your chest."

Those are not the stories told by people targeted by a system they say has morphed into a taste patrol. The desert's fierce individualists — a racially mixed bunch including Latinos, whites and African-Americans — have banded together to resist the crackdown. A truckers' advocacy group, the Antelope Valley Truckers Organization (AVTO), created in response to the county actions, draws an audience to its monthly meetings larger than the locally elected Littlerock Town Council, an advisory group to the county. And the Littlerock council has been upended by the locals, its members replaced with an anti-crackdown majority.

The Littlerock Town Council has proposed amendments to the Community Standards District that would take the desert dwellers, and longtime reality, into account. Bill Guild, president of the town council, says their mission is to rewrite the rules enacted by a county seat that is "almost immune to common sense."

In 2005, Cowboy Emeterio thought he was all alone. A maintenance construction helper for the Los Angeles City Department of Water and Power, Emeterio had enjoyed a peaceful relationship with the authorities before the Nuisance Abatement Teams existed. "The guy would just tell me, 'You know what, I need you to clean this here, I need you to put a fence around these things here in case some kids come around here and start wanting to climb over, so they don't get hurt."

In 2006, when Antonovich formed a NAT program in his district, Deputy District Attorney David Campbell was assigned to prosecute those who resisted the rules. "Oh man, I was one of the first motherfuckers on their docket," Emeterio says. NAT "didn't even have a name for themselves when they first started." But then they "started telling me and threatening me that I had to leave. And I wouldn't leave, so they took me to court to make me leave."

Emeterio claims that Campbell told his public defender, "Well, he's got 'vacant' land, and we want it vacant." His voice rising, he explains the county's view: "You're not allowed to have anything there! Not a storage container, not a fuckin' tire, not a nuthin'. Not a tractor. Nothing! ... Well, he wanted me off the property, and I told him, 'I'm not going anywhere, man. We're taking this to the box.' "

But government, Emeterio found, is hard to beat. Although many landowners now realize they should have known this fundamental law, the requirement to obtain land-use permits for such things as living in a mobile home or storing a truck, cargo container or stack of wood was news to many. This news was delivered by NAT teams, often made up of DA investigators, Sheriff's deputies, health inspectors, Building and Safety inspectors, zoning officers and animal control officers.

Grover, head of NAT, says, "We are trying to get the message out about what we do. We have nothing to hide, we feel. But a lot of people don't like what you did to them and so they'll make up a story ... and people start believing things that never happened." For example, Grover says, DA investigators are armed for the safety of the entire NAT team as they approach an unknown structure in the desert — not to intimidate residents.

Emeterio says his wife spent a day in jail a couple years ago. The Emeterios say she was arrested for trespassing on their own land; the county NAT team says that never happens. But they were forced out of their large camper known as a fifth wheel — they had no permit for living there. Hauled into criminal court by the district attorney, Emeterio was given six months to obtain all his permits, but it took him three years. The couple were ordered to remove everything from their 5 acres, down to the piles of firewood he had long been splitting and selling.

Now he's building a prefab home — with permits — but the couple is no longer living together due to the resulting, intense stress. He's now homeless — "playing musical chairs," is how he puts it — and on probation for defying the county's cleanup orders.

About the time in 2006 that the Emeterios were targeted, Chip and Amalia Romary were pulled over in their vehicle in Palmdale. The man he thought was a traffic cop issued him a curious ticket, Chip Romary says: A citation for illegal land use. "I received a traffic ticket for illegal land use. Illegal land use. A traffic ticket."

Their story helped fuel a growing fear that the county government is tracking people using inordinate resources and invasive techniques. "I bought a piece of property, 6 and a half acres," Romary says of the land under contention, "a wonderful piece of property. It was my life. It was everything that I wanted. It had a foundation, had water, had septic. I inherited a mobile home from my grandparents" in which he and Amalia lived.

"I showed up in court not knowing what this was all about, and they said, 'You are illegally living on your land.' Now, how that's possible, I don't know."

Romary focuses much of his wrath on prosecutor Campbell, whom he blames for his four-day stint in jail. "My life is now a nightmare," he says. "The courthouse is so corrupt, it's like a mob."

In 2006 and 2007, these and other stories began to be heard along the Sierra Highway, at parties and at the used goods and mercantile Trading Post on Pearblossom Highway in Littlerock. Tow-truck driver Richard Mesny was in trouble for storing numerous inoperable cars on his land; Lawrence Hansen, a retired electrician and former shop teacher, was under orders to remove "trash, junk and debris" that he says were his tools and construction materials.

Among those talking were the Dupuises. Jacques Dupuis had built their Llano cabin amidst the Joshua trees to code in 1984, but obtained insufficient permits and faced extensive red tape in getting his paperwork approved. An experienced builder, he recently worked as general superintendent on the "adaptive reuse" of a 17-story high-rise in downtown L.A., transforming it from offices to condos. So Dupuis figured he could get "after the fact" permits, which are granted to many who build to code in Southern California.

But codes have dramatically changed. The water well the county now required — the Dupuises use a tank supplied by a water truck — could cost $85,000 and wasn't guaranteed to produce water. The county also aggressively acted to force them to remove a cargo container — which can be seen only by passing hawks.

But Oscar Gomez, a zoning official on a county NAT team that took the Weekly on a ride-along in June, says such violations "bring the property value down. ... There are actually people that own all the property around them, even if they haven't built there yet."

The Dupuises couldn't afford an attorney with experience in this type of criminal law, and they lost to the county on the cargo container issue. They sued the county to remove from their records the land-use violations caused by their lack of a well. But the suit was dismissed.

Reacting to multiple reports such as the Dupuises', of being confronted by teams with guns, NAT team members who took the Weekly on the ride-along laughed and shook their heads. John Yacovone, a DA investigator, says, "We've heard those stories, too. It's not the way we work. We don't approach with our guns drawn."

But the stories are widespread and persistent. In November 2006, Fred and Linda Kirpsie, an off-the-grid family living atop a 4,000-foot mountain, were wondering how county officials "found" their cluster of aging mobile homes and huge scrap-metal collection, at the end of four-wheel-drive-only Kirpsie Road. Did they use Google Earth? Helicopters?

Despite their extreme lifestyle, the Kirpsies had lived on "Kirpsie Mountain" for 32 years, and Fred penned "Ore Car Update," a gold-mining column, for the Acton/Agua Dulce News. But in late 2006, when the Kirpsies returned home from a chore, their mentally disabled adult son, Paul, told them the authorities had visited.

The Kirpsies claim an armed team wearing black flak jackets pulled up in black SUVs and told Paul that his family had "no right to be here." The NAT team returned multiple times to issue orders to remove great heaps of items from the property.

"It's not an illegal lifestyle," Kirpsie says. "This is our happiness."

Criminally prosecuted, the Kirpsies agreed in March to a plea deal in which they will clear their land of every item, thus avoiding jail, says Guild of the Littlerock Town Council. They are moving to a mining town in Nevada.

But some don't have the resources to start over. Joey Gallo, a disabled veteran on a $985 monthly pension, like the Kirpsies and Dupuises, says he also was approached by an armed NAT team. They returned several times, each time ratcheting up the citations against him, he says.

"I said, 'Well, look, we've complied. We've taken the trash away ... we picked all the weeds away. And the place looked really nice and clean.' And they said, 'OK, now the motor home has to go. It can't be here. And the sheds have to go.' "

With the weeds removed and the trash cleared, Gallo was horrified when the county ordered him to tear down his simple, garage-like home. "It has a bedroom. It has a bathroom, it has a kitchenette, all that," he says, close to tears.

Some residents believe that county Nuisance Abatement Teams order the more modest compliance actions first, such as weed-clearing, then build up to ordering residents to remove their homes, saving the county from paying for costly cleanup once a dweller with little financial means is pushed out.

Grover denies this out of hand, saying, "Our goal is to educate them about code violations. We do not want to push them out of their land."

Gallo, who is diabetic and positive for HIV and hepatitis C, has an annual income just $930 over the federal government's poverty line, and no family to turn to. He fears the county will force him off his land soon, and he gets choked up and tearful easily. He's distraught over what may become of his beloved dog and cat.

Interestingly, county officials appear to understand what they are forcing Gallo into: A recent NAT visit was from "a lady at the gate," he says angrily, who handed him a flier for Stand Down, a program for homeless vets.

Until the county enforcers came calling, Gallo led a stable life. He wasn't in any danger of becoming homeless.

Inevitably, these complaints reached the county's elected advisory board, the Littlerock Town Council. Bill Guild was president of it when a group of truckers, who live in large numbers in Littlerock, came to it in late 2007.

Scott Sterner, who got hit with violations for having two seagoing containers on his acre of land — a common practice among his far-flung neighbors — wanted to know, whose standards were they being made to live by?

"You guys ever see the thing you get in the mail?" Sterner asked a crowd of truckers and others invited to speak at the Littlerock Town Council last year. "Looks like the Nazis wrote it." To widespread murmurs of agreement, he told the audience that his 2007 citation from L.A. County consisted of: "You're fined, you're going to jail, we're lien-ing your property."

To comply with one rule barring any nonpermitted structure larger than 120 square feet on private property, Sterner hired a worker to cut his two cargo containers into three parts with a blowtorch. The result is much uglier, but technically it complies with the county's A-1 zoning code for light agriculture. Sterner says, "I got a big mess in my backyard now."

Before NAT came around, Sterner had two valuable, sturdy cargo containers — and no neighbor gave a damn. Now, Guild says, Sterner has "six things that are not earthquake-safe, they're really nothing. He's out $4,000 or $5,000."

"At first it seemed like [NAT teams] were focusing on trucks, then truck containers, then cars, then boats, then RVs, then trailers" parked on their owners' land, Guild says. But once the county Nuisance Abatement Teams got access to these parcels far off the beaten track, the crackdown widened to building codes — in a region where almost every home has code violations.

"Technically, almost everybody out here is violating a code — so if they want to go after you, they can," says Amy Konstantelos, an attorney representing some of those targeted. "So am I — my fence is too high because I have animals that I don't want to get out."

In early 2008, local truckers had had enough. With Guild as their only champion on the Littlerock Town Council, they created the Antelope Valley Truckers Organization. Guild quit the council to join the group's leadership, and ultimately the group met directly with Antonovich. Little, they say, came of it.

More truckers appeared to tell their stories at AVTO meetings, held in the huge garage behind the home of Tom Fidger, another targeted trucker who was fighting to keep his diesel truck and two containers on his land on 90th Street East in Littlerock. Tim Dennis, a former heavy equipment operator in Juniper Hills, was under orders to clear every item — including seven cargo containers — off his 10 acres. On 77th Street East, truckers Oscar and Mayra Arevalo gave up fighting L.A. County. They drove their big rig to Guatemala, their home country, to store it.

At one early AVTO meeting, a resident stood up to complain about his plight, but he wasn't a trucker and barely got any notice. He was Kim Fahey, the defiant Phonehenge builder who would become a rallying figure, a code enforcement resister who made headlines nationally when he lost his 5-year fight in court in early June.

Fahey points out that those who purportedly "hate" his buildings remain anonymous. "They said it was A. Nonymous," he jokes. "If I ever run into A. Nonymous in a bar, I'm going to kick his ass."

But Fahey is serious when he reflects on the implications of his trial, saying, "The story is more important than me, because they are doing this to thousands of people. I'm just trying to bring it to the forefront."

As residents like Fahey, Emeterio and Gallo trickled into meetings, it became apparent the anger was not trucker-specific. AVTO evolved into a group also trying to help non-truckers.

They included Kenny Perkins and his wife, a nurse, who keep beautiful, restored 1920s-through-'70s cars on their desert land and rent them for use in movies, such as Angelina Jolie starrer Changeling. His current neighbors are cool with it. Lore has it that Perkins' ex-neighbor complained to the county because somebody turned him in for his own nonpermitted dirt bike motocross track.

When Perkins and his wife returned from a trip to Scotland in late 2008, he says, he found a notice on his door. He called the Department of Regional Planning listed on that notice, but says they never called back. Finally, a Nuisance Abatement Team came to the Perkinses' yard in Acton and asked him his name, but Perkins said he was "Kenny Stuart" to screw with them, he says. "I almost said my name was Marco Polo," he recalls with a small smile.

According to Perkins, the county returned with an arrest warrant, charged him with eight counts of storing or parking nonpermitted items on his acreage, and hauled him off. "I was humiliated because I'd never been in trouble before. I had to remove everything from my pockets. They made me remove my hairpiece. No one's ever seen me without my hairpiece."

Required to move a building, three mobile homes, an RV and shipping containers he was renting out for storage on his 5 acres, he began losing $2,000 a month, had to sell some of his rare cars, lost his good credit standing and had to give up a Marina del Rey boat slip, forced to part with his beloved 1966 cabin cruiser.

Perkins says before his case was closed, he was ordered to take odd measures, such as covering up half of his "Movie Ranch" sign so it just says "Ranch" because he's not permitted to run a business — renting vintage cars — out of his home. He was forced to move one outbuilding that wasn't "set back" enough from a 5-mile-long private dirt road, used only by his family and a few neighbors.

Pastor Castaneda, who presides at the historical Sanctuary Seventh-day Adventist Church, is among many who say Los Angeles County is drumming up cases against harmless desert rats who bother nobody and are valued members of the community.

He and his wife, Aracelis, live in their comfortable mobile home in Lake Los Angeles on 2.5 acres situated, inarguably, in the middle of nowhere down a long dirt road surrounded by desert.

But last year, he was approached by NAT numerous times for violations such as neatly stored but inoperable vehicles he repairs for income; "debris" including a rowboat the Castanedas were turning into a decorative planter; and living on the land illegally. Ultimately, the Castanedas received a citation stating that the L.A. County Board of Supervisors had confirmed a finding that "the property is substandard, declared the property a public nuisance because it is: injurious to health; offensive to the senses; and obstructs the free use of neighboring property so as to interfere with the comfortable enjoyment of life and property."

A "neighbor" had complained, the county says.

The problem is, the Castanedas have no neighbors.

The debate over government standards versus private property is common in the U.S., but Antelope Valley involves some of the more perplexing issues.

Robert McNamara is an attorney at the Institute for Justice, which litigates nationwide on behalf of individuals whose rights are violated by the government. Property rights is a key area in which "the courts are completely deferent to government, and have stopped acting as a check on government," he says.

On the other side, Paul Habibi, a professor of real estate at the UCLA Anderson School of Management and a landlord who owns 75 apartment buildings, says code enforcement is "a necessary evil," particularly for safety. "If there's an earthquake — or if electrical is not up to code — it could short-circuit and the building could catch on fire."

Moreover, he says, "Zoning is there to protect land and property owners. You can't build a factory next to a school. Neighbors have a right for property next to them to conform to the same codes they do."

But McNamara says codes are being created by people who are "out of touch," then enforced by "a set of people who are of the mindset: 'We are going to enforce these 600 pages of codes.' The problem is, what gets lost is, there are actual people there trying to live their lives."

The U.S. is full of property containing structures that don't comply with zoning codes, he says. Almost inevitably, selective enforcement occurs, "because you could technically kick everyone out. So you end up picking on people you don't like — or whose neighbors don't like them. These code enforcement people think they are making the world better by kicking these people out of their homes."

He and his organization see it as "clearly government run amok. ... Increasingly complex codes being imposed with no judicial oversight. [The] basic ability of people to use their property and live in their homes is being compromised."

Kimon Manolius, a partner at Hanson Bridgett law firm in San Francisco, heads the firm's public agency litigation practice group. A former prosecutor for the city and county of San Francisco, he represents public agencies enforcing codes. "If it's not fixed, the county has little to do but sue because it endangers life or limb or public safety in some way," Manolius says. He says he has never been involved in a case that didn't deal with a "real problem."

Real problems to Manolius would be "falling stairwells ... running a drug lab, repainting a house and making lead paint airborne, or mixing medical waste and normal waste."

Manolius' dramatic descriptions contrast with the violations described by many Antelope Valley residents targeted by NAT. Tim Cavanaugh, senior editor of Reason, a libertarian magazine, says Los Angeles County has "started going after the lifestyle that has existed forever in the Antelope Valley." And such campaigns, Cavanaugh says, can escalate.

McNamara points to Redwing, Ariz., where his institute is fighting the city's sweeping code enforcement. The government there wants to "look in every single rental unit in the city ... literally root around in your closet."

Joe Rajkovacz, director of regulatory affairs for Owner-Operator Independent Drivers Association, says there is no doubt L.A. County has launched a campaign to change life in the high desert, whether it admits it or not.

Rajkovacz, whose group is the largest trucking association in North America, for 29 years "wintered over" in Antelope Valley, where his sister lives.

Her 10 acres include a pear orchard where he parked his big rig for years. "Do that today, and you get a ticket," he says.

But several NAT team members said times are changing in the Antelope Valley; city people are moving to the desert and they expect a higher level of cleanliness and conformity. Of big rigs parked on private property, Grover says, "You know, you're parking semi trucks in the backyard of a residential neighborhood. It's not necessarily approved to do that."

But Rajkovacz suggests that Antonovich's code enforcement pressure on independent truckers in the desert reveals that Los Angeles County leaders, including Antonovich, are ignorant about the trucking industry. "He probably thinks there are six or seven big companies," Rajkovacz says, but in fact small-business truckers who own 20 trucks or fewer make up 96 percent of the industry. People with one truck make up half of all registered "motor carriers" in the U.S.

"A person owning one truck is not going to own a terminal — they're going to choose to live in a rural area" where they can park a semi truck, he says. "It just boggles the mind, when you look at L.A. metro — a complete lack of respect for these small businesses."

With truckers integral to L.A.'s status as a leading goods-transportation hub, Rajkovacz says the attitude of " 'Now we are going to show up with guns' — it's insanity. Treating taxpaying citizens like criminals. ... And Antonovich says he wants a transport hub in Antelope Valley."

On Antonovich's website, he does tout "an 'inland port' for the Antelope Valley to encourage the movement of long-distance freight to and from the ports of Los Angeles and Long Beach by rail." Truckers would pick up the containers in Antelope Valley. But county officials say they can't park on much of the land they own.

Government officials have "no idea — they think you can just park your truck in a big dirt lot," Rajkovacz says. "But if you don't park in a secure area, you get vandalized." A new truck runs $130,000 or more. When Scott Sterner, the trucker who chopped his two containers into pieces to meet county code, left his rig overnight at a construction site to which he was hauling material — an effort to comply with county orders not to store his rig on his own land — his truck was stripped.

"They're not talking about setting up whorehouses," Rajkovacz says. "They live in the high desert, a lot in Antelope Valley. There's a reason they live in rural, downtrodden areas — because that's all they can afford."

Tony Bell, Antonovich's spokesman, says, "To say the whole community is filled with truckers and construction workers — I don't think so." But AVTO cites California DMV statistics showing that Littlerock's ZIP code, 93543, has 266 Class A drivers. Multiply that by four, to represent the average family, and 1,064 people may be directly supported by truckers, out of a population of about 11,000 living in 3,600 households.

The crackdown, and the denial by some that a crackdown is under way, have fueled speculation as to Antonovich's, Cooley's and the NAT teams' motives. Residents suggest "they need to justify their jobs — and fill their budget." Others fear a land grab for future development plans. Bell calls that an "absurd" idea that he won't "validate" with a response.

But McNamara, working for an organization that hauls government entities into court, says: "That certainly does happen. We have seen zoning enforcement that can be explained by nothing else." The other key motivator, he says, is "bureaucratic bloody-mindedness."

Cavanaugh suggests what is under way in the high desert is an intolerance toward working-class and poor people who are "different." "Thank God they don't have resources to go around enforcing everything," he says. "It may not be your cup of tea, but that's the way people live."

The desert denizens have learned a lot from their political and legal mistakes. They're better organized than they were a few years ago, and they're learning unfamiliar government lingo like "Community Standards District."

In late 2009, when several seats opened on the Littlerock Town Council, a raft of candidates angry at the county crackdown ran, and won.

Other supporters, such as David Lewis, who lives in the desert but has been issued no code or zoning citations, are being drawn to the cause. Lewis set up the Phonehenge West Facebook page to draw attention not only to Fahey's Phonehenge battle but to the broader dispute.

Now Lewis has coined the idea of the "Teflon Letter," a document to be used against the county's claim that an anonymous neighbor has complained about code or zoning violations. In Teflon Letters, those who hope to live in peace without undertaking extensive code-compliance actions collect the signatures of neighbors who say they have no complaints with how they are living.

Tom Fidger, who hosts the AVTO trucker meetings and recently fought the county to store his diesel truck and two containers on his land, tried out the Teflon Letter approach. After collecting the signatures of his far-flung neighbors, he sent it to county officials.

"I haven't heard a word from them since," Fidger says. In the Teflon Letter, "All my neighbors said that what I did never bothered them, and never has, and wasn't going to."

Reach the writer at marsmelnicoff@gmail.com.